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Court of Criminal Appeal 23 April 2025

Donovan v R

[2025] NSWCCA 59

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICATION FOR LEAVE TO APPEAL POSSESS ING AN UNAUTHORISED FIREARM SUPPLY ING A PROHIBITED DRUG

Citation: Donovan v R [2025] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 23 April 2025
Judges: Davies J, Wright J, Sweeney J

Background

The applicant pleaded guilty in the Local Court to four offences: possessing a shortened firearm (a 12-gauge shotgun) without authority, possessing an unauthorised firearm (a Winchester lever-action rifle), supplying a commercial quantity of methylamphetamine (142.66 grams), and dealing with suspected proceeds of crime. He was sentenced in the Parramatta District Court on 23 October 2023 to an aggregate term of six years imprisonment with a non-parole period of three years.

At the sentence hearing, the applicant relied on a "Bugmy Justice Report" documenting his background. The report described a childhood in which he maintained a positive relationship with his mother and grandmother, but was regularly exposed from a young age to alcohol abuse, drug use and supply, and domestic violence within his extended family. The applicant described this environment as "normal" and said he did not feel unsafe, precisely because such conduct had been normalised for him throughout his upbringing.

The applicant sought leave to appeal on the single ground that the sentencing judge erred by finding that the Bugmy principles, which address how childhood deprivation can reduce an offender's moral culpability, did not apply to him.

  • Whether the sentencing judge erred by finding that the principles arising from a background of deprivation (as articulated in Bugmy v The Queen) did not apply to the applicant
  • Whether the sentencing judge incorrectly required the applicant to demonstrate "profound" childhood deprivation in order to enliven those principles
  • Whether the sentencing judge adequately took into account the normalisation of drug use and violence in the applicant's upbringing when assessing his moral culpability

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no demonstrated error in the sentencing judge's approach. All three judges agreed that the sentencing judge had given balanced consideration to both the positive and negative aspects of the applicant's upbringing, and had not simply ignored the evidence of his exposure to family violence and drug use.

Sweeney J (with whom Davies J agreed) held that the sentencing judge's findings were open on the evidence, which was not "all one way." The judge had acknowledged the extended family environment and expressly stated he would take the exposure to drug use and violence "into account generally in the overall mix of subjective factors." That was sufficient to satisfy the requirements of the Bugmy principles in the circumstances.

On the "profound deprivation" point, Sweeney J found the sentencing judge's use of that phrase was a reference to language used by the High Court in Bugmy itself, and also reflected language used in the applicant's own written submissions. The Court of Criminal Appeal confirmed, following its earlier decision in Hoskins v R, that an offender is not required to establish "profound" childhood deprivation to enliven the relevant principles. However, the Court was not persuaded that the sentencing judge had actually applied that stricter test.

Wright J added that where an offender's childhood included both stable, supportive relationships and repeated exposure to criminal conduct within an extended family, applying the Bugmy principles involves genuine complexity. The normalisation of drug use and violence could reduce moral culpability for drug-related offending, but would not naturally do so for serious firearms offending. Viewed fairly and in context, the sentencing judge's remarks indicated the normalisation of drug abuse was factored into the aggregate sentence, and the non-parole period of 50% of the aggregate term supported the conclusion that reduced moral culpability had been taken into account.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an offender is not required to establish "profound" childhood deprivation to enliven the sentencing principles from Bugmy v The Queen; the bar is not set that high.
  • Where a sentencing judge's remarks are delivered ex tempore in a busy list, the Court of Criminal Appeal will read those remarks fairly and in context, rather than requiring exhaustive treatment of every submission.
  • Exposure to alcohol abuse, drug use, and domestic violence within an extended family can normalise such conduct for an offender and may reduce moral culpability, even where the offender also had positive and stable relationships with a parent or grandparent.
  • In dismissing the appeal, the Court noted that normalisation of drug-related conduct would not automatically reduce moral culpability for all offending, particularly for serious firearms offences.
  • No single formula applies when a childhood involves both protective and harmful influences; the sentencing court must consider the complexity and nuance of the particular background and make findings that are open on the evidence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7A, 62

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dungay v R [2020] NSWCCA 209
- Hoskins v R [2021] NSWCCA 169
- R v Millwood [2012] NSWCCA 2