Newman v R

1. The applicant seeks leave to appeal from his sentence on a single ground:

The sentencing judge erred in his consideration of the applicant's disadvantaged background

The proceedings on sentence

1. The Crown tendered the following items in the sentence proceedings: 1. the indictment; 2. a s 166 certificate (setting out the Form 1 offences); 3. the Form 1; 4. agreed facts on sentence (the agreed facts); 5. criminal and custodial histories; and 6. a Sentencing Assessment Report (SAR) dated 6 April 2020.
2. The applicant gave oral evidence in the proceedings. The applicant also tendered a number of documents including: 1. a psychological report prepared by Ms E Hubner, Forensic Psychologist (the psychologist), dated 25 March 2020 (the psychological report); 2. a letter to the court, authored by the applicant, undated; 3. a letter authored by the applicant's grandmother, dated 12 November 2019; 4. two letters from the applicant, to his grandparents and seemingly to his partner; and 5. a letter from Dr Currie to Dr Dark, dated 2 November 2018.

The sentencing judge's findings

1. The sentencing judge relied upon the Agreed Facts tendered in the proceedings.
2. With respect to count 1, the sentencing judge found that the applicant, on 6 September 2018, had a conversation with three others (Foster, Hartley and Hubbard) in which they agreed to break into the local high school that evening. While the others were initially reluctant, they eventually agreed with the applicant to engage in the break and enter. Foster obtained bolt cutters and a carjack and the group walked to the high school. Foster used the carjack to break through the fence and the group climbed through to the maintenance shed. The group forced entry into the shed and placed a number of items into a wheelbarrow, including a drill, a sander, some petrol, spanners and screwdrivers. The applicant also took a fuel drum and a crow-bar. The group wheeled the items to the fence, took them out of the wheelbarrow and carried them to Foster's residence, leaving the wheelbarrow behind. The applicant was apprehended by police later that evening when trying to enter the golf course next to the high school.
3. The sentencing judge found that the offence was "relatively unsophisticated", that the offender was the "prime mover" in the offence and that the value of the property was "of some worth". The sentencing judge found that the applicant stole property in the context of not having any income. His Honour found that the offending fell below the mid-range of objective seriousness but not at the lowest end of that range.
4. With respect to count 2, the sentencing judge found that the applicant, upon his release from custody, went to Foster's residence and encouraged him to set a fire at the high school to remove their fingerprints. Foster refused. The applicant then took some petrol (including the stolen petrol) and walked to the high school, gaining access through the same hole in the fence as before. The applicant started a fire in the maintenance shed by using the petrol. By the time firefighters attended, several other buildings in the high school were also damaged by fire, as well as equipment and tools. The estimated financial cost of the fire was approximately $1 million.
5. The sentencing judge found that lighting the fire was not a spontaneous act. His Honour found that the damage was substantial in accordance with s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). The factors taken into account by his Honour in assessing the offence was that it was the applicant's idea, it was committed to cover up a crime that was serious, it was not spontaneous and the damage was substantial. The sentencing judge also found that the conduct was made serious by virtue of it involving a school which fell "into the category of a limited public resource".
6. With respect to count 3, the applicant contacted "Crime Stoppers" and provided false information regarding the fire, to the effect that he had observed three other (fictitious) persons at the site of the fire. While the sentencing judge found that offences of this nature required deterrence, this was a "simple example" of such an offence. His Honour assessed this offence at below mid-range in seriousness.
7. The next two offences in time were the Form 1 offences, attached to the damage property by the fire offence. The first Form 1 offence involved further contact with "Crime Stoppers" to provide some detail of the version given in count 3. The sentencing judge assessed this as being an "elaboration of the dishonest narrative" given in count 3. The second Form 1 offence involved the applicant speaking to Foster and asking him not to tell the police that he was involved (Foster having spoken to police twice). The sentencing judge found that both Form 1 offences would result in an increase to the sentence applicable for count 2.
8. With respect to count 4, the applicant spoke to and exchanged messages with a person in relation to an agreement to provide a false alibi to police. The applicant told that person to tell police that they were together (at the time when the fire offence was committed). That person agreed and told the applicant, amongst other things, that he would "get the story". The sentencing judge assessed the offending as being below the mid-range, and that it was a serious matter even if the other person "is an enthusiastic participant in such a scheme".

