Newman v R

HOEBEN CJ at CL:

The applicant pleaded guilty to and was sentenced for the following offences:

Two further offences of perverting the course of justice were taken into account on a Form 1, which attached to the damage property by fire offence (the Form 1 offences).

The applicant was sentenced to an aggregate sentence of imprisonment for 6 years and 9 months, with a non-parole period of 3 years and 9 months to date from 29 March 2019. The applicant will be eligible for release to parole on 28 December 2022.

In summary, the applicant broke into a maintenance shed at a local high school, in the company of others and stole some tools and other items. He was apprehended by police shortly after. After being released by police, the applicant set fire to the maintenance shed, causing damage to neighbouring buildings. He made two calls to “Crime Stoppers” containing false information. He also told one of the persons involved in the break and enter offence not to tell the police of his involvement in the offence. Some days later, he exchanged messages with another person with regard to arranging a false alibi.

The indicative sentences for each offence were as follows:

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

The Crown tendered the following items in the sentence proceedings:

The applicant gave oral evidence in the proceedings. The applicant also tendered a number of documents including:

The sentencing judge relied upon the Agreed Facts tendered in the proceedings.

With respect to count 1, the sentencing judge found that the applicant, on 6 September 2018, had a conversation with three others (Foster, Hartley and Hubbard) in which they agreed to break into the local high school that evening. While the others were initially reluctant, they eventually agreed with the applicant to engage in the break and enter. Foster obtained bolt cutters and a carjack and the group walked to the high school. Foster used the carjack to break through the fence and the group climbed through to the maintenance shed. The group forced entry into the shed and placed a number of items into a wheelbarrow, including a drill, a sander, some petrol, spanners and screwdrivers. The applicant also took a fuel drum and a crow-bar. The group wheeled the items to the fence, took them out of the wheelbarrow and carried them to Foster’s residence, leaving the wheelbarrow behind. The applicant was apprehended by police later that evening when trying to enter the golf course next to the high school.

The sentencing judge found that the offence was “relatively unsophisticated”, that the offender was the “prime mover” in the offence and that the value of the property was “of some worth”. The sentencing judge found that the applicant stole property in the context of not having any income. His Honour found that the offending fell below the mid-range of objective seriousness but not at the lowest end of that range.

With respect to count 2, the sentencing judge found that the applicant, upon his release from custody, went to Foster’s residence and encouraged him to set a fire at the high school to remove their fingerprints. Foster refused. The applicant then took some petrol (including the stolen petrol) and walked to the high school, gaining access through the same hole in the fence as before. The applicant started a fire in the maintenance shed by using the petrol. By the time firefighters attended, several other buildings in the high school were also damaged by fire, as well as equipment and tools. The estimated financial cost of the fire was approximately $1 million.

The sentencing judge found that lighting the fire was not a spontaneous act. His Honour found that the damage was substantial in accordance with s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). The factors taken into account by his Honour in assessing the offence was that it was the applicant’s idea, it was committed to cover up a crime that was serious, it was not spontaneous and the damage was substantial. The sentencing judge also found that the conduct was made serious by virtue of it involving a school which fell “into the category of a limited public resource”.

With respect to count 3, the applicant contacted “Crime Stoppers” and provided false information regarding the fire, to the effect that he had observed three other (fictitious) persons at the site of the fire. While the sentencing judge found that offences of this nature required deterrence, this was a “simple example” of such an offence. His Honour assessed this offence at below mid-range in seriousness.

The next two offences in time were the Form 1 offences, attached to the damage property by the fire offence. The first Form 1 offence involved further contact with “Crime Stoppers” to provide some detail of the version given in count 3. The sentencing judge assessed this as being an “elaboration of the dishonest narrative” given in count 3. The second Form 1 offence involved the applicant speaking to Foster and asking him not to tell the police that he was involved (Foster having spoken to police twice). The sentencing judge found that both Form 1 offences would result in an increase to the sentence applicable for count 2.

With respect to count 4, the applicant spoke to and exchanged messages with a person in relation to an agreement to provide a false alibi to police. The applicant told that person to tell police that they were together (at the time when the fire offence was committed). That person agreed and told the applicant, amongst other things, that he would “get the story”. The sentencing judge assessed the offending as being below the mid-range, and that it was a serious matter even if the other person “is an enthusiastic participant in such a scheme”.

The applicant was aged 22 at the time of the offences and 24 at the time of sentence. The sentencing judge referred to the applicant’s criminal history, noting that he was on conditional liberty (an ICO imposed subsequent to the break and enter) when count 4 and the second offence on the Form 1 occurred.

