Nasrallah v R

BELL P: I have had the benefit of reading the reasons for judgment of Hamill J and gratefully adopt his Honour’s careful summary of the proceedings before the sentencing judge and of the sentencing judgment. My reasons assume a familiarity with that summary.

I agree with Hamill J’s reasoning in respect of Grounds 1, 3 and 4.

With great respect, I differ from his Honour in relation to Ground 2 which was expressed as follows:

As his Honour notes, counsel for the applicant conceded before the sentencing judge that “it may not be open to your Honour to find a level of profound deprivation” but went on to press the submission that the traumatic events of the applicant’s childhood and the impact those events had on the applicant’s life was such that her moral culpability was diminished. [1]

This submission was made having regard to the High Court’s decision in Bugmy v The Queen (Bugmy) [2] and its reference to “profound deprivation” picked up the language of the plurality in that case. [3]

For reasons explained below, I consider that the sentencing judge accepted this submission albeit that his Honour did not regard the circumstances of childhood deprivation relied upon in the instant case as being as “profound” as in other cases in which Bugmy has been invoked or as necessarily attracting the Bugmy principles per se. There is no doubt, however, that the sentencing judge had regard to the matters relied upon as mitigatory factors in the overall exercise of his sentencing discretion.

The submission made on behalf of the applicant as summarised in [4] above was consistent with the principles in Bugmy as recently explained by Brereton JA in Hoskins v R (Hoskins), [4] and which Hamill J has fully set out in his reasons. [5] In particular, the submission was consistent with Brereton JA’s observation in Hoskins that “[t]here 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.”

Assuming, without deciding, [6] the correctness of Brereton JA’s observations in Hoskins as to the Bugmy plurality’s use of the word “profound” in conjunction with deprivation, the use of that word was to emphasise and describe a very high degree of deprivation. There is no doubt some correlation between the nature, degree and extent of an offender’s deprivation as a child and any reduction in the moral culpability that would otherwise attach to the offender’s conduct. As the plurality said in Bugmy, “[a]n Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence.” [7] Their Honours were there concerned with the significance of “an offender’s background of deprivation in mitigation of sentence”. [8] Plainly enough, the nature and degree of an offender’s background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence. [9]

On the other hand, as Bugmy also makes clear, an environmental factor that may lead to a substantial reduction in moral culpability for a violent offence may correspondingly increase the importance of protecting the community from the offender so that, in the sentencing calculus, the existence of particular profound childhood deprivation may not lead to an overall reduction in sentence. [10] This does not mean that “full weight” has not been given to Bugmy considerations.

When the plurality in Bugmy spoke of “deprivation” [11] and “profound childhood deprivation”, [12] their Honours were referring to the deprivation of an environment in which a child was not exposed in a sustained and endemic way to “abuse of alcohol and alcohol-fuelled violence”, [13] noting that such an environment will often be the product of extreme social disadvantage in terms of the absence of education, employment and opportunities. [14]

An environment of “childhood deprivation” in which “abuse of alcohol and alcohol-fuelled violence” are endemic (the circumstances which were addressed in Bugmy) may be conceptually different from an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or psychological abuse. There may also be a significant conceptual distinction between circumstances of sustained sexual or other abuse of a child and a single instance of sexual abuse or attempted sexual abuse. [15] Whether or not a single instance of sexual abuse or some other traumatic event strictly falls within the scope of the principles enunciated in Bugmy may be debated for, as has been observed, “while courts have applied the Bugmy principle in cases where offenders have had a wide range of adverse childhood experiences, in each instance, the circumstances of the offender’s deprivation occurred over a lengthy period of time and generally within the offender’s family”. [16] As Simpson AJA said in Irwin, the “Bugmy principles … are concerned with the impact on sentencing of a history of disadvantage and deprivation” (emphasis added). [17] The boundaries of Bugmy have not been clearly or definitively delimited. [18]

That is not to say, however, that the consequences of sexual assault, including a single sexual assault, on a child may not produce profound and highly detrimental impacts on the child so assaulted. [19] Nor is it to say that such impacts may not be relevant, by way of mitigation, in the sentencing of a child so abused who subsequently offends, as was held by the Victorian Court of Appeal in R v AWF, [20] in which Chernov JA said:

AWF, a pre-Bugmy decision, was referred to by McCallum J (as her Honour then was) in JL v R. [24] There, the sentencing judge, whose decision was upheld, did not accept that the offender’s sexual abuse as a child lessened his moral culpability other than to a minor degree associated with the link between that abuse and the offender’s abuse of alcohol.

In the present case, the evidence relied upon to attract the operation of the Bugmy principles is set out in the psychologist Mr Albassit’s report, extracted in extensive detail in Hamill J’s reasons. [25] That evidence discloses an attempted sexual assault by the applicant’s uncle one month prior to her 14th birthday and a kidnapping by a person she had met though an internet “chat room”, accompanied by depression, trauma, rebellion and a growing association with older people doing “bad things”, leading to her being sent by her mother to Lebanon to get away from her spiralling lifestyle in Australia. This in turn reinforced feelings of neglect and disengagement. The evidence does not, however, disclose an environment of systemic or endemic sexual, physical or psychological abuse, alcoholism and substance abuse or of any particular social disadvantage or deprivation. In this sense, the applicant’s childhood history, although sad and no doubt traumatic for her, is far removed from cases in which Bugmy has been applied where there has been a history of child sexual or non-physical abuse [26] or other environmental dysfunction.

