Bidner v R

1. [1]

   HARRISON CJ at CL: Adam Bidner seeks leave to appeal against the sentence imposed on him by her Honour Wilson J in the Supreme Court of New South Wales on 27 June 2023 for the murder of Shane Mears. Mr Bidner pleaded guilty on the second day of his trial which had commenced on 1 March 2023. He was sentenced to a term of imprisonment of 24 years and 8 months with a non-parole period of 18 years. The sentence commenced on 11 March 2022 and expires on 10 November 2046. Mr Bidner will become eligible for release on parole from 10 March 2040.

2. [2]

   The offence of murder carries a maximum penalty of life imprisonment. The offence attracts a standard non-parole period of 20 years.

3. [3]

   Mr Bidner seeks leave to appeal against his sentence on the following grounds:

Background

1. [4]

   Mr Bidner and Mr Mears both lived in the Cessnock area and were known to each other. On 4 April 2019, Mr Bidner had seriously assaulted Thomas Ellem, Mr Mears’ friend. As a result of that incident there was a hostile relationship between Mr Bidner and Mr Mears, including verbal confrontations.

2. [5]

   On 5 July 2020 around 4.30pm, Mr Mears was present at the Waste Management Area at Cessnock with a friend, Jeffrey Winter, foraging for scrap metal. Mr Bidner was in the vicinity of the scrap metal pile that afternoon, also looking for useful scrap.

3. [6]

   Mr Bidner had driven into the compound in a Toyota Landcruiser wagon and parked near the pile. The Landcruiser was fitted with large “mud terrain” Mickey Thompson Baja Claw tyres which had a distinctive tread pattern. The vehicle was also fitted with accessories such as a black steel bull bar and roof racks with a wire metal basket.

4. [7]

   Mr Mears and Mr Winter split up at the scrap metal pile, with one going clockwise around the circular pile and the other one going anti-clockwise. The pile was five metres high and 40 to 50 metres in diameter. Mr Winter quickly lost sight of Mr Mears. As Mr Winter walked around the pile, he saw Mr Bidner in his car, parked to the side of the mound of metal. Mr Winter did not recognise Mr Bidner. Further up Mr Winter saw two men, Jaron Apthorpe and Ryan Apthorpe, standing near a tray back utility. Mr Winter did not recognise these men.

5. [8]

   While Mr Winter was standing near the Apthorpes, he saw Mr Bidner drive his Landcruiser towards the two men at some speed, before stopping the car. Mr Bidner briefly spoke to the Apthorpes, and then drove off at speed. The Apthorpes then got into their own car and drove to another area of the complex.

6. [9]

   Between 4.53pm to 4.55pm, security cameras at the complex captured Mr Bidner’s car speeding erratically away. Mr Bidner’s manner of driving was sufficiently concerning that a staff member at the complex took a photograph of his car as it left.

7. [10]

   Shortly afterwards, Mr Mears was discovered by Mr Winter, who had continued to walk around the circumference of the metal pile. He was lying face down on the ground in a pool of blood. A clear and distinctive tyre tread pattern could be seen marked out in white dust on the back of his shirt. Mr Winter called the emergency operator and attempted to assist Mr Mears. However, he had no pulse or respiration. His death at the scene was confirmed by paramedics.

8. [11]

   The forensic evidence established that Mr Bidner killed Mr Mears by reversing his Landcruiser into and over him. The evidence established that Mr Mears had his back turned to the vehicle at the time of the impact. The tyre scuff mark in the vicinity of his body was consistent with some acceleration. There was no evidence of any braking by Mr Bidner. Mr Bidner then drove out of the complex without rendering aid to Mr Mears or calling for assistance.

9. [12]

   Mr Mears suffered “very significant injuries” that were not survivable. He had been effectively crushed by the weight of the Landcruiser as it went across his back, neck and lower skull. The evidence was that the weight imparted by one rear wheel of the Landcruiser was approximately 500 kilograms, the vehicle itself weighing two tonnes. The cause of death was determined to be blunt force trauma to the head and chest. Mr Mears’ injuries included fractures to his spine, ribs, neck and the base of his skull and a collapsed lung and bleeding on the surface of the brain.