The sentencing judge referred to the contents of the SAR which outlined his accommodation, status and employment history, as well as his education.

The sentencing judge noted that the SAR reported that the applicant played a minor role and that he had taken a variety of illicit drugs on the day of the offences. The sentencing judge also noted what was set out in the report about his “attitude” and “social influences” which were at odds with the agreed facts. The sentencing judge found that “the applicant’s preparedness to tell untruths to the SAR writer lead me to approach any expression of remorse with circumspection”.

With respect to the applicant’s mental health, the sentencing judge referred to the psychological report tendered on his behalf but rejected the applicant’s submission that his moral culpability was reduced as a result of his ADHD. The sentencing judge found that the contents of the psychological report did not justify a finding that a mental disorder played a role in the offending. As a result, the sentencing judge found that the applicant was a “suitable vehicle for general deterrence”.

The sentencing judge found that the applicant had “overstated the extent of his affectation by drugs and alcohol”. This was because he was sufficiently aware of what he had done to then commit the offences following upon the break and enter. The sentencing judge was not prepared to “find positively” that the applicant had good prospects of rehabilitation “as opposed to prospects which justify a finding of special circumstances” and that it could not be said that the applicant was someone who was unlikely to re-offend.

The sentencing judge accepted that the applicant had witnessed violence while he was in custody but not of such a level that it would constitute hardship which was out of the ordinary. The sentencing judge took into account the “state of anxiety” caused by the COVID-19 pandemic in circumstances where the applicant worked as a sweeper in his wing of the gaol.

The sentencing judge applied a 25 per cent discount to the indicative sentences imposed because of the applicant’s early pleas of guilty.

The applicant’s evidence consisted primarily of the report from the psychologist and oral evidence given by him in the sentence proceedings. The applicant’s childhood experience and background was almost exclusively derived from the psychological report. The applicant noted that no objection had been taken to the tender of the report and its author was not cross-examined. The applicant submitted that no challenge was made to the accuracy of its contents.

The applicant submitted that there was ample evidence in the psychologist’s report to establish disadvantage and trauma in his upbringing.

The applicant summarised the evidence insofar as it related to his childhood until the age of 18 as follows:

There was further evidence from the applicant concerning his subjective circumstances after the age of 18 which was summarised as follows:

The applicant submitted that “the psychological report included an expert opinion with respect to the effects of his background upon him and its link to his behaviour as an adult”. The applicant submitted that the psychologist had established a link between his offending and the sexual assaults committed upon him as follows:

The applicant submitted that the psychologist opined that the use of alcohol and drugs may have increased his impulsivity and further impaired his already compromised decision making capabilities. This was because the presence of ADHD would make him particularly sensitive to the effect of substances (Report at [79]).

The applicant submitted that the psychologist had found that his possible symptoms of ADHD may have “... impeded his ability to inhibit impulsive and dominant behavioural responses in order to select more appropriate behaviour that was consistent with completing his personal goals. The applicant submitted that this might become apparent during situations that required complex problem solving such as when he became concerned about the possibility of being caught for robbery” (Report at [84]).

[By way of comment, it should be noted that these opinions were expressed by the psychologist in terms of possibility, using the word “may” rather than as probabilities. Examples of this mode of expression are underlined above in the applicant’s submissions. It was an issue specifically raised by the sentencing judge in his exchanges with the applicant’s counsel.]

The applicant was critical of the conclusions reached by the sentencing judge and in particular, his Honour’s unwillingness to embrace the proposition that the Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy v The Queen) principles applied to him in this case.

The applicant submitted:

The applicant submitted that apart from that summation, there was no other reference by the sentencing judge to how his background should be taken into account other than to say that it “falls short” of profound deprivation.

The applicant submitted that the sentencing judge’s finding that he had a “less than ideal start in life but one which in my opinion falls short of amounting to profound deprivation” was in all the circumstances incompatible with the unchallenged and detailed evidence concerning his background. The applicant submitted that the sentencing judge erred in this assessment and in not applying the principles in Bugmy v The Queen. The applicant submitted that this was because the evidence had established a background of profound deprivation that should have been taken into account in mitigation.

The respondent relied upon the following findings by the sentencing judge. These findings, the respondent submitted, were well open to him. The specific findings relied upon were:

The respondent relied upon the findings by the sentencing judge in respect of the psychologist’s report. Those findings were:

The respondent submitted that it was significant that the ADHD and ODD had not only been identified while the applicant was at school, but had been treated (apparently successfully) while he was at school.

