Lupton v R

1. [1]

   WARD P: I have had the opportunity of reading in draft the reasons of Ierace J. For the reasons there given, I agree with his Honour that ground 1 of the appeal should be dismissed. Where I respectfully differ is as to the conclusion in respect of ground 2 and (in part) in respect of ground 3. For the reasons that follow, I would dismiss ground 2 and only uphold ground 3 in respect of one of the aspects about which complaint is made.

2. [2]

   The complaint raised by ground 2, as explained more fully in Ierace J’s reasons, goes to the error that the applicant contends was made in relation to the application of the so-called Bugmy principles (see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37). Those principles, the application of which is not discretionary, are of relevance in considering an offender’s moral culpability and may, in appropriate cases, also inform the assessment of the objective seriousness of the offending (see the discussion in Paterson v R [2021] NSWCCA 273 (Paterson) by Beech-Jones CJ at CL, as his Honour then was, and the authorities to which Ierace J has referred).

3. [3]

   In the present case, the sentencing judge, when addressing the applicant’s subjective case, referred to the report of Ms Dombrowksi, a psychologist, noting her diagnosis that the applicant exhibited emotional and behavioural dysfunction and, relevantly, that Ms Dombrowski linked his behavioural dysregulation at the time of the offence to the applicant’s high rate of usage of illicit substances (see at [34]). His Honour extracted (at [35]) both Ms Dombrowski’s conclusion that the applicant’s substance abuse very likely impaired his decision-making and judgment (and disinhibited his behaviour) at the time of the offence and her conclusion that the use of those illicit substances was to manage his negative thoughts and feelings associated with his experiences of neglect and abuse; and that the substance abuse had further undermined the quality of the applicant’s psychosocial functioning and his ability to regulate and manage his emotions and behaviour. His Honour accepted (at [36]) that the applicant’s judgment and self-control were impaired at the time of the offence by the cumulative effect of years of substance abuse and high consumption of methamphetamine on the day of the offence.

4. [4]

   It is in this context (having noted not only the psychologist’s assessment of the impact on the applicant of his substance abuse but also, in effect, that the substance abuse had a causal link to the applicant’s deprived upbringing – since it was in order to manage negative thoughts and feelings associated with the neglect and abuse suffered during his upbringing) that his Honour concluded, first, that this did not mitigate the gravity of the offending and, second, that the applicant was “undoubtedly entitled to consideration that fully takes account of the adversity of his upbringing” (at [36]).

5. [5]

   Thus, there can be no doubt that the sentencing judge took into account in the instinctive sentencing process the applicant’s deprived upbringing (and his use of illicit drugs to manage the negative thoughts and feelings associated with that background, which Ms Dombrowski’s report identified as having a causal link to the offending).

6. [6]

   The language of taking full account of the adversity of the applicant’s upbringing (at [36] of the sentencing judgment) echoes that used by the plurality in Bugmy of giving “full weight” to an offender’s deprived background in every sentencing decision (see Bugmy at [44]). As Ierace J has noted, in Dungay v R [2020] NSWCCA 209 (at [153]), N Adams J explained that engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and of the offending (her Honour there observing that full weight could be given (in the instinctive synthesis process) to the effects of childhood deprivation in ways other than by reduction of moral culpability).

7. [7]

   The complaint here made is that there was no express finding as to whether the applicant’s childhood deprivation operated to reduce his moral culpability (notwithstanding his Honour’s statement as to the full account that was to be taken of that adversity). In that regard, it is significant that the statements at [36] of the sentencing judgment are, in context, clearly a juxtaposition between the assessment of objective seriousness (which his Honour found was not reduced by the applicant’s deprived background) and consideration of the applicant’s subjective case (i.e., moral culpability) that was being addressed in this section of his Honour’s reasons.

8. [8]

   As Ierace J has noted, the fact that something is not mentioned in a sentencing judgment does not mean that it was not taken into account by the sentencing judge. Further, it is not helpful to parse a sentencing judgment (or any other judgment) as if it were a statute (see Leeming JA’s observations in Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 at [67], with whom Barrett and Gleeson JJA agreed). The sentencing process is one of instinctive synthesis. Read in context, though the words “moral culpability” are not used, it is sufficiently clear that the sentencing judge was taking the applicant’s deprived background into account and must have been doing so in considering his moral culpability before then turning to address the applicant’s prospects of rehabilitation (which would be a countervailing factor in the sense that it raises the need for protection of the community). I accept that there is not an articulation in the reasons as to the reduction, if any, of the applicant’s moral culpability by reference to the accepted fact of his deprived upbringing (and the psychologist’s conclusion as to the causal link between his deprived upbringing and substance abuse which then leads to the applicant’s dysregulation). However, that may be explicable by the lack of issue taken by the Crown as to those matters. Moreover, the assessment of moral culpability (as with that of the characterisation of the objective seriousness of the offence) is a broad evaluative decision which warrants appellate restraint (see Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ, with whom Simpson J (as her Honour then was) agreed).

9. [9]

   Thus I have concluded that ground 2, as amended, is not made good. If I be wrong in so concluding then I would agree with the re-sentence proposed by Ierace J for the reasons his Honour has given.

10. [10]

    As to ground 3, House v The King error must be established and, again, appellate restraint will be shown. Ierace J has concluded that there was error in two respects: in approaching the question of special circumstances on the basis that a need for drug rehabilitation was a general sentencing consideration that had no special significance for the ratio of the non-parole period (see at [43]); and the second that his Honour had not had regard to a material consideration (namely the loss of family visits for two years due to pandemic restrictions) (also at [43]).

11. [11]

    As to the first of those matters, and having regard to what had earlier been said by his Honour at [39] (as to the sufficiency of the parole period for the applicant’s rehabilitation), I was inclined to read what was said at [43] as being a statement referable to the specific circumstances of the present case rather than an observation in relation to the issue generally (as to whether the drug addiction and need for rehabilitation were matters relevant to consideration of special circumstances). However, I would accept that the statement that these matters are general sentencing considerations points against that reading of the sentencing judgment and to that extent I agree with Ierace J error has been demonstrated in relation to ground 3. As to the second of those matters, I do not accept that the conclusion his Honour reached as to the impact of loss of face to face visits involves House v The King error (the extent of that effect of the pandemic being an assessment of the evidence on which reasonable minds might differ – i.e., a matter relevant to the sentencing discretion). For completeness, I note that I agree with Ierace J that there is no House v The King error established in the sentencing judge’s approach to the issue as to danger of institutionalisation, for the reasons given by Ierace J.

12. [12]

    If it were necessary to re-sentence on the basis of ground 3 alone, I would accept that some adjustment to the non-parole period of the kind suggested by Ierace J would be appropriate.

13. [13]

    BUTTON J: I have had the significant advantage of reading the judgments of Ward P and Ierace J in draft, in which the issues in this application for leave to appeal against sentence are fully canvassed. My own views are as follows.

14. [14]

    As for ground 1, like Ward P, I agree with Ierace J, and have nothing to add.

15. [15]

    As for ground 2, it is true, with respect, that the learned sentencing judge spoke concisely about the role in sentencing of the atrocious background of the applicant. It is also true that, in every case, a sentence must reflect subjective features pertaining to the offender, including of course an upbringing that was deprived or disadvantaged through no fault of their own. Almost without exception, such a background will sound in mitigation, sometimes extremely powerfully, not least because it is very often criminogenic. The extent to which it does so will be a matter for a sentencing judge, in all of the circumstances of the case.

16. [16]

    Here, the best reading of the remarks on sentence as a whole is that the sentencing judge was well aware of the background of the applicant, regarded it as giving rise to an undoubted entitlement to consideration, and “fully” took it into account. The only way that his Honour could have done so was in mitigation of sentence.

17. [17]

    Therefore, in my respectful opinion, ground 2 should not be upheld.