10. [13]

    After leaving the scene, Mr Bidner concealed his Landcruiser in a shed at his father’s property at Lovedale. Over the next three days, he took steps to discard evidence by cleaning the vehicle and removing the distinctive tyres and disposing of them. During that period, he offered his condolences to Mr Mears’ daughter when he saw her at an hotel.

11. [14]

    On 8 July 2020, Mr Bidner was arrested inside his father’s shed whilst he was cleaning the Landcruiser with a rag. His father was cleaning the bull bar at the front of the vehicle.

Remarks on sentence

1. [15]

   Her Honour made the following relevant factual findings on the evidence in the sentence proceedings:

   1. (1)

      She was satisfied that the expert evidence contained in the agreed facts established beyond reasonable doubt that Mr Bidner deliberately drove the Landcruiser into, and on top of, Mr Mears at a time when he was facing away from the Landcruiser, and thus had no opportunity to escape or take evasive action.

   2. (2)

      She found that the offence was an attack on Mr Mears from behind without warning.

   3. (3)

      She was satisfied beyond reasonable doubt that Mr Bidner intended to kill Mr Mears. Her Honour was satisfied that "the evidence points inevitably to the conclusion that, in running him down, [Mr Bidner] intended that Mr Mears should die", having regard to:

   4. (4)

      The crime was spontaneous and opportunistic. It did not involve any planning. Her Honour was not satisfied beyond reasonable doubt that the offence involved even limited planning (contrary to the Crown submission). She found that Mr Bidner saw Mr Mears at the complex coincidentally.

   5. (5)

      Her Honour found that, apart from the deep antagonism that existed between the two men prior to the incident, there was no evidence of any provocation by Mr Mears on the day nor evidence to explain Mr Bidner's motivation for killing him.

2. [16]

   In respect of the objective seriousness of the offence, her Honour:

   1. (1)

      Recognised that all murders are serious, "involv[ing] the violent destruction of a human life".

   2. (2)

      Assessed the objective seriousness of this particular offence of murder as a "most serious crime".

   3. (3)

      While she did not place the offending on a hypothetical range, her Honour outlined the following factors as bearing upon the objective gravity in this case:

3. [17]

   Her Honour found that Mr Bidner's moral culpability was "high" and nothing in his subjective case reduced it.

4. [18]

   Her Honour made the following findings in relation to Mr Bidner's subjective case:

   1. (1)

      He was aged 33 at the time of sentence (30 years old at the time of the murder).

   2. (2)

      He was entitled to a discount of 5% for his late plea of guilty pursuant to section 25D(2)(c) of the Crimes (Sentencing Proceedings) Act 1999.

   3. (3)

      Her Honour was not satisfied that Mr Bidner had established the mitigating factor of remorse pursuant to s 21A(3) of the Act. In this regard, her Honour observed that Mr Bidner's letter of apology focused on his own asserted history of childhood abuse and attributed his offending to his drug habit, but said very little about the crime itself. The letter did not mention Mr Mears by name. Further, her Honour observed that Mr Bidner's letter of apology also had passages that were identical to the letter of apology that he tendered in his other unrelated sentence proceeding.

   4. (4)

      His criminal history included multiple breaches of community-based orders and a history of violence.

   5. (5)

      It increased Mr Bidner's overall criminality that at the time he committed the offence he was subject to three Community Correction Orders.

   6. (6)

      He experienced family disharmony and began using drugs when he was a teenager. Her Honour could not conclude on the balance of probabilities that childhood dysfunction had, through consequential drug use, any causal role to play in the events of 5 July 2020.

   7. (7)

      His drug use played a causal role in the offence, having regard to the evidence that Mr Bidner had used "ice" earlier that day, and inevitably being affected by it, noting that drug use is not a mitigating feature.

   8. (8)

      He had positive but "somewhat guarded" prospects of rehabilitation.

   9. (9)

      Her Honour took into account Mr Bidner's onerous custodial environment by reason of Covid-19.

   10. (10)

       The distress to Mr Bidner's children was taken into account as part of his general subjective case.

5. [19]

   Her Honour made a finding of special circumstances on the basis of totality and accumulation of the sentence on other existing sentences. She considered that there was a need for general deterrence as well as specific deterrence in circumstances where Mr Bidner was subject to conditional liberty at the time of the offence.

