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61
Court of Criminal Appeal 1 September 2021

Nasrallah v R

[2021] NSWCCA 207

Also reported as (2021) 105 NSWLR 451
Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ARMED ROBBERY GUIDELINE JUDGMENT HISTORY OF TRAUMA AND NEGLECT IMPACTS OF CHILDHOOD SEXUAL ABUSE

Citation: Nasrallah v R [2021] NSWCCA 207
Court: Court of Criminal Appeal, New South Wales
Date: 1 September 2021
Judge(s): Bell P; Price J; Hamill J

Background

The applicant, a twenty-year-old woman with no prior convictions, was sentenced in the NSW District Court at Wollongong on 16 December 2020 for armed robbery and damaging property. She received a total term of two years and nine months, with a non-parole period of one year and four months. A concurrent fixed term of three months was imposed for the property damage offence.

Psychological evidence established that the applicant met the diagnostic criteria for post-traumatic stress disorder (PTSD), arising from trauma experienced during her teenage years. The psychologist linked that childhood trauma and resulting PTSD to suicidal ideation, drug abuse, and ultimately the offending itself.

The applicant sought leave to appeal on four grounds, centring on whether the sentencing judge had properly applied principles about the relevance of deprived or traumatic backgrounds to moral culpability, whether he had adequately considered her therapeutic environment, and whether he had correctly calculated her pre-sentence custody.

  • Whether the sentencing judge erred in failing to find "exceptional circumstances" warranting a departure from the armed robbery guideline judgment in R v Henry
  • Whether the sentencing judge misapplied the High Court's decision in Bugmy v The Queen (2013) 249 CLR 571 by not giving full weight to the applicant's traumatic background when assessing moral culpability
  • Whether the sentencing judge erred in failing to consider the undesirability of removing the applicant from her current therapeutic environment
  • Whether the sentence should have been backdated to account for a period of pre-sentence custody that was not known to the sentencing judge at the time of sentencing

Decision

Ground 1: Guideline judgment departure. All three judges agreed that no error was established on this ground. The application of the Henry guideline was not contested at first instance, and no challenge was mounted to the guideline itself. There was therefore no independent error in the sentencing judge's failure to find exceptional circumstances justifying a departure.

Ground 2: The Bugmy principles (majority and dissent). This ground divided the Court. Bell P and Price J, in the majority, held that the sentencing judge did not err. The judge had taken the applicant's personal circumstances into account, and his conclusion that her background did not constitute a history of "profound deprivation" was either a finding of fact that was open on the evidence, or at least not demonstrated to be erroneous under the House v The King approach to appellate review. Bell P noted a possible conceptual distinction between the type of endemic, systemic childhood deprivation discussed in Bugmy and individual traumatic events, though expressly declined to resolve where the precise boundaries lay.

Hamill J dissented on Ground 2. His Honour reasoned that the sentencing judge had erred by focusing on whether the applicant's background met a threshold of "profound deprivation" rather than on the actual question: the extent to which her traumatic teenage years reduced her moral culpability. Hamill J held there is no "magic" in the word "profound," and that the Bugmy principles apply by analogy to backgrounds affected by trauma and neglect, not only to environments of endemic abuse or alcoholism. His Honour also disagreed that the "not open" or constrained approach to reviewing such factual findings was correct, characterising the determination as one of evaluation or categorisation rather than pure fact.

Ground 3: Therapeutic environment. All three judges rejected this ground. The sentencing judge had expressly acknowledged the applicant's ongoing treatment and the importance of rehabilitation in her case. The proposition underlying the ground could not be accepted.

Ground 4: Pre-sentence custody. All three judges upheld this ground. The sentencing judge had not been aware of a period of pre-sentence custody and accordingly had not backdated the sentence to account for it. The Court varied the sentence to correct the commencement date. Bell P and Price J held that success on this ground alone did not require the sentencing discretion to be exercised afresh.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence varied to commence on 12 December 2020, with eligibility for release to parole on 12 April 2022 and the total sentence expiring on 11 September 2023
  • Appeal otherwise dismissed

Key Takeaways

  • A majority of the Court of Criminal Appeal confirmed that a sentencing judge's finding that an offender's background does not constitute "profound deprivation" will not be disturbed on appeal where it was open on the evidence and no error of the House v The King variety was demonstrated.
  • The precise scope of the Bugmy principles, particularly whether they extend to individual traumatic events as distinct from endemic or systemic childhood deprivation, was expressly left unresolved by Bell P and Price J; the Court considered it neither necessary nor desirable to determine those boundaries on the facts before it.
  • In dissent, Hamill J articulated that the word "profound" carries no special threshold in this context, and that an analogy exists between the Bugmy framework and backgrounds shaped by trauma and neglect more broadly, with the relevant inquiry being the extent to which such a background actually reduces moral culpability.
  • Where a period of pre-sentence custody was not known to the sentencing judge and therefore not reflected in the sentence, a correction to the commencement date is the appropriate remedy and does not require the sentencing discretion to be exercised afresh.
  • Hamill J cautioned against categorising offenders' personal circumstances too rigidly by reference to decided cases, noting that doing so risks distracting from the requirement for individualised sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44, 47
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), ss 44, 166
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 17

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hordern v R [2019] NSWCCA 138
- Hoskins v R [2021] NSWCCA 169
- Gibson v Regina [2019] NSWCCA 221
- Newman v R [2021] NSWCCA 101
- Dungay v R [2020] NSWCCA 209
- DPP (Vic) v Hodgson [2019] VSCA 49
- DPP v Hermann [2021] VSCA 160
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Robertson v R [2017] NSWCCA 205