Lupton v R

Court of Criminal Appeal (NSW)|2023-11-24|Before: Ward P, Button J, Ierace J, Fagan J

The applicant's oral evidence

In oral evidence at the sentence hearing, the applicant expressed remorse and a desire to "get a job, be a normal person" when released from prison, so that he could care for his teenage daughter. He said he had been unable to "do programs" while on remand, although he was now in a "drug rehabilitation program" and had "been out of trouble" for about a year. As a result, he felt motivated to not return to drug use on his release. In cross-examination, he accepted that although he had multiple past opportunities following his past releases from prison to engage in rehabilitation, he had not done so.

References to material outside the agreed facts

In the course of hearing oral submissions by the Crown Prosecutor, the sentencing judge referred to the evidence of the pathologist in the second trial, as his Honour recalled it, concerning the degree of force entailed in the knife wound: "HIS HONOUR: On the forensic pathologist's evidence it was a thrust of the knife he said with a degree of force that might be compared to that which would be required to slam a door. [Crown Prosecutor]: Correct. The knife penetrated through the cartilage of a rib where it joined the sternum about 100 millimetres below the neck line and about 10 millimetres off the centre line of the body and it penetrated through between 30 and 100 millimetres and transected a critical artery. A knife thrust into that part of the body containing vital organs and large blood vessels would self-evidently cause grievous bodily harm at the least and I may take it that there has been such a knife thrust just from the physical evidence, whatever he might say about it. [Crown Prosecutor]: Indeed, yes your Honour."
Shortly afterwards, his Honour said: "In this case, subject to what [Senior Counsel for the applicant] says, I would take account of evidence that I heard in the course of the trial."
His Honour then referred to the pathologist's evidence in the second trial concerning the deceased being "a slightly built young man" and recalled Mr Bayes' evidence: "I saw Mr Bayes in the witness box. I don't know what his physical condition was at the relevant time, I saw him three years later, but he described himself as a timid man. He said he was afraid of [the applicant]. He described an altercation outside [the applicant's residence] within the weeks before this in which both he, that's Mr Bayes, and the deceased were, it's fair to say on Mr Bayes' account, entirely passive in response to violence by [the applicant] … punching through the window, as Mr Bayes described it." His Honour continued: "I will hear what [Senior Counsel for the applicant] has to say about that evidence."
In her oral submissions, Senior Counsel for the applicant referred to the sentencing judge's references to the stature of the deceased and Mr Bayes, saying: "Your Honour has made an issue in relation to the two men being quite slight. Your Honour has seen that [the applicant] is not a beefy young man, he's quite slim himself. HIS HONOUR: Yes. The past conduct though didn't suggest that [the applicant] would have much to fear from them, even in combination. [Senior Counsel for the applicant]: Well, your Honour, except the only past conduct was that punch in the car when the deceased was sitting in a car and he punched him through the window. That was the only physical altercation that preceded this. HIS HONOUR: The evidence that was given in the trial about that was that he, [the applicant], took the keys of the car which was in [the deceased's] control and told him to walk and [the deceased] got out of the car and complied, he walked down the street and around the corner. [Senior Counsel for the applicant]: But that is not consistent with what happened on that night, on the night that [the deceased] died, your Honour, because clearly, and your Honour will remember the medical evidence, on post-mortem [the deceased] had injuries to his knuckles consistent with him having punched someone and that someone, on [the applicant's] evidence-- HIS HONOUR: They weren't able to be aged, were they? [Senior Counsel for the applicant]: Yes, they were, your Honour. They were recent, that was the medical evidence, and that was consistent with what [the applicant] said about being punched. They were-- HIS HONOUR: Well, I have to take it anyway because of what has been agreed and conceded by the Crown that there was punching from Sjon Bayes and [the deceased], so, forensic evidence or not, the Crown has committed to that. Now, there's punching, but, on the description of the event that the Crown has accepted from your client, he managed to upend Mr Bayes."
Senior Counsel for the applicant sought to correct the sentencing judge's recollection of the forensic pathologist's evidence in the second trial concerning the degree of force used in the stabbing: "Your Honour has gone into the facts of the stab wound. My recollection is that the pathologist in terms of the stab wound and the force necessary agreed that part of that force could have been the victim coming down towards [the applicant]. HIS HONOUR: With respect, you are quite right. I recall the doctor saying that. [Senior Counsel for the applicant]: Yes. HIS HONOUR: But does it make any difference if from [the applicant's] point of view if he thrusts the knife towards the other person and the victim is coming at him? In order to plunge it into his chest, as occurred, he has to hold it firmly against the pressure of the other man approaching. [Senior Counsel for the applicant]: Indeed. HIS HONOUR: Alternatively the deceased does not move towards him but stands still. He has to thrust it forward. Either way the same amount of force is required to cause the blade to penetrate as it did fatally."

The parties' submissions on sentence

The parties agreed that the applicant was entitled to a 25 per cent discount for his early offer to plead guilty to the offence of manslaughter pursuant to s 25E(2) and s 25E(3)(a) of the Sentencing Procedure Act. The applicant accepted that relevant aggravating factors included the use of a weapon and the fact that the applicant was on conditional liberty at the time of the offence, pursuant to ss 21A(2)(c) and s 21A(2)(j) of the Sentencing Procedure Act, respectively.
The Crown submitted in writing that the applicant's intent at the relevant time was to cause grievous bodily harm to the deceased. It relied upon a statement of principles by the Court (Leeming JA, Garling and Lonergan JJ) in Newburn v R [2022] NSWCCA 139 at [39] and [52], which are applicable to the sentencing of an offender for manslaughter based on excessive self-defence. The Court is required to identify the circumstances as the offender (rightly or wrongly) perceived them to be and what, precisely, the conduct was that the offender believed was necessary in order to defend himself or herself. The offender's perception of the circumstances, and necessary conduct to defend themselves, is integral to the issue of the degree to which that conduct was unreasonable.
With respect to an assessment according to these principles, the Crown referred to three key facts. First, both Mr Bayes and the deceased were unarmed. Second, the perceived threat consisted of "a small number of punches (and unsuccessful attempts by Bayes to stomp/kick) from two men of slight build, the offender [having] suffered only the slightest of injuries". Finally, following the applicant causing Mr Bayes to fall backwards onto the floor, he could have simply left the room. The variance in the applicant's conduct from a reasonable response was significant and his moral culpability was, accordingly, high. Thus, the objective seriousness of the offence was "at or slightly above the mid-range of offences of manslaughter".
The applicant submitted that the objective seriousness of the offence was "below the mid-range" and that his moral culpability was "not at the high end of the range". He had gone to the Lethbridge Park premises unarmed and not intending to confront anyone, but rather to retrieve his keys. The sight of the two men smoking ice while his daughter was in the premises, which prompted the confrontation, was, to him, "a provocative thing". Within minutes he was assaulted by Mr Bayes and the deceased, to which the single stab wound was "a spontaneous reaction".
The applicant relied upon the fact that the offence was not planned or organised, as well as evidence of his remorse, pursuant to ss 21A(3)(b) and 21A(3)(i) of the Sentencing Procedure Act.
A significant part of the applicant's submissions concerned the proposition that the applicant's moral culpability should be mitigated by the application of the principles enunciated in the majority judgment in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, in view of the evidence of the applicant's childhood deprivation, including his exposure to domestic violence and drug abuse, sexual abuse while he was in state juvenile detention, his interrupted school attendance and his family's material poverty. As well, Senior Counsel for the applicant orally submitted that the Bugmy principles were applicable to the applicant.
In his written submissions, the applicant quoted a passage from Hoskins v R [2021] NSWCCA 169 in which Brereton JA (Basten JA and Beech-Jones J agreeing) stated, as to how Bugmy should be applied (footnotes omitted): "56 Subsequent decisions of this Court have confirmed that '[a]pplication of the Bugmy principles is not discretionary', although countervailing factors such as the protection of the community may affect their impact. 57 Although the High Court used the term 'profound childhood deprivation' when referring to its enduring effects, what was said to require consideration was 'an offender's deprived background' There is no magic in the word 'profound', and it is not necessary to characterise an offender's childhood as one of 'profound deprivation' before the principle is engaged. The principle is that social disadvantage may reduce an offender's moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending. As N Adams J explained in Dungay: [3] 'Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender's moral culpability: Kliendienst v R [2020] NSWCCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence.'"
The applicant extracted pars [40], [43] and [44] from Bugmy, in which the plurality referred to the need to ascribe "full weight" to an offender's deprived background. The applicant concluded this part of his written submissions by stating: "Notwithstanding [the applicant's] criminal record, his deprived upbringing should be given full weight in the assessment of his moral culpability."
The applicant submitted for a finding of special circumstances, justified by a combination of factors, including the his long-standing drug addiction in light of his recent promising engagement in a drug rehabilitation program; his extended period on remand (almost 3 years exclusively for this offence) much of which was without recourse to rehabilitative programs; the risk of institutionalisation highlighted by Ms Dombrowski and the hardship occasioned to him by the impact of the COVID-19 pandemic on his prison conditions; particularly the absence of family visits and not having access to programs.
The applicant submitted that his criminal record was consistent with his profile as a user and supplier of prohibited drugs. It included only three prior offences of violence committed as an adult, which were all assaults occasioning actual bodily harm, the earliest committed in 2009 when he was aged 18, the second in 2012 when he was aged 20 and the third in 2017 when he was aged 25.
In oral submissions, the Crown indicated that it only wished to be heard in relation to certain comparative sentences relied upon by the applicant, which it submitted were not of assistance. Other than that, in relation to the applicant's submission on his moral culpability and the application of the Bugmy principles, the Crown said: "I don't take any issue with the submissions in relation to moral culpability, for example, or the Bugmy type considerations as-- HIS HONOUR: Concerning his background. [Crown Prosecutor]: Indeed, your Honour, those matters are not controversial."