6. [20]

   Finally, her Honour considered the sentencing principles referred to in s 3A of the Act.

Ground 1

1. [21]

   Her Honour made findings of fact that are relevant to Grounds 1 and 2 in her remarks on sentence: see R v Bidner (Sentence) [2023] NSWSC 880 at [18] – [30] as follows:

Mr Bidner’s submissions – Ground 1

1. [22]

   The test to be applied to a challenge to factual findings made by a sentencing judge is whether the findings were open on the evidence: R v O’Donoghue (1988) 34 A Crim R 397; Ocek v R [2023] NSWCCA 308 at [116]. In accordance with accepted principle, her Honour must have been satisfied beyond reasonable doubt that the Crown had established that Mr Bidner intended to kill Mr Mears.

2. [23]

   There was no direct evidence of Mr Bidner’s intention at the time that he committed the offence. Rather, in making this finding, her Honour relied upon matters which she drew or inferred from the statement of agreed facts, namely “the deliberation of [Mr Bidner’s] act”, “the high probability that death would result from it” and “the background of deep antagonism that existed between the two men”.

3. [24]

   Mr Neild SC of counsel for Mr Bidner took issue with the notion that the question of whether Mr Bidner intended to kill Mr Mears is reliably informed by the fact that he acted deliberately to run him over. At best, Mr Bidner’s plea is as consistent with an intention to cause no more than serious injury as with an intention to kill. In the present case, that is said particularly to be so as the vehicle that struck Mr Mears was travelling at low speed at the time.

4. [25]

   Mr Neild SC also contended that the existence of a background of antipathy between the two men is equally neutral. Whilst the existence of a history of disharmony was not in issue, it said nothing about what Mr Bidner intended when he ultimately ran over Mr Mears.

5. [26]

   Upon the basis that these matters are in fact neutral, and could not logically support a choice on a binary issue between an intention to kill and some lesser intention, Mr Neild SC argued that her Honour’s finding was supported only by an inference to be drawn from the agreed statement of facts that there was a “high probability that death would result from” what Mr Bidner did.

6. [27]

   The statement of agreed facts was silent on precisely what it was that Mr Bidner did in his vehicle at the time he struck and killed Mr Mears. Mr Neild SC submitted that those facts do not establish beyond reasonable doubt anything more than that Mr Bidner reversed his truck at low speed into Mr Mears and then ran over him. It was submitted that what occurred does not support a finding beyond reasonable doubt, even if it supports a suspicion, that at the time Mr Bidner ran into Mr Mears he intended to do anything more than effect a collision with him in order to inflict grievous bodily harm.

7. [28]

   Mr Neild SC submitted that given that Mr Bidner was driving at low speed, it would not inevitably follow that after first colliding with Mr Mears his vehicle would then drive over him. Even if, contrary to that submission, it could be inferred beyond reasonable doubt that Mr Bidner intended not only to collide with Mr Mears but also then to drive over him, there is no evidence that Mr Bidner was sufficiently aware of the relative positions of his wheel and Mr Mears’ body that an intention to bring about his death could be inferred beyond reasonable doubt. That is said to be particularly so given that the vehicle was being driven in reverse.

8. [29]

   Finally, Mr Neild SC submitted that the present case may be distinguished from a situation where an offender drove over a prone victim. He argued that in such circumstances it might more easily be inferred, in the knowledge that the vehicle would pass over the body of the victim, that the offender intended to kill. In this case, her Honour found that Mr Bidner “deliberately drove his Landcruiser into Mr Mears, knocking him to the ground, thereafter driving over the top of him”.

Crown submissions – Ground 1

1. [30]

   The Crown contended in the sentencing proceedings that the evidence established beyond reasonable doubt that Mr Bidner had intended to kill Mr Mears. Mr Bidner conceded in this Court that he had made no contrary submission before her Honour. The following observation of this Court in Massaquoi v R [2024] NSWCCA 125 at [86] is notable in this context:

2. [31]

   Mr Bidner’s contention that the evidence was not capable of supporting the inference beyond reasonable doubt that he intended to kill Mr Mears overlooks her Honour’s careful and detailed analysis of the facts in the context of matters that were not in dispute.

3. [32]

   The Crown made the following further detailed written submissions which it is instructive to note in full.