Thus, for example, in Macarthur, the respondent had been raised in a high-conflict environment with his parents erratically present, frequently arguing and abusing alcohol. When his parents eventually separated, his “oppositional behaviour” increased and he became involved in minor incidents of anti-social conduct. It was during that time, as he was entering puberty, that the respondent was sexually abused. [27]

In Irwin, the offender’s personal background was described as follows:

The sentencing judge in the present case drew a contrast between the applicant’s circumstances and those referred to in IS v Regina, where the applicant was the eighth of his parents’ nine children, his upbringing was marked by parental criminal activity, substance abuse, severe and chronic neglect and familial violence within the home and he was itinerant, in and out of care, from the age of seven. [29]

Hamill J has accepted the applicant’s submission that the sentencing judge erred by failing to find that the “Bugmy principles” were engaged and in failing to give “full weight” to the applicant’s deprived and traumatic background. His Honour expresses the view that “[t]his error appears to have arisen from placing undue emphasis on the word ‘profound’ and in treating the question of whether there was ‘profound deprivation’ as a kind of threshold test.” [30]

I respectfully disagree with this assessment. The sentencing judge simply made the point in the course of his remarks on sentence that the applicant’s case, although sad and tragic, did not disclose a “history of profound deprivation” (emphasis added). [31] That conclusion was more than open to his Honour although it was not to devalue “the impact of the particular traumatic events” detailed in Mr Albassit’s report “and the destructive adolescence of this offender”, as the sentencing judge observed. [32]

Even if the sentencing judge, by declining to characterise the applicant’s adolescence as one of “profound deprivation”, was thereby holding that the Bugmy principles were not engaged, for the reasons explained below, I do not consider that his sentencing discretion miscarried or that proper account was not given to the matters relied on in aid of the Bugmy submission.

It is neither necessary nor desirable in the present case (because it was not the subject of full argument) to consider the precise boundaries of the Bugmy principles including the extent to which the impact of traumatic events external to and not apparently associated with the offender’s upbringing and immediate or extended family environment (such as the applicant’s kidnapping by someone she met in a chat room) and the occurrence of a single traumatic event (in the present case, the attempted sexual assault by her uncle) engage those principles.

The reason why it is not necessary to do so is because the sentencing judge plainly took the traumatic events of the applicant’s adolescence into consideration by way of mitigation in reaching his decision as to the appropriate sentence, in the exercise of his sentencing discretion. [33] His Honour described the evidence in relation to the applicant’s background as “sad and tragic” before going on to say “but it is all too common that factors such as this lead to the uptake of illicit drugs among young people.” [34] Having noted that the Henry guideline judgment [35] meant that he could not take into account as a mitigating factor that the crime was committed while the applicant was affected by drugs, his Honour did acknowledge that “the fact of addiction, how it came about and what is done about it, are relevant, particularly in explaining how a previously law-abiding person did what she did” (emphasis added). [36]

Although the sentencing judge did not regard the applicant’s adolescence as revealing a “history of profound deprivation”, he neither ignored nor diminished its significance, despite what may arguably be regarded as the infelicity of language to which Hamill J refers. [37] So much may be seen from the sentencing judge’s statements that “I do not devalue the impact of the particular traumatic events detailed in [Mr Albassit’s] report and the destructive adolescence of this offender”; that “a background is always relevant in matters such as this”; and that “I have sought to give proper effect to all of the mitigatory factors”. This last statement was made in the context of the sentencing judge indicating that the sentence he was imposing was “the absolute minimum that law and justice demand”. [38]

In R v Dungay, N Adams J, with whom Davies J and I agreed, observed that:

Given the synthetic nature of the sentencing process, and the undoubted fact that the sentencing judge did take into account the factual matters in relation to the applicant’s background and adolescence which were relied upon in support of the Bugmy submission, I find no error in the sentencing exercise and see no basis for interfering with it.

I am reinforced in that view because of the important point Hamill J makes in his reasons, namely that:

It follows that, while I would grant leave to appeal, I would reject Ground 2 of the appeal.

Although the applicant has failed on Grounds 1–3, the acknowledgement by the Crown in the hearing of the application for leave to appeal that the commencement date of the sentence did not take into account four days of pre-sentence custody to which the sentencing judge’s attention was not directed means that Ground 4 should be upheld and orders made to reflect that matter. This is not, in my opinion, an error of a kind requiring the sentencing discretion to be exercised afresh in accordance with Kentwell v The Queen [41] .

The orders I would propose are that:

PRICE J: I have had the benefit of reading the judgment of Hamill J. The relevant facts and issues in the appeal are comprehensively covered in his Honour’s judgment. I agree that Grounds 1 and 3 should be rejected and Ground 4 should be upheld. However, I am unable to concur with his Honour’s view that Ground 2 should be upheld.

When the sentencing judge decided that the applicant’s background as set out in Mr Albassit’s report was “not a history of profound deprivation”, [42] his Honour’s decision was a finding of fact.

In Newman v R, [43] N Adams J (with whom Hidden AJ agreed) said at [62]:

This approach which limits the Court’s power to review factual findings made by sentencing judges to findings which were “not open” was founded on the decision of Hunt J in R v O’Donoghue [44] and has attracted the label of being “constrained”.

N Adams J went on at [63]-[65] to consider, as has been questioned in Clarke v R [45] and Hordern v R (‘Hordern’), [46] whether requiring applicants to establish a finding was “not open” to a sentencing judge (‘constrained approach’) goes beyond the error identified in House v The King [47] of “mistaking the facts”. Her Honour concluded on the facts of the appeal at [66]:

In Hordern, Basten JA (with whom Hamill J agreed) was “comfortably satisfied that the constrained approach is clearly wrong and should not be followed”. [48]

Most recently, in Hoskins v R (‘Hoskins’), [49] Beech-Jones J stated at [79]:

However, Beech-Jones J did not discuss whether the constrained approach in sentencing appeals was not to be followed.

In Gibson v Regina, [50] Bathurst CJ said that it was unnecessary to consider this issue particularly as the point had not been argued on appeal. However, the Chief Justice commented at [4]-[5]:

In the present appeal, the issue was not argued. The Crown’s submission, citing N Adams J in Newman at [62], was that a finding as to whether or not an applicant had a childhood of “profound deprivation” was a question of fact and would not attract the intervention of this Court unless the finding was “not open” on the facts or unreasonable. Hence, the Crown’s argument was founded on the “constrained approach” in sentencing appeals.

The applicant’s argument in respect of Ground 2(a) was that the sentencing judge erred in principle by finding that the Bugmy v The Queen (‘Bugmy’) [51] principles did not apply to circumstances such as the applicant’s; that is, where an offender grew up in an environment of neglect and in her formative years suffered profound traumatic experiences which led her to use illicit substances. The applicant further argued that the finding that Bugmy principles were not engaged was plainly wrong and against the weight of the evidence. The applicant submitted that it was a finding that was not open to the sentencing judge. As to Ground 2(b), the applicant contended that the sentencing judge took into account an irrelevant consideration when attempting to compare her background with that of other offenders dealt with by his Honour including three offenders he had dealt with on the day of sentence. Hence, the applicant’s arguments were a mixture of House error and the “constrained approach”.

