Donovan v R

1. [1]

   DAVIES J: I agree with Sweeney J.

2. [2]

   WRIGHT J: I have had the advantage of reading the judgment of Sweeney J in draft and I agree with the orders proposed. Relying on the information and background provided by her Honour, I wish to add the following reasons for agreeing with the proposed orders.

3. [3]

   Where offenders have benefited from aspects of their childhoods which were stable and supportive but they were also repeatedly exposed to alcohol and drug abuse, violence or other criminal conduct by their extended family, the application of the principles concerning sentencing offenders from deprived backgrounds is not without complexity. In some of these cases, the offenders’ circumstances may not fall within the worst cases of childhood deprivation that are frequently seen in the courts. Nonetheless the exposure to alcohol and drug abuse, violence or other criminal conduct may have the effect of normalising such behaviour for the offenders in question. If offenders grow up with such behaviour being normalised and they engage in such conduct themselves, their moral culpability in that regard may be reduced.

4. [4]

   In the present case, the “Bugmy Justice Report” prepared by Ms Farrell and Ms Stanley in respect of the applicant which was before the sentencing judge included the following:

5. [5]

   After submitting that in his case the principles in Bugmy v The Queen were enlivened, the applicant’s written submissions continued:

6. [6]

   On that basis, it was in effect submitted in par 28 of his written submissions that the applicant’s moral culpability should be reduced.

7. [7]

   The sentencing judge apparently accepted the material in the Bugmy Justice Report concerning the applicant. Nonetheless, his Honour held:

8. [8]

   It is difficult to reconcile the statement in the Bugmy report that the applicant did not feel unsafe because the exposure to alcohol and drug abuse and violence had normalised such conduct with the sentencing judge’s finding that the applicant felt “unsafe” in those circumstances. Furthermore, it is correct that his Honour did not expressly state whether it was accepted that the normalisation of alcohol and drug abuse and violence reduced the applicant’s moral culpability.

9. [9]

   The single ground of appeal relied on by the applicant was, however, that the sentencing judge erred “in finding that the principles relevant to sentencing arising from a background of deprivation did not apply to the applicant”.

10. [10]

    His Honour’s remarks on sentence are to be considered in the context that they were delivered ex tempore shortly after the close of oral submissions in a District Court list that included another sentence and an all grounds appeal. In those circumstances, it is understandable that the remarks may not deal with each submission made on the applicant’s behalf in the express terms in which the submission was made and that there may be unintentional slips in summarising the evidence.

11. [11]

    Notwithstanding the difficulties identified above, his Honour’s remarks on sentence, viewed fairly and in context, did indicate sufficiently that the considerations raised in relation to the normalisation of drug abuse were taken into account in the aggregate sentence imposed. The sentencing judge qualified his comments relating to circumstances which made the principles arising from a background of deprivation inapplicable by saying:

12. [12]

    There was, thus, no unqualified finding that the principles relating to sentencing arising from a background of deprivation were not applicable. Furthermore, the reference to the “mix of subjective factors” is to be seen in the context as including consideration of moral culpability to the extent that it was relevant as a subjective factor in the present case. In addition, when it is said that what the applicant witnessed from his uncles and aunts would be taken into account, it is clear that this refers to the matter being taken into account in the applicant’s favour. Accordingly, his Honour’s remarks are to be understood as involving an acceptance that the normalisation of drug use and domestic violence was a factor which reduced the applicant’s sentence and, in that way, the issue of moral culpability in relation to the drug-related offending for which he was to be sentenced was effectively taken into account. The normalisation of drug use and domestic violence would not, however, naturally reduce his moral culpability in relation to the serious firearms offending.

13. [13]

    I am confirmed in my view that the sentencing judge did adequately take into account the applicant’s reduced moral culpability given the normalisation of drug-related offending as part of his subjective circumstances by a consideration of the aggregate sentence imposed and the non-parole period, which represented only 50% of the aggregate sentence, the offending as a whole, the maximum penalties, the offences on the Form 1 and other relevant sentencing considerations and principles.

