DR v R

1. [1]

   the sentencing judge had erred by failing to find that the applicant’s moral culpability was reduced by reason of his deprived upbringing and social circumstances;

2. [2]

   the sentence imposed offended the totality principle and was so heavy as to be “crushing”

3. [3]

   the sentence imposed was manifestly excessive.

   1. (1)

      The two particular relevant principles which emerged from the authorities were that:

   2. (2)

      There was no evidence in the present case of a causal link between the applicant’s disadvantaged upbringing and the offending. The absence of such evidence explained counsel’s qualification of his original submission that the applicant’s moral culpability was reduced: at [39].

   3. (3)

      The conclusion of the sentencing judge was that in the absence of evidence establishing such a causal link, there was no basis for a finding that the applicant’s moral culpability was reduced. That conclusion did not reflect error. It was one which was clearly open, and was consistent with authority: at [39].

   4. (4)

      Having reached that conclusion, the sentencing judge made express reference to the necessity to recognise the applicant’s disadvantaged upbringing and gave it full weight in the determination of an appropriate sentence: at [40].

   5. (5)

      Issues of concurrency and accumulation are matters for the exercise of discretion by a sentencing judge: at [56].

   6. (6)

      The sentence was not crushing. The sentencing judge had specifically referred to all relevant considerations and there was nothing to suggest that his discretion had miscarried: at [57].

   7. (7)

      Whilst the applicant’s subjective case was important, it remains the case that there must be reasonable proportionality between a sentence imposed and the gravity of the offending. An offender’s subjective case, however powerful, cannot be permitted to result in the imposition of a sentence which fails to reflect that gravity: at [59].

   8. (8)

      The sentence was not manifestly excessive and the applicant’s reliance on sentences imposed in other cases simply highlighted the obvious, namely that the facts and circumstances of cases will necessarily differ, both objectively and subjectively. Such differences will, more often than not, render comparative exercises of limited utility: at [82].

   9. (9)

      Whether profound childhood deprivation is taken into account by way of a reduction in moral culpability, or more broadly as part of an offender’s subjective case, is largely a matter for the evaluative assessment of the sentencing judge. A ground of appeal asserting a failure to find reduced moral culpability risks being nothing more than a contention about whether the sentencing judge ticked the correct box, when it is apparent that the offender’s profound childhood deprivation was taken into account in any event: at [4]-[5].

4. [1]

   WARD P: I agree with Bellew J.

5. [2]

   R A HULME J: I agree with Bellew J.

6. [3]

   I wish to add the following general observation about grounds of appeal such as that in Ground 1, that the sentencing judge failed to find that the offender’s moral culpability was reduced by reason of his deprived upbringing and social circumstances.

7. [4]

   Whether profound childhood deprivation, in whatever form it occurred, is taken into account by way of reduction of moral culpability, or more broadly as part of an offender’s subjective case is largely a matter for the evaluative assessment of the sentencing judge. Identifying whether there is a “causal link” is not always straightforward as there are often subtleties and nuances. The existence of such a link might be arguable but reasonable minds may differ. In the end, the effect upon the actual sentence imposed may not be significant.

8. [5]

   A ground of appeal asserting a failure to find reduced moral culpability risks being nothing more than a contention about whether the judge ticked the correct box when it is apparent that the offender’s profound childhood deprivation was taken into account in any event.

9. [6]

   BELLEW J: DR (the applicant) pleaded guilty in the District Court to the following offences:

10. [7]

    In respect of count 3, the applicant asked the sentencing judge to take into account a further offence of having sexual intercourse with victim 1 between 1 April 2005 and 1 August 2006. [1] In respect of count 6, the applicant asked sentencing judge take into account a further offence of having aggravated sexual intercourse with victim 1 between 1 February 2009 and 28 February 2009. [2]

11. [8]

    The applicable maximum penalties were as follows:

12. [9]

    The sentencing judge gave the following indicative sentences:

13. [10]

    The sentencing judge imposed an aggregate sentence of 20 years and 10 months imprisonment. He declined to make a finding of special circumstances and imposed a non-parole period of 15 years and 6 months imprisonment.

