Prince v R

Court of Criminal Appeal (NSW)|2020-10-02|Before: Hoeben CJ, Beech-Jones J, Campbell J

Solicitors: Legal Aid NSW - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2019/039427 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 6 December 2019 Before: McLennan SC DCJ File Number(s): 2019/039427

Offences and sentence 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 by his Honour Judge McLennan SC (the sentencing judge) on 6 December 2019 in the District Court at Tamworth. The applicant was sentenced for the offence of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW). An offence of demanding property with menaces contrary to s 99(1) of the Crimes Act was taken into account on a Form 1.

Factual background

The facts giving rise to the offence were agreed and tendered by the Crown as part of Exhibit A.
The applicant was known to the victim by sight. At 3:49am on 30 January 2019, a taxi conveyed the applicant to a block of units in Woodward Avenue, Tamworth. The taxi driver observed that the applicant was well affected by drugs. The applicant told the taxi driver that the occupants of a unit were going to pay for the taxi. The applicant then entered the unit block.
The victim was at home with her friend, Mr Reinker, who was asleep on the lounge. The applicant knocked on the door. When the victim opened the door, she recognised the applicant who walked inside the unit and yelled at Mr Reinker "I want that $20. I want that money. I have a cab waiting out there".
The applicant continued to demand money and the victim told him to leave several times. The applicant said to the victim "I have four brothers. They will come here and go through your house. I will stab you. Give me the money". When he said this, the applicant held a sharp implement in his right hand and pointed it towards the victim, repeating that he would stab her. Mr Reinker got off the lounge and he and the victim tried to push the applicant out of the unit. During the struggle, the applicant stabbed the victim's hand with the sharp implement causing an injury.
The applicant also stabbed the victim in the upper right arm while saying "I will stab you. I will stab you." Mr Reinker picked up a wrench and threw it at the applicant, striking him. The applicant picked up the wrench and threw it through a glass window, smashing the window. Mr Reinker continued pushing the applicant from the unit. Eventually the applicant was forced from the unit leaving a shoe behind.
The applicant ran from the unit complex. At approximately 4:05am the taxi driver waved down a police car and told the police that the applicant had not returned to pay the fare. During this conversation, police heard screaming and smashing of glass from inside the unit block. They attended the victim's unit and saw blood drops which led in a trail down the driveway of the premises. Subsequent forensic testing showed that the DNA of the blood matched that of the applicant.
The victim attended Tamworth Hospital, where she was treated for a V-shaped laceration which was 3cm deep and 3cm long to her left hand and a 1cm stab wound to the upper right arm. The superficial radial digital nerve in her left hand was 100 per cent lacerated. She was flown to the John Hunter Hospital where she underwent surgery to repair the lacerated nerve and an artery.
Tendered in the applicant's case were two reports from a psychologist, Mr Andrew Fordyce, dated 7 September 2018 (Exhibit 1) and 29 October 2019 (Exhibit 2). Written submissions on sentence on behalf of the applicant were before the court.
The reasons for sentence were delivered ex tempore, immediately following the sentencing hearing on 6 December 2019.

