Hoskins v R

1. [1]

   BASTEN JA: I agree with Brereton JA that the sentencing judge, in an otherwise thorough and careful judgment, failed to apply the principles articulated by the High Court in Bugmy v The Queen. [1] Although those principles can apply generally to offenders brought up in circumstances of social disadvantage, they have particular application and are commonly invoked in relation to members of Indigenous communities. That is because, as has been documented by numerous inquiries and research studies, those communities continue to exhibit the dislocation resulting from foreign invasion, disruption of culture and minority racial status. [2] However, they are also the principal victims of alcohol driven violence of the kind exhibited by the applicant, Douglas Hoskins. To downplay the principle of protection of the community, identified as a purpose of sentencing in s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is to diminish both the appearance and perhaps the fact of equal protection of those Indigenous communities. [3] On the other hand, it must be recognised that incarceration has not proved an effective deterrent of anti-social behaviour in these circumstances; its deterrent effect being compromised by lack of insight which is itself a common feature of the circumstances which lessen moral culpability.

2. [2]

   These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency. In this case, I agree with the orders proposed by Brereton JA.

3. [3]

   BRERETON JA: On 27 August 2019, the applicant Douglas Edward Hoskins pleaded guilty, in the Local Court at Coffs Harbour, to five offences contrary to the Crimes Act 1900 (NSW) committed at Coffs Harbour on 31 January 2019, namely that he:

   1. (1)

      did break and enter the dwelling house of Daphne Hoskins, situated at Wongala Estate, knowing that a person was in the place when he committed a serious indictable offence therein, namely assaulted Luke McDonald thereby occasioning to him actual bodily harm (s 112(2)) (sequence 7);

   2. (2)

      did assault Ronald Ross thereby occasioning to him actual bodily harm (s 59(1)) (sequence 9);

   3. (3)

      threatened unlawful violence towards Ronald Ross and others by conduct that would cause a person of reasonable firmness present at the scene to fear for their personal safety (s 93C(1)) (sequence 10);

   4. (4)

      recklessly wounded Shianne Whitmore (s 35(4)) (sequence 11); and

   5. (5)

      recklessly wounded Deborah Charles (s 35(4)) (sequence 12).

4. [4]

   On committal for sentence to the District Court at Coffs Harbour, he was on 20 February 2020 sentenced by Priestley SC DCJ to an aggregate sentence for sequences 7, 10, 11, and 12, after allowing a discount of 25% for his plea, of five years and six months imprisonment, to date from 31 January 2019 (when he was taken into custody) and expire on 30 July 2024, with a non-parole period of three years and six months expiring on 30 July 2022. Concurrently, his Honour dealt with sequence 9 by way of conviction without penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”).

5. [5]

   The applicant seeks leave, pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(c), to appeal against the aggregate sentence. Initially, two grounds of appeal were relied upon, namely that:

   1. (1)

      the sentencing judge erred in not sentencing the applicant in open court and by not orally delivering reasons in public in the courtroom with the applicant present; and

   2. (2)

      the sentencing judge did not give correct consideration to the Bugmy principles (a reference to Bugmy, considered below).

6. [6]

   The first ground arose from the circumstances that at the conclusion of the proceedings on sentence, his Honour indicated that he would provide written reasons, and deliver an oral “precis” in the presence of the applicant, but it was contended that no oral reasons were delivered. When evidence emerged that a substantial “precis” of the reasons had indeed been delivered orally in the presence of the applicant and his lawyer, this ground was abandoned. [4] Accordingly, only Ground 2 requires consideration.

7. [7]

   The applicant filed a Notice of Intention to Appeal within time, on 26 February 2020. Such notice, under the rules applicable at the time, had effect for six months after it was filed. [5] An application to extend time was filed belatedly on 30 October 2020, and the Notice of Appeal on 3 November 2020, just over two months out of time. The applicant thus requires an extension of time, which the Crown opposes on the ground that the appeal is without merit.

