Perkins v R [2018] NSWCCA 62 | Case summary | Zoe

NSWNSWCCA

Perkins v R

[2018] NSWCCA 62

Court of Criminal Appeal (NSW)|2018-02-19|Before: Hoeben CJ, White JA, Fullerton J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-02-19

Before

Hoeben CJ, White JA, Fullerton J

Catchwords

Zirilli v The Queen [2014] HCA 2
253 CLR 58 Baxter v The Queen [2007] NSWCCA 237
(2007) A Crim R 284 Bichar v Regina [2006] NSWCCA 1 BP v R [2010] NSWCCA 159
201 A Crim R 379 Bugmy v The Queen [2013] HCA 37

Source

Original judgment source is linked above.

Catchwords

Zirilli v The Queen [2014] HCA 2253 CLR 58 Baxter v The Queen [2007] NSWCCA 237(2007) A Crim R 284 Bichar v Regina [2006] NSWCCA 1 BP v R [2010] NSWCCA 159201 A Crim R 379 Bugmy v The Queen [2013] HCA 37202 CLR 321 Hanania v R [2012] NSWCCA 220 Hili v The QueenJones v The Queen [2010] HCA 45252 CLR 601 King v R [2015] NSWCCA 99 KT v R [2008] NSWCCA 51124 A Crim R 451 R v Henry [1999] NSWCCA 111153 A Crim R 257 R v Wong [2010] NSWSC 171 Teubner v Humble (1963) 108 CLR 491 The Queen v Pham [2015] HCA 39

Judgment (7 paragraphs)

[1]

The applicant's further evidence

In his affidavit the applicant deposes to having been verbally abused and physically assaulted in August 2017 (twelve months after he was sentenced) by an inmate at Lithgow Correctional Centre while he was in protective custody after having been placed on limited protection on the recommendation of a psychologist.

[6]

Re-sentencing decision

Other than correcting the error in the sentencing judge's approach to an assessment of the applicant's subjective circumstances and, in the process, inviting the Court in the course of the re-exercising the sentencing discretion to give greater weight to the applicant's youth, his relative immaturity, his lack of any criminal antecedents and the genuine expressions of remorse (the essential complaint underpinning the ground of appeal that asserted manifest excess), the applicant did not submit that this Court would make primary findings of fact any different from those of the primary judge. In particular, this Court was not invited to revisit the question whether the evidence supported a finding beyond reasonable doubt that the applicant formed the intention to kill the deceased within minutes of doing so.
That being the case, it is unnecessary to reassess the objective seriousness of the offending in any detail, other than to express my own view that in all the circumstances, not the least being that the deceased was restrained and unable to defend himself in his motor vehicle, the offending was of a most serious kind. I do not discount the significance of the applicant's youth in forming that judgment. It has been said often enough that no "bright line" is crossed when a young person reaches the age of 18, and that biological age may not be a reflection of maturity even in those who have attained 18 years and even older.
McClellan CJ at CL observed in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571, at [23], "allowance will be made for an offender's youth and not just their biological age". In BP v R [2010] NSWCCA 159; 201 A Crim R 379, Hodgson JA, at [5], observed: … In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.
The applicant had turned 18 and was approaching the age of 19 at the time of the offending. Despite apparently surviving the physical trauma and mental anguish associated with treatment with chemotherapy for cancer at age 12 and the resurgence of the cancer at age 16, the applicant's attempts to address the emotional stressors at that time in his life with drugs and alcohol, followed by his continued abuse of both substances for a sustained period thereafter, do not signify maturity. This is borne out by the applicant's evidence on sentence, as confirmed by his evidence in the affidavit read on re-sentence, that it is only with hindsight, now aged 22, that he realises the enormity and the horror of what he did under the influence of drugs and alcohol at age 19.
It is not enough however to simply acknowledge that the applicant's youth at the time of the offending, and even his relative youth at this time, is a matter to be taken into account as part of the assessment of the weight of his subjective circumstances, or to accept that his prior good character and lack of criminal antecedents is a statutory factor under s 21A(2) of the Crimes (Sentencing) Procedure Act that operates in mitigation of sentence. In my view, the applicant's youth also has traction in assessing his moral culpability for the murder.
Accepting that his Honour found the applicant formed the intention to kill the deceased within minutes of carrying through with that intention, and accepting that the applicant has no clear or reasoned recollection as to what actually motivated him to act as he did in those moments, I am satisfied that the probabilities favour a finding that his conduct in getting the knife and using it was a spur of the moment impulse, the antithesis of mature decision-making. I am fortified in that view by the positive finding of the sentencing judge, with which I agree, that the murderous assault was not premeditated and that it involved no planning. His Honour expressed some perplexity at what motivated the applicant to both form the intention and carry it through, as do I. Without qualifying in any way the seriousness of the applicant's conduct in the deliberate infliction of multiple stab wounds, and at all times conscious of the need for sentence to soundly denounce the criminal behaviour that resulted in a young man's death and to adequately punish for it, it is clear to me that any capacity the applicant might have had for clear thinking, self-control or self-regulation (capacities which an older person might have, even if heavily intoxicated) were not in play on the night of the murder. I regard that state of affairs as, in part at least, a reflection of his youth and that his moral culpability for the murder is reduced for that reason.
The evidence does not allow for a finding that the applicant's childhood trauma, inclusive of his exposure to family and domestic violence, resulted in any retardation of his emotional or psychological development. This is in large part because Dr Gilligan's report simply does not address that issue and no further evidence directed to it was adduced on re-sentence. I do, however, take those features of the applicant's subjective circumstances into account on re-sentence without affording them any particular weight in the sentencing result. In particular, I am unable to find that of themselves they operate to diminish the applicant's moral culpability for the murder of the deceased.
For a young man with no prior criminal antecedents I am satisfied that the applicant's gathering insights into his offending and the precursors to it are at this time genuine, well-formed and well-founded. I am also satisfied that his remorse is genuine and that, despite his incarceration and the additional hardship that has been occasioned by his placement in protection, he will work hard to advance what are already established indicators of his rehabilitation. With the applicant's creditable progress in custody over the past 18 months, I am optimistic that he will progressively settle into the regime that is ahead of him as a prisoner with a lengthy term to serve before being eligible to be considered for release to parole.
After allowing for the plea of guilty entered on the first day of the trial I would impose a head sentence 18 years with a non-parole period of 13 years and 6 months. That is, I would have allowed a 10 per cent discount on a head sentence of 20 years. I fixed the non-parole period in accordance with the statutory ratio provided for in s 44 of the Crimes (Sentencing) Procedure Act. I have not found special circumstances such as might have warranted disturbing the statutory ratio because I have given weight to the applicant's youth, the conditions of custody as a first-time prisoner and his enhanced prospects of rehabilitation in the calculation of sentence.

