Judge v R

1. [1]

   WHITE JA: This is an application for leave to appeal against a sentence imposed upon the applicant, Mr Gaven Judge, in the District Court at Parramatta on 24 July 2017 (Judge Colefax SC). The applicant had pleaded guilty on the first day of his trial to the offence of robbery in company, being an offence contrary to s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 20 years’ imprisonment. The primary judge allowed a 10 per cent discount on sentence for the utilitarian value of the plea of guilty.

2. [2]

   The primary judge stated that, but for the plea of guilty, the applicant would have been sentenced to a term of imprisonment of six years. Because of that plea, and after application of the 10 per cent discount, the applicant was sentenced to a term of imprisonment of five years and five months. The sentencing judge declined to make a finding of special circumstances. His Honour fixed a non-parole period of four years. The sentence was dated to commence from 22 September 2016, being the date at which the non-parole period of other offences for which the applicant had been sentenced on 26 April 2016 expired.

3. [3]

   The applicant had been charged with a related offence of affray contrary to s 93C of the Crimes Act. This offence was the subject of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). That charge was dismissed.

4. [4]

   The applicant seeks leave to appeal against the sentence imposed on the following grounds:

5. [5]

   The indictment charged that the applicant and a co-offender, a Mr Richard Batty:

6. [6]

   At the time of the offence the applicant was 22 years old. The offence was captured on CCTV footage. It was described by the sentencing judge as follows:

7. [7]

   The primary judge referred to the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 where Spigelman CJ, with whom the majority of the Court agreed, said:

8. [8]

   The present offence differed in some respects from the category of case referred to in R v Henry. The applicant has an extensive criminal history. A weapon was not used, but actual violence was used.

9. [9]

   There were significant aggravating factors. At the time of the offence Mr Judge was serving two suspended sentences: one imposed for an offence of common assault, and the other for an offence of stalking and intimidation. He had also entered into a good behaviour bond for an offence of dishonestly obtaining property by deception. The aggravating factors were that the offence involved the actual use of violence, albeit that the violence was inflicted by Mr Judge’s co-offender (Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(b)). The offence was committed while Mr Judge was on conditional liberty (s 21A(2)(j)).

10. [10]

    While on bail for the offence Mr Judge committed further offences. Mr Judge was arrested and charged on 30 August 2015 in relation to these offences. He was then granted conditional bail. Whilst on bail he committed additional offences. They were dealt with in the Penrith Local Court on 26 April 2016. These included conviction of offences of possession of a prohibited drug (for which he was convicted, but no further penalty was imposed) (s 10A). He was also convicted of an offence on 23 March 2016 of having been in possession of a prohibited weapon (a taser) without a permit. For that offence he was sentenced to six months’ imprisonment from 23 March 2016 to 22 September 2016. On 26 April 2016 he was called up for breaching the bond and the terms of the suspended sentences imposed on 25 May 2015. He was sentenced to a fixed term of six months’ imprisonment from 23 June 2016 to 22 September 2016 and two terms of 12 months’ imprisonment and 15 months’ imprisonment for the offences of common assault and stalking and intimidation. For those offences a non-parole period was fixed to expire on 22 September 2016. All those sentences were made concurrent.

11. [11]

    In his remarks on sentence the sentencing judge said:

First ground of appeal

1. [12]

   As noted at para [4] above, the first ground of appeal is that the sentencing judge failed to advert to or apply the principles of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

2. [13]

   No reference was made to Bugmy v The Queen in the course of submissions before the sentencing judge on sentence. But the principles would have been well-known to the sentencing judge and to counsel. Counsel then appearing for Mr Judge did make submissions that sought to invoke what has been described as the “principles” in Bugmy. Counsel then appearing for Mr Judge said:

3. [14]

   Counsel was here referring to a report of a forensic psychologist, Ms Kathryn Wakely, of 25 April 2017. She had interviewed Mr Judge on 12 April 2017 over a period of almost two hours. She recorded a history given to her by Mr Judge that included the following elements:

4. [15]

   Mr Judge relied upon Ms Wakely’s report before the primary judge. Counsel for Mr Judge made extensive reference to it. Three aspects of the report should be noted. First, the description of Mr Judge’s trauma and abuse as a child or teenager and his use of cannabis and alcohol from a young age is said to show profound childhood deprivation that reduces Mr Judge’s moral culpability for the offence and to which, it is said, the primary judge failed to have regard.

