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Court of Criminal Appeal 21 August 2024

Ridgeway v R

[2024] NSWCCA 152

Assault & violenceDomestic & family violence
CRIME APPEAL AGAINST SENTENCE DOMESTIC VIOLENCE OFFENCES [2013] HCA 37 APPEAL AGAINST SENTENCE LEAVE TO APPEAL OUT OF TIME SOUGHT

Citation: Ridgeway v R [2024] NSWCCA 152
Court: Court of Criminal Appeal, New South Wales
Date: 21 August 2024
Judges: Ward P at [1]; Wilson J at [2]; Sweeney J at [69]

Background

The applicant pleaded guilty in 2021 to four offences arising from a sustained campaign of domestic violence against his former partner. The two most serious charges, dealt with in the District Court at Taree, were wounding with intent to cause grievous bodily harm and robbery. The remaining two charges involved contravening apprehended domestic violence orders (ADVOs).

The offences centred on a premeditated confrontation in a beach car park in June 2020. The applicant tracked his former partner's location using a mobile phone covertly attached to her car, blocked her vehicle with his own, and then stabbed her multiple times with a hunting knife. The wounds were severe: she sustained a compound skull fracture requiring the removal of bone fragments, and two penetrating back wounds that perforated her chest wall and punctured her lung. The applicant then robbed a bystander of her phone, which had been recording the attack.

Judge Pickering SC imposed an aggregate sentence of eight years' imprisonment with a non-parole period of five years and six months. The applicant sought an extension of time to appeal, arguing the sentencing judge had misapplied the principles established in Bugmy v The Queen (2013) 249 CLR 571 regarding the mitigating weight of childhood deprivation.

  • Whether an extension of time to bring the appeal should be granted, given a delay of approximately three years.
  • Whether the sentencing judge erred in applying the Bugmy principles, specifically by impermissibly reducing the mitigating weight attributable to the applicant's deprived background by reference to the seriousness of the offending.

Decision

The Court of Criminal Appeal, constituted by Wilson J (with Ward P and Sweeney J agreeing), considered the substantive ground of appeal first, treating its prospects of success as relevant to whether an extension of time was warranted. The applicant contended that the sentencing judge had diluted the mitigating significance of his deprived upbringing because of the gravity of the offences, which he argued was an error under Bugmy.

Wilson J found that the sentencing judge had not erred in the manner asserted. The Bugmy principles establish that the fact that offending is serious does not reduce the mitigating force of childhood deprivation. However, the Court found on its reading of the sentencing remarks that the judge had not conflated those two matters. The sentencing judge had given proper consideration to the applicant's background as a mitigating factor while separately addressing the significant objective seriousness of the offending.

On the question of delay, the Court accepted that the applicant, assessed as being of low intelligence, may not have understood he could appeal until informed by a fellow inmate in 2022. The subsequent delays attributable to the applicant's legal representatives, including lags in reviewing papers and briefing counsel, were not held against the applicant personally. Despite the explanation being characterised as less than entirely satisfactory, the extension of time was granted. The appeal itself was then dismissed on the merits.

Orders Made

  • Time to bring the application for leave to appeal extended to 28 May 2024.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the Bugmy principles prohibit a sentencing judge from diminishing the mitigating weight of an offender's deprived background simply because the offence is serious. The two considerations operate independently.
  • No error was established on the facts: a sentencing judge who separately and properly addresses both mitigating background and objective seriousness does not necessarily commit a Bugmy error, even where the resulting sentence is substantial.
  • Delays in pursuing an appeal that are attributable to a legal representative's administrative failures will not automatically be visited upon an applicant of limited intellectual capacity, at least where the applicant moved to instruct lawyers within a reasonable time after learning of the right to appeal.
  • In granting the extension of time, the Court treated the merits of the proposed ground as the primary consideration, resolving the substantive issue before turning to the procedural question.
  • Under the aggregate sentencing framework applied by the District Court, indicative sentences for individual offences (including one year for robbery and shorter terms for ADVO contraventions) informed, but did not mechanically determine, the final aggregate and non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33, 94
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38