Parties

Applicant/Plaintiff:

Perkins

Respondent/Defendant:

Legislation Cited (3)

Crimes (Sentencing) Procedure Act 1999(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Criminal Appeal Act 1912(NSW)

Cases Cited (74)

R v Wilson [2005] NSWCCA 112; 153 A Crim R 257 R v Wong [2010] NSWSC 171 Teubner v Humble (1963) 108 CLR 491 The Queen v Pham [2015] HCA 39; 256 CLR 550 Vandeventer v R [2013] NSWCCA 33 Versluys v R [2014] NSWCCA 98 Yang v R [2012] NSWCCA 49 Zaro v Regina [2009] NSWCCA 219 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Andrew Jerome Perkins - Applicant Regina - Respondent Crown Representation: Counsel: G Bashir SC/R Khalilizadeh - Applicant F Veltro - Respondent Crown

Solicitors: Legal Aid NSW - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2014/046264 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: [2016] NSWSC 1080 Date of Decision: 5 August 2016 Before: Button J File Number(s): 2014/046264

Judgment

HOEBEN CJ at CL: Offence and sentence The applicant was charged that on 13 February 2014 he did murder Kieran Priestland (the deceased). The maximum penalty for murder is imprisonment for life. There is a standard non-parole period of imprisonment of 20 years.
On 11 July 2016, the day before he was due to be arraigned before a jury, the applicant pleaded guilty to the offence. Sentence proceedings were conducted on 3 August 2016 and on 5 August 2016 Button J (the sentencing judge) imposed a sentence of imprisonment with a non-parole period of 15 years, commencing 13 February 2014 and expiring on 12 February 2029, and a balance of term of 5 years and 6 months expiring on 12 August 2034.
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on the following grounds: Ground 1 - His Honour erred in failing to take into account the following relevant features in mitigation: (a) The childhood disadvantage suffered by the applicant; and/or (b) The circumstances in which the applicant commenced using synthetic cannabis; and/or (c) The prior good character of the applicant. Ground 2 - The sentence was manifestly excessive. Factual background
At about 6.30pm on Wednesday, 12 February 2014 Ashleigh Cornish arrived at the residence of the applicant. She was driven there by her boyfriend, the deceased. Ms Cornish went to the applicant's residence to have a few drinks with him and his girlfriend, Rachel Manevski. The applicant's mother and his six year old brother were also home at the time.
The deceased and Ms Cornish had been in a relationship for about 18 months. Although they still lived together at the deceased's parents' home, the couple had broken up a couple of weeks before. The deceased was not happy about Ms Cornish visiting the applicant because he did not like him.
After arriving at the house Ms Cornish, the applicant and Ms Manevski went into the applicant's bedroom, talked and drank vodka and cask wine. Throughout the night the group drank a 700ml bottle of vodka and a two litre cask of red wine. Over the course of the evening Ms Cornish told the applicant and Ms Manevski about her relationship with the deceased. She told them about recent arguments between her and the deceased and that he was verbally abusive towards her.
After leaving Ms Cornish at the applicant's house, the deceased noticed that she had logged onto her Facebook account on his phone but did not log out when she had finished using the account. The deceased viewed Ms Cornish's Facebook page and learned that she was romantically involved with another male.
At about 10pm that night the deceased returned to the applicant's home to confront Ms Cornish and parked in front of the premises. He was accompanied by a number of his male friends who arrived in another car. The deceased walked to the front of the house and called out to the applicant, asking if Ms Cornish was there. Ms Cornish went outside and a heated argument ensued between her and the deceased.

[2014] HCA 2

[2015] HCA 39

[2001] HCA 64

[2005] HCA 25

[2005] HCA 45

(1989) 167 CLR 78

(1963) 108 CLR 491

(1936) 55 CLR 499

(1999) 195 CLR 665

(2000) 202 CLR 321

(2001) 207 CLR 584

(2005) 228 CLR 357

(2010) 242 CLR 520

(2013) 249 CLR 571

(2014) 252 CLR 601

(2016) 93 NSWLR 205

(2006) 68 NSWLR 1

[1936] HCA 40

Cited By (35)

