Biddle v R

[2017] NSWCCA 128

Court of Criminal Appeal (NSW)|2017-05-17|Before: Hoeben CJ, Rothman J, Price J, Garling J

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Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2017-05-17

Before

Hoeben CJ, Rothman J, Price J, Garling J

Catchwords

[1936] HCA 40 Kentwell v The Queen [2014] HCA 37
252 CLR 601 Martin v R [2015] NSWCCA 6 McLaren v Regina [2012] NSWCCA 284 Muldrock v The Queen [2011] HCA 39
244 CLR 120 Mulvihill v R [2016] NSWCCA 259 Munda v State of Western Australia [2013] HCA 38

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Original judgment source is linked above.

Catchwords

[1936] HCA 40 Kentwell v The Queen [2014] HCA 37252 CLR 601 Martin v R [2015] NSWCCA 6 McLaren v Regina [2012] NSWCCA 284 Muldrock v The Queen [2011] HCA 39244 CLR 120 Mulvihill v R [2016] NSWCCA 259 Munda v State of Western Australia [2013] HCA 38

Judgment (3 paragraphs)

[1]

Solicitors: Legal Aid NSW - Applicant Solicitor for Public Prosecutions - Respondent File Number(s): 2009/137577 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Biddle [2011] NSWSC 1262 Date of Decision: 28 October 2011 Before: Garling J File Number(s): 2009/137577

[2]

Judgment

HOEBEN CJ at CL: Offence and sentence The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him in the Supreme Court on 28 October 2011 by Garling J.

His Honour was not satisfied that the applicant had shown true remorse. His Honour concluded that the evidence showed a person who felt very sorry for himself and because of his current predicament, was prepared to admit that he had made a "mistake" in killing his wife but who appeared to continue to advance excuses largely about his wife's conduct towards him, to explain his actions.
His Honour declined to make a finding that the applicant's assistance in the conduct of the trial should be taken into account as a mitigating factor. On that issue, his Honour said "There is no reason, in this case, to regard the conduct of Mr Biddle prior to trial, and during it, as meriting any lesser sentence because he has facilitated the administration of justice." (Sentence judgment, [85(f)]).
Having reviewed the evidence, his Honour assessed the objective seriousness of the offence. In doing so, his Honour said: "88 In making this assessment, and concordant with my understanding of Muldrock, I will not take into account the facts and circumstances relating to Mr Biddle's mental health, which I am persuaded amounted, within the meaning of the legislation, to "a substantial impairment by reason of abnormality of mind". 89 I should add for abundant clarity, that as I have said above at [79], I would not have been satisfied, on the balance of probabilities, that this substantial impairment was in any way causally connected to his conduct on the evening of 20 February 2009." (Sentence judgment)
Following that approach, his Honour assessed the criminality at "above the middle of the range". In reaching that conclusion, his Honour took into account that there was an element of premeditation, a weapon was identified, collected and taken to the homestead to be used, and entry was gained in a way to conceal his approach. His Honour took into account that the violent attack was perpetrated on an innocent, unknowing and defenceless woman in her own home who had done nothing which warranted criticism, let alone such a brutal attack. When she tried to escape, she was pursued and further assaulted in such a way as to make it clear that the applicant had an intention to kill.
In reviewing the applicant's subjective case, his Honour made the following findings.