18. [18]

    As for ground 3, I agree with Ward P and Ierace J as to the first part of it (drug addiction and the need for rehabilitation): on balance, I respectfully read the remarks on sentence of Fagan J as being somewhat too prescriptive as regards the possible establishment of special circumstances. I reject the reading of the Crown to the contrary.

19. [19]

    It follows that I agree with their Honours that this error has been established, and would uphold that part of ground 3.

20. [20]

    That error, I believe, calls for reconsideration of the sentence as a whole, as part of this Court’s duty to consider re-sentence afresh, except in very limited circumstances. In that regard, I agree with Ierace J as to outcome.

21. [21]

    For those reasons, I agree with the orders proposed by Ierace J.

22. [22]

    IERACE J: The applicant seeks leave to appeal against a sentence imposed on him on 20 April 2023 by Fagan J for the manslaughter of Hady Jaouhara (the deceased) on 23 February 2020, contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) (the offence). The maximum penalty is 25 years imprisonment and there is no standard non-parole period.

23. [23]

    The applicant was arrested on 7 March 2020 and charged with having murdered the deceased. While the matter was still in the Local Court, he made a formal offer to the New South Wales Director of Public Prosecutions to plead guilty to manslaughter on the basis of excessive self-defence, in full satisfaction of the indictment. The offer was not accepted. On 20 October 2020, the applicant entered a plea of not guilty to murder and was committed for trial. He stood trial before Hamill J and a jury, which commenced on 21 January 2022. The jury was unable to reach a verdict and was discharged on 21 February 2022 (the first trial). On 21 November 2022, the applicant was tried a second time before Fagan J and a jury. He entered a plea of not guilty to murder but guilty to manslaughter, which was not accepted by the Crown. The jury was unable to reach a verdict and was discharged on 9 December 2022 (the second trial).

24. [24]

    On 20 December 2022, the applicant was arraigned upon an amended indictment which charged him with a single count of manslaughter, that is, that he caused the deceased’s death “in circumstances amounting to manslaughter”. He entered a plea of guilty and on 14 April 2023 a sentence hearing proceeded before Fagan J (the sentencing judge). On 20 April 2023, he was sentenced to imprisonment for 9 years, backdated to commence on 7 May 2020 and expiring on 6 May 2029, with a non-parole period of 6 years and 9 months which will expire on 6 February 2027: R v Lupton [2023] NSWSC 412.

25. [25]

    By a notice of appeal filed on 13 September 2023, the applicant sought leave to appeal against his sentence, on three grounds:

26. [26]

    At the hearing of the appeal, counsel for the applicant sought leave to amend ground 2. The respondent did not object to the proposed amendment, and I would grant leave to the applicant to amend the ground, so that it reads as follows:

27. [27]

    For the reasons that follow, I am of the view that the first ground is not made out but that error in the sense of House v R [1936] HCA 40; (1936) 55 CLR 499 at 505 is established by the second ground as amended and the third ground, thereby, in the circumstances of this case, requiring the applicant to be resentenced: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [35], [42].

The offence

1. [28]

   A statement of agreed facts, signed by the applicant (the agreed facts), was tendered at the sentence hearing as part of the Crown bundle. It was to the following effect.

2. [29]

   In early 2020, the applicant, then aged 28, was residing in Quakers Hill. He had previously been in a long-term relationship with Sherie O’Neill, [1] during which they had a daughter (AO), then aged 9. At the time of the offence, Sherie and AO were residing in a house at Lethbridge Park that was rented by Sherie’s mother, Susan O’Neill [2] (the Lethbridge Park premises). Also residing there were Sjon Bayes, who is a nephew of Susan, and a female friend of Susan.

3. [30]

   In late 2019, the deceased and Mr Bayes became friends and, in early 2020, the deceased frequently visited the Lethbridge Park premises. He was aged 23 at the time of his death. During the same period, the applicant also frequently visited the Lethbridge Park premises; he and Sherie were contemplating rekindling their relationship.

4. [31]

   The applicant was also supplying methylamphetamine (ice) and cannabis to the residents of the Lethbridge Park premises and the deceased. He told them that he did not object to them taking drugs while they were in the house provided that they did not do so in common areas, where his daughter might be present.

5. [32]

   In January 2020, Sherie told the applicant that the deceased had her mobile number saved in his phone under the name “Sherie Beauty”, that she did not know why he would have her name saved in that manner, and that she thought it was “creepy”.

6. [33]

   On an occasion in late January or early February 2020, the applicant attended the Lethbridge Park premises and saw Mr Bayes and the deceased smoking ice in the lounge room. The applicant’s daughter was home at the time. The applicant said to them:

7. [34]

   The deceased told the applicant, “Relax”. The applicant responded, “What do you mean ‘relax’?” The deceased replied, “Kick back”.

8. [35]

   On 10 February 2020, the applicant sent a message to Blake Mooney via Facebook Messenger (the nature of Mr Mooney’s relationship with the others was not explained in the agreed facts). The message read:

9. [36]

   In February 2020, there were two incidents involving the applicant and deceased:

10. [37]

    In the early hours of 23 February 2020, the applicant stole Sherie’s car and parked it near his home in Quakers Hill. The deceased drove Sherie to Quakers Hill to look for it. Sherie confronted the applicant, who gave her the keys to her car and told her where it was parked. The applicant then rode his motor bike to the Lethbridge Park premises. Sherie was not there. He smoked ice with Susan and fell asleep in the bedroom occupied by Sherie and AO. At about 8.30pm, Sherie arrived home and found the applicant asleep in her bed. She tried, unsuccessfully at first, to wake him. She eventually succeeded, and told him to leave, which he did at approximately 11:19pm.

11. [38]

    At about 11:20pm, the deceased and Mr Bayes arrived at the Lethbridge Park premises. At about 11:32pm, Sherie left to retrieve her phone from a house nearby. About two minutes later, the applicant arrived back at the Lethbridge Park premises to retrieve his house keys, accompanied by a person who wished to purchase ice from him. The agreed facts as to what occurred next were as follows.

12. [39]

    On 7 March 2020, the applicant was arrested and cautioned. He declined to be interviewed.

13. [40]

    The agreed facts record that the deceased died of a single stab wound to the chest, which measured 26mm in length and 9mm in width at the skin. The wound tracked front to back and right to left, cutting through the rib cartilage, the internal mammary artery, part of the right upper lobe of the lung and “nicked” the surface of the pericardial sac. The deceased was 1.78m tall and weighed 72kg, with a body mass index (BMI) of 22.7.

14. [41]

    The basis of the applicant’s plea to manslaughter was expressed in the agreed facts to be excessive self-defence:

The sentence hearing

1. [42]

   The Crown Prosecutor and Senior Counsel for the applicant who appeared in the sentence proceedings were the same counsel who appeared in the second trial.

2. [43]

   The Crown bundle included the applicant’s criminal and custodial histories and a victim impact statement which was read at the hearing.

3. [44]

   The earliest entry on the applicant’s criminal history was a common assault committed in January 2005, when he was 13 years old, for which he received a bond and 6 months supervision. Within that period, he was charged with a second common assault, which was dismissed with a caution. In June 2006, about a fortnight before his fifteenth birthday, the applicant committed the offence of robbery in company. Following a successful severity appeal to the District Court, he received a sentence of probation for a period of 12 months.

4. [45]

   Between the ages of 15 and 18, the applicant committed offences of remaining on inclosed land without lawful excuse, failing to appear, shoplifting, being carried in a conveyance and destroying or damaging property, which were all dealt with in the Children’s Court by way of dismissal, fines or supervision orders.

5. [46]

   The applicant’s offending as an adult commenced at the age of 18 with counts of assault occasioning actual bodily harm and stealing in December 2009, for which he was sentenced to wholly concurrent terms of imprisonment for 12 months, with non-parole periods of 7 months.

6. [47]

   On 11 June 2013, the applicant received a total sentence of imprisonment for 3 years, backdated to commence on 29 August 2012, for 15 counts of having goods in custody suspected of being stolen and further counts of receiving stolen property and breaking and entering a dwelling house. Multiple other offences were taken into account on a form 1 in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act).

