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Court of Criminal Appeal 19 October 2018

Egan v R

[2018] NSWCCA 235

Drugs
CRIMINAL LAW SENTENCE APPEAL APPLICANT’S CHILDHOOD DISADVANTAGE CIRCUMSTANCES OF OFFENDING PERSONAL CIRCUMSTANCES LOSS OF FATHER AND MOTHER

Citation: Egan v R [2018] NSWCCA 235
Court: NSW Court of Criminal Appeal
Date: 19 October 2018
Judge(s): Bathurst CJ, Fullerton J, Campbell J

Background

The applicant, a man born in the Philippines in 1991, was sentenced in the District Court in September 2016 following convictions for two counts of supplying greater than the indictable quantity of a prohibited drug and one count of dealing with property suspected of being proceeds of crime. The drug offences involved 29.01 grams of heroin and 41.6 grams of methylamphetamine, discovered locked in a safe at premises connected to the applicant. A separate safe contained $39,540 in cash, forming the basis of the proceeds of crime charge.

The applicant had been arrested in March 2015 after police stopped him for a defective tail light, conducted a search, and later executed a warrant at nearby premises using keys found on his person. He had also fled from police during the initial encounter. Three additional offences (possession and mid-range supply of heroin) were placed on a Form 1 and taken into account on sentence.

The sentencing judge imposed an aggregate sentence with a non-parole period of three years and an additional term of three years. The applicant sought leave to appeal, arguing that the sentence failed to adequately account for his childhood disadvantage, his prospects of rehabilitation, and that the sentence was manifestly excessive.

  • Whether the sentencing judge failed to give appropriate weight to the applicant's childhood disadvantage in accordance with the Bugmy principle (from Bugmy v The Queen (2013) 249 CLR 571)
  • Whether the sentencing judge failed to have appropriate regard to the applicant's prospects of rehabilitation
  • Whether the aggregate sentence of six years (with a three-year non-parole period) was unreasonably or plainly unjust

Decision

Ground 1: Childhood disadvantage. The Court of Criminal Appeal examined the applicant's personal history in detail. His father died in 1998 when the applicant was seven, and his mother later died of cancer. The family migrated to Australia under difficult financial circumstances after an expectation of inheriting property proved unfounded. The Court accepted that the loss of both parents and the financial hardship were significant. However, Campbell J found that the sentencing judge had not ignored these matters. The evidence did not support a finding of "profound childhood deprivation" of the kind that would substantially diminish moral culpability. The sentencing judge's assessment of the applicant's circumstances was open on the evidence.

Ground 2: Rehabilitation. Counsel for the applicant effectively conceded this ground during the hearing, indicating she did not quarrel with the Crown's submissions on the point. Campbell J addressed it briefly and found no error in the sentencing judge's approach.

Ground 3: Manifest excess. The Court reviewed comparable sentences and noted that, while some offenders in those cases had more extensive criminal histories than the applicant, that distinction was only one factor among many. Campbell J found that the aggregate sentence, imposed for three significant drug supply-related offences, sat comfortably within the range indicated by comparable cases. The Court was not persuaded that any latent error affected the sentencing judge's reasoning. No mistake of fact, error of principle, or consideration of irrelevant matters was identified.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Bugmy principle requires a sentencing court to give genuine consideration to childhood disadvantage, but the Court of Criminal Appeal confirmed that it does not mandate a particular outcome unless the evidence establishes deprivation substantial enough to bear meaningfully on moral culpability.
  • Where the sentencing judge has acknowledged the applicant's personal hardships, including the early deaths of parents and difficult migration circumstances, an appellate court will not interfere merely because the appellant argues those matters deserved greater weight.
  • No error was established in the sentencing judge's assessment of the applicant's prospects of rehabilitation, particularly in the absence of genuine remorse and where the applicant's account of his circumstances contained inconsistencies.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal applied the principle from R v Pham (2015) 256 CLR 550 that comparable sentences are relevant but do not set a "correct range," and that appellate intervention requires a conclusion that some misapplication of principle must have occurred.
  • An absence of a prior criminal record is a relevant mitigating factor, but it is only one consideration in an overall sentencing exercise involving multiple serious offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193C
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 166, 168
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 91 ALJR 1063
- Hili v R (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Neal v R (1982) 149 CLR 305; [1982] HCA 55
- R v Fernando (1992) 76 A Crim R 58
- R v Pham (2015) 256 CLR 550; [2015] HCA 39