Findings in respect of the applicant's subjective case

1. The applicant was aged 22 at the time of the offences and 24 at the time of sentence. The sentencing judge referred to the applicant's criminal history, noting that he was on conditional liberty (an ICO imposed subsequent to the break and enter) when count 4 and the second offence on the Form 1 occurred.
2. The sentencing judge referred to the contents of the SAR which outlined his accommodation, status and employment history, as well as his education.
3. The sentencing judge noted that the SAR reported that the applicant played a minor role and that he had taken a variety of illicit drugs on the day of the offences. The sentencing judge also noted what was set out in the report about his "attitude" and "social influences" which were at odds with the agreed facts. The sentencing judge found that "the applicant's preparedness to tell untruths to the SAR writer lead me to approach any expression of remorse with circumspection".
4. With respect to the applicant's mental health, the sentencing judge referred to the psychological report tendered on his behalf but rejected the applicant's submission that his moral culpability was reduced as a result of his ADHD. The sentencing judge found that the contents of the psychological report did not justify a finding that a mental disorder played a role in the offending. As a result, the sentencing judge found that the applicant was a "suitable vehicle for general deterrence".
5. The sentencing judge found that the applicant had "overstated the extent of his affectation by drugs and alcohol". This was because he was sufficiently aware of what he had done to then commit the offences following upon the break and enter. The sentencing judge was not prepared to "find positively" that the applicant had good prospects of rehabilitation "as opposed to prospects which justify a finding of special circumstances" and that it could not be said that the applicant was someone who was unlikely to re-offend.
6. The sentencing judge accepted that the applicant had witnessed violence while he was in custody but not of such a level that it would constitute hardship which was out of the ordinary. The sentencing judge took into account the "state of anxiety" caused by the COVID-19 pandemic in circumstances where the applicant worked as a sweeper in his wing of the gaol.
7. The sentencing judge applied a 25 per cent discount to the indicative sentences imposed because of the applicant's early pleas of guilty.

The sentencing judge erred in his consideration of the applicant's disadvantaged background.

Evidence regarding the applicant's background

1. The applicant's evidence consisted primarily of the report from the psychologist and oral evidence given by him in the sentence proceedings. The applicant's childhood experience and background was almost exclusively derived from the psychological report. The applicant noted that no objection had been taken to the tender of the report and its author was not cross-examined. The applicant submitted that no challenge was made to the accuracy of its contents.
2. The applicant submitted that there was ample evidence in the psychologist's report to establish disadvantage and trauma in his upbringing.
3. The applicant summarised the evidence insofar as it related to his childhood until the age of 18 as follows: 1. he was the eldest of two children born to parents who "may have experienced mental health and substance use problems". The applicant's mother reportedly smoked cannabis while pregnant with the applicant; 2. his father was violent towards his mother; 3. his parents separated when he was an infant. He was thereafter in the care of his maternal grandparents; 4. after his parents separated, his mother had three subsequent relationships that produced six half-siblings, two of whom had intensive special needs as a result of a genetic disorder causing profound developmental delay. His youngest stepsister was hearing impaired; 5. after being placed in his grandparents' care, his mother "came and went" from his life. The applicant only met his father a few times and viewed him as a "drug addict" and "wife basher"; 6. at age four, he suffered from viral meningitis; 7. at age eight, he was first diagnosed with ADHD; 8. at age eight, he was a victim of sexual abuse perpetrated by the daughter of his mother's then partner; 9. that same year, he was sexually assaulted by an older male friend of his mother; 10. at age nine, he lost contact with his mother for five years and reported that since then he had "constant anxiety issues" and fears of abandonment; 11. at age 11, his grandparents were granted custody of him. It took some nine years for legal custody to be granted to them. He had positive relationships with his grandparents who offered him a "relatively stable home environment". It was at about this time that his father "turned up at local primary school causing problems"; 12. when the applicant was 12 years old, he was referred to a paediatrician (Dr Lennon) with "difficult behaviour" following the recent loss of his maternal great grandmother and great aunt with whom he spent significant amounts of time in hospital before their deaths; 13. he had been placed on antidepressants as he was "fragile" and "putting himself down"; 14. he was diagnosed with Oppositional Defiance Disorder (ODD) and Attention Deficit Hyperactivity Disorder (ADHD) at about this time; 15. in 2009 (around age 12-13) his behaviour at school deteriorated and he found it challenging to remain focused and to complete tasks; 16. at age 14, he was sexually abused by a family friend. He did not disclose the abuse, as his abuser had threatened to shoot his grandparents if he did so. At around that same time, the applicant gravitated towards peers who used alcohol and drugs; 17. at age 14, he started drinking alcohol and smoking cannabis (his cannabis use continuing into adulthood); 18. by age 15, his mother had moved in to live with the applicant at his grandmother's home, bringing with her four other children, including the two children with intensive special needs. His grandmother described them as needing "24/7 care as they couldn't walk, talk or feed themselves"; 19. at age 15, the applicant was prescribed stimulant medication for his ADHD (Ritalin); 20. at age 16, the applicant tried cocaine but was not a regular user; 21. at around year 11, he left school, started working at a local abattoir, which he then left to work as a mechanic. At age 16 he ceased taking his medication for ADHD; 22. at age 17, the applicant commenced a relationship with a partner who was verbally and physically abusive towards him. He discovered that his partner abused methamphetamines. After their separation, he was assaulted by several of his partner's friends rendering him unconscious but without receiving medical attention. Thereafter, he was threatened until police became involved; and 23. at around age 17, the applicant began to self-harm during periods of reported distress (by punching his own face and head). The applicant also attempted suicide by jumping from a bridge.
4. There was further evidence from the applicant concerning his subjective circumstances after the age of 18 which was summarised as follows: 1. at age 18, he tried MDMA and continued to consume it "here and there"; 2. when he was 19, he commenced a relationship with a woman who was pregnant. As a result, the applicant assumed parental responsibility for a child at a young age. His partner fell pregnant to him, the following year; 3. he ceased work as a mechanic and returned to work at the abattoir. At the same time, he reported increased levels of stress, abuse of alcohol and drugs in order to cope; 4. he was subsequently sacked at around the same time as he became aware of his grandfather's ill-health. He began abusing drugs every day. At the age of 22, he consumed methylamphetamine for the first time. The psychological report stated that he had used "methamphetamines from age 22"; and 5. the offence was committed while the applicant was under the influence of alcohol, cannabis and a mixture of cocaine, ecstasy, Xanax and methamphetamine in an effort to "escape my reality ... it was all getting too much for me".