7. [48]

   The applicant was released to parole on 16 February 2014. In the period between March and May 2014, he committed 11 offences of aggravated (in company) break and enter and commit a serious indictable offence, 10 offences of aggravated (in company) break and enter with intent to commit a serious indictable offence, an offence of entering a building with intent to commit an indictable offence and the offence of break, enter and steal (the 2014 offences). On 2 August 2016, he was sentenced in the District Court for 5 of the offences, the others being taken into account on a form 1. He received a total sentence of 4 years imprisonment, backdated to commence on 8 February 2015, with a non-parole period of 2 years.

8. [49]

   The applicant was released to parole on 7 February 2017. On 23 August 2017, he was sentenced for 2 offences that he committed on 7 April 2017, namely, a count of assault occasioning actual bodily harm, committed in a domestic violence context, and affray. He received a total sentence of 7 months’ imprisonment, backdated to commence on 14 August 2017, with a non-parole period of 4 months.

9. [50]

   The applicant was not released again to parole for the 2014 offences until 10 April 2018. On 9 May 2019, he was sentenced for 4 counts of dishonestly obtaining property by deception, which were committed in March 2019. For one of these offences, he received a community correction order (CCO) for a period of two years, commencing on 9 May 2019 and expiring on 8 May 2021, which included a condition to abstain from the use of drugs and alcohol, and supervision by Community Corrections over the period of the order. For the other three offences, he received an aggregate sentence of an intensive correction order (ICO) for a period of 8 months with the same commencement date and expiring on 8 January 2020.

10. [51]

    Thus, at the time of the manslaughter offence, the applicant was subject to the CCO. The ICO expired six weeks prior to the commission of the offence.

11. [52]

    On 20 November 2020, the applicant received a fixed sentence of two months’ imprisonment, to date from his arrest on 7 March 2020, for the offence of the possession or use of a prohibited weapon, which was unrelated to the knife used in the manslaughter offence.

12. [53]

    The applicant’s custodial history, as at 4 April 2023, recorded 22 disciplinary offences since September 2012. Whilst on remand for the present offence, the applicant has been dealt with for 12 disciplinary infractions which include failing or refusing drug tests, damaging property and intimidation, the most recent being failing a prescribed drug test in April 2022, that is, 12 months before the sentence hearing.

13. [54]

    The victim impact statement was composed by the deceased’s sister, Rolena Jaouhara. She described her brother as a resilient, caring and forgiving man who was dearly loved by his family. They and his friends have suffered deeply and continually as a result of his death.

14. [55]

    The documentary evidence that was tendered on behalf of the applicant before the sentencing judge included a psychologist’s report, letters addressed to the Court by the applicant, his mother and a law firm relating to a civil claim made by the applicant in respect of alleged institutional sexual abuse.

15. [56]

    A report by a forensic psychologist, Julie Dombrowski, dated 30 March 2023, was tendered. The purpose of the report, as stated by Ms Dombrowski, was to “examine psychological factors of possible relevance to [the applicant’s] sentencing”. She reviewed the agreed facts and the applicant’s criminal and custodial histories and interviewed him on 7 and 10 February 2023.

16. [57]

    The applicant reported to Ms Dombrowski that at the time of the offence he was unemployed, regularly associating with antisocial peers and heavily using ice, heroin and non-prescribed benzodiazepine. As to his drug use around the time of the offence, Ms Dombrowski wrote:

17. [58]

    The applicant’s account of the offence to Ms Dombrowski was as follows.

18. [59]

    The applicant “expressed shock and remorse for his offending”, which Ms Dombrowski considered to be genuine.

19. [60]

    The applicant said that he felt that he had adjusted relatively well to prison routine, although:

20. [61]

    The applicant’s developmental history was summarised by Ms Dombrowski as follows:

21. [62]

    The applicant’s primary and secondary schooling was punctuated by regular suspensions and expulsions. He completed years 8 and 9 at a school specifically for children with behavioural difficulties. He was expelled from that institution and worked for five months delivering gyprock to construction sites. That employment ended when he was aged 17 and he has not worked since.

22. [63]

    As to the applicant’s history of drug abuse, he began smoking heroin at the age of 12 and ice at the age of 15. He reported a gradual increase thereafter of his use of these drugs, together with a history of opioids, cannabis, amphetamine, alcohol, MDMA, cocaine and non-prescribed benzodiazepine. The applicant reported two years of abstinence from ice (but not all substances) between 2010 and 2012, coinciding with the birth of his daughter. He said he initially used illicit substances to conform with his peers but attributed his increasing drug use as a method of avoiding negative thoughts and feelings associated with his adverse childhood experiences, including sexual abuse. The applicant had attempted rehabilitation in the past, although Ms Dombrowski noted that he had not completed an intensive therapeutic substance abuse treatment program. In 2017 and 2018, he completed the EQUIPS addiction program while in prison. In 2019, he accessed weekly drug and alcohol counselling through Odyssey House and completed the EQUIPS aggression program. In 2022, he commenced medicinal management of his opioid addiction by prescribed Buprenorphine.

23. [64]

    As to the applicant’s mental condition, Ms Dombrowski noted that he had not previously been diagnosed with a psychiatric condition and that he did not report any symptoms of psychosis, including during periods of heavy substance use. In 2019, the applicant’s Odyssey House counsellor suggested that he may have underlying depression, however, “[h]e denied experiencing sustained episodes of low or depressed mood, but rather felt angry, frustrated, and resentful throughout much of his childhood and adolescence”.

24. [65]

    Ms Dombrowski conducted a psychometric assessment utilising the Assessment of Emotional/Psychiatric and Personality Functioning (MMPI-2-RF). She concluded:

25. [66]

    In order to assess the applicant’s level of risk of reoffending, Ms Dombrowski applied the Self-Appraisal Questionnaire (SAQ) to the applicant, which is an instrument designed to assess the risk of general and violent recidivism. That assessment placed the applicant at a “‘high-moderate’ risk of committing further offences (violent or non-violent) within five years of his release”.

26. [67]

    The applicant’s scores on sets of sub-scales were consistent with aspects of his personal and criminal history. It provided a nuanced profile of aspects of his personality and behaviour that particularly exposed him to a risk of reoffending and thus, ideally required a clinical response.

27. [68]

    By way of summary, Ms Dombrowski noted that in the period leading up to and including the day of the offence, the applicant was using ice heavily, and heroin and non-prescribed benzodiazepine regularly. She concluded that it was very likely that his substance use impaired his decision-making and judgement and disinhibited his behaviour at the time of the offence.

28. [69]

    Ms Dombrowski made the following observations as to how the applicant’s offending behaviour should be understood in the context of his background and psychological profile:

29. [70]

    Ms Dombrowski opined that the “stressful and chronic” nature of the applicant’s disadvantaged developmental history, together with his history of early and heavy polysubstance use, likely interfered with normal development of the frontal areas of his brain, which are responsible for higher-level cognitive function, such as emotional and behavioural regulation and moral reasoning. As well, it shaped the development of an unstable personality structure, in keeping with a Cluster B (Dramatic/Erratic) personality type with antisocial features, which made him more vulnerable to depression and anxiety. She stated that the emotional intensity and instability of people with this personality type increases their risk of engaging in emotionally reactive and unlawful behaviours. She continued:

30. [71]

    Ms Dombrowski recommended long-term psychological treatment and management over several years to address his personality functioning, substance use and childhood traumas, noting that “[h]e will likely struggle to engage with treatment, which is common in people with his personality structure”.

31. [72]

    She also noted that the applicant was exhibiting “early symptoms of institutionalisation” and that he would benefit from transitional programming to manage his reintegration back into the community upon release from prison.

32. [73]

    In a letter addressed to the sentencing judge, the applicant expressed remorse for the offence and apologised to the family and friends of the deceased.

