Nasrallah v R

Court of Criminal Appeal (NSW)|2021-07-14|Before: Bell P, Price J, Hamill J, Adverse P

The applicant's personal circumstances

The applicant was born in 1999. She was 20 years old at the time of the offence and 21 when she was sentenced. At the time of sentence, she had one conviction on her criminal record. That offence was committed a few months before the robbery offence and involved failing to disclose the identity of the driver or passenger to police as the owner of the vehicle. [70] It was a summary offence for which the applicant was fined $1,000. The sentencing Judge treated her as a first offender and accepted that she was a person of good character. [71]
Letters from the applicant and her mother were tendered along with certificates demonstrating the applicant's progress towards rehabilitation. A narrative of the applicant's life was provided in a report from a psychologist, Mr Sam Albassit. While the Prosecutor at first instance, and counsel for the respondent on the appeal, noted that this material was hearsay, the sentencing Judge accepted the evidence and (generally) the opinions provided by the expert. Mr Albassit was not subject to cross-examination and there was no suggestion of exaggeration in the history provided by the applicant as to certain traumatic experiences when she was 13 to 14 years old.

The impact of these traumatic experiences on the applicant

The applicant's suicide attempt and admission to hospital provide some insight into the impact of the traumatic events the applicant experienced as a young teenager. At the time of Mr Albassit's report, Ms Nasrallah tested in the "extremely severe" range for the core symptoms of depression and anxiety. The psychologist provided an opinion that the applicant "has been exhibiting the symptomatology of Post-Traumatic Stress Disorder ("PTSD") for approximately seven years" and "the symptomatology of Substance Dependence for approximately four years". The applicant's symptoms of PTSD were described in the following terms: "Due to the trauma she experienced in her childhood and early teens she developed a maladaptive pattern of substance use. Ms Nasrallah's substance use continued despite experiencing ongoing and persistent psychiatric and psychological issues that were caused and exacerbated by the substance use."
Mr Albassit concluded: "In my opinion there is a direct and significant correlation between Ms Nasrallah's offending behaviour and her ongoing chronic psychiatric/psychological conditions. Her feelings of worthlessness and low self-esteem stemmed from the feelings of neglect and abandonment, during her childhood. She blames herself for her father leaving the family. Those feelings were exacerbated by the traumatic incidents relating to her uncle as well as the kidnapping and assault presented above. She began self-medicating through substance use, namely cannabis, cocaine, and prescription medication. At the time of the offences, Ms Nasrallah was under the influence of illicit drugs which significantly impaired her judgment in relation to the decision to carry out the offences outlined above. Research suggests a correlation between traumatic experiences and criminal behaviour revealing that offenders present a higher prevalence of Post-traumatic Stress Disorder and associated symptoms when compared with the general population. Furthermore, there is an association between exposure to trauma (e.g. threatened and physical violence) and perpetration of crime especially in the context of chronic trauma. Ms Nasrallah has a significant chronic history of trauma dating back to her childhood and into her adult life. Exposure to traumatic experiences, especially those occurring in childhood, has been linked to substance use disorders and are highly comorbid with PTSD. Substances create renewed chemical imbalances in the brain or reinforce the old ones which lead to increased emotional instability. The individual may have initially turned to substances to help them forget or suppress their memories and the feelings of anxiety or worthlessness that accompany them. Once an addiction occurs, individuals can experience dramatic mood swings that cause buried feelings of low self-esteem and low self-confidence to rise to the surface, often with overwhelming intensity. In this case, it is significantly relevant to Ms Nasrallah. Her upbringing was displaced and traumatic. Her schooling was disrupted as a result of abuse sustained and significant feelings of worthlessness and poor self-esteem that followed. She turned to substance use as a way to escape and forget. She self-medicated on a regular basis to mollify her significant emotional disturbance. It appears that at the time of the offences Ms Nasrallah was addicted to prescription medication. The addiction led to her subsequent self-destructive behaviour, the subject to the current charges."

The sentence imposed on the co-offender

Mr Mehdi, the applicant's co-offender, was sentenced by Judge O'Brien to a term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months. Judge Haesler considered the principle of parity and determined correctly that the applicant should receive a less severe sentence. His Honour found that although the offenders were to be sentenced for their participation in the same joint criminal enterprise, the co-offender "played a more active role in the robbery", wielded the knife and threatened and assaulted the victim. Mr Mehdi was also the one who took the money from the cash register and the cash was still in his possession when the pair were arrested. His Honour noted that the co-offender had a criminal history and was six years older than the applicant. Further, the applicant presented a compelling subjective case which is the foundation of the present application.

The proceedings and submissions on sentence

Most of the material tendered on sentence was provided to Judge Haesler in advance. At the outset of the sentencing hearing, his Honour indicated that he had read the evidentiary material and written submissions. This included the report of Mr Albassit and the submissions of counsel then appearing for the applicant. The written submissions relied on Bugmy and observed, "[t]he 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". [72] Implicit in the written submissions was the assertion that the applicant's moral culpability was reduced as a result of her childhood trauma and its psychological impact. The submissions went on to say, "the effects of profound deprivation do not diminish over time" (emphasis added). [73]
The sentencing Judge said at the commencement of the hearing: "I had trouble finding profound deprivation and I have trouble with the conclusion expressed by Mr Albassit that there is a direct and significant correlation between her offending behaviour and her chronic psychiatric, psychological condition, as opposed to the background and psychological conditions being conducive to the uptake of illicit drugs, which drugs do, as a matter of common understanding and expert opinion, influence and impair a person's judgment." [74] (Emphasis added.)
Counsel conceded that "it may not be open to your Honour to find a level of profound deprivation" (emphasis added) but went on to press the submission that the traumatic events of the applicant's childhood and the impact those events had on the applicant's life was such that her moral culpability was diminished. [75] It was submitted that the violence in the offence was a "complete aberration" from the applicant's character. [76] It was conceded that a sentence of imprisonment was the only possible outcome, but that the sentence should be less than three years and ordered to be served by way of an intensive corrections order ("ICO"). The Prosecutor's response was very fair and somewhat enigmatic. The following exchange took place: "[PROSECUTOR]: […] Last but not least, your Honour, I know there's been some discussion but my friend - again yes the threshold has been crossed. If your Honour was to impose an intensive corrections order, the Crown would merely submit that that would be at the lowest end of the range when it comes to matters of this kind. And your Honour has that discretion. HIS HONOUR: I read your submissions as being no, it couldn't be an ICO. It's just too serious. [PROSECUTOR]: Yes, it's too serious, your Honour. It's too serious." [77]
The sentencing Judge concluded that no sentence other than one of full-time imprisonment was appropriate but imposed the sentence he considered to be the least possible punishment in the circumstances.