The applicant's submissions

1. The applicant submitted that "the psychological report included an expert opinion with respect to the effects of his background upon him and its link to his behaviour as an adult". The applicant submitted that the psychologist had established a link between his offending and the sexual assaults committed upon him as follows: "The effects of this abuse on Mr Newman's development and behaviour is likely complex and multifaceted. The developmental and cognitive issues typically seen in abused children have similarities to the problems reported of ADHD youth. These similar features include aggression and externalizing behaviour, depression and cognitive difficulties. Therefore, the abuse that Mr Newman experienced may have exacerbated his symptoms of ADHD and emotional dysregulation and increased his propensity towards substance abuse." (Report at [78]) (emphasis added)
2. The applicant submitted that the psychologist opined that the use of alcohol and drugs may have increased his impulsivity and further impaired his already compromised decision making capabilities. This was because the presence of ADHD would make him particularly sensitive to the effect of substances (Report at [79]).
3. The applicant submitted that the psychologist had found that his possible symptoms of ADHD may have "... impeded his ability to inhibit impulsive and dominant behavioural responses in order to select more appropriate behaviour that was consistent with completing his personal goals. The applicant submitted that this might become apparent during situations that required complex problem solving such as when he became concerned about the possibility of being caught for robbery" (Report at [84]).
4. [By way of comment, it should be noted that these opinions were expressed by the psychologist in terms of possibility, using the word "may" rather than as probabilities. Examples of this mode of expression are underlined above in the applicant's submissions. It was an issue specifically raised by the sentencing judge in his exchanges with the applicant's counsel.]
5. The applicant was critical of the conclusions reached by the sentencing judge and in particular, his Honour's unwillingness to embrace the proposition that the Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy v The Queen) principles applied to him in this case.
6. The applicant submitted: "46 Under the heading "The Subjective Case", the sentencing judge summarised a number of features of the applicant's subjective circumstances. 47 In doing so, the sentencing judge also summarised some parts of the psychological report as it related to the applicant's background, including his familial circumstances, allegations of sexual abuse, socialising with peers with whom he consumed substances, his relationship at age 17 with the abusive partner and referred to one of the psychologist's conclusions that the applicant was subject to a mood disturbance as a result of his background and was self-medicating for feelings of anxiety and depression. That conclusion, however, appeared to be used to support the finding that the "immediate context of this offending lay in his use of drugs to cope with the emotional distress caused by his grandfather's ill health and his loss of employment"." (Sentence judgment 13) 48 The sentencing judge declined to find that the applicant's moral culpability was reduced as a result of a "mental disorder" and in doing so stated "the offender's background is however taken into account on general principles". 49 With respect to the applicant's background, the sentencing judge ultimately made the following finding: "To summarise, Mr Newman is a young man with a moderate criminal history who had a less than ideal start in life but one which in my opinion falls short of amounting to profound childhood deprivation. I note the stability provided to him by his grandparents. At the relevant point in time (7 September 2018) he was in a state of emotional distress due to the ill health of his grandfather and his unemployment; he was responsible for two young children. His way of coping with this interval in his life was to abuse drugs regularly in an attempt to escape from reality." (Sentence judgment 17.5)
7. The applicant submitted that apart from that summation, there was no other reference by the sentencing judge to how his background should be taken into account other than to say that it "falls short" of profound deprivation.
8. The applicant submitted that the sentencing judge's finding that he had a "less than ideal start in life but one which in my opinion falls short of amounting to profound deprivation" was in all the circumstances incompatible with the unchallenged and detailed evidence concerning his background. The applicant submitted that the sentencing judge erred in this assessment and in not applying the principles in Bugmy v The Queen. The applicant submitted that this was because the evidence had established a background of profound deprivation that should have been taken into account in mitigation.

