R v Irwin [2019] NSWCCA 133
R v Irwin [2019] NSWCCA 133 · Read the judgment on AustLII
Catchwords: Disadvantage – application of Bugmy principles not discretionary
In this decision the CCA has reminded courts and practitioners that application of the Bugmy principles is not discretionary – although their impact might of course vary in a particular case.
The respondent (this was a Crown appeal against inadequacy) was convicted in the District Court of offences relating to prohibited drugs, possession of firearms and other weapons, and offences related to a police pursuit (10 offences in all, with six on a number of Forms 1). The respondent had been the subject of a Firearms Prohibition Order and a Weapons Prohibition order, and the police attended to do a search pursuant to those respective regimes; they found the drugs and firearms. The respondent’s parole was revoked and a warrant issued. About a week later, police tried to pull the respondent over but he drove away quickly. The same thing happened again when they found him a few days after that, except that this time the police eventually found and arrested him.
At sentence, amongst other things, the importance of the applicant’s disadvantaged background was emphasised by his legal representatives: both his parents abused alcohol, he was exposed to daily domestic violence, he left school in year nine then worked for about six months, but thereafter was variously in custody or living a transient lifestyle supported by crime until the time of his offence (at the age of 29). A psychiatric report indicated he’d been sexually assaulted on at least two occasions by a family friend when he was 12 to 13. He started hearing voices from the age of 18. He started smoking cannabis from the distressingly-young age of seven or eight, and graduated to varieties of amphetamines by the age of 15. He was diagnosed as having psychiatric illnesses including either severe methamphetamine use disorder and severe opioid use disorder, or just a ‘substance’ use disorder. Some of the medical evidence opined that there was a causal relationship between his disorders and his offending.
He was sentenced to 4 years imprisonment with a non-parole period of 2 years 8 months. The Crown appealed against the asserted inadequacy of the sentence. This summary deals only with an ancillary point raised by the judgments (described by Simpson AJA as being a ‘curious feature’ of the case): treatment of the Bugmy principles. Those principles arise from the decision in Bugmy v The Queen (2013) 249 CLR 571 and, to grossly oversimplify them, are to the effect that the effects of family and domestic violence, social deprivation and disadvantage require are significant in sentencing offenders (particularly, although by no means limited to, offenders from an Aboriginal or Torres Strait Island background). Those effects do not diminish over time and are to be given full weight throughout an offender’s life. In this case the sentencing judge had ‘…decline[d] to apply the Bugmy principles’.
Walton J (with whom Simpson AJA and Adamson J agreed, each with some brief additional remarks) extracted some of the recent judgments considering Bugmy (at [116] to [118]). As part of that analysis, his Honour confirmed that once an offender has established a background of deprivation, it is unnecessary, as a necessary condition to permit mitigation of a sentence, to require a causal relationship between that background and the offending (at [116]). Simpson AJA, in her separate judgment made the point even more bluntly: ‘[a]pplication of the Bugmy principles is not discretionary’ (at [3]). However, her Honour qualified, it is of course a matter of evaluation what impact they should have (at [5]). Here, it was found on the basis of expert evidence that there was in fact a causal relationship (at [121]).
All that notwithstanding, the sentence imposed by the sentencing judge was still found to be inadequate and it was increased to 7 years with a non-parole period of 4 years 8 months.