33. [74]

    A letter from the applicant’s mother, confirmed that “the background history (including violence, drug use at home, school experience etc) [the applicant] gave in [the report of Ms Dombrowski] are true and accurate to my knowledge”. She stated that the applicant has expressed remorse for his offence to her on many occasions. He initially struggled to settle into prison life and experienced hardship in custody due to the Covid pandemic. She stated:

34. [75]

    A letter to the Court from Slater and Gordon, solicitors, dated 29 March 2023, advised that the firm is acting for the applicant in a civil claim against the State of New South Wales arising from sexual abuse allegedly suffered by the applicant when he was a juvenile detainee at two Juvenile Justice centres in June 2005.

35. [76]

    In oral evidence at the sentence hearing, the applicant expressed remorse and a desire to “get a job, be a normal person” when released from prison, so that he could care for his teenage daughter. He said he had been unable to “do programs” while on remand, although he was now in a “drug rehabilitation program” and had “been out of trouble” for about a year. As a result, he felt motivated to not return to drug use on his release. In cross-examination, he accepted that although he had multiple past opportunities following his past releases from prison to engage in rehabilitation, he had not done so.

36. [77]

    At the conclusion of the applicant’s cross-examination, the sentencing judge observed that the agreed facts did not “fill out all the detail” of the facts of the offending and inquired: “Am I simply to decide the missing detail on the basis of the evidence I heard when I presided at the trial?” His Honour noted that, in the second trial, the applicant’s evidence was that he “waved the knife back and forth”, whereas:

37. [78]

    The Crown Prosecutor then questioned the applicant further as to his intent at the time of the stabbing, as did Senior Counsel for the applicant in re-examination, which elicited a denial by the applicant of an intention to deliberately stab the deceased. The parties agreed before the sentencing judge that the matter should proceed on the basis of the applicant’s intent being according to par 27 of the agreed facts.

38. [79]

    No point is taken on appeal in relation to this development. Its only relevance to the appeal is that it was the initial context in which the sentencing judge and counsel for each party referred to evidence from the second trial that was not in the agreed facts, which is relevant to ground 1.

39. [80]

    In the course of hearing oral submissions by the Crown Prosecutor, the sentencing judge referred to the evidence of the pathologist in the second trial, as his Honour recalled it, concerning the degree of force entailed in the knife wound:

40. [81]

    Shortly afterwards, his Honour said:

41. [82]

    His Honour then referred to the pathologist’s evidence in the second trial concerning the deceased being “a slightly built young man” and recalled Mr Bayes’ evidence:

42. [83]

    In her oral submissions, Senior Counsel for the applicant referred to the sentencing judge’s references to the stature of the deceased and Mr Bayes, saying:

43. [84]

    Senior Counsel for the applicant sought to correct the sentencing judge’s recollection of the forensic pathologist’s evidence in the second trial concerning the degree of force used in the stabbing:

44. [85]

    The parties agreed that the applicant was entitled to a 25 per cent discount for his early offer to plead guilty to the offence of manslaughter pursuant to s 25E(2) and s 25E(3)(a) of the Sentencing Procedure Act. The applicant accepted that relevant aggravating factors included the use of a weapon and the fact that the applicant was on conditional liberty at the time of the offence, pursuant to ss 21A(2)(c) and s 21A(2)(j) of the Sentencing Procedure Act, respectively.

45. [86]

    The Crown submitted in writing that the applicant’s intent at the relevant time was to cause grievous bodily harm to the deceased. It relied upon a statement of principles by the Court (Leeming JA, Garling and Lonergan JJ) in Newburn v R [2022] NSWCCA 139 at [39] and [52], which are applicable to the sentencing of an offender for manslaughter based on excessive self-defence. The Court is required to identify the circumstances as the offender (rightly or wrongly) perceived them to be and what, precisely, the conduct was that the offender believed was necessary in order to defend himself or herself. The offender’s perception of the circumstances, and necessary conduct to defend themselves, is integral to the issue of the degree to which that conduct was unreasonable.

46. [87]

    With respect to an assessment according to these principles, the Crown referred to three key facts. First, both Mr Bayes and the deceased were unarmed. Second, the perceived threat consisted of “a small number of punches (and unsuccessful attempts by Bayes to stomp/kick) from two men of slight build, the offender [having] suffered only the slightest of injuries”. Finally, following the applicant causing Mr Bayes to fall backwards onto the floor, he could have simply left the room. The variance in the applicant’s conduct from a reasonable response was significant and his moral culpability was, accordingly, high. Thus, the objective seriousness of the offence was “at or slightly above the mid-range of offences of manslaughter”.

47. [88]

    The applicant submitted that the objective seriousness of the offence was “below the mid-range” and that his moral culpability was “not at the high end of the range”. He had gone to the Lethbridge Park premises unarmed and not intending to confront anyone, but rather to retrieve his keys. The sight of the two men smoking ice while his daughter was in the premises, which prompted the confrontation, was, to him, “a provocative thing”. Within minutes he was assaulted by Mr Bayes and the deceased, to which the single stab wound was “a spontaneous reaction”.

48. [89]

    The applicant relied upon the fact that the offence was not planned or organised, as well as evidence of his remorse, pursuant to ss 21A(3)(b) and 21A(3)(i) of the Sentencing Procedure Act.

49. [90]

    A significant part of the applicant’s submissions concerned the proposition that the applicant’s moral culpability should be mitigated by the application of the principles enunciated in the majority judgment in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, in view of the evidence of the applicant’s childhood deprivation, including his exposure to domestic violence and drug abuse, sexual abuse while he was in state juvenile detention, his interrupted school attendance and his family’s material poverty. As well, Senior Counsel for the applicant orally submitted that the Bugmy principles were applicable to the applicant.

50. [91]

    In his written submissions, the applicant quoted a passage from Hoskins v R [2021] NSWCCA 169 in which Brereton JA (Basten JA and Beech-Jones J agreeing) stated, as to how Bugmy should be applied (footnotes omitted):

51. [92]

    The applicant extracted pars [40], [43] and [44] from Bugmy, in which the plurality referred to the need to ascribe “full weight” to an offender’s deprived background. The applicant concluded this part of his written submissions by stating:

52. [93]

    The applicant submitted for a finding of special circumstances, justified by a combination of factors, including the his long-standing drug addiction in light of his recent promising engagement in a drug rehabilitation program; his extended period on remand (almost 3 years exclusively for this offence) much of which was without recourse to rehabilitative programs; the risk of institutionalisation highlighted by Ms Dombrowski and the hardship occasioned to him by the impact of the COVID-19 pandemic on his prison conditions; particularly the absence of family visits and not having access to programs.

53. [94]

    The applicant submitted that his criminal record was consistent with his profile as a user and supplier of prohibited drugs. It included only three prior offences of violence committed as an adult, which were all assaults occasioning actual bodily harm, the earliest committed in 2009 when he was aged 18, the second in 2012 when he was aged 20 and the third in 2017 when he was aged 25.

54. [95]

    In oral submissions, the Crown indicated that it only wished to be heard in relation to certain comparative sentences relied upon by the applicant, which it submitted were not of assistance. Other than that, in relation to the applicant’s submission on his moral culpability and the application of the Bugmy principles, the Crown said:

The sentence judgment

1. [96]

   The sentence was handed down six days after the sentence hearing. The sentencing judge noted that the Crown accepted that the applicant was entitled to a discount of 25 per cent on the sentence that was otherwise appropriate, since he had offered to plead guilty to the offence at the earliest opportunity.

2. [97]

   His Honour’s recounting of the background to the offence included multiple details which were not in the agreed facts and which were apparently drawn from evidence in the second trial. These included details as to the past and the tentatively revived relationship between Sherie and the applicant; further detail as to the applicant’s assault of the deceased while he was seated in his car and that he took the deceased’s car keys during that incident; the relationship of Blake Mooney to the others (he was a friend of Mr Bayes and the deceased); and that when Sherie woke the applicant in her bed shortly before the offence, they resumed a heated argument that they had commenced earlier in the day.