The sentence judgment

The sentence was handed down six days after the sentence hearing. The sentencing judge noted that the Crown accepted that the applicant was entitled to a discount of 25 per cent on the sentence that was otherwise appropriate, since he had offered to plead guilty to the offence at the earliest opportunity.
His Honour's recounting of the background to the offence included multiple details which were not in the agreed facts and which were apparently drawn from evidence in the second trial. These included details as to the past and the tentatively revived relationship between Sherie and the applicant; further detail as to the applicant's assault of the deceased while he was seated in his car and that he took the deceased's car keys during that incident; the relationship of Blake Mooney to the others (he was a friend of Mr Bayes and the deceased); and that when Sherie woke the applicant in her bed shortly before the offence, they resumed a heated argument that they had commenced earlier in the day.
His Honour prefaced his recounting of the agreed facts concerning the stabbing by observing, at [11]: "In both trials there was a divergence between the Crown's witnesses and [the applicant] as to what occurred next. In each trial [the applicant] gave substantially consistent evidence."
His Honour paraphrased the agreed facts as to what occurred in the period of time commencing from when the applicant discovered his keys were not in the padlock, to when he left the property.
His Honour then stated, at [14]: "In both trials the Crown led evidence from Sherie O'Neill and Mr Bayes from which it asked the jury to find that the stabbing occurred in the back yard, in quite different circumstance from those described by [the applicant], not involving any physical conflict that could have raised the issue of self-defence. However, in the Statement of Agreed Facts adopted by the Crown when it accepted the plea to manslaughter, [the applicant's] version of circumstances immediately surrounding the stabbing has been accepted. That is the factual basis upon which the Court must assess the objective gravity of the offence for the purposes of sentencing."
His Honour recited par 27 of the agreed facts, extracted at [41] above, and then summarised the evidence given in the second trial by the forensic pathologist as to the position and dimensions of the knife wound and the degree of force likely required to perpetrate the injury, which was described as "similar to that required to slam a door".
His Honour stated, at [15]: "It is implicit in par 27 of the Statement of Agreed Facts that [the applicant] admits the infliction of the knife wound was accompanied by intent to cause grievous bodily harm. Upon the agreed facts, I am readily satisfied beyond reasonable doubt that grievous bodily harm was intended. A deliberate knife thrust to the upper chest of another person, with sufficient force to pass through the cartilage of a rib and to penetrate to the vicinity of the heart, lungs and large blood vessels, would in many cases support an inference of intent to cause grievous bodily harm. There is no qualifying circumstance in the present case that would stand in the way of the inference."
His Honour, at [19], concluded that the applicant's conduct in stabbing the deceased with intent to inflict grievous bodily harm must be taken to have been, in the terms of s 421(1)(c) of the Crimes Act, "not a reasonable response in the circumstances as he [perceived] them", although he "[believed his] conduct [was] necessary to defend himself".
His Honour observed that the objective seriousness of the offence was affected by the degree to which the stabbing exceeded a reasonable response and, in that regard, neither the agreed facts nor the applicant's evidence on sentence provided any elaboration beyond the sentence in par 27 of the agreed facts that: "[h]e believed it was necessary for him to inflict a wound upon [the deceased] in order to defend himself against [the deceased]".
His Honour stated, at [19], that he was obliged to make a finding "as to precisely what circumstances of threat [the applicant], subjectively, perceived". His Honour concluded, at [20]: "I am satisfied beyond reasonable doubt that [the applicant] did not perceive any greater threat to himself than the infliction of bruising or abrasions from blows delivered with fists or by kicking. He described attempts to stomp on him but his account of the conflict, at trial and as summarised in the Agreed Statement of Facts, includes only a few punches and kicks that landed and there is no description of any phase of the conflict in which stomping actually occurred or in which either of the assailants got to a position where that form of striking may have been carried out. [The applicant] has not claimed that he thought either of his assailants was armed with any sort of weapon."
His Honour deduced from the deceased's height and weight, as noted in the agreed facts, that the deceased was "slightly built". Based on his Honour's observations of Mr Bayes as a witness in the second trial, and there being no evidence that his build had significantly changed since the offence, his Honour concluded that Mr Bayes was also "slightly built". In that respect, his Honour, at [21], made the finding that: "[The applicant] himself is not of large or particularly muscular build but given the physical characteristics of Mr Bayes and the deceased I am satisfied that even in combination they would not have been perceived by him as constituting a very frightening threat, or as capable of causing him any more harm than bruising or abrasions."
His Honour stated, at [22], that in reaching that finding, he took into account the car assault incident: "[The applicant] evidently felt no fear of Mr Bayes and the deceased on that occasion, when both were present together and when the deceased's friend, Mr Mooney, was also present. Further, it was obvious to [the applicant] that the deceased was passive in response to being severely assaulted and having his car keys taken from him. [The deceased] simply walked away down the Avenue. Mr Bayes gave these answers in evidence to the jury at the second trial: A I seen him throw two punches through the window and it sounded like he connected with one of them. Q Did you see either of those [two] punches connect? A Not from where I was standing. Q So when [the applicant] threw the two punches did you see what [the deceased] did, if anything? A [The deceased] was stunned and he was then told to get out of the car and leave and walk home and he did just that. Q […] Do you recall what words [the applicant] said to him? A Not specifically. I just remember him saying to get out and walk. By this time the keys had been taken out of the ignition. Q Who took the keys out of the ignition? A [The applicant] had taken the keys and told him to walk. Q […] Did [the deceased] do anything to fight back at that time? A No he did not. Q Did you see him do anything at all with any part of his body? A No nothing. [The applicant] disputed some aspects of these events but I found Mr Bayes a credible witness and I am satisfied beyond reasonable doubt of the facts that I have recounted concerning this incident."
The agreed facts did not refer to anyone other than the deceased and applicant being present during the car assault incident.
His Honour stated that he also took into account that, ten days before the offence and shortly after the applicant berated Mr Bayes and the deceased for smoking ice in his daughter's residence, he sent texts to Mr Mooney. His Honour continued, at [25], explaining the relationship between Mr Mooney, Mr Bayes and the deceased: "[The applicant] evidently felt no fear of the capacity of Mr Bayes and the deceased for violent retaliation, such as might have restrained him from threatening to 'stab the fuck outta' Mr Mooney and his friends, whom [the applicant] knew included Mr Bayes and the deceased. [The applicant's] knowledge of the timidity displayed by the deceased on those recent prior occasions supports my conclusion, beyond reasonable doubt, that [the applicant] perceived no greater risk to himself than superficial injury from punches and kicks. I am satisfied that [the applicant] did not perceive any likelihood of the attack upon himself escalating or being sustained to the point of causing serious injury to himself, having regard to his knowledge of the lack of aggression on the part of both of his assailants in previous encounters."
His Honour concluded, at [26]-[27]: "It is inherent in the Statement of Agreed Facts that [the applicant] believed it was necessary for him to knife the deceased in the chest with intent to cause him grievous bodily harm, as a response to the blows by fists and feet from Mr Bayes and the deceased. … I am satisfied beyond reasonable doubt that [the applicant's] conduct was unreasonable by a very great margin, relative to his perception of a threat that he might sustain bruises and abrasions from punches and kicks."
His Honour opined that, objectively, the applicant had multiple reasonable alternative responses to the threat that he perceived, including fighting back "in kind", continuing to shield his head from the blows and/or retreating from the house. His Honour noted, at [28]: "[The applicant] … was not faced with a life-threatening attack and did not perceive it as such. Nor did he perceive the attack as likely to escalate or to be prolonged. He had ample scope to defend himself in a limited fashion or to escape."
As to the applicant's subjective case, his Honour referred to the applicant's history obtained by Ms Dombrowski in some detail, noting that it was confirmed by the applicant in his sworn evidence and that it was not challenged. His Honour referred to the history of his erratic school attendance and behavioural issues, his drug use from the age of 12 and its subsequent escalation, his unsuccessful attempts at abstinence and counselling and his (then) current attempt at medicinal treatment of his drug use. His Honour reviewed his custodial history, noting that he had spent a total of four and a half years in custody by 9 May 2019. His Honour noted that the community correction order was current at the time of the offence and found that the applicant's record disentitled him from leniency on the basis of past conduct.
As to any link between the applicant's various issues and the commission of the offence, his Honour referred, at [34], to Ms Dombrowski having "linked [the applicant's] behavioural dysregulation at the time of the offence to his high rate of usage of illicit substances". His Honour extracted passages from Ms Dombrowski's report in which she referred to the applicant's drug use having underpinned the disturbances to the applicant's behavioural functioning, and likely having impaired his decision-making and judgment at the time of the offence, including disinhibiting his behaviour. As well, the extracted passages referred to the fact that, while the applicant used substances to manage negative thoughts and feelings associated with his experiences of neglect and abuse, that use had further undermined the quality of his psychosocial functioning and his ability to regulate and manage his emotions and behaviours.
His Honour concluded, at [36]: "It can readily be accepted that [the applicant's] judgment and self-control were impaired at the time of the offence, by the cumulative effect of years of methamphetamine abuse and his high consumption of the drug on the day in question - 5 grams. That does not mitigate the gravity of his offending. On the other hand, [the applicant] is undoubtedly entitled to consideration that fully takes account of the adversity of his upbringing."
His Honour stated that the applicant was to be sentenced on the basis that he deliberately stabbed the deceased, in view of that being admitted in the agreed facts, although the applicant claimed at the second trial, and to Ms Dombrowski, that he was not conscious of having inflicted any wound when he swung the knife at the deceased and Mr Bayes.
His Honour accepted that the applicant had expressed genuine remorse.
His Honour had reservations as to the applicant's prospects of rehabilitation in view of him having become "habituated to living off others by criminal activity", which has been "reinforced by negative, conflictual and aggressive attitudes to everyone around him": at [38]. His Honour observed, at [32], that that "[u]p to 9 May 2019, aged just short of 28 years, [the applicant] had spent a total of 4 ½ years in full-time custody".
His Honour noted, at [39], that he had been invited to find special circumstances, but declined to do so, explaining that the non-parole period: "… will give scope for a sufficient period of parole under supervision, to enable Community Corrections officers to do their best to reintegrate [the applicant] into the community and to set him upon a path to a constructive future."
His Honour stated that the sentence commencement date was two months after the applicant's arrest and entry into custody, in recognition of the fixed sentence of two months that was imposed for the unrelated offence of the possession or use of a weapon in a public place.