His Honour found that until the applicant had engaged in his extra-marital affair he had been happily married to the deceased for approximately 41 years. They had a family of four children and many grandchildren. He was a man of good character. He was unlikely to offend again and had good prospects of rehabilitation.
His Honour made a finding of special circumstances for the following reasons: "108 Here, I am satisfied that I should make a finding of special circumstances as the law permits: s 44(2) Crimes (Sentencing Procedure) Act. The special circumstances arise here because of Mr Biddle's age, the present state of his mental health, including possible early signs of dementia, the fact that this is his first episode of imprisonment and his good prospects of rehabilitation." THE APPEAL Ground 1 - The sentencing judge erred in failing to take into account the applicant's mental impairment and intellectual functioning when assessing the objective seriousness of the offence.
The applicant submitted that in the sentence proceedings, his senior counsel submitted that his Honour was required to take into account his mental state when assessing the objective seriousness of the offence. The applicant submitted that by declining to do so, his Honour had erred. The applicant submitted that the decision of the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in Muldrock v The Queen demonstrated that error: "27 Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. … 54 The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community." [Footnotes omitted]
The applicant submitted that when considering the "nature of the offending", in [27] of Muldrock, this Court has determined that a judge is required to take into account all the fundamental qualities of the offence, including (where relevant) any mental condition which might affect objective seriousness and in particular, the moral culpability of an offender (Williams v R [2012] NSWCCA 172 per Price J at [40]-[43]; McLaren v Regina [2012] NSWCCA 284 per McCallum J at [25]-[30]; Elturk v R [2014] NSWCCA 61 per Beazley P at [33]-[35]; Martin v R [2015] NSWCCA 6 per Price J at [53]; Cowan v R [2015] NSWCCA 118 per Bellew J at [40] and [61]-[62]).
The applicant submitted that the weight of evidence made it clear that he was intellectually disabled at the time of the offence and accordingly, his mental condition should have been taken into account when assessing objective seriousness. He submitted that it was not possible to assess his moral culpability without having regard to the evidence of his mental condition. In that regard, the applicant relied upon his Honour's finding that he was suffering from "a substantial impairment by reason of abnormality of mind" at the time of the offence.
The applicant submitted that the effect of his Honour's approach to the assessment of objective seriousness was to restrict that assessment to the physical acts performed in carrying out the offence. That approach excluded from consideration evidence of any mental condition or intellectual impairment which might have contributed to or might have gone to explain the commission of the offence. The applicant submitted that this was a fundamental error in approach which requires this Court to set aside the sentence and to resentence him.
In further support of this ground, the applicant submitted that his Honour's approach to the medical evidence was erroneous so that his Honour's conclusion as to his mental state and IQ at the time of the offending cannot stand.
The applicant submitted that his Honour erred in assessing Dr Pulman's evidence of his intellectual functioning by dismissing the test results as due to the effects of depression. The applicant submitted that despite the evidence of Dr Pulman, his Honour had effectively discounted the IQ test results on an incorrect basis. The applicant submitted that his Honour's reasoning did not accurately reflect the totality of the evidence of Dr Pulman and the other medical experts.
The applicant relied upon the evidence of the medical experts as follows. Professor Greenberg had concluded that he did have an abnormality of the mind, namely cognitive impairment of the brain, which was probably present at the time of the offence. Dr Allnutt was satisfied that at the time of the offence, he had some degree of cognitive impairment, which was relatively mild and not consistent with mental retardation. Dr Nielssen was of the opinion that there was a substantial impairment in his capacity to control his actions.
The applicant submitted that while the expert witnesses, including Dr Pulman, expressed surprise at the low scores that he achieved on IQ testing, none of them said that the scores were unreliable. The applicant submitted that while his Honour was not bound by the expert evidence, he was not entitled to disregard it capriciously.
The applicant relied upon his Honour's finding that the substantial impairment was his reduced "capacity to control himself", that this was due to earlier meningoencephalitis and concurrent depression and that he had "lost proper control" when he attacked the deceased. The applicant submitted that these findings at [79] and [80] of the sentence judgment were inconsistent with his Honour's finding that his substantial impairment in his capacity to control himself, played no part in the commission of the offence.
The applicant submitted that if his Honour intended to reject the tenor of the expert evidence, he was required to give him an opportunity to address the issue and was required to articulate in any sentencing remarks a rational basis for rejecting that evidence (Goodridge v R [2014] NSWCCA 37 at [116]; Devaney v R [2012] NSWCCA 285 at [88]).
The applicant submitted that his Honour did neither of those things.
The applicant submitted that his Honour erred in assessing the objective seriousness of the offence at "above the middle of the range" because he excluded from his consideration evidence relevant to the applicant's mental condition at the time of the offence (impaired self-control) and intellectual functioning (impaired IQ). The applicant submitted that had those matters been taken into account, the objective seriousness of the offending should have been assessed at a lower level. Consideration
The proposition that an offender's mental health should be taken into account when assessing the objective seriousness of the offending is not without difficulty. There is a tension between what the High Court said at [27] and [54] in Muldrock v The Queen.