3. [98]

   His Honour prefaced his recounting of the agreed facts concerning the stabbing by observing, at [11]:

4. [99]

   His Honour paraphrased the agreed facts as to what occurred in the period of time commencing from when the applicant discovered his keys were not in the padlock, to when he left the property.

5. [100]

   His Honour then stated, at [14]:

6. [101]

   His Honour recited par 27 of the agreed facts, extracted at [41] above, and then summarised the evidence given in the second trial by the forensic pathologist as to the position and dimensions of the knife wound and the degree of force likely required to perpetrate the injury, which was described as “similar to that required to slam a door”.

7. [102]

   His Honour stated, at [15]:

8. [103]

   His Honour, at [19], concluded that the applicant’s conduct in stabbing the deceased with intent to inflict grievous bodily harm must be taken to have been, in the terms of s 421(1)(c) of the Crimes Act, “not a reasonable response in the circumstances as he [perceived] them”, although he “[believed his] conduct [was] necessary to defend himself”.

9. [104]

   His Honour observed that the objective seriousness of the offence was affected by the degree to which the stabbing exceeded a reasonable response and, in that regard, neither the agreed facts nor the applicant’s evidence on sentence provided any elaboration beyond the sentence in par 27 of the agreed facts that: “[h]e believed it was necessary for him to inflict a wound upon [the deceased] in order to defend himself against [the deceased]”.

10. [105]

    His Honour stated, at [19], that he was obliged to make a finding “as to precisely what circumstances of threat [the applicant], subjectively, perceived”. His Honour concluded, at [20]:

11. [106]

    His Honour deduced from the deceased’s height and weight, as noted in the agreed facts, that the deceased was “slightly built”. Based on his Honour’s observations of Mr Bayes as a witness in the second trial, and there being no evidence that his build had significantly changed since the offence, his Honour concluded that Mr Bayes was also “slightly built”. In that respect, his Honour, at [21], made the finding that:

12. [107]

    His Honour stated, at [22], that in reaching that finding, he took into account the car assault incident:

13. [108]

    The agreed facts did not refer to anyone other than the deceased and applicant being present during the car assault incident.

14. [109]

    His Honour stated that he also took into account that, ten days before the offence and shortly after the applicant berated Mr Bayes and the deceased for smoking ice in his daughter’s residence, he sent texts to Mr Mooney. His Honour continued, at [25], explaining the relationship between Mr Mooney, Mr Bayes and the deceased:

15. [110]

    His Honour concluded, at [26]-[27]:

16. [111]

    His Honour opined that, objectively, the applicant had multiple reasonable alternative responses to the threat that he perceived, including fighting back “in kind”, continuing to shield his head from the blows and/or retreating from the house. His Honour noted, at [28]:

17. [112]

    As to the applicant’s subjective case, his Honour referred to the applicant’s history obtained by Ms Dombrowski in some detail, noting that it was confirmed by the applicant in his sworn evidence and that it was not challenged. His Honour referred to the history of his erratic school attendance and behavioural issues, his drug use from the age of 12 and its subsequent escalation, his unsuccessful attempts at abstinence and counselling and his (then) current attempt at medicinal treatment of his drug use. His Honour reviewed his custodial history, noting that he had spent a total of four and a half years in custody by 9 May 2019. His Honour noted that the community correction order was current at the time of the offence and found that the applicant’s record disentitled him from leniency on the basis of past conduct.

18. [113]

    As to any link between the applicant’s various issues and the commission of the offence, his Honour referred, at [34], to Ms Dombrowski having “linked [the applicant’s] behavioural dysregulation at the time of the offence to his high rate of usage of illicit substances”. His Honour extracted passages from Ms Dombrowski's report in which she referred to the applicant’s drug use having underpinned the disturbances to the applicant’s behavioural functioning, and likely having impaired his decision-making and judgment at the time of the offence, including disinhibiting his behaviour. As well, the extracted passages referred to the fact that, while the applicant used substances to manage negative thoughts and feelings associated with his experiences of neglect and abuse, that use had further undermined the quality of his psychosocial functioning and his ability to regulate and manage his emotions and behaviours.

19. [114]

    His Honour concluded, at [36]:

20. [115]

    His Honour stated that the applicant was to be sentenced on the basis that he deliberately stabbed the deceased, in view of that being admitted in the agreed facts, although the applicant claimed at the second trial, and to Ms Dombrowski, that he was not conscious of having inflicted any wound when he swung the knife at the deceased and Mr Bayes.

21. [116]

    His Honour accepted that the applicant had expressed genuine remorse.

22. [117]

    His Honour had reservations as to the applicant’s prospects of rehabilitation in view of him having become “habituated to living off others by criminal activity”, which has been “reinforced by negative, conflictual and aggressive attitudes to everyone around him”: at [38]. His Honour observed, at [32], that that “[u]p to 9 May 2019, aged just short of 28 years, [the applicant] had spent a total of 4 ½ years in full-time custody”.

23. [118]

    His Honour noted, at [39], that he had been invited to find special circumstances, but declined to do so, explaining that the non-parole period:

24. [119]

    His Honour stated that the sentence commencement date was two months after the applicant’s arrest and entry into custody, in recognition of the fixed sentence of two months that was imposed for the unrelated offence of the possession or use of a weapon in a public place.

The application for leave

1. [120]

   The applicant submits that it was not open to his Honour to take into account parts of the evidence in the second trial for the purpose of making findings of fact in the sentencing exercise, because the evidence in the second trial was not evidence in the sentence proceedings. The applicant accepts that the sentencing judge was not bound by the agreed facts if they were insufficient to enable a proper performance of the sentencing judge’s function, and that his Honour was entitled to seek evidence of more detail as to the acts for which the applicant was to be sentenced: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 per Kirby P at 608C and Sheller JA at 613F. However, the sentencing judge remained bound by the evidence tendered on the sentence hearing.

2. [121]

   The applicant acknowledges that neither counsel had objected to the sentencing judge taking into account some evidence in the second trial for that purpose and, indeed, at various points both counsel had invited his Honour to use parts of the evidence, as each recalled it, for that purpose. The applicant submits that the sentencing judge applied this evidence in conjunction with the agreed facts to determine the seriousness of the offence. The evidence that fell into this category, according to the applicant, was as follows.

   1. (1)

      The evidence of the forensic pathologist concerning the degree of force used to insert the knife into the victim’s body (“similar to that required to slam a door”) and the details of the passage of the knife through the victim’s body (the agreed facts did not record the entry point of the knife wound, which has 100mm below the base of his neck and 10mm to the right of the midline of his chest and that its depth was between 30 and 100mm);

   2. (2)

      his Honour’s conclusion as to Mr Bayes’ build at the time of the offence, based upon observations of him when giving evidence at the trial and there being no evidence that his build was any different at the time of the offence;

   3. (3)

      Mr Bayes’ evidence concerning his attitude towards the applicant and what he observed of the incident involving the applicant punching the deceased; and

   4. (4)

      Medical evidence concerning the age of the injuries on the victim’s knuckles.

3. [122]

   The applicant submits that, although the sentencing judge twice foreshadowed that he would hear from Senior Counsel as to her position in respect of him taking into account certain evidence from the second trial, she did not expressly respond to that invitation which, the applicant submits, allows this Court to infer that she did not turn her mind to that question. Alternatively, if this Court determines that Senior Counsel had made a “legitimate forensic decision” to not oppose the sentencing judge relying in part on evidence from the second trial, he submits that any benefit from that decision was slight when compared to the detriment to the applicant’s case, so that the court is not precluded from determining that a miscarriage of justice occurred: TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 per Gaudron J at [28]. [AWS [42] and [43]]

4. [123]

   The respondent submits that the applicant has not demonstrated a miscarriage of justice, since Senior Counsel for the applicant acquiesced to the course adopted by the sentencing judge and, indeed, also sought to rely upon evidence from the second trial. To the extent that the applicant has raised an issue of incompetence of counsel, that submission should be rejected, because it was not pleaded as a ground of appeal and there is no evidence from Senior Counsel concerning the matters complained of on appeal. The respondent submits that, to the contrary, the approach taken by Senior Counsel of engaging with the sentencing judge on the evidence in the second trial suggested that her conduct was appropriate.