A miscarriage of justice occurred in that the sentencing judge had regard to evidence that was not before the Court on sentence when determining both the facts and the objective seriousness of the offence

The applicant's submissions

The applicant submits that it was not open to his Honour to take into account parts of the evidence in the second trial for the purpose of making findings of fact in the sentencing exercise, because the evidence in the second trial was not evidence in the sentence proceedings. The applicant accepts that the sentencing judge was not bound by the agreed facts if they were insufficient to enable a proper performance of the sentencing judge's function, and that his Honour was entitled to seek evidence of more detail as to the acts for which the applicant was to be sentenced: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 per Kirby P at 608C and Sheller JA at 613F. However, the sentencing judge remained bound by the evidence tendered on the sentence hearing.
The applicant acknowledges that neither counsel had objected to the sentencing judge taking into account some evidence in the second trial for that purpose and, indeed, at various points both counsel had invited his Honour to use parts of the evidence, as each recalled it, for that purpose. The applicant submits that the sentencing judge applied this evidence in conjunction with the agreed facts to determine the seriousness of the offence. The evidence that fell into this category, according to the applicant, was as follows. 1. The evidence of the forensic pathologist concerning the degree of force used to insert the knife into the victim's body ("similar to that required to slam a door") and the details of the passage of the knife through the victim's body (the agreed facts did not record the entry point of the knife wound, which has 100mm below the base of his neck and 10mm to the right of the midline of his chest and that its depth was between 30 and 100mm); 2. his Honour's conclusion as to Mr Bayes' build at the time of the offence, based upon observations of him when giving evidence at the trial and there being no evidence that his build was any different at the time of the offence; 3. Mr Bayes' evidence concerning his attitude towards the applicant and what he observed of the incident involving the applicant punching the deceased; and 4. Medical evidence concerning the age of the injuries on the victim's knuckles.
The applicant submits that, although the sentencing judge twice foreshadowed that he would hear from Senior Counsel as to her position in respect of him taking into account certain evidence from the second trial, she did not expressly respond to that invitation which, the applicant submits, allows this Court to infer that she did not turn her mind to that question. Alternatively, if this Court determines that Senior Counsel had made a "legitimate forensic decision" to not oppose the sentencing judge relying in part on evidence from the second trial, he submits that any benefit from that decision was slight when compared to the detriment to the applicant's case, so that the court is not precluded from determining that a miscarriage of justice occurred: TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 per Gaudron J at [28]. [AWS [42] and [43]]

The respondent's submissions

The respondent submits that the applicant has not demonstrated a miscarriage of justice, since Senior Counsel for the applicant acquiesced to the course adopted by the sentencing judge and, indeed, also sought to rely upon evidence from the second trial. To the extent that the applicant has raised an issue of incompetence of counsel, that submission should be rejected, because it was not pleaded as a ground of appeal and there is no evidence from Senior Counsel concerning the matters complained of on appeal. The respondent submits that, to the contrary, the approach taken by Senior Counsel of engaging with the sentencing judge on the evidence in the second trial suggested that her conduct was appropriate.
The fact that the evidence from the second trial was not tendered did not give rise to any irregularity or unfairness that affected the outcome of the proceedings. The sentencing judge acted fairly by alerting the parties to the shortcoming of the agreed facts and to his intention to have regard to the evidence tendered at the second trial. The respondent submits that, had Senior Counsel objected to that course, it would have been futile: "It would have resulted in the tender of the exhibits from the trial and the calling of the relevant witnesses at the sentence hearing. The applicant would have been in no better position, and may well have been in a significantly worse position. This approach would also have resulted in an unnecessary waste of time and court resources."