4. [33]

   First, it was not merely inherent in Mr Bidner’s plea of guilty that he deliberately drove “into” Mr Mears, but that “he deliberately drove his Landcruiser into Mr Mears, knocking him to the ground, thereafter driving over the top of him.” Mr Bidner accepted by his plea of guilty the essential elements of the offence, including the act that caused the death. It was clear that the act which caused the death was driving the Landcruiser vehicle over (not into) Mr Mears. The cause of death was “the blunt force trauma of being run over by a vehicle” and the injuries were predominantly caused by the vehicle’s weight on Mr Mears’ body. Mr Bidner clearly accepted at sentence that the relevant act was that “[he] ran over [Mr Mears] with his vehicle, causing his death”.

5. [34]

   Mr Bidner’s contention on appeal that his plea of guilty was limited to accepting that he deliberately drove his vehicle “into” Mr Mears, but that it does not necessarily allow a finding that he intended to run over him, ignores the fact that the sentence proceedings were conducted on the basis that the deliberate act causing death was the passage of the vehicle over the top of Mr Mears.

6. [35]

   Secondly, the evidence of the tyre mark across Mr Mears’ entire upper body and the evidence of the injuries sustained, excludes Mr Bidner’s contention that the facts did not establish that he had “intended to do anything more than to effect a collision with [Mr Mears] for the purpose of inflicting grievous bodily harm … [and] it would not inevitably follow that subsequent to making contact with [Mr Mears] his vehicle would drive over the top of him”. The agreed facts contained a photograph of the distinctive tyre mark across Mr Mears’ torso and upper body. The only rational inference to be drawn from that evidence was that the Landcruiser travelled over the top of Mr Mears’ lower back, torso, upper body, head and neck.

7. [36]

   Thirdly, the fact that the collision occurred at low speed does not detract from the inference of an intention to kill. Having regard to all of the evidence, the fact that the vehicle was travelling at a low speed as Mr Bidner ran over Mr Mears is an argument that supports a conclusion that Mr Bidner held the relevant intention. That is because the evidence about the low speed of the impact must be considered together with the evidence of the tyre mark and the injuries which suggested that the Landcruiser made a significant passage across Mr Mears’ upper body when he must have been lying prone on the ground.

8. [37]

   The agreed facts demonstrated that the tyre tread mark extended from the entirety of the base of Mr Mears’ spine up to his neck. Further, the injuries sustained are instructive in understanding the significant degree to which the Landcruiser passed over the top of Mr Mears’ body. The injuries included factures from the lumbar spine all the way to fractures in the skull, and similarly abrasions from the base of his spine all the way across his torso, arms and head.

9. [38]

   The extensive proportion of Mr Mears’ body over which the Landcruiser travelled entirely contradicts Mr Bidner’s argument that his low speed was inconsistent with an intention to cause death. The evidence that the vehicle travelled across so much of his body slowly rather than at speed suggests a more deliberate and conscious continuation of the act of driving over Mr Mears than knocking him down and driving away. It suggests that Mr Bidner had more, rather than less, time to consider his deliberate choice to continue driving once Mr Mears must have been on the ground, and to appreciate the consequences of his actions. At a low speed, Mr Bidner would have had more, rather than less, time to be aware of Mr Mears’ body beneath his 2 tonne vehicle. Contrary to it being evidence that suggests an intention limited to inflicting only really serious harm, that evidence demonstrates a deliberateness of action that is consistent only with an intention that Mr Mears should not survive.

10. [39]

    Fourthly, this Court should not accept Mr Bidner’s submission that, even if it were accepted that he did intend to run over Mr Mears, it would not permit an inference beyond reasonable doubt that he intended him to die because there is no evidence “he was sufficiently aware of the relative position of his vehicle tyre and [Mr Mears’] body position”. Where a 2 tonne vehicle was used as a weapon to hit and then travel on top of Mr Mears, without braking and consistently with accelerating, any absence of particular knowledge regarding the exact position of Mr Mears’ body in relation to the tyre position is not significant to the question of intent. It was well open to her Honour to infer, as she did, that Mr Bidner’s knowledge of cars was such that he understood that the passage of his vehicle over the top of a human body was highly likely to cause death irrespective of whether he possessed exact knowledge of the relative position of his tyres.

