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56
Court of Criminal Appeal 21 July 2021

Hoskins v R

[2021] NSWCCA 169

Assault & violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE RECKLESS WOUNDING (TWO COUNTS) AFFRAY BUGMY V THE QUEEN (2013) 249 CLR 571

Citation: Hoskins v R [2021] NSWCCA 169
Court: Court of Criminal Appeal, New South Wales
Date: 21 July 2021
Judge(s): Basten JA; Brereton JA; Beech-Jones J

Background

The appellant pleaded guilty in the Local Court to a series of violent offences committed on a single evening in Coffs Harbour in January 2019, while under the influence of alcohol. The offences included two counts of reckless wounding, affray, aggravated break and enter, and assault occasioning actual bodily harm. He was committed to the District Court for sentencing.

The District Court imposed an aggregate sentence of five years and six months' imprisonment, with a non-parole period of three years and six months. The sentencing judge convicted the appellant without penalty for the assault count, having allowed a 25 per cent discount for the guilty plea across the remaining offences.

The sole ground of appeal was that the sentencing judge failed to apply the principles established in Bugmy v The Queen (2013) 249 CLR 571, which recognise that an offender's moral culpability may be reduced by an upbringing marked by social disadvantage, normalised criminality, and exposure to alcohol abuse and violence.

  • Whether the Court of Criminal Appeal should grant an extension of time in which to appeal, given the Notice of Appeal was filed approximately two months out of time.
  • Whether the sentencing judge erred by failing to give proper weight to the Bugmy principles, specifically in light of the appellant's entry into a dysfunctional family environment at age thirteen.
  • Whether a stable early childhood precludes the application of the Bugmy principles where significant disadvantage was experienced during adolescence.
  • Whether a causative link between childhood deprivation and the offending is required before Bugmy can reduce moral culpability.

Decision

Extension of time: The Court granted the extension. The delay of approximately two months was adequately explained by the time required for the appellant's solicitor to obtain transcripts, secure Legal Aid approval, and obtain advice and submissions from counsel. An arguable case on the merits also existed, satisfying the relevant criteria.

The sentencing error: The Court found that the sentencing judge erred in concluding there was "no evidence" to support the application of the Bugmy principles. At age thirteen, the appellant discovered he had not been raised by his biological parents. He then rejoined his biological family and entered an environment where criminal conduct, alcohol and drug abuse, and violence were normalised. In attempting to assimilate, he turned to alcohol and crime, and his subsequent offending has consistently been associated with alcohol abuse.

Adolescence as a formative period: Brereton JA held, with the other judges agreeing, that the sentencing judge's focus on the appellant's positive early childhood overlooked an equally significant truth: adolescence is at least as formative as earlier childhood. An upbringing does not end at age twelve. The discovery of the appellant's true parentage, and the profound identity questions that would have followed, were material considerations the sentencing judge did not adequately address.

The Bugmy principles restated: The Court confirmed that "profound childhood deprivation" in Bugmy is not a threshold requirement, and no causative link between deprivation and offending needs to be proven, though where such a link exists it must inevitably reduce moral culpability. The effects of childhood and adolescent deprivation do not diminish over time, even where intervening custodial sentences have been served. While countervailing considerations such as community protection and specific deterrence remain relevant, the application of the Bugmy principles is not discretionary.

Orders Made

  • Extension of time to appeal granted.
  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • Aggregate sentence of five years' imprisonment imposed, with a non-parole period of three years.

Key Takeaways

  • The Bugmy principles apply to both Indigenous and non-Indigenous offenders raised in environments of social disadvantage, though they have particular application to Indigenous communities given the documented and ongoing effects of dislocation, cultural disruption, and minority racial status.
  • Adolescent years are recognised as equally, if not more, formative than early childhood. A period of stable early upbringing does not preclude the operation of the Bugmy principles where significant disadvantage was experienced during the teenage years.
  • No causative link between childhood deprivation and the specific offending needs to be demonstrated before Bugmy applies; however, where such a link exists, a reduction in moral culpability must follow.
  • The effects of social deprivation experienced in childhood or adolescence do not diminish over time and do not become irrelevant because intervening custodial sentences have been served.
  • Beech-Jones J characterised the sentencing judge's conclusion that there was "no evidence" to support Bugmy as error of the House v The King variety, founded on a wrong principle and failing to take into account a material consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 59(1), 93C(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(c), 5, 10A, 21A, 44(2A), 53A(2)(b), 54B
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Appeal Rules 1952 (NSW), r 3A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Fernando (1992) 76 A Crim R 58
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Dungay v R [2020] NSWCCA 209
- Kennedy v R [2010] NSWCCA 260
- Kliendienst v R [2020] NSWCCA 98
- Ingrey v R [2016] NSWCCA 31
- Judge v R [2018] NSWCCA 203
- Perkins v R [2018] NSWCCA 62
- R v Irwin [2019] NSWCCA 133
- Taysavang v R; Lee v R [2017] NSWCCA 146
- Kentwell v R (No 2) [2015] NSWCCA 96
- R v Hoskins [2020] NSWDC 315