Ground 1: The sentencing Judge erred in failing to find that exceptional circumstances existed such as to enable his Honour to properly impose a sentence other than that of full-time custody

This ground was argued on the basis that it was separate and independent of the second ground which related to an asserted error in Judge Haesler's approach to the applicant's traumatic experiences as a child. However, there is considerable overlap and interrelation between the grounds. If it is accepted that that the sentencing Judge erred in his application of the so-called "Bugmy principles" (ground 2), it may follow that any such error infected his Honour's finding that there were no "exceptional circumstances" justifying a departure from the guideline judgment in R v Henry, and his conclusion that the applicant had to be sent into full-time custody. It is impossible to know whether the sentencing Judge would have found "exceptional circumstances" and imposed a less severe sentence had his Honour taken a different approach to the evidence relating to the applicant's childhood trauma.
The practical reality of the applicant's situation now is that success under ground 1 will not change the fact that she has "had the humiliation of hearing prison gates closing behind her". [78] At the time of the hearing of the appeal, Ms Nasrallah had spent seven months and seven days in gaol. Counsel appearing on the appeal accepted that it was not necessary in those circumstances to determine whether an ICO was the more appropriate sentence and that, if the appeal was allowed, the appropriate course was to impose a sentence of full-time imprisonment that would result in the applicant's imminent release to a period of parole. The sentencing legislation does not allow an ICO to commence other than on the day it is imposed. [79] A sentencing judge must, of course, take into account any period of pre-sentence custody. [80] There is some controversy as to whether this Court, in re-sentencing, can impose an ICO dating back to the date of commencement of a sentence imposed by the District Court. [81] However, it is unnecessary to engage with that controversy in this case, because it is not suggested by the applicant that the Court should now impose a sentence to be served by way of an ICO.
I am not satisfied that Judge Haesler fell into an independent error in deciding that an ICO was not an appropriate sentencing option. It is clear that his Honour was guided by the submissions of counsel and the concession that the guideline judgment on armed robbery applied to the applicant's case. The guideline judgment established, or re-iterated, the general proposition that sentences other than full-time imprisonment should be "few and far between" and that such sentences would only be appropriate "in the most exceptional circumstances". [82] There was no challenge to this aspect of the guideline judgment in the advent of cases referred to below at [79]. In R v Henry, Spigelman CJ identified a "category of case which is sufficiently common for purposes of determining a guideline". [83] The features of that typical case were: "(i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case." [84]
Spigelman CJ held at [165] that "sentences for an offence of the character identified above should generally fall between four and five years for the full term". Spigelman CJ subsequently clarified that this guideline related to "a guilty plea of limited value". [85]
It was accepted both at first instance and on appeal that the decision in R v Henry was a binding authority and was applicable to the applicant's case. There was no suggestion that the guideline judgment imposed an "unlegislated judicially created constraint on the sentencing discretion": Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [105] applying the judgment of Simpson JA in Robertson v R [2017] NSWCCA 205 at [89].
Judge Haesler referred to the judgment in R v Henry saying: "The Court of Criminal Appeal indicate that in the ordinary case of an armed robbery - and this tragically is an ordinary case - sentenced at the low end of the range would be in the vicinity of four years following a late plea. Other decisions of the Court of Criminal Appeal indicated that only in exceptional circumstances should persons who commit offences such as this, even a first offender and a person with potential, receive other than a full-time custodial sentence." [86]
His Honour went on to note that the guideline was calculated to ensure consistency in the application of principle and that it was but one factor to be taken into account by way of "guidance". His Honour noted the guideline judgment was not "prescriptive", that such judgments were "guidelines not tramlines", and that "every offence and every offender requires individualised treatment". [87] His Honour took into account the applicant's prior good character, her significant achievements rehabilitating herself, but also noted that robbery was "a crime against real people" which could have a "terrible impact" on its victims and cause fear in the community more broadly. [88] The sentencing Judge said he took into account the applicant's background and history of trauma and accepted that the offence was an "aberrant act" on her part. [89] However, even taking into account "all of the mitigatory factors" he concluded that the sentence of full-time imprisonment upon which he settled was the "absolute minimum that law and justice demand". [90]
While I am of the view that the Prosecutor's initial concession at first instance was correct, and that it would have been "open" in the applicant's particular circumstances to have imposed an ICO, I cannot conclude that his Honour's decision to impose a full-time gaol sentence was not open to him in the relevant sense. Sentencing is an instinctive and intuitive process and there is no single, correct outcome. Intermediate courts of appeal pay real deference to the role of the judge at first instance and sentencing judges are afforded a deal of flexibility in determining the appropriate punishment. Judge Haesler applied the guideline judgment and reached the conclusion that he did. I can discern no legal error in his Honour's approach.
While the failure to give "full weight" to the applicant's history of trauma (if such a failure is established) may have impacted on the conclusion that the case was not "exceptional" for the purpose of the application of the guideline judgment, I propose to follow counsel's lead and consider that issue separately. Putting that issue aside and giving due acknowledgment to the powerful submissions made by counsel in both this Court and the District Court, I remain unpersuaded that ground 1 should be upheld.

Ground 2: The sentencing Judge erred in his application of the principles enunciated in Bugmy v the Queen (2013) 249 CLR 571.

(a) by failing to find that the evidence of the applicant's upbringing engaged the principles enunciated in Bugmy.

(b) by taking into account an irrelevant consideration, namely the background of other offenders unrelated to the proceedings; and

