Citation: Bond v R [2023] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 5 April 2023
Judges: Simpson AJA, Fagan J, Dhanji J
Background
The appellant, a 59-year-old man with very low intelligence and a traumatic brain injury sustained in 2017, pleaded guilty in the Local Court to a series of serious offences committed on 10 February 2020. The offences involved a 13-year-old girl whom the appellant had befriended and to whom he had been supplying cigarettes and cannabis over several months. The appellant invited the complainant to his apartment alone and supplied her with alcohol, cannabis, MDMA, and other substances, causing her to lose consciousness.
While the complainant was unconscious or semiconscious over a three-to-four-hour period, the appellant sexually assaulted her, including penile intercourse, and took 85 photographic images of her in unconscious and sexually revealing positions, including images recording him inserting a torch into her vagina. These images fell within Category 2 of the internationally recognised classification of child abuse material. The complainant suffered physical injuries and ongoing psychological harm.
On 1 October 2021, the sentencing judge imposed an aggregate sentence of 7 years and 6 months with a non-parole period of 5 years. The appellant sought leave to appeal against that sentence on three grounds.
Legal Issues
- Whether the sentencing judge failed to apply the principles from Bugmy v The Queen (2013) 249 CLR 571, which recognise that a deprived or traumatic upbringing may reduce an offender's moral culpability and warrant ongoing mitigation of sentence
- Whether the sentencing judge erred in how he took into account the appellant's mental health and cognitive deficiencies, particularly in relation to moral culpability and general deterrence
- Whether the sentencing judge failed to take into account the impact of Covid-19 restrictions on prison conditions as a factor in mitigation (this ground was added by amendment during the appeal)
Decision
On the first ground, the Court found there was simply insufficient evidence of a deprived upbringing to engage the Bugmy principles. The available material described a "disrupted childhood and limited education," including two years in foster care from age 11 and attendance at a school for children with special needs. The Court accepted that some of those circumstances might typically be associated with deprivation, but held that mere association is not enough: the sentencing judge needed actual evidence of deprivation specific to this appellant, and none was established.
On the second ground, the Court found no error in how the sentencing judge addressed cognitive deficiency. The sentencing judge had expressly reduced the weight given to general deterrence because of the appellant's brain injuries. As to moral culpability, the Court held the sentencing judge was not obliged to find the appellant's cognitive deficits reduced his moral culpability, particularly given the appellant had a prior child sexual offence that pre-dated his 2017 brain injury. That prior offending did not rule out any connection between the deficits and the present offending, but it meant that clear and specific evidence was required to support such an argument. No such evidence was before the sentencing judge, which explained why the argument had not been pressed at first instance.
On the third ground, the Court found the Covid-19 argument was not made out on the evidence. The appellant's solicitor filed an affidavit that was, in the Court's words, "somewhat ambiguous": the solicitor stated she had been unable to obtain instructions about any particular hardship the appellant experienced. Whether that reflected a communication difficulty or a positive instruction that no particular hardship was suffered, either outcome was fatal to the ground. In the absence of evidence that the appellant actually experienced more burdensome conditions as a result of the pandemic, the ground could not succeed.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- The Bugmy principles require actual evidence of a deprived upbringing specific to the individual offender. A characterisation of circumstances that might generally be associated with deprivation is insufficient without direct evidence that the particular offender experienced such deprivation.
- Where a cognitive deficit predates a traumatic brain injury but a prior similar offence also predates that injury, courts are not obliged to treat the deficit as reducing moral culpability for later offending in the absence of clear evidence linking the deficit to the offending conduct.
- In dismissing the Covid-19 ground, the Court of Criminal Appeal confirmed that an offender must demonstrate actual, personal hardship from pandemic-related prison conditions. A solicitor's affidavit acknowledging she could not obtain instructions about any such hardship does not establish the ground.
- Reducing the weight given to general deterrence because of cognitive impairment is a recognised and sufficient sentencing response to that impairment; it does not, of itself, also require a reduction in the assessment of moral culpability.
- A ground raised for the first time on appeal, particularly without supporting evidence adduced at sentencing, faces a significantly higher bar, as illustrated by the Court's treatment of all three grounds here.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 38A, 61J(1), 61KC, 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), ss 10(3), 16(1)
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Zreika v R [2012] NSWCCA 44