14. [11]

    The applicant now seeks leave to appeal against that aggregate sentence on the grounds considered below.

THE FACTS OF THE OFFENDING

1. [12]

   The sentencing judge found the facts of the offending to be as follows: [3]

THE APPLICANT’S SUBJECTIVE CASE

1. [13]

   The applicant did not give evidence before the sentencing judge. Tendered in his case on sentence was a report of Dr Simonelli, Consultant Forensic Psychiatrist, [4] which set out the following background.

2. [14]

   The applicant was born on 15 September 1976. At the time of sentence he was 44 years of age. He has a total of 7 children from three previous relationships, ranging in age from 3 years to 24 years.

3. [15]

   The applicant grew up in Blayney, NSW. His parents separated when he was about 3 years of age and whilst he initially lived with his mother, he told Dr Simonelli that he was “put up as uncontrollable” at the age of 9 because he was using drugs and truanting from school. He was subsequently placed in the “Minda” boys’ home around the age of 10. He told Dr Simonelli he was assaulted at the home, and that this had “made him angry”.

4. [16]

   Upon leaving the home, the applicant lived with his father and stepmother from the age of 11. In this regard, Dr Simonelli reported: [5]

5. [17]

   The history provided to Dr Simonelli by the applicant also included the following: [6]

6. [18]

   In the terms of the applicant’s account of his offending, Dr Simonelli reported as follows: [7]

7. [19]

   Dr Simonelli diagnosed the applicant as suffering from: [9]

8. [20]

   When asked to express a view as to the effects of these diagnoses on the applicant’s personality and behaviour (both socially and criminally) Dr Simonelli said: [10]

9. [21]

   Dr Simonelli also said: [11]

10. [22]

    In terms of the applicant’s prognosis, Dr Simonelli said: [12]

The sentence proceedings

1. [23]

   In written submissions provided to the sentencing judge, counsel for the applicant (who was not counsel for the applicant before this Court) put (inter alia) the following: [13]

2. [24]

   In the course of oral submissions, the following exchange took place between counsel and the sentencing judge: [14]

The reasons of the sentencing judge

1. [25]

   In addressing the applicant’s subjective case, the sentencing judge made lengthy references to the report of Dr Simonelli. [15] He also addressed, in considerable detail, the applicant’s criminal history [16] and he comprehensively summarised the submissions of the parties. [17] Having addressed the objective seriousness of the offending and the applicable aggravating factors, [18] his Honour said the following: [19]

Submissions of the applicant

1. [26]

   Counsel submitted that the evidence of Dr Simonelli established that the applicant had been the subject of sustained abuse and disadvantage over a lengthy period of time, and that his upbringing had lacked stability and had been characterised by physical violence, sexual abuse and substance abuse. Counsel submitted that all of these matters had impacted adversely on the applicant's decision-making capacity, and served to reduce his moral culpability for the offending, relative to others who had not been subject to such disadvantage. Counsel submitted that in these circumstances, the sentencing judge had erred by failing to properly consider the applicant's background of significant disadvantage and dysfunction, and by failing to conclude that such background reduced the applicant’s moral culpability for the offending.

2. [27]

   Counsel further submitted that the sentencing judge’s observation [20] that it had “not been submitted that Bugmy and Fernando principles have any relevant application” was an additional discrete error. As to the exchange which took place between counsel and the sentencing judge in the course of oral submissions, it was submitted that it was not clear what had been meant by the use of the terms “classic Bugmy” and “Bugmy-esque”.

3. [28]

   It was submitted that it was evident from the written submissions provided to the sentencing judge that the application of such principles had been squarely raised in support of a conclusion that the applicant’s moral culpability was reduced.

4. [29]

   Questions of reduced moral culpability aside, counsel further submitted that profound deprivation of the kind suffered by the applicant in his childhood was a material consideration which was to be given full weight in the sentencing process, irrespective of whether there was any nexus between that deprivation and the offending. It was submitted that it was evident from his Honour’s reasons that he had erred in failing to give full weight to this factor when considering the applicant’s subjective case.

