Citation: Perkins v R [2018] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 16 April 2018
Judges: Hoeben CJ at CL; White JA; Fullerton J
Background
The applicant pleaded guilty to the murder of an 18-year-old man, committed on 13 February 2014. The killing arose from a dispute involving the deceased's former partner, who had been visiting the applicant's home. After a confrontation earlier in the evening, the applicant armed himself with a large kitchen knife when the deceased returned to collect her, and stabbed him at least six times while the deceased sat restrained by a seatbelt in his car.
At the time of the offence the applicant was 18 years and 9 months old and was heavily intoxicated. He had no prior criminal history. Button J sentenced the applicant to a non-parole period of 15 years, with a balance of term of 5 years and 6 months, producing a total head sentence of 20 years and 6 months.
The applicant sought leave to appeal against that sentence, arguing that the sentencing judge had failed to give proper weight to his childhood disadvantage, the circumstances in which he began using synthetic cannabis, and his prior good character. He also argued the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge failed to take into account, or gave insufficient weight to, the applicant's childhood disadvantage (including exposure to domestic violence and illness) as a mitigating factor under the principles in Bugmy v The Queen (2013) 249 CLR 571.
- Whether the judge failed to properly consider the circumstances in which the applicant began using synthetic cannabis and the role that substance abuse played in the offending.
- Whether the judge failed to give adequate weight to the applicant's prior good character.
- Whether the sentence imposed was manifestly excessive.
Decision
Childhood disadvantage and the Bugmy principle
The Court considered whether a causal link between an offender's background of deprivation and the specific offending must be established before that background can operate as a mitigating factor. White JA noted that Bugmy does not resolve this question with precision. The plurality in Bugmy used language suggesting that childhood deprivation "may" reduce moral culpability, rather than declaring that it will always do so. White JA concluded that while a causal link is the clearest route to mitigation, it is not necessarily the only circumstance in which a deprived background is relevant to sentencing.
Hoeben CJ at CL, with whom Fullerton J agreed in result, found that the sentencing judge had in fact engaged with the applicant's background, drawn from the psychologist's report, and had taken it into account. The Court acknowledged that the sentencing judge's description of the background contained some errors, but found this did not produce a different sentencing outcome. On re-sentence, Fullerton J accepted the applicant's childhood trauma as a relevant subjective circumstance but was unable to find it diminished his moral culpability for the murder, partly because the psychological evidence did not address whether that background retarded his emotional or psychological development.
Substance abuse
The applicant submitted that the sentencing judge failed to appreciate that his use of synthetic cannabis had been encouraged or initiated by others. The Court found that the sentencing judge had adequately addressed the role of intoxication and the causes of substance abuse as part of the applicant's background. No error was established on this ground.
Prior good character and manifest excess
The Court accepted that the applicant's complete absence of prior criminal history was a significant mitigating factor, and found it had been taken into account. The objective seriousness of the offending, described by the sentencing judge as "extremely grave," supported the sentence imposed. The Court was not persuaded the sentence was manifestly excessive, noting the premeditated arming, the sustained attack, and the defencelessness of the deceased.
Orders Made
- Leave to appeal against sentence granted.
- The appeal dismissed.
Key Takeaways
- Bugmy v The Queen establishes that the effects of profound childhood deprivation do not diminish with time and must be given full weight at every sentencing occasion; however, the Court of Criminal Appeal confirmed that this principle does not automatically translate deprived background into a reduction of moral culpability in every case.
- A causal link between an offender's background of disadvantage and the offending is the clearest basis for finding reduced moral culpability, but the Court left open whether such a link is strictly required before deprivation can carry any mitigatory weight at all.
- Where a psychological report does not address whether childhood trauma retarded an offender's emotional or psychological development, a sentencing court may have insufficient evidentiary foundation to find that the background itself diminishes moral culpability.
- No error was established merely because a sentencing judge's description of background facts contained minor inaccuracies, provided those inaccuracies did not alter the sentencing result.
- In dismissing the appeal, the Court confirmed that an objective assessment of extreme gravity, combined with an intentional and sustained attack on a defenceless victim, can support a substantial murder sentence even where significant subjective mitigating factors are present.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- KT v R [2008] NSWCCA 51; 182 A Crim R 571
- Hughes v R [2018] NSWCCA 2
- Crowley v R [2017] NSWCCA 99
- Buxton v R [2017] NSWCCA 169
- R v Fernando (1992) 76 A Crim R 58