Respondent's submissions

1. The respondent relied upon the following findings by the sentencing judge. These findings, the respondent submitted, were well open to him. The specific findings relied upon were: "A sentencing assessment report dated 6 April 2020 under the hand of Helen Adams, Community Corrections Officer with the Cessnock Community Corrections Office indicates the following matters; at the time of the report, Mr Newman was living with his partner and child (or at least had been prior to his arrest) and his partner's child from a previous relationship. His partner, mother and grandparents are said to be supportive of him. He was previously employed at his local abattoir but lost a job after a period of ill health. He has completed a number of short courses related to automotive mechanics and panel beating whilst he was at high school. In respect of his attitude to the offences he said he was ashamed of his actions however apportioned blame to his associates stating that he was not the mastermind and only played minor role in the commission of the offences. He said that he had reconnected with past associates and followed their lead in the planning and participation of the offences. In respect of his substance use, he said that he had used cannabis in the past and only started using other drugs two weeks before the commission of the offences. He said that on the day of the offences, he had taken a variety of illicit drugs and had been unable to remember significant details of the offences. It was observed that he had been diagnosed with anxiety and depression in the past and although referred to a counsellor, had not attended any sessions. He was assessed as being at medium risk of re-offending. It has to be observed that what was set out under the headings, "Attitudes" and "Social Influences" concerning his role in the offences is at odds with the agreed facts, particularly in respect of the break and enter and arson offences. This was the subject of cross-examination when the offender gave evidence before me on 15 April this year... He accepted that what he told the author of the report about that was in fact incorrect. His preparedness to tell untruths to the report writer and to initially assert that the contents of the report were true... lead me to approach any expression of remorse with circumspection." (Sentence judgment 10.5-11.7)
2. The respondent relied upon the findings by the sentencing judge in respect of the psychologist's report. Those findings were: "Ms Hubner summarises certain material of a medical nature and notes that the offender was treated for ADHD until he left high school and had previously been diagnosed with oppositional defiance disorder. When he was nineteen years old, it was noted that his ADHD was described as "mild residual"... He had developed a cannabis use disorder." (Sentence judgment 11.8)
3. The respondent submitted that it was significant that the ADHD and ODD had not only been identified while the applicant was at school, but had been treated (apparently successfully) while he was at school.
4. The respondent submitted that the sentencing judge took into account the following: "Mr Newman at the time of his parents' separation was left in the care of his maternal grandparents. His mother subsequently came and went from his life. He had little to do with his father. At age eight, Mr Newman was allegedly the victim of sexual abuse perpetrated by the seventeen year old daughter of his mother's partner and he also alleged that he was sexually assaulted on a separate occasion by an older male friend of his brother. Mr Newman was nine years old when he lost contact with his mother for five years. He has then subsequently had constant anxiety issues and fears of emotional and physical abandonment. Mr Newman's grandparents were granted custody of him and his sister when he was aged eleven. He shared positive relationships with his grandparents who reportedly offered him a relatively stable home environment. He spoke of having a particularly close relationship with his grandfather who, "Tried to keep me out of trouble and taught me everything I know." At age fourteen, Mr Newman was again the alleged victim of sexual abuse and it was around that time that Mr Newman gravitated towards peers with whom he drank alcohol and used drugs." (Sentence judgment 12.2-.8) "At age seventeen, Mr Newman commenced an intimate relationship with a partner who was an abuser of methamphetamines and developed another relationship when he was nineteen years old. This person was pregnant to a prior relationship and Mr Newman assumed parental responsibility of that child. In the following year, his partner fell pregnant to him. He said that he ceased his dream job as an auto mechanic and commenced employment at the local abattoir. He described increasing levels of stress and admitted to abusing alcohol and drugs to cope. He developed gastrointestinal problems that resulted in him being unable to work and he was sacked. It was around this time that Mr Newman became aware of his grandfather's failing health. He said, "This was when I snapped and I started abusing hard drugs every day. I was trying to escape reality". (Sentence judgment 12.8-13.2)