5. [30]

   In advancing these submissions, counsel acknowledged that the sentencing judge made references to the evidence of the applicant's upbringing. However, it was submitted that notwithstanding such references, the sentencing judge had given no proper consideration to the impact of that upbringing on the determination of an appropriate sentence. This, it was submitted, was indicated by the fact that despite the evidence of Dr Simonelli, the sentencing judge had not specifically found that the applicant’s upbringing was, in fact, a significantly disadvantaged one.

Submissions of the Crown

1. [31]

   The Crown submitted that the sentencing judge had addressed the applicant’s background in considerable detail, in the course of which he had taken into account the opinions of Dr Simonelli, to the point where he had described that background as “appalling”.

2. [32]

   The Crown submitted that it had been open to the sentencing judge to decline to find any causal link between the applicant's disadvantaged background and his offending which operated to reduce his moral culpability. However, the Crown submitted that it was clear that his Honour had not ignored the applicant’s background, and had given it full weight as a mitigating factor.

3. [33]

   The Crown further submitted that the finding of the sentencing judge that Bugmy principles had no relevant application was to be construed having regard to the exchange which had taken place with counsel in oral submissions. The Crown submitted that it was clear that in the course of that exchange, counsel had qualified the submission that he had previously made in writing and that, properly understood, the sentencing judge’s finding amounted to no more than a finding that the evidence did not support a conclusion that the applicant’s moral culpability should be reduced in light of his disadvantaged background. In this regard the Crown emphasised that having reached that conclusion, his Honour had not found that the applicant’s background was irrelevant, but had gone on to give it full weight in his assessment of the applicant’s subjective case. It was also submitted that the exchange between his Honour and counsel made it clear that the sentencing judge had specifically engaged with the issue of the applicant’s disadvantaged upbringing, and its generally mitigatory effect.

CONSIDERATION

1. [34]

   In Bugmy v The Queen the plurality said the following: [21]

2. [35]

   The italicised portion of this part of the Court’s judgment supports the proposition that in order to find that an offender’s disadvantaged upbringing operates to reduce his or her moral culpability, there must be some established nexus between that upbringing and the relevant offending. That approach has been adopted on numerous occasions by this Court. [22]

3. [36]

   That is not to say, however, that the absence of such a nexus renders an offender’s disadvantaged upbringing irrelevant in determining an appropriate sentence. On the contrary, it remains a relevant consideration which is to be given full weight in the sentencing process in the manner explained by N Adams J in Dungay v R [23] :

4. [37]

   There are two particular principles which emerge from these authorities. The first, is that the existence of a causal link between an offender’s disadvantaged background and the offending will inevitably support a finding that such offender’s moral culpability is reduced. The second, is that even where there is no such causal link, and thus no reduction in moral culpability, an offender’s disadvantaged background remains a factor which must be given full weight in the process of instinctive synthesis which is applied in determining an appropriate sentence. It is by reference to these principles that the present ground of appeal must be considered and determined.

5. [38]

   It is evident from the structure of his report [24] that Dr Simonelli was not asked to, and thus did not, express any opinion as to the existence of a causal nexus between the applicant’s deprived upbringing and his offending. Consistent with that position, counsel for the applicant, in oral submissions made to the sentencing judge, qualified the submission he had made in writing that the applicant’s moral culpability was reduced on account of his disadvantaged upbringing. His revised position was expressed in terms that the applicant’s case was “not classic Bugmy” but “certainly Bugmy-esque”. Whilst those terms were somewhat infelicitous, it is apparent that counsel was submitting to the sentencing judge that whilst the applicant’s disadvantaged upbringing was not a factor which reduced his moral culpability, it remained a relevant matter to be taken into account as part of his subjective case. Given the absence of evidence establishing a causal nexus between the applicant’s upbringing and the offending, that was a completely understandable position for counsel to have ultimately taken.

6. [39]

   When his Honour’s conclusion that Bugmy principles had no relevant application is viewed in this light, it does not, in my view, bespeak error. Given the evidence, and the manner in which the sentence proceedings had been conducted, it is apparent that his Honour’s conclusion was that in the absence of evidence of the necessary nexus between the applicant’s upbringing and the offending, there was no basis for a finding that his moral culpability was reduced. That conclusion was certainly open, and was consistent with the authorities to which I have referred above.