8. [8]

   In my view, there is a sufficient explanation for the delay. According to an affidavit of the applicant’s solicitor, after receiving instructions in June 2020, it was necessary to obtain transcripts, and then a merits advice, which counsel was briefed to provide on 24 July 2020. The remaining transcripts and remarks on sentence were received on 31 July 2020. Counsel delivered an advice on 25 September 2020, which was submitted to Legal Aid on 29 September 2020. Legal Aid approval to complete grounds of appeal and written submissions was received on 8 October 2020, and counsel provided them on 25 October 2020. The appeal was fully argued, and raises an arguable issue concerning the application of the Bugmy principles. Time to file the Notice of Appeal should be extended.

The facts

1. [9]

   The following summary is based on the Agreed Facts on which the applicant was sentenced.

2. [10]

   During the day of Thursday 31 January 2019, the applicant was consuming alcohol in the company of Stafford Charles, Deborah Charles, and her partner Leo Mercy, at Unit 7/62 Vincent Street, Coffs Harbour, where he stayed from time to time. The unit was occupied by Stafford Charles, while the neighbouring Unit 6, which shares a common driveway with Unit 7, was occupied by Shianne Whitmore, who lived there with her one year old son. The applicant was known to both of them, and Ms Whitmore considered him her uncle (although he is in fact her partner’s cousin).

3. [11]

   On the night of 31 January 2019, the applicant had been at the premises of Ms Whitmore’s aunt Roxanne Prinn at 15 Vincent Street. An argument occurred between Ms Prinn and the applicant; she admonished him for setting a bad example for her nephew, told him “Let’s all run around and stab each other – look how far that got me”, and said “Get out of my house cock sucker”. He left, threatening to stab her as he departed.

4. [12]

   Shortly after, the applicant entered Unit 6, where Ms Whitmore was trying to put her son to sleep and the applicant was being too loud. He said, “You’re not my niece”, and she asked him not to get angry and to leave. The applicant left, and moments later Ms Whitmore heard the smashing of glass. She went to her rear yard and onto the driveway, where the applicant was standing, and she confronted him about throwing a bottle at her house. The applicant became loud and abusive and said he did not know who had thrown the bottle. She said “Please don’t lie, I know it was you. Can you please be honest? I know you did do it”.

5. [13]

   At this point, the applicant was about 30cm from Ms Whitmore, and had his hands behind his back. She thought he was going to hit her, but when he moved his hands to his front it was apparent that he was holding a knife, which he raised above his head and lunged at Ms Whitmore, bringing the knife down towards her chest. Ms Whitmore raised her left arm to protect herself and sustained a deep 2cm laceration to the area of her left elbow. She immediately felt pain and the warmth of her blood. She ran screaming onto a shared road, before returning to her home.

6. [14]

   Ms Charles and Mr Mercy, who had left the premises, returned at about this time. Mr Mercy stopped his car and Ms Charles exited and entered Unit 7. Mercy, who was sitting in his car, saw the applicant arguing with Ms Whitmore. He saw the applicant throw a punch at her, heard a thud, and believed that the applicant had hit her in the face. Mr Mercy then leaned out of his car window and said to the applicant “Doug, can you calm down mate, there are kids there.”

7. [15]

   The applicant followed Ms Whitmore into her unit. A few minutes later, multiple witnesses heard yelling and screaming.

8. [16]

   Neighbours administered first aid to Ms Whitmore and an ambulance was called. The laceration was found to extend through the common extensor musculature down to the brachial tendon. The bleeding was unable to be controlled by direct pressure and a tourniquet was applied. She was conveyed, unconscious, to Coffs Harbour Hospital, where she underwent surgery with two internal sutures and three external sutures. She suffered an estimated 500ml of blood loss.

9. [17]

   The applicant was heard screaming inside Unit 7. Mr Charles could not gain access to his unit from the rear, and with others went around to the front to gain entry. Mr Mercy saw the applicant exit the back door of Unit 7, holding two long blades in both hands and screaming “I’m gonna get you, you’se gonna play with me, I’ll get you”. Mr Mercy screamed out to his partner Ms Charles, who was one of those who had gone outside to investigate, in fear. Ms Charles confronted the applicant about his behaviour and tried to settle him, but he slashed out at her with both knives in a crisscross motion, and then came at her with his right hand in a downwards stabbing motion towards her chest. Ms Charles raised her arm and received a 4cm laceration to the bottom of her left forearm, and a small laceration to her left cheek. This was witnessed by Mr Charles. Ms Charles was immediately taken to Coffs Harbour Hospital by her partner. When later examined she was found to have a lacerated tendon requiring six internal and three external sutures. The cheek cut was superficial.

