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Key decisions

  • Meoli v R [2021] NSWCCA 213
  • Lunney v Director of Public Prosecutions [2021] NSWCA 186
  • Nasrallah v R [2021] NSWCCA 207

Meoli v R [2021] NSWCCA 213

Sentencing – rehabilitation vs unlikelihood of reoffending – what it means to be distinct & separate

In this decision the Court of Criminal Appeal (‘CCA’) has held that whilst prospects of rehabilitation, and unlikelihood of reoffending are separate and distinct factors, the burden of establishing the latter falls on the offender – and in any event the two issues will often be co-extensive.

The applicant pleaded guilty to five drug offences (three Commonwealth, two State), a weapons offence, and miscellaneous minor matters. The effective sentence was 7 years with a non-parole period of 4 years and 9 months. The sentencing judge had made an explicit finding about prospects of rehabilitation – just not a separate and distinct finding about reoffending. Recent authority (TL v R [2020] NSWCCA 265 at [369]) had echoed earlier decisions in holding that the issues of an offender’s prospects of rehabilitation and likelihood of reoffending are separate and distinct. He appealed on grounds including that the sentencing judge had failed to assess whether he was likely to reoffend.

Simpson AJA (with whom Bathurst CJ agreed; Bellew J also agreeing, with brief additional reasons) reviewed the authorities on the question of what the Crimes (Sentencing Procedure) Act (‘the Act’) means when it uses the word ‘rehabilitation’. In order to accept that the concepts of rehabilitation and likelihood of reoffending are distinct needs no more than recognition that the two concepts appear, sequentially but separately, in the subsection. There could be no clearer indication that the legislature considered them distinct – even if they had not bothered to explain the distinction (at [38]). It follows, where it is relevant and known to the Court, that unlikelihood of  reoffending is to be taken into account separately and distinctly from prospects of rehabilitation (at [39]). However, it should be observed that what must be taken into account in this context is unlikelihood of reoffending (also at [39] –
emphasis in original). In this case, the sentencing judge was not asked to make a finding about unlikelihood of reoffending and the issue was not raised before her. It is not every one of the 14 mitigating factors listed in s 21A(3) that calls for a specific finding by the judge; it is those that arise in the circumstances of the particular case (at [41]-[42]).

Moreover, whilst they are ‘separate and distinct’ issues, in many cases the relevant evidence for each issue will be, if not co-extensive, then significantly overlapping, so that the conclusions in respect of each will probably be consistent (at [43]).

Given that s 21A(3)(g) presupposes the ‘unlikelihood’ of reoffending (that is, a mitigating factor), generally the onus of establishing this factor lies on the offender, and the standard of proof is on the balance of probabilities (at [45]). There was, in this case, no basis upon which the sentencing judge could reasonably have found that there was an ‘unlikelihood of re-offending’ (at [43] and [45]).

Lunney v Director of Public Prosecutions [2021] NSWCA 186

District Court conviction appeals – issues raised by the parties – no independent requirement for review of the whole of the evidence

In this decision, the Court of Appeal has held that in a District Court appeal against conviction, the issues to be considered by the judge are those raised by the parties. If the appellant does not raise for consideration a point that requires a review of the whole of the evidence, then a judge will not err by limiting themselves only to the appeal points raised. It also followed that there was no error in not watching the recording of the complainant’s evidence-in-chief.

The applicant was convicted of a domestic violence offence in the Local Court. He appealed that conviction to the District Court. As part of the District Court appeal, he raised two arguments, the details of which are presently unimportant, in support of the conclusion that the Magistrate had erred. Both arguments were rejected and the conviction appeal duly refused. He appealed to the Court of Appeal on the basis of an asserted jurisdictional error: that the District Court judge had erred by failing to conduct an independent assessment of the applicant’s guilt, based on the whole of the evidence.

As observed by McCallum JA (with whom White JA agreed; Meagher JA also agreeing, with some additional observations), the application raised an interesting question as to the nature of the function conferred in the District Court in appeal against conviction from the Local Court (at [9]).

It is clear from earlier decisions that a conviction appeal to the District Court is neither a hearing de novo requiring (or permitting) the prosecution to prove the charge afresh nor, at the other end of the spectrum, a species of judicial review in which the judge is relieved of any obligation to consider the case on its merits (at [33]). However, it does not follow that the legislation requires the District Court in every case to review the whole record of the proceedings and form an independent assessment of the applicant’s guilt (at [34]). Several authorities have acknowledged that the scope of the Court’s function in a District Court appeal against conviction is properly informed by the scope of the issues raised by the applicant (at [43]). The extent of the review required in any individual case will depend on all the circumstances of the case and the kind of error alleged (at [44]).

In this case, the applicant had raised two relatively discrete points (distilled at [60]) neither of which was a global argument about the body of the evidence. In short, there had been no clearly articulated argument, the resolution of which required the judge to review the whole of the evidence once he had rejected the ambitious submission that the magistrate had not determined the case on the basis of credibility findings (at [86]). The Court is not required to undertake a free-standing review of the evidence in the absence of guidance and particular submissions by the parties (at [88]).

Separately, one of the applicant’s arguments in the District Court had turned on a question of the credibility of the complainant. Because the matter was a domestic violence matter, the complainant had participated in a Domestic Violence Evidence in Chief (‘DVEC’) recording. The applicant on appeal argued that the District Court judge should have at least watched that recording. However, in the District Court the applicant had not identified any forensic purpose for viewing the video recording, and counsel had not urged that course upon the Court (at [82]), so that it was not an error that the judge had not viewed it.

Nasrallah v R [2021] NSWCCA 207

Bugmy principles – profound deprivation as a pre-requisite to finding of reduced moral culpability

This decision of the CCA exposes a potential problem in trying to apply the principles from Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’) to cases where there may not have been a lengthy history of trauma, but rather only one or two traumatic episodes, and perhaps against a background of less deprivation than sometimes seen by criminal courts.

The applicant was sentenced for armed robbery and damaging property. She presented evidence of trauma from her childhood, which had led to PTSD, suicidal ideation, drug abuse, and her offending. In the course of judgment the sentencing judge commented that the applicant’s ‘troubled lifestyle [paled] into insignificance to the sort of chronic profound deprivation often seen in this Court and frankly seen in three other matters that I have disposed of today’. She was sentenced to 2 years and 9 months, with a non-parole period of 1 year and 4 months. The applicant appealed on grounds including that the judge had not given sufficient weight to her deprived background – essentially an argument that the judge had determined her circumstances to have been insufficiently ‘profound’ to engage the principles in Bugmy. That decision held (broadly) that a deprived background, marred by violence, sexual offending, drugs or alcohol (amongst other things), may reduce an offender’s moral culpability for offending and therefore mitigate their sentence. In this case, although the appeal judges were in agreement on some grounds, the Court split on this issue in the kind of messy way that causes case note writers to hyperventilate. The plurality on this issue was Bell P and Price J; Hamill J dissented. According to Bell P (with whom Price J agreed, at least to the extent set out below – see [53]), there is some correlation between the nature, degree and extent of an offender’s deprivation as a child and any reduction in the moral culpability that would otherwise attach to the offender’s conduct. The nature and degree of an offender’s background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence (at [8]). The boundaries of Bugmy have not been clearly or definitively delimited. An environment of ‘childhood deprivation’ in which abuse of alcohol and alcohol-fuelled violence are endemic (the circumstances which were addressed in Bugmy) may be conceptually different from an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or psychological abuse. There may also be a significant conceptual distinction between circumstances of sustained sexual or other abuse of a child, and a single instance of sexual abuse or attempted sexual abuse. Whether or not a single instance of sexual abuse or some other traumatic event strictly falls within the scope of the principles enunciated in Bugmy may be debated (at [11]). But that does not mean that the consequences of sexual assault – including a single episode – on a child may not produce profound and highly detrimental impacts on the child so assaulted. Nor does it mean that those impacts may not be relevant, by way of mitigation, in the sentencing of a child so abused who subsequently offends (at [12]).

The rest of the reasons are harder to summarise. For present purposes it is enough to say that it looks as though there may be a looming split between some judges in the Supreme Court about whether the decision in Bugmy should be applied relatively liberally (Hamill J’s dissent on this ground being an example of that end of the spectrum), or whether it has begun to overstep its boundaries (as seems to be more evident in Bell P’s decision). It is notable that Price J – the Chief Judge of the District Court, being the Court that probably sees the most cases which may be caught by Bugmy  – took a position somewhere in the middle.

Thomas Spohr
is a solicitor, Legal Aid NSW and a member of the Law Society of NSW Criminal Law and Ethics Committees.