11. [40]

    In any event, the suggestion that Mr Bidner deliberately knocked Mr Mears over and drove on top of him, yet did not have sufficient knowledge that his tyre was passing over Mr Mears, is not a rational hypothesis, particularly given the low speed at which the Landcruiser was travelling while inflicting the crush injuries. The injuries and the tyre tread mark make clear that the wheel of the Landcruiser travelled from the base of Mr Mears’ torso all the way up to his neck and head.

12. [41]

    Fifthly, it is relevant also to an assessment of this factual dispute that Mr Bidner, having left the compound, immediately concealed his vehicle and disposed of its distinctive tyres. As the Crown submitted in the court below, such evidence clearly allows for the inference that Mr Bidner was either aware of the tyre mark left on Mr Mears’ body or that his tyres would link him to the death of Mr Mears. This could only be because Mr Bidner was aware he had driven over Mr Mears rather than Mr Bidner’s contention in this Court that he may only have been intending to “effect a collision” and not drive over the top of him.

13. [42]

    Finally, the distinction Mr Bidner seeks to draw between the circumstances of this case and driving over a prone victim should not be accepted. The expert considered that the evidence was only consistent with Mr Mears either being knocked to the ground and then run over, or that he was already on the ground and the Landcruiser drove over him. The injuries were caused by the load of the vehicle across the deceased’s body, not by blunt force in knocking him down. The fact that Mr Bidner knocked Mr Mears to the ground before driving over his prone body does not alter that fact that he did so. Mr Bidner himself concedes that an intention to kill “might more easily be inferred” if a person drives over a prone victim, as there is knowledge that the vehicle would pass over the body of the person. Mr Bidner’s argument overlooks the fact that that is exactly what occurred.

Consideration

1. [43]

   Properly understood, the comprehensive and articulate written and oral submissions advanced on behalf of Mr Bidner distil essentially to a contention that her Honour should not have concluded that Mr Bidner intended to kill Mr Mears rather than a contention that it was not open to her Honour to have done so. That is not surprising when one considers that the applicable test comprehends the fact that there is no single correct answer and that reasonable minds may differ. The formulation of a test that requires only that the impugned conclusion should be open includes the fact that a different finding would not thereby or automatically be incorrect.

2. [44]

   Any binary conclusion about the existence of a disputed intention must necessarily depend upon the inferences drawn from the evidence. Competing inferences from the same facts may nevertheless both be logical and rational and accordingly open. Her Honour’s conclusion that Mr Bidner intended to kill Mr Mears is supported by a logical and rational analysis of the evidence. It is possible that Mr Bidner did not subjectively intend to kill Mr Mears. That subjective intention is not in evidence. The evidence that her Honour analysed is capable of supporting the choice that she made: her finding was open.

3. [45]

   Her Honour found, and her finding is not contested, that Mr Bidner “deliberately drove his Landcruiser into Mr Mears, knocking him to the ground, thereafter driving over the top of him”. It is also uncontested that Mr Bidner’s vehicle would deliver a gravitational force of 500kg at each wheel in a static or stationary position. The fact that Mr Bidner’s vehicle was by definition in motion as it passed over Mr Mears’ body would not have lessened that force and may well have increased it. Mr Bidner was aware that his vehicle was travelling over or across Mr Mears as he lay on the ground. A finding of an intention to kill Mr Mears would in my view be clearly open on these facts alone.

4. [46]

   I would however not be prepared to accept the Crown’s submission that the alterations made by Mr Bidner to his vehicle provide any logical or rational evidence that he had an intention to kill Mr Mears as opposed to an intention only to cause him really serious injury. Accepting for the purposes of the argument that Mr Bidner altered his vehicle in an attempt to avoid apprehension and prosecution for causing the death, his actions were equally consistent with either intention and probably also consistent with the existence of neither intention. The impugned consciousness cannot in this case reliably inform what guilty concerns Mr Bidner may have had at the relevant time. It is also notable that Mr Bidner’s tyre tracks would likely have been found on the surface of the road, not only on the surface of Mr Mears’ body.

