Submissions of the Parties
22Mr Hamill SC, for the Applicant (who did not appear at first instance), challenged the approach of the sentencing Judge at ROS [26]-[29] (see [18]-[20] above) in support of this ground of appeal.
23It was submitted that, from his Honour's remarks in relation to general deterrence (at ROS [27]), it was accepted that the Applicant had a long-standing and serious psychiatric illness related to a deprived and abusive childhood, and the Applicant's involvement in illegal drugs at an extremely young age.
24Mr Hamill SC submitted that the Applicant's psychiatric condition was relevant to the sentencing exercise in a number of ways. Despite this, he submitted that the only way in which the sentencing Judge had taken the matter into account was by accepting that general deterrence may be less important and by, in effect, disregarding that factor on the basis that it was outweighed by the need to protect the public from future offending.
25Given the length of the sentence to be imposed and the other matters that led the sentencing Judge to conclude that the Applicant had some (albeit slight) prospects of rehabilitation, it was submitted that it was erroneous to diminish or offset the important finding in relation to general deterrence.
26Further, Mr Hamill SC submitted that the sentencing Judge did not refer to the impact of the Applicant's psychiatric condition with respect to the Applicant's moral culpability, to personal deterrence and the question whether a prison sentence would weigh more heavily upon him.
27It was submitted that the effective finding of dangerousness, which led to his Honour's conclusion of the importance of protection of the public, disclosed error because of the impossibility of assessing future dangerousness in circumstances where a very lengthy minimum term was to be imposed: Bugmy v The Queen [1990] HCA 18; 169 CLR 525 at 537.
28The Crown submitted that the findings made by the sentencing Judge were open in the circumstances of the case. It was stressed that it was for the Applicant to establish, on the balance of probabilities, that he was suffering from a mental disorder at the relevant time and that it should (or should not) be taken into account in a particular way.
29The Crown observed that senior counsel appearing for the Applicant at first instance had conceded that it could not be demonstrated that there was a clear connection between the Applicant's mental state and the commission of the offence, although he submitted that it remained open to the Court to have regard to the Applicant's mental condition in determining whether he was a suitable vehicle for imposing "a deterrent aspect or a full deterrent aspect on the sentence" (T14, 25 February 2011).
30It was observed as well that senior counsel at first instance did not submit that a custodial sentence might weigh more heavily on the Applicant because of his mental condition
31The Crown submitted that it was open to his Honour to approach the sentencing of the Applicant in this way, given the different ways in which an offender's mental condition may bear upon sentence, at times in a manner unfavourable to the offender.
Decision
32It is for the Applicant to demonstrate error in the approach taken by the sentencing Judge in the manner alleged in the first ground of appeal.
33Where it is said that an offender suffers from a mental condition or disorder, this may bear upon the question of sentence in a number of different ways, depending upon the circumstances of the case. As Gleeson CJ observed in R v Engert (1995) 84 A Crim R 67 at 69, it is erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances such as a mental disorder.
34Court decisions in this area have identified a number of ways in which the presence of a mental condition or disorder may bear upon the question of sentence. A helpful summary of these factors appears in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]:
"Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v R [2000] WASCA 203 ; (2000) 114 A Crim R 333 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:
· Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28].
· It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].
· It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].
· It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
· Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23]-[24]."
35In the present case, most experienced senior counsel appearing for the Applicant on sentence in the Supreme Court expressly disavowed the first factor and made no submission with respect to the third factor identified above. This is significant when findings are challenged on appeal to this Court. In Zreika v R [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at [79]-[81]:
"79 This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15].
80 There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. ...
81 The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13], [18]; Bayram v R [2012] VSCA 6 at [28]-[29]."
36The approach reflected in Zreika v R at [80]-[81] has been emphasised and applied by this Court, in circumstances where reliance was sought to be placed on appeal upon aspects of an offender's mental disorder which had been expressly eschewed by counsel at first instance: BT v R [2012] NSWCCA 128 at [20]-[26].
37The sentencing Judge made a finding (at ROS [10]) that the Applicant had consumed drugs before the murder and that, as a result, "his thinking was probably clouded and his judgment and self-control affected". This aspect did not assist the Applicant on sentence, being the product of self-induced intoxication.
38The Applicant did not give evidence at the sentencing hearing. Evidence which bore upon his mental condition, and its relevance to sentence, was based upon the report of Dr Adams, and the earlier report of Dr Sinclair relating to a different offence.