It is clear that the sentencing judge gave careful consideration to Mr Albassit’s report. During the proceeding on sentence, the following exchange took place between his Honour and Mr Barrack, the applicant’s then counsel:

Mr Barrack advanced his argument of profound deprivation on “neglect, abandonment and those two specific incidents of significant trauma in her early teens”. Those traumatic incidents were the applicant’s report to Mr Albassit of the attempted sexual assault by her uncle approximately a month before her 14th birthday and her kidnapping and physical assault by a man when she was 14. The applicant could not recall whether she had been assaulted during the hours she had been detained as her memory of the event, Mr Albassit reported, was “seemingly blocked out”.

Mr Barrack further submitted that the sentencing judge should find that there was a “direct correlation” between the profound deprivation and the commission of the offence. This submission was founded on Mr Albassit’s opinion that “there [was] a direct and significant correlation between [the applicant’s] offending behaviour and her ongoing chronic psychiatric/psychological conditions”. [53]

Although the focus of Mr Barrack’s argument was on the traumatic events which had occurred when the applicant was 14, the applicant had been sent to Lebanon by her mother when she was 15 to get her away from her Australian lifestyle. Mr Albassit reported that the applicant began using illicit substances at the age of 18. It was his opinion that the applicant had been “exhibiting symptomatology of Post-Traumatic Stress Disorder for approximately seven years” and “symptomatology of Substance Abuse Dependence for approximately four years”. [54]

In his ex tempore sentencing remarks which immediately followed oral submissions, the sentencing judge did not accept in the passage quoted at [84] below [55] that there was a direct correlation between the applicant’s offending and her ongoing chronic psychological conditions. His Honour considered that Mr Albassit’s opinion went to explain the applicant’s use and abuse of illicit drugs. His Honour described the applicant as not being “in a position to think about the consequences to herself, let alone the consequences to others and principles of general deterrence did not prevent this crime occurring.” [56] The considerable efforts that the applicant had taken to put that part of her life behind her, the origin and extent of her drug problems, the sentencing judge said, assisted him to assess her prospects for the future.

His Honour went on to decide that the applicant’s background was not a history of profound deprivation which would attract the principles in Bugmy. However, the applicant’s background was not disregarded. His Honour said:

In accordance with the arguments advanced in this Court by the parties, the first question is whether the sentencing judge erred in principle by finding that the Bugmy principles did not apply in the applicant’s circumstances.

In my view, there is nothing that was said by his Honour, a very experienced sentencing judge, which suggests that he did not understand the pervasive effects that sexual abuse might have on a 14 year old girl. District Court judges are frequently confronted with the task of sentencing offenders who have sexually abused young persons and the harm done to victims is an important factor in the assessment of the objective gravity of the crime. Furthermore, what was said by his Honour could not be taken as excluding young victims of sexual abuse from the application of the principles enunciated in Bugmy. I do not find that the sentencing judge acted upon wrong principle or he failed to take into account a material consideration.

I agree with Hamill J that his Honour’s remarks that the “[applicant’s] troubled lifestyle pales into insignificance to the sort of chronic profound deprivation often seen in this Court and frankly seen in three other matters that I have disposed of today” were “infelicitous”. [58] However, I am not persuaded that these remarks demonstrate that his Honour was acting upon “extraneous or irrelevant matters”. The detailed attention the sentencing judge gave to all of the material relevant to the applicant’s subjective case suggests otherwise. By these ex tempore remarks, his Honour was endeavouring to place emphasis on his factual finding that Mr Albassit’s report was “not a history of profound deprivation”.

The material before the sentencing judge did not mandate a finding that the Bugmy principles were engaged. It was not a binary question. It would have been open to the judge to make such a finding. As in many aspects of the difficult task faced by sentencing judges, reasonable minds might differ.

His Honour clearly took into account all of the applicant’s subjective case in reaching the sentence that was imposed.

I am satisfied that on either the constrained approach or the House approach, his Honour did not err.

Since writing this judgment, I have had the advantage of reading Bell P’s judgment. I particularly agree with Bell P’s observations at [8]-[13] above and agree that it is neither necessary nor desirable in the present appeal to consider the precise boundaries of the Bugmy principles.

I agree that the error in Ground 4 does not require the sentencing discretion to be exercised afresh.

Accordingly, I agree with the orders proposed by Bell P.

HAMILL J: In undertaking the difficult task of sentencing offenders or appearing on either side in sentencing proceedings, it is often convenient, and always tempting, to attempt to categorise or pigeon-hole both the type of case and the individual offender. The present appeal provides an example: it is a “Henry case” (because of the nature of the offence and certain personal characteristics of the applicant); [59] and the appeal largely centred around the question of whether it was a “Bugmy case” (because of the applicant’s traumatic and dysfunctional childhood). [60] Such categorisation is understandable and sometimes helpful, but it must not obscure the true task in sentencing which is to balance the competing objectives of punishment to arrive at a just outcome reflecting the gravity of the crime, its impact on its victims and the individual circumstances of the offender. As Mahoney ACJ put it in R v Lattouf, in a statement which resonates in the applicant’s case, “if justice is not individual, it is nothing”. [61]

The applicant committed a very serious crime of armed robbery in company. The offence was out of character and committed when she was 20 years of age and addicted to drugs. The evidence established that her drug addiction and involvement in serious criminal conduct resulted from childhood trauma that manifested in symptoms of post-traumatic stress disorder (PTSD). In sentencing her in the District Court in Wollongong, Judge Haesler SC held that Ms Nasrallah’s case was not sufficiently “exceptional” to avoid a sentence of full-time imprisonment in accordance with this Court’s guideline judgment on armed robbery. [62] His Honour also held that the applicant’s childhood “deprivation” was not adequately “profound” to attract the principles discussed by the High Court in Bugmy v The Queen. [63] In the result, the applicant was sentenced to full-time imprisonment for a period of two years and nine months with a non-parole period of one year and four months for the armed robbery offence contrary to s 97(1) of the Crimes Act 1900 (NSW). There was a concurrent fixed term of three-months imprisonment for a malicious damage charge contrary to s 195(1)(a) of the Crimes Act, which was committed in the course of the robbery. The non-parole period is due to expire on 16 April 2022.