5. The history relied upon by the respondent continued: "At para 47 [psychological report] it was noted that his drug use escalated when he was twenty-one years of age. It is apparent to me that the immediate context of this offending lay in his use of drugs to cope with the emotional distress caused by his grandfather's ill health and his loss of employment. In my opinion, he has broken into the school with the intention of stealing property to later on-sell because he had no money, then committed the other serious offences to cover his tracks. To the extent that he was affected by drugs or alcohol at the time, it does not mitigate his behaviour. It is apparent that the offender has both borderline and antisocial personality traits (see paras 60 to 61 of the report) and he is assessed as being at a moderate to high risk of re-offending. (Sentence judgment 13.4-.9) The opinion is offered by Ms Hubner that "Mr Newman's possible symptoms of ongoing ADHD may have impeded his ability to inhibit impulsive and dominant behavioural responses in order to select more appropriate behaviour." As I understand the submission, this opinion at para 84, is said to justify the conclusion that his moral culpability is reduced because of a mental disorder and that the importance of general deterrence is diminished. I do not accept that submission. The possibilities that may affect behaviour do not justify a conclusion that on the balance of probabilities it is more likely than not that such was the case I decline to make either of the findings sought. The offender's background is however taken into account on general principles. I have earlier noted the offender's expressions of remorse (see for example para 88 of the report.) I have concerns about the sincerity with which they are made. I note his letter to the Court (part of exhibit 1) which also contain those expressions. The impression I gained from observing him give evidence is that he continues to minimise his guilt and that his prospects of rehabilitation are problematic. In my view, he overstated the extent of his affectation by drugs and alcohol. He clearly was aware enough of what he had done and the implications of it to realise that he had left his fingerprints in the maintenance shed of the high school, and had the sufficient wherewithal when he was released from custody to go back to Taron Foster's place, attempt to encourage him to assist him in burning down the school and then gather two cans of petrol and go back to the high school and then commit the offence the subject of count 2." (Sentence judgment 13.9-14.6)
6. It is in that context that the sentencing judge made the findings specifically challenged in this appeal as follows: "To summarise, Mr Newman is a young man with a moderate criminal history who had a less than ideal start in life but one which in my opinion falls short of amounting to profound childhood deprivation. I note the stability provided to him by his grandparents. At the relevant point in time (7 September 2018) he was in a state of emotional distress due to the ill health of his grandfather and his unemployment; he was responsible for two young children. His way of coping with this interval in his life was to abuse drugs regularly in an attempt to escape from reality. As he agreed, drugs cost money and he had no money. With no source of income, it is clear to me that he decided to steal property from the high school and then engage in serious criminal conduct to conceal his guilt. That serious criminal conduct was comprised of a number of separate discrete offences set out in counts 2, 3 and 4 and involves conduct that extended from September 2018 to February 2019. He has borderline personality traits but no mental illness. While diagnosed with ADHD at school, there is no evidence which justifies a conclusion on the balance of probabilities that any mental disorder played a role in these offences (either by reducing his appreciation of the wrongness of his conduct or otherwise leading him to engage in conduct over which he had a reduced level of control.) He is in my view a suitable vehicle for general deterrence in respect of each separate offence. He has prospects of rehabilitation and I do note his evidence that upon his release, he intends to assist his grandparents on their farm ... He has broken his links with his associates who were involved with him during the break and enter however, he is at a real risk of re-offending unless he engages in appropriate therapy." (Sentence judgment 15.6-16.5)

