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10
Court of Criminal Appeal 13 July 2022

DR v R

[2022] NSWCCA 151

Also reported as (2022) 300 A Crim R 116
Sexual offences
CRIMINAL LAW SENTENCE APPEAL APPLICATION OF BUGMY PRINCIPLES WHETHER SENTENCE WAS “CRUSHING” CALLED “COMPARABLE” CASES

Citation: DR v R [2022] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 13 July 2022
Judges: Ward P, R A Hulme J, Bellew J

Background

The applicant pleaded guilty in the District Court to seven counts of serious sexual offending against two child victims over a period spanning roughly a decade. The victims were both under his authority at the time of the offending. He was sentenced to 20 years and 10 months imprisonment with a non-parole period of 15 years and 6 months.

Expert evidence placed before the sentencing judge detailed the applicant's significantly deprived upbringing. However, that evidence did not establish any causal link between the deprived background and the sexual offending. Counsel for the applicant originally submitted in writing that the background reduced his moral culpability, but later revised that position, describing the circumstances as "Bugmy-esque" rather than "classic Bugmy."

The sentencing judge concluded that the Bugmy and Fernando principles had not been put forward as having relevant application, and declined to find that moral culpability was reduced. The applicant sought leave to appeal on three grounds: failure to apply Bugmy principles to reduce moral culpability, the sentence being "crushing" and offending the totality principle, and the sentence being manifestly excessive.

  • Whether the sentencing judge erred by failing to find that the applicant's moral culpability was reduced by reason of his deprived upbringing and social circumstances, in the absence of a proven causal link between that background and the offending
  • Whether the aggregate sentence offended the totality principle and was so heavy as to be "crushing"
  • Whether the sentence was manifestly excessive, having regard to the applicant's subjective case and sentences imposed in comparable cases

Decision

Ground 1: Moral culpability and Bugmy principles

Bellew J (with whom Ward P and Hulme J agreed) confirmed two principles from the authorities. First, where a causal link exists between a disadvantaged background and the offending, that link will support a finding of reduced moral culpability. Second, even without such a causal link, the disadvantaged background must still be given full weight as part of the sentencing exercise. Because no causal link was established on the evidence, the sentencing judge's refusal to find reduced moral culpability was open and consistent with authority. The sentencing judge nonetheless expressly recognised the deprived upbringing and gave it full weight as part of the broader sentencing assessment.

Hulme J added a notable observation. He noted that identifying a "causal link" is not always straightforward, and that reasonable minds may differ on whether one exists. A ground of appeal asserting a failure to find reduced moral culpability risks amounting to no more than a complaint that the sentencing judge failed to tick the correct box, when the disadvantaged background was in fact taken into account as part of the instinctive synthesis.

Grounds 2 and 3: Totality and manifest excess

The Court held that concurrency and accumulation of sentences are matters for the sentencing judge's discretion, and no miscarriage was demonstrated. The sentence was not "crushing": the sentencing judge had addressed all relevant considerations and there was nothing to displace the exercise of discretion. On manifest excess, Bellew J emphasised that an offender's subjective case, however compelling, cannot produce a sentence that fails to reflect the gravity of the offending. The Court also observed that comparative sentencing exercises are of limited utility, because the objective and subjective circumstances of individual cases will almost always differ.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Where no causal link is established between a deprived background and the offending, a sentencing judge does not err by declining to find reduced moral culpability, provided the background is still given full weight as part of the overall sentence.
  • A proven causal connection between disadvantage and offending will support a reduction in assessed moral culpability; the absence of such a connection does not mean the background is ignored, only that it enters the sentencing calculus differently.
  • In dismissing the totality ground, the Court confirmed that decisions about concurrency and accumulation of sentences remain matters for the sentencing judge's discretion, and appellate intervention requires demonstrated error.
  • Reasonable proportionality between a sentence and the gravity of the offending is a firm requirement: even a powerful subjective case cannot override the need for the sentence to reflect the seriousness of the conduct.
  • Reliance on so-called "comparable" cases at sentence and on appeal carries significant limitations, because factual differences between cases, both objective and subjective, will frequently render such comparisons of limited assistance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(2), 66C(1), 66C(2), 66C(4), 61M(2)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dungay v R [2020] NSWCCA 209
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Tuivaga v R [2015] NSWCCA 145
- Edwards v R [2021] NSWCCA 57
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- JJ v R [2020] NSWCCA 165
- MLP v R [2014] NSWCCA 183
- Katsis v R [2018] NSWCCA 9
- Perkins v R [2018] NSWCCA 62
- R v Irwin [2019] NSWCCA 133
- GW v R [2018] NSWCCA 79
- R v DR [2021] NSWDC 118
- RLS v R [2012] NSWCCA 236
- R v Gavel [2014] NSWCCA 56
- R v Scavera [2016] NSWCCA 145
- ZA v R [2017] NSWCCA 132