14. [14]

    SWEENEY J: Graham Donovan, the applicant, seeks leave to appeal against the aggregate sentence of imprisonment imposed upon him by Hanley SC DCJ at the Parramatta District Court on 23 October 2023 on the sole ground that:

15. [15]

    His Honour sentenced the applicant on the same day as the sentence hearing. The aggregate sentence imposed was 6 years imprisonment, with a non-parole period of 3 years, commencing on 13 July 2022. The non-parole period will expire on 12 July 2025. The applicant was sentenced for four offences to which he had pleaded guilty in the Local Court. The offences were:

16. [16]

    The facts of the offending were, in brief, as follows. Police had conducted surveillance of the applicant’s home and saw people obtaining prohibited drugs there. On 10 May 2022 police went to search the applicant’s home. He threw the two firearms in musical instrument cases over a fence into a neighbour’s yard. The shortened 12-gauge single barrel shotgun had one ammunition round chambered inside and was found to be in working order. The lever-action repeating rifle had eight ammunition rounds chambered inside and was found to be functioning. There were nine rounds of ammunition in the guitar case which held that firearm. The applicant has never been the holder of a firearms licence or permit in New South Wales.

17. [17]

    In the applicant’s premises police found a total of 142.66 grams of methylamphetamine in six plastic bags, some small quantities of other drugs, $7690 in Australian currency and a repeating air gun, in working order, capable of propelling a plastic projectile.

18. [18]

    His Honour assessed the offence of possessing a shortened shotgun without authority as in the mid-range of objective seriousness, taking into account that the firearm was loaded, functional and not kept safely, thus creating a high risk to the safety of the public, its intended use for a criminal purpose and the attempt to conceal it by throwing it into a neighbouring yard.

19. [19]

    His Honour assessed the possession of the rifle as in the mid-range of objective seriousness, taking into account the nature of the firearm, that it was functional, loaded and not kept safely.

20. [20]

    In assessing the drug supply offence as below the mid-range of objective seriousness, his Honour took into account the type of drug, its impact on the community, the weight of the drug, that it was packaged to be sold at street level, the supplying was relatively unsophisticated, and the offender was a street level dealer supporting his use of the drug.

21. [21]

    In assessing the offence of dealing with the proceeds of crime as “towards the lower end of objective seriousness” his Honour took into account the amount of money relative to the offence benchmark of $100,000 and that the likely source of the money was the supply of drugs.

22. [22]

    The applicant was on parole at the time of those offences, for an offence of aggravated break and enter in company. His parole was revoked from the day of his arrest, being 10 May 2022.

23. [23]

    He had a prior criminal record which commenced in 2005, when he was aged 24, with an assault occasioning actual bodily harm. His record had continued and included violence, domestic violence, theft, aggravated breaking and entering, and driving and drug possession offences.

The applicant’s background

1. [24]

   The applicant’s subjective background was presented to his Honour in the form of two reports, one by Anica Spatz, psychologist, dated 12 October 2023 and a Bugmy Justice Report by Jodi Farrell, Project Lead, Bugmy Justice Project, Deadly Connections, and Carly Stanley, Chief Executive Officer, Deadly Connections. The applicant gave some evidence in the sentence proceedings, in the course of which he said that he had told the report writers the truth and that everything in the reports was true and correct.

2. [25]

   Ms Spatz’s report contained the following. She interviewed the applicant by video link on 14 September 2023. She assessed him as having competent literacy skills and a strong vocabulary. She concluded that his cognitive functioning is of at least average ability.

3. [26]

   She said Mr Donovan was then a 43 year old Indigenous man, born in Blacktown in 1980. He grew up as an only child until his mother remarried. His father was absent during his childhood, with barely any connection to him. His father died by suicide when Mr Donovan was 19 years old. His father’s death had little impact on him because of the lack of a substantial relationship.

4. [27]

   His grandmother played a significant role in his upbringing. She supported Mr Donovan’s mother, who had to attend to work and other responsibilities. The loss of his grandmother (in 1997 when he was 17) was more profound than that of his absent father. Ms Spatz said that Mr Donovan reported that while the family faced occasional financial struggles, they always had food on the table, in part due to support provided by the extended family. Mr Donovan’s mother did not suffer from mental health issues. She occasionally indulged in alcohol and did not use drugs.

5. [28]

   Mr Donovan enjoyed his primary education, demonstrated good attendance and maintained an average academic performance. At high school he did not face any bullying, behavioural problems or disciplinary issues. He had a football scholarship for years 11 and 12.

6. [29]

   After the loss of his grandmother he lost interest in school, began using drugs and alcohol, and stopped attending school. His adult work history has been interrupted by periods in custody.

7. [30]

   The passing of his grandmother in 1997 led to a depressive bereavement reaction that persisted until around 2005. During that time he felt isolated and shut himself off from others. Instead of seeking professional or family help he used drugs and alcohol.