Consideration

1. Before dealing with the specific matter raised in the Ground of Appeal, it is useful to set out what the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said in Bugmy v The Queen. As a start point, the circumstances of the appellant in the case were important: "12 The appellant is an Aboriginal man who was raised in Wilcannia, a town in far-western New South Wales. He is one of a number of siblings. He grew up in a household in which alcohol abuse and violence were commonplace. He has had little formal education and is unable to read or write. He started drinking alcohol and taking prohibited drugs when he was 13 years old. He reports having witnessed his father stabbing his mother 15 times. He and his siblings all have records for violence. The appellant's record of juvenile offending commenced when he was 12 years old. From that age he was regularly detained in juvenile detention centres. When he turned 18 he was transferred to an adult prison. He has a long record of convictions including for offences of violence. He was 29 years old at the date of the present offences. He has spent much of his adult life in prison. He gives a history of repeated suicide attempts. ..."
2. It was against that background that the plurality said: "37 An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. In this respect, Simpson J has correctly explained the significance of the statements in Fernando: "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." 38 The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender's conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor... ... 40 Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. 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. 41 ... In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background. ... 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. 45 The point was made by Gleeson CJ in Engert in the context of explaining the significance of an offender's mental condition in sentencing: "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. ... Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender." 46 ... An issue for determination on the remitter is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that Judge Lerve allowed."
3. Those statements of principle should also be read with the decision in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 which was handed down at the same time as Bugmy v The Queen and raised similar issues. There, the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) said: "54 It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. ..."
4. In Dungay v R [2020] NSWCCA 209 (Dungay v R) N Adams J, with the concurrence of Bell P and Davies J, reviewed the development of the case law in this Court following Bugmy v The Queen. Her Honour observed in particular that where there has been careful planning involved in an offence, such as the cultivation of drugs, or drug supply, the offender's moral culpability may not be reduced. However, if the offender's upbringing had not been deficient or had not predisposed him to impulsive wrongdoing in the circumstances of the particular case, moral culpability may well be reduced. In such circumstances, N Adams J concluded: "153 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..."
5. As her Honour further observed by reference to the purposes of sentencing in s 3A of the Sentencing Act that if an offender's moral culpability is reduced and there is less need for general deterrence, nonetheless there may be a greater need in that case to protect the community: Dungay v R at [140]-[141].
6. As already noted, an important consideration in this case was that much of the expressions of opinion by the psychologist used terminology which involved the word "may". The consequences of expressing an opinion in that way are set out in the following exchange between the sentencing judge and counsel for the applicant: "HIS HONOUR: Paragraph 75 contains an assertion to the effect the history he provided was of exposure to deleterious factors during childhood that is, exposure to substance use and domestic violence, parental separation and inconsistent and unpredictable parental care. That appears in the summary and clinical opinion but I don't see a reference to the domestic violence elsewhere other than in the summary but it seems to be a summary of something which doesn't otherwise appear to have been stated to her and as far as the inconsistent and unpredictable parental care is concerned, that on the face of things would seem to be at odds with the assertion of him having [a] positive relationship with his grandparents and a relatively stable home environment, wouldn't you say? BOSS: I note that your Honour and especially when your Honour considers para 3 after his parents separation and Mr Newman's mother was involved in several violent relationships and his maternal grandparents raised him. It doesn't seem to be specified in the report but most definitely, it is there in the clinical summary. HIS HONOUR: Yes that's usually summaries are summaries of other information that people have been told which one would ordinarily expect to appear in the main body of the report under additional psycho-social background. It's all right, just drawing your attention to something that was troubling me, go on. BOSS: Thanks your Honour, and in that regard I do not[e] your Honour's questions of Madam Crown in relation to does the drugs and alcohol have a mitigating factor. In normal circumstances, no it doesn't but with the Bugmy issues, I do respectfully submit that that is a matter that needs to be taken into consideration. With my friend's submissions in relation to the aggravating features, I would concede that 21(2)(g), (i) and (j) would be seen as being the aggravating features in the matter however, one of the major issues that seems to arise is that given his history, it's the case that he is not necessarily a person to which should be used as a vehicle of general deterrence. HIS HONOUR: Why not? BOSS: In relation to his mental condition, his upbringing, the Bugmy principles that have come through in relation to that. HIS HONOUR: What part of his mental condition do you say is relevant to the issue as to the diminution of general deterrence? BOSS: Yes your Honour in relation to paras 84 and 85 of the report of Hubner. HIS HONOUR: The possible symptoms of ongoing ADHD may have impeded his ability to inhibit impulsive and dominant behavioural responses. Does that get to a level where I would be satisfied on the balance of probabilities of that? The way it's cast is that possible symptoms which may have impeded his ability. BOSS: Yes and in respect of that statement your Honour it is the situation that he was diagnosed with it I think the report says from as early as eight years of age and also seeking help in his late teens for that same condition that-- HIS HONOUR: Yes look we can accept that that was the condition when he was 17, he was 22 at the time. Five years had elapsed. Dr Hubner puts it no more than a possibility of symptoms which may have impeded. Does that get to it is more likely than not that this is what happened? I wouldn't have thought so. BOSS: Given the history yes I would submit yes it is. She says that it is a possibility. HIS HONOUR: Yes but that's not a - a possibility does not rise to a probability, does it? And a probability is what's required isn't it, more likely than not? If you're seeking to establish a matter of mitigation, that's the ownership there isn't it? BOSS: It is your Honour and ultimately that is a matter for your Honour but I would respectfully submit that when it is looked at in the course of the offending behaviour mixed with the history that it would raise it beyond that possibility to be the probability." (T 15.4.20, 24.26-25.50)
