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Court of Criminal Appeal 19 October 2020

Prince v R

[2020] NSWCCA 268

Assault & violence
CRIMINAL LAW SENTENCE APPEAL APPEAL DISMISSED.

Citation: Prince v R [2020] NSWCCA 268
Court: Court of Criminal Appeal, New South Wales
Date: 19 October 2020
Judge(s): Hoeben CJ at CL; Beech-Jones J; Campbell J

Background

The appellant pleaded guilty in the District Court at Tamworth to reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW), with a further offence of demanding property with menaces taken into account on a Form 1. The offence arose from an early-morning home intrusion in which the appellant, intoxicated by drugs, entered a victim's unit demanding money and stabbed her twice, causing serious injuries including a fully lacerated nerve requiring surgery. The appellant was on parole at the time.

The sentencing judge imposed 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months. A 25 per cent discount was applied for the early guilty plea, and special circumstances were found because of the appellant's youth and rehabilitation needs, reducing the non-parole period to 60 per cent of the total sentence.

The appellant's background was extensively documented in psychological reports. Those reports described a childhood marked by parental separation at an early age, exposure to violence and substance abuse, cognitive deficits consistent with mild intellectual disability, and significant trauma. The sentencing judge read those findings onto the record and gave them considerable weight.

  • Whether the sentencing judge erred by failing to expressly assess the appellant's "moral culpability" in light of his deprived background, as contemplated by the High Court in Bugmy v The Queen (2013) 249 CLR 571.

Decision

The Court of Criminal Appeal dismissed the appeal. Hoeben CJ at CL held that a fair reading of the sentencing judgment showed the judge had in fact taken the appellant's background into account when assessing moral culpability, even though the phrase "moral culpability" was never used expressly.

The sentencing judge had accepted the psychologist's detailed findings in full and recorded them on the record. He then treated the appellant as an "inappropriate vehicle" for general deterrence, directly because of that deprived background. The Court found that this conclusion necessarily implied a reduction in the appellant's moral culpability. The substance of the Bugmy principle had been applied, even without the label.

The Court confirmed that provided a sentencing judge properly addresses the conflicting purposes of punishment in light of findings about a deprived background, there is no requirement to expressly invoke the phrase "moral culpability." The real complaint, the Court found, was merely the absence of that particular label, not any failure of principle. Beech-Jones J and Campbell J each agreed with the orders proposed by Hoeben CJ at CL.

Orders Made

• The appeal be dismissed.

Key Takeaways

  • A sentencing judge is not required to use the phrase "moral culpability" expressly when sentencing an offender with a deprived background, provided the conflicting purposes of punishment are properly addressed in light of findings about that background.

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that substance, not labels, governs sentencing appeals: the absence of particular terminology does not itself establish error.

  • Where a sentencing judge accepts psychological evidence of a deprived background and responds by reducing the weight given to general deterrence, that reasoning implicitly reflects a finding of reduced moral culpability consistent with Bugmy v The Queen.

  • The principle from Bugmy recognises that childhood exposure to extreme violence or deprivation may reduce an offender's moral culpability for impulse-driven offending, while simultaneously increasing the relevance of community protection considerations.

  • No error was established merely because the sentencing reasons were delivered ex tempore and did not use the precise language an appellant's counsel might prefer.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35, 99
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dungay v R [2020] NSWCCA 209
- Egan v Regina [2017] NSWCCA 206
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Engert (1995) 84 A Crim R 67
- Wood v R [2019] NSWCCA 309