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Court of Criminal Appeal 21 May 2021

Newman v R

[2021] NSWCCA 101

Theft & propertyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL

Citation: Newman v R [2021] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 21 May 2021
Judges: Hoeben CJ at CL; N Adams J; Hidden AJ

Background

The applicant pleaded guilty in the Lismore District Court to aggravated break, enter and steal, damage to property by fire, and two counts of perverting the course of justice. Two further perverting the course of justice offences were taken into account on a Form 1. The offending involved breaking into a high school maintenance shed, stealing tools and other items, and then returning after release from police custody to set fire to the shed. The resulting fire caused approximately $1 million in damage to neighbouring school buildings.

Following his apprehension, the applicant made false reports to Crime Stoppers, pressured a co-offender not to speak to police, and arranged a false alibi with another person. The applicant was 22 at the time of the offending and 24 at sentence. He was on conditional liberty when two of the offences were committed.

The sentencing judge imposed an aggregate sentence of 6 years and 9 months imprisonment, with a non-parole period of 3 years and 9 months. The applicant sought leave to appeal on a single ground: that the sentencing judge erred in his consideration of the applicant's disadvantaged background.

  • Whether the sentencing judge erred in his analysis of the psychological report and, in particular, in his findings about the applicant's background.
  • Whether the applicant's background constituted profound childhood deprivation of the kind that engages the principles in Bugmy v The Queen (2013) 249 CLR 571, so as to reduce his moral culpability for the offending.
  • Whether the sentencing judge adequately took the applicant's subjective case, including his background, into account in the overall sentencing exercise.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. The central question was whether it was open to the sentencing judge to conclude that the applicant's background did not amount to the kind of profound childhood deprivation that, under Bugmy, would bear upon moral culpability. The Court found that it was open to the sentencing judge to reach that conclusion on the evidence before him.

The sentencing judge had received and considered a psychological report prepared by a forensic psychologist, but found that it did not establish a mental disorder that played a role in the offending. He also found that the applicant's preparedness to provide untrue information to the Sentencing Assessment Report writer warranted caution in approaching expressions of remorse. The Court of Criminal Appeal found no error in the sentencing judge's approach to the psychological report or his broader findings on the applicant's subjective case.

Importantly, the sentencing judge explicitly stated that the applicant's background was "taken into account on general principles," even though he did not make a finding of profound childhood deprivation. The Court confirmed that a finding of profound deprivation is not a prerequisite for background circumstances to carry mitigating weight: an offender's subjective case is always relevant, and the absence of a Bugmy finding does not mean the background was disregarded.

The Court emphasised that the sentencing judge was required to identify the relevant factors, discuss their significance, and exercise a value judgment as to the appropriate sentence. Applying that standard, the Court was satisfied the sentencing judge had done so, and no error was established.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal against sentence is dismissed.

Key Takeaways

  • The Bugmy principles require a finding of profound childhood deprivation before moral culpability is reduced on that basis; the Court of Criminal Appeal confirmed it was open to the sentencing judge to find that threshold was not met on the evidence presented.
  • A sentencing judge is not obliged to make a Bugmy finding simply because a psychological report and personal background materials are tendered; the weight given to such evidence remains a matter for the judge on the facts.
  • Where an offender provides inconsistent or false information to a Sentencing Assessment Report writer, a sentencing judge may approach expressions of remorse with circumspection, and the Court of Criminal Appeal found no error in taking that approach.
  • Even absent a Bugmy finding, an offender's background retains relevance as part of the subjective case; the sentencing judge's statement that the background was "taken into account on general principles" was sufficient to demonstrate it had not been overlooked.
  • No error is established merely because a sentencing judge declines to find that moral culpability is reduced due to mental health issues, including ADHD, where the evidence does not support a causal connection between the condition and the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 195(1)(b), 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- AB v R [2014] NSWCCA 339
- Clarke v R [2015] NSWCCA 232
- Dungay v R [2020] NSWCCA 209
- Gibson v Regina [2019] NSWCCA 221
- Hordern v R [2019] NSWCCA 138
- Ingrey v R [2016] NSWCCA 31
- Kliendienst v R [2020] NSWCCA 98
- R v O'Donoghue (1988) 34 A Crim R 397