10. [18]

    After stabbing Ms Charles, the applicant ran from the location. Neighbours who became aware of the events feared that he might be heading for the home of his mother, Daphne Hoskins, at the Wongala Estate, and one telephoned his mother’s home and warned Ronald Ross that the applicant had stabbed Ms Whitmore and was on his way there. The applicant had had a falling out with his mother some years earlier and they had not spoken for more than five years, although the preceding Saturday the applicant had attended at his mother’s home and made threats against his mother and her daughter Sonya.

11. [19]

    A short time after the phone call was received, the applicant arrived at his mother’s home, Number 15 in the Wongala Estate, an Aboriginal Community. Number 15 was occupied by Daphne Hoskins, her partner Luke McDonald, and her fifteen year old granddaughter. Also present at the time were the applicant’s cousin Mr Ross, his partner Emma Wilson, their seven month old child, and Mr Ross’s ten year old sister.

12. [20]

    At the door to his mother’s home, he spoke with his her and denied slashing Ms Whitmore with a knife. He became angry and asked his mother if he could come in. He grabbed at the screen door with both hands and pulled it towards himself, which caused it to come off the latch and open. He pushed his mother aside and walked into the kitchen where he was confronted by Mr Ross, who said to him “Oi, oi did you stab Shianne”, to which the applicant responded, “I didn’t stab no slut”.

13. [21]

    The applicant then lunged at Mr Ross who, believing that the applicant was going to try to choke him, pulled his head back to prevent this from occurring. The applicant’s hands impacted with Mr Ross’s neck, causing a minor scratch. Fearing that the applicant would continue to assault him, Mr Ross punched him to the head with a closed right fist, and the applicant responded with two uppercuts to Mr Ross’s throat. Mr Ross threw the applicant to the ground and the two men wrestled, the applicant repeating “I’ll kill you’se”. Ms Hoskins intervened; Mr Ross got to his feet and ran outside in an endeavour to draw the applicant out of the house and away from those inside. Once outside, Mr Ross turned and said, “Come out here Uncle Doug, out the front”.

14. [22]

    The applicant got to his feet, opened the cutlery drawer, and, despite the best efforts of Mr Ross’s partner, Ms Wilson, to prevent him, grabbed a black handled serrated steak knife, breaking the drawer in the process, and ran out the door. Mr Ross saw the applicant holding the knife, which the applicant was pointing straight at him. As the applicant approached, Mr Ross yelled to Ms Wilson “Lock the door”. The applicant yelled “Don’t you shut that fucking door”. Ms Wilson attempted to shut the door, but the applicant ran back to the door and endeavoured to hold it open by pushing on it from the outside. While doing this, the applicant was also stabbing the knife between the door and door jamb towards Ms Wilson, who could see the blade coming in and out of the gap. Ms Wilson eventually was able to force the door closed, and she then proceeded to lock the back door.

15. [23]

    After the front door was shut on him, the applicant went to the back door, but finding himself locked out, walked around the house to his mother’s bedroom window, where he sliced the screen with a knife and put his head through, saying “Oh, what, you ring the police on me. I’m gonna kill ya, I’m gonna kill ya, I’ll burn your car”. At this time, his mother and Mr McDonald were standing directly inside the bedroom window, in his full view.

16. [24]

    After cutting the fly screen, the applicant climbed through the open window, still holding the serrated knife he had taken from the kitchen. His mother left the room, leaving her partner Mr McDonald, who tried to restrain the applicant and take the knife from him. The applicant said “You called the cops on me, I hate you. I’m going to kill you”. The two men struggled, falling onto the bed and then the floor. Mr McDonald used both hands to endeavour to control the arm in which the applicant held the knife, while the applicant was on top of him pushing the knife towards him. At one stage the applicant used one hand to choke Mr McDonald, and gouged his left eye, causing redness, bruising, swelling, and pain. Eventually, Mr McDonald was able to remove the knife from the applicant’s grasp by grabbing and bending the blade, incurring a small laceration to his finger. The applicant continued to grab for the knife for a short time, but then jumped up and ran into the hallway, where he was apprehended by police and handcuffed.