7. [40]

   Importantly however, having reached that conclusion, his Honour did not treat the applicant’s disadvantaged upbringing as irrelevant. On the contrary, he made express reference to the necessity to recognise it. [25] Given the detail in which his Honour had summarised the evidence in the earlier passages of his reasons, the only available conclusion is that, in accordance with the authorities to which I have referred, I am satisfied that his Honour gave the evidence of the applicant’s upbringing full weight in the process of instinctive synthesis which he applied in determining an appropriate sentence.

8. [41]

   For all of these reasons, this ground is not made out.

The reasons of the sentencing judge

1. [42]

   In the course of his reasons, the sentencing judge made numerous references to the necessity to apply principles of totality, and the need to avoid the imposition of a sentence which might be regarded as crushing.

2. [43]

   To begin with, in addressing the submissions of counsel for the applicant, his Honour said: [26]

3. [44]

   His Honour then turned to the submissions of the Crown: [27]

4. [45]

   His Honour then said: [28]

5. [46]

   When imposing sentence, his Honour said: [29]

Submissions of the applicant

1. [47]

   Counsel for the applicant acknowledged that questions of concurrency and accumulation are matters which are determined by a sentencing judge in the exercise of a broad discretion. However, it was submitted that a paramount consideration in the exercise of that discretion is the necessity to ensure that it is exercised in a way which does not result in the imposition of a sentence which is so heavy as to be crushing. Bearing these matters in mind, counsel submitted that the sentence imposed exceeded that which was necessary to reflect the total criminality involved, and was thus crushing. A number of individual propositions were advanced in support of that submission.

2. [48]

   First, it was submitted that there was nothing in the transcript of the sentence proceedings, or in the reasons of the sentencing judge, which indicated that when considering questions of totality and the commencement date of the sentence, his Honour had taken into account the fact that the applicant had been serving a sentence for other unrelated matters.

3. [49]

   Secondly, it was submitted that the overlapping criminality in the applicant’s offending called for a greater degree of concurrency. It was pointed out, in particular, that:

4. [50]

   It was submitted that, taking these factors into account, the adverse effect of an insufficient degree of concurrency had been compounded by the application of a higher degree of aggregation than was appropriate. It was submitted that the end result was the imposition of a sentence which, in light of the views of Dr Simonelli, ran the risk of thwarting any prospects the applicant might otherwise have had of engaging in meaningful reintegration into society when eventually released.

5. [51]

   Finally, whilst acknowledging that the offending was serious, counsel submitted that it did not reach a level of culpability that justified the sentence which was imposed, bearing in mind that the severity of a sentence compounds over time.

Submissions of the Crown

1. [52]

   The Crown emphasised that the commencement date of a sentence, along with issues of concurrency and accumulation, were all matters for the discretion of the sentencing judge, such that it was incumbent upon the applicant to demonstrate that it had not been open to his Honour to exercise the discretion in the manner in which he did.

2. [53]

   The Crown submitted that it was evident from the reasons of the sentencing judge that his Honour had given close consideration to principles of totality, and to the submissions which had been made on the applicant’s behalf. It was submitted that there had been no error in the application of those principles, particularly having regard to:

3. [54]

   The Crown submitted that the sentencing judge was obviously conscious of the fact that the applicant had been serving an existing sentence of imprisonment. However, it was submitted that the sentencing judge had not been obliged to allow any period of concurrency between that sentence and the sentence that he was required to impose. The Crown further submitted that any assessment of whether the sentence was properly regarded as “crushing” necessarily had to have regard to a number of factors, including:

4. [55]

   It was submitted that in all of these circumstances, the reasons of the sentencing judge, and the sentence he imposed, reflected a conclusion that principles of totality had been properly applied.

CONSIDERATION

1. [56]

   Issues of concurrency and accumulation are, as counsel for the applicant expressly acknowledged, matters for the exercise of discretion by a sentencing judge. Such issues are to be determined, and the discretion exercised, by reference to principles of totality, and by a consideration of whether a sentence for one offence can comprehend and reflect the criminality of the other. [30]

2. [57]

   I am unable to accept the submission that there is nothing to suggest that the sentencing judge took the previous sentences into account when considering questions of totality, and when determining the commencement date of the sentence which he imposed for this offending. His Honour specifically referred to those considerations. [31] Given that the matters for which the applicant had been serving another sentence were entirely unrelated to the present offending, it was open to his Honour to commence the present sentence at the expiration of the non-parole period which had been imposed. There is nothing to suggest that his Honour’s discretion miscarried in that regard.

