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Court of Criminal Appeal 21 November 2017

Ohanian v R

[2017] NSWCCA 268

Drugs
CRIMINAL LAW SENTENCING DYSFUNCTIONAL CHILDHOOD EARLY EXPOSURE TO ILLEGAL DRUG USE WHETHER IMPACT “DIMINISHES” WHETHER DIFFERENT SENTENCE WARRANTED

Citation: Ohanian v R [2017] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 21 November 2017
Judges: Gleeson JA, Rothman J, Hamill J (all agreeing)

Background

The applicant was convicted of supplying 94.1 grams of MDA (a prohibited drug approaching the commercial quantity threshold of 125 grams) following a police operation involving a registered source. The offence occurred in mid-2015 while the applicant was on parole for a prior firearms offence, and three related drug supply and possession matters were taken into account on a Form 1.

The applicant had a significantly troubled upbringing. His parents' separation was acrimonious, his father was abusive, and his mother's new partner introduced him to cannabis at age 12, continuing to encourage drug use throughout his teenage years. The family home was subjected to a drive-by shooting when he was 19, and both brothers were involved in drugs and crime. A psychologist diagnosed him with multiple conditions including substance use disorder, persistent depressive disorder, and features of post-traumatic stress disorder, describing him as "psychologically damaged."

In the District Court, Judge Craigie sentenced the applicant to four years and five months imprisonment, with a non-parole period of two years and ten months, after a 25% discount for an early guilty plea. The applicant sought leave to appeal, arguing the sentencing judge erred in the treatment of his dysfunctional background as a mitigating factor.

  • Whether the sentencing judge erred by treating the mitigating weight of the applicant's dysfunctional childhood and drug-affected upbringing as having diminished over time, given his age and prior opportunities to reform
  • Whether that approach was contrary to the High Court's binding authority in Bugmy v The Queen (2013) 249 CLR 571
  • Whether any error warranted a different sentence, and if so, what sentence should be imposed

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in principle. His Honour below had reasoned that the applicant had enjoyed "ample opportunity to reform" and had, in substance, treated the mitigating effect of his severely dysfunctional childhood and early exposure to drugs as having diminished because of his age and passage of time. The Court held that this approach was squarely contrary to the High Court's decision in Bugmy v The Queen.

In Bugmy, the High Court held that the traumatic effects of a deprived and dysfunctional childhood do not simply diminish over time or with repeated offending. The sentencing court must consider those effects afresh at each sentencing, without treating earlier opportunities to reform as a reason to discount the mitigating weight of the background. Hamill J, delivering the leading judgment, confirmed this principle applies equally where the offender is not Indigenous, and noted that recent Court of Criminal Appeal decisions in Taysavang v R; Lee v R [2017] NSWCCA 146 had reinforced this position.

The Court accepted that the error was material and that a different sentence was warranted. Re-sentencing the applicant, Hamill J took into account the seriousness of the offending, the breach of parole, the criminal history (including the prior firearms offence), the proximity to commercial quantity, and the significant mitigating features: the dysfunctional childhood and drug-affected upbringing (without diminution), the multiple psychological diagnoses, the early guilty plea, the applicant's family circumstances, and the finding of special circumstances. Starting from a five-year sentence, the Court applied the 25% guilty plea discount to arrive at a total sentence of three years and nine months, with a non-parole period of two years.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed on 24 March 2017 quashed
  • Applicant re-sentenced to a non-parole period of two years commencing 10 January 2016 and expiring 9 January 2018, with a balance of term of one year and nine months commencing 10 January 2018 and expiring 9 October 2019
  • Applicant eligible for release on parole at the conclusion of the non-parole period

Key Takeaways

  • The Court of Criminal Appeal confirmed that the mitigating effect of a severely dysfunctional childhood and early exposure to drug use does not diminish with the passage of time or repeated offending. A sentencing court must assess this factor afresh at each sentencing.
  • Reasoning that an offender had "ample opportunity to reform" constitutes an error in principle when used to reduce the mitigating weight given to a deprived background. Such reasoning is contrary to Bugmy v The Queen (2013) 249 CLR 571.
  • The Bugmy principle is not confined to Indigenous offenders. It applies wherever a severely dysfunctional childhood and drug-affected upbringing have contributed to an offender's psychological damage and vulnerability.
  • Where a sentencing judge's error in applying Bugmy is material, the Court of Criminal Appeal will re-sentence rather than merely identify the error, as it did here, reducing the total sentence from four years five months to three years nine months.
  • Factors such as breach of parole, proximity to commercial quantity, and a serious criminal history remain significant aggravating considerations that must be weighed against the mitigating background circumstances, even when that background cannot be discounted over time.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Bugmy [2012] NSWCCA 223
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Taysavang v R; Lee v R [2017] NSWCCA 146
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Perdija v R [2012] NSWCCA 244