17. [25]

    The applicant did not respond to the police’s request to accompany them, but stood still; he had to be forcibly removed. He had blood on his shirt and appeared to be heavily intoxicated. Once outside, he showed signs of a seizure, and was conveyed to the police station and then by ambulance to hospital, where he was examined and returned to police custody when that was considered suitable.

The remarks on sentence

1. [26]

   His Honour addressed the objective gravity of each offence after recounting facts relevant to that offence as set out above, and before turning to subjective matters.

2. [27]

   As to the reckless wounding of Ms Whitmore (sequence 11), his Honour observed that it occurred immediately after the applicant had been confronted about throwing a glass bottle; that engaging in what could easily have been life threatening behaviour was an extreme response to such an allegation; and that the act was against a person who was not expecting it, and who was totally unarmed. His Honour characterised it as “the irrational reaction of a man who acted with total disregard for the well being of [Ms Whitmore]”, and “clearly reckless and very dangerous”. The objective seriousness was assessed as being in the mid-range. [7]

3. [28]

   As to the reckless wounding of Ms Charles (sequence 12), his Honour observed that the victim was again unarmed, the attack gratuitous, and its high degree of recklessness self-evident. The objective seriousness was assessed as in the mid-range. [8]

4. [29]

   As to the assault of Mr Ross occasioning actual bodily harm, his Honour noted that the actual bodily harm was a minor graze to Mr Ross’s neck, and thus a superficial injury. As with the two earlier offences, the offence appeared to have occurred in response to circumstances where a violent response would not usually be anticipated, in that while Mr Ross may have confronted the applicant with an allegation, there was no suggestion of Mr Ross confronting him physically. While the assault led to a fight, and so the event involved “more than simply a lashing out resulting in a scratch”, it was “not much more” than that. The offence occurred in the applicant’s mother’s home. The objective seriousness was assessed as in the low range. [9]

5. [30]

   As to the affray, his Honour observed that it occurred at the applicant’s mother’s home, and that while the event was likely only a number of minutes in duration, it comprised a number of components – obtaining the knife, the struggle at the door with stabbing efforts through the doorjamb, running around the house, yelling, and ultimately slicing the flyscreen and death threats – the cumulative effect of which was frightening. The objective seriousness was assessed as in the lower mid-range. [10]

6. [31]

   As to the aggravated break, enter and commit serious indictable offence, his Honour noted that the aggravating element was that the applicant was aware that people were present in the dwelling. The manner of the break was dramatic, but it was not done secretly. The “serious indictable offence”, being assault occasioning actual bodily harm, was, in all the circumstances, not relatively serious: Mr McDonald suffered red marks around his throat, bruising to his left eye, and his eye was red and sore. The offence was committed in a way that placed Mr McDonald in significant danger, but not at “a grave risk of death” as referred to in s 21A(2)(ib) of the Sentencing Procedure Act. The objective seriousness was assessed as below the mid-range. [11]

7. [32]

   His Honour noted that, by reason of s 21A(5AA) of the Sentencing Procedure Act, self-induced intoxication was not to be taken into account as a mitigating factor. [12]

8. [33]

   His Honour referred to the applicant’s “long history of violence, of which the current offending appears to be the most serious, despite a number of terms of imprisonment.” His (adult) criminal history commenced at age eighteen in 1998 with assault and drug charges, and includes (non-exhaustively) driving and drug convictions, as well as break and enter and steal convictions, in 2000; assault occasioning actual bodily harm in 2003; common assault in 2009 and again in 2013; being armed with intent to commit an indictable offence in 2015, for which he was imprisoned for two years with a non-parole period of eighteen months; and a further common assault in 2018. While there were significant periods between 2000 to 2013 of no serious offending, his record disentitled the applicant to any leniency. [13]

9. [34]

   His Honour summarised the evidence on subjective issues as follows: [14]

10. [35]

    Considering these matters, his Honour said: [15]

11. [36]