7. It is clear from that exchange that the evidence of Ms Hubner rose no higher than the existence of the possibility that the applicant was suffering from a mental disease, rather than that proposition being more likely than not. As the sentencing judge pointed out, mere possibility does not reach the standard of more probable than not.
8. As set out in the applicant's submissions in this Court, there was a relatively lengthy exchange between the sentencing judge and the applicant's counsel in which the sentencing judge expressed the view that the evidence did not establish a "profound deprivation" in the sense spoken of in Bugmy v The Queen and other authorities. The sentencing judge was clearly seized of the importance of the issue and understood the evidence that was before him. As a result, the sentencing judge made a finding which was well open to him, namely that the applicant's background was not one which warranted a reduction in moral culpability in all the circumstances (Kliendienst v R [2020] NSWCCA 98 at [60] (Kliendienst v R).
9. In Kliendienst v R the applicant had frequently witnessed and experienced his father's domestic violence which caused him to fear for his safety and develop a trauma response and other psychological issues that were highly relevant to his violent offending. Similarly, in Ingrey v R [2016] NSWCCA 31 the applicant had been exposed to crime and antisocial attitudes amongst his wider family and peers to the point that his capacity to learn from experience and mature was compromised. There was evidence that Mr Ingrey had been in and out of institutions in some form since he was aged 10 and had never been employed.
10. In contrast, the applicant in this case did not grow up in an environment surrounded by "extreme violence and alcohol abuse". There was no suggestion that he had been normalised to violence by his upbringing by his grandparents. There was a reference by the psychologist to the applicant's father being violent towards his mother before their separation. However, the report stated that they separated when the applicant was aged two. Although the applicant's mother, thereafter, was involved in several violent relationships, there is no evidence that the applicant was exposed to violence from any of those relationships. Rather the overwhelming evidence was to the effect that he was raised by his maternal grandparents and they were the ones who had the day to day care of him resulting ultimately in them obtaining custody. Not only did his grandparents offer him a relatively stable home environment but the relationship between the applicant and his grandfather was very close.
11. There was no evidence of the applicant receiving any treatment for mental illness at the time of the offending. There was no diagnosis of an actual mental illness as distinct from the possibility of a mental illness made at that time. As he was entitled to do, the sentencing judge rejected any causal link between a mental condition and the commission of the offending. As was open to him, his Honour concluded that the applicant took drugs as a way of attempting to escape reality in the context of his unemployment, being responsible for young children and concerns about his grandfather's ill health. There is a considerable difference between the attempts made over a considerable period of time by the applicant to avoid the consequences of his offending and the violence involved in the offending in Bugmy v The Queen. Unlike the facts of Bugmy v The Queen, the applicant appears to have had little difficulty in attending school and TAFE.
12. It follows from the above that the applicant has not made out his ground of appeal.
13. The orders which I propose are: 1. Leave to appeal against sentence is granted. 2. The appeal against sentence is dismissed.
14. N ADAMS J: I have had the opportunity of reading the judgment of the Chief Judge in draft. I adopt the summary of the background to this appeal, the submissions of the parties and the extracts from the decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"): at [1]-[45] above. I agree with the orders proposed by his Honour for the following reasons.
15. The question that the High Court considered in Bugmy was whether the effects of profound childhood deprivation are still relevant as a factor on sentence after an effluxion of time. As the High Court observed at [42] (footnote omitted): "It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case." (emphasis added)
16. As I observed in Dungay v R [2020] NSWCCA 209 ("Dungay") at [138], it is now settled that the effects of "profound childhood deprivation" are to be given "full weight" in every sentencing decision. After referring to a number of decisions of this Court considering Bugmy, I concluded the following in Dungay at [153]: "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." (emphasis added).
17. The principles derived from the case law I reviewed in Dungay address the question of how a childhood of profound childhood deprivation (the expression used by the High Court in Bugmy at [44]) is to be given "full weight in every sentencing decision". It seems to me that the question raised in the present application is slightly different. As the extracts from the transcript of the proceedings on sentence and the Remarks on Sentence extracted by Hoeben CJ at CL make clear, the sentencing judge was not ultimately satisfied that the applicant's childhood was one of "profound childhood deprivation".
18. The challenge made in the sole ground of appeal in this matter is that "his Honour erred in his consideration of the applicant's disadvantaged background". This ground relies on the following finding (in the portion of the Remarks on Sentence extracted above at [42]): "To summarise, Mr Newman is a young man with a moderate criminal history who had a less than ideal start in life but one which in my opinion falls short of amounting to profound childhood deprivation."