39Of course, the reports were to be considered in conjunction with other evidence concerning the Applicant's history of violent crimes, against the background of his age and his significantly chequered history of recidivism upon release from custody. Considerations of this type clearly lay behind the sentencing Judge's approach (at ROS [26]-[29]) (see [18]-[20] above).
40The approach adopted by the experienced senior counsel who appeared for the Applicant at first instance was understandable. This was very much a case of the type referred to in R v Engert and R v Wright (1997) 93 A Crim R 48, where an offender's mental condition could operate in a manner favourable and unfavourable to him.
41As senior counsel for the Applicant before Barr AJ conceded, the evidence did not support a submission that there was a causal connection between the Applicant's mental health and the offence. Nor was there evidence to support a submission that a custodial sentence would weigh more heavily on the Applicant because of his mental condition. No such submission was advanced at first instance.
42It should be observed, as well, that the Applicant's "well established pattern" of ceasing to take medication upon release combined with illicit drug use (ROS [26]) did not assist him on the issue of specific deterrence: R v Wright at 52; R v Henry [2007] NSWCCA 90 at [28]-[33]; Clay v R [2007] NSWCCA 106 at [20]-[28].
43It is appropriate now to turn to the Applicant's submission based upon observations made in Bugmy v the Queen.
44Mr Hamill SC submitted that the sentencing Judge fell into error in his approach to protection of the community (at ROS [27]) as a factor on sentence of the Applicant. The focus of the submission was that, in the context of a sentencing decision made in 2011, where a lengthy sentence was to be imposed, no reliable assessment could be made concerning the dangerousness of the Applicant in many years' time. Counsel pointed to the following passage from the judgment of Dawson, Toohey and Gaudron JJ in Bugmy v The Queen at 537:
"Although Brooking J clearly gave detailed consideration to the task he had to perform, it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term. The risk that the applicant might reoffend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of reoffending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty-five before the likelihood that he will reoffend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance."
45It is important to keep in mind that the sentencing Judge made the finding presently under challenge in the context of the relevance of the Applicant's mental condition to sentence. His Honour was prepared to accept (at ROS [27]) that the Applicant's mental disorder "may slightly lessen the need for a deterrent sentence", but went on to find that the Applicant's mental disorder gave rise "to a greater need to impose a sentence that protects the public from the prospect of further offences, such has been the readiness of the offender continually to re-offend", with the latter factor outweighing the former.
46It is well recognised that an offender's mental condition can operate in different directions on sentence, as Gleeson CJ emphasised in R v Engert.
47A fair reading of his Honour's remarks on sentence indicates that this was not a predominant factor on sentence. The slight lessening of a factor favourable to the Applicant was outweighed by a factor unfavourable to the Applicant. This was not a finding that a type of preventative detention was appropriate. As his Honour's observations during submissions (T18-19, 25 February 2011) and his remarks on sentence (ROS [29]) make clear, he was alive to the fact that a sentence disproportionate to the objective gravity of the crime could not be imposed.
48The protection of the community from an offender is one of the purposes of sentencing: s.3A(c) Crimes (Sentencing Procedure) Act 1999. Of course, this is but one of the purposes of sentencing which include, amongst other things, ensuring that the offender is adequately punished for the offence, deterring the offender and other persons from committing similar offences and the promotion of rehabilitation of the offender: s.3A(a), (b) and (d) Crimes (Sentencing Procedure) Act 1999.
49The purposes stated in s.3A are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law: Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 at 476-477; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 129 [20].
50Although it may be said that the longer the minimum term under consideration, the greater the difficulty in making a satisfactory prediction about the future progress of an offender and the danger which the offender would present to the community, it remains the responsibility of a sentencing Judge to take account of the need to protect the community, and to make an assessment of the material before the Court, including an assessment of the offender's prospects of rehabilitation: Bugmy v The Queen at 532 (Mason CJ and McHugh J).
51In Fardon v Attorney-General for the State of Queensland [2004] HCA 46; 223 CLR 575, Gleeson CJ observed at 589 [11]:
"As was pointed out in Engert [(1995) 84 A Crim R 67 at 68], people suffering from mental disorders frequently come into collision with the criminal justice system, and discretionary sentencing decisions must take into account a number of sometimes competing considerations, including the protection of society. The law is a normative science, and many of its rules and principles are based upon assumptions about volition that would not necessarily be accepted as accurate by psychiatrists."