In order to understand this ground of appeal, it is necessary to set out in some detail the report of Dr Gilligan which was before his Honour. That report was based on a one and a half hour consultation which took place on 29 July 2016 by AVL between the psychologist and the applicant. Under the heading "Background and Relevant History" the following was set out: "7 Andrew reported he has never met his biological father as he left before he was born when his mother was pregnant with him. He told me his mother became involved in another relationship with a man named Brett and had a daughter and they stayed together for nine years. 8 Domestic Violence. Andrew reported his mother's relationship was volatile and Brett would "bash" his mother a lot. Andrew said he was hit a couple of times however he witnessed his mother being assaulted by Brett more frequently. He told me his mother was "nearly killed by Brett" about three or four times. He said she finally came to her senses that she could not change Brett's drinking habits and drug use and left him. Andrew reported after the divorce Brett drowned whilst intoxicated during a trip to Bali. 9 Andrew reported his mother then became involved with his current stepfather Jim. His mother and Jim had a boy together, who is currently eight years old. Andrew reported he likes Jim, and Jim is "really good" and supportive and comes to see him and supports his mother and the family a lot. Andrew reported he is close with his stepsister and youngest brother. He said they come to visit regularly fortnightly with Jim and his mother. 10 Early Adjustment. Andrew reported he adjusted to most aspects of his childhood development without problems. He told me his primary school years were "good" without problems and he got along with everyone at school including fellow students and teachers. He told me he was never involved in fights, and did not report any expulsion or suspensions. He told me he was never diagnosed with a learning disorder or attention deficit disorder or other conduct problems. 11 Education Performance. Andrew reported he left school in year 11 to complete a TAFE course for tertiary education in preparation. Andrew reported he was always a good student and got "good grades". He said maths was not his strong point, however he was able to perform to an advanced level in English and teachers reports and feedback to him about his English skills were always good. Andrew reported he wanted to be a journalist and had achieved marks to enter a journalism course at university and was about to commence university prior to the events in question. 12 Social. Andrew said he was a very sociable person and always had a lot of friends and was never involved with others in substance use, criminal activity or juvenile delinquency. He told me he started spending more time with his girlfriend when he 18 and less time with his friends and some of his relationships fell away as a result. 13 Social, Leisure, Community activities and Routines. Andrew reported he enjoys skating, going to the beach, body boarding, long boarding, clubbing, going to shows, and music concerts. … 15 Health. Andrew reported he had cancer, Hodgkin's lymphoma when he was approximately 12 years old. He told me he had chemotherapy to treat it and this was successful and he is now in remission. He told me he had a relapse at 16 and surgeons were able to segregate the lymph node and remove it. He said this relapse caused him to become depressed and he became extremely anxious about going through what he had gone through before. He told me around this time he started to drink more and took up chronic cannabis to cope. 16 Substance Use. Andrew said prior to his lymphoma relapse he had used substances intermittently socially with friends from time to time and had tried synthetic cannabis and alcohol. He said he had not really liked drinking as prior to the relapse of his cancer as he had seen what impact alcohol had on Brett and his mother. However, when he was 16 and following his relapse he started to drink and use "chronic", synthetic cannabis. He said when he met Rachel [Ms Manevski] at approximately 17 his use of substances increased to every week when they would use alcohol and chronic together, progressing to every couple of days. He said this pattern occurred for a year prior to the events of the offence. He told me that prior to the offence he had consumed half a gram of synthetic chronic and had drunk a 700 ml bottle of Vodka. … 18 Andrew reported he was 17 when he met Rachel and told me he has been with her up until the current time. He said he started using drugs and alcohol "a lot more" with Rachel. Andrew said Rachel contributed to the increase in substances. He said in the early phase of the relationship there were a few fights around mutual suspiciousness, trust and jealousy however, these were resolved and he believes the relationship to be much more secure now. 19 Mental Health. Andrew reported he has never had a mental health problem. Despite the somewhat benign account from Andrew's perspective, I note it appears that he became depressed following a relapse of his illness when he was 16 and the uptake of substance abuse followed. I note he is also currently on antidepressants Avanza 45 mg per day, which he has been on for approximately a year. Andrew did not endorse any symptoms of major mental illness such as odd mannerisms stereotypical behaviours, delusions, hallucinations or fixed ideas. 20 Andrew described himself as a sociable person and prefers to be with others and is not a loner and does not have difficulties making or keeping friends. He does not have difficulties trusting others, and does not lose his temper easily. He said in his teenage years he was a little impulsive but has matured since then and is less impulsive than he used to be. He said he does not worry much and is not dependent on others and is very independent yet social. He does not describe himself as a perfectionist and does not have a history of associating with deviant peers. … 23 Prior Offending. Andrew said he has no prior offending history and told me he was not a violent person. He said he has never assaulted anyone in the past before and described his behaviour on the night of the offending behaviour as completely out of character, as if he was a different person. … Formulation and Opinion 31 Andrew is a 21-year-old young man. By Andrew's account, he has managed to adjust to all aspects of his development from a young age. He was able to perform and apply himself in the context of education and was well liked by peers and teachers. He did not involve himself with juvenile delinquency or other conduct problems or associate with negative peers. 32 It appears that his early episode of cancer had a profound effect on him and the relapse of his cancer at the age 16 appears to have been traumatic for him. The prospect not only having to go through chemotherapy again but also having to consider his death appears to be a significant stressor from him during this time. 33 It appears that from around this time Andrew took up substance abuse to cope with the distress and depression he experienced following his relapse. His substance use increased further in the context of a relationship around the age of 17-18. Despite this Andrew continued to perform well academically and was able to achieve sufficient marks to gain entry into is chosen field of study Journalism. Andrew reports no history of violence, criminal or other antisocial behaviour. 34 With regard to the alleged offending behaviour, Andrew reports symptoms of dissociation consistent with heavy alcohol and cannabis use. That is, Andrew describes his experiences of the alleged offending behaviour (albeit influenced by chronic and alcohol abuse) as lacking in voluntariness, and although he was aware of his actions when making the particular movements that constituted the offending behaviour did not feel in control of them. This description is consistent with depersonalisation, a phenomenon associated with dissociative experience. Andrew does not deny his action regarding the alleged offending behaviour, however does deny his intention to kill the victim."

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."