Findings on Sentence

The sentencing judge made the following findings: 1. the offence was aggravated because it occurred in the very early hours of the morning in the victim's home, where she had a right to enjoy peace and security; 2. the offence was spontaneous and unplanned; 3. the applicant was on conditional liberty, namely parole, at the time of the offences; 4. the offence was aggravated by having been committed for financial gain; 5. the injuries to the victim were not at the lowest end of the range of wounds but were not at the highest end of the range; 6. the threats to stab and the stabbings themselves, would have been terrifying for the victim; 7. the offence was just below the mid-range of objective seriousness; and 8. the matter on the Form 1 would not result in a large increase to the sentence for the principal offence.
The sentencing judge took into account the first report of Mr Fordyce, which was prepared for the purpose of determining the applicant's fitness to plead and stand trial for an earlier offence of aggravated assault with intent to rob. The applicant was sentenced for that offence in the Tamworth District Court on 12 November 2018 to 25 months imprisonment with a non-parole period of 11 months. The applicant was on parole for that offence when he committed the subject offence.
His Honour accepted Mr Fordyce's analysis of the applicant's background, developmental history and functioning as set out in paragraphs [38]-[40] of the report. Those paragraphs were read onto the record.
The paragraphs relevantly provide: "38 According to his account, Mr Prince was exposed to an unstable and problematic developmental environment characterised by drug and alcohol abuse, violence, and physical abuse. Furthermore, he sustained a significant attachment trauma in being separated from his parents at a very early age. Mr Prince was only partially protected by a more stable relationship with his grandmother. As such, he was not provided with the opportunity to develop a stable attachment to a caregiver and was not offered the safety and predictability required for healthy emotional and social development. Given Mr Prince's cognitive deficits and difficulty in sustaining attention, he would have required a much more structured and consistent environment than a child with average cognitive functioning. Mr Prince experienced fear in response to his traumatic experiences and learned that the world is a dangerous place and others cannot be trusted. He experienced difficulty learning from consequences, poor self-regulation and problem solving, which reflects wider instability from his traumatic experiences. Moreover, he had likely developed a tendency to suppress his negative emotions through avoidance and distraction, which could be perceived as a trauma response from an early age that is manifested in various other forms during his later development (such as through drug use, et cetera). 39 Mr Prince's engagement in education was undermined by learning and behavioural issues within the context of his childhood trauma and he was subsequently alienated from stable peers. As a result, Mr Prince maintained social relationships with his negatively influencing cousins, which was enabled by his carer's failure to contain his behaviour. Within this social environment, Mr Prince learned to use drugs as a maladaptive coping strategy and adopted antisocial behavioural patterns and developed antisocial attitudes to justify his lifestyle. 40 In relation to his neuropsychological functioning, Mr Prince evidences global deficits in his intellectual and higher order cognitive functioning. He requires daily assistance from his family in order to maintain his day-to-day affairs and has not entered the workforce. He also continues to demonstrate difficulty in forming social relationships. In sum, Mr Prince is a low functioning individual with high support needs and he meets the criteria for a Mild Intellectual Disability. To date it does not appear that Mr Prince has accessed his disability services. In relation to his psychological functioning, Mr Prince evidences some symptoms of psychosis, anxiety, low mood and emotion regulation issues. He is currently experiencing significant distress and difficulty coping with a custodial environment which is expected given his pronounced vulnerabilities."
The sentencing judge observed that the breach of parole involved not only the applicant's commission of the subject offences but his complete failure to engage with Community Corrections when he was released to parole and complete failure to abide by the conditions of his parole.
In his second report, prepared for these proceedings, Mr Fordyce recorded that the applicant described relapsing into substance abuse immediately after he left custody in September 2018. He was consuming 1g of intravenous methamphetamine, 2-3g of cannabis and 4-5mg of buprenorphine daily, depending on the availability of the drugs. His Honour found that the applicant's drug use commenced in his early teens and was "a continuing feature of his presentation both to psychologists and to the criminal courts" (Sentence judgment 9.1).
The sentencing judge found that the offending was not causally related to the applicant's drug use, although the applicant was intoxicated at the time of the offences. His Honour also found that the applicant's intellectual disability was not causally related to the offending. Nevertheless, his Honour was satisfied that "taking his background into account as a whole, along with his intellectual functioning ... [this offender] is an inappropriate vehicle for general deterrence" (Sentence judgment 9.7).
After referring to the principles in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and R v Engert (1995) 84 A Crim R 67 his Honour stated: "The point is that, from one perspective, the problems that beset Mr Prince, both from his background and from his own innate abilities, might lead to a lessening of the consideration of general deterrence (which is the approach I take in this case, even though there is no obvious causal connection), but at the same time highlights the need for community protection." (Sentence judgment 10.5)
After considering the competing consideration of protection of the community, his Honour referred to the conclusions at [16] of Mr Fordyce's second report to the effect that the applicant: " ... engaged in minimisation and justification for his behaviour in the offence and he demonstrated limited victim empathy, but those factors should be considered within the context of his reduced intellectual capacity and mental illness. He also expressed attitudes that justified the use of violence in such circumstances. Mr Prince evidenced limited insight into his criminal antecedents." (Sentence judgment 10.7)
His Honour found that the applicant's prospects of rehabilitation were not good and he was likely to re-offend. Notwithstanding those findings, his Honour considered that the applicant's youth and his need for intervention provided a basis for a finding of special circumstances.