Mr Bidner’s submissions – Ground 2

1. [47]

   Counsel for Mr Bidner at trial neither orally nor in writing contested the Crown’s submission to her Honour, which she accepted, that Mr Mears was run down by Mr Bidner unexpectedly and without warning. Mr Bidner submitted in this Court that her Honour seems to have inferred from the fact that Mr Mears had his back turned to Mr Bidner’s vehicle at the time of impact that he was unaware of the presence of Mr Bidner and of the imminent attack. Unfortunately, the agreed facts do not include an account of exactly what occurred immediately prior to the offence.

2. [48]

   It was submitted on Mr Bidner’s behalf in those circumstances that while it is entirely possible that Mr Mears did have no warning that Mr Bidner was driving towards him, it is also entirely possible that Mr Mears was aware that the vehicle was behind him and chose nevertheless either to discount the possibility that Mr Bidner would in fact drive into him or the need to attempt to evade the collision.

3. [49]

   Mr Bidner also submitted that it is entirely possible that words were exchanged between Mr Bidner and Mr Mears before the fatal collision occurred. Whether they were or not, and whether the offence occurred without warning, simply cannot be known on the available evidence, let alone established beyond reasonable doubt.

Crown submissions – Ground 2

1. [50]

   The evidence on sentence established that several other people had been present at the complex on the day of the incident. No evidence was given about dealings between Mr Bidner and Mr Mears. For example, Mr Mears had been accompanied by his friend, Mr Winter. The agreed fact reflected that at the relevant time, Mr Winter heard no voices and did not hear anyone call out any kind of warning.

2. [51]

   It was never suggested in submissions to her Honour on behalf of Mr Bidner that he and Mr Mears had interacted before the collision. Nor was there any evidence in the affidavit of Mr Bidner’s partner about it, despite the fact that there was reference to other interactions. Mr Bidner did not give evidence about the events on the day in his handwritten letter.

Consideration

1. [52]

   In the same way that juries are implored to use their common sense and experience of human affairs in drawing inferences from established facts and reaching conclusions based on the evidence, judges are expected to do the same. Common experience would rather suggest that any person who was confronted with a vehicle that was being driven towards them would take evasive action if at all possible if a failure to do so would increase the risk of a collision. According to the evidence, Mr Mears was not facing towards Mr Bidner’s vehicle at the time of the collision. In those circumstances, it seems uncontroversial that her Honour’s reference to Mr Mears being “attacked” without warning must be taken to mean that Mr Bidner drove into and over Mr Mears without Mr Mears’ foreknowledge. There was no competing evidence to suggest that Mr Bidner and Mr Mears had engaged in any exchange of words or had any other interaction before the incident or that Mr Mears might have had any reason to suspect that he would be run over or otherwise harmed. It was in my opinion entirely open to her Honour to find that Mr Mears was attacked in the way she described.

Ground 3

1. [53]

   The following passages from her Honour’s remarks on sentence require consideration in examining this ground of appeal:

Mr Bidner’s Submissions – Ground 3

1. [54]

   As will be apparent, Mr Bidner relied upon the opinions of Dr Nielssen with respect to his attempt to demonstrate the existence of the causal relationship in question. His submissions in this Court referred to these opinions.

2. [55]

   When asked for his opinion in relation to the impact of Mr Bidner’s background upon his “behaviour, cognitive development and mental wellbeing”, Dr Nielssen said:

3. [56]

   So far as concerned the existence of any “links between any such history and subsequent offending behaviour”, Dr Nielssen said:

4. [57]

   The Crown tendered a bundle of material which had previously been tendered at a fitness hearing, and which included numerous reports and letters to the court, including from Mr Bidner and his sister, which had been tendered on his behalf in sentence proceedings for other offences.

5. [58]

   Dr Nielssen was cross-examined about the asserted inconsistencies in the age at which Mr Bidner commenced the use of cannabis and whether he had explored those inconsistencies with Mr Bidner. He said:

6. [59]

   Mr Bidner challenged her Honour’s finding at [73] that Mr Bidner’s account of his dysfunctional upbringing was largely unsupported or even contradicted by other evidence and that the extent of childhood disadvantage suffered by him rose no higher than “family disharmony.” Her Honour concluded that Mr Bidner commenced to use illegal drugs at the age of “16 or so years”. Her Honour used these findings to conclude that there was no link between Mr Bidner’s background and his consequential drug use and therefore no link between his background and the offence. Her Honour’s related conclusion was that Mr Bidner’s moral culpability was “high” and that it was not diminished by anything in his subjective case.