    His Honour regarded the more relevant purposes of sentencing in the circumstances of the case to be punishment, specific deterrence, and protection of the community, with “a need for supervision upon release for as lengthy a time as may be permissible within the bounds of ensuring proportionality, that is, to ensure that the time in prison reflects the seriousness of this offending.” [17]

12. [37]

    It was not in issue that the threshold in s 5 of the Sentencing Procedure Act was crossed, in respect of all matters other than the assault occasioning actual bodily harm (sequence 9), which was dealt with by way of conviction without penalty pursuant to s 10A of the Sentencing Procedure Act, having regard to “the very minor nature of the harm” suffered by Mr Ross, the low seriousness of the offence viewed in isolation, and the circumstance that any appropriate sentence option such as an ICO or CCO would be concurrent with the aggregate term of imprisonment to be imposed for the other offences, rendering such an order impractical. [18]

13. [38]

    For the remaining four matters, his Honour determined to impose an aggregate sentence, indicating notional individual sentences as follows: [19]

    1. (1)

       Sequence 11 – reckless wounding – three years;

    2. (2)

       Sequence 12 – reckless wounding – three years;

    3. (3)

       Sequence 10 – affray – one year and six months; and

    4. (4)

       Sequence 7 – aggravated break and enter and commit serious indictable offence – two years and six months.

14. [39]

    The aggregate sentence of five years and six months was “largely due to the fact of the offending forming one course of conduct”. The non-parole period of three years and six months is 63.6% of the head sentence, pursuant to a finding of special circumstances founded on the applicant’s need for more than ordinary supervision and counselling after release, and the risk of institutionalisation. [20]

Appeal Ground 2

1. [40]

   The appeal is from the aggregate sentence imposed in respect of sequences 7, 10, 11, and 12; sequence 9 remains relevant only as context. As Ground 1 was, as has been described above, [21] abandoned, only ground 2 requires consideration.

2. [41]

   In the proceedings on sentence, the applicant submitted that the case was one in which, “given the applicant’s subjective case and community context”, regard should be had to the “Fernando principles” – a reference to R v Fernando, [22] referred to below, in which Wood J (as the later Chief Judge at Common Law then was) expounded propositions relevant in the context of the sentencing of Aboriginal offenders. [23]

3. [42]

   With reference to Bugmy, [24] it was submitted that “the experience of growing up in an environment of social deprivation may leave its mark on a person through their life and may compromise the person’s capacity to mature and learn from experience”, and that:

4. [43]

   The sentencing judge dealt with this submission in [47] of the remarks on sentence, which has already been set out above but for convenience is repeated here (with emphasis added): [25]

5. [44]

   The relevant evidence was as follows.

6. [45]

   Dr Elliott, psychiatrist, performed a psychiatric assessment of the applicant at the request of the Court. As to the applicant’s personal history, he reported (emphasis added):

7. [46]

   The applicant tendered a psychological assessment report by Katie Martens, forensic psychologist, who reported (emphasis added):

8. [47]

   According to Ms Martens’ report, Mr Hoskins “first consumed alcohol at age 16 with friends and his extended family”, and “he reported fluctuating frequency of alcohol use thereafter”. He first smoked cannabis at age sixteen, with friends and family, and reported that he has typically used cannabis every few days; he said that he thinks that it alleviates the symptoms of his epilepsy, and it also “allows him to fit in with his family”.

9. [48]

   Ms Martens concluded (emphasis added):

10. [49]

    Also before the Court was a reference from a friend, Steven Allen, who had known the applicant for fifteen years, and who offered support when he is released from gaol, which demonstrates a connection between the applicant’s substance abuse and his offending. Mr Allen stated:

11. [50]

    Mr Hoskins’ claim that his problems began in his early adolescence when he re-established contact with his biological family and moved to Coffs Harbour, commenced drinking and cannabis use and proceeded to offending behaviour, is borne out by his juvenile justice record, which commences in 1995, when he was aged fifteen, with offences in Coffs Harbour: initially predominantly related to stealing, and possessing and using cannabis; his first offence of violence appears to have occurred on or about 16 May 1996.