Observations to similar effect were made by Howie J (Basten JA and Hall J agreeing) in Bichar v Regina [2006] NSWCCA 1 where his Honour said: "23 Of perhaps more significance was the fact the Judge took into account as a matter of mitigation the applicant's drug addiction. He did so relying upon what Wood CJ at CL said in Henry and concluded that the applicant did not choose to embark upon drug taking but that it was a result of his experiences on active service and of the injury he suffered in his employment as a train guard. The Judge stated, "It is reasonable to assume that without those events in his life he would be very unlikely to have resorted to illicit drugs". In my respectful opinion the Judge erred in treating the appellant's drug taking as a matter of mitigation. It is very often the case that there will be some life experience or some psychological or psychiatric state that causes, or at least contributes to, the use of drugs. One will almost always be able to assume that without that experience or without the disturbed psychological or psychiatric state the person would have been unlikely to have resorted to illegal drugs. 24 In any event the fact that some traumatic or injurious event results in a person using drugs does not mean that drug addiction is a matter of mitigation. There is nothing in what Wood CJ at CL said in Henry to suggest otherwise. … … 25 There was no evidence in the present case that … [the] applicant's use of heroin was not a matter of personal choice notwithstanding that it might have helped him overcome the effects of his personal experiences or the results of the injury he suffered. The psychologist, without any factual support, suggested that the applicant might have used heroin to overcome pain. But that was not the evidence of the applicant. In any event self medication by the use of prohibited drugs to overcome psychological or physical trauma is not a mitigating factor: R v SY [2003] NSWCCA 291 at [62] and following."

In support of those propositions the applicant referred the Court to 20 sentencing decisions involving young offenders where the sentences imposed were significantly less than that imposed in this matter. The cases relied upon by the applicant are set out in summary form. R v Wilson [2005] NSWCCA 112; 153 A Crim R 257 - Taxi driver stabbed in chest. Offender aged 18. Plea of guilty to murder. Intention to inflict grievous bodily harm. Discount of 25 percent for plea of guilty. Sentence of 15 years with a non-parole period of 11 years. Lee v R [2011] NSWCCA 169 - Offender aged 18. Plea of guilty to murder. Confrontation where offender held deceased while co-offender stabbed him four times. No significant criminal convictions. Intention to inflict grievous bodily harm. Discount of 12.5 per cent for plea of guilty. On appeal, sentence reduced from 19 years and 6 months to 17 years and 6 months with a non-parole period of 12 years and 3 months. Carr v R [2009] NSWSC 995 - Offender aged 18. Argument at party. Plea of guilty to murder on first day of trial. Deceased used a scooter as a weapon. Offender, who was under the influence of drugs and alcohol, stabbed deceased once in chest. Criminal record. Intention to inflict grievous bodily harm. A discount of 15 per cent for the plea of guilty. Sentence of 16 years with a non-parole period of 12 years. R v Nguyen [2007] NSWSC 389 - Offender aged 20. Plea of guilty to felony murder. On parole at time of offence. Long standing drug addiction from a young age. A discount of 25 per cent for plea of guilty. Limited remorse and prospects of rehabilitation. Intention to inflict grievous bodily harm. Sentence of 18 years with a non-parole period of 13 years and 6 months. R v Fuller [2016] NSWSC 815 - Offender aged 18. Long criminal history. Abusive and deprived early childhood. Victim beaten to death with blunt end of tomahawk. Intention to inflict grievous bodily harm. Discount not specified but less than 25 per cent. Matters on a Form 1. Sentence of 24 years and 6 months with a non-parole period of 17 years. R v Cotterill [2012] NSWSC 89 - Plea of guilty to murder. Young woman stabbed during course of break and enter. Intention to kill. Offender aged 18. Raised in highly dysfunctional family. Previous offences as a juvenile. A discount of 15 per cent for plea. Sentence of 22 years with a non-parole period of 16 years. Zaro v Regina [2009] NSWCCA 219 - Found guilty of murder after trial. Offender aged 18. Intention to kill. Deceased stabbed seven times. Long history of drug and alcohol abuse. Exposure to trauma as a refugee growing up in a war-affected area. Mental health issues, including psychosis, but not suffering from these at time of offence. No prior criminal record. Imprisonment for 22 years with a non-parole period of 16 years. MB v R [2013] NSWCCA 254 - Found guilty of murder after trial. Broken bottle used to stab deceased in neck during the course of a group fight in which the offender was the aggressor. Offender aged 16. Uneventful upbringing. No prior criminal record. Imprisonment for 17 years and 6 months with a non-parole period of 12 years and 6 months. R v Brooks (No 5) [2017] NSWSC 824 - Found guilty of murder and one count of wounding after trial. Victim stabbed in course of a fight. Intention to inflict grievous bodily harm. Prior good character. Aged 19. Imprisonment for 20 years with a non-parole period of 12 years and 6 months. For count of wounding with intent imprisonment for 7 years and 6 months with a non-parole period of 5 years, concurrency of 5 years with murder sentence. R v Morris [2017] NSWSC 637 - Found guilty of murder after trial. Single blow with a hammer during struggle. Intention to inflict grievous bodily harm. Aged 57. History of mental illness and drug use. Sentence of 17 years with a non-parole period of 12 years. R v PO [2017] NSWSC 757 - Found guilty of murder after trial. Offender stabbed deceased in course of a fight. Intention to inflict grievous bodily harm. Offender aged 16. Dysfunctional family background. Sentence of fulltime imprisonment of 15 years with a non-parole period of 9 years. R v Towney (No 2) [2016] NSWSC 97 - Guilty of murder after trial. Deceased stabbed repeatedly when pursued after a fight. Offender aged 20. Of Aboriginal background and raised in an atmosphere of domestic violence and drug and alcohol abuse. Criminal history. Subject to a bond and on bail at time of offending. Sentence of 24 years with a non-parole period of 18 years. R v Scott (No 6) [2015] NSWSC 678 - Found guilty of murder after trial. Single stab wound administered during street fight. Intention to inflict grievous bodily harm. Lengthy criminal history. Dysfunctional upbringing, including longstanding issues with alcohol. Aged 41. Sentence of 24 years with a non-parole period of 18 years. R v Hines (No 3) [2014] NSWSC 1273 - Found guilty of murder after trial. Offender obtained a knife from inside his house after a fight with the deceased. Single stab wound to chest. Intention to inflict grievous bodily harm. Offender Aboriginal with a history of deprivation. Discount of 5 per cent. Aged 29. Sentence of 24 years with a non-parole period of 16 years and 6 months. R v Taha [2012] NSWSC 903 - Found guilty of murder after trial. Fight between deceased and offender during which offender stabbed deceased. Offender aged 20. No criminal history. Intellectually impaired. Intention to inflict grievous bodily harm. Sentence of 22 years with a non-parole period of 16 years. R v Shiels [2011] NSWSC 1177 - Found guilty of murder after trial. Offender murdered father by stabbing him in head during a fight at a party. Criminal record. On conditional liberty. Suffering from schizophrenia at the time of the offence. History of drug and alcohol abuse from an early age. Offending opportunistic with provocation. Intention to kill. Sentence of 20 years with a non-parole period of 13 years. R v Wong [2010] NSWSC 171 - Plea of guilty to murder. Deceased followed from restaurant and stabbed in chest. Associate chased a second victim who was struck with a hammer. Criminal record. On conditional liberty. History of drug use. Sentenced to 21 years with a non-parole period of 15 years and 6 months. R v Houri [2007] NSWSC 615 - Plea of guilty to murder. Intention to inflict grievous bodily harm. Sentenced for three break and enter offences as well. Aged 19. Deceased stabbed four times in course of a robbery. Long history of drug use from an early age and mental health issues. Discount for plea not specified. Offender's custodial experience was onerous due to serious injuries sustained after offence. Sentence of 18 years with a non-parole period of 12 years and 6 months. R v Harvey [2007] NSWSC 871 - Plea of guilty to murder. Intention to inflict grievous bodily harm. Deceased hit on head with piece of wood during a fight after drinking session. Offender aged 19. History of drug use and mental illness. A discount of 15 per cent for plea of guilty. Sentence of 16 years with a non-parole period of 10 years. R v Dehaybi; R v JD [2005] NSWSC 128 - Guilty of murder after trial. Offender aged 22. Intention to inflict grievous bodily harm. Deceased stabbed in course of a planned robbery. At conditional liberty. Sentence of 24 years with a non-parole period of 18 years. The sentences of 6 years and 9 years with partial concurrency for armed robbery and malicious wounding.