The applicant seeks leave to appeal against the sentences imposed on her. She submitted that the sentencing Judge fell into legal error in his response to the evidence of her personal circumstances. In particular, the applicant argued that the finding that there were no exceptional circumstances was “not open” to the sentencing Court and that the sentencing Judge erred in his application of the principles enunciated in Bugmy v The Queen. The respondent contended to the contrary, although fairly raised the fact that the commencement date of the sentence did not take into account four days of pre-sentence custody (which was not brought to the attention of the sentencing Judge). Certain aspects of the applicant’s submissions should be accepted. A different, less severe, sentence is warranted and ought to have been imposed. [64] Error having been established; it is necessary to exercise the sentencing discretion afresh. [65] In the circumstances as they stand at this stage, and applying a 25% discount for the applicant’s early plea of guilty, I would impose a sentence of 18 months’ imprisonment with a non-parole period of nine months commencing on 12 December 2020. The applicant should be released to parole on 11 September 2021.

These are my reasons for those conclusions.

The facts of the offences were not in dispute and were outlined in a statement of agreed facts tendered on sentence. The robbery was recorded from various camera angles in closed circuit television footage captured by cameras inside the premises where the offences were committed.

The victim was working as a shop attendant at a Caltex service station in Windang near Wollongong at around 7:50pm on 28 February 2020. The applicant’s co-accused, Mouhammad Mehdi, entered the shop area as the victim was walking towards the counter. Mr Mehdi yelled “give me your money”, grabbed the victim by the shoulder and forced him toward the counter and cash register. He was wearing a hooded jacket and wielding a small knife. Seconds later the applicant entered the shop, carrying a metal pole or crowbar, and yelled “[f]uck”. She was also wearing a hooded jacket and her mouth was covered with a piece of fabric. She swung the weapon at shelving and merchandise within the shop causing items to fall to the ground and breaking (or cracking) one of the glass panels of the sliding door. She yelled “give him the money now, give him the money now”. She took up a position at the door preventing the door from closing. Meanwhile, the co-offender forced the victim at knife point to open the cash register. He threatened to “cut” the victim and the victim felt the blade of the knife pushed up against his neck. The co-offender grabbed one $20 note and five or six $5 notes from the cash register and stole eight packets of Peter Jackson cigarettes. He pushed the victim. The applicant and co-offender fled the scene in a black Toyota Corolla. The victim pressed the duress alarm. Based on a review of the CCTV footage, the robbery took place over a period of around one minute.

At around 8:00pm (according to the facts sheet), [66] police noticed the Corolla, which was registered to the applicant, in a nearby suburb. The applicant, the co-offender and his brother were arrested. The police officers located a $20 note and four $5 notes in the co-offender’s tracksuit pants and a number of packets of Peter Jackson cigarettes in the car. The co-offender’s brother was released without charge. The applicant agreed to be interviewed and, when shown the CCTV footage, agreed that she was “wearing the same pants”.

Judge Haesler recounted these facts, noting that only a small amount of property was stolen and “there was a real threat of violence to the console operator, but no actual violence was inflicted – physical violence was inflicted on him as the incident finished”. [67]

The applicant pleaded guilty to the offence of armed robbery under s 97(1) of the Crimes Act and the sentencing Judge referred to the maximum penalty of 20 years’ imprisonment. His Honour said the applicant “has done everything that one would expect of a person of prior good character” and “did not seek to put the Court to undue expense” by contesting the facts or disputing her guilt. [68] His Honour allowed a discount of 25% for the early guilty plea. An offence of intentionally damaging property, by smashing things in the shop with the iron bar, was dealt with under s 166 of the Criminal Procedure Act 1986 (NSW). Judge Haesler said these were “intimidatory acts” committed in the course of the principal offence and held (correctly) that any sentence for that matter should be served concurrently with that imposed for the armed robbery. [69]

The applicant was born in 1999. She was 20 years old at the time of the offence and 21 when she was sentenced. At the time of sentence, she had one conviction on her criminal record. That offence was committed a few months before the robbery offence and involved failing to disclose the identity of the driver or passenger to police as the owner of the vehicle. [70] It was a summary offence for which the applicant was fined $1,000. The sentencing Judge treated her as a first offender and accepted that she was a person of good character. [71]

Letters from the applicant and her mother were tendered along with certificates demonstrating the applicant’s progress towards rehabilitation. A narrative of the applicant’s life was provided in a report from a psychologist, Mr Sam Albassit. While the Prosecutor at first instance, and counsel for the respondent on the appeal, noted that this material was hearsay, the sentencing Judge accepted the evidence and (generally) the opinions provided by the expert. Mr Albassit was not subject to cross-examination and there was no suggestion of exaggeration in the history provided by the applicant as to certain traumatic experiences when she was 13 to 14 years old.

The applicant attended Canterbury Girls High School and Condell Park High School. Her early childhood appeared to be uneventful but in her early teenage years she suffered a series of traumatic experiences. Mr Albassit recounted the following history:

The applicant’s suicide attempt and admission to hospital provide some insight into the impact of the traumatic events the applicant experienced as a young teenager. At the time of Mr Albassit’s report, Ms Nasrallah tested in the “extremely severe” range for the core symptoms of depression and anxiety. The psychologist provided an opinion that the applicant “has been exhibiting the symptomatology of Post-Traumatic Stress Disorder (“PTSD”) for approximately seven years” and “the symptomatology of Substance Dependence for approximately four years”. The applicant’s symptoms of PTSD were described in the following terms:

Mr Albassit concluded:

Mr Mehdi, the applicant’s co-offender, was sentenced by Judge O’Brien to a term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 8 months. Judge Haesler considered the principle of parity and determined correctly that the applicant should receive a less severe sentence. His Honour found that although the offenders were to be sentenced for their participation in the same joint criminal enterprise, the co-offender “played a more active role in the robbery”, wielded the knife and threatened and assaulted the victim. Mr Mehdi was also the one who took the money from the cash register and the cash was still in his possession when the pair were arrested. His Honour noted that the co-offender had a criminal history and was six years older than the applicant. Further, the applicant presented a compelling subjective case which is the foundation of the present application.