5. [124]

   The fact that the evidence from the second trial was not tendered did not give rise to any irregularity or unfairness that affected the outcome of the proceedings. The sentencing judge acted fairly by alerting the parties to the shortcoming of the agreed facts and to his intention to have regard to the evidence tendered at the second trial. The respondent submits that, had Senior Counsel objected to that course, it would have been futile:

6. [125]

   The relevant principles as to whether a miscarriage of justice is established by a breach of procedural rules by counsel in the conduct of a sentence hearing was recently stated in Green v R [2022] NSWCCA 230 by Hamill J (Macfarlan JA and Harrison J agreeing) as follows:

7. [126]

   A miscarriage of justice is established if there is a material irregularity and there is a significant possibility that it affected the outcome of the hearing, in this case, the sentence hearing: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79]. See also Tsiakas v R [2015] NSWCCA 187 per Beech-Jones J (as his Honour then was), Leeming JA and Johnson J agreeing, at [42].

8. [127]

   The sentencing judge was entitled to express concern to the parties at the sentence hearing as to the adequacy of the agreed facts for the sentencing exercise and to pose the question of whether aspects of the evidence in the second trial should be taken into account: Chow at 608C, Sheller JA at 613F.

9. [128]

   The ambit of material that a sentencing judge may draw upon in determining relevant facts was stated by the Court in GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30]:

10. [129]

    The evidence available to the sentencing judge in fact-finding and making the determinations necessary to formulate the appropriate sentence is constrained to these sources. Although the evidence in the second trial was not tendered, aspects of it were discussed and inferentially accepted by the parties to be available to the sentencing judge. As noted, the Crown Prosecutor expressly agreed with the sentencing judge’s proposal to take into account aspects of the evidence of the second trial and, on my reading of the transcript of the sentence hearing, Senior Counsel for the applicant implicitly agreed to that course as well, by drawing upon other aspects of the evidence in the second trial that were not in the agreed facts to submit for a different factual finding to that proposed by the sentencing judge.

11. [130]

    In my view, that approach by Senior Counsel bespoke a forensic decision by her to join with the Crown Prosecutor and accept that it was open to the sentencing judge to have regard to certain aspects of the evidence in the second trial, although the transcript of those parts was not tendered into evidence. Their decision was analogous to an informal admission by the parties of parts of the evidence in the second trial, as recalled by them and by the sentencing judge, in a manner that is consistent with the reference to evidence that is informally admitted in the passage from GAS extracted above.

12. [131]

    In this category, I would include the exchanges between the sentencing judge and counsel concerning their recollection of the evidence of the pathologist’s evidence as to the location, depth and further detail as to the course of the knife wound; the pathologist’s opinion as to the degree or force required to cause the knife wound; that the applicant, the deceased and Mr Bayes were slightly built; that Mr Bayes was a timid man who claimed to be afraid of the applicant; that he was a witness of the car assault incident and the fine detail of that incident.

13. [132]

    The evidence from the second trial that was recalled by the sentencing judge in the sentence judgment that had not been specifically discussed at the sentence hearing was, in my view, irrelevant to the sentencing judge’s fact-finding and determinations.

14. [133]

    His Honour’s reference to the Crown case in the second trial being that the stabbing occurred in the backyard, which is extracted at [100] above, was a matter that his Honour identified and then expressly put to one side for the purpose of the sentencing exercise.

15. [134]

    It follows that, applying the relevant principles, the applicant has not established that there was a miscarriage of justice. The evidence of the second trial that was canvassed during the sentence hearing by his Honour, or raised by counsel, was implicitly agreed by counsel to be material available to the sentencing judge for consideration in the sentence exercise. The evidence of the second trial that was incorporated into the sentence judgment that had not been canvassed in the sentence hearing with counsel and thus was not informally approved by counsel, did not contribute to a finding of fact or determination in his Honour’s reasoning, and thus did not affect the outcome of the sentence hearing.

16. [135]

    Accordingly, I would dismiss the appeal on ground 1.

17. [136]

    The parties’ written submissions pre-date the filing by the applicant of his notice of intention to seek leave to amend the terms of ground 2. To the extent that they retain relevance to the ground as amended, they are considered.

18. [137]

    The applicant submitted in writing that since the sentencing judge accepted that the applicant had experienced significant childhood deprivation, his Honour was obliged to then apply the Bugmy principles by considering whether that deprivation impacted on the applicant’s moral culpability, citing Lloyd v R [2022] NSWCCA 18 per McCallum JA (Hamill and Cavanagh JJ agreeing) at [32] in support of that proposition. The applicant submitted that the sentencing judge’s observation that “[the applicant] is undoubtedly entitled to consideration that fully takes account of the adversity of his upbringing” did not discharge that obligation, since that was not a consideration of whether, and if so how and why (or why not), the Bugmy considerations impacted the applicant’s moral culpability.

19. [138]

    The applicant submitted that his Honour’s express consideration of the relevance of background factors was confined to whether the applicant’s drug use, both long-term and on the evening of the offence, was mitigatory. That examination stopped short of engaging with Ms Dombrowski’s opinion that there was a nexus between this drug use and his childhood deprivation.

20. [139]

    In oral submissions, the applicant submitted that the nature of this offence was reactive and spontaneous, rather than one that involved planning or premeditation, so that the issue of the relevance of his background of childhood deprivation to the commission of the offence was squarely enlivened.

21. [140]

    The respondent submitted that a finding by a sentencing judge that an offender has a deprived background does not mean that their moral culpability is necessarily reduced, although it must still be taken into account as part of the process of instinctive synthesis, which in this case, his Honour did. The sentencing judge comprehensively referred to the applicant’s disadvantaged childhood as related in Ms Dombrowski’s report and, at [36] of the sentence judgment which is extracted at [114] above, found that, while the applicant’s impairment in judgment and self-control due to his drug use at the time of the offence was not mitigatory, he was “undoubtedly entitled to consideration that fully takes account of the adversity of his upbringing”. The respondent concluded:

22. [141]

    The applicant submitted to the sentencing judge that his profound childhood deprivation had compromised his moral development in a way that affected his impulsive decision to stab the deceased, thus reducing his moral culpability for the offence in accordance with the principles enunciated by the plurality in Bugmy.

23. [142]

    His Honour did not refer at all to the concept of moral culpability or to Bugmy in his reasons for sentence. However, the fact that an item of evidence or legal principle is not mentioned in a sentence judgment does not necessarily mean that it was not taken into account by the sentencing judge: Church v R [2012] NSWCCA 149 at [36]. Further, remarks on sentence that were delivered ex tempore should be scrutinised with a degree of latitude: Dunshea v R [2016] NSWCCA 244 at [23]. Although the judgment was delivered six days after the sentence hearing, it appears that it was nevertheless an ex tempore judgment, in the sense that it had not been reduced to writing or otherwise composed before delivery.

24. [143]

    It is appropriate to recall the statement of principles by the plurality in Bugmy:

25. [144]

    Although the sentencing judge did not mention or make a finding in respect of the applicant’s moral culpability, his Honour determined that “the adversity of [the applicant’s] upbringing” would be fully taken into account, which echoes the emphasised words in [44] of Bugmy. In this sense, the sentencing judge adverted to the proposition that profound childhood deprivation must be taken into account in all sentencing exercises, regardless of whether it reduces an offender’s moral culpability, which is one aspect of the Bugmy principles; see also Hoskins at [56], [57], quoted at [91] above.