The position has not been assisted by the more recent observations of the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) in The Queen v Kilic [2016] HCA 48; 91 ALJR 131) where the Court said: "18 What is meant by an offence falling within the "worst category" of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the "worst category", it is beside the point that it may be possible to conceive of an even worse instance of the offence. … 19 Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty - as the offending was agreed to be here − a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the "spectrum" that extends from the least serious instances of the offence to the worst category, properly so called. …" [Footnotes omitted]
Despite those difficulties, it is clear that this Court has followed the approach that an offender's mental condition, which must impact upon moral culpability, is a matter to be properly taken into account when assessing the objective seriousness of an offence. A statement of that principle can be seen in the judgment of McCallum J (with whom McClellan CJ at CL and Bellew J agreed) in McLaren v Regina where her Honour said: "29 The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the "objective seriousness" of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing)."
Observations to similar effect were made by Price J (with whom Hidden and Schmidt JJ agreed) in Martin v R where his Honour said: "53 It is evident from these opinions that the applicant's mental disorders may have contributed to his offending. Although a specific submission was not made by the applicant's counsel on this issue, the focus of the applicant's case on sentence was his mental health. In my respectful opinion, the judge was obliged to expressly make some assessment as to whether the applicant's moral culpability for the serious crimes that he committed was reduced by his mental condition. In assessing the objective seriousness of the offences, her Honour did not make any reference to the applicant's mental health and erred in not doing so."
Those statements of principle have been approved in Elturk v R and Cowan v R.
An acceptance of the correctness of that approach does not establish the ground of appeal. His Honour expressly allowed for the possibility that the applicant's mental state might be relevant to an assessment of objective seriousness and explained why, if that were the case, it would not alter his assessment of objective seriousness. This was because his Honour found that the applicant's mental condition was not causally connected to the offending.
Accordingly for the applicant to make out this ground of appeal, he has to establish that his Honour's finding of the lack of any causal connection between the offending and the applicant's mental state was not open.
If factual findings are challenged on appeal to this Court, the applicant must demonstrate that the findings of fact were not open (Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [26]-[32]). Error must be shown before this Court will interfere in the sentence. Factual error may be demonstrated if there is no evidence to support a particular finding, if the evidence is all one way or if the judge has misdirected himself. This Court might disagree with his Honour's findings, but that is not sufficient. Without error being established, this Court has no power to substitute its own findings for those made by the sentencing judge (R v O'Donohue (1988) 34 A Crim R 397 at 401; AB v R [2014] NSWCCA 339 at [52], [59]).
In a carefully reasoned analysis, his Honour set out the basis for his findings. In relation to the results of the IQ test, this was carried out two years after the offending. Within that two year period, the applicant had become very depressed as a consequence of the offence, his continued incarceration and the loss of regular contact with his family. There was no issue that Dr Pulman opined that one cause of a low IQ score can be depression.
The evidence of Dr Pulman was: "Q. Why is that? A. It's important to examine a history or even the current episode or experience of depression because there can be an impact on the - the testing that I was about to undertake, in particular, the area of the speed with which they can think, their processing speed as we call it, and aspects of their memory which we call working memory which is what you can keep in your mind for a few moments while you're considering and thinking through issues. So you do see an impact from both depression, anxiety and also stress. Q. Did any of these matters impact on your results? A. There were - Q. In your opinion? A. There were some indications. There - when I looked at all facets of the components that comprise the intellectual assessment there were - or lower than - than perhaps what I would have expected, but working memory and processing speed were low as well and that could be due to the effects of depression and it could be due to other cognitive difficulties as well such as other neurological history or illness." (T.232.28)
His Honour also relied upon the contemporaneous observations of Dr Hatton. Although he was not a psychiatrist, Dr Hatton was the applicant's treating general practitioner and knew him well. He had carried out a mental health assessment (albeit a somewhat crude one) in 2005. More particularly, he had expressed an opinion in 2009 within days of the offending that the applicant "does not suffer from any psychiatric disorder … does in my judgment have the ability to form a rational judgment or to exercise will power to control physical acts in accordance with rational judgment".
It was open to his Honour to accept that opinion as accurate as to the mental state of the applicant at the time of the offending.
His Honour also noted that particular weight should be given to Dr Hatton's opinion because it was unaffected by any hindsight bias because of what subsequently occurred. It was unaffected by any of the effects on the mental state of the applicant consequent upon him having killed the deceased and having spent a considerable time in custody. It was well open to his Honour to accept that evidence in preference to opinions, albeit expert opinions, formed one to two years after the offence and based as they must have been to some extent, on hindsight.
The other basis for the applicant's attack on his Honour's factual findings was that his conclusion regarding the absence of a causal relationship between the applicant's substantial impairment and intellectual disability and the offending are inconsistent with his findings that the applicant had "lost proper control". This criticism is not made out.
Having stated his finding of the lack of a causal relationship, his Honour set out his reasons for so concluding at [80] of the sentence judgment. A proper reading of those reasons makes it clear that his Honour's finding at [80(f)] that the applicant had "lost proper control of his behaviour" was based on factors other than the substantial impairment suffered by him, i.e. the factors that his Honour had just listed.