8. [31]

   In 2019 he was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) by Justice Health staff in relation to an assault by another inmate while he was in custody in 2017. He was prescribed medication to manage his symptoms. He reported to Ms Spatz that in the month before his interview with her he had improved sleep and his PTSD symptoms were less intense and frequent than initially after the assault. Mr Donovan was assaulted and injured during a home invasion in 2022 which retraumatized him. Ms Spatz said “Despite this he returned to reasonably good mental health, which shows resilience.”

9. [32]

   Ms Spatz said that Mr Donovan first used drugs and alcohol when he suffered mental anguish after losing his grandmother at a young age. He began heavy drinking at age 15. By the time he turned 18 he had developed an alcohol addiction and was binge drinking on weekends. His use of alcohol reduced while his use of illicit drugs increased. He began to use the drug “speed” and then in 2011 methylamphetamine, which became his primary drug of choice, and led him into criminal activities to fund his addiction. He also occasionally used heroin. He eventually switched to buprenorphine as a means to manage his addiction. His drug use led to financial instability and his relationships suffered.

10. [33]

    He described two significant relationships, from one of which he has four children. He has a support network consisting of his mother, and brothers and sisters (from his mother’s remarriage). He identifies with his Aboriginal cultural heritage.

11. [34]

    Mr Donovan told Ms Spatz that he was never homeless and always had somewhere to stay. He plans to live with his mother on his release from custody.

12. [35]

    Ms Spatz assessed Mr Donovan’s PTSD as in remission. She said at the time of the offences he likely had moderate amphetamine use disorder and opioid use disorder.

13. [36]

    In summary, Ms Spatz said that Mr Donovan’s father was largely absent during his upbringing so he developed a strong bond with his grandmother, who was a steady support when he was young. When she passed away, Mr Donovan did not cope and used substances to manage his distress. She said “Furthermore members of Mr Donovan’s family likely dealt with adversities that are unfortunately common in the Indigenous population, including poverty, dislocation, and intergenerational trauma.”

14. [37]

    The Bugmy Justice Report contained the following. Mr Donovan was interviewed face to face for a total of 6 ½ hours on three days in August, September and October 2023, and by phone calls for a total of 3 ½ hours on three days in October 2023. Family members were also interviewed in person and by phone.

15. [38]

    Mr Donovan was his mother’s only child until he was 13 years old. His father was never present in his life; he met him once when he was about 12 years old but felt no connection and never saw him again.

16. [39]

    Mr Donovan described his upbringing as always staying at his grandmother’s place and that “there were lots of people in the house, but I didn’t feel unsafe”. He spent a lot of time in his early childhood with his grandfather, Richard Donovan. His grandfather passed away in 1984 when Mr Donovan was four years old. Mr Donovan said “that’s when Nan took over being the strength for the family”.

17. [40]

    Mr Donovan’s maternal grandmother was his primary caregiver until he was 17 years old.

18. [41]

    Mr Donovan’s maternal grandparents had 10 children, including Mr Donovan’s mother. Mr Donovan’s mother’s sister required treatment for a hearing impairment. The family were moved from Bowraville to government housing in St Marys in 1973 and offered free treatment for the sister’s hearing, although they now realise they were part of assimilation strategies. Mr Donovan’s mother recalled there was domestic violence between her parents when they moved to St Marys.

19. [42]

    Mr Donovan’s grandmother was not a drinker or smoker, but his grandfather Richard drank heavily, as did all of Mr Donovan’s uncles and aunties. They drank at his grandmother’s house, although she did not like drinking at her house.

20. [43]

    Mr Donovan’s grandmother’s home became the central place for the whole family to “party”. This was Mr Donovan’s early exposure to alcohol and drugs. Mr Donovan recalled his Uncle Richard drinking heavily and causing fights and police would attend. He said uncles would fight with each other on the front lawn and also “bash their women”. His grandmother, being the Elder of the family after his grandfather passed away, stood firm and banned them all from drinking inside her house.

21. [44]

    Mr Donovan recalled a frightening incident when he was approximately five years old. His uncles were at “the local pub in St Marys” and had been involved in a physical fight with “bikies”. He recalled his uncles coming home to his grandmother’s house, drunk, and moments later “white fellas did a ‘drive-by’ style shooting at his Nan’s house”. He remembered bullet holes in the walls at his grandmother’s home but no one was hurt.

22. [45]

    Mr Donovan’s Uncle Richard moved to his own place where he had “regular parties of drinking, fighting and dealt ‘yarndi’ (cannabis) to people in the community.” The report writer stated “Seemingly as a young child Graham was regularly exposed to the violence, drinking and drugs that would occur every weekend and even during the week.”

23. [46]

    The report writer stated that Mr Donovan said he enjoyed his early school years and attended kindergarten and primary school. He said “That point in his life was relatively stable for him because Nan always made sure he had everything he needed for social and emotional wellbeing and childhood development. [He] recalls his mum going to work every day as a secretary and all his caregiving came from Nan.”

24. [47]

    Mr Donovan said during his primary school years his grandmother made sure he had clean clothes and shoes for school, that his lunch was packed, that he got to football, cricket and basketball practice and games. He attended the local church with his grandmother.

25. [48]

    When Mr Donovan entered high school he was “still being exposed to increased domestic violence within family amongst the uncles and aunties and watched his family members drinking heavily and using and dealing drugs”. He said this did not make him feel unsafe “because it was very normal from when I was young”.

26. [49]

    During his teenage years he played rugby league seriously, was selected to play in several “cup” fixtures and was offered a football scholarship in year 11. He signed a contract with Penrith Panthers in 1996 but in September 1996 his grandmother passed away. He felt that his uncles and aunties acted disrespectfully towards his grandmother after she passed away, and money and property from her house “went missing”. As a result he felt “lost, disappointed and disconnected” from his family. He said his mother had a toddler and could not support him. He began drinking a lot and had to move to his aunty’s place. He did not feel supported; he felt “lost, unsafe and very angry”.

27. [50]

    The report writer stated that Mr Donovan’s “relationship and connections with his immediate family have positively developed over the years and he is the next emerging male Elder.”

28. [51]

    Mr Donovan’s mother’s health is declining, as is her hearing and mobility. She is on dialysis every day for her kidney health. She is also diabetic and had a triple bypass operation in 2016.

29. [52]

    The report stated that Mr Donovan began using alcohol when he was around 15 years of age. It was normal for him to see his aunties and uncles drinking heavily. He did not experiment with cannabis, although he was regularly exposed to drug taking and drug selling by his Uncle Richard, who was in and out of gaol in relation to drugs. From 2005 to 2010 Mr Donovan used “MDMA” and methylamphetamine. In 2010 he began using “ice”. This was when his relationship with his children’s mother ended.

30. [53]

    Mr Donovan said from 2010 to 2015 he was couch surfing and ultimately homeless but also playing football. He said he began selling drugs as a means to cover the cost of his own drugs.

31. [54]

    In his Remarks on Sentence, Hanley SC DCJ summarised the contents of Ms Spatz’s report and noted the contents of the Bugmy Justice Report, although did not repeat much of its contents, stating they were “consistent with” Ms Spatz’s report.

32. [55]

    In written submissions on sentence the applicant’s then solicitor made the following submissions:

33. [56]

    The Crown’s position on sentence was that while the reports demonstrated a degree of disadvantage and hardship suffered by the applicant in his early years and throughout his life the Court would not be satisfied that his moral culpability was lessened to any material degree, given that the applicant had an overall safe and supportive upbringing, with positive role models and family connections, and connection to his culture and country.

34. [57]

    In oral submissions to Hanley SC DCJ the applicant’s solicitor highlighted that the applicant’s mother had been a very positive influence on his life, that although he grew up in a community in which there was a lot of drug use and violence, he did not come before the courts as a child because he had support from positive family members, he had a very bright future but on the death of his grandmother “his life went awry” and family members did not support him then when he was vulnerable.

35. [58]

    In his Remarks on Sentence, his Honour noted the contents of the reports and said:

36. [59]

    His Honour stated that the need for general deterrence to be emphasised in the sentence because of the nature of the offences was lessened to some extent because of the offender’s underlying mental health issues and drug addiction.

37. [60]

    His Honour said the offender’s criminal history required some emphasis on specific deterrence. He recognised the offender had a strong need for rehabilitation, which would protect the community. However, his behaviour needed to be denounced because of the seriousness of the offences.

The applicant’s submissions

1. [61]

   In his written submissions, counsel for the applicant contended that in making the finding that he was not satisfied that the applicant fell within the considerations identified in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) the sentencing judge failed to take into account a material factor on sentence, and so fell into error.

