AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
64
Court of Criminal Appeal 11 February 2022

Lloyd v R

[2022] NSWCCA 18

Assault & violenceTheft & property

Citation: Lloyd v R [2022] NSWCCA 18
Court: Court of Criminal Appeal, NSW
Date: 11 February 2022
Judges: McCallum JA at [1]; Hamill J at [59]; Cavanagh J at [60]

Background

The appellant pleaded guilty in the Local Court to entering a dwelling house with intent to commit a serious indictable offence in circumstances of special aggravation, contrary to s 111(3) of the Crimes Act 1900 (NSW). The offence arose from a late-night home invasion in Albury during which the appellant and several other men entered the victim's unit armed with a box-cutter. The victim suffered significant injuries to his hand and arm requiring surgery, as well as other cuts and abrasions. Stolen property formed the basis of a separate larceny matter taken into account on a Form 1.

The District Court sentenced the appellant to eight years' imprisonment with a non-parole period of five years, after applying a 25% discount for the early plea. The undiscounted starting point was ten years and eight months.

The appellant sought leave to appeal on two grounds: that the sentencing judge failed to properly apply the Bugmy principles relating to his deprived upbringing, and that the sentence was manifestly excessive.

  • Whether the sentencing judge made adequate findings about the operation of the Bugmy principles (from Bugmy v The Queen (2013) 249 CLR 571), specifically whether the appellant's deprived childhood reduced his moral culpability for the offending
  • Whether the sentence imposed was manifestly excessive
  • Whether a sentencing judge may discount the opinion of an unchallenged mental health expert's report merely because the offender did not give evidence to the same effect
  • Whether the existence of Form 1 matters necessarily pushes a sentence toward the sterner end of the range

Decision

The Court of Criminal Appeal allowed the appeal on ground one, finding that the sentencing judge, despite accepting the factual basis for a Bugmy submission, failed to then consider and determine whether the appellant's deprived upbringing actually contributed to his offending or otherwise reduced his moral culpability. McCallum JA identified this as a critical step that was missing from the ex tempore sentencing judgment. The mere acceptance of a deprived background as established does not, without more, discharge the sentencing obligation to assess its bearing on culpability.

McCallum JA also addressed the treatment of expert psychological evidence in sentencing proceedings. Where a report from a mental health professional is admitted without objection, without qualification as to its use, and without cross-examination of the author, no legal principle requires the sentencing judge to exercise "very considerable caution" before relying on its contents simply because the offender did not give evidence to the same effect. Discounting such expert opinions without challenge amounts to a process going beyond legitimate assessment of weight.

Her Honour also clarified that the existence of Form 1 matters does not, as a matter of law, require a sentence to be pushed toward the harsher end of the range. The weight given to competing sentencing purposes remains a matter for the individual sentencing judge having regard to all the circumstances.

Having found error, the Court resentenced the appellant. McCallum JA gave substantial weight to rehabilitation, noting the appellant's positive conduct in custody, improved mental health, and renewed family contact. The Court imposed an undiscounted term of seven years, reduced to five years and three months after the 25% plea discount, with a non-parole period of three years and three months to allow for two years of supervised parole.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed at first instance quashed
  • In lieu thereof, the appellant sentenced to imprisonment for 5 years and 3 months with a non-parole period of 3 years and 3 months commencing 11 April 2020 and expiring 10 July 2023, with a balance of term of 2 years expiring 10 July 2025

Key Takeaways

  • Accepting the factual premise of a Bugmy submission is not sufficient. A sentencing judge must go further and determine whether the deprived background contributed to the offending or reduced the offender's moral culpability, and the failure to do so constitutes error.
  • Where a mental health expert's report is admitted in sentencing proceedings without objection, qualification, or cross-examination of its author, no established legal principle requires the judge to treat it with "very considerable caution" merely because the offender did not give corroborating evidence.
  • Form 1 matters do not operate as a rule pushing sentences toward the harsher end of the spectrum. The weight accorded to competing sentencing purposes remains a case-specific judgment for the sentencing court.
  • Ex tempore sentencing judgments are not held to a different legal standard, but the Court of Criminal Appeal takes account of the conditions under which they are delivered when assessing structural or expressive shortcomings.
  • In resentencing, the Court of Criminal Appeal gave substantial weight to the purpose of rehabilitation in light of affidavit evidence showing the appellant's positive progress in custody, including engagement with work and treatment for mental health conditions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 111(3), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32, s 21A(2)(j)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Currie v R [2013] NSWCCA 267
- Devaney v R [2012] NSWCCA 285
- Luque v R [2017] NSWCCA 226
- Pym v R [2014] NSWCCA 182
- Rotner v R [2011] NSWCCA 207
- Qutami v R [2001] NSWCCA 353
- Markarian v R (2006) 228 CLR 357; [2005] HCA 25
- Dellow v R [2020] NSWCCA 301
- Dungay v R [2020] NSWCCA 209
- McLaren v R [2021] NSWCCA 12
- Nasrallah v R [2021] NSWCCA 207
- Prince v R [2020] NSWCCA 268
- Hoskins v R [2021] NSWCCA 169
- Egan v R [2017] NSWCCA 206
- Sypher v R [2020] NSWCCA 336