The Appeal

The following statements of principle were relied upon by the sentencing judge. They came before him as part of the written submissions prepared on behalf of the applicant.
In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 the High Court said: "[40] ...The circumstance than 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. ... [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 ... 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 R v 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."
The following well known quotation from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] was relied upon as setting out the principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental problem:

"177 ...
• where the state of a person's mental health contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999) 46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiarias (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007) (at [28]). • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50-51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]). • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiarias (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]). • It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiarias (at [400]); R v Israil (at [25]); R v JW (at [192]). • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]). Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ (at [23]-[24])."

By reference to those statements of principle, the applicant submitted that the sentencing judge had erred in failing to reduce the length of the sentence by having regard to his moral culpability, which was to be reduced because of his disadvantaged background, in accordance with Bugmy v The Queen.

Consideration

While the sentencing judge did not explicitly refer to Bugmy v The Queen or to the applicant's moral culpability, he did so implicitly. There was no issue in the sentence proceedings that the Bugmy principles were relevant to the sentencing of the applicant. It should also be noted that the statements of principle set out above, both expressly use the term "moral culpability". The concept was clearly in his Honour's mind.
The applicant's written submissions on sentence expressly referred to the applicant's deprived background (at [21]-[24]). Those submissions contended that the applicant's childhood was one of disadvantage. The applicant's written submissions also cited the conclusion in Mr Fordyce's first report at [38], i.e.: "... was exposed to an unstable and problematic developmental environment, characterised by drug and alcohol misuse, violence and physical abuse. Furthermore he sustained a significant attachment trauma, in being separated from his parents at a very early age."
As is clear from the transcript of the sentence proceedings, his Honour raised with the applicant's legal representatives some specific matters arising from her written submissions and in particular, the consequences of an applicant suffering from a mental disorder, even where that problem was not causally related to the offending. This makes it clear that the principles set out in Bugmy v The Queen and in R v Engert were in play and were considered by his Honour.
The transcript of the sentence proceedings identified a problem that may explain why his Honour did not go into more detail when discussing the application of Bugmy v The Queen to the facts of this case. That difficulty involved the presence of the applicant's mother and grandmother in court and whether they had read the reports of Mr Fordyce. The history recorded by Mr Fordyce was quite critical of the conduct of the applicant's mother, and to a lesser extent his grandmother, in contributing to the profound disadvantage which he experienced in his early years. When the problem was pointed out to his Honour, he responded that he would "skate around that" (T6.8). Another reason why his Honour did not go into more detail when setting out his approach to the application of the Bugmy principles and those in the Director of Public Prosecutions (Cth) v De La Rosa is that there was very little issue between the Crown and the defence on those matters. Both legal representatives accepted and did not contest the application of the Bugmy principles.
That his Honour had these principles in mind is clear from his exchange with the Crown in the sentence proceedings in relation to the applicant's prior offending. There, his Honour said: "Obviously, a lot of this has to do with drugs, of course, and a lot of his drug taking has to do with his background, and all of it displays a particular mentality ..." (T9.29)
That his Honour accepted the application of the principles in Bugmy v The Queen and Director of Public Prosecutions (Cth) v De La Rosa to the facts of this case is clear from his acceptance of the facts summarised by Mr Fordyce in his first report at [38]-[40] set out at [18] hereof. His Honour's acceptance of those matters was without qualification.
It follows, therefore, that the sentencing judge took into account the applicant's background, developmental history and intellectual functioning. While his Honour did not refer to all the details of the applicant's background contained in the psychological reports, there were good reasons for not doing so. There was the presence of the applicant's mother and grandmother and in any event, his Honour incorporated the relevant parts of Mr Fordyce's report into his judgment (Sentence judgment 6.9).
It is clear from his Honour's sentencing judgment that he accepted and applied the principle that an offender's background of deprivation may result in a reduction of moral culpability. His Honour accepted and applied the principle that if there is a basis for finding that an offender's moral culpability was reduced, then general deterrence may be of less significance although the need to protect the community may be higher: Dungay v R [2020] NSWCCA 209 at [141]. His Honour accepted and applied the proposition that an offender's mental health can also affect the weight given to general deterrence as is set out in Director of Public Prosecutions (Cth) v De La Rosa and similarly, may give rise to a need to reflect other purposes of sentencing. As his Honour appreciated, the judgment of Gleeson CJ in Engert, to which he referred, was relevant both to the application of the Bugmy principles and to a consideration of the impact of the applicant's mental disability.
It is apparent from his Honour's reasons that the applicant's "background ... as a whole" formed part of the basis for his Honour's finding that the applicant was an inappropriate vehicle for general deterrence (together with his intellectual functioning). Further, his Honour stated that there was a need to balance the lessening of the effect of general deterrence against the need for community protection. His Honour accepted that this resulted from the applicant's background as well as from his intellectual incapacity. In linking the applicant's background difficulties to the effect to be given to general deterrence and community protection, it is apparent that his Honour was applying the Bugmy principles. As a result, what his Honour had really determined was that the applicant's disadvantaged background operated to reduce his moral culpability.
Importantly, although his Honour was obliged to consider the impact of the applicant's background on his moral culpability, he was not required to refer explicitly to the concept of moral culpability in doing so. As stated by McCallum J (with whom Bathurst CJ and Bellew J agreed) in Egan v Regina [2017] NSWCCA 206 at [37]: "... A failure to attach the label "moral culpability" to any specific finding or to give it a precise value in reaching an appropriate sentence does not reveal error..."
Comments to similar effect were made by Hoeben CJ at CL (with whom Campbell J agreed) in Wood v R [2019] NSWCCA 309 where his Honour said: "122 It is not suggested that his Honour did not in fact take his background into account as he said. The criticism is that he should have provided much more detail as to how he was going to treat that evidence and specifically refer to the concept of moral culpability. 123 I am not persuaded that his Honour was required to do any more than he did. It would have been helpful if his Honour had specifically referred to moral culpability and the effect of the applicant's background on that concept, but his Honour was not in error in failing to do so. It is clear from his Honour's treatment of the applicant's background that he was going to take it into account as a matter of mitigation when sentencing the applicant. His Honour in this case was not required to do more."
It follows for the reasons given by his Honour and from what was said in the sentence proceedings, that his Honour weighed and gave careful consideration to the competing factors that arose as a consequence of the application of the Bugmy principles and as a consequence of considering the applicant's mental condition. No error of the kind referred to in the Ground of Appeal occurred. This ground of appeal has not been made out.