26. [145]

    The essence of the Bugmy principles is a recognition that an offender’s physical and moral environment in their formative years may profoundly impair their moral compass and judgment, so that they may not be as morally culpable for subsequent criminal behaviour as an offender who has not been so afflicted. In order to determine whether a reduction in moral culpability is warranted on this basis, it is logically necessary to consider the evidence as to how those childhood experiences have affected the offender. If the offender’s moral culpability is reduced by that impact, consideration is then given to whether countervailing factors, such as the need to protect the community, reduce or eliminate its mitigatory effect.

27. [146]

    Application of the Bugmy principles is not discretionary: R v Irwin [2019] NSWCCA 133 at [3]. Once raised, it was necessary for the sentencing judge to consider the evidence as to whether the Bugmy principles applied in a way that reduced the applicant’s moral culpability: Lloyd v R [2022] NSWCCA 18 at [32], [35].

28. [147]

    The particular circumstances that concerned the court in the Bugmy decision were that the offender’s childhood environment of alcohol abuse and violence resonated with his impulsive recourse to violence, in a moment of frustration, as an adult. Although the sentencing judge in the instant case accepted that the applicant grew up in a household where his heroin-addicted stepfather perpetrated physical violence against him, his mother and siblings, his Honour did not engage with the question of whether it marred his moral development, compromised his capacity to mature and to learn from experience, and in that sense contributed to his impulsive recourse to violence to end the assault against him, by which he committed the offence.

29. [148]

    That evidence was in the psychologist’s report. In the passage extracted at [69] above, Ms Dombrowski expressed and explained her opinion that there was a link between the applicant’s offending and his childhood and early adolescent experiences. That incorporated an explanation of how his drug use, which began with smoking heroin at the age of 12 consequent to witnessing his stepfather’s use of heroin, and continued into adulthood, with methylamphetamine and other substances as well, was a means to: “manage negative thoughts and feelings associated with his experiences of neglect and abuse (physical and sexual)”. In the passage of her report that is summarised at [70] above, Ms Dombrowski explained how the applicant’s disadvantaged developmental history, together with his early and heavy drug use, likely interfered with the normal development of the areas of his brain that are responsible for cognitive function, such as emotional and behavioural regulation and moral reasoning, which is known to lead to increase the risk of engaging in emotionally reactive and unlawful behaviours. The applicant’s resultant unstable personality, together with his drug use and antisocial associations, were factors linked to his background of childhood deprivation that were relevant to the commission of the offence.

30. [149]

    This Court has observed that a “causal link” between an offender’s profound childhood deprivation and the commission of the offence is not a prerequisite to the application of the Bugmy principles: see for example R v MJ [2023] NSWCCA 306 per Price J at [132]-[135], Davies J agreeing, and Simpson AJA at [2] – [15]. Nevertheless, it has been observed that “if such a link exists then inevitably there will be a reduction in an offender’s moral culpability”: Dungay at [153], cited with approval in Hoskins at [57].

31. [150]

    As noted, the respondent cited two cases in support of its submission that the sentencing judge giving “full weight” to the applicant’s adverse background sufficed, which are MH and DR. However, neither case assists the proposition that it was unnecessary for the sentencing judge to expressly engage with the Bugmy principles and consider whether a reduction of the applicant’s moral culpability was warranted. In MH at [36], Lonergan J (Ward P and Mitchelmore JA agreeing) found that the sentencing judge had expressly considered whether the offenders’ moral culpability was reduced by the effects of his childhood:

32. [151]

    In DR at [38], Bellew J (Ward P and R A Hulme J agreeing) noted that counsel for the applicant had withdrawn a submission that the offender’s disadvantaged background had reduced his moral culpability, but that it remained a relevant matter to be taken into account as part of his subjective case. Bellew J observed:

33. [152]

    Accordingly, in order to comply with the Bugmy principles, it was necessary for the sentencing judge to consider whether the evidence of the applicant’s profound childhood deprivation warranted a reduction of his moral culpability. To not do so was to not take into account a material consideration, which constituted error in the sense of House v R.

34. [153]

    For these reasons, I would uphold ground 2, as amended.

35. [154]

    As noted, the sentencing judge declined to find special circumstances, since the non-parole period would be sufficient without a variation to provide supervision of the applicant back into the community. In response to the specific bases raised by the applicant, which are referenced at [93] above, the sentencing judge referred to the applicant’s submission that he required an additional period of supervision because of “his drug addiction [and] his need for rehabilitation”. The sentencing judge responded that “these matters are general sentencing considerations that have no special significance for the ratio of the non-parole period”. His Honour continued, at [43]:

36. [155]

    The applicant submitted that, to the extent that his Honour’s remarks concerning drug addiction and rehabilitation reflect a finding that such matters are not capable of supporting a finding of special circumstances, his Honour fell into error. His Honour’s finding concerning the risk of institutionalisation was contrary to the psychologist’s opinion and involved a miscalculation as to how long he had been in custody. Instead of him being in custody for four and a half years by the time he was almost 28 years old, the correct calculation was 5 years and 3 months. By the time of his release at age 35, he would have spent approximately 12 years and 2 months in custody, which would be 70 per cent of his adult life.

37. [156]

    As to the impact of COVID-19 restrictions on his opportunity for family visits, it was submitted that the sentencing judge’s finding that it did not add to the applicant’s burden “to a significant extent” was contrary to his mother’s evidence that it had made him more depressed.

38. [157]

    The respondent submitted that the applicant’s understanding of the sentencing judge’s determination concerning drug addiction and rehabilitation should be rejected:

39. [158]

    The finding as to institutionalisation was open to the sentencing judge on the evidence. As to the COVID-19 restrictions, the respondent submitted that the sentencing judge took into account the relevant aspects (“limitations in face-to-face visits, the longer periods of lockdown, limitations on rehabilitative programs, and general anxiety”) and was entitled to not be satisfied that they constituted special circumstances, because there was no “current and reliable evidence” of its impact, citing Wass v R [2022] NSWCCA 143, at [69]-[71] and Doudar v R [2021] NSWCCA 37, at [73].

40. [159]

    Although the respondent did not dispute the applicant’s claim of a miscalculation of his time in custody, there is no reason to doubt that the sentencing judge would have been cognisant of the fact that, by the time the applicant qualifies for parole, he would have spent the overwhelming majority of his adulthood in custody. While minds might differ as to whether the applicant was in danger of institutionalisation, in my view, there is no error in the sentencing judge’s approach to that issue. Consideration of whether special circumstances are made out is an exercise in discretion, in which this Court would be slow to intervene: Caristo v R [2011] NSWCCA 7 at [28]. The sentencing judge duly considered the relevant evidence and rejected it as a special circumstance.

41. [160]

    The sentencing judge’s stated reason for not making a finding of special circumstances in respect of the applicant’s drug addiction and need for rehabilitation does not, on its face, allow for any meaning other than that neither issue is a proper basis for a finding of special circumstances. The meaning contended for by the respondent, namely, that it was a finding specifically in respect of the circumstances of this particular case and not an observation in relation to that issue generally, is difficult to infer from that one-sentence reference.

42. [161]

    It is not in dispute between the parties that a need for drug and/or alcohol rehabilitation is, in fact, a proper basis for finding special circumstances: DC v R [2023] NSWCCA 82 at [84]-[86]. An example of its application is R v Cramp [2004] NSWCCA 264, in which on resentence Spigelman CJ, Hidden and Buddin JJ agreeing, at [70] found special circumstances:

43. [162]

    The sentencing judge’s determination that the loss of face to face visits “would have had no more than a modest effect upon [the applicant] in view of his lack of significant prosocial connections even when in the community” is a finding that appears to connect the evidence as to the applicant’s lack of pro-social associations when not in prison with the value of his relationships with his immediate family, namely, his mother and daughter. However, there is no suggestion in the evidence that when the applicant was in the community he did not have regular contact with his mother and daughter or that the contact was not a prosocial influence in his life.