5. [16]

   Secondly, Ms Wakely’s opinion at para 62 quoted above is said to show a causal relationship between his post-traumatic stress disorder and his offending in that he was intimidated by and submissive to Mr Batty.

6. [17]

   Thirdly, before the sentencing judge, counsel relied upon para 66 in submitting that Mr Judge was at the risk of becoming institutionalised over time, should he spend a lengthy period in custody.

7. [18]

   Ms Wakely’s report was not the only material provided to the sentencing judge in relation to Mr Judge’s mental health and childhood background. Other evidence clearly established that one year to the day after his son’s death Mr Judge attempted suicide. On 23 November 2014 a psychiatric registrar at Cumberland Hospital, Westmead, reported on the suicide attempt and expressed the conclusion that there was a “chronic risk of self-harm and suicide given his son’s anniversary of death in the context of BPD” (presumably Bipolar Disorder, although possibly Borderline Personality Disorder).

8. [19]

   On 13 February 2015, a Ms Lynne Shailer, a credentialed mental health nurse with the Hills and Hawkesbury Counselling Service provided a report for the Blacktown Local Court. She said that Mr Judge had been introduced to her following an admission to Blacktown Hospital on 6 January 2015. On initial assessment he was extremely agitated and anxious with some psychotic features. She saw Mr Judge weekly in the period from 6 January to 9 February 2015 when his symptoms appeared to have improved. She recorded a diagnosis of “complex PDSD, ADHD, and Anxiety and Depression with psychotic [(photocopy illegible)]”.

9. [20]

   On 25 May 2015 a Ms Nancy Vaccarella provided a pre-sentence report, apparently for the offences being dealt with in the Local Court of dishonestly obtaining property by deception, common assault, destruction or damage of property and possessing a prohibited drug, and stalking or intimidating. Ms Vaccarella was a community corrections officer with the Blacktown Community Corrections Office. She summarised Mr Judge’s report to her of his unsettled childhood, of having been a victim of a serious assault by a close family member, of the trauma of his son’s death, his substance abuse, and reported on his mental health diagnoses he had been given to that point.

10. [21]

    On 16 August 2016 Dr Gordon Elliott of Justice Health and Forensic Mental Health Network, a consultant psychiatrist, provided a report to the Penrith Local Court on Mr Judge. Dr Elliott was sceptical of Mr Judge. He did note that on 7 June 2016 Mr Judge had been assessed by a consultant psychiatrist, Dr Sue Morgans of Telehealth, who considered that Mr Judge had a Borderline Personality Disorder, or a Complex Post Traumatic Distress Disorder. Dr Elliott reported that in his view Mr Judge was a:

11. [22]

    Dr Elliott said that Mr Judge’s account of his history of methamphetamine use was inconsistent with a finding of a drug court in 2012 which indicated a severe methamphetamine use disorder at that time. This was before his son’s death. Mr Judge had claimed to Dr Elliott that he commenced methamphetamine use at the time of his son’s death. Dr Elliott’s conclusion was that:

12. [23]

    In his recorded interview with the police, Mr Judge said that he was standing behind the victim whilst Batty was assaulting the victim because Batty told him to do so and that he did not want Batty to do it but was scared of him at the time. This was consistent with Ms Wakely’s opinion that Mr Judge was intimidated by Mr Batty and was probably submissive to him and compliant with him in order to minimise chances of any threat to himself. The primary judge found that Mr Judge was not intimidated by Mr Batty. His Honour said that for that proposition to be made good, Mr Judge would have had to have given evidence, which he did not do. The CCTV footage was inconsistent with Mr Judge’s being afraid of Mr Batty, in particular, his body language, including his laughing with Mr Batty immediately after the assault, showed that he was not intimidated as he had claimed.

