AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
7
Court of Criminal Appeal 17 July 2017

Buxton v R

[2017] NSWCCA 169

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE [1999] NSWCCA 111 WHETHER MANIFESTLY EXCESSIVE

Citation: Buxton v R [2017] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 17 July 2017
Judges: Bathurst CJ and Walton J (joint judgment); Price J (separate judgment)

Background

The applicant, an Aboriginal man aged 25 at the time of the offence, pleaded guilty to armed robbery with an offensive weapon under s 97(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 20 years imprisonment. The offence involved approaching two women on a Newcastle street, producing a knife, and demanding their bags. One woman threw her bag at the applicant before fleeing. He was arrested nearby shortly afterwards, and the bag was recovered with its contents intact.

The sentencing judge in the District Court at Newcastle imposed a non-parole period of five years, with a balance of term of three years, commencing 25 April 2014. A second offence arising from the same circumstances was taken into account on a Form 1. Special circumstances were found based on the accumulation of the sentence and the applicant's need for assistance with drug addiction.

The applicant had a severely deprived background. His parents were drug and alcohol dependent, his father introduced him to cannabis at age five, and he progressed to daily heroin use by age 13. A forensic psychiatrist diagnosed him with a psychotic disorder and polysubstance dependence, both present at the time of the offence. He had an extensive criminal history and committed the present offence while on parole for an earlier aggravated robbery with wounding, and also on bail.

  • Whether the sentencing judge erred in his consideration of the applicant's disadvantaged background, including the principles from Bugmy v The Queen (2013) 249 CLR 571
  • Whether the sentencing judge erred in applying the guideline judgment in R v Henry (1999) 46 NSWLR 346 and failed to consider factors relevant to the objective seriousness of the offence
  • Whether the sentence was manifestly excessive

Decision

The Court rejected the first ground of appeal. The sentencing judge had dealt comprehensively and sympathetically with the applicant's subjective case, expressly stating that he did not want to underestimate the effect of the applicant's upbringing. The Court quoted the High Court's guidance in Bugmy, which confirmed that the effects of profound childhood deprivation do not diminish with repeated offending and must always receive full weight. However, Bugmy also makes clear that a deprived background does not carry the same mitigatory weight across all purposes of punishment: where an offender cannot control violent impulses, the importance of protecting the community may increase correspondingly.

On the second ground, the Court found that the sentencing judge was plainly mindful of the Henry guideline and the 20-year maximum penalty. No error in the application of the guideline was established. The applicant's history of armed robberies and the fact that the offence was committed while on parole and on bail properly increased the weight given to specific deterrence and community protection.

The Court also rejected the manifest excess ground. The sentence was not so far outside the range of available sentences as to warrant appellate intervention under the principles in House v The King (1936) 55 CLR 499. No misapplication of principle was identified.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed the Bugmy principle that the effects of profound childhood deprivation must receive full weight at every sentencing decision, regardless of the offender's criminal history and the passage of time.
  • Applying Bugmy in full does not produce a uniform mitigatory outcome across all sentencing purposes: a deprived background that reduces moral culpability for impulsive conduct may simultaneously increase the relevance of community protection where violent behaviour persists.
  • No error arises from a sentencing judge's treatment of an applicant's background where the remarks on sentence expressly and sympathetically engage with that background, even if the subjective circumstances did not ultimately produce a lesser sentence.
  • Committing a serious offence while on parole for an earlier offence of the same type, and while also on bail, properly increases the emphasis placed on specific deterrence and protection of the community.
  • In dismissing the appeal, the court reaffirmed that manifest excess requires a sentence to fall so far outside the available range as to demonstrate error, not merely that a different result might have been open.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 97(1)
- Criminal Appeal Act 1912 (NSW) s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 22(1A), 33

Cases:
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (guideline judgment for armed robbery)
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (deprived background in sentencing)
- House v The King (1936) 55 CLR 499; [1936] HCA 40 (appellate intervention in sentencing)
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Various NSW Court of Criminal Appeal decisions including Bland, Bloomfield, Cowan, Currie, Gal, Gardner, Graham, Hamed, Huynh, Johnston, Kennedy, Kentwell, and Lee