Consideration

The relevant principles as to whether a miscarriage of justice is established by a breach of procedural rules by counsel in the conduct of a sentence hearing was recently stated in Green v R [2022] NSWCCA 230 by Hamill J (Macfarlan JA and Harrison J agreeing) as follows: "38 The question is not whether there was neglect or incompetence but whether, viewed objectively, the events that unfolded gave rise to a miscarriage of justice. The inquiry is an objective one, focused 'ultimately, [on] what did or did not occur' in relation to the entering of the plea and whether a miscarriage resulted. … It is not an inquiry into whether there was professional neglect. As Gaudron J put it in TKWJ v The Queen (2002) 212 CLR 124 at [31]: 'As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of 'flagrant incompetence', 'egregious error' or the like.' 39 Her Honour was alluding to earlier cases where such language was employed and where the focus of the inquiry was on the degree of the lawyers' neglect or incompetence. Similarly, McHugh J said in TKWJ v The Queen at [79]: 'The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred.' 40 One relevant question is whether there is a 'reasonable explanation' for the course taken by the lawyers that may mean that there was no miscarriage. As Beech-Jones CJ at CL said in AK v R [2022] NSWCCA 175, 'if there could be such an explanation, then no error or defect in the trial occasioning any miscarriage of justice will have occurred.' The language used by Gaudron J in TKWJ v The Queen was somewhat more flexible (at [28]): 'As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.'" (footnotes omitted)
A miscarriage of justice is established if there is a material irregularity and there is a significant possibility that it affected the outcome of the hearing, in this case, the sentence hearing: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79]. See also Tsiakas v R [2015] NSWCCA 187 per Beech-Jones J (as his Honour then was), Leeming JA and Johnson J agreeing, at [42].
The sentencing judge was entitled to express concern to the parties at the sentence hearing as to the adequacy of the agreed facts for the sentencing exercise and to pose the question of whether aspects of the evidence in the second trial should be taken into account: Chow at 608C, Sheller JA at 613F.
The ambit of material that a sentencing judge may draw upon in determining relevant facts was stated by the Court in GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30]: "… it is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted). There may be significant limitations as to a judge's capacity to find potentially relevant facts in a given case. …" (citations omitted)
The evidence available to the sentencing judge in fact-finding and making the determinations necessary to formulate the appropriate sentence is constrained to these sources. Although the evidence in the second trial was not tendered, aspects of it were discussed and inferentially accepted by the parties to be available to the sentencing judge. As noted, the Crown Prosecutor expressly agreed with the sentencing judge's proposal to take into account aspects of the evidence of the second trial and, on my reading of the transcript of the sentence hearing, Senior Counsel for the applicant implicitly agreed to that course as well, by drawing upon other aspects of the evidence in the second trial that were not in the agreed facts to submit for a different factual finding to that proposed by the sentencing judge.
In my view, that approach by Senior Counsel bespoke a forensic decision by her to join with the Crown Prosecutor and accept that it was open to the sentencing judge to have regard to certain aspects of the evidence in the second trial, although the transcript of those parts was not tendered into evidence. Their decision was analogous to an informal admission by the parties of parts of the evidence in the second trial, as recalled by them and by the sentencing judge, in a manner that is consistent with the reference to evidence that is informally admitted in the passage from GAS extracted above.
In this category, I would include the exchanges between the sentencing judge and counsel concerning their recollection of the evidence of the pathologist's evidence as to the location, depth and further detail as to the course of the knife wound; the pathologist's opinion as to the degree or force required to cause the knife wound; that the applicant, the deceased and Mr Bayes were slightly built; that Mr Bayes was a timid man who claimed to be afraid of the applicant; that he was a witness of the car assault incident and the fine detail of that incident.
The evidence from the second trial that was recalled by the sentencing judge in the sentence judgment that had not been specifically discussed at the sentence hearing was, in my view, irrelevant to the sentencing judge's fact-finding and determinations.
His Honour's reference to the Crown case in the second trial being that the stabbing occurred in the backyard, which is extracted at [100] above, was a matter that his Honour identified and then expressly put to one side for the purpose of the sentencing exercise.
It follows that, applying the relevant principles, the applicant has not established that there was a miscarriage of justice. The evidence of the second trial that was canvassed during the sentence hearing by his Honour, or raised by counsel, was implicitly agreed by counsel to be material available to the sentencing judge for consideration in the sentence exercise. The evidence of the second trial that was incorporated into the sentence judgment that had not been canvassed in the sentence hearing with counsel and thus was not informally approved by counsel, did not contribute to a finding of fact or determination in his Honour's reasoning, and thus did not affect the outcome of the sentence hearing.
Accordingly, I would dismiss the appeal on ground 1.

The sentencing judge erred by failing to make findings in relation to the operation of the Bugmy principles and/or the evidence giving rise to the application of those principles

The parties' written submissions pre-date the filing by the applicant of his notice of intention to seek leave to amend the terms of ground 2. To the extent that they retain relevance to the ground as amended, they are considered.

The applicant's submissions

The applicant submitted in writing that since the sentencing judge accepted that the applicant had experienced significant childhood deprivation, his Honour was obliged to then apply the Bugmy principles by considering whether that deprivation impacted on the applicant's moral culpability, citing Lloyd v R [2022] NSWCCA 18 per McCallum JA (Hamill and Cavanagh JJ agreeing) at [32] in support of that proposition. The applicant submitted that the sentencing judge's observation that "[the applicant] is undoubtedly entitled to consideration that fully takes account of the adversity of his upbringing" did not discharge that obligation, since that was not a consideration of whether, and if so how and why (or why not), the Bugmy considerations impacted the applicant's moral culpability.
The applicant submitted that his Honour's express consideration of the relevance of background factors was confined to whether the applicant's drug use, both long-term and on the evening of the offence, was mitigatory. That examination stopped short of engaging with Ms Dombrowski's opinion that there was a nexus between this drug use and his childhood deprivation.
In oral submissions, the applicant submitted that the nature of this offence was reactive and spontaneous, rather than one that involved planning or premeditation, so that the issue of the relevance of his background of childhood deprivation to the commission of the offence was squarely enlivened.

The respondent's submissions

The respondent submitted that a finding by a sentencing judge that an offender has a deprived background does not mean that their moral culpability is necessarily reduced, although it must still be taken into account as part of the process of instinctive synthesis, which in this case, his Honour did. The sentencing judge comprehensively referred to the applicant's disadvantaged childhood as related in Ms Dombrowski's report and, at [36] of the sentence judgment which is extracted at [114] above, found that, while the applicant's impairment in judgment and self-control due to his drug use at the time of the offence was not mitigatory, he was "undoubtedly entitled to consideration that fully takes account of the adversity of his upbringing". The respondent concluded: "The above passage, read in the context of his Honour's detailed discussion of the applicant's subjective case, conveys the following: (1) the objective gravity of the offending was not mitigated by the applicant's background, including his drug use; (2) nevertheless, the applicant's background of adversity was to be fully taken into account in the process of sentencing. The first finding was clearly open to his Honour. The second finding is consistent with the approach endorsed in MH [4] and DR [5] , whereby the applicant's background of disadvantage was taken into account in the process of instinctive synthesis. In this context, the Sentencing Judge's reference to a 'consideration that fully takes account' of the adversity of the applicant's upbringing is clearly a recognition of the requirement expressed by the High Court in Bugmy to give 'full weight to an offender's deprived background.'"