Not only did his Honour provide a rational basis supported by the evidence for his conclusion, but that basis was consistent with the effect of the jury verdict which involved a rejection of the applicant's partial defence that his substantial impairment was sufficient to reduce liability from murder to manslaughter.
The submissions put on behalf of the applicant are analogous to those rejected in Alkanaan v Regina [2017] NSWCCA 56 where Harrison J (Payne JA and Schmidt J agreeing) said: "57 It is of course not sufficient for an appellant merely to assert what a sentencing judge should have found. It is trite to observe that views may vary even upon the same facts. A successful challenge to a finding of objective seriousness requires that error be established. House v The King (1936) 55 CLR 499; [1936] HCA 40 describes the types of error that will suffice. The assessment of the objective seriousness of an offence is definitively evaluative, so that differing outcomes within a range of acceptable tolerances is permissible."
The applicant's submission that his Honour's failure to bring to the attention of his counsel that his Honour proposed to reject a causal connection between the offending and his mental state involved a denial of procedural fairness, is not made out. As the applicant accepted in his written submissions at AWS 20 the issue of his mental health at the time of the offending and its effect on the offending was fairly and squarely in play. It was open to his Honour to accept or reject the submission provided his Honour gave adequate reasons, which his Honour did.
It is clear from the exchange between the Crown and his Honour in the sentence proceedings on 10 October 2011 at T.26 that the extent of and the effect of the "substantial impairment" on the applicant was important and that there was little agreement on that issue. In that regard, his Honour said: "HIS HONOUR: But that the jury were not satisfied as to the second limb of that partial defence namely that in all of the circumstances the culpability ought be reduced. But the making of that finding says not much at all about the actual operative extent, if I may use that expression, of the impairment on Mr Biddle's day to day function. And on that I didn't get the sense that there was much agreement between the mental health professionals."
In the course of the exchanges with counsel, his Honour made it clear that he regarded Dr Hatton as a very experienced country practitioner and that the assessments which he made of the applicant's mental health before the offence were important.
For those reasons, the submission asserting a lack of procedural fairness is not made out.
It follows from the above that his Honour's findings as to the extent of the applicant's substantial impairment, and the lack of a causal connection between it and the offending, were open to his Honour on the evidence. That being so, as his Honour said in the sentence judgment, even if he had taken into account his findings on that issue, when assessing the objective seriousness of the offending, it would have had no effect on that assessment. This ground of appeal has not been made out. Ground 2 - The sentencing judge erred in failing to take into account the applicant's mental impairment and intellectual functioning when assessing the applicant's subjective circumstances and in setting the sentence.
The applicant submitted that his Honour failed to take into account the applicant's intellectual impairment and the fact that the principle of general deterrence would have less influence as a result. Essentially, however, the applicant made the same submissions as had been made in respect of Ground 1, i.e. that it was not open to his Honour to discount the effect of the applicant's mental impairment and that a finding of reduced culpability should have been made. In making that submission, the applicant accepted that his Honour had specifically referred to the applicant's mental health when making a finding of special circumstances. Consideration
In Aslan v R [2014] NSWCCA 114 Simpson J (with whom Adams and McCallum JJ agreed) referred to the principles governing the effect of an offender's mental illness on sentence as follows: "33 ... Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: "[Principle 1] 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 ... [Principle 2] 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 ... [Principle 3] 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 ... [Principle 4] It may reduce or eliminate the significance of specific deterrence ... [Principle 5] 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 ... 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 ..." (internal citations omitted, italics added) 34 It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."
The applicant's moral culpability and the applicability of general deterrence (principles 1 and 2) have been addressed. Principle 1 and its inapplicability in this case has been discussed in relation to Ground 1. Principle 3, as was acknowledged by the applicant in submissions, was dealt with by his Honour in his finding of special circumstances.
His Honour's finding that the applicant was "unlikely to offend again and had prospects of rehabilitation" was a clear indication that his Honour did not include a component for specific deterrence in the sentence. Nor did his Honour find that the applicant's mental health presented him as a future danger to the community.
In Alkanaan v Regina, in respect of a similar ground Harrison J said: "109 … it is apparent that even though Mr Alkanaan suffered from some mental impairment or disability, his Honour did not consider that his moral culpability was thereby reduced. A lack of capacity to reason, as an ordinary person might, as to the wrongfulness of his or her conduct "will, in most cases, substantially lessen the offender's moral culpability for the offence": Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]. His Honour did not consider this to be such a case. His Honour considered that, even despite his low intelligence and mental illness, Mr Alkanaan had demonstrated an ability to live a relatively normal life. That finding was open on the evidence. 110 … it is equally apparent that his Honour did not consider that Mr Alkanaan's case was an inappropriate vehicle for general deterrence, despite his mental impairment or disability: Muldrock at [53]. … … 112 His Honour's conclusion, that deterrence of others should feature in Mr Alkanaan's sentence, despite his deprived background and the impact of his dreadful experiences upon his mental health, was open to him. His Honour's conclusion that Mr Alkