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Court of Criminal Appeal 19 May 2023

Zerafa v R

[2023] NSWCCA 109

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST AGGREGATE SENTENCE WHETHER BUGMY PRINCIPLES APPLIED

Citation: Zerafa v R [2023] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 19 May 2023
Judges: Beech-Jones CJ at CL, Adamson JA, Price J (unanimous)

Background

The applicant pleaded guilty in the District Court to three offences arising from events in the early hours of 23 July 2020 at Sanctuary Point: possession of an unauthorised firearm (a gel blaster pistol), threatening to use an offensive weapon with intent to commit a serious indictable offence, and specially aggravated break and enter and commit a serious indictable offence. The threatening behaviour involved pointing the pistol at multiple victims, including a mother holding a baby, and declaring an intent to shoot her and the child. The break and enter involved forcing entry to a former friend's home and pointing the same pistol at him through a broken window for approximately 30 seconds.

The sentencing judge applied a 25% discount for the utilitarian value of the guilty pleas and imposed an aggregate sentence of 7 years' imprisonment with a non-parole period of 4 years. The judge found that the applicant, then 26 years old, had a lengthy criminal history and had been regularly abusing illegal drugs, including methamphetamine, since the age of 14, suffering drug-induced psychosis at the time of the offending.

The applicant, unrepresented before the Court of Criminal Appeal, sought leave to appeal on three grounds. His notice of intention to appeal was filed three days late, but the Crown did not oppose an extension.

  • Whether the aggregate sentence of 7 years was manifestly excessive
  • Whether the sentencing judge failed to apply the 25% guilty plea discount to sequence 10 (the threatening with offensive weapon offence)
  • Whether the sentencing judge failed to apply or consider the principles in Bugmy v The Queen (2013) 249 CLR 571, which require that a profoundly dysfunctional upbringing be taken into account in reducing moral culpability

Decision

Ground 1: Manifest excess. The Court found no error in the aggregate sentence. The sentencing judge had carefully assessed the objective seriousness of each offence, placing possession of the firearm toward the lower end of the range and both threatening and break and enter offences at mid-range. The Court was satisfied that the judge properly considered the applicant's subjective circumstances, including his traumatic background, lengthy drug use, and the difficult conditions he experienced on remand during the COVID-19 pandemic. The aggregate sentence was not shown to be outside the range reasonably open to the sentencing judge.

Ground 2: Discount for sequence 10. This ground was rejected as factually incorrect. The sentencing remarks expressly recorded that the indicative sentence for sequence 10 before the discount was 7 years, and that after applying the 25% reduction it became 5 years 3 months. The discount had plainly been applied.

Ground 3: Bugmy principles. The applicant contended that his profoundly traumatic upbringing had not been taken into account. The Court disagreed. The sentencing judge had recounted the applicant's background at length and expressly stated, in the language drawn from Bugmy, that the applicant's dysfunctional upbringing reduced his moral culpability "in the manner the High Court has directed sentencing Judges to take into account." The absence of an express citation to Bugmy by name did not mean the principles were overlooked.

Orders Made

  • Time for leave to appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge need not expressly cite Bugmy v The Queen by name for the High Court's principles on moral culpability and deprived background to be validly applied; the substance of the remarks will govern whether the principles were engaged.
  • In dismissing the manifest excess ground, the Court confirmed that an appellate court will not interfere with a sentence that falls within the range reasonably open to the sentencing judge, even where significant mitigating factors are present.
  • Where an aggregate sentence is accompanied by indicative sentences, the sentencing remarks must be read as a whole; a ground of appeal asserting that a discount was not applied will fail if the remarks clearly demonstrate otherwise.
  • The Court noted with some regret that the applicant was considered ineligible for programs recommended by the forensic psychologist, but that fact did not render the sentence excessive.
  • An unrepresented applicant's informal identification of a legal principle (here, the "Bugmy Act") will be interpreted charitably, but the substance of the ground still requires demonstration of error in the original sentencing remarks.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 33B(1)(a), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2C)
- Firearms Act 1996 (NSW) ss 4, 7(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2018] NSWCCA 2
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kliendienst v R [2020] NSWCCA 98
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McTague v R [2020] NSWCCA 83
- Noonan v R [2021] NSWCCA 35
- R v AA [2006] NSWCCA 55
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Zerafa [2021] NSWDC 547
- Vaughan v R [2022] NSWCCA 3
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64