Consideration

The applicant submitted to the sentencing judge that his profound childhood deprivation had compromised his moral development in a way that affected his impulsive decision to stab the deceased, thus reducing his moral culpability for the offence in accordance with the principles enunciated by the plurality in Bugmy.
His Honour did not refer at all to the concept of moral culpability or to Bugmy in his reasons for sentence. However, the fact that an item of evidence or legal principle is not mentioned in a sentence judgment does not necessarily mean that it was not taken into account by the sentencing judge: Church v R [2012] NSWCCA 149 at [36]. Further, remarks on sentence that were delivered ex tempore should be scrutinised with a degree of latitude: Dunshea v R [2016] NSWCCA 244 at [23]. Although the judgment was delivered six days after the sentence hearing, it appears that it was nevertheless an ex tempore judgment, in the sense that it had not been reduced to writing or otherwise composed before delivery.
It is appropriate to recall the statement of principles by the plurality in Bugmy: "40 … The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. … 43 … The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (footnotes omitted) (emphasis added)
Although the sentencing judge did not mention or make a finding in respect of the applicant's moral culpability, his Honour determined that "the adversity of [the applicant's] upbringing" would be fully taken into account, which echoes the emphasised words in [44] of Bugmy. In this sense, the sentencing judge adverted to the proposition that profound childhood deprivation must be taken into account in all sentencing exercises, regardless of whether it reduces an offender's moral culpability, which is one aspect of the Bugmy principles; see also Hoskins at [56], [57], quoted at [91] above.
The essence of the Bugmy principles is a recognition that an offender's physical and moral environment in their formative years may profoundly impair their moral compass and judgment, so that they may not be as morally culpable for subsequent criminal behaviour as an offender who has not been so afflicted. In order to determine whether a reduction in moral culpability is warranted on this basis, it is logically necessary to consider the evidence as to how those childhood experiences have affected the offender. If the offender's moral culpability is reduced by that impact, consideration is then given to whether countervailing factors, such as the need to protect the community, reduce or eliminate its mitigatory effect.
Application of the Bugmy principles is not discretionary: R v Irwin [2019] NSWCCA 133 at [3]. Once raised, it was necessary for the sentencing judge to consider the evidence as to whether the Bugmy principles applied in a way that reduced the applicant's moral culpability: Lloyd v R [2022] NSWCCA 18 at [32], [35].
The particular circumstances that concerned the court in the Bugmy decision were that the offender's childhood environment of alcohol abuse and violence resonated with his impulsive recourse to violence, in a moment of frustration, as an adult. Although the sentencing judge in the instant case accepted that the applicant grew up in a household where his heroin-addicted stepfather perpetrated physical violence against him, his mother and siblings, his Honour did not engage with the question of whether it marred his moral development, compromised his capacity to mature and to learn from experience, and in that sense contributed to his impulsive recourse to violence to end the assault against him, by which he committed the offence.
That evidence was in the psychologist's report. In the passage extracted at [69] above, Ms Dombrowski expressed and explained her opinion that there was a link between the applicant's offending and his childhood and early adolescent experiences. That incorporated an explanation of how his drug use, which began with smoking heroin at the age of 12 consequent to witnessing his stepfather's use of heroin, and continued into adulthood, with methylamphetamine and other substances as well, was a means to: "manage negative thoughts and feelings associated with his experiences of neglect and abuse (physical and sexual)". In the passage of her report that is summarised at [70] above, Ms Dombrowski explained how the applicant's disadvantaged developmental history, together with his early and heavy drug use, likely interfered with the normal development of the areas of his brain that are responsible for cognitive function, such as emotional and behavioural regulation and moral reasoning, which is known to lead to increase the risk of engaging in emotionally reactive and unlawful behaviours. The applicant's resultant unstable personality, together with his drug use and antisocial associations, were factors linked to his background of childhood deprivation that were relevant to the commission of the offence.
This Court has observed that a "causal link" between an offender's profound childhood deprivation and the commission of the offence is not a prerequisite to the application of the Bugmy principles: see for example R v MJ [2023] NSWCCA 306 per Price J at [132]-[135], Davies J agreeing, and Simpson AJA at [2] - [15]. Nevertheless, it has been observed that "if such a link exists then inevitably there will be a reduction in an offender's moral culpability": Dungay at [153], cited with approval in Hoskins at [57].
As noted, the respondent cited two cases in support of its submission that the sentencing judge giving "full weight" to the applicant's adverse background sufficed, which are MH and DR. However, neither case assists the proposition that it was unnecessary for the sentencing judge to expressly engage with the Bugmy principles and consider whether a reduction of the applicant's moral culpability was warranted. In MH at [36], Lonergan J (Ward P and Mitchelmore JA agreeing) found that the sentencing judge had expressly considered whether the offenders' moral culpability was reduced by the effects of his childhood: "Having found that the applicant's background of very substantial disadvantage did not reduce his moral culpability for the offending, the sentencing judge did not just cast aside the history of disadvantage, but rather he found that the applicant's disadvantaged background was a factor to be taken into account as part of instinctive synthesis and his Honour's pithily expressed remarks indicate that is what he has done."
In DR at [38], Bellew J (Ward P and R A Hulme J agreeing) noted that counsel for the applicant had withdrawn a submission that the offender's disadvantaged background had reduced his moral culpability, but that it remained a relevant matter to be taken into account as part of his subjective case. Bellew J observed: "38 … Given the absence of evidence establishing a causal nexus between the applicant's upbringing and the offending, that was a completely understandable position for counsel to have ultimately taken. 39 When his Honour's conclusion that Bugmy principles had no relevant application is viewed in this light, it does not, in my view, bespeak error. Given the evidence, and the manner in which the sentence proceedings had been conducted, it is apparent that his Honour's conclusion was that in the absence of evidence of the necessary nexus between the applicant's upbringing and the offending, there was no basis for a finding that his moral culpability was reduced. That conclusion was certainly open …"
Accordingly, in order to comply with the Bugmy principles, it was necessary for the sentencing judge to consider whether the evidence of the applicant's profound childhood deprivation warranted a reduction of his moral culpability. To not do so was to not take into account a material consideration, which constituted error in the sense of House v R.
For these reasons, I would uphold ground 2, as amended.

The sentencing judge erred in his Honour's reasons for failing to find special circumstances

As noted, the sentencing judge declined to find special circumstances, since the non-parole period would be sufficient without a variation to provide supervision of the applicant back into the community. In response to the specific bases raised by the applicant, which are referenced at [93] above, the sentencing judge referred to the applicant's submission that he required an additional period of supervision because of "his drug addiction [and] his need for rehabilitation". The sentencing judge responded that "these matters are general sentencing considerations that have no special significance for the ratio of the non-parole period". His Honour continued, at [43]: "As for institutionalisation, I do not find [the applicant] to be at risk. His past terms of imprisonment have not been continuous. On his own evidence he is not at the point of resigning himself to a future in prison. Covid-19 restrictions during at least two years of [the applicant's] remand would have made that portion of his sentence in some degree more burdensome than it otherwise would have been, but not to a significant extent in his case. I am not satisfied that the lack of access to prison programs during that period has been a significant deprivation, as [the applicant's] interest in such programs has not been expressed until recently. Unavailability of face-to-face visits would have had no more than a modest effect upon the offender in view of his lack of significant prosocial connections even when in the community."

