Citation: Whipp v R [2024] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 24 May 2024
Judges: Davies J, Button J, Sweeney J
Background
The applicant pleaded guilty to armed robbery with an offensive weapon and using an offensive weapon with intent to commit an assault in company, arising from an ambush of a husband and wife outside their small grocery store in Buxton in December 2021. The applicant and two co-offenders had entered the store earlier in the evening, and then waited in the carpark. When the owners emerged after closing, the group confronted them with a long knife and a black object the owners believed to be a gun, demanding and taking approximately $1,500 in cash and other valuables.
At sentencing in December 2022, the District Court imposed a head sentence of 5 years and 3 months with a non-parole period of 3 years and 3 months for the armed robbery, after applying a 25% discount for early guilty pleas. The co-offenders received identical sentences. The applicant sought leave to appeal.
A significant part of the applicant's case in mitigation concerned his personal history. He had suffered serious offences committed against him while in juvenile detention, and a psychologist's report documented that he experienced complex post-traumatic stress disorder (PTSD) as a result. Oral submissions at sentencing described the applicant as experiencing flashbacks triggered by interactions with other inmates and Corrective Services staff, making custody particularly hard for him.
Legal Issues
- Whether the sentencing judge erred in failing to find that the applicant's deprived background reduced his moral culpability, and in failing to apply the principles in Bugmy v R
- Whether the sentencing judge erred in finding that the applicant's mental health did not reduce his moral culpability
- Whether the sentencing judge erred in failing to account for the applicant's mental health when considering the weight of general deterrence and the onerousness of a full-time custodial sentence
- Whether the sentence was manifestly excessive
Decision
The Court of Criminal Appeal allowed the appeal on Ground 3(b), namely that the sentencing judge had not sufficiently addressed how the applicant's mental health condition would make full-time custody more onerous. The Court noted that, while the written submissions on sentence had not specifically addressed this topic, a significant portion of the oral submissions had done so directly. Counsel had told the sentencing court about the applicant's trauma-related flashbacks triggered by custody conditions, describing the hardship being experienced.
The remarks on sentence did acknowledge the offending committed against the applicant in juvenile detention and described the psychological report as "a very significant part of the overall subjective mix." However, Button J (with Davies and Sweeney JJ agreeing) held that this general acknowledgement was not enough in the circumstances. Given the importance of the onerousness submission to the plea in mitigation as a whole, the sentencing judge was required to engage explicitly with it, even if only briefly, and to address whether and how it affected the sentence.
The Court took care to note that sentencing is not a mechanical "tick a box" exercise. Judges are not required to address every submission made in passing. The obligation to engage directly arises where a submission has been significantly and specifically developed, as was the case here. The failure to do so constituted an error.
On resentencing, Button J reduced the head sentence for armed robbery to 4 years and 6 months (from a starting point of 6 years, with a 25% discount applied), with a non-parole period of 2 years and 9 months. The judge acknowledged the applicant's severely deprived and criminogenic background, his complex PTSD arising from abuse in juvenile detention, and some tentatively positive signs of rehabilitation through opioid replacement therapy, while expressing only guarded optimism about his future prospects.
Orders Made
- Leave to appeal granted and appeal against sentence upheld
- Sentences imposed at first instance quashed
- For armed robbery (count 1): non-parole period of 2 years 9 months commencing 5 March 2022, concluding 4 December 2024, followed by a parole period of 1 year 9 months concluding 4 September 2026
- For using an offensive weapon with intent to assault in company (count 2): fixed term of 2 years commencing 5 March 2022, expiring 4 March 2024
- Earliest date eligible for possible release to parole: 4 December 2024
Key Takeaways
- Where a submission about the onerousness of custody due to mental health has been significantly developed in oral sentencing proceedings, a sentencing court is required to engage explicitly with that submission, at least briefly, even if it ultimately affords it limited weight.
- Sentencing is not reduced to a "tick a box" process: the obligation to address submissions expressly is not triggered by every passing remark, but arises where the submission has formed a substantial part of the plea in mitigation.
- A general acknowledgement that a psychological report forms part of the "overall subjective mix" will not, without more, satisfy the obligation to engage with a specific and significant submission about how mental health will affect the experience of imprisonment.
- Under Bugmy v R, a deprived background that is clearly criminogenic should be given full weight in sentencing and can reduce an offender's moral culpability, even for serious offences.
- Complex PTSD arising from abuse suffered in juvenile detention can be a relevant mitigating factor not only in assessing moral culpability, but also in considering how onerous a custodial sentence will be for the particular offender.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 33B, 97(1)
Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Dellow v R [2020] NSWCCA 301
- Egan v R [2017] NSWCCA 206
- Prince v R [2020] NSWCCA 268
- Sypher v R [2020] NSWCCA 336
- Wood v R [2019] NSWCCA 309