12. [51]

    In Bugmy, the High Court summarised and endorsed the propositions stated by Wood J in Fernando, as follows (footnotes omitted, emphasis added): [26]

13. [52]

    The High Court endorsed the explanation of Fernando provided by Simpson J (as her Honour then was) in Kennedy v R: [27]

14. [53]

    Specifically, the High Court stated that: [28]

15. [54]

    In that context, the Court stated that the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of the appropriate sentence in every case: [29]

16. [55]

    However, while, “[b]ecause the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision”, this does not mean “that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment”: [30]

17. [56]

    Subsequent decisions of this Court have confirmed that “[a]pplication of the Bugmy principles is not discretionary”, [31] although countervailing factors such as the protection of the community may affect their impact. [32]

18. [57]

    Although the High Court used the term “profound childhood deprivation” when referring to its enduring effects, what was said to require consideration was “an offender’s deprived background”. There is no magic in the word “profound”, and it is not necessary to characterise an offender’s childhood as one of “profound deprivation” before the principle is engaged. The principle is that social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage. Thus the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug supply matters. [33] However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending. [34] As N Adams J explained in Dungay: [35]

19. [58]

    In Kliendienst v R, this Court applied the Bugmy principles in the context that the offender’s impulsive resort to violence when frustrated was, in effect, a learnt response from his childhood: [36]

20. [59]

    In Ingrey, [37] this Court applied the principles in circumstances where the applicant was raised in an environment where his extended family were involved in a criminal milieu, to the influence of which he was exposed from a young age (emphasis added):

21. [60]

    Before us, the Crown sought to distinguish Ingrey, on the basis that Mr Ingrey:

    1. (1)

       had a lengthy history of offending dating back to early childhood and had been “in and out of custody” since aged about eight;

    2. (2)

       “witnessed much domestic and other interpersonal violence within his extended family and the broader community”;

    3. (3)

       finished school at age thirteen, was unable to read and write, and was of low intelligence;

    4. (4)

       first consumed alcohol at age ten, regularly drinking from that time until he was eighteen; and

    5. (5)

       started smoking cannabis at age thirteen, and did so regularly until seventeen, when he gave up cannabis and commenced using amphetamines.

22. [61]

    These differences, however, do not affect the essential point that exposure as a child to the influence of an extended family involved in a criminal milieu is relevant, because it can warp a child’s moral compass and create conditions in which anti-social behaviour becomes normalised. In my opinion, this is just as true, if not more so, when aged thirteen to sixteen as at earlier ages: the years of adolescence are in many respects formative.

23. [62]

    As will be recalled, there was expert evidence from Ms Martens that the applicant’s entry into criminal conduct was precipitated by the discovery, at age thirteen, that his aunt and uncle were not his biological parents, and then by attempting to fit in with his biological family, in which criminal conduct was normalised and he was permitted to truant and engage in substance use with his peers and extended family. While, until he was thirteen, the applicant apparently enjoyed a secure and stable upbringing, that is subject to the very important qualification that, then unbeknownst to him, those raising him were not his biological parents. Discovery of that fact alone is likely to have a significant impact and create major identity issues for an adolescent. That discovery was immediately followed by exposure from that age to his biological family, and though his mother did not expose him to substance abuse or violence, he was, during the crucial formative years of his adolescence, living in an environment in which the use of alcohol, stealing, and violence were normalised. In those circumstances and that environment, it is unsurprising that he would commence “acting out” and adopt the lifestyle of his extended biological family, in order to gain acceptance. He commenced to use alcohol. Mr Allen’s evidence suggests that the applicant’s offending historically appears to be associated with alcohol abuse. His offending on 31 January 2019 involved a series of irrational, erratic, impulsive, and excessive responses to situations, when under the influence of alcohol.

24. [63]

    In respect of the applicant’s history, his Honour observed that (emphasis added): “If his own history of himself is accepted, this offending appears to have occurred in a period of stability in his life, in a life with little instability beyond being raised (and raised well) by his aunt, and then returning to his mother”. [38] In rejecting the applicability of Bugmy and Fernando, his Honour stated: “The offender’s own history suggests quite a different upbringing”. [39] These observations appear to overlook the significance of the discovery that those who had initially raised him were not his parents, and the identity issues that this would inevitably have triggered; and the applicant’s experience following return to his biological family from age thirteen onwards, and its impact on the trajectory of his life. Although at one point in the course of submissions, his Honour noted that after his “excellent” childhood with his uncle and aunt, “Then he seems to have spent some time with his biological mother, and things don’t seem to have gone as well after that”, referring to his school attendance deteriorating, and “a heightened degree of criminality going on in that household as opposed to his aunt’s”, [40] his Honour’s remarks on sentence do not address this issue. They focus on his childhood until the age of twelve, and do not consider what happened thereafter. An upbringing does not end at twelve.