The parties' submissions

The applicant submitted that, to the extent that his Honour's remarks concerning drug addiction and rehabilitation reflect a finding that such matters are not capable of supporting a finding of special circumstances, his Honour fell into error. His Honour's finding concerning the risk of institutionalisation was contrary to the psychologist's opinion and involved a miscalculation as to how long he had been in custody. Instead of him being in custody for four and a half years by the time he was almost 28 years old, the correct calculation was 5 years and 3 months. By the time of his release at age 35, he would have spent approximately 12 years and 2 months in custody, which would be 70 per cent of his adult life.
As to the impact of COVID-19 restrictions on his opportunity for family visits, it was submitted that the sentencing judge's finding that it did not add to the applicant's burden "to a significant extent" was contrary to his mother's evidence that it had made him more depressed.
The respondent submitted that the applicant's understanding of the sentencing judge's determination concerning drug addiction and rehabilitation should be rejected: "In the relevant passage, his Honour referred to drug addiction and rehabilitation as 'general sentencing considerations' with 'no special significance for the ratio of the non-parole period.' This was not a suggestion that these matters could never support a finding of special circumstances. It was a reflection of the fact that his Honour had already taken those matters into account as part of the process of instinctive synthesis … Without any specific evidence which could have justified taking these matters into account additionally as 'special circumstances,' to rely on those matters to reduce the non-parole period would have amounted to double counting, contrary to the authorities. Finally, implicit in his Honour's determination that there was no need to reduce the non-parole period to facilitate rehabilitation (because of the length of the statutory parole period) reflects a recognition that drug addiction and rehabilitation were capable of amounting to special circumstances."
The finding as to institutionalisation was open to the sentencing judge on the evidence. As to the COVID-19 restrictions, the respondent submitted that the sentencing judge took into account the relevant aspects ("limitations in face-to-face visits, the longer periods of lockdown, limitations on rehabilitative programs, and general anxiety") and was entitled to not be satisfied that they constituted special circumstances, because there was no "current and reliable evidence" of its impact, citing Wass v R [2022] NSWCCA 143, at [69]-[71] and Doudar v R [2021] NSWCCA 37, at [73].

Determination

Although the respondent did not dispute the applicant's claim of a miscalculation of his time in custody, there is no reason to doubt that the sentencing judge would have been cognisant of the fact that, by the time the applicant qualifies for parole, he would have spent the overwhelming majority of his adulthood in custody. While minds might differ as to whether the applicant was in danger of institutionalisation, in my view, there is no error in the sentencing judge's approach to that issue. Consideration of whether special circumstances are made out is an exercise in discretion, in which this Court would be slow to intervene: Caristo v R [2011] NSWCCA 7 at [28]. The sentencing judge duly considered the relevant evidence and rejected it as a special circumstance.
The sentencing judge's stated reason for not making a finding of special circumstances in respect of the applicant's drug addiction and need for rehabilitation does not, on its face, allow for any meaning other than that neither issue is a proper basis for a finding of special circumstances. The meaning contended for by the respondent, namely, that it was a finding specifically in respect of the circumstances of this particular case and not an observation in relation to that issue generally, is difficult to infer from that one-sentence reference.
It is not in dispute between the parties that a need for drug and/or alcohol rehabilitation is, in fact, a proper basis for finding special circumstances: DC v R [2023] NSWCCA 82 at [84]-[86]. An example of its application is R v Cramp [2004] NSWCCA 264, in which on resentence Spigelman CJ, Hidden and Buddin JJ agreeing, at [70] found special circumstances: "… to ensure that the progress as [the respondent] has made with respect to his drug addiction continues and that his rehabilitation after release from prison is adequately supported."
The sentencing judge's determination that the loss of face to face visits "would have had no more than a modest effect upon [the applicant] in view of his lack of significant prosocial connections even when in the community" is a finding that appears to connect the evidence as to the applicant's lack of pro-social associations when not in prison with the value of his relationships with his immediate family, namely, his mother and daughter. However, there is no suggestion in the evidence that when the applicant was in the community he did not have regular contact with his mother and daughter or that the contact was not a prosocial influence in his life.
The respondent's submission that there was no evidence before the sentencing court of the impact of the COVID-19 restrictions is contradicted by the content of the applicant's mother's letter to the court that was in evidence. She stated that, due to the COVID-19 pandemic, prison visits to the applicant were impossible for two years.
A deprivation of face to face visits consequent to prison restrictions in response to the COVID-19 pandemic, even though audio video link (AVL) communication was available, is a matter that may be taken into account when fixing sentence: Taha v R [2022] NSWCCA 46 at [70]. Although whether to do so was a matter of discretion, the sentencing judge's reasoning suggests that he has not had regard to a material consideration, namely the loss of family visits for two years due to COVID-19 pandemic restrictions, so that error of the type in House v The King is established.
Accordingly, I would uphold ground 3.
Error having been established, as is apparent from my reasons below, I consider that a different (lesser) sentence is warranted, so that it is necessary to resentence the applicant: Kentwell.