Most of the material tendered on sentence was provided to Judge Haesler in advance. At the outset of the sentencing hearing, his Honour indicated that he had read the evidentiary material and written submissions. This included the report of Mr Albassit and the submissions of counsel then appearing for the applicant. The written submissions relied on Bugmy and observed, “[t]he circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way”. [72] Implicit in the written submissions was the assertion that the applicant’s moral culpability was reduced as a result of her childhood trauma and its psychological impact. The submissions went on to say, “the effects of profound deprivation do not diminish over time” (emphasis added). [73]

The sentencing Judge said at the commencement of the hearing:

Counsel conceded that “it may not be open to your Honour to find a level of profound deprivation” (emphasis added) but went on to press the submission that the traumatic events of the applicant’s childhood and the impact those events had on the applicant’s life was such that her moral culpability was diminished. [75] It was submitted that the violence in the offence was a “complete aberration” from the applicant’s character. [76] It was conceded that a sentence of imprisonment was the only possible outcome, but that the sentence should be less than three years and ordered to be served by way of an intensive corrections order (“ICO”). The Prosecutor’s response was very fair and somewhat enigmatic. The following exchange took place:

The sentencing Judge concluded that no sentence other than one of full-time imprisonment was appropriate but imposed the sentence he considered to be the least possible punishment in the circumstances.

This ground was argued on the basis that it was separate and independent of the second ground which related to an asserted error in Judge Haesler’s approach to the applicant’s traumatic experiences as a child. However, there is considerable overlap and interrelation between the grounds. If it is accepted that that the sentencing Judge erred in his application of the so-called “Bugmy principles” (ground 2), it may follow that any such error infected his Honour’s finding that there were no “exceptional circumstances” justifying a departure from the guideline judgment in R v Henry, and his conclusion that the applicant had to be sent into full-time custody. It is impossible to know whether the sentencing Judge would have found “exceptional circumstances” and imposed a less severe sentence had his Honour taken a different approach to the evidence relating to the applicant’s childhood trauma.

The practical reality of the applicant’s situation now is that success under ground 1 will not change the fact that she has “had the humiliation of hearing prison gates closing behind her”. [78] At the time of the hearing of the appeal, Ms Nasrallah had spent seven months and seven days in gaol. Counsel appearing on the appeal accepted that it was not necessary in those circumstances to determine whether an ICO was the more appropriate sentence and that, if the appeal was allowed, the appropriate course was to impose a sentence of full-time imprisonment that would result in the applicant’s imminent release to a period of parole. The sentencing legislation does not allow an ICO to commence other than on the day it is imposed. [79] A sentencing judge must, of course, take into account any period of pre-sentence custody. [80] There is some controversy as to whether this Court, in re-sentencing, can impose an ICO dating back to the date of commencement of a sentence imposed by the District Court. [81] However, it is unnecessary to engage with that controversy in this case, because it is not suggested by the applicant that the Court should now impose a sentence to be served by way of an ICO.

I am not satisfied that Judge Haesler fell into an independent error in deciding that an ICO was not an appropriate sentencing option. It is clear that his Honour was guided by the submissions of counsel and the concession that the guideline judgment on armed robbery applied to the applicant’s case. The guideline judgment established, or re-iterated, the general proposition that sentences other than full-time imprisonment should be “few and far between” and that such sentences would only be appropriate “in the most exceptional circumstances”. [82] There was no challenge to this aspect of the guideline judgment in the advent of cases referred to below at [79]. In R v Henry, Spigelman CJ identified a “category of case which is sufficiently common for purposes of determining a guideline”. [83] The features of that typical case were:

Spigelman CJ held at [165] that “sentences for an offence of the character identified above should generally fall between four and five years for the full term”. Spigelman CJ subsequently clarified that this guideline related to “a guilty plea of limited value”. [85]

It was accepted both at first instance and on appeal that the decision in R v Henry was a binding authority and was applicable to the applicant’s case. There was no suggestion that the guideline judgment imposed an “unlegislated judicially created constraint on the sentencing discretion”: Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [105] applying the judgment of Simpson JA in Robertson v R [2017] NSWCCA 205 at [89].

Judge Haesler referred to the judgment in R v Henry saying:

His Honour went on to note that the guideline was calculated to ensure consistency in the application of principle and that it was but one factor to be taken into account by way of “guidance”. His Honour noted the guideline judgment was not “prescriptive”, that such judgments were “guidelines not tramlines”, and that “every offence and every offender requires individualised treatment”. [87] His Honour took into account the applicant’s prior good character, her significant achievements rehabilitating herself, but also noted that robbery was “a crime against real people” which could have a “terrible impact” on its victims and cause fear in the community more broadly. [88] The sentencing Judge said he took into account the applicant’s background and history of trauma and accepted that the offence was an “aberrant act” on her part. [89] However, even taking into account “all of the mitigatory factors” he concluded that the sentence of full-time imprisonment upon which he settled was the “absolute minimum that law and justice demand”. [90]

While I am of the view that the Prosecutor’s initial concession at first instance was correct, and that it would have been “open” in the applicant’s particular circumstances to have imposed an ICO, I cannot conclude that his Honour’s decision to impose a full-time gaol sentence was not open to him in the relevant sense. Sentencing is an instinctive and intuitive process and there is no single, correct outcome. Intermediate courts of appeal pay real deference to the role of the judge at first instance and sentencing judges are afforded a deal of flexibility in determining the appropriate punishment. Judge Haesler applied the guideline judgment and reached the conclusion that he did. I can discern no legal error in his Honour’s approach.

While the failure to give “full weight” to the applicant’s history of trauma (if such a failure is established) may have impacted on the conclusion that the case was not “exceptional” for the purpose of the application of the guideline judgment, I propose to follow counsel’s lead and consider that issue separately. Putting that issue aside and giving due acknowledgment to the powerful submissions made by counsel in both this Court and the District Court, I remain unpersuaded that ground 1 should be upheld.