13. [24]

    The primary judge did not err in reaching this conclusion. The conclusion was well open to him. I would draw the same conclusion from the CCTV footage. The primary judge was entitled to take this into account in his consideration of other opinions given by Ms Wakely.

14. [25]

    The primary judge made the following observations in relation to Mr Judge’s background of social deprivation. His Honour said:

15. [26]

    I do not accept Mr Judge’s submission that the primary judge did not advert to or apply the principles of Bugmy v R. It is true that the primary judge did not refer to Mr Judge’s asserted Aboriginality. Counsel for Mr Judge had submitted that he was an Aboriginal man of 24 years. None of the material before the primary judge referred to the applicant’s asserted Aboriginality, except that Ms Wakely reported that prior to meeting Mr Judge she had received and read various materials that included a letter from Ms Sandra Kelty, Clinical Lead Aboriginal Mental Health, Blacktown City Mental Health Service dated 29 May 2016. Otherwise, it was conceded that the material before the primary judge made no reference to his asserted Aboriginality. The report of Mr Judge’s criminal history provided for the District Court in relation to the earlier offences that was before the primary judge recorded his racial appearance as Caucasian.

16. [27]

    This is by the way. In Bugmy the High Court approved what Simpson J said in relation to the decision of the Court of Criminal Appeal in R v Fernando (1992) 76 A Crim R 58 that:

17. [28]

    The fact that the primary judge did not refer to Mr Judge’s asserted Aboriginality, which was not in any event proved, was not an error. The same issues as to the asserted background of profound social deprivation arise irrespective of his Aboriginality.

18. [29]

    I do not accept that the primary judge did not have regard to the factors relied upon to establish profound social disadvantage. His Honour referred to Mr Judge’s dysfunctional upbringing. His Honour accepted that he was brought up in a household of violence and had been sexually assaulted as a child and that his early use of alcohol and illicit drugs may have been a form of self-medication to deal with the violence of his upbringing and the loss of a stable influence of two parents and the consequences of the unlawful sexual assault. His Honour said that this did not explain the criminality on the night. That conclusion must be understood in the context of his Honour’s rejection of Mr Judge’s statement that he went along with Mr Batty because he was intimidated.

19. [30]

    In Perkins v R [2018] NSWCCA 62 I said:

20. [31]

    Fullerton J agreed that:

21. [32]

    There was no error in the primary judge’s finding that Mr Judge’s dysfunctional background did not explain his criminality on the night of the offence. In so finding, the primary judge did not discount Mr Judge’s background as irrelevant to the sentencing discretion. Rather, he declined to make a finding of a causal relationship between the background of social deprivation and the offending. Once his Honour rejected the contrary opinion of Ms Wakely, as his Honour was entitled to do, there was no error in that approach.

Second ground of appeal: failure to find special circumstances

1. [33]

   At the sentencing hearing counsel for Mr Judge submitted that the primary judge ought to make a finding of special circumstances as this would be Mr Judge’s first lengthy custodial sentence. She also submitted by reference to para 66 of Ms Wakely’s report that there was a concern that with a very lengthy period of time in custody he would be at risk of becoming institutionalised over time and it might become easier for him to stay in custody than face the stresses that he will face when he comes out of custody.

2. [34]

   In his remarks on sentence the primary judge said:

3. [35]

   The primary judge did not specifically refer to the risk of Mr Judge’s becoming institutionalised. However, his Honour’s remarks on sentence were given ex tempore and it should be inferred that he took the evidence and submissions on the risk of “institutionalisation” into account.