Resentence of the applicant

I find, consistently with the agreed facts, that the applicant deliberately stabbed the deceased in his chest, with the intent to cause him grievous (really serious) bodily harm. The circumstances as the applicant, rightly or wrongly, perceived them to be, were that he believed it was necessary for him to do so in order to defend himself against the deceased. The nature of the threat perceived by the applicant was of the deceased and Mr Bayes, who were known to him, continuing the fight; that is, to punch him to the head and face and Mr Bayes attempting to kick him.
In determining the reasonableness of the applicant's action and intent, in light of his perception of the threat, I note the following aspects of the agreed facts and certain inferences that I draw from them, of which I am satisfied beyond reasonable doubt.
As to the applicant's ability to handle the fist-fight with the two men without sustaining serious injury, I note that he had been sufficiently comfortable with being in a fist-fight with the deceased about three weeks before to have punched him in his head, in the car assault incident.
The deceased did not initiate the assault, but rather joined in it. The deceased's role was confined to repeatedly punching the applicant to his head and face. Mr Bayes also repeatedly punched the applicant and unsuccessfully attempted to stomp on or kick him. Those attempts backfired when the applicant grabbed Mr Bayes by his ankle and kicked him in his chest or stomach, causing him to fall backwards onto the floor, which suggests that the applicant was "holding his own", at least up to that point.
It was then, while Mr Bayes was on the floor, that the applicant chose to arm himself with the knife. Mr Bayes got up and the two assailants attempted to punch the applicant again. The applicant swung the knife back and forth and determined to stab the deceased.
As to the extent to which the applicant's response was objectively unreasonable in the circumstances, it was, in my view, disproportionate for the applicant to arm himself with a knife in response to a fist fight that might, at worst, involve further attempts at kicking or stomping. The assailants were not strangers to him, there is no suggestion that they threatened to seriously harm or kill him and it is not suggested that he thought or feared they were armed. He was not in an isolated location; he was in the residence of his child's grandmother, who was elsewhere on the premises at the time.
Moving the knife back and forth was sufficient in itself to stop the two assailants from succeeding in punching him again or kick him. It was grossly disproportionate for the applicant to go further and, with an intent to cause really serious bodily harm to the deceased, deliberately stab him in his chest.
I would make the same finding as the sentencing judge did as to the seriousness of the offending, namely, that the applicant's conduct was unreasonable by a very great margin. In my view, the offence was a particularly serious instance of manslaughter by excessive self-defence. Although the applicant's intent was not to kill the deceased, his decision to stab the deceased in his chest posed an obvious danger of jeopardising his life. The offence of manslaughter does not have a standard non-parole period, so it is unnecessary to qualify the seriousness of the offence in terms of a range.
As to the applicant's level of moral culpability, Ms Dombrowski's report sheds light on why the applicant reacted so disproportionately to multiple punches by the two men, namely, that it was consistent with his unstable personality and associated difficulties with emotional and behavioural regulation. His long-term drug use was his way of managing his negative thoughts and feelings associated with the traumas he had experienced in his developmental period which, in turn, had undermined his psychosocial functioning and exacerbated his inability to regulate his emotions and behaviour. In the situation in which he unexpectedly found himself when attacked by Mr Bayes and the deceased, his gross overreaction is consistent with his unstable personality and the impact of his drug use, both of which are causally connected to his childhood experiences.
Ms Dombrowski's findings were partly based on the applicant's unchallenged and personal history, which was corroborated by his mother in her letter to the court. I accept Ms Dombrowski's opinion as to the nexus between the applicant's childhood and adolescent experiences and his commission of the offence. In applying the Bugmy principles to these findings, I conclude that the offender's moral culpability is significantly reduced.
I note, however, that the same reasoning that reduces his moral culpability gives cause for concern as to the risk of future violent recidivism. The applicant's psychological issues associated with his developmental history are untreated and likely to substantively remain so, at least while in custody. Although his lengthy criminal record is primarily comprised of non-violent offences, it is consistent with a history of entrenched serious drug abuse and, by association, a continuing antisocial peer group. Thus, the issues identified by Ms Dombrowski as providing some background understanding of the offence are continuing concerns as to the applicant's level of risk of recidivism. I note Ms Dombrowski's opinion of a "high-moderate" risk of the applicant committing further violent or non-violent offences within 5 years of his release.
On resentence, I read the affidavit of the applicant's solicitor, Frances Low, which has notes from Justice Health annexed to it. Those notes, which were created between May and October 2023, confirm that the applicant was receiving monthly injections of Buprenorphine and did not present as being intoxicated or experiencing symptoms of the use of illicit substances.
I would find special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, for three reasons. First, the issues identified by Ms Dombrowski coincide with the applicant's reduced moral culpability to warrant a lengthy period of supervision during which I expect the parole supervisory authorities would oblige the applicant to receive psychological services of the nature that she recommends in her report.
Second, the applicant is at risk of continuing a cycle of reoffending. He has spent a considerable proportion of his adulthood in prison. At the time of this offence, the applicant was aged 28. On my calculations, he had been incarcerated for about six and a half years of the 10 years of his adulthood. By the time that he was sentenced for this offence on 20 April 2023, at which time he was aged 31, he had been in prison for about 9 years and 8 months of his 13 years of adulthood. In view of those figures and the applicant's limited history of a prosocial lifestyle in the community, which he claimed in evidence to aspire to, he (and the community) would benefit from a prolonged period of supervised assistance if he is to successfully make that transformation.
Finally, I would find special circumstances on the basis of the prison conditions that applied during the COVID-19 pandemic, in particular, his loss of face-to-face family visits and the unavailability of prison programs.
I would have regard to the maximum sentence for the offence of manslaughter, which is 25 years imprisonment. I would also have regard to each of the purposes of sentencing, as they are set out in s 3A of the Sentencing Procedure Act. The offence involved the use of a weapon, and the applicant was subject to the community correction order at the time of the offence: ss 21A(2)(c) and 21A(2)(j) of the Sentencing Procedure Act, respectively. I am satisfied that no penalty other than imprisonment is appropriate: s 5(1) of the Sentencing Procedure Act.
I take into account that the offence was not planned or organised criminal activity: s 21A(3)(b) of the Sentencing Procedure Act. I make the same findings as the sentencing judge as to the evidence of remorse, namely, that it is genuine: s 21A(3)(i) of the Sentencing Procedure Act. The applicant is entitled to a 25 per cent discount for his plea of guilty: s 25E(2) and s 25E(3)(a)of the Sentencing Procedure Act.
I would sentence the applicant to imprisonment for a period of 8 years and 6 months, backdated to commence on 7 May 2020 and to expire on 6 November 2028. I would impose a non-parole period of 5 years and 6 months, to expire on 6 November 2025.

Endnotes

Sherie O'Neill is subsequently referred to in this judgment by her first name to avoid confusion. No disrespect is intended.
Similarly, Susan O'Neill is subsequently referred to by her first name.
Dungay v R [2020] NSWCCA 209 at [153].
MH v R [2022] NSWCCA 287 at [33]-[36].
DR v R [2022] NSWCCA 151 at [40]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2024

Crimes Act 1900(NSW)ss 18(1)(b)

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 5(1), 21A(2)(c), (j)

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/73934 Decision under appeal Court or tribunal: Supreme Court of New South Wales Citation: [2023] NSWSC 412 Date of Decision: 20 April 2023 Before: Fagan J File Number(s): 2020/73934