As the cases referred to by the applicant make clear, matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25]. As Button J observed in Hanania v R [2012] NSWCCA 220 at [33]: "33 … the only way that one can test whether a factor (to which regard or weight has indeed be given) was considered sufficiently is by examining the sentence ultimately imposed."
When one takes into account the legislative guideposts, the objective seriousness of the offence and the applicant's subjective case it has not been demonstrated that a sentence of 20 years and 6 months, with a non-parole period of 15 years, is unreasonable or plainly unjust so as to satisfy the requirements for a ground of appeal based upon manifest excess. Moreover, when one has regard to the cases referred to by the applicant with only a couple of exceptions (particularly where the offender was aged 16) the sentences imposed are within a relatively narrow range within which the sentence imposed in this case comfortably fits. I am of the opinion that the sentence imposed by his Honour lies within the appropriate range for an offence of this kind.
This ground of appeal has not been made out.
The orders which I propose are: 1. Leave to appeal against sentence be granted. 2. The appeal be dismissed.
WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Hoeben CJ at CL. Those reasons enable me to go directly to the main points in issue. I have concluded that the sentencing judge's description of the offender's background drawn from the report of Dr Gilligan was in some respects erroneous. Nonetheless, having regard to the seriousness of the offence no lesser sentence than that imposed would be appropriate.
Ms Bashir SC, who appeared with Ms Khalilizadeh for the applicant, submitted that the applicant's childhood experiences of having been exposed to early childhood domestic violence and abuse and having suffered cancer amounted to significant deprivation that should be taken into account as a mitigating factor, irrespective of whether or not any causal link could be identified between that background and the offending. She submitted that there was nothing in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 that required demonstration of any such causal link.
Bugmy does not provide a clear answer as to whether such a causal link must be established before circumstances of social disadvantage or deprivation can be considered as a mitigating factor. There the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said (referring to R v Fernando (1992) 76 A Crim R 58 at 62-63) (at [40]): "[40] … 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." (Emphasis added.)
This language is inconsistent with its always being the case that a background of serious social deprivation will be a factor in mitigation of sentence. The focus rather is on whether such a background lessens the moral culpability of the offender. Clearly it could do so if there is a causal link between the background of social deprivation and the offending. But the High Court did not say that that was the only circumstance in which the background of profound social deprivation could be relevant.
The error identified by the High Court in Bugmy was the conclusion of the Court of Criminal Appeal that the extent to which social deprivation in a person's youth and background can be taken into account must diminish with the passage of time, particularly when the passage of time has included substantial offending (at [25]). The plurality noted (at [42]) that on appeal to the High Court the Director of Public Prosecutions acknowledged that the effects of profound deprivation did not diminish over time and submitted that they were to be given full weight in the determination of the appropriate sentence in every case (at [42]). The plurality continued: "[43] The director's submission should be accepted. 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."
The finding in [44] that the effects of profound childhood deprivation do not diminish with the passage of time and repeat offending, was a finding of fact. That fact was not in issue at the hearing in the High Court because of the concession made by the Director of Public Prosecutions. Being a conclusion of fact it is not a binding precedent, although doubtless is entitled to considerable weight (Teubner v Humble (1963) 108 CLR 491 at 503 per Windeyer J; [1963] HCA 11; Bus v Sydney County Council (1989) 167 CLR 78 at 89; [1989] HCA 29). The plurality's statement that it is right in every sentencing decision to give "full weight" to an offender's deprived background must be applied. The question left open is what is meant by "full weight" and whether a deprived background is a matter of any weight by way of mitigation if there is no causal link to the offending.
In Bugmy the High Court neither endorsed Mr Bugmy's submission (at 581) that no causal connection between the offender's aboriginality and the commission of the offence was needed, nor the submission of the Crown (at 579) that for systemic factors establishing profound social deprivation to diminish the moral blameworthiness of a particular offence, they must be causally linked. The plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said that if an offender seeks to rely on his or her background of deprivation in mitigation of sentence, he or she needs to point to material tending to establish that background (at [41]), but did not say that if such background of deprivation is established it will (as distinct from may) be a mitigating factor. Nor did the plurality say that if such a background of deprivation is established it will only be a mitigating factor if a causal link between the background of deprivation and the offence is established. Gageler J said (at [56]) that "The weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case a matter for individual assessment."
The plurality's reference to the decision in R v Engert (1995) 84 A Crim R 67 is consistent with their Honours' also declining to lay down a prescriptive rule to govern the exercise of the sentencing discretion. In Engert Gleeson CJ said (at 68): "[W]hat 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."
In Engert the offender's mental illness was not shown to be causative of his offending, but it was not on that account necessarily excluded as a mitigating factor. Allen J, with whom Sully J agreed, said (at 72) that to sentence an offender with a mental disability unrelated to the commission of a crime giving full weight to general deterrence might have no impact at all upon others and that human sympathy would say "Well you would not expect him to get the same sentence as someone else" (at 72). His Honour went on to say "In that respect there is no difference at all between mental disability and other personal characteristics or personal conditions which would attract sympathy." The same is true of a background of serious social deprivation.
Establishing a connection between a background of social deprivation or profound social deprivation and the offending is likely to reduce the offender's moral culpability. In some cases that causal link may be inferred (R v Millwood [2012] NSWCCA 2 at [69]).