25. [64]

    In my view, the momentous discovery that those in whose care he was initially raised were, contrary to his then life view, not his parents; the inevitable identity issues that would have resulted; the applicant’s experience following return to his biological family from age thirteen onwards, including “acting out” to fit in with his biological family and his exposure to their anti-social ways; and his introduction to the use of alcohol in that environment, are circumstances amounting to social disadvantage which, consistently with Fernando and Bugmy, bear on the assessment of the applicant’s moral culpability for the offending of 31 January 2019, particularly given the association of that offending with alcohol abuse, and the origins of that abuse in the period after he moved to live with his mother. The impact of social disadvantage, the manner in which it is taken into account, and the weight to be attached to it, is diverse. In this respect, I agree with the observations of Basten JA. Bugmy makes clear, however, that it must be given full weight, notwithstanding the passage of time and the intervention of other custodial sentences. [41] Though his Honour was entitled to consider the extent to which the circumstances of the applicant’s youth mitigated his moral culpability, and whether there were offsetting considerations such as specific deterrence and the need to protect the community, it ought not have been entirely disregarded, and his Honour erred in doing so.

Re-exercise of the sentencing discretion

1. [65]

   The Court must therefore re-exercise the sentencing discretion in respect of Sequences 7, 10, 11, and 12.

2. [66]

   The Crown submitted that no lesser sentence than that imposed by the sentencing judge was warranted, having regard to the applicable maximum penalties and standard non-parole periods; the multiplicity of victims; that each victim was unarmed, while the applicant was armed with a knife; that each offence was unprovoked; that the reckless wounding involved reckless behaviour which was threatening and dangerous, with the wounds to two victims requiring surgery; that the offences were aggravated by being committed in or in the precincts of homes; that the victims must have been terrified; that the applicant’s long history of offending, including violence, disentitles him to leniency; that the applicant did not demonstrate any insight or remorse; and that if Bugmy principles did operate in his favour, they were counterbalanced by the need for specific deterrence.

3. [67]

   Like the sentencing judge, I consider punishment, specific deterrence, and protection of the community as the most relevant purposes. I agree with the Crown submission that specific deterrence is an important consideration. However, I do not see that a difference of a year or so in a sentence of this length makes much difference from the perspective of protection of the community.

4. [68]

   There was no challenge to his Honour’s assessment of the objective gravity of each offence, which I would adopt. Nor is there any dispute that the applicant is entitled to a 25% discount for his early plea of guilty.

5. [69]

   While there is no evidence of remorse, his recollection of the events could have been affected by the seizure which he was observed, immediately following the events, to have been experiencing. While the applicant’s lengthy record disentitles him to leniency, and while self-induced intoxication is not in itself a mitigating factor, in my opinion his drunken rampage on the night in question was a reflection of the environment in which he had spent his formative teenage years, and this reduces his subjective moral culpability. Like the sentencing judge, I take into account the risk of institutionalisation, given that the applicant has spent approximately ten years in custody.

6. [70]

   The offending forms a single course of conduct and it is appropriate to impose an aggregate sentence, as his Honour did. Like his Honour, I would find special circumstances in the desirability for extensive and prolonged supervision upon release, in the risk of institutionalisation, and in the Bugmy considerations.

7. [71]

   Although the other offences carry a greater maximum penalty, on the facts the most serious offences were the two reckless woundings (sequences 11 and 12), each of which carries a maximum penalty of seven years’ imprisonment, and a standard non-parole period of three years. Objectively, both were “mid-range”. Were I imposing separate sentences, I would in each of sequences 11 and 12 set a non-parole period of two years and an additional term of one year, being a total of three years each. The non-parole period is less than the standard non-parole period on account of the subjective Bugmy considerations and the 25% discount for the plea, and to give effect to the finding of special circumstances.