7. [60]

   Mr Bidner submitted that her Honour’s reasoning was infected by a number of errors so that the impugned finding of fact was not open to her. Mr Bidner’s submissions in support of that contention proceeded as follows.

8. [61]

   Mr Bidner had contended that seven key features of his background supported a submission that his moral culpability was reduced by virtue of his childhood disadvantage.

9. [62]

   The first two features relied upon were first, that Mr Bidner’s parents had separated when he was two and he had very little contact with his mother after that and only sporadic contact with his siblings and secondly, that he changed homes and schools on numerous occasions as his father moved around the State for his work.

10. [63]

    Mr Bidner pointed out that these matters were uncontradicted, uncontested by the Crown and apparently accepted by her Honour. However, other than mentioning them briefly as matters that had been recounted by Mr Bidner or his sister to her Honour or by Mr Bidner to Dr Nielssen, these factors or their effect upon Mr Bidner were not otherwise considered by her Honour. Mr Bidner sought to emphasise that these matters bespeak disruption and disadvantage to him as a child that qualifies as part of the “family disharmony” to which her Honour referred.

11. [64]

    Thirdly, Mr Bidner’s father was a regular user of illegal drugs. His sister gave evidence that she and he were “exposed to violence in the home, drinking and drug taking”. Mr Bidner’s father neither acknowledged nor disputed “a family environment of drug use and violence” when speaking to Dr Nielssen. Mr Bidner submitted that “in that sense” his account was not contradicted by other evidence. In any event, as her Honour pointed out, Mr Bidner’s father’s failure to acknowledge the truth of the accounts “may be due to his own reluctance to admit to these failings”.

12. [65]

    The same may be said of the fourth matter, that Mr Bidner was raised in an environment where domestic violence was present.

13. [66]

    Fifthly, Mr Bidner’s father’s new partner was physically abusive towards him. Mr Bidner’s father confirmed this when interviewed by Dr Nielssen, saying that “she was abusive to the children behind his back”, even though, as her Honour noted, he “gave no account of the extent of any abuse of [Mr Bidner] by his second wife”. Mr Bidner emphasised that that did not contradict his own account that such abuse occurred.

14. [67]

    Mr Bidner’s sister also broadly corroborated his account. In her letter tendered in previous sentence proceedings, which formed part of the Crown bundle tendered at the fitness hearing, she said:

15. [68]

    Her Honour considered this evidence in the following terms:

16. [69]

    Mr Bidner submitted that her Honour was in error in discounting his sister’s evidence in this way.

17. [70]

    Sixthly, Mr Bidner commenced the use of illegal drugs at a young age. He placed reliance upon this as a matter establishing an early exposure to a disadvantaged background. The precise age at which this occurred may be in dispute but would appear to be somewhere between when Mr Bidner was 14 and 16 years old. The issue appears to be whether her Honour’s conclusions, such as that Mr Bidner appeared to be doing well at school and winning awards, should cast into doubt the evidence that he was exposed to very early use of illegal drugs.

18. [71]

    Finally, Mr Bidner spent his teenage years in an area where illegal drugs were prevalent and easy to obtain. This suggestion derives from Dr Nielssen’s own experience and is not otherwise established by direct evidence. Mr Bidner contended notwithstanding that it was a matter to which her Honour effectively failed to pay proper regard.

19. [72]

    Having regard to these matters, the following written submissions were relied upon in support of this ground:

20. [73]

    It was submitted on behalf of Mr Bidner that once the asserted errors in her Honour’s reasoning are identified and the evidence relating to his subjective case is properly understood, it was not open to her Honour to find otherwise than that he experienced what in summary might be described as a disrupted, dysfunctional and abusive upbringing, that he commenced the regular use of illegal drugs at or shortly before 14 years of age and that he began to use such drugs at least in part as a consequence of his disadvantaged childhood.