On the other hand if a causal link between the offending and the background of deprivation is established, as the High Court pointed out in Bugmy and as Gleeson CJ said in Engert, that may give additional weight to a conflicting purpose of punishment such as the need for protection of the community.
I agree with Hoeben CJ at CL that the applicant's exposure to the domestic violence committed on his mother and possibly on him [1] has been shown not to have been causally connected to his offending. The applicant reported to Dr Gilligan that he adjusted to most aspects of his childhood development without problems. He got along well with his fellow students. He was never involved in fights. He did not report any expulsions or suspensions. He was never diagnosed with a learning disorder or attention deficit disorder or other conduct problems. He was a good student. He was sociable and had a lot of friends and was never involved in substance abuse, criminal activity or juvenile delinquency.
It does not follow that the applicant's exposure to the domestic violence suffered at least by his mother is irrelevant. But it does not lessen his moral culpability.
I would infer that there was a link between the applicant's childhood cancer and his offending. He had Hodgkins lymphoma when he was about 12 that was treated with chemotherapy. He had a relapse at 16 that resulted in the removal of a lymph node. He reported that the relapse caused him to become depressed and anxious and he started to drink more and took "chronic" (sic) cannabis to cope. (This was presumably a reference to a cannabis known as Kronic, a trade name for a type of synthetic cannabis.) Dr Gilligan was of the opinion that the relapse of his cancer at the age of 16 was a significant source of stress and that he took up substance abuse to cope with that distress and depression he experienced following his relapse (at [33]). She said that his substance abuse increased further in the context of his relationship with a girl known as Rachel when he was about 17. Their pattern of using alcohol and taking synthetic cannabis progressed to their doing so every couple of days. This pattern occurred for a year prior to the events of the offence. The applicant reported that he started using drugs and alcohol "a lot more" when he was with Rachel. Dr Gilligan said that the applicant reported symptoms of dissociation that were consistent with heavy alcohol and cannabis use and that his description was consistent with depersonalisation, a phenomenon associated with dissociative experience. I infer that the applicant's response to the relapse of his cancer when he was 16 was a cause, although not the sole cause, or even the principal cause, of his increasing use of alcohol and synthetic cannabis in the two years before the offending.
In my view the primary judge erred in his description of the applicant's subjective circumstances. In my view the evidence did not support the primary judge's finding that the applicant's life up to the time of the offence was one shared by countless other young men growing up in the Australian suburbs. It was not right to say that there was "nothing to suggest that he had some sort of long standing dependence upon … alcohol or prohibited drugs." Dr Gilligan's unchallenged opinion was that from around the time he was 16 the applicant "took up substance abuse to cope with the distress and depression he experienced following his relapse". This suggests a two-year dependence (not amounting to an addiction) on alcohol and synthetic cannabis, which was a prohibited drug. (I agree with the primary judge and with Hoeben CJ at CL that the evidence does not suggest that the recurrence of the cancer caused the applicant to become addicted to alcohol or to synthetic cannabis.)
In any event, as Hoeben CJ at CL observes (at [44]) in R v Henry it was held that drug addiction is a circumstance relevant to the sentencing exercise but is not of itself a mitigating factor (per Spigelman CJ at [174]-[178], [193], per Wood CJ at CL at [259], [273]-[274]; per Newman J at [278], per Hulme J at [331], per Simpson J at [345]). As Wood CJ at CL and Simpson J said in R v Henry, it does not follow that it is inappropriate to take into account the circumstances that gave rise to the drug addiction.
The self-induced intoxication of the applicant at the time of the offence is not to be taken into account as a mitigating factor (Crimes (Sentencing Procedure) Act 1999, s 21A(5AA)). This is not a case of addiction where it might be said the intoxication was not self-induced (cp. Kelly v R [2016] NSWCCA 246 at [50]).
Although I do not accept that it is only where an offender's background of social deprivation can explain the offender's recourse to violence such that his or her moral culpability is reduced that that background is relevant to the exercise of the sentencing discretion, and although I consider that the primary judge did not adequately describe the applicant's background, I do not consider that giving full weight to those circumstances should result in any lesser sentence than that imposed. This was a crime of the utmost seriousness. The victim, whilst restrained by his seatbelt and unable to protect himself, was stabbed repeatedly with great violence. The applicant's intention was to kill.
I do not think that the cases to which counsel for the applicant referred suggest that the sentence imposed in the present case was manifestly excessive or inconsistent with sentencing practice for similar offences. In most of the cases to which reference was made the offender intended not to kill but to cause grievous bodily harm. In the present case the applicant intended to kill his victim. In R v Cotterill [2012] NSWSC 89, Zaro v The Queen [2009] NSWCCA 219, R v Shiels [2011] NSWSC 1177 and R v Towney (No 2) [2016] NSWSC 97; where there was an intention to kill, the offenders had stronger subjective cases. Thus in R v Cotterill there was a 15 per cent discount for the plea of guilty and the offender was raised in a highly dysfunctional family. In Zaro v The Queen the offender had been exposed to trauma as a refugee and had mental health issues. In R v Shiels the offender suffered from schizophrenia at the time of the offence and had a history of drug and alcohol abuse from an early age. In R v Towney (No 2) the offender was raised in an atmosphere of domestic violence and drug and alcohol abuse. In my view, the objective seriousness of the offence, and consideration of the cases to which the applicant referred indicates that the sentence imposed was well within an accepted range. It was not manifestly excessive.
Although I have rejected the ground of appeal that the sentence was manifestly excessive, I have accepted the applicant's submission that the primary judge erred in his description of the applicant's subjective circumstances. That was a material error in the sense that it may have affected the primary judge's sentencing decision (Baxter v The Queen [2007] NSWCCA 237; (2007) A Crim R 284 at [60]). It becomes necessary to re-exercise the sentencing discretion (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]).