In the judgment on sentence - which, it must be remembered, was delivered ex tempore immediately after the conclusion of the submissions - Judge Haesler said: "She has opened up to Mr Albassit, psychologist, about some traumatic incidents in her past and he has formulated an opinion that the history as given to him meets the criteria for post-traumatic stress disorder and substance dependence disorder. He concludes, in his professional opinion, that there is a direct correlation between her offending and her ongoing chronic psychological conditions. With respect, his professional opinion really goes to why she took up the use and abuse of illicit drugs, her rebellion, as he calls it, the impact of challenges and trauma. Although he mentions things - terms such as neglect - again with respect, and acknowledging everyone is different, the offender's troubled lifestyle pales into insignificance to the sort of profound deprivation often seen in this Court and frankly seen in three other matters that I have disposed of today. It is sad and tragic, but it is all too common that factors such as this lead to the uptake in illicit drugs among young people. And as the Court in Henry made clear, I cannot take into account a mitigating factor that the crime was committed while subject to drugs. But the fact of addiction, how it came about and what is done about it, are relevant, particularly in explaining how a previously law-abiding person did what she did. But to understand their state of mind at the time and the lack of capacity to exercise sound judgment, it can explain the impulsivity of the offence and the limited planning involved, the failure, despite principles such as general deterrence and the Henry guideline having operated for over 20 years. This offender was not in a position to think about the consequences to herself, let alone the consequences to others and principles of general deterrence did not prevent this crime occurring. Her drug use and all of the considerable efforts that she has taken to put that part of her life behind her, the origin, the extent of her drug problems, do help me assess her prospects for the future." [91]
Later his Honour said: "In submissions, oral and written, Madam Crown accepts a number of factors advanced by the defence. She submits that, while an intensive correction order might, in the ordinary circumstances, would not ordinarily be applied, it could only be if this offence was regarded as the lowest in terms of objective seriousness and full weight was given to subjective factors. Her written submission made it clear that no other penalty other than full-time imprisonment was appropriate. She cautioned about self-serving statements not supported by evidence on oath, but much of what is said in those reports and in the letters to me is uncontroversial. A submission was made that the background as set out in Mr Albassit's report fell into the category commonly referred to as profound deprivation or matters attracting the principles in Bugmy v The Queen. I do not devalue the impact of the particular traumatic events detailed in that report and the destructive adolescence of this offender, her rebellion and drug use and rationale for drug use and associating with negative peers are set out in the report and I will not repeat them. Those matters gave rise to symptomology consistent with post-traumatic stress disorder, but it is not a history of profound deprivation. Her background can be contrasted with a case cited to me by Mr Barrack, IS v The Queen [[2017] NSWCCA 116 at [26] - [29]]. Nevertheless, a background is always relevant in matters such as this." [92]
These passages demonstrate the difficulties that arise when attempting to fit sentencing cases into categories by reference to past and similar cases. In particular, the emphasis on the qualifier "profound" in the assessment of the extent of the applicant's "deprivation" may have distracted from the question of the extent to which the applicant's traumatic teenage years had the capacity to, and did, reduce her moral culpability for the offences for which she stood to be sentenced. This focus appeared to arise from the submissions of counsel who had conceded at the sentence hearing, on direct questioning, "as your Honour pointed out, it may not be open to your Honour to find a level of profound deprivation". [93] However, as Brereton JA pointed out in Hoskins v R (a judgment handed down the day the present application was argued): "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: '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. 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.'" [94] (Citations and footnotes omitted.)
As Brereton JA made clear, there is "no magic in the word 'profound'" in a case where an offender relies on trauma, dysfunction and deprivation experienced in their childhood. In any event, I am unable to accept that the applicant's history of trauma and abandonment did not amount to "profound deprivation" in the relevant sense and for the purposes of the application of principles associated with an assessment of an offender's moral culpability. Her uncle attempted to rape her when she was 13 years old and she was kidnapped and (at least physically) assaulted a short time later. She "blocked out the memory of the event" and "shut down physically and emotionally". She was sent by her mother to Lebanon where she was isolated, felt "neglected and disengaged" and "spiralled into a deeper depressive state". She "had no one to turn to", developed a suicidal ideation and attempted to take her own life. It was in the aftermath of that "traumatic year" that she returned to Australia and started to use drugs to "numb her psychological and emotional pain" and to "forget and deal with her trauma".
The respondent submitted that the "applicant's childhood did not normalise drug abuse or acts of violence such as armed robbery, nor did it cause her to misapprehend that such behaviour was acceptable". [95] However, as N Adams J said in Dungay v R (in the passage cited by Brereton JA in Hoskins at [33] above) [96] it is not necessary to establish a causative link before the proper application of Bugmy requires a sentencing Judge to give full effect to the history of childhood deprivation. [97] Rather, the appropriate focus is the effect such a background may have on the offender, and its "ability to compromise the person's capacity to mature and learn from experience". [98]
The relevance of the childhood deprivation and early exposure to violence and drug and alcohol abuse discussed by the High Court in Bugmy has long been recognised by courts in New South Wales. In the context of an offender raised in "an Aboriginal community in which alcohol abuse and violence were endemic" [99] the principles were discussed in the important decision of Wood J (as his Honour then was) in R v Fernando (1992) 76 A Crim R 58. As the High Court emphasised in Bugmy, [100] these principles are not of specific application to indigenous offenders, a matter noted by Simpson J (as her Honour then was) in Kennedy v The Queen [2010] NSWCCA 260 at [53]: "Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime."
Simpson J (as her Honour then was) also said in R v Millwood [2012] NSWCCA 2 at [69]: "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been 'tragic and dysfunctional'. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders."
An analogy between childhood deprivation and cases involving an offender whose drug addiction arose at a young age or in "extreme" circumstances has also been recognised, including in the judgments in R v Henry itself.
In R v Henry, Spigelman CJ emphasised the well-established principle that drug addiction does not, of itself, provide a mitigating circumstance and does not reduce an offender's moral culpability. [101] However, Spigelman CJ recognised that there were cases in the margins where an offender may not have made a "free choice" in turning to drugs. [102] This included cases where an offender became addicted to drugs as a result of medical treatment (Talbot v The Queen (1992) 34 FCR 100; (1992) 59 A Crim R 383) or at a very young age (Douglas v The Queen (1995) 56 FCR 465; [1995] FCA 411). His Honour held that such extreme cases did little "to establish a general principle that addiction lessens moral culpability". [103] However, in identifying these kinds of cases, Spigelman CJ also acknowledged that there was a limit on the general proposition that drug addiction is not a mitigating factor.
Wood CJ at CL said (at [270] - [274]): "[270] It is more appropriate, in my view, to have regard to these considerations, upon an individual case basis, in which it is recognised that the offence of armed robbery remains a very serious crime, which, save in exceptional circumstances, calls for full time imprisonment. That is not to say that, in an individual case, the fact of drug dependency of the person standing for sentence may not remain a relevant fact reflecting on the objective circumstances of the offence, and/or the subjective circumstances of the offender, and particularly on the relativity of the minimum and additional terms. [271] This approach accords with the caution offered by Gleeson CJ in Engert at 68: "It is … erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." [272] It also avoids the problems associated with establishing categories according to the offender's need for money (e.g. to feed a drug addiction, to support a gambling habit, to pay off business or family debts, to establish a business, etc) which would lend themselves to abuse and to moral judgments in respect of which minds may legitimately differ. [273] In my view the relevant principles are as follows: (a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation; (b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as: (i) the impulsivity of the offence and the extent of any planning for it; (ii) the existence or non existence of any alternative reason that may have operated in aggravation of the offence, eg that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism; (iii) the state of mind or capacity of the offender to exercise judgment, eg if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act; (c) It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might: (i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword; (ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery; or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete; (iii) justify special consideration in the case of offenders judged to be at the "cross roads". [274] To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case." (Citations and footnotes omitted.)
Newman J (at [278]) and Hulme J (at [331]) agreed with both the Chief Justice and the Chief Judge at Common Law on the issue of the relevance of drug addiction to an offender's subjective case on sentence.