3. [58]

   Further, the attempted correlation between the sentence his Honour imposed, and the indicative sentences for the most serious offences of which the applicant was convicted, has the clear tendency to reduce the process of sentencing to a mathematical exercise. Such an approach is contrary to principle. [32]

4. [59]

   Finally, whilst the applicant’s subjective case was obviously important, it received full and proper consideration from the sentencing judge. The emphasis which was placed upon that subjective case by counsel for the applicant in this Court overlooked the necessity for there to be reasonable proportionality between a sentence imposed and the gravity of the offending. An offender’s subjective case, however powerful, cannot be permitted to result in the imposition of a sentence which fails to reflect that gravity, [33] which in this case was self-evident.

5. [60]

   For all of these reasons, this ground is not made out.

Submissions of the applicant

1. [61]

   Counsel for the applicant submitted that the manifest excess of the sentence was evident in light of the fact that the sentencing judge had:

2. [62]

   In advancing those submissions, counsel made reference to sentences imposed in other cases of sexual offending, the circumstances of which were said to be comparable and relied upon those sentences in support of the complaint of manifest excess. Counsel also relied on the indicative sentences given by the sentencing judge, acknowledging that such sentences were not themselves amenable to appeal.

Submissions of the Crown

1. [63]

   The Crown emphasised that in order to succeed on this ground, it was incumbent upon the applicant to establish that the sentence was so far outside the range available to the sentencing judge in the proper exercise of his discretion as to be clearly wrong. The Crown also emphasised the limitations placed on the use of so-called “comparable” cases, and submitted that those relied upon by the applicant were of limited assistance. It was submitted that in determining whether the sentence imposed on the applicant was manifestly excessive, little was to be gained by comparing that sentence to those imposed in a small number of other cases which were said to bear some objective or subjective similarities.

2. [64]

   The Crown submitted that the sentence imposed was neither unreasonable nor plainly unjust having regard to the fact that:

3. [65]

   The Crown submitted that it was necessary, in particular, that any sentence reflect the need for general deterrence, and pointed out that although pleas of guilty were eventually entered by the applicant, this had occurred after victim 1 had commenced giving evidence, such that the applicant's entitlement to any utilitarian discount was minimal.

CONSIDERATION

1. [66]

   There is obviously some overlap between the issues raised in this ground, and those raised in ground 2. My reasons for concluding that ground 2 is not made out should be read in conjunction with those that follow.

2. [67]

   The principles which govern a ground of appeal asserting that a sentence is manifestly excessive may be summarised as follows:

3. [68]

   In circumstances where the applicant relied, at least in part, upon sentences imposed in other cases to make out the complaint of manifest excess, it is important to again emphasise that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. There will always be cases where other offenders appear to have been dealt with more leniently or more severely. What must be achieved is consistency in application of relevant principle. [35] For these reasons, the Court must adopt a careful approach when asked to compare a sentence imposed in one case with the sentence imposed in another. [36] The necessity for that careful approach arises, at least in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of the offending, and the subjective circumstances of the offender, between one case and another. [37] As Fullerton J said in GW v R: [38]

4. [69]

   I have made a point of setting out these principles at length, for the simple reason that this case serves as a good example of the limitations placed upon the comparative exercise that the Court was asked to undertake, and which was underpinned by a submission put by counsel for the applicant in the following terms: [39]

5. [70]

   For the reasons that follow, that submission fails to have regard to a series of other distinguishing factors.

6. [71]

   The first case relied upon by counsel for the applicant was R v Gavel [40] in which the offending involved:

7. [72]

   Much of the offending in (i) and (ii) above incorporated the display of pornographic material by the offender to his victims. The offender had asked the sentencing judge, in respect of one of the counts in (ii) to take into account three additional offences of aggravated indecent assault on a child under the age of 16 years, and one offence of inciting a child under the age of 10 years to commit an act of indecency. In relation to the count in (iii) the offender had asked the sentencing judge to take into account two further offences of possessing child abuse material.