4. [36]

   In RG v R [2017] NSWCCA 60 Hoeben CJ at CL (at [109]) said:

5. [37]

   I agree with the submissions of the Crown that the primary judge must be taken to have considered the risk of institutionalisation, but there remained an obligation on his Honour to impose a sentence appropriate to the seriousness of the offending. The primary judge found that both general and specific deterrence were relevant in the present case. That conclusion was correct.

6. [38]

   Counsel for Mr Judge submitted that:

7. [39]

   After citing the submissions made before the sentencing judge, counsel submitted that the primary judge perfunctorily treated the “Bugmy factors” as completely spent in the proceedings for other matters.

8. [40]

   I do not agree with either submission. The primary judge was obliged to take into account Mr Judge’s criminal history and the sentences imposed upon him, including the sentences imposed both before and after the relevant offence for which he was being sentenced. The sentencing judge was entitled to take into account his view of the leniency of the other sentences imposed.

9. [41]

   It is well-established that a sentencing judge’s opinion upon whether the standard non-parole period should be adjusted for special circumstances depends upon discretionary considerations with which this Court should be slow to intervene (R v Cramp [2004] NSWCCA 264 at [31]; R v Fidow [2004] NSWCCA 172 at [19]; CM v R [2013] NSWCCA 341 at [39]).

Third ground of appeal: sentence manifestly excessive

1. [42]

   The sentence was not manifestly excessive. The primary judge found that the offending was a “midrange offence for an offence of its kind”. When one considers the maximum penalty for the offence, the guideline judgment in Henry, the serious aggravating features, and the primary judge’s justifiable conclusion that Mr Judge’s subjective circumstances did not explain his criminality on the night, it is not possible to say that the sentence imposed was manifestly excessive.

2. [43]

   Mr Judge made two submissions under this ground. First, that the effect of the sentence imposed by the sentencing judge was to nullify the effect of a finding of special circumstances made in the Local Court whether non-parole period was effectively represented as only 40 per cent of the total term of the sentence. Secondly, that the manifest excess of the sentence was illustrated by reference to sentencing statistics kept by the Judicial Commission.

3. [44]

   As to the first ground, counsel for Mr Judge submitted that if one takes into account all of the sentences imposed in the Local Court as well as the sentences imposed by Colefax DCJ in the District Court for the offence in question in the present case, the overall effect was that Mr Judge was given a sentence of five years and 11 months with a non-parole period of four years and six months reflecting a ratio of 76 per cent. Had he not committed the offence of robbery in company, he would have been released on parole after having served only 40 per cent of the head sentences imposed in the Local Court.

4. [45]

   This does not show any manifest excess of the sentence imposed for the offence in question. It simply reflects the fact that Mr Judge did not obtain the benefit of what the sentencing judge considered to be a lenient non-parole period imposed in the Local Court because he committed the further serious offence.

5. [46]

   The second basis on which it was said that the sentence was manifestly excessive was that the statistics provided by the Judicial Commission demonstrated that while some 85 per cent of offenders received custodial terms for s 97(1) offences, only 21 per cent received total terms in excess of a six-year total term for stand-alone contraventions of the section, and only eight per cent of offenders were sentenced to non-parole periods of four years or more. Counsel submitted that:

6. [47]

   I agree with the Crown submissions that little reliance can be placed on such statistics without knowing the factual circumstances of the offending and the subjective circumstances of the offender (Radi v R [2013] NSWCCA 278 at [29] quoting Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; Wong v The Queen (2001) 207 CLR 584 at [59]).

7. [48]

   I repeat what I said in R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64 at [73] that if the statistics do reflect what counsel for Mr Judge submitted, then there is a need to reiterate what was said in R v Henry.

Conclusion

1. [49]

   The application for leave to appeal potentially raises issues of principle. I would grant leave to appeal. But for the reasons above I would dismiss the appeal. I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal from the sentence imposed in the District Court on 24 July 2017.

   2. (2)

      Appeal dismissed.

2. [50]

   BELLEW J: I agree with White JA.

3. [51]

   WILSON J: I agree with White JA.