Simpson J said (at [338] - [342]): "[338] I cannot accept that the blameworthiness of one drug taker is (even excepting that small number of individuals who begin drug taking with medically prescribed drugs) always to be treated as being at the same level as the blameworthiness of the next. Nor can I accept that the exercise of free choice in the use of drugs is always of equal dimensions. It is not every decision to use drugs that can properly or fairly be characterised as a decision made in the exercise of free choice. The will of an individual can be overborne or undermined, not only by acts of another person, but also by the pressure of circumstances. I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs. The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control. They may or may not be combined with a vulnerable personality or even a weakness of character. Many drug offenders have not had the life experiences or the normal developmental path that permit a conclusion that the decision to take drugs was a decision made in the exercise of a free choice in the sense in which that phrase is ordinarily understood. [339] An analogy can legitimately and properly be drawn with the principles relating to the sentencing of aboriginal offenders, collected and stated by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58 at 62 - 63. As I understand the remarks on sentence in that case, his Honour observed that aboriginality alone does not excuse serious crime nor operate as a mitigating factor. However, since it is often associated with other circumstances of disadvantage or deprivation, aboriginality may explain or throw light on the particular offence or the circumstances of the offender. It is, in truth, not aboriginality, but the life experiences too commonly associated with aboriginality that are relevant to the sentencing decision. Just as it is properly said that, while drunkenness is not normally an excuse or mitigating factor, where alcohol abuse reflects the socioeconomic circumstances and the environment in which an offender has grown up, that fact can and should be taken into account as a mitigating factor (Fernando, principle E, p 62), so also can it properly be said that drug abuse may reflect the socioeconomic circumstances and the environment in which another offender has grown up, and that may equally then be taken into account as a mitigating factor. [340] Wood J went on to recognise the great social difficulties sometimes faced by aboriginal communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. So, too, it is with some drug offenders. The passage from which the above is drawn can readily be adapted to the situation of some drug offenders. Where great social difficulties, poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses upon drug offenders, causing or reinforcing their resort to drugs, then it is appropriate for this court to give the same recognition to those antecedent circumstances. [341] A sentencing judge always has a delicate balancing task to perform, taking into account the demands of the community for retribution, deterrence both general and specific, and the interests of the same community in the rehabilitation of an offender. The exercise may call for an examination of the circumstances that led the offender to drug use, addiction and crime. All the circumstances that precipitate the use of drugs are relevant to the evaluation of moral culpability that is essential to the sentencing process. [342] It would, therefore, be too simplistic to lay down a principle that addiction either is, or is not, a mitigating circumstance in the sentencing of offenders convicted of drug related crime. I much prefer the approach encapsulated in paragraphs 270 - 272 inclusive of the draft judgment of Wood CJ at CL, favouring the "individualised justice" to which Mahoney ACJ referred in R v Lattouf (unreported, NSWCCA, 12 December 1996)."
In the applicant's case, it was never suggested that her drug addiction, of itself, provided any excuse or right to mitigation. Rather, it was contended at all stages that her moral culpability was reduced because of the impact of her childhood trauma on the direction her young life took. The sentencing Judge accepted the factual basis of this submission and, largely, acted on the opinion of the expert witness. However, it is not clear that his Honour accepted that Ms Nasrallah's moral culpability was reduced in consequence of those matters. Had his Honour done so, he may have given greater weight to the various objectives of sentencing and been more open to the submission that the case might be appropriately dealt with by the imposition of an ICO.
I accept the applicant's submission that the sentencing Judge erred by failing to find that the so called "Bugmy principles" were engaged and in failing to give "full weight" to Ms Nasrallah's deprived and traumatic background. This error appears to have arisen from placing undue emphasis on the word "profound" and in treating the question of whether there was "profound deprivation" as a kind of threshold test. The High Court did not lay down such a standard in Bugmy, although William Bugmy's case was appropriately so described. As Judge Yehia SC said in R v Nabalarua; R v Quinlan [2017] NSWDC 328 at [146], in the face of a submission that Bugmy did not apply to a case in which there was a degree of planning in the offending, "the principle enunciated by the High Court in Bugmy is [not] to be shackled or diluted".
The applicant also complains that Judge Haesler took into account an irrelevant consideration by considering the "background of other offenders unrelated to the proceedings". I accept that there is some force to this submission. The fact that three other offenders dealt with on the same day had, in the sentencing Judge's opinion, a history that was worse than that of the applicant was not really to the point. Different people will react differently to the trauma they experience. That may be because of their individual fortitude or because of the support networks available to them at the time. The present applicant felt abandoned by her family at a time when she was vulnerable and in need of support. She was twice the victim of violence, including an attempted sexual assault perpetrated by an older, trusted male relative and a kidnapping, the details of which (including whether she was sexually assaulted) she had blocked out. She was sent overseas at the age of 15 and became suicidal.
The impact of violence and sexual offences on victims is well understood and documented. In R v MJB, Adamson J observed "that the damage done to children who are victims of sexual assault by adults was well known and could be assumed". [104] The pervasive effects of child sexual abuse were again acknowledged in R v Gavel: "[C]hild sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39]." [105]
In Stanton v R, Beech-Jones J (Cavanagh and Harrison JJ agreeing) noted: "The court is entitled to have regard to the well-known fact that the victims of child sexual assault very frequently suffer long-term, and serious, psychological consequences. Moreover, those consequences are not limited to the obviously, at face value, more serious offences." [106]
The Royal Commission into Institutional Responses to Child Sexual Abuse ("RCIRCSA") also contributed to the understanding of the impacts of child sexual abuse with the release of its final report and recommendations in 2017. [107] The Commission's conclusions, based on a body of academic research and the experiences of witnesses called in the course of the lengthy hearings and private sessions, analysed the adverse and multifaceted effects of child sexual abuse on "survivors". [108] The impacts on participants in the RCIRCSA were summarised as follows: "After mental health, relationship difficulties were the impacts most frequently raised by survivors in private sessions, including difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Education and economic impacts were also frequently raised. For many people, these diverse impacts are interconnected in complex ways, making it difficult to isolate the specific impacts of child sexual abuse. These interconnected impacts can be experienced at the same time or consecutively, as a cascade of effects over a lifetime. For instance, we heard from many survivors that they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse, which in turn affected their physical and mental health, sometimes leading to criminal behaviour and relationship difficulties." [109]
This Court has echoed RCIRCSA conclusions that "what was previously regarded as low level sexual abuse can have catastrophic effects on children" in several decisions: BT v R [2019] NSWCCA 147 at [11] and see, for example, O'Sullivan v R [2019] NSWCCA 261 at [14], R v Cattell (2019) 280 A Crim R 502; [2019] NSWCCA 297 at [111].
The sentencing Judge's remark that the applicant's subjective case of childhood trauma and neglect "pales into insignificance" by comparison with other cases in the list was infelicitous because of its capacity to suggest that the Court underestimated the gravity of the impact of the applicant's trauma. It is not difficult to imagine the response of this Court (or a sentencing court) to a submission on behalf of a perpetrator that the impact of an attempted rape on a 13 year old victim "pales into insignificance" by reference to other, more serious, cases.
Further, the comparison to other cases heard by the sentencing Judge on the day of the applicant's sentencing hearing is impossible for this Court to evaluate or for the applicant to comprehend unless she was present and paying attention to the other matters in his Honour's list. She could not know how her traumatic experiences "pale[d] into insignificance" by comparison.
However, it must be remembered that his Honour was dealing with a number of cases in a very busy list and delivered his sentencing judgment ex tempore. I would not consider his passing reference to the other cases in the list that day as indicative of legal error. Without more, I do not accept that Judge Haesler fell into error in what might be considered to be an unfortunate choice of language. However, the matter tends to confirm the conclusion that his Honour fell into error in his approach to the applicant's childhood trauma.
The sentencing Judge gave earnest consideration to the case and was troubled by the outcome upon which he settled. His Honour said as much at the conclusion of the judgment on sentence: "It gives me no pleasure to impose a custodial sentence and a full-time custodial sentence, but the crime was so serious that the purposes of sentencing could not be met by an intensive corrections order. Ms Nasrallah must go into gaol. She must go to gaol for a period - and the period of time I have sought to given proper effect to all of the mitigatory factors will be the absolute minimum that law and justice demand." [110]
As with the earlier remarks, his Honour was focused on the objective seriousness of the crime but did not appear properly to take into account the reduction of the applicant's moral culpability arising from her traumatic experiences as a child and their psychological impact on her development and choices. I am satisfied that this was a legal error of the kind asserted by ground 2(a) and 2(b) in the amended grounds of appeal. As I have said in dealing with ground 1, the error established under ground 2 makes it difficult to assess the contention that it was "not open" to his Honour to conclude, in the face of the guideline judgment on armed robbery, that the only appropriate sentence was one of full-time imprisonment. However, had the reduction in moral culpability been taken into account in the various ways referred to by Wood CJ at CL in R v Henry, his Honour may have reached a different conclusion.
Error having been established under ground 2 it is unnecessary to speculate on that question as it falls to this Court to exercise the sentencing discretion afresh in accordance with the High Court's decision in Kentwell v The Queen, [111] and to determine whether a lesser sentence is warranted and ought to have been imposed. [112] Before addressing that question, it is convenient to dispose of the remaining two grounds of appeal briefly.