8. [73]

   The sentencing judge had sentenced the offender to an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years and 4 months. Following a successful Crown appeal, this Court imposed an aggregate term of 14 years imprisonment with a non-parole period of 9 years and 6 months.

9. [74]

   There are a number of factors which differentiate the circumstances in Gavel from those in the present case.

10. [75]

    To begin with, the period of offending in Gavel was approximately 4 months, as opposed to 10 years in the case of the applicant. Unlike the present case, the offending in Gavel did not involve any threats of violence or reprisals by the offender towards his victim. There was also no direct familial relationship between the offender and the victim in Gavel (the stepmother of the victim being the offender’s wife). In terms of subjective considerations, the offender in Gavel was entitled to a discount of 25% to reflect the utilitarian value of his pleas of guilty. The applicant was given the benefit of a 5% discount, about which no complaint is made. The offender in Gavel, unlike the applicant, had no record of prior convictions. Finally, in resentencing the offender in Gavel this Court made a finding of special circumstances. The sentencing judge declined to make such a finding in the applicant’s case, about which no complaint is made.

11. [76]

    The second case upon which the applicant relied was R v Scavera, [41] in which the offending involved:

12. [77]

    The offending in (ii) and (iii) occurred within in a timeframe of between 30 minutes and 1 hour when the offender was babysitting the victim, a 6 year old boy who had been diagnosed with autism spectrum disorder and who had poor communication skills and a diminished ability to express emotion. Before the sentencing judge, the offender was sentenced to a total effective term of imprisonment of 6 years and 6 months. Following a successful Crown appeal, that sentence was increased by this Court to one of 10 years imprisonment.

13. [78]

    Some of the differences between the objective circumstances of the offending in Scavera and those of the present case will be evident from that short summary. They include the fact that the offending in the present case involved a substantially greater number of offences committed over a period of 10 years as opposed to an isolated period between of 30 minutes and 1 hour. Unlike the applicant’s case, the Court was not asked in Scavera to take into account any additional Form 1 offences. Subjectively, the offender in Scavera was entitled to a discount of 25% to reflect the utilitarian value of his pleas of guilty. He was also the beneficiary of a finding of special circumstances.

14. [79]

    The third case to which the Court was referred was ZA v R. [42] In that case the offender had pleaded guilty to:

15. [80]

    The offender was sentenced to an aggregate term of 26 years imprisonment with a non-parole period of 18 years. This Court dismissed an appeal on (inter alia) the ground that the sentence imposed was manifestly excessive.

16. [81]

    The victim of the offending was the offender’s biological daughter who was between 8 and 9 years at the time. There was evidence of significant grooming and the sexual assaults included penile-anal intercourse and forced fellatio. A number of the assaults were filmed. Objectively, the offending in ZA took place over a period of 18 months (as opposed to 10 years in the present case) and involved only 1 victim (as opposed to 2). Once again, the offender in ZA received the benefit of a discount of 25% to reflect the utilitarian value of his pleas of guilty.

17. [82]

    The above analysis demonstrates that none of the cases relied upon by the applicant support the submission that the sentence imposed was “so far out of range is to indicate error”. The cases do little more than highlight the obvious, namely that there will inevitably be similarities and differences between one case and another, which will, more often than not, render comparative exercises such as this of limited utility.

18. [83]

    I have already set out the objective circumstances of the applicant's offending when addressing ground 2. Both general and personal deterrence were important factors in the sentencing process. Full weight must obviously be given to the applicant's subjective case, particularly as to his deprived background. For the reasons previously stated, I am satisfied that the sentencing judge did so. Moreover, as I have emphasised, an offender’s subjective case must not be allowed to result in a sentence which fails to reflect the gravity of the offending.

19. [84]

    For all of these reasons I am not persuaded that the sentence in manifestly excessive, in the sense of being unreasonable or plainly unjust. It follows that this ground is not made out.

ORDERS

1. [85]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence is granted.

   2. (2)

      The appeal is dismissed.