AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 30 April 2021

Johnston v R

[2021] NSWCCA 86

Theft & propertyDomestic & family violencePublic order & justice offences

Citation: Johnston v R [2021] NSWCCA 86
Court: NSW Court of Criminal Appeal
Date: 30 April 2021
Judges: Ward JA and Wilson J (joint judgment); Ierace J (separate judgment)

Background

The applicant pleaded guilty in the District Court at Campbelltown to two offences: intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and aggravated break and enter in company while committing a serious indictable offence (namely, that same intimidation) under the Crimes Act 1900 (NSW). The sentencing judge imposed an aggregate term of 5 years and 6 months imprisonment, with a non-parole period of 4 years, commencing 4 February 2019.

The offending arose from a debt dispute. The applicant, accompanied by two co-offenders, attended the home of one victim looking for drugs or money owed. After being locked out, the group forced the front door open using a star picket. Inside, threats were made with a tomahawk, and one victim handed over a small quantity of drugs to end the confrontation. Both victims were present during part of the incident.

The applicant sought leave to appeal against the sentence on the ground of manifest excess, relying heavily on her significant personal history of childhood trauma, mental health disorders (including borderline personality disorder, post-traumatic stress disorder and bipolar disorder), severe drug dependency, and a troubled background engaging the principles from Bugmy v The Queen (2013) 249 CLR 571 and Fernando v R (1992) 76 A Crim R 58.

  • Whether leave to appeal against the aggregate sentence should be granted under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW)
  • Whether the aggregate sentence of 5 years 6 months (with a 4-year non-parole period) was manifestly excessive
  • The proper application of the Bugmy principle in relation to the applicant's deprived background and reduced moral culpability
  • Whether the sentencing judge gave adequate weight to the applicant's mental health conditions, history of childhood sexual abuse, and difficult personal circumstances
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the balance of the term

Decision

The joint judgment of Ward JA and Wilson J found that the sentencing judge had not committed any identifiable error in the relevant House v The King sense. The sentencing judge had expressly considered the applicant's personal circumstances, including her significant childhood trauma, substance dependency and mental health issues, and had referred to the Bugmy principle and Fernando principles. Their Honours found that the sentence fell within the range available to the sentencing judge and was not manifestly excessive. Leave to appeal was refused by the majority.

Ierace J, in dissent, took a different view of the weight to be given to the applicant's personal history and mental health circumstances. His Honour accepted that the applicant's moral culpability was substantially reduced by a causal connection between her mental disorders (including borderline personality disorder, PTSD, and severe drug dependence) and her offending behaviour. He considered the applicant a poor vehicle for general deterrence, and would have found special circumstances warranting a longer parole period. On that basis, Ierace J would have resentenced the applicant to a lesser term.

On the question of specific deterrence and community protection, both the majority and Ierace J acknowledged that the applicant's escalating pattern of violent offending since 2014, coinciding with her loss of custody of her children and increased drug use, remained relevant sentencing considerations. Ierace J accepted that an unmitigated mental condition could, consistent with De La Rosa, also warrant attention through specific deterrence.

The Court's majority conclusion was that no error warranting appellate intervention had been established. The dissent illustrates the genuine tension between the Bugmy principle of reduced moral culpability and the countervailing considerations of specific deterrence and community protection in cases of escalating violent offending.

Orders Made

• The applicant would have been sentenced to a lesser sentence than she received at first instance

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Bugmy principle (reducing moral culpability for offenders with severe deprived backgrounds and mental health conditions) does not automatically translate into a finding of manifest excess, particularly where countervailing factors such as a pattern of escalating violent offending and community protection are present.
  • A sentencing judge's weighing of competing considerations, including mental health, childhood trauma, drug dependence, specific deterrence and community protection, will not be disturbed on appeal unless an identifiable error under the House v The King principles is established, or the sentence falls outside the available range.
  • Where an applicant's unmitigated mental health condition presents an ongoing danger to the community, that condition may, consistently with De La Rosa, support a sentence through considerations of specific deterrence, even while also reducing moral culpability under Bugmy.
  • The Fernando principles (relevant to Indigenous offenders experiencing social disadvantage and alcohol or drug dependency) were cited alongside Bugmy, reflecting that both frameworks may be engaged where an offender's background and condition substantially bear on culpability.
  • In dismissing the application for leave, the majority and the dissent differed meaningfully on the weight to be given to the applicant's personal circumstances, demonstrating that the balancing exercise in such cases remains fact-intensive and that reasonable sentencing assessments can diverge.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 17B, 17C, 44(2); Pt 4, Div 1A
- Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 12A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Fernando v R (1992) 76 A Crim R 58
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- R v Johnston [2019] NSWDC 607
- Aslan v R [2014] NSWCCA 114
- Firth v R [2018] NSWCCA 144
- LN v R [2020] NSWCCA 131
- Tuncbilek v R [2020] NSWCCA 30
- Ingrey v R [2016] NSWCCA 31
- JM v R [2014] NSWCCA 297
- R v Millwood [2012] NSWCCA 2