The respondent submitted that the sentencing judge took into account the following:

The history relied upon by the respondent continued:

It is in that context that the sentencing judge made the findings specifically challenged in this appeal as follows:

Before dealing with the specific matter raised in the Ground of Appeal, it is useful to set out what the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said in Bugmy v The Queen. As a start point, the circumstances of the appellant in the case were important:

It was against that background that the plurality said:

Those statements of principle should also be read with the decision in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 which was handed down at the same time as Bugmy v The Queen and raised similar issues. There, the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) said:

In Dungay v R [2020] NSWCCA 209 (Dungay v R) N Adams J, with the concurrence of Bell P and Davies J, reviewed the development of the case law in this Court following Bugmy v The Queen. Her Honour observed in particular that where there has been careful planning involved in an offence, such as the cultivation of drugs, or drug supply, the offender’s moral culpability may not be reduced. However, if the offender’s upbringing had not been deficient or had not predisposed him to impulsive wrongdoing in the circumstances of the particular case, moral culpability may well be reduced. In such circumstances, N Adams J concluded:

As her Honour further observed by reference to the purposes of sentencing in s 3A of the Sentencing Act that if an offender’s moral culpability is reduced and there is less need for general deterrence, nonetheless there may be a greater need in that case to protect the community: Dungay v R at [140]-[141].

As already noted, an important consideration in this case was that much of the expressions of opinion by the psychologist used terminology which involved the word “may”. The consequences of expressing an opinion in that way are set out in the following exchange between the sentencing judge and counsel for the applicant:

It is clear from that exchange that the evidence of Ms Hubner rose no higher than the existence of the possibility that the applicant was suffering from a mental disease, rather than that proposition being more likely than not. As the sentencing judge pointed out, mere possibility does not reach the standard of more probable than not.

As set out in the applicant’s submissions in this Court, there was a relatively lengthy exchange between the sentencing judge and the applicant’s counsel in which the sentencing judge expressed the view that the evidence did not establish a “profound deprivation” in the sense spoken of in Bugmy v The Queen and other authorities. The sentencing judge was clearly seized of the importance of the issue and understood the evidence that was before him. As a result, the sentencing judge made a finding which was well open to him, namely that the applicant’s background was not one which warranted a reduction in moral culpability in all the circumstances (Kliendienst v R [2020] NSWCCA 98 at [60] (Kliendienst v R).

In Kliendienst v R the applicant had frequently witnessed and experienced his father’s domestic violence which caused him to fear for his safety and develop a trauma response and other psychological issues that were highly relevant to his violent offending. Similarly, in Ingrey v R [2016] NSWCCA 31 the applicant had been exposed to crime and antisocial attitudes amongst his wider family and peers to the point that his capacity to learn from experience and mature was compromised. There was evidence that Mr Ingrey had been in and out of institutions in some form since he was aged 10 and had never been employed.

In contrast, the applicant in this case did not grow up in an environment surrounded by “extreme violence and alcohol abuse”. There was no suggestion that he had been normalised to violence by his upbringing by his grandparents. There was a reference by the psychologist to the applicant’s father being violent towards his mother before their separation. However, the report stated that they separated when the applicant was aged two. Although the applicant’s mother, thereafter, was involved in several violent relationships, there is no evidence that the applicant was exposed to violence from any of those relationships. Rather the overwhelming evidence was to the effect that he was raised by his maternal grandparents and they were the ones who had the day to day care of him resulting ultimately in them obtaining custody. Not only did his grandparents offer him a relatively stable home environment but the relationship between the applicant and his grandfather was very close.

There was no evidence of the applicant receiving any treatment for mental illness at the time of the offending. There was no diagnosis of an actual mental illness as distinct from the possibility of a mental illness made at that time. As he was entitled to do, the sentencing judge rejected any causal link between a mental condition and the commission of the offending. As was open to him, his Honour concluded that the applicant took drugs as a way of attempting to escape reality in the context of his unemployment, being responsible for young children and concerns about his grandfather’s ill health. There is a considerable difference between the attempts made over a considerable period of time by the applicant to avoid the consequences of his offending and the violence involved in the offending in Bugmy v The Queen. Unlike the facts of Bugmy v The Queen, the applicant appears to have had little difficulty in attending school and TAFE.

It follows from the above that the applicant has not made out his ground of appeal.

The orders which I propose are:

N ADAMS J: I have had the opportunity of reading the judgment of the Chief Judge in draft. I adopt the summary of the background to this appeal, the submissions of the parties and the extracts from the decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”): at [1]-[45] above. I agree with the orders proposed by his Honour for the following reasons.

