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Court of Criminal Appeal 9 June 2021

Bethune v R

[2021] NSWCCA 115

Theft & property

Citation: Bethune v R [2021] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 9 June 2021
Judges: Harrison J, Adamson J, Bellew J

Background

The applicant pleaded guilty in the District Court to aggravated break, enter and steal, contrary to s 112(2) of the Crimes Act 1900 (NSW). The offending was opportunistic: while staying at an acquaintance's home on the Central Coast, the applicant entered a neighbouring residence by pushing a flyscreen and stole items while apparently heavily affected by drugs. All stolen items were recovered, and the applicant admitted the offending almost immediately when confronted.

After applying a 25% discount for the guilty plea, the sentencing judge imposed five years' imprisonment with a non-parole period of three years and nine months. The sentence commenced on 11 May 2019.

Expert evidence before the sentencing court from a psychiatrist and a forensic psychologist established a significant history of childhood trauma, including family violence and child sexual abuse at age 11. Both experts identified a causal connection between that trauma, the applicant's longstanding substance dependence, and his offending conduct.

  • Whether the sentencing judge erred by failing to make any assessment of the applicant's moral culpability.
  • Whether the sentence was manifestly excessive in light of the objective and subjective circumstances.

Decision

Ground 1: Failure to assess moral culpability

Adamson J acknowledged that assessing moral culpability is an important part of the sentencing process and should be reflected in reasons. However, her Honour noted that an omission to undertake that assessment does not automatically warrant appellate intervention, particularly where reasons are delivered ex tempore (that is, orally at the conclusion of the hearing without prior preparation). Standing alone, the first ground would not have warranted intervention. That said, the failure to assess moral culpability likely contributed to what Adamson J found to be a manifestly excessive sentence.

Ground 2: Manifest excess

To establish manifest excess, an applicant must show the sentence was "unreasonable" or "plainly unjust," citing Markarian v The Queen. Demonstrating a patent error in the sentencing process is not required; the question is whether the result itself was of that character. Adamson J found the starting point of six years and eight months (before the plea discount) grossly disproportionate to both the objective and subjective circumstances of the offending. The offence was assessed as near the bottom of the low range for objective seriousness, given the minimal damage, the absence of planning, the immediate admissions, and the full recovery of stolen property.

Re-sentencing

On re-sentence, the Court of Criminal Appeal accepted the expert opinions connecting the applicant's offending to his childhood trauma, including child sexual abuse. Adamson J observed that justice requires courts to account for serious adversities experienced before an offender was old enough to make responsible choices, consistent with Bugmy v The Queen. The Court found special circumstances warranted due to the applicant's demonstrated rehabilitation needs, and adjusted the non-parole period to 50% of the total term. As the non-parole period under the re-imposed sentence had already expired by the time of the appeal, the Court ordered the applicant's immediate release.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed by Weber SC DCJ on 20 March 2020 quashed.
  • In lieu, a sentence of 3 years' imprisonment imposed, commencing 11 May 2019 and expiring 10 May 2022, with a non-parole period of 18 months expiring 10 November 2020.
  • Applicant directed to be released forthwith.

Key Takeaways

  • A sentencing court's failure to assess moral culpability in its reasons does not automatically warrant appellate intervention, but may be a relevant factor where manifest excess is also established.
  • Manifest excess does not require proof of a patent error in the sentencing process; it is established where the sentence itself is unreasonable or plainly unjust when measured against the objective and subjective circumstances.
  • Under Bugmy v The Queen, the connection between an offender's childhood trauma and their offending conduct is a recognised mitigating factor, and courts are required to take serious early-life adversities into account when assessing moral culpability.
  • Where expert evidence establishes a causal link between childhood abuse, substance dependence, and offending, that connection can reduce both the assessed objective seriousness and the offender's moral culpability.
  • A finding of special circumstances (which allows the non-parole period to be reduced below the standard ratio) was warranted on these facts given the applicant's demonstrated need for community-based drug rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Re Attorney General's Application No 1 under s 26 of the Criminal Appeal Act; R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435