2. [62]

   Counsel submitted that the fact that the applicant’s mother and grandmother were a positive and stabilising influence on him did not mean that he did not have a background of deprivation. Counsel submitted that living in an environment in which his home was the target of a drive-by shooting, seeing his grandfather and uncles heavily intoxicated and violent, being exposed to property damage and fights at family gatherings, seeing his uncle in and out of gaol for supplying drugs, and seeing drugs and alcohol used by his uncles and aunts was not a “normal” or “advantaged” upbringing, to use the words of Simpson J in R v Millwood [2012] NSWCCA 2. Counsel submitted that the applicant’s descent into drug use, addiction and criminality following the death of his grandmother and the dysfunction and arguments within the family which followed her death were not surprising given his emotional and psychological resources to cope with the loss of his grandmother were diminished by his upbringing and exposure to his dysfunctional male relatives. Counsel submitted that the applicant’s resort to drug and alcohol use to help him cope with the loss of his grandmother was not surprising when such conduct was normalised in his extended family and particularly among his male role models.

3. [63]

   Counsel submitted that the sentencing judge’s limited acknowledgement that the applicant was exposed to violence through his extended family as part of his subjective circumstances did not address the evidence of his deprivation in relation to the assessment of his moral culpability, denunciation, general and specific deterrence, rehabilitation and community protection.

4. [64]

   Counsel submitted that while the applicant’s offences were not impulsive or spontaneous, his background of deprivation still had work to do in his sentence because a person’s exposure to drug use, violence and other criminal behaviour may entrench thought patterns and behaviour and impact on decision making throughout the person’s life. Counsel submitted that the applicants “constant exposure to trauma, from childhood to adulthood, and the constant recourse to drug use by his extended family, including all of his male role models, led him from a young age to attempt to deal with that trauma through the use of illicit drugs”, and that was exacerbated by his mental conditions including PTSD. Counsel submitted that the applicant’s participation in the supply of drugs and his possession of firearms to protect himself and his family from violent incursions were a product of distorted and deviant thinking, which had its origins in his exposure to the conduct of his aunts and uncles during his formative years.

5. [65]

   In oral submissions, counsel submitted that Hanley SC DCJ’s finding that the principles relevant to sentencing an offender with a background of deprivation did not apply to the applicant was not open to him on the evidence because the evidence was “all one way” and unchallenged. Counsel submitted that his Honour paid almost no heed to the extensive Bugmy Justice Report, whose author spent much longer interviewing the applicant and his family than Ms Spatz, the psychologist, did. Counsel submitted that his Honour emphasised the positive aspects of the applicant’s background with his mother and grandmother and almost entirely ignored his exposure to his wider family and their violence, drinking and drug use and supply, which were normalised for the applicant. Counsel submitted that in the absence of his father, the applicant’s male role models, his grandfather and uncles, were all dysfunctional.

6. [66]

   Counsel submitted that the judge applied the wrong test of “profound deprivation” and his Honour did not refer to the applicant’s moral culpability which was affected by the normalisation of violence and drug use and supply for him.

The Crown’s submissions

1. [67]

   The Crown submitted that the sentencing judge considered the applicant’s background in detail and recognised the challenges in the applicant’s background as well as the countervailing positive influences in his life, particularly his mother and grandmother. The Crown submitted that the applicant’s background was taken into account by the sentencing judge and therefore his Honour did not fail to take into account a material factor; rather, his Honour’s finding was supported by the evidence of prosocial as well as antisocial influences on the applicant.

Legal principles

1. [68]

   In Bugmy the majority of the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said at [40] and [43] – [44]:

2. [69]

   Gageler J said at [56]:

3. [70]

   In Hoskins v R [2021] NSWCCA 169 (“Hoskins”) Brereton JA, with whom Basten JA and Beech-Jones J agreed, said at [57]:

4. [71]

   In Dungay v R [2020] NSWCCA 209 N Adams J, with whom Bell P and Davies J agreed, said at [153]:

Consideration

1. [72]

   I am not persuaded that the findings made by Hanley SC DCJ were not open to him on the evidence before him. The evidence was not “all one way”. The sentencing judge gave balanced consideration to the positive and negative aspects of the applicant’s upbringing. His Honour referred to the violence, heavy drinking and drug use and supply the applicant observed among his extended family and took into account in his favour that they provided some explanation for his drug use and offending. His Honour did not ignore that part of the applicant’s upbringing. Rather, in what appears to have been an ex tempore sentencing exercise, his Honour considered and absorbed the evidence about the applicant’s upbringing, its complexity and nuances, and made findings which were open to him.

2. [73]

   I am not persuaded that his Honour applied the wrong test of “profound deprivation”. His Honour used that term when referring to the High Court’s decision in Bugmy in the following way:

3. [74]

   Having made the findings he did about the applicant’s background, his Honour was not bound to find that his moral culpability was thereby reduced. There was no error in his Honour not making such a finding.

4. [75]

   The applicant has not established that the sentencing judge erred as asserted.

Orders

1. [76]

   Therefore I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.