Courts Must Take Social Disadvantage into Account During Sentencing

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By Paul Gregoire and Ugur Nedim

Tony Richards was asleep in his unit in the NSW town of Albury at 3 am on 7 December 2019, when there was a knock at the door. On checking, he found Kristopher Llyod was standing at the entrance claiming he had something to deliver, and Richards unlocked the screen door, opening it slightly.

Holding a boxcutter blade, Lloyd entered the premises, accompanied by four or five other men. He then smacked Richards in the back of the head a number of times, before cutting his hands as the victim raised them to protect himself.

The main offender told Richards the attack was “about the putrid ways you speak to women”. He then asked, “Where’s all your shit?”, before further lashing out with the blade, as the other men searched the house.

At one point, Richards fell to the ground and Lloyd kicked him in the side of the head.

Richards eventually armed himself with two kitchen knives, which saw the intruders flee the scene, taking a case containing the victim’s phone, his key card and health card, a laptop, a tablet, his house keys and some bike accessories.

NSW police arrested Lloyd several days later. An examination of his phone revealed the attack was motivated by his belief Richards was a sexual predator, while text messages also revealed he thought he’d slit Richard’s throat, he’d be up for attempted murder, and he’d be facing five years inside.

An early guilty plea

Lloyd pleaded guilty in the NSW Local Court to one count of entering a dwelling house with intent to commit a serious indictable offence in circumstances of special aggravation, contrary to section 111(3) of the Crimes Act 1900 (NSW).

This crime carries up to 20 years in prison. A “serious indictable offence” is one which carries a maximum penalty of at least 5 years in prison. In this case, the stated offence was assault occasioning actual bodily harm. The offence was carried out in circumstances of special aggravation, as it was perpetrated in company, or with accomplices, and it involved intentional wounding.

A second count of larceny was taken into account on a ‘Form 1’, which is which is a document listing charges which, although not sentenced separately, the sentencing judge can take into account when reaching an overall penalty. Section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the procedure for dealing with such offences.

The crime of larceny falls under section 117 of the Crimes Act, and carries up to five years inside. The larceny in this case was the taking of the bag full of Richard’s possessions.

On 16 October 2020, NSW District Court Judge Sean Grant sentenced Lloyd to 8 years imprisonment, with a non-parole period of 5 years. A non-parole period, also known as the minimum term, is the time an offender must spend behind bars before being eligible to apply for release from prison under supervision in the community, which is known as parole.

The sentence reflected a 25 percent discount due to the utilitarian value of Lloyd’s early guilty plea, which meant the full sentence prior to discounting was 10 years and 8 months prison time. A utilitarian discount is one given due to the time and resources saved by reason of a guilty plea.

The Bugmy principles

Lloyd appealed his against the severity of his sentence to the NSW Court of Criminal Appeal (NSWCCA) last August. He did so based on two grounds.

The first was that the sentencing judge failed to take into account the Bugmy principles and the evidence giving rise to their application. The second ground entailed the sentence being manifestly excessive.

The Bugmy principles arose out of the landmark 2013 High Court case Bugmy versus The Queen, in which it was found that social disadvantage does not diminish overtime, regardless of how often an individual reoffends, and therefore should “be given full bearing” on sentencing.

Bugmy involved a 29-year-old First Nations man who assaulted a prison guard in 2011. The NSWCCA had found during his first appeal that “social deprivation in youth must diminish over time”.

On appeal to the highest court in the land, the High Court found that it does not diminish over time and this applies to all people regardless of ethnic background.

Bugmy cited

Lloyd’s criminal defence lawyers put forth at trial that the Bugmy principles should be exercised due to the defendant’s “very deprived childhood”, as it was having a “casual affect” in terms of his offending, drug use and relationships. The prosecution did not take issue with this assertion.

Psychologist Ms Hübner provided unchallenged evidence that Lloyd had been abused physically, emotionally and sexually by his mother’s partners from a very young age. The child had then found himself homeless in his early teens, which led to a cycle of being in-and-out of custody.

On sentencing, Judge Grant said the Bugmy principles had been enlivened. However, Lloyd’s legal team argued on appeal that they had not been applied, and this was displayed in two ways: no causal effect was determined by the judge, and neither was a “reduced moral culpability”.

NSWCCA Justice Lucy McCallum outlined that in citing the principles, the judge had accepted they applied, so the question was “whether that factor was properly taken into account”, in terms of having considered them and moderated their weight against sentencing deterrence factors.

“Based on my analysis of the circumstances of the present case and the judge’s reasons, I am satisfied that the applicant’s childhood deprivation was not properly taken into account,” her Honour added. “The degree of deprivation in this case can only be described as profound.”

The principles unapplied

Justice McCallum explained that citing the Bugmy principles wasn’t enough without considering their “full weight”, and based on a number of reasons, it was clear the sentencing judge hadn’t done this.

The most obvious point was that Judge Grant hadn’t discussed Lloyd’s childhood deprivation and his moral culpability or whether this was lessened due to his disadvantage, and, when reflecting on the Hübner report, the judge skipped the parts that discussed the effects of the man’s early life.

On deliberating upon the truthfulness of Lloyd’s letter to the court, the judge had further expressed scepticism around the offender’s desire to change, with no regard to Hübner’s evidence, which revealed the reduced capacity of someone from such a background to follow through on such aims.

The judge further failed to weigh up countering factors when deliberating upon personal and general deterrence, and he made a dismissive remark about the offender having had some foresight in assessing his five-year non-parole period, which McCallum found “gratuitous and inappropriate”.

A resentencing exercise

Due to the reasons set out, her Honour was satisfied that the first ground should be upheld, and resentencing take place.

In terms of the second ground, it was not necessary to deliberate upon it, however the justice did say that she found the original sentence’s length “unduly stern” under the circumstances.

On 11 February this year, Justice McCallum ordered the original sentence be quashed, and she then sentenced Lloyd to 5 years and 3 months imprisonment, with a non-parole period of 3 years and 3 months.

The new sentence reflected the 25 percent discount that arose due to the early guilty plea, which meant that the full sentence was 7 years inside.

NSWCCA Justices Peter Hamill and Richard Cavanagh agreed with their colleague’s findings and her orders.

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