52In the same case, Gleeson CJ noted at 589-590 [12]:
"The way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an almost intractable problem. No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release."
53The courts have recognised the imprecise nature of the process which involves an assessment of an offender's risk of reoffending, in particular where a lengthy sentence is to be imposed so that there is no prospect of the offender being released into the community at an early time. It has been emphasised that it is the risk of reoffending which is under consideration: R v SLD [2003] NSWCCA 310; 58 NSWLR 589 (special leave to appeal refused: SLD v The Queen [2004] HCA Trans 501); R v Johnson [2005] NSWCCA 186 at [13]; Knight v R [2006] NSWCCA 292; 164 A Crim R 126 at 141 [30]; Adanguidi v R [2006] NSWCCA 404; 167 A Crim R 295 at 309 [55]; R v Willmott [2012] NSWSC 824 at [30].
54This is not a case where an assessment of future dangerousness was made by the sentencing Judge solely or principally by reference to the circumstances of the crime itself: cf Ng v R [2011] NSWCCA 227 at [59]-[73].
55The Applicant stood to be sentenced for the crime of murder. A substantial sentence of imprisonment was inevitable, both by way of minimum term and full term.
56The statement in Bugmy v The Queen relied upon by the Applicant does not lead to the position where a sentencing Judge ought be reluctant to attempt an assessment of the risk of an offender reoffending at a future time. As the authorities have emphasised, it remains part of the responsibility of a sentencing Judge to have regard to this factor on sentence, although there is, of necessity, a significant element of imprecision to it.
57The Applicant was not a young offender. Nor was he a person with no prior involvement with the criminal justice system, who had committed a very serious crime (as in Ng v R).
58The Applicant was 34 years of age at the time of the offence and 36 years' old at the time of sentence. His criminal history revealed the commission of serious offences of violence over many years, with a range of sentencing options being utilised. There were breaches of conditional liberty, exemplified by breach of recognisance in 2000 and revocation of parole in 2004 and 2005.
59The Applicant's most serious crimes of violence were those most recently committed by him - malicious wounding in 2006 and murder in 2008.
60There was little in the psychiatric reports before the sentencing Judge which assisted the Applicant on the question of recidivism. The evidence pointed to an entrenched pattern of substance use and abuse.
61The sentencing Judge concluded that the Applicant had a "slight prospect of rehabilitation" (at ROS [28]).
62I detect no error in principle in his Honour's approach to sentence. An assessment concerning the Applicant's prospect of recidivism was a necessary part of the sentencing process. By March 2011, the Applicant had demonstrated an entrenched pattern of recidivism involving escalating crimes of violence, culminating in murder, the most serious crime of violence in our law.
63The assessment undertaken by the sentencing Judge involved consideration of what the Applicant had done in the past over a number of years, which was capable of shedding significant light upon his prospects for the future, even many years hence.
64As mentioned earlier, the sentencing Judge was considering this issue in the limited context of the relevance of the Applicant's mental condition to sentence. It was open to his Honour to form the view that the Applicant's mental condition "may slightly lessen the need for a deterrent sentence" but, at the same time, to conclude that the protection of the community given the Applicant's risk of reoffending, outweighed the favourable use of his mental condition on the issue of deterrence.
65In due course, his Honour fixed a head sentence with a non-parole period significantly less than the statutory ratio under s.44 Crimes (Sentencing Procedure) Act 1999. The aspects arising from the Applicant's mental condition contributed to the fixing of a non-parole period which allowed a significant opportunity to the Applicant by way of release on parole in the future.
66His Honour's approach reflects the process of instinctive synthesis to be undertaken on sentence, where the sentencing Judge identifies all the factors that are relevant to the sentence and then makes a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 131-132 [26].
67It has not been demonstrated that the process undertaken by the sentencing Judge, or the sentencing outcome itself, indicates that a disproportionate sentence was imposed because of the conclusion reached with respect to the Applicant's risk of recidivism.
68It was open to the sentencing Judge, in the exercise of discretion, to approach the issue of the Applicant's mental condition in the manner revealed in the remarks on sentence. No error has been demonstrated in this respect.
69I would reject the first ground of appeal.