Response to majority judgments

Since circulating a draft of this judgment, I have had the opportunity of reading the draft judgments of Bell P and Price J. I have considered carefully the conclusions and reasons of my senior colleagues but remain of the opinion that Ms Nasrallah's appeal should be allowed and that she should be re-sentenced. I should indicate, in summary form, the reasons for my respectful disagreement.
The observations of Brereton JA in Hoskins are correct. As Brereton JA said there is no magic in the word profound and the use of the expression "profound deprivation" in Bugmy v The Queen was not employed as a threshold test to the application of relevant principles concerning an assessment of an offender's moral culpability. Those observations should be followed unless they are clearly wrong. [113] This approach accords with that taken by Simpson AJA in Hanna v R [2020] NSWCCA 125 at [86]-[88]; (2020) 102 NSWLR 244. [114] Brereton JA's comments have already been followed by a single Judge of the Supreme Court of the Australian Capital Territory: R v BS-X [2021] ACTSC 160.
In my respectful opinion, the majority judgments underestimate the psychological impact of the applicant's traumatic experiences - (the attempted rape and the kidnapping at aged 13-14) and sense of abandonment and isolation (being sent by her family to Lebanon at 14-15) - and their relevance to an assessment of her moral culpability. The applicant met the diagnostic criteria for PTSD and the expert provided an unchallenged opinion of a "direct and significant correlation between Ms Nasrallah's offending behaviour and her ongoing chronic psychiatric and/psychological conditions". Judge Haesler's observations about this evidence, which I have set out and to which Price J refers, [115] did not impact on the relevance of the evidence to the issue of the applicant's moral culpability. [116] Further, I am respectfully unable to agree with the implication that a "history" of deprivation or trauma may require a "sustained" period of abuse or neglect. [117] The relevant consideration is the impact of the childhood trauma on the applicant's development and the course her life took as a result. It is this that informs a proper assessment of the offender's moral culpability. This is not to extend or "to consider the precise boundaries of the Bugmy principles." [118] Rather it is to recognise the analogous situation of an offender whose life was shaped by childhood trauma, an analogy recognised as long ago as the decision in R v Henry. [119]
As the recent Victorian case of DPP v Hermann demonstrates, the individual circumstances in which an offender's personal history and mental health issues might inform their moral culpability are diverse and sometimes overlapping. [120] To refer to two passages in the judgment of five-member bench: "[14] In assessing an offender's 'moral culpability,' the sentencing court is making a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct. Determining how harshly a particular offender is to be judged - and punished - often requires a close examination of the personal circumstances and background of the offender and an exploration of factors which may explain the offending conduct. To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender's control, the harshness of the moral judgment is likely to be moderated. […] [46] It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years."
While the principles referred to by the President concerning "the protection of the community from the offender" are well established, [121] they are not matters of any great moment in the present case because the sentencing Judge acknowledged the applicant's genuine remorse, her "progress towards rehabilitation" and held that "there is no need to further deter this offender". This was not a case where the matters affecting the proper assessment of the offender's moral culpability also gave rise to a concern that she represented an ongoing danger to the community.
In relation to the judgment of Price J, I record my respectful disagreement with the proposition that the categorisation of childhood deprivation as "profound" or "not profound" constitutes a "finding of fact" by which this Court is bound. [122] Insofar as the comments of N Adams J in Newman v R [2021] NSWCCA 101 at [62] are to the contrary, I have concluded that those statements are plainly wrong and ought not to be followed. Further, as the judgment of Hoeben CJ at CL shows, the expert evidence in Newman v R only established "possible symptoms" of ADHD. [123] The relevant findings of fact on sentence in this case concern the occurrence of the traumatic events and the expert evidence of their impact on the applicant. The exercise of determining whether the facts give rise to "profound deprivation", apart from being an unnecessary distraction, is an exercise in evaluation, quantification or categorisation rather than a process of fact finding. To dismiss an appeal on the basis that a finding of "profound deprivation" is a finding of fact gives rise, in a particularly acute way, to the situation against which Basten JA warned in Hordern v R [2019] NSWCCA 138 at [20]: "In circumstances where the liberty of the individual is at stake, there is no reason to deliberately perpetuate error, once identified. The administration of criminal justice does not require this Court to conclude that an offender must serve a longer sentence than would have been imposed, absent a factual error by the sentencing judge."

Ground 3: The sentencing Judge erred in failing to consider a submission made by the applicant as to the undesirability of removing the applicant from her current therapeutic environment

I am unable to accept the proposition underlying the third ground of appeal. As the respondent submitted the sentencing Judge specifically referred to the fact that the applicant was "receiving treatment for depression and anxiety" [124] and that "every effort has been made [by the applicant] to show that this offence was an aberrant act and that she can lead a law-abiding life in the community". [125]
His Honour also noted the submission to which this ground relates and seemingly accepted it. His Honour said in his judgment: "To send this offender to gaol would carry the risk that negative associations with person in gaol will set back her prospects of leading a normal community life. It is notorious that those who go to gaol come out more likely to return to gaol than those who avoid gaol altogether." [126]
In a part of the remarks where his Honour referred to the various objectives of sentencing his Honour said "[h]ere, her progress toward rehabilitation must and should be recognised". [127]
In view of these various remarks it is clear that his Honour considered the submission concerning the undesirability of removing the applicant from the therapeutic environment which she had established and thrived in during the period when she was in the community, on bail, awaiting sentence.
Ground 3 must be rejected.

Ground 4: The sentencing judge erred in failing to take into account 4 days of pre-sentence custody served by the applicant.