In the judgment on sentence – which, it must be remembered, was delivered ex tempore immediately after the conclusion of the submissions – Judge Haesler said:

Later his Honour said:

These passages demonstrate the difficulties that arise when attempting to fit sentencing cases into categories by reference to past and similar cases. In particular, the emphasis on the qualifier “profound” in the assessment of the extent of the applicant’s “deprivation” may have distracted from the question of the extent to which the applicant’s traumatic teenage years had the capacity to, and did, reduce her moral culpability for the offences for which she stood to be sentenced. This focus appeared to arise from the submissions of counsel who had conceded at the sentence hearing, on direct questioning, “as your Honour pointed out, it may not be open to your Honour to find a level of profound deprivation”. [93] However, as Brereton JA pointed out in Hoskins v R (a judgment handed down the day the present application was argued):

As Brereton JA made clear, there is “no magic in the word ‘profound’” in a case where an offender relies on trauma, dysfunction and deprivation experienced in their childhood. In any event, I am unable to accept that the applicant’s history of trauma and abandonment did not amount to “profound deprivation” in the relevant sense and for the purposes of the application of principles associated with an assessment of an offender’s moral culpability. Her uncle attempted to rape her when she was 13 years old and she was kidnapped and (at least physically) assaulted a short time later. She “blocked out the memory of the event” and “shut down physically and emotionally”. She was sent by her mother to Lebanon where she was isolated, felt “neglected and disengaged” and “spiralled into a deeper depressive state”. She “had no one to turn to”, developed a suicidal ideation and attempted to take her own life. It was in the aftermath of that “traumatic year” that she returned to Australia and started to use drugs to “numb her psychological and emotional pain” and to “forget and deal with her trauma”.

The respondent submitted that the “applicant’s childhood did not normalise drug abuse or acts of violence such as armed robbery, nor did it cause her to misapprehend that such behaviour was acceptable”. [95] However, as N Adams J said in Dungay v R (in the passage cited by Brereton JA in Hoskins at [33] above) [96] it is not necessary to establish a causative link before the proper application of Bugmy requires a sentencing Judge to give full effect to the history of childhood deprivation. [97] Rather, the appropriate focus is the effect such a background may have on the offender, and its “ability to compromise the person’s capacity to mature and learn from experience”. [98]

The relevance of the childhood deprivation and early exposure to violence and drug and alcohol abuse discussed by the High Court in Bugmy has long been recognised by courts in New South Wales. In the context of an offender raised in “an Aboriginal community in which alcohol abuse and violence were endemic” [99] the principles were discussed in the important decision of Wood J (as his Honour then was) in R v Fernando (1992) 76 A Crim R 58. As the High Court emphasised in Bugmy, [100] these principles are not of specific application to indigenous offenders, a matter noted by Simpson J (as her Honour then was) in Kennedy v The Queen [2010] NSWCCA 260 at [53]:

Simpson J (as her Honour then was) also said in R v Millwood [2012] NSWCCA 2 at [69]:

An analogy between childhood deprivation and cases involving an offender whose drug addiction arose at a young age or in “extreme” circumstances has also been recognised, including in the judgments in R v Henry itself.

In R v Henry, Spigelman CJ emphasised the well-established principle that drug addiction does not, of itself, provide a mitigating circumstance and does not reduce an offender’s moral culpability. [101] However, Spigelman CJ recognised that there were cases in the margins where an offender may not have made a “free choice” in turning to drugs. [102] This included cases where an offender became addicted to drugs as a result of medical treatment (Talbot v The Queen (1992) 34 FCR 100; (1992) 59 A Crim R 383) or at a very young age (Douglas v The Queen (1995) 56 FCR 465; [1995] FCA 411). His Honour held that such extreme cases did little “to establish a general principle that addiction lessens moral culpability”. [103] However, in identifying these kinds of cases, Spigelman CJ also acknowledged that there was a limit on the general proposition that drug addiction is not a mitigating factor.

Wood CJ at CL said (at [270] – [274]):

Newman J (at [278]) and Hulme J (at [331]) agreed with both the Chief Justice and the Chief Judge at Common Law on the issue of the relevance of drug addiction to an offender’s subjective case on sentence.

Simpson J said (at [338] – [342]):

In the applicant’s case, it was never suggested that her drug addiction, of itself, provided any excuse or right to mitigation. Rather, it was contended at all stages that her moral culpability was reduced because of the impact of her childhood trauma on the direction her young life took. The sentencing Judge accepted the factual basis of this submission and, largely, acted on the opinion of the expert witness. However, it is not clear that his Honour accepted that Ms Nasrallah’s moral culpability was reduced in consequence of those matters. Had his Honour done so, he may have given greater weight to the various objectives of sentencing and been more open to the submission that the case might be appropriately dealt with by the imposition of an ICO.

I accept the applicant’s submission that the sentencing Judge erred by failing to find that the so called “Bugmy principles” were engaged and in failing to give “full weight” to Ms Nasrallah’s deprived and traumatic background. This error appears to have arisen from placing undue emphasis on the word “profound” and in treating the question of whether there was “profound deprivation” as a kind of threshold test. The High Court did not lay down such a standard in Bugmy, although William Bugmy’s case was appropriately so described. As Judge Yehia SC said in R v Nabalarua; R v Quinlan [2017] NSWDC 328 at [146], in the face of a submission that Bugmy did not apply to a case in which there was a degree of planning in the offending, “the principle enunciated by the High Court in Bugmy is [not] to be shackled or diluted”.

The applicant also complains that Judge Haesler took into account an irrelevant consideration by considering the “background of other offenders unrelated to the proceedings”. I accept that there is some force to this submission. The fact that three other offenders dealt with on the same day had, in the sentencing Judge’s opinion, a history that was worse than that of the applicant was not really to the point. Different people will react differently to the trauma they experience. That may be because of their individual fortitude or because of the support networks available to them at the time. The present applicant felt abandoned by her family at a time when she was vulnerable and in need of support. She was twice the victim of violence, including an attempted sexual assault perpetrated by an older, trusted male relative and a kidnapping, the details of which (including whether she was sexually assaulted) she had blocked out. She was sent overseas at the age of 15 and became suicidal.