19. The applicant's written submissions relied on the "ample" evidence of deprivation as summarised above at [27] and challenged the assessment of the sentencing judge that it fell short of that description.
20. A finding as to whether or not an offender had a childhood of "profound deprivation" is a question of fact. This Court has long taken the approach that it will not review findings of fact made by the sentencing judge unless they were "not open" on the facts or unreasonable.
21. In AB v R [2014] NSWCCA 339 Simpson J (as her Honour then was) with whom Meagher JA and Wilson J agreed, traced the early jurisprudence on this question and then stated the following at [52]-[55]: "52 I pass over the next half century and come to O'Donoghue. In a frequently cited passage, Hunt J (with whom Carruthers and Wood JJ agreed), said: 'It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below ... Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the Court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice ...' (p 401, internal citations omitted, italics added) 53 It was the insistence that 'error' must be shown before this Court will interfere in a sentence that attracted the applicant's challenge. However, as will appear below, the authorities he claims in support do not go to that point. 54 Since O'Donoghue, the same principle has been re-stated on many occasions: for example, R v Khouzame [2000] NSWCCA 505; R v Aoun [2011] NSWCCA 284; Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222; 220 A Crim R 19; Peters v R [2013] NSWCCA 324. In the interests of brevity, I have forborne to mention the other decisions identified by Johnson J in Aoun (at [35]) and Latham J in Peters (at [42]). 55 The final nail in the coffin of any argument to the contrary is to be found in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 (a decision referred to in the applicant's argument in a different context) at [35]: 'The history of the provision [s 6(3)] is touched on in Lacey v A-G (Qld) [[2011] HCA 10; 242 CLR 573]. Notwithstanding the breadth of its language, it was settled at an early stage that the appellate court's authority to intervene is dependent upon demonstration of error.' (italics added) The High Court cited its earlier decision in Skinner as authority."
22. As her Honour concluded at [57]: "What is essential is that error, properly so called, be demonstrated before this Court will interfere in a finding of fact."
23. The approach in R v O'Donoghue (1988) 34 A Crim R 397 has been questioned. In both Clarke v R [2015] NSWCCA 232 and more recently in Hordern v R [2019] NSWCCA 138, Basten JA and Hamill J have queried whether such a test is too high given the nature of the appeal. As I observed in Gibson v Regina [2019] NSWCCA 221 ("Gibson") at [61]: "In Hordern v R, Basten JA concluded at [20] that the 'constrained approach' in R v O'Donoghue is 'clearly wrong' and should not be followed. His Honour's reasons for coming to this conclusion are set out in Hordern v R at [5]-[19]. In effect, his Honour contends that to require applicants to establish that a finding was 'not open' to a sentencing judge goes beyond the error identified in House v The King of simply 'mistak[ing] the facts', the former test amounting, in effect, to an error of law."
24. It is not necessary for me to consider whether the test in R v O'Donoghue is correct in order to dispose of the sole ground of appeal in this matter. I took the same approach in Gibson. In this particular matter, whether the appropriate test is mistaking the facts or whether it is that the factual finding was "not open" to the sentencing judge the result is the same.
25. The sentencing judge considered all of the matters relevant to the applicant's childhood put before him. There can be no suggestion that they were overlooked; his Honour specifically referred to them in his remarks extracted above at [40]. It was after having regard to all that material his Honour made the finding that he was not satisfied that the applicant had suffered a childhood of "profound childhood deprivation". The question under this ground is whether it was open for his Honour to do so.
26. In the present case, the sentencing judge had regard, inter alia, to the fact that the applicant lived with his grandparents with whom he "shared positive relationships" and who gave him a stable home environment. Although it would have been open to the sentencing judge to make such a finding, his Honour did not. No error is disclosed in the fact that he did not.
27. Even when there is no finding of "profound" childhood deprivation, an offender's subjective case is always relevant by way of mitigation. His Honour was required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: see McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].
28. I am not satisfied that the sentencing judge failed to have regard to the applicant's childhood as part of his subjective case. He set it out in some detail. At the conclusion of this summary his Honour stated that he was not satisfied that the applicant's moral culpability should be reduced on account of his ADHD and/or his borderline antisocial traits. Before turning to consider the question of remorse, the sentencing judge concluded his summary of the applicant's subjective case by stating: "[t]he offender's background is however taken into account on general principles".
29. His Honour, clearly, had regard to the applicant's subjective case. Given the seriousness of the offending when compared with the sentence imposed, I am satisfied it was taken into account as part of the applicant's subjective case.
30. This sole ground of appeal asserts error in the sentencing judge's "consideration of the applicant's disadvantaged background". No challenge is made to the fact that the sentencing judge did not find that the applicant's moral culpability was reduced because of his mental health issues, including his ADHD. On that basis I do not propose to say anything on that issue.
31. HIDDEN AJ: The issue in this application was whether it was open to the sentencing judge to have approached the evidence of the applicant's background in the way he did. For the reasons expressed by Hoeben CJ at CL and N Adams J, I am satisfied that it was open to his Honour to have concluded that that background was not one of profound childhood deprivation such as to bear upon his moral culpability for the offences. I agree with N Adams J that his Honour does appear to have taken it into account appropriately as part of the applicant's subjective case.
32. I agree with the orders proposed by Hoeben CJ at CL.

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