This ground was added on the hearing of the appeal and arose from the following parts of the respondent's written submissions: "It appears to the respondent that the commencement date of the applicant's sentence did not take into account the 4 days the applicant spent in custody before entering into bail. While it seems that the applicant was granted conditional bail by police when she was charged with the index offences (see Exhibit A, committal documents), an updated custodial history obtained since sentence shows that she remained in custody for a total of 4 days between her arrest on 28 February 2020 until entering into bail on 2 March 2020. The respondent will file and apply to read at the hearing affidavit evidence annexing the updated custodial history. The sentencing judge was made aware at sentence by the applicant's legal representative of the fact that the applicant was in cells before being released on bail. She refers to this in her letter of remorse and it was discussed during the proceedings. However the Crown on sentence mistakenly told the court that the applicant has not spent time in custody before being sentenced and this was not corrected by her legal representative at sentence. There is at present no ground of appeal raising this issue. If it were to be successfully raised, taking into account that 4-day period of pre-sentence custody, the applicant's sentences for sequences 1 and 2 would normally be backdated; in this case to commence on 12 December 2020. Absent any other error vitiating the sentencing discretion, and assuming a ground of appeal in respect of this matter was successful, this Court may correct such a mistake by adjusting the commencement date of the applicant's sentence without the need to engage in a full re -sentencing process afresh: Refaieh v R (2018) A Crim R 245 at [83] applying Kentwell v The Queen (2014) 252 CLR 601 at [42] and Lehn v R (2016) 93 NSWLR 205 at [72]. See also CA v R [2019] NSWCCA 93 at [71]-[72] and Jibran v R [2020] NSWCCA 86 at [129]." [128]
As the parties agreed, this amended ground must be upheld and any sentence imposed on re-sentencing should be ordered to commence on 12 December 2020.

Re-sentencing: is a different, less severe, sentence warranted?

Objectively, the offence was very serious as the facts described earlier in the judgment demonstrate. This is reflected by the available maximum penalty (20 years) and the enduring application of the guideline judgment in R v Henry in which it was held that a penalty other than one of full-time imprisonment could only be appropriate in a truly exceptional case. The applicant's case met each of the criteria, other than the last, in the often-encountered category of case described by Spigelman CJ in R v Henry at [162]. A range of 4 to 5 years (for the total sentence) was identified at [165] however as the Chief Justice explained (at [169]), "aggravating and mitigating factors will justify a sentence below or above the range". The applicant's plea was early and valuable. His Honour identified such things as youth and rehabilitation efforts as relevant matters. None of the aggravating features discussed at [170] were particularly applicable to the applicant's case.
The applicant's subjective case was powerful and compelling, even if it did not fit within the descriptor of "exceptional". In my view it was exceptional but that is a matter upon which minds might reasonably differ. The applicant was a first offender who was unlikely to offend again in view of her current family support, which was expressed in the letter from her mother. I have already described her traumatic experience of twice being a victim when she was aged 13 and 14 years old and the impact of this when she was, or felt, abandoned and neglected and sent off to Lebanon. Her suicidal ideation and attempt at self-harm were the direct result of these events and her resort to drugs a few years later was not the result of a completely "free choice". [129] She has made substantial strides towards rehabilitation and like the appellant in the case of R v Sargeant [130] it can properly be said: "This young [woman] does not want prison training. It is not going to do [her] any good. It is [her] memory of the clanging of the prison gates which is likely to keep her from crime in the future." [131]
I accept that the principles discussed by the High Court in Bugmy, and the approach to drug addiction articulated by Wood CJ at CL and Simpson J in R v Henry (extracted at [93] - [95] above) are engaged. The applicant's moral culpability for her crimes is significantly reduced. This in turn impacts upon the weight to be given to the various purposes of punishment.
The sentencing Judge indicated that "when criminals are caught committing such offences, the community will lose trust in the courts if they do not punish crimes and punish them severely". [132] So much can be accepted but, as the Acting Chief Justice pointed out in R v Lattouf: "[T]here are other interests to which the sentencing process must have regard; there are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside. As I have elsewhere said, if justice is not individual, it is nothing." [133]
Mahoney ACJ also said: "But, in addition, a sentencing process must be capable of discriminating between cases. There is, as I have said, a public interest in punishment. But if the desire to punish results in a person who would otherwise not become a confirmed criminal becoming such, that sentencing process is inconsistent with the public interest. It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of a comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person." [134]
I refer to these observations in the context of exercising the sentencing discretion afresh. In no way are these comments directed to the approach taken by the sentencing Judge who was openly conscious of the requirement for individualised justice and the potential negative impacts on the applicant, and in turn the community, in sending this young offender to gaol.
The applicant conceded that the threshold created in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is crossed; no sentence other than one of imprisonment is appropriate in view of the objective gravity of the crime. However, like Judge Haesler, I have reached the conclusion that the sentence should be the "absolute minimum that law and justice demand". [135] I have reached a different conclusion as to what that "absolute minimum" is and have concluded that a less severe sentence is warranted and ought to have been imposed.
I have considered the sentence imposed on the co-offender in determining the appropriate sentence to be imposed on the applicant. This Court was not provided with the sentencing remarks of Judge O'Brien, so it is impossible to compare the personal circumstances of the two offenders. However, having reviewed the CCTV footage, it is evident that the co-offender had a more active and violent role in the robbery, threatening the service station attendant using a knife. The co-offender was 26 years old at the time of the robbery, while the applicant was 20. His criminal record included several driving offences, offences of violence against police officers and an offence of destroy or damage property. The applicant's relative youth, combined with her lack of any serious criminal convictions, are factors that increase the weight to be given to rehabilitation. Equally, punishment and deterrence have a more limited role to play in the applicant's case.
I would confirm the fixed term of three months imposed for the offence of intentionally damaging property. That is academic because, for the reasons given by Judge Haesler, the sentence should be wholly concurrent with the sentence for the armed robbery.
As to the armed robbery, I would commence with a sentence of two years imprisonment and reduce that sentence by 25% to reflect the utilitarian value of the applicant's plea of guilty. That results in a sentence of 18 months. As I indicated earlier, the question of whether an ICO is an appropriate sentencing option is now otiose because the applicant has been in gaol for a period exceeding seven months. That period, along with an earlier period of pre-sentence custody the subject of ground 4, should be taken into account by backdating the sentence. As I have said, the parties agree the sentence should commence on 12 December 2020. Like the sentencing Judge, I would find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. I would make the non-parole period 50% of the total sentence. That results in a total of sentence of 18 months with a non-parole period of nine months
For those reasons, I would make the following orders: 1. Grant the application for leave to appeal against sentence. 2. Allow the appeal. 3. Quash the sentence imposed by the District Court and in lieu thereof sentence the applicant to a non-parole period of nine months commencing on 12 December 2020 and expiring on 11 September 2021 with a balance of term of nine months commencing on 12 September 2021 and expiring on 11 June 2022. 4. Confirm the concurrent fixed term of three months for the intentionally damage property charge dealt with under s 166 of the Criminal Procedure Act 1986 (NSW). That term is ordered to have commenced on 12 December 2020 and to have expired on 11 March 2021. 5. The applicant is to be released to parole at the expiration of the non-parole period.