It is unnecessary to repeat the seriousness of the offending or the applicant's subjective circumstances. In her Honour's reasons for judgment, Fullerton J has summarised the evidence given by the applicant and by others before this Court that are relevant to the exercise of the resentencing discretion. The primary judge said that the applicant's plea of guilty to murder, although it came very late, should attract a discount of 10 per cent for its utilitarian value (at [34]). Fullerton J agrees with this assessment (at [140]). The discount applied by the primary judge was in fact slightly more than 10 per cent (at [69]).
The primary judge did not give reasons for deciding that there were special circumstances for fixing the balance of the term of the sentence at more than one-third of the non-parole period. The applicant's prior good character, the conditions of his imprisonment and his prospects for rehabilitation indicated by his remorse are special circumstances that in my view warrant the fixing of a parole period that exceeds the standard. The maximum penalty of life imprisonment without the possibility of parole and the standard non-parole period of 20 years are significant factors or guideposts. Notwithstanding the applicant's youth, his prior good character, lack of criminal antecedents, the subjective circumstances appearing in the report of Dr Gilligan, and the further evidence given on appeal referred to in the reasons for judgment of Fullerton J, I consider that having regard to the seriousness of the offending no lesser sentence than that imposed by the primary judge was warranted.
For these reasons I agree with Hoeben CJ at CL that leave to appeal against sentence should be granted, but the appeal should be dismissed.
FULLERTON J: I have had the advantage of reading the judgments of Hoeben CJ at CL and White JA.
I agree with White JA that the sentencing judge's approach to, and assessment of, the applicant's subjective circumstances discloses error. However, in contrast to his Honour's view that no lesser sentence is warranted in law, I would impose a lesser sentence than that imposed by the sentencing judge.
In my view, the errors in the sentencing approach identified by White JA are not limited to the description of the applicant's life in the years prior to his offending as "unremarkable, and one shared by countless other young men growing up in the Australian suburbs", or that there was "nothing to suggest that [the applicant] had some sort of longstanding dependence upon … alcohol or prohibited drugs". It was also inapposite for the sentencing judge to describe the applicant's mother's relationship with a previous partner as having "its distressing aspects", when the uncontested evidence led on sentence was that the applicant's mother had been in volatile relationship with her partner for nine years when the applicant was a child living in the family home. This man not only drank alcohol to excess but frequently assaulted the applicant's mother in the applicant's presence. The applicant described the severity of the assaults in graphic terms when he told Dr Gilligan that the man "nearly killed" his mother three or four times.
As White JA has found, a finding with which I respectfully agree, the sentencing judge's description of an unremarkable childhood and adolescence was contradicted by the uncontested evidence of his treatment with chemotherapy for Hodgkin lymphoma at age 12 and his relapse at age 16 which required surgical intervention. For my part, I am also unable to see how the applicant's exposure to sustained, and at times extreme violence inflicted on his mother in the family home over a period of nine years could be fairly be described as "unremarkable", even less a normal incident of suburban life.
For the sentencing judge to then disregard what the evidence revealed about the applicant's exposure to family violence as having no impact on him because it was not shown to have caused any psychological damage was an error for two interrelated reasons.
First, the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented. Recognition of these effects and their potential for lasting harm has found expression and application in a range of academic and forensic disciplines. In curial contexts, where the safety and welfare of a child is the court's primary concern, in particular where placement outside the family home is under consideration, the need to give full weight to the harm associated with family and domestic violence and the direct and indirect impact of that harm on a child is obvious. The potential impact of exposure to family and domestic violence is no less obvious when the subjective circumstances of an offender are assessed for sentencing purposes, irrespective of the age of the offender. The decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 is authority for that approach. Other decisions of this Court exemplify it (see Daniels v R [2016] NSWCCA 35; Crowley v R [2017] NSWCCA 99; Linden v R [2017] NSWCCA 321).
In these cases exposure to family violence was recognised as one of the systemic factors which evidenced a level of social deprivation with the potential to sound in mitigation of sentence. As White JA noted at [77], the plurality in Bugmy did not say that deprivation will only be a mitigating factor lessening the moral culpability of the offender if it is causally linked to the offending but, rather, to adopt the approach of Gageler J at [56], the effects of social deprivation and its weight in the sentencing exercise is a matter for individual assessment.
Second, the error in the sentencing judge's approach to the evidence of family violence resonates in his Honour's finding that the applicant's life as a young child was not "marred" by the abuse of alcohol by those around him since, at least by inference, neither was it marred by his exposure to violence inflicted upon his mother when her partner was drunk. The evidence is that for nine years of his 19 years, the applicant was exposed to that stark reality, irrespective of whether it caused him clinically discernible psychological damage.
While the weight of the applicant's life experience in a violent household with a drunk man in the overall assessment of his subjective circumstances might not ultimately be significant in the sentencing result, for the reasons outlined above, it was an error for the sentencing judge to discount it as irrelevant because there was no evidence of it being causally related to his offending.
I also agree with White JA that in making no reference to Dr Gilligan's report that the diagnosis of cancer at age 12 had a "profound effect" on the applicant; that his relapse at age 16 was a source of depression, trauma and anxiety associated with the fear of his death; and that those stressors, and the applicant's attempts to cope with them, were coincident with an increase in his consumption of alcohol and use of cannabis, the sentencing judge failed to make an informed assessment of the potential impact of this body of evidence in the assessment of the applicant's subjective circumstances.