44. [163]

    The respondent’s submission that there was no evidence before the sentencing court of the impact of the COVID-19 restrictions is contradicted by the content of the applicant’s mother’s letter to the court that was in evidence. She stated that, due to the COVID-19 pandemic, prison visits to the applicant were impossible for two years.

45. [164]

    A deprivation of face to face visits consequent to prison restrictions in response to the COVID-19 pandemic, even though audio video link (AVL) communication was available, is a matter that may be taken into account when fixing sentence: Taha v R [2022] NSWCCA 46 at [70]. Although whether to do so was a matter of discretion, the sentencing judge’s reasoning suggests that he has not had regard to a material consideration, namely the loss of family visits for two years due to COVID-19 pandemic restrictions, so that error of the type in House v The King is established.

46. [165]

    Accordingly, I would uphold ground 3.

47. [166]

    Error having been established, as is apparent from my reasons below, I consider that a different (lesser) sentence is warranted, so that it is necessary to resentence the applicant: Kentwell.

Resentence of the applicant

1. [167]

   I find, consistently with the agreed facts, that the applicant deliberately stabbed the deceased in his chest, with the intent to cause him grievous (really serious) bodily harm. The circumstances as the applicant, rightly or wrongly, perceived them to be, were that he believed it was necessary for him to do so in order to defend himself against the deceased. The nature of the threat perceived by the applicant was of the deceased and Mr Bayes, who were known to him, continuing the fight; that is, to punch him to the head and face and Mr Bayes attempting to kick him.

2. [168]

   In determining the reasonableness of the applicant’s action and intent, in light of his perception of the threat, I note the following aspects of the agreed facts and certain inferences that I draw from them, of which I am satisfied beyond reasonable doubt.

3. [169]

   As to the applicant’s ability to handle the fist-fight with the two men without sustaining serious injury, I note that he had been sufficiently comfortable with being in a fist-fight with the deceased about three weeks before to have punched him in his head, in the car assault incident.

4. [170]

   The deceased did not initiate the assault, but rather joined in it. The deceased’s role was confined to repeatedly punching the applicant to his head and face. Mr Bayes also repeatedly punched the applicant and unsuccessfully attempted to stomp on or kick him. Those attempts backfired when the applicant grabbed Mr Bayes by his ankle and kicked him in his chest or stomach, causing him to fall backwards onto the floor, which suggests that the applicant was “holding his own”, at least up to that point.

5. [171]

   It was then, while Mr Bayes was on the floor, that the applicant chose to arm himself with the knife. Mr Bayes got up and the two assailants attempted to punch the applicant again. The applicant swung the knife back and forth and determined to stab the deceased.

6. [172]

   As to the extent to which the applicant’s response was objectively unreasonable in the circumstances, it was, in my view, disproportionate for the applicant to arm himself with a knife in response to a fist fight that might, at worst, involve further attempts at kicking or stomping. The assailants were not strangers to him, there is no suggestion that they threatened to seriously harm or kill him and it is not suggested that he thought or feared they were armed. He was not in an isolated location; he was in the residence of his child’s grandmother, who was elsewhere on the premises at the time.

7. [173]

   Moving the knife back and forth was sufficient in itself to stop the two assailants from succeeding in punching him again or kick him. It was grossly disproportionate for the applicant to go further and, with an intent to cause really serious bodily harm to the deceased, deliberately stab him in his chest.

8. [174]

   I would make the same finding as the sentencing judge did as to the seriousness of the offending, namely, that the applicant’s conduct was unreasonable by a very great margin. In my view, the offence was a particularly serious instance of manslaughter by excessive self-defence. Although the applicant’s intent was not to kill the deceased, his decision to stab the deceased in his chest posed an obvious danger of jeopardising his life. The offence of manslaughter does not have a standard non-parole period, so it is unnecessary to qualify the seriousness of the offence in terms of a range.

9. [175]

   As to the applicant’s level of moral culpability, Ms Dombrowski’s report sheds light on why the applicant reacted so disproportionately to multiple punches by the two men, namely, that it was consistent with his unstable personality and associated difficulties with emotional and behavioural regulation. His long-term drug use was his way of managing his negative thoughts and feelings associated with the traumas he had experienced in his developmental period which, in turn, had undermined his psychosocial functioning and exacerbated his inability to regulate his emotions and behaviour. In the situation in which he unexpectedly found himself when attacked by Mr Bayes and the deceased, his gross overreaction is consistent with his unstable personality and the impact of his drug use, both of which are causally connected to his childhood experiences.

10. [176]

    Ms Dombrowski’s findings were partly based on the applicant’s unchallenged and personal history, which was corroborated by his mother in her letter to the court. I accept Ms Dombrowski’s opinion as to the nexus between the applicant’s childhood and adolescent experiences and his commission of the offence. In applying the Bugmy principles to these findings, I conclude that the offender’s moral culpability is significantly reduced.

11. [177]

    I note, however, that the same reasoning that reduces his moral culpability gives cause for concern as to the risk of future violent recidivism. The applicant’s psychological issues associated with his developmental history are untreated and likely to substantively remain so, at least while in custody. Although his lengthy criminal record is primarily comprised of non-violent offences, it is consistent with a history of entrenched serious drug abuse and, by association, a continuing antisocial peer group. Thus, the issues identified by Ms Dombrowski as providing some background understanding of the offence are continuing concerns as to the applicant’s level of risk of recidivism. I note Ms Dombrowski’s opinion of a “high-moderate” risk of the applicant committing further violent or non-violent offences within 5 years of his release.

12. [178]

    On resentence, I read the affidavit of the applicant’s solicitor, Frances Low, which has notes from Justice Health annexed to it. Those notes, which were created between May and October 2023, confirm that the applicant was receiving monthly injections of Buprenorphine and did not present as being intoxicated or experiencing symptoms of the use of illicit substances.

13. [179]

    I would find special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, for three reasons. First, the issues identified by Ms Dombrowski coincide with the applicant’s reduced moral culpability to warrant a lengthy period of supervision during which I expect the parole supervisory authorities would oblige the applicant to receive psychological services of the nature that she recommends in her report.

14. [180]

    Second, the applicant is at risk of continuing a cycle of reoffending. He has spent a considerable proportion of his adulthood in prison. At the time of this offence, the applicant was aged 28. On my calculations, he had been incarcerated for about six and a half years of the 10 years of his adulthood. By the time that he was sentenced for this offence on 20 April 2023, at which time he was aged 31, he had been in prison for about 9 years and 8 months of his 13 years of adulthood. In view of those figures and the applicant’s limited history of a prosocial lifestyle in the community, which he claimed in evidence to aspire to, he (and the community) would benefit from a prolonged period of supervised assistance if he is to successfully make that transformation.

15. [181]

    Finally, I would find special circumstances on the basis of the prison conditions that applied during the COVID-19 pandemic, in particular, his loss of face-to-face family visits and the unavailability of prison programs.

16. [182]

    I would have regard to the maximum sentence for the offence of manslaughter, which is 25 years imprisonment. I would also have regard to each of the purposes of sentencing, as they are set out in s 3A of the Sentencing Procedure Act. The offence involved the use of a weapon, and the applicant was subject to the community correction order at the time of the offence: ss 21A(2)(c) and 21A(2)(j) of the Sentencing Procedure Act, respectively. I am satisfied that no penalty other than imprisonment is appropriate: s 5(1) of the Sentencing Procedure Act.

17. [183]

    I take into account that the offence was not planned or organised criminal activity: s 21A(3)(b) of the Sentencing Procedure Act. I make the same findings as the sentencing judge as to the evidence of remorse, namely, that it is genuine: s 21A(3)(i) of the Sentencing Procedure Act. The applicant is entitled to a 25 per cent discount for his plea of guilty: s 25E(2) and s 25E(3)(a)of the Sentencing Procedure Act.

18. [184]

    I would sentence the applicant to imprisonment for a period of 8 years and 6 months, backdated to commence on 7 May 2020 and to expire on 6 November 2028. I would impose a non-parole period of 5 years and 6 months, to expire on 6 November 2025.