The impact of violence and sexual offences on victims is well understood and documented. In R v MJB, Adamson J observed “that the damage done to children who are victims of sexual assault by adults was well known and could be assumed”. [104] The pervasive effects of child sexual abuse were again acknowledged in R v Gavel:

In Stanton v R, Beech-Jones J (Cavanagh and Harrison JJ agreeing) noted:

The Royal Commission into Institutional Responses to Child Sexual Abuse (“RCIRCSA”) also contributed to the understanding of the impacts of child sexual abuse with the release of its final report and recommendations in 2017. [107] The Commission’s conclusions, based on a body of academic research and the experiences of witnesses called in the course of the lengthy hearings and private sessions, analysed the adverse and multifaceted effects of child sexual abuse on “survivors”. [108] The impacts on participants in the RCIRCSA were summarised as follows:

This Court has echoed RCIRCSA conclusions that “what was previously regarded as low level sexual abuse can have catastrophic effects on children” in several decisions: BT v R [2019] NSWCCA 147 at [11] and see, for example, O’Sullivan v R [2019] NSWCCA 261 at [14], R v Cattell (2019) 280 A Crim R 502; [2019] NSWCCA 297 at [111].

The sentencing Judge’s remark that the applicant’s subjective case of childhood trauma and neglect “pales into insignificance” by comparison with other cases in the list was infelicitous because of its capacity to suggest that the Court underestimated the gravity of the impact of the applicant’s trauma. It is not difficult to imagine the response of this Court (or a sentencing court) to a submission on behalf of a perpetrator that the impact of an attempted rape on a 13 year old victim “pales into insignificance” by reference to other, more serious, cases.

Further, the comparison to other cases heard by the sentencing Judge on the day of the applicant’s sentencing hearing is impossible for this Court to evaluate or for the applicant to comprehend unless she was present and paying attention to the other matters in his Honour’s list. She could not know how her traumatic experiences “pale[d] into insignificance” by comparison.

However, it must be remembered that his Honour was dealing with a number of cases in a very busy list and delivered his sentencing judgment ex tempore. I would not consider his passing reference to the other cases in the list that day as indicative of legal error. Without more, I do not accept that Judge Haesler fell into error in what might be considered to be an unfortunate choice of language. However, the matter tends to confirm the conclusion that his Honour fell into error in his approach to the applicant’s childhood trauma.

The sentencing Judge gave earnest consideration to the case and was troubled by the outcome upon which he settled. His Honour said as much at the conclusion of the judgment on sentence:

As with the earlier remarks, his Honour was focused on the objective seriousness of the crime but did not appear properly to take into account the reduction of the applicant’s moral culpability arising from her traumatic experiences as a child and their psychological impact on her development and choices. I am satisfied that this was a legal error of the kind asserted by ground 2(a) and 2(b) in the amended grounds of appeal. As I have said in dealing with ground 1, the error established under ground 2 makes it difficult to assess the contention that it was “not open” to his Honour to conclude, in the face of the guideline judgment on armed robbery, that the only appropriate sentence was one of full-time imprisonment. However, had the reduction in moral culpability been taken into account in the various ways referred to by Wood CJ at CL in R v Henry, his Honour may have reached a different conclusion.

Error having been established under ground 2 it is unnecessary to speculate on that question as it falls to this Court to exercise the sentencing discretion afresh in accordance with the High Court’s decision in Kentwell v The Queen, [111] and to determine whether a lesser sentence is warranted and ought to have been imposed. [112] Before addressing that question, it is convenient to dispose of the remaining two grounds of appeal briefly.

Since circulating a draft of this judgment, I have had the opportunity of reading the draft judgments of Bell P and Price J. I have considered carefully the conclusions and reasons of my senior colleagues but remain of the opinion that Ms Nasrallah’s appeal should be allowed and that she should be re-sentenced. I should indicate, in summary form, the reasons for my respectful disagreement.

The observations of Brereton JA in Hoskins are correct. As Brereton JA said there is no magic in the word profound and the use of the expression “profound deprivation” in Bugmy v The Queen was not employed as a threshold test to the application of relevant principles concerning an assessment of an offender’s moral culpability. Those observations should be followed unless they are clearly wrong. [113] This approach accords with that taken by Simpson AJA in Hanna v R [2020] NSWCCA 125 at [86]-[88]; (2020) 102 NSWLR 244. [114] Brereton JA’s comments have already been followed by a single Judge of the Supreme Court of the Australian Capital Territory: R v BS-X [2021] ACTSC 160.

In my respectful opinion, the majority judgments underestimate the psychological impact of the applicant’s traumatic experiences – (the attempted rape and the kidnapping at aged 13-14) and sense of abandonment and isolation (being sent by her family to Lebanon at 14-15) – and their relevance to an assessment of her moral culpability. The applicant met the diagnostic criteria for PTSD and the expert provided an unchallenged opinion of a “direct and significant correlation between Ms Nasrallah’s offending behaviour and her ongoing chronic psychiatric and/psychological conditions”. Judge Haesler’s observations about this evidence, which I have set out and to which Price J refers, [115] did not impact on the relevance of the evidence to the issue of the applicant’s moral culpability. [116] Further, I am respectfully unable to agree with the implication that a “history” of deprivation or trauma may require a “sustained” period of abuse or neglect. [117] The relevant consideration is the impact of the childhood trauma on the applicant’s development and the course her life took as a result. It is this that informs a proper assessment of the offender’s moral culpability. This is not to extend or “to consider the precise boundaries of the Bugmy principles.” [118] Rather it is to recognise the analogous situation of an offender whose life was shaped by childhood trauma, an analogy recognised as long ago as the decision in R v Henry. [119]

As the recent Victorian case of DPP v Hermann demonstrates, the individual circumstances in which an offender’s personal history and mental health issues might inform their moral culpability are diverse and sometimes overlapping. [120] To refer to two passages in the judgment of five-member bench:

While the principles referred to by the President concerning “the protection of the community from the offender” are well established, [121] they are not matters of any great moment in the present case because the sentencing Judge acknowledged the applicant’s genuine remorse, her “progress towards rehabilitation” and held that “there is no need to further deter this offender”. This was not a case where the matters affecting the proper assessment of the offender’s moral culpability also gave rise to a concern that she represented an ongoing danger to the community.

