Baines [2023] NSWCCA 302

A summary of this case is also available on the NSW Judicial Commission’s Judicial Information Research System (JIRS): Link

• Appeal against sentence imposed for well-planned murder of underworld figure.
• Evidence tendered of offender’s disadvantaged childhood at first instance – indigenous offender – exposed to violence and substance abuse – low socio-economic status and neglect – incarceration of both parents – mother a member of Stolen Generation.

Ground 4 – per Simpson AJA (Dhanji and McNaughton JJ agreeing)

• Unanimously allowed appeal on ground Sentencing Judge erred in not applying principles in Bugmy to reduce appellant’s moral culpability – psychologist report clearly identified causal connection between disadvantaged background and offence, and nothing in Bugmy supports suggestion of Sentencing Judge that deprived background could diminish moral culpability for lesser offences but not for more serious offence of murder: at [71]-[76]

Ground 5 – per Simpson AJA (McNaughton J agreeing – Dhanji J dissenting on this ground)

• In declining to uphold separate ground that Sentencing Judge erred in finding extracts from Bugmy Bar Book irrelevant to sentencing process Simpson AJA considered ‘the use, if any, that may properly be made of that material.’ at [77]
• Described Bugmy Bar Book as containing a ‘considerable quantity of social research’ that is ‘undoubtedly a useful compilation of material relevant to understanding the effects of social disadvantage and deprivation’: at [83]-[85]
• Further commented ‘the survey of reference materials qualifies as “expert evidence”, that is, “expert knowledge” drawn from what appears to be academic research, that is capable of assisting a sentencing judge to understand specific evidence about the circumstances of a particular offender, placed in a wider context’: at [90]
• While warning such material alone cannot substitute for evidence in respect of an individual offender, accepted it may be useful in some cases in laying a foundation for acceptance of relevance of evidence of offender’s personal circumstances: at [91]
• In this case additional material from Bugmy Bar Book did not add to comprehensive nature of psychologist report and failure by Sentencing Judge to have regard to material did not contribute to the error under Ground Four: at [97]

Ground 5 – per Dhanji J (dissenting on this ground)

• In separate judgment Dhanji J found evidence of Bugmy Bar Book chapters were relevant and capable of bearing on determination of sentence, and failure of Sentencing Judge to have regard to material constituted an error: at [131]
• After summarising the way evidence of offender’s background had been supplemented with chapters from Bugmy Bar Book before the Sentencing Judge, Dhanji J observed the value of the research lay in its potential to enhance understanding of impact of an offender’s background, particularly in cases where connection to offending is not self-evident and contested: at [145]-[146], [150]
• Also considered importance of counsel’s presentation of material, including use of references to specific paragraphs of Bugmy Bar Book relied upon in submissions, narrowing material required to be reviewed by Sentencing Judge. at [152]