Endnotes

Below at [73].
(2013) 249 CLR 571; [2013] HCA 37.
Bugmy at [28], [42], [44] and [46]; see also Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [133].
[2021] NSWCCA 169 at [57].
Below at [86].
Because the matter was not the subject of any submissions and, as Hamill J notes in his reasons, Hoskins was handed down on the same day as the hearing of this case. The parties, therefore, did not have an opportunity to address what Brereton JA had said about Bugmy in Hoskins.
Bugmy at [37].
Bugmy at [41].
Bugmy at [41].
Bugmy at [44]. See also DPP (Vic) v Hodgson [2019] VSCA 49 at [76] (Hodgson); Perkins v The Queen [2018] NSWCCA 62 at [80]-[81].
At [37], [41].
At [44], [46].
At [40]; see also at [44].
See R v Fernando (1992) 76 A Crim R 58 at 62-63, as quoted by the plurality in Bugmy at [38].
Examples of cases where Bugmy has been applied to circumstances of sexual abuse in conjunction with an environment of alcohol abuse include DPP (Vic) v Macarthur [2019] VSCA 71 at [33] (Macarthur); Hodgson; and R v Irwin [2019] NSWCCA 133 (Irwin).
See M Bagaric and G Wolf, "An Argument for Recognising Childhood Sexual Abuse and Physical Abuse as a Mitigating Factor in Sentencing" (2020) 49 Australian Bar Review 227 at 235 (Bagaric and Wolf). This article provides a useful survey of decisions applying Bugmy, at 235-236.
[2019] NSWCCA 133 at [2] (emphasis added).
Bagaric and Wolf correctly observe at 234 that the High Court in Bugmy "left considerable room for other superior courts to interpret and speculate about the scope of this mitigatory principle and its relative importance in the sentencing calculus."
Ibid. See also R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; and Stanton v R [2021] NSWCCA 123 at [67], as quoted by Hamill J at [100]-[102] below.
R v AWF (2000) 2 VR 1; [2000] VSCA 172 (AWF).
At [34].
The cases referred to were R v AB (unreported, Court of Criminal Appeal (NSW), 7 July 1997) (reversed on other grounds in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46); and R v Anthony George Reid (unreported, Court of Criminal Appeal (NSW), 24 July 1998).
AWF at [6]. See also R v CDH [2002] NSWCCA 103 at [16]; and R v Dunne [2003] VSCA 150.
[2014] NSWCCA 130 at [38]-[39]. See also R v Van Gelder [2003] SASC 98; and DBW (a child) v Western Australia [2011] WASCA 206.
See at [67]-[69] below.
See at fn 15 above.
Macarthur at [33].
Irwin at [34]-[37].
[2017] NSWCCA 116 at [26]-[35].
Below at [97].
Remarks on sentence at 8 (ROS).
ROS at 8.
Cf, Ingrey v R [2016] NSWCCA 31 at [32].
ROS at 6.
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.
ROS at 6.
Below at [103].
ROS at 8.
[2020] NSWCCA 209 at [153].
Below at [82].
(2014) 252 CLR 601; [2014] HCA 37.
ROS p 8.
[2021] NSWCCA 101.
(1988) 34 A Crim R 397.
[2015] NSWCCA 232.
[2019] NSWCCA 138.
(1936) 55 CLR 499; [1936] HCA 40.
[2019] NSWCCA 138 at [20].
[2021] NSWCCA 169.
[2019] NSWCCA 221.
(2013) 249 CLR 571; [2013] HCA 37.
16 December 2020, Tcpt, p 6(4-47).
Albassit report p 5.
Albassit report p 5.
See [84] of Hamill J's judgment.
ROS p 6.
ROS p 8.
See [103] of Hamill J's judgment.
R v Henry and Others (1999) 46 NSWLR 346; [1999] NSWCCA 111.
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996).
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; Remarks on sentence, 16/12/20 (ROS), p 3.
(2013) 249 CLR 571; [2013] HCA 37; ROS, p 6.
Criminal Appeal Act 1912 (NSW), s 6(3).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
The sentencing Judge referred to the arrest occurring "shortly after" and there was some discussion of the issue at the sentencing hearing. It is not a matter of any relevance to the appeal.
ROS, p 1.
ROS, p 2.
ROS, p 2.
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 17.
ROS, p 3.
Bugmy v The Queen (2013) 249 CLR 571 at [40]; [2013] HCA 37.
Cf Bugmy v The Queen (2013) 249 CLR 571 at [44]; [2013] HCA 37.
Tcpt, 16/12/20, p 6.
Ibid.
Ibid.
Tcpt, 16/12/20, p 13.
R v Sargeant [1974] 60 Cr App R 74 at 77.
Section 71(1) of the Crimes (Sentencing Procedure) Act provides that "[a]n intensive correction order commences on the date on which it is made."
Crimes (Sentencing Procedure) Act 1999, s 47(3) and see, for example, R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 at [24]-[25] and R v Youkhana [2005] NSWCCA 231 at [10].
See R v Edelbi [2021] NSWCCA 122 and the cases discussed at [78]-[81].
R v Henry and Others (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [113] and [118].
R v Henry and Others (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [162].
Ibid.
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [161].
ROS, p 3.
ROS, p 4.
ROS, pp 2 - 3.
ROS, p 8.
ROS, p 10.
ROS, p 6.
ROS, p 8.
Tcpt, 16/12/20, p 6.
Hoskins v R [2021] NSWCCA 169 at [57].
Respondent's Submissions at [48].
Dungay v R [2020] NSWCCA 209 at [153].
See also Newman v R [2021] NSWCCA 101 at [59] (per N Adams J); Gardener v R [2015] NSWCCA 170 at [55]; Perkins v R [2018] NSWCCA 62 at [77]; Judge v R [2018] NSWCCA 203 at [30].
Bugmy v The Queen (2013) 249 CLR 571 at [43]; [2013] HCA 37.
Bugmy v The Queen (2013) 249 CLR 571 at [18]; [2013] HCA 37.
Bugmy v The Queen (2013) 249 CLR 571 at [37]-[39]; [2013] HCA 37; see also Neal v The Queen (1982) 149 CLR 305 at 326; [1982] HCA 55 (per Brennan J).
R v Henry and Others (1999) 46 NSWLR 346 at [190]-[206]; [1999] NSWCCA 111.
R v Henry and Others (1999) 46 NSWLR 346 at [184]-[185]; [1999] NSWCCA 111.
R v Henry and Others (1999) 46 NSWLR 346 at [185]; [1999] NSWCCA 111.
[2014] NSWCCA 195 at [49] (per Adamson J, Hoeben CJ at CL and Fullerton J agreeing).
R v Gavel [2014] NSWCCA 56 at [110].
[2021] NSWCCA 123 at [67].
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3.
See also: Australian Institute of Family Studies, "The Long-term Effects of Child Sexual Abuse" (2013) 11, CFCA Paper, 23; Royal Commission into Institutional Responses to Child Sexual Abuse, Australian Centre for Child Protection, Impacts of Institutional Child Sexual Abuse on Victims/Survivors: A Rapid Review of Research Findings (December 2017) 11; Margaret C Cutajar et al, 'Psychopathology in a Large Cohort of Sexually Abused Children Followed Up to 43 Years' (2010) 34 Child Abuse & Neglect 813; Kenneth S Kendler et al, 'Childhood Sexual Abuse and Adult Psychiatric and Substance Use Disorders in Women: An Epidemiological and Cotwin Control Analysis' (2000) 57 Archives of General Psychiatry 953; Elliot C Nelson et al, 'Association between Self-Reported Childhood Sexual Abuse and Adverse Psychosocial Outcomes: Results from a Twin Study' (2002) 59 Archives of General Psychiatry 139; Stephen H Dinwiddie et al, 'Early Sexual Abuse and Lifetime Psychopathology: A Co-Twin-Control Study' (2000) 30 Psychological Medicine 41.
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3, 11.
ROS, p 10.
(2014) 252 CLR 601; [2014] HCA 37.
Criminal Appeal Act 1912 (NSW) s 6(3).
Cf Bell P at [7]-[8].
Her Honour followed the decision of the majority in the case of Park v R [2020] NSWCCA 90; (2020) 282 A Crim R 551 in spite of agreeing with the dissenting judgment of Fullerton J in that case. Simpson AJA had prepared her reasons before the publication of the decision in Park v R by a differently constituted bench. Park v R was subsequently the subject of a grant of special leave: Park v The Queen [2021] HCATrans 75.
Price J at [45]. Judge Haesler's remarks are set out above at [84].
The observations of Allsop P relating to unchallenged psychiatric evidence in Devaney v R [2012] NSWCCA 285 at [88] are pertinent.
Bell P at [11], [14] and [21].
Bell P at [21]; Price J at [53].
R v Henry at [337]-[344] (Simpson J) and cf [270], 273(ii)-iii) (Wood CJ at CL).
DPP v Hermann [2021] VSCA 160 at [11]-[14], [35]-[46] (regarding childhood deprivation and dysfunction) and [49]-[51] (regarding mental impairment).
Bell P at [9].
Price J at [31].
Newman v R [2021] NSWCCA 101 at [31]-[32] and [48]-49].
ROS, p 5.
ROS, p 8.
ROS, p 9.
ROS, p 9.
Respondent's written submissions at [61] - [64].
R v Henry and others (1999) 46 NSWLR 346 at [196]; [1999] NSWCCA 111.
(1974) 60 Cr App R 74.
R v Sargeant (1974) 60 Cr App R 74 at 78.
ROS, p 3.
R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996).
R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996).
ROS, p 10.