8. [72]

   The affray offence carries a maximum penalty of ten years’ imprisonment; there is no standard non-parole period. Objectively, it was in the low mid-range. Were I imposing a separate sentence, I would set a non-parole period of one year and an additional term of six months, a total of one year and six months.

9. [73]

   The offence of aggravated break and enter (knowing that a person was in the place) and commit serious indictable offence (assault occasioning actual bodily harm) carries a maximum penalty of twenty years’ imprisonment, and has a standard non-parole period of five years. Objectively, it was below mid-range. Were I imposing a separate sentence, I would set a non-parole period of one year and six months, and an additional term of nine months. The non-parole period is less than the standard non-parole period by reason that the offence is below mid-range, on account of the subjective Bugmy considerations and the 25% discount for the plea, and to give effect to the finding of special circumstances.

Conclusion and resentence

1. [74]

   The total of the indicative sentences mentioned above, totally accumulated, is nine years and nine months. The longest individual indicative sentence is three years, with a non-parole period of two years.

2. [75]

   It is necessary to have regard to considerations of totality, accumulation, and concurrency. The aggregate sentence is intended to reflect the total and overall criminality involved, having regard to the need for specific deterrence and protection of the community, as well as to the Bugmy considerations.

3. [76]

   This was a single course of conduct, although it involved, relevantly, four episodes. While it must have been terrifying for the victims, it is best described as a course of irrational, erratic, impulsive, and excessive responses to situations, when under the influence of alcohol. While his self-induced intoxication is not in itself a mitigating factor, it is linked to his social disadvantage as a youth, which is. In my judgment, the appropriate aggregate sentence is imprisonment for five years, with a non-parole period of three years.

4. [77]

   Accordingly, I propose the following orders:

   1. (1)

      extend time for the applicant to file a Notice of Appeal to the date on which it was filed;

   2. (2)

      grant leave to the applicant to appeal against the aggregate sentence imposed on 20 February 2020 by the District Court;

   3. (3)

      allow the appeal; and

   4. (4)

      quash the aggregate sentence imposed in the District Court on 20 February 2020 in respect of sequences 7, 10, 11, and 12, and in lieu thereof:

5. [78]

   BEECH-JONES J: The circumstances of the offences, the relevant parts of the sentencing judgment and the submissions in support of ground 2 of the application are set out in the judgment of Brereton JA.

6. [79]

   Complaints made to this Court about an alleged failure by a sentencing judge to apply the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 must be considered in the context of the necessity for an applicant for leave to appeal against sentence to establish an error of the kind stated in House v R (1936) 55 CLR 499 at 504 to 505 (“House”). Thus, it is not sufficient to simply say that insufficient weight was given to an applicant’s social disadvantage unless that demonstrates or supports the contention that the sentence was manifestly excessive. Otherwise, any attempt to invoke Bugmy principles must be based on evidence.

7. [80]

   In rejecting any application of the principles stated in Bugmy to the applicant’s case, the sentencing judge stated that there was “no evidence” to support the submission that the applicant came “from a community where alcohol abuse and alcohol related violence go hand in hand and where the alcohol abuse of the offender is a reflection of environment in which the offender was raised” (see [47] of the sentencing judgment set out at [35] above). However, there was a considerable body of evidence before the sentencing judge to the effect that, after the applicant was reunited with his biological mother, siblings and extended family, he was exposed to alcohol and drug abuse (at [45], [47] and [50]) and raised in an environment where criminal behaviour was normalised (at [46] to [48]). In concluding that there was “no evidence” to support the submission made, the sentencing judge appears to have either treated Bugmy as confined to dysfunctional social environments that are only a consequence of endemic alcohol‑related violence or proceeded on the basis that a submission invoking Bugmy should only be considered if it is supported by evidence from the offender (or both). On either view, the sentencing judge acted “upon a wrong principle” and did not take into account “some material consideration” (House at 505). For that reason, I agree that ground 2 is made out.

8. [81]

   I agree with the approach of Brereton JA to resentencing and the orders his Honour proposes.