Prince v R

HOEBEN CJ at CL:

The offence of reckless wounding has a maximum penalty of imprisonment for 7 years, with a standard non-parole period of 3 years. Demanding property with menaces has a maximum penalty of 10 years imprisonment.

Taking into account the Form 1 offence, the sentencing judge imposed a sentence of imprisonment for 2 years and 6 months, with a non-parole period of 1 year and 6 months. The non-parole period will expire on 7 February 2021 and the full term will expire on 7 February 2022.

The applicant entered a plea of guilty to the charge on 28 August 2019 in the Tamworth Local Court. The sentencing judge allowed a 25 per cent discount for the applicant’s early plea of guilty. A finding of special circumstances was made as a result of the applicant’s youth and need for supervision in the community to assist him with rehabilitation. The ratio was varied so that the non-parole period is 60 per cent of the total sentence.

The applicant seeks leave to rely upon a single ground of appeal, i.e. that the sentencing judge erred in failing to make an assessment of the applicant’s moral culpability having regard to his deprived background.

The facts giving rise to the offence were agreed and tendered by the Crown as part of Exhibit A.

The applicant was known to the victim by sight. At 3:49am on 30 January 2019, a taxi conveyed the applicant to a block of units in Woodward Avenue, Tamworth. The taxi driver observed that the applicant was well affected by drugs. The applicant told the taxi driver that the occupants of a unit were going to pay for the taxi. The applicant then entered the unit block.

The victim was at home with her friend, Mr Reinker, who was asleep on the lounge. The applicant knocked on the door. When the victim opened the door, she recognised the applicant who walked inside the unit and yelled at Mr Reinker “I want that $20. I want that money. I have a cab waiting out there”.

The applicant continued to demand money and the victim told him to leave several times. The applicant said to the victim “I have four brothers. They will come here and go through your house. I will stab you. Give me the money”. When he said this, the applicant held a sharp implement in his right hand and pointed it towards the victim, repeating that he would stab her. Mr Reinker got off the lounge and he and the victim tried to push the applicant out of the unit. During the struggle, the applicant stabbed the victim’s hand with the sharp implement causing an injury.

The applicant also stabbed the victim in the upper right arm while saying “I will stab you. I will stab you.” Mr Reinker picked up a wrench and threw it at the applicant, striking him. The applicant picked up the wrench and threw it through a glass window, smashing the window. Mr Reinker continued pushing the applicant from the unit. Eventually the applicant was forced from the unit leaving a shoe behind.

The applicant ran from the unit complex. At approximately 4:05am the taxi driver waved down a police car and told the police that the applicant had not returned to pay the fare. During this conversation, police heard screaming and smashing of glass from inside the unit block. They attended the victim’s unit and saw blood drops which led in a trail down the driveway of the premises. Subsequent forensic testing showed that the DNA of the blood matched that of the applicant.

The victim attended Tamworth Hospital, where she was treated for a V-shaped laceration which was 3cm deep and 3cm long to her left hand and a 1cm stab wound to the upper right arm. The superficial radial digital nerve in her left hand was 100 per cent lacerated. She was flown to the John Hunter Hospital where she underwent surgery to repair the lacerated nerve and an artery.

Tendered in the applicant’s case were two reports from a psychologist, Mr Andrew Fordyce, dated 7 September 2018 (Exhibit 1) and 29 October 2019 (Exhibit 2). Written submissions on sentence on behalf of the applicant were before the court.

The reasons for sentence were delivered ex tempore, immediately following the sentencing hearing on 6 December 2019.

The sentencing judge made the following findings:

The sentencing judge took into account the first report of Mr Fordyce, which was prepared for the purpose of determining the applicant’s fitness to plead and stand trial for an earlier offence of aggravated assault with intent to rob. The applicant was sentenced for that offence in the Tamworth District Court on 12 November 2018 to 25 months imprisonment with a non-parole period of 11 months. The applicant was on parole for that offence when he committed the subject offence.

His Honour accepted Mr Fordyce’s analysis of the applicant’s background, developmental history and functioning as set out in paragraphs [38]-[40] of the report. Those paragraphs were read onto the record.

The paragraphs relevantly provide:

The sentencing judge observed that the breach of parole involved not only the applicant’s commission of the subject offences but his complete failure to engage with Community Corrections when he was released to parole and complete failure to abide by the conditions of his parole.