Notably, as Dr Gilligan reported: [18] [The applicant] reported he was 17 when he met Rachel and told me he has been with her up until the current time. He said he started using drugs and alcohol "a lot more" with Rachel. [The applicant] said Rachel contributed to the increase in substances. He said in the early phase of the relationship there were a few fights around mutual suspiciousness, trust and jealousy, however, these were resolved and he believes the relationship to be much more secure now. … [32] It appears that his early episode of cancer had a profound effect on him and the relapse of his cancer at the age of 16 appears to have been traumatic for him. The prospect not only having to go through chemotherapy again but also having to consider his death appears to be a significant stressor from him during this time. [33] It appears that from around this time [the applicant] took up substance abuse to cope with the distress and depression he experienced following his relapse. His substance use increased further in the context of a relationship around the age of 17-18. Despite this [the applicant] continued to perform well academically and was able to achieve sufficient marks to gain entry into his chosen field of study, Journalism. [The applicant] reports no history of violence, criminal or other antisocial behaviour.
I agree with White JA that Dr Gilligan did not express the opinion that the applicant was addicted to drugs and/or alcohol at the time of the offending. What he did report, however, was that the applicant had developed a pattern of sustained substance abuse, a concept which I consider is commensurate with what is commonly understood in the sentencing context as a form of drug and/or alcohol dependence. I also note that the applicant reported to Dr Gilligan that he believed that his girlfriend contributed to his increased use of drugs and alcohol. That said, in the passage extracted above Dr Gilligan did draw a causal link between the applicant's substance abuse and his attempts to cope with the depression, anxiety and trauma associated with a recurrence of cancer at age 16 and the understandable fears that must have surfaced at that time. The fact that this experience was not the sole, or even the principal cause of his substance abuse does not render it irrelevant for sentencing purposes, although, again, it may have only marginal weight as part of the intuitive synthesis engaged by the sentencing discretion. The error is in disregarding it altogether.
Given the prohibition in s 21A(5AA) of the Crimes (Sentencing) Procedure Act 1999 (NSW), it was not suggested before the sentencing judge or on appeal that the applicant's self-induced intoxication on the day of the killing operated in mitigation of sentence. Neither was it suggested that the applicant's description to Dr Gilligan of being aware of using the knife to stab the deceased whilst not feeling "in control of his actions" (a description which in Dr Gilligan's opinion was consistent with "depersonalisation, a phenomenon associated with dissociative experience" and consistent with heavy alcohol and drug use) was a factor which, of itself, mitigated the objective seriousness of the offending.
In my view, however, the applicant's accelerated use of alcohol, coupled with his use of a potent form of cannabis over the two years leading to the commission of the offence, initially, as Dr Gilligan determined, as a means of coping with a life-threatening medical condition before becoming entrenched through episodic overuse and abuse with his girlfriend, was capable of providing some insight into the circumstances in which a young man, without any criminal record, formed the intention to kill a person with whom he had been socialising earlier in the evening, before carrying through with his intentions minutes later. I do not regard that approach to the evidence of the applicant's drug and alcohol use or abuse as contrary to settled sentencing principle.
The fact that the applicant was not said to be "addicted" to drugs or alcohol in a clinically diagnostic sense (cf Dr Gilligan's use of the term "substance abuse" in [33] of his report extracted above) does not discount the significance of his sustained and increasingly heavy use of drugs and alcohol over a two year period before the offending. That evidence, taken as a whole, was capable of providing some insight into what was, on any view of the objective facts, a wholly unprecedented and seemingly impulsive act of extreme violence by a young man with no criminal record and no history of violent behaviour of any kind.
I do not regard the approach taken by senior counsel for the applicant on the appeal as an attempt to remodel or reformulate the case advanced on his behalf by other counsel contrary to Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[81]. I regard it as inexplicable that counsel who appeared on sentence did not bring to the sentencing judge's attention the salient passages of Dr Gilligan's report or, for that matter, refer to the report at all. The very circumstances surrounding the commission of the offence called for an enquiry, at the very least, into what led the applicant to regularly abuse drugs and alcohol given that it was common ground that he was heavily intoxicated at the time of the stabbing by a combination of drugs and alcohol to the extent of being in a "dissociative state". The failure on the part of the applicant's counsel to refer the sentencing judge to those passages of Dr Gilligan's report that address that issue or, for that matter, to adduce evidence supportive of Dr Gilligan's findings from either the applicant or his mother, has resulted in the sentencing process miscarrying.
In any event, I have concluded that the error the subject of the first ground of appeal is constituted by the sentencing judge misidentifying and then understating the interrelationship of a number of factors revealed by the evidence to have had an adverse impact upon the applicant in his formative years or the potential to do so. In my view, those factors, in combination, were relevant to the question whether the applicant's moral culpability for the murder of the deceased was reduced. Neither the applicant's counsel nor the sentencing judge took an informed approach to that question.
Although the sentencing judge's discretion essentially miscarried because of his approach to the assessment of the applicant's subjective circumstances, the sentencing discretion must be re-exercised rather than an adjustment made to the sentence to take account of the error (see Lehn v R [2016] NSWCCA 255; (2016) 93 NSWLR 205 at [60] applying Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]). It is only after that exercise has been undertaken that the question arises as to whether any other sentence than that imposed by the sentencing judge is warranted at law.