The question that the High Court considered in Bugmy was whether the effects of profound childhood deprivation are still relevant as a factor on sentence after an effluxion of time. As the High Court observed at [42] (footnote omitted):

As I observed in Dungay v R [2020] NSWCCA 209 (“Dungay”) at [138], it is now settled that the effects of “profound childhood deprivation” are to be given “full weight” in every sentencing decision. After referring to a number of decisions of this Court considering Bugmy, I concluded the following in Dungay at [153]:

The principles derived from the case law I reviewed in Dungay address the question of how a childhood of profound childhood deprivation (the expression used by the High Court in Bugmy at [44]) is to be given “full weight in every sentencing decision”. It seems to me that the question raised in the present application is slightly different. As the extracts from the transcript of the proceedings on sentence and the Remarks on Sentence extracted by Hoeben CJ at CL make clear, the sentencing judge was not ultimately satisfied that the applicant’s childhood was one of “profound childhood deprivation”.

The challenge made in the sole ground of appeal in this matter is that “his Honour erred in his consideration of the applicant’s disadvantaged background”. This ground relies on the following finding (in the portion of the Remarks on Sentence extracted above at [42]):

The applicant’s written submissions relied on the “ample” evidence of deprivation as summarised above at [27] and challenged the assessment of the sentencing judge that it fell short of that description.

A finding as to whether or not an offender had a childhood of “profound deprivation” is a question of fact. This Court has long taken the approach that it will not review findings of fact made by the sentencing judge unless they were “not open” on the facts or unreasonable.

In AB v R [2014] NSWCCA 339 Simpson J (as her Honour then was) with whom Meagher JA and Wilson J agreed, traced the early jurisprudence on this question and then stated the following at [52]-[55]:

As her Honour concluded at [57]:

The approach in R v O’Donoghue (1988) 34 A Crim R 397 has been questioned. In both Clarke v R [2015] NSWCCA 232 and more recently in Hordern v R [2019] NSWCCA 138, Basten JA and Hamill J have queried whether such a test is too high given the nature of the appeal. As I observed in Gibson v Regina [2019] NSWCCA 221 (“Gibson”) at [61]:

It is not necessary for me to consider whether the test in R v O’Donoghue is correct in order to dispose of the sole ground of appeal in this matter. I took the same approach in Gibson. In this particular matter, whether the appropriate test is mistaking the facts or whether it is that the factual finding was “not open” to the sentencing judge the result is the same.

The sentencing judge considered all of the matters relevant to the applicant’s childhood put before him. There can be no suggestion that they were overlooked; his Honour specifically referred to them in his remarks extracted above at [40]. It was after having regard to all that material his Honour made the finding that he was not satisfied that the applicant had suffered a childhood of “profound childhood deprivation”. The question under this ground is whether it was open for his Honour to do so.

In the present case, the sentencing judge had regard, inter alia, to the fact that the applicant lived with his grandparents with whom he “shared positive relationships” and who gave him a stable home environment. Although it would have been open to the sentencing judge to make such a finding, his Honour did not. No error is disclosed in the fact that he did not.

Even when there is no finding of “profound” childhood deprivation, an offender’s subjective case is always relevant by way of mitigation. His Honour was required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: see McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26].

I am not satisfied that the sentencing judge failed to have regard to the applicant’s childhood as part of his subjective case. He set it out in some detail. At the conclusion of this summary his Honour stated that he was not satisfied that the applicant’s moral culpability should be reduced on account of his ADHD and/or his borderline antisocial traits. Before turning to consider the question of remorse, the sentencing judge concluded his summary of the applicant’s subjective case by stating: “[t]he offender’s background is however taken into account on general principles”.

His Honour, clearly, had regard to the applicant’s subjective case. Given the seriousness of the offending when compared with the sentence imposed, I am satisfied it was taken into account as part of the applicant’s subjective case.

This sole ground of appeal asserts error in the sentencing judge’s “consideration of the applicant’s disadvantaged background”. No challenge is made to the fact that the sentencing judge did not find that the applicant’s moral culpability was reduced because of his mental health issues, including his ADHD. On that basis I do not propose to say anything on that issue.

HIDDEN AJ: The issue in this application was whether it was open to the sentencing judge to have approached the evidence of the applicant’s background in the way he did. For the reasons expressed by Hoeben CJ at CL and N Adams J, I am satisfied that it was open to his Honour to have concluded that that background was not one of profound childhood deprivation such as to bear upon his moral culpability for the offences. I agree with N Adams J that his Honour does appear to have taken it into account appropriately as part of the applicant’s subjective case.

I agree with the orders proposed by Hoeben CJ at CL.