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Court of Criminal Appeal 10 September 2021

Jeffery v R

[2021] NSWCCA 221

Sexual offences
SENTENCING TWO AGGREGATE SENTENCES IMPOSED NO ERROR ESTABLISHED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Jeffery v R [2021] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 10 September 2021
Judges: Bathurst CJ, Beech-Jones J, Fagan J

Background

The applicant, a 25-year-old Aboriginal man with no prior criminal history, was convicted after trial in the District Court on four counts involving the solicitation and possession of child pornography. The most serious offence involved using a Facebook account under a false name to threaten a 12-year-old girl, demanding she send him videos of herself masturbating under threat of publishing sexually explicit images of her online. The remaining counts involved possessing child abuse material, including images and videos found on his mobile devices.

The sentencing judge imposed two partially accumulated aggregate sentences. The combined effective sentence was 7 years and 6 months imprisonment, commencing 28 February 2020, with an effective non-parole period of 4 years and 8 months. The applicant sought leave to appeal against those sentences.

A psychological report tendered at sentencing documented significant personal hardship. The applicant had witnessed his stepfather's suicide at age 13 and a friend's suicide at age 15, had diagnoses of depression, anxiety, ADHD, and autism spectrum disorder, reported a lengthy history of self-harm and suicidal ideation, and had experienced bullying and substance abuse. The sentencing judge accepted that principles from Bugmy v The Queen (concerning the relevance of deprived backgrounds to sentencing) applied, but did not accept that the applicant's mental health conditions were causally connected to his offending.

  • Whether the sentencing judge erred by failing to find a causal connection between the applicant's mental illness and his offending
  • Whether the sentencing judge misapplied the principles applicable to mentally ill offenders
  • Whether the combined sentences were manifestly excessive

Decision

On the question of causal connection between mental illness and offending, the Court of Criminal Appeal found no error in the sentencing judge's approach. The psychological report concluded that the offending was precipitated by factors including difficulties with emotion regulation, hypersexuality, and a deviant sexual attraction to prepubescent children. The report did not establish that the applicant's diagnosed conditions of depression, anxiety, ADHD, or autism spectrum disorder caused him to commit the offences, and the sentencing judge was entitled to find accordingly.

On the broader application of principles concerning mentally ill offenders, the Court again found no error. The sentencing judge had accepted that the Bugmy principles were engaged, accounting for the applicant's difficult upbringing and its ongoing effects on his mental health. That acceptance did not require a finding of causal connection between the conditions and the specific offending conduct.

On manifest excess, the Court acknowledged that the sentences appeared "relatively stern" for a 25-year-old first offender with personal and mental health difficulties. However, having regard to the level of criminality involved, particularly the blackmail element of count 1, the Court was not persuaded that any of the individual aggregate sentences or their combined effect was manifestly excessive. The comparable cases relied upon by the applicant offered no meaningful support for his position, as they involved offending of lesser gravity or offences carrying lower maximum penalties.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Accepting that Bugmy principles apply (recognising the effects of a deprived or traumatic background) does not automatically require a sentencing court to find a causal connection between a diagnosed mental illness and the offending conduct.
  • Where a psychological report identifies specific precipitating factors for offending, a sentencing judge may lawfully conclude that diagnosed conditions were not causally linked to the crimes, even where those conditions are acknowledged as relevant to the overall sentencing assessment.
  • No error was established in the sentencing judge's treatment of the psychological report, despite the applicant not giving sworn evidence to support it.
  • In dismissing the appeal, the Court confirmed that blackmail or coercive conduct directed at a child victim is a factor capable of elevating an offence under s 474.19(1) of the Criminal Code (Cth) above the mid-range of objective seriousness.
  • Comparative sentencing cases involving offences with different maximum penalties or less serious facts carry limited weight in appellate review of manifest excess grounds.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Criminal Code Act 1995 (Cth), ss 474.19(1), 474.26(1), 474.27(1)
- Crimes Act 1900 (NSW), s 91H(2)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Craft v R [2021] NSWCCA 131
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v R (1936) 55 CLR 501
- R v Asplund [2010] NSWCCA 316
- R v Qutami [2001] NSWCCA 353
- R v Tahiraj [2004] QCA 353
- Tector v R [2008] NSWCCA 151