Conclusion

Accordingly, the order which I propose is that leave to appeal against sentence be granted but that the appeal be dismissed.
BEECH-JONES J: The background to the application for leave to appeal against sentence and the findings of the sentencing judge are set out in the judgment of Hoeben CJ at CL.
The sole ground of appeal is that the sentencing judge supposedly erred "in failing to make an assessment of the applicant's moral culpability having regard to the deprived background of the applicant".
In his sentencing judgment, the sentencing judge extracted a long passage from a report of a psychologist, Mr Fordyce, which set out in detail the applicant's deprived background. Although the sentencing judge was not satisfied that the applicant's intellectual disability was said to be causally connected to his offending, the sentencing judge expressly stated that "taking his background into account as a whole, along with his intellectual functioning" the applicant was an "inappropriate vehicle for general deterrence". After setting out a passage from R v Engert (1984) A Crim R 67 at 71 per Gleeson CJ, the sentencing judge noted that the applicant's background and intellectual disabilities warranted a lessening of considerations of general deterrence, but also accepted that it highlighted the need for community protection.
The written submissions of the applicant contended that the sentencing judge failed to explain "how it was that the applicant's background as a whole was taken into account in the assessment of the moral culpability of the offender". The written submissions noted that the concept of "moral culpability" is a separate concept to that of objective seriousness. The submissions referred to the passage in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44] ("Bugmy") which noted, inter alia, that "[a]n 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".
Contrary to the applicant's submission, I consider that a fair reading of the sentencing judgment reveals exactly "how" it was that the sentencing judge took into account the applicant's "background as a whole" in his assessment of the moral culpability of the offender. Implicit in his Honour's acceptance that the applicant was an inappropriate vehicle for general deterrence, is that his Honour regarded the moral culpability of the applicant as necessarily reduced.
In the end result, the real complaint of the applicant simply concerns the absence of any express reference to the phrase "moral culpability" in the sentencing judgment. However, in the context of an offender presenting with a deprived background of the kind contemplated in Bugmy, then provided that the various "conflicting purposes of punishment" (Bugmy at [44]) are properly addressed in light of the findings made about that background, it is not necessary for a sentencing judge to expressly use the phrase "moral culpability" (see Egan v Regina [2017] NSWCCA 206 at [37]). Ultimately, it is the application of proper principle, and not the use of appropriate labels, that matters.
I agree with the orders proposed by Hoeben CJ at CL.
CAMPBELL J: I agree with Hoeben CJ at CL.

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