21. [74]

    Mr Bidner submitted that the significance of his disadvantaged childhood is apparent from his own evidence as well as the absence of any other clear causative factor to explain his uptake of illegal drugs at a young age. He referred to the remarks of her Honour in Lawrence v R [2023] NSWCCA 110 at [85] as follows:

22. [75]

    Mr Bidner submitted in these circumstances that it was not open to her Honour to fail to find as a fact that his background led to his consequential use of illegal drugs and that, given her Honour’s acceptance that Mr Bidner was affected by methamphetamine at the time of his offence, it played a causal role in his commission of the offence.

Crown submissions – Ground 3

1. [76]

   Mr Bidner bears the onus of establishing on the balance of probabilities the existence of any asserted causal connection between his background and the offending so as to reduce his moral culpability: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [37]-[44]; Davies v R [2019] VSCA 66. The relevant question for determination is whether Mr Bidner has demonstrated that it was not reasonably open to her Honour to decline to make the finding for which Mr Bidner now contends.

2. [77]

   The High Court in Bugmy said this:

3. [78]

   The Crown submitted that in order to succeed on this ground, Mr Bidner would have to persuade this Court of two separate matters:

   1. (1)

      First, that it was not open to her Honour to decline to find as a factor in mitigation that Mr Bidner had a childhood of extreme or profound dysfunction; and

   2. (2)

      Secondly, that it was not open to her Honour to decline to find a causal connection between the childhood and the offending, in that Mr Bidner’s drug use was caused by his background of childhood deprivation and causative of the offending.

4. [79]

   Whether or not Mr Bidner had a childhood of “profound deprivation” is a question of fact: Newman v R [2021] NSWCCA 101 at [62]; Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [31]-[38].

5. [80]

   It is not in issue that her Honour accepted on the balance of probabilities that Mr Bidner had experienced family disharmony in his childhood and had begun to use drugs when in his teens. Her Honour accepted that Mr Bidner had used methylamphetamine on the day of the offence and was impulsive and aggressive as a result. However, her Honour was not persuaded that Mr Bidner had experienced a childhood that amounted to extreme or profound deprivation, or that his drug use had commenced as early as he claimed. As her Honour observed at [32] of her remarks on sentence, there was a significant dispute with respect to “the veracity and reliability of a significant portion of [Mr Bidner’s] subjective case”.

6. [81]

   The Crown submitted in summary that her Honour was required to determine on the evidence before her whether Mr Bidner had discharged the burden of establishing on the balance of probabilities that he had suffered a background of extreme or profound childhood deprivation. The Crown contended that her Honour’s conclusion that he had not done so was well open.

Consideration

1. [82]

   It is clear that her Honour did not form a favourable view of Mr Bidner’s credibility or reliability. Her conclusions about those matters were expressed at length and in detail. Her Honour gave several examples of how Mr Bidner’s assertions of particular facts could be shown to be contradicted or cast in doubt by other evidence. Her Honour was also critical of the fact that Mr Bidner’s assertions about his childhood and the age at which he commenced his drug use and the abuse he suffered at the hands of his step-mother, among other things, were never provided by him in evidence from the witness box or when exposed to cross-examination.

2. [83]

   Mr Bidner’s “evidence” that he had been subject to extreme or profound childhood deprivation was contained in his letter to the Court. He described that since he was a small child he was “continually exposed to extreme violence, both domestically and socially”. However, that account was materially different to what he told Dr Nielssen, containing no details or examples of how the violence was perpetrated.

3. [84]

   A flavour for her Honour’s conclusions about Mr Bidner and any account he offered in mitigation can be found in her Honour’s earlier remarks in her judgment in the fitness proceedings:

4. [85]

   That analysis may be compared with her Honour’s assessment at [64] of her remarks on sentence:

5. [86]

   Her Honour was not required to accept what Mr Bidner said or what he told others. The question or whether Mr Bidner’s background, whether through consequential use of illegal drugs or howsoever otherwise, played a causal role in his commission of the offence depended upon her Honour’s acceptance of the evidence said to support or establish the particular background upon which he relied. In my opinion it was open to her Honour, in the absence of evidence that she was prepared or able to accept, to decline to find that his background was as he contended it to be. It was correspondingly open to her Honour to decline to find the existence of a link between Mr Bidner’s background and his drug use.

Conclusion

1. [87]

   In these circumstances, I consider that the following orders should be made:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [88]

   DAVIES J: I agree with Harrison CJ at CL.

3. [89]

   RIGG J: I agree with Harrison CJ at CL.