JUDGMENT

WARD P: I have had the opportunity of reading in draft the reasons of Ierace J. For the reasons there given, I agree with his Honour that ground 1 of the appeal should be dismissed. Where I respectfully differ is as to the conclusion in respect of ground 2 and (in part) in respect of ground 3. For the reasons that follow, I would dismiss ground 2 and only uphold ground 3 in respect of one of the aspects about which complaint is made.
The complaint raised by ground 2, as explained more fully in Ierace J's reasons, goes to the error that the applicant contends was made in relation to the application of the so-called Bugmy principles (see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37). Those principles, the application of which is not discretionary, are of relevance in considering an offender's moral culpability and may, in appropriate cases, also inform the assessment of the objective seriousness of the offending (see the discussion in Paterson v R [2021] NSWCCA 273 (Paterson) by Beech-Jones CJ at CL, as his Honour then was, and the authorities to which Ierace J has referred).
In the present case, the sentencing judge, when addressing the applicant's subjective case, referred to the report of Ms Dombrowksi, a psychologist, noting her diagnosis that the applicant exhibited emotional and behavioural dysfunction and, relevantly, that Ms Dombrowski linked his behavioural dysregulation at the time of the offence to the applicant's high rate of usage of illicit substances (see at [34]). His Honour extracted (at [35]) both Ms Dombrowski's conclusion that the applicant's substance abuse very likely impaired his decision-making and judgment (and disinhibited his behaviour) at the time of the offence and her conclusion that the use of those illicit substances was to manage his negative thoughts and feelings associated with his experiences of neglect and abuse; and that the substance abuse had further undermined the quality of the applicant's psychosocial functioning and his ability to regulate and manage his emotions and behaviour. His Honour accepted (at [36]) that the applicant's judgment and self-control were impaired at the time of the offence by the cumulative effect of years of substance abuse and high consumption of methamphetamine on the day of the offence.
It is in this context (having noted not only the psychologist's assessment of the impact on the applicant of his substance abuse but also, in effect, that the substance abuse had a causal link to the applicant's deprived upbringing - since it was in order to manage negative thoughts and feelings associated with the neglect and abuse suffered during his upbringing) that his Honour concluded, first, that this did not mitigate the gravity of the offending and, second, that the applicant was "undoubtedly entitled to consideration that fully takes account of the adversity of his upbringing" (at [36]).
Thus, there can be no doubt that the sentencing judge took into account in the instinctive sentencing process the applicant's deprived upbringing (and his use of illicit drugs to manage the negative thoughts and feelings associated with that background, which Ms Dombrowski's report identified as having a causal link to the offending).
The language of taking full account of the adversity of the applicant's upbringing (at [36] of the sentencing judgment) echoes that used by the plurality in Bugmy of giving "full weight" to an offender's deprived background in every sentencing decision (see Bugmy at [44]). As Ierace J has noted, in Dungay v R [2020] NSWCCA 209 (at [153]), N Adams J explained that engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and of the offending (her Honour there observing that full weight could be given (in the instinctive synthesis process) to the effects of childhood deprivation in ways other than by reduction of moral culpability).
The complaint here made is that there was no express finding as to whether the applicant's childhood deprivation operated to reduce his moral culpability (notwithstanding his Honour's statement as to the full account that was to be taken of that adversity). In that regard, it is significant that the statements at [36] of the sentencing judgment are, in context, clearly a juxtaposition between the assessment of objective seriousness (which his Honour found was not reduced by the applicant's deprived background) and consideration of the applicant's subjective case (i.e., moral culpability) that was being addressed in this section of his Honour's reasons.
As Ierace J has noted, the fact that something is not mentioned in a sentencing judgment does not mean that it was not taken into account by the sentencing judge. Further, it is not helpful to parse a sentencing judgment (or any other judgment) as if it were a statute (see Leeming JA's observations in Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 at [67], with whom Barrett and Gleeson JJA agreed). The sentencing process is one of instinctive synthesis. Read in context, though the words "moral culpability" are not used, it is sufficiently clear that the sentencing judge was taking the applicant's deprived background into account and must have been doing so in considering his moral culpability before then turning to address the applicant's prospects of rehabilitation (which would be a countervailing factor in the sense that it raises the need for protection of the community). I accept that there is not an articulation in the reasons as to the reduction, if any, of the applicant's moral culpability by reference to the accepted fact of his deprived upbringing (and the psychologist's conclusion as to the causal link between his deprived upbringing and substance abuse which then leads to the applicant's dysregulation). However, that may be explicable by the lack of issue taken by the Crown as to those matters. Moreover, the assessment of moral culpability (as with that of the characterisation of the objective seriousness of the offence) is a broad evaluative decision which warrants appellate restraint (see Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ, with whom Simpson J (as her Honour then was) agreed).
Thus I have concluded that ground 2, as amended, is not made good. If I be wrong in so concluding then I would agree with the re-sentence proposed by Ierace J for the reasons his Honour has given.
As to ground 3, House v The King error must be established and, again, appellate restraint will be shown. Ierace J has concluded that there was error in two respects: in approaching the question of special circumstances on the basis that a need for drug rehabilitation was a general sentencing consideration that had no special significance for the ratio of the non-parole period (see at [43]); and the second that his Honour had not had regard to a material consideration (namely the loss of family visits for two years due to pandemic restrictions) (also at [43]).
As to the first of those matters, and having regard to what had earlier been said by his Honour at [39] (as to the sufficiency of the parole period for the applicant's rehabilitation), I was inclined to read what was said at [43] as being a statement referable to the specific circumstances of the present case rather than an observation in relation to the issue generally (as to whether the drug addiction and need for rehabilitation were matters relevant to consideration of special circumstances). However, I would accept that the statement that these matters are general sentencing considerations points against that reading of the sentencing judgment and to that extent I agree with Ierace J error has been demonstrated in relation to ground 3. As to the second of those matters, I do not accept that the conclusion his Honour reached as to the impact of loss of face to face visits involves House v The King error (the extent of that effect of the pandemic being an assessment of the evidence on which reasonable minds might differ - i.e., a matter relevant to the sentencing discretion). For completeness, I note that I agree with Ierace J that there is no House v The King error established in the sentencing judge's approach to the issue as to danger of institutionalisation, for the reasons given by Ierace J.
If it were necessary to re-sentence on the basis of ground 3 alone, I would accept that some adjustment to the non-parole period of the kind suggested by Ierace J would be appropriate.
BUTTON J: I have had the significant advantage of reading the judgments of Ward P and Ierace J in draft, in which the issues in this application for leave to appeal against sentence are fully canvassed. My own views are as follows.
As for ground 1, like Ward P, I agree with Ierace J, and have nothing to add.
As for ground 2, it is true, with respect, that the learned sentencing judge spoke concisely about the role in sentencing of the atrocious background of the applicant. It is also true that, in every case, a sentence must reflect subjective features pertaining to the offender, including of course an upbringing that was deprived or disadvantaged through no fault of their own. Almost without exception, such a background will sound in mitigation, sometimes extremely powerfully, not least because it is very often criminogenic. The extent to which it does so will be a matter for a sentencing judge, in all of the circumstances of the case.
Here, the best reading of the remarks on sentence as a whole is that the sentencing judge was well aware of the background of the applicant, regarded it as giving rise to an undoubted entitlement to consideration, and "fully" took it into account. The only way that his Honour could have done so was in mitigation of sentence.
Therefore, in my respectful opinion, ground 2 should not be upheld.
As for ground 3, I agree with Ward P and Ierace J as to the first part of it (drug addiction and the need for rehabilitation): on balance, I respectfully read the remarks on sentence of Fagan J as being somewhat too prescriptive as regards the possible establishment of special circumstances. I reject the reading of the Crown to the contrary.
It follows that I agree with their Honours that this error has been established, and would uphold that part of ground 3.
That error, I believe, calls for reconsideration of the sentence as a whole, as part of this Court's duty to consider re-sentence afresh, except in very limited circumstances. In that regard, I agree with Ierace J as to outcome.
For those reasons, I agree with the orders proposed by Ierace J.
IERACE J: The applicant seeks leave to appeal against a sentence imposed on him on 20 April 2023 by Fagan J for the manslaughter of Hady Jaouhara (the deceased) on 23 February 2020, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) (the offence). The maximum penalty is 25 years imprisonment and there is no standard non-parole period.
The applicant was arrested on 7 March 2020 and charged with having murdered the deceased. While the matter was still in the Local Court, he made a formal offer to the New South Wales Director of Public Prosecutions to plead guilty to manslaughter on the basis of excessive self-defence, in full satisfaction of the indictment. The offer was not accepted. On 20 October 2020, the applicant entered a plea of not guilty to murder and was committed for trial. He stood trial before Hamill J and a jury, which commenced on 21 January 2022. The jury was unable to reach a verdict and was discharged on 21 February 2022 (the first trial). On 21 November 2022, the applicant was tried a second time before Fagan J and a jury. He entered a plea of not guilty to murder but guilty to manslaughter, which was not accepted by the Crown. The jury was unable to reach a verdict and was discharged on 9 December 2022 (the second trial).
On 20 December 2022, the applicant was arraigned upon an amended indictment which charged him with a single count of manslaughter, that is, that he caused the deceased's death "in circumstances amounting to manslaughter". He entered a plea of guilty and on 14 April 2023 a sentence hearing proceeded before Fagan J (the sentencing judge). On 20 April 2023, he was sentenced to imprisonment for 9 years, backdated to commence on 7 May 2020 and expiring on 6 May 2029, with a non-parole period of 6 years and 9 months which will expire on 6 February 2027: R v Lupton [2023] NSWSC 412.
By a notice of appeal filed on 13 September 2023, the applicant sought leave to appeal against his sentence, on three grounds: "1. A miscarriage of justice occurred in that the sentencing judge had regard to evidence that was not before the Court on sentence when determining both the facts and the objective seriousness of the offence. 2. The sentencing judge failed to give meaningful consideration to the principles in Bugmy v The Queen [(2013) 249 CLR 571; [2013] HCA 37] concerning significant childhood deprivation. 3. The sentencing judge erred in his Honour's reasons for failing to find special circumstances."
At the hearing of the appeal, counsel for the applicant sought leave to amend ground 2. The respondent did not object to the proposed amendment, and I would grant leave to the applicant to amend the ground, so that it reads as follows: "2. The sentencing judge erred by failing to make findings in relation to the operation of the Bugmy principles and/or the evidence giving rise to the application of those principles."
For the reasons that follow, I am of the view that the first ground is not made out but that error in the sense of House v R [1936] HCA 40; (1936) 55 CLR 499 at 505 is established by the second ground as amended and the third ground, thereby, in the circumstances of this case, requiring the applicant to be resentenced: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [35], [42].

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