In his second report, prepared for these proceedings, Mr Fordyce recorded that the applicant described relapsing into substance abuse immediately after he left custody in September 2018. He was consuming 1g of intravenous methamphetamine, 2-3g of cannabis and 4-5mg of buprenorphine daily, depending on the availability of the drugs. His Honour found that the applicant’s drug use commenced in his early teens and was “a continuing feature of his presentation both to psychologists and to the criminal courts” (Sentence judgment 9.1).

The sentencing judge found that the offending was not causally related to the applicant’s drug use, although the applicant was intoxicated at the time of the offences. His Honour also found that the applicant’s intellectual disability was not causally related to the offending. Nevertheless, his Honour was satisfied that “taking his background into account as a whole, along with his intellectual functioning ... [this offender] is an inappropriate vehicle for general deterrence” (Sentence judgment 9.7).

After referring to the principles in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and R v Engert (1995) 84 A Crim R 67 his Honour stated:

After considering the competing consideration of protection of the community, his Honour referred to the conclusions at [16] of Mr Fordyce’s second report to the effect that the applicant:

His Honour found that the applicant’s prospects of rehabilitation were not good and he was likely to re-offend. Notwithstanding those findings, his Honour considered that the applicant’s youth and his need for intervention provided a basis for a finding of special circumstances.

The following statements of principle were relied upon by the sentencing judge. They came before him as part of the written submissions prepared on behalf of the applicant.

In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 the High Court said:

The following well known quotation from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] was relied upon as setting out the principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental problem:

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

While the sentencing judge did not explicitly refer to Bugmy v The Queen or to the applicant’s moral culpability, he did so implicitly. There was no issue in the sentence proceedings that the Bugmy principles were relevant to the sentencing of the applicant. It should also be noted that the statements of principle set out above, both expressly use the term “moral culpability”. The concept was clearly in his Honour’s mind.

The applicant’s written submissions on sentence expressly referred to the applicant’s deprived background (at [21]-[24]). Those submissions contended that the applicant’s childhood was one of disadvantage. The applicant’s written submissions also cited the conclusion in Mr Fordyce’s first report at [38], i.e.:

As is clear from the transcript of the sentence proceedings, his Honour raised with the applicant’s legal representatives some specific matters arising from her written submissions and in particular, the consequences of an applicant suffering from a mental disorder, even where that problem was not causally related to the offending. This makes it clear that the principles set out in Bugmy v The Queen and in R v Engert were in play and were considered by his Honour.

The transcript of the sentence proceedings identified a problem that may explain why his Honour did not go into more detail when discussing the application of Bugmy v The Queen to the facts of this case. That difficulty involved the presence of the applicant’s mother and grandmother in court and whether they had read the reports of Mr Fordyce. The history recorded by Mr Fordyce was quite critical of the conduct of the applicant’s mother, and to a lesser extent his grandmother, in contributing to the profound disadvantage which he experienced in his early years. When the problem was pointed out to his Honour, he responded that he would “skate around that” (T6.8). Another reason why his Honour did not go into more detail when setting out his approach to the application of the Bugmy principles and those in the Director of Public Prosecutions (Cth) v De La Rosa is that there was very little issue between the Crown and the defence on those matters. Both legal representatives accepted and did not contest the application of the Bugmy principles.

That his Honour had these principles in mind is clear from his exchange with the Crown in the sentence proceedings in relation to the applicant’s prior offending. There, his Honour said:

That his Honour accepted the application of the principles in Bugmy v The Queen and Director of Public Prosecutions (Cth) v De La Rosa to the facts of this case is clear from his acceptance of the facts summarised by Mr Fordyce in his first report at [38]-[40] set out at [18] hereof. His Honour’s acceptance of those matters was without qualification.

It follows, therefore, that the sentencing judge took into account the applicant’s background, developmental history and intellectual functioning. While his Honour did not refer to all the details of the applicant’s background contained in the psychological reports, there were good reasons for not doing so. There was the presence of the applicant’s mother and grandmother and in any event, his Honour incorporated the relevant parts of Mr Fordyce’s report into his judgment (Sentence judgment 6.9).