Amendments 13 October 2021 - Issue with footnote numbering rectified. 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: 13 October 2021

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Irwin [2019] NSWCCA 133 R v Lattouf (unreported, Court of Criminal Appeal (NSW), 12 December 1996) R v Millwood [2012] NSWCCA 2 R v MJB [2014] NSWCCA 195 R v O'Donoghue (1988) 34 A Crim R 397 R v Sargeant [1974] 60 Cr App R 74 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Van Gelder [2003] SASC 98 Stanton v R [2021] NSWCCA 123 Talbot v The Queen (1992) 34 FCR 100; (1992) 59 A Crim R 383 Texts Cited: Australian Institute of Family Studies, 'The Long-term Effects of Child Sexual Abuse' (2013) 11 CFCA Paper 23 E Nelson et al, 'Association between Self-Reported Childhood Sexual Abuse and Adverse Psychosocial Outcomes: Results from a Twin Study' (2002) 59 Archives of General Psychiatry 139 K Kendler et al, 'Childhood Sexual Abuse and Adult Psychiatric and Substance Use Disorders in Women: An Epidemiological and Cotwin Control Analysis' (2000) 57 Archives of General Psychiatry 953 M Cutajar et al, 'Psychopathology in a Large Cohort of Sexually Abused Children Followed Up to 43 Years' (2010) 34 Child Abuse & Neglect 813 Royal Commission into Institutional Responses to Child Sexual Abuse, Australian Centre for Child Protection, Impacts of Institutional Child Sexual Abuse on Victims/Survivors: A Rapid Review of Research Findings (December 2017) 11 Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3 S Dinwiddie et al, 'Early Sexual Abuse and Lifetime Psychopathology: A Co-Twin-Control Study' (2000) 30 Psychological Medicine 41 M Bagaric and G Wolf, "An Argument for Recognising Childhood Sexual Abuse and Physical Abuse as a Mitigating Factor in Sentencing" (2020) 49 Australian Bar Review 227 Category: Principal judgment Parties: Fatma Nasrallah (Applicant) Regina (Respondent) Representation: Counsel: A Moutasallem (Applicant) E Wilkins SC (Respondent)

As to issue 2, Bell P and Price J: (ii) The sentencing Judge took into account the applicant's personal circumstances and did not fall into legal error in his application of the High Court's decision in Bugmy v The Queen and his approach was open on the evidence: [6], [19], [23] (Bell P). Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, considered. (iii) There may be a conceptual difference between the type of upbringing addressed in Bugmy, that is "an environment of childhood deprivation in which abuse of alcohol and alcohol-fuelled violence are endemic" and an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or mental abuse: [11] (Bell P). There may also be a distinction between a history of sustained neglect and the impact of a single traumatic event: [11], [14], [21] (Bell P). The evidence of the applicant's disadvantage did not "disclose an environment of systemic or endemic abuse, alcoholism or sexual abuse by the applicant's parents or any particular social disadvantage or deprivation", distinguishing it from other cases in which Bugmy has been applied: [11], [14] (Bell P). Even if the sentencing Judge, in finding the applicant's history did not constitute "profound deprivation", was thereby holding that Bugmy principles were not engaged, her personal circumstances were taken into account and the sentencing discretion did not miscarry: [20] (Bell P). R v Irwin [2019] NSWCCA 133 at [2], Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, applied. DPP (Vic) v Hodgson [2019] VSCA 49 at [76], Perkins v The Queen [2018] NSWCCA 62 at [80]-[81], considered. (iv) It was neither necessary nor desirable to consider the precise boundaries of the Bugmy principles in the present appeal: [21] (Bell P); [53] (Price J). (v) The sentencing judge's decision that the applicant's background was not a history of profound deprivation was a finding of fact. The Court's power to review factual findings either on a constrained approach or House v The King approach discussed: [31]-[38] (Price J). There was no argument on appeal as to the correct approach to apply. The sentencing judge did not act upon wrong principle or fail to take into account a material consideration in finding that the Bugmy principles did not apply: [41]-[42] (Price J). Whilst the sentencing Judge's remarks that the applicant's background "pales into insignificance" were "infelicitous", these remarks did not demonstrate that the sentencing Judge acted upon "extraneous or irrelevant matters": [49] (Price J). The material before the sentencing Judge did not mandate a finding that the Bugmy principles were engaged. It was not a binary question. On either the constrained approach or the House approach, the sentencing Judge did not err: [50]-[52] (Price J). Newman v R [2021] NSWCCA 101, applied. Hordern v R [2019] NSWCCA 138 and Gibson v Regina [2019] NSWCCA 221 at [4]-[5], considered.

As to issue 4: (xi) This ground has been made out, and the sentence should be backdated to take into account the period of pre-sentence custody: [28] (Bell P); [30] (Price J); [114]-[115] (Hamill J). Success on Ground 4 alone does not require the sentencing discretion to be exercised afresh: [28] (Bell P); [54] (Price J); Hamill J not deciding. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, distinguished.

(2020) 102 NSWLR 244

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