Nasrallah v R [2021] NSWCCA 207
Nasrallah v R [2021] NSWCCA 207 · Read the judgment on AustLII
Catchwords: 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 moral culpability for offending and therefore mitigate their sentence.
In this case, although the 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 decisions 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 in this matter 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, sitting here as a member of the CCA, being the court that probably sees the most cases which may be caught by Bugmy – took a position somewhere in the middle.