It is clear from his Honour’s sentencing judgment that he accepted and applied the principle that an offender’s background of deprivation may result in a reduction of moral culpability. His Honour accepted and applied the principle that if there is a basis for finding that an offender’s moral culpability was reduced, then general deterrence may be of less significance although the need to protect the community may be higher: Dungay v R [2020] NSWCCA 209 at [141]. His Honour accepted and applied the proposition that an offender’s mental health can also affect the weight given to general deterrence as is set out in Director of Public Prosecutions (Cth) v De La Rosa and similarly, may give rise to a need to reflect other purposes of sentencing. As his Honour appreciated, the judgment of Gleeson CJ in Engert, to which he referred, was relevant both to the application of the Bugmy principles and to a consideration of the impact of the applicant’s mental disability.

It is apparent from his Honour’s reasons that the applicant’s “background ... as a whole” formed part of the basis for his Honour’s finding that the applicant was an inappropriate vehicle for general deterrence (together with his intellectual functioning). Further, his Honour stated that there was a need to balance the lessening of the effect of general deterrence against the need for community protection. His Honour accepted that this resulted from the applicant’s background as well as from his intellectual incapacity. In linking the applicant’s background difficulties to the effect to be given to general deterrence and community protection, it is apparent that his Honour was applying the Bugmy principles. As a result, what his Honour had really determined was that the applicant’s disadvantaged background operated to reduce his moral culpability.

Importantly, although his Honour was obliged to consider the impact of the applicant’s background on his moral culpability, he was not required to refer explicitly to the concept of moral culpability in doing so. As stated by McCallum J (with whom Bathurst CJ and Bellew J agreed) in Egan v Regina [2017] NSWCCA 206 at [37]:

Comments to similar effect were made by Hoeben CJ at CL (with whom Campbell J agreed) in Wood v R [2019] NSWCCA 309 where his Honour said:

It follows for the reasons given by his Honour and from what was said in the sentence proceedings, that his Honour weighed and gave careful consideration to the competing factors that arose as a consequence of the application of the Bugmy principles and as a consequence of considering the applicant’s mental condition. No error of the kind referred to in the Ground of Appeal occurred. This ground of appeal has not been made out.

Accordingly, the order which I propose is that leave to appeal against sentence be granted but that the appeal be dismissed.

BEECH-JONES J: The background to the application for leave to appeal against sentence and the findings of the sentencing judge are set out in the judgment of Hoeben CJ at CL.

The sole ground of appeal is that the sentencing judge supposedly erred “in failing to make an assessment of the applicant’s moral culpability having regard to the deprived background of the applicant”.

In his sentencing judgment, the sentencing judge extracted a long passage from a report of a psychologist, Mr Fordyce, which set out in detail the applicant’s deprived background. Although the sentencing judge was not satisfied that the applicant’s intellectual disability was said to be causally connected to his offending, the sentencing judge expressly stated that “taking his background into account as a whole, along with his intellectual functioning” the applicant was an “inappropriate vehicle for general deterrence”. After setting out a passage from R v Engert (1984) A Crim R 67 at 71 per Gleeson CJ, the sentencing judge noted that the applicant’s background and intellectual disabilities warranted a lessening of considerations of general deterrence, but also accepted that it highlighted the need for community protection.

The written submissions of the applicant contended that the sentencing judge failed to explain “how it was that the applicant’s background as a whole was taken into account in the assessment of the moral culpability of the offender”. The written submissions noted that the concept of “moral culpability” is a separate concept to that of objective seriousness. The submissions referred to the passage in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44] (“Bugmy”) which noted, inter alia, that “[a]n offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender”.

Contrary to the applicant’s submission, I consider that a fair reading of the sentencing judgment reveals exactly “how” it was that the sentencing judge took into account the applicant’s “background as a whole” in his assessment of the moral culpability of the offender. Implicit in his Honour’s acceptance that the applicant was an inappropriate vehicle for general deterrence, is that his Honour regarded the moral culpability of the applicant as necessarily reduced.

In the end result, the real complaint of the applicant simply concerns the absence of any express reference to the phrase “moral culpability” in the sentencing judgment. However, in the context of an offender presenting with a deprived background of the kind contemplated in Bugmy, then provided that the various “conflicting purposes of punishment” (Bugmy at [44]) are properly addressed in light of the findings made about that background, it is not necessary for a sentencing judge to expressly use the phrase “moral culpability” (see Egan v Regina [2017] NSWCCA 206 at [37]). Ultimately, it is the application of proper principle, and not the use of appropriate labels, that matters.

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

CAMPBELL J: I agree with Hoeben CJ at CL.