In relation to the judgment of Price J, I record my respectful disagreement with the proposition that the categorisation of childhood deprivation as “profound” or “not profound” constitutes a “finding of fact” by which this Court is bound. [122] Insofar as the comments of N Adams J in Newman v R [2021] NSWCCA 101 at [62] are to the contrary, I have concluded that those statements are plainly wrong and ought not to be followed. Further, as the judgment of Hoeben CJ at CL shows, the expert evidence in Newman v R only established “possible symptoms” of ADHD. [123] The relevant findings of fact on sentence in this case concern the occurrence of the traumatic events and the expert evidence of their impact on the applicant. The exercise of determining whether the facts give rise to “profound deprivation”, apart from being an unnecessary distraction, is an exercise in evaluation, quantification or categorisation rather than a process of fact finding. To dismiss an appeal on the basis that a finding of “profound deprivation” is a finding of fact gives rise, in a particularly acute way, to the situation against which Basten JA warned in Hordern v R [2019] NSWCCA 138 at [20]:

I am unable to accept the proposition underlying the third ground of appeal. As the respondent submitted the sentencing Judge specifically referred to the fact that the applicant was “receiving treatment for depression and anxiety” [124] and that “every effort has been made [by the applicant] to show that this offence was an aberrant act and that she can lead a law-abiding life in the community”. [125]

His Honour also noted the submission to which this ground relates and seemingly accepted it. His Honour said in his judgment:

In a part of the remarks where his Honour referred to the various objectives of sentencing his Honour said “[h]ere, her progress toward rehabilitation must and should be recognised”. [127]

In view of these various remarks it is clear that his Honour considered the submission concerning the undesirability of removing the applicant from the therapeutic environment which she had established and thrived in during the period when she was in the community, on bail, awaiting sentence.

Ground 3 must be rejected.

This ground was added on the hearing of the appeal and arose from the following parts of the respondent’s written submissions:

As the parties agreed, this amended ground must be upheld and any sentence imposed on re-sentencing should be ordered to commence on 12 December 2020.

Objectively, the offence was very serious as the facts described earlier in the judgment demonstrate. This is reflected by the available maximum penalty (20 years) and the enduring application of the guideline judgment in R v Henry in which it was held that a penalty other than one of full-time imprisonment could only be appropriate in a truly exceptional case. The applicant’s case met each of the criteria, other than the last, in the often-encountered category of case described by Spigelman CJ in R v Henry at [162]. A range of 4 to 5 years (for the total sentence) was identified at [165] however as the Chief Justice explained (at [169]), “aggravating and mitigating factors will justify a sentence below or above the range”. The applicant’s plea was early and valuable. His Honour identified such things as youth and rehabilitation efforts as relevant matters. None of the aggravating features discussed at [170] were particularly applicable to the applicant’s case.

The applicant’s subjective case was powerful and compelling, even if it did not fit within the descriptor of “exceptional”. In my view it was exceptional but that is a matter upon which minds might reasonably differ. The applicant was a first offender who was unlikely to offend again in view of her current family support, which was expressed in the letter from her mother. I have already described her traumatic experience of twice being a victim when she was aged 13 and 14 years old and the impact of this when she was, or felt, abandoned and neglected and sent off to Lebanon. Her suicidal ideation and attempt at self-harm were the direct result of these events and her resort to drugs a few years later was not the result of a completely “free choice”. [129] She has made substantial strides towards rehabilitation and like the appellant in the case of R v Sargeant [130] it can properly be said:

I accept that the principles discussed by the High Court in Bugmy, and the approach to drug addiction articulated by Wood CJ at CL and Simpson J in R v Henry (extracted at [93] – [95] above) are engaged. The applicant’s moral culpability for her crimes is significantly reduced. This in turn impacts upon the weight to be given to the various purposes of punishment.

The sentencing Judge indicated that “when criminals are caught committing such offences, the community will lose trust in the courts if they do not punish crimes and punish them severely”. [132] So much can be accepted but, as the Acting Chief Justice pointed out in R v Lattouf:

Mahoney ACJ also said:

I refer to these observations in the context of exercising the sentencing discretion afresh. In no way are these comments directed to the approach taken by the sentencing Judge who was openly conscious of the requirement for individualised justice and the potential negative impacts on the applicant, and in turn the community, in sending this young offender to gaol.

The applicant conceded that the threshold created in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is crossed; no sentence other than one of imprisonment is appropriate in view of the objective gravity of the crime. However, like Judge Haesler, I have reached the conclusion that the sentence should be the “absolute minimum that law and justice demand”. [135] I have reached a different conclusion as to what that “absolute minimum” is and have concluded that a less severe sentence is warranted and ought to have been imposed.

I have considered the sentence imposed on the co-offender in determining the appropriate sentence to be imposed on the applicant. This Court was not provided with the sentencing remarks of Judge O’Brien, so it is impossible to compare the personal circumstances of the two offenders. However, having reviewed the CCTV footage, it is evident that the co-offender had a more active and violent role in the robbery, threatening the service station attendant using a knife. The co-offender was 26 years old at the time of the robbery, while the applicant was 20. His criminal record included several driving offences, offences of violence against police officers and an offence of destroy or damage property. The applicant’s relative youth, combined with her lack of any serious criminal convictions, are factors that increase the weight to be given to rehabilitation. Equally, punishment and deterrence have a more limited role to play in the applicant’s case.

I would confirm the fixed term of three months imposed for the offence of intentionally damaging property. That is academic because, for the reasons given by Judge Haesler, the sentence should be wholly concurrent with the sentence for the armed robbery.

As to the armed robbery, I would commence with a sentence of two years imprisonment and reduce that sentence by 25% to reflect the utilitarian value of the applicant’s plea of guilty. That results in a sentence of 18 months. As I indicated earlier, the question of whether an ICO is an appropriate sentencing option is now otiose because the applicant has been in gaol for a period exceeding seven months. That period, along with an earlier period of pre-sentence custody the subject of ground 4, should be taken into account by backdating the sentence. As I have said, the parties agree the sentence should commence on 12 December 2020. Like the sentencing Judge, I would find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. I would make the non-parole period 50% of the total sentence. That results in a total of sentence of 18 months with a non-parole period of nine months

For those reasons, I would make the following orders: