NK v R [2025] NSWCCA 73

NK v R [2025] NSWCCA 73 · Read the judgment on AustLII

Catchwords: Sentencing – Disadvantaged upbringing – Correct approach to applying Bugmy principles

In this decision the CCA has observed that, although general deterrence and an offender’s deprived upbringing may pull in opposite directions in sentencing, it is not correct to say that an increased need for general deterrence renders an offender’s reduced moral culpability irrelevant.

The applicant was sentenced for sexual and other offences: a range of aggravated sexual intercourse charges against a child that had been under his authority at a Catholic Care home, and sexual and other violent offences against his wife. He was sentenced to 15 years, with a non-parole period of 9 years and 9 months. He appealed on grounds relating to asserted failures of the sentencing judge correctly to take into account his background of childhood deprivation, and his own history as a victim of child sexual abuse. Amongst other challenges, he had been sexually abused as a child, and had suffered a serious car accident. A psychiatrist opined that that background played a contributory role in his offending. However, the sentencing judge had found, by reference to the decision of Kennedy v R [2022] NSWCCA 215 that the physical violence and sexual assault during the applicant’s formative years did not warrant a reduction of his moral culpability in accordance with the general principles set out in Bugmy v R [2013] HCA 37 (‘Bugmy’). This was said to be because of the need for general deterrence.

The Court, (Yehia J, Ball JA agreeing, Fagan J agreeing with additional remarks) found error in the sentencing judge’s approach.

Contrary to the approach taken by the sentencing judge, general deterrence is not a matter that negates any reduction in the moral culpability of an offender because of their deprived upbringing. Rather, it is one of a number of countervailing factors that need to be taken into account in fixing an appropriate sentence. Notwithstanding that the sentencing judge accepted the applicant’s background and its negative impact on the trajectory of his life, her Honour did not turn her mind to whether and to what extent any reduction in moral culpability was relevant to purposes of sentencing other than general deterrence. This resulted in a failure to consider whether that background impacted upon the sentence in several respects including denunciation, specific deterrence, and the need for rehabilitation (at [104]).

Correct application of the Bugmy principles involves the following considerations. First, a sentencing judge must make an assessment whether an offender’s background reduces the moral blameworthiness – bearing in mind that in Bugmy the High Court said that a background of deprivation may compromise an offender’s capacity to mature and to learn from experience (at [107]). This assessment is made by reference to matters subjective to the offender; an offender’s moral blameworthiness cannot be assessed by factors unrelated to an offender, such as the purposes of sentencing (at [111]).

Secondly, if moral culpability is reduced, a sentencing judge is required to consider the impact of that reduction on the various purposes of sentencing. For example, reduced moral culpability may render it less important to denounce the conduct than it would be in a case where an offender had a ‘normal’ or ‘advantaged’ background. On the other hand, the reduction in moral culpability may be offset by an increased need for general deterrence and / or the protection of the community (at [112]).

Thirdly, even where the reduction in moral culpability is wholly or partly offset, because of the weight to one or more purposes of sentencing, the High Court indicated in Bugmy that an offender’s background of disadvantage must be given ‘full weight’ in ‘every sentencing decision’ (at [113]).

In his additional remarks, Fagan J observed that it was not correct for the sentencing judge to say that the importance of general deterrence in this case meant the circumstances ‘do not warrant a reduction in [the applicant’s] moral culpability’. Reduced moral culpability is one matter to be taken into account in arriving at an appropriate sentence. The degree to which general deterrence should play a part in any particular case is another. The sentencing purpose of general deterrence does not, in relation to any particular class of offending, necessarily cancel out or render irrelevant the fact of reduced moral culpability where that fact is found (at [11]). A correct analysis would have been to recognise a reduction in moral culpability, weigh that up against all objective and subjective circumstances, and give effect to such of the statutorily recognised purposes of sentencing as are engaged by the facts of the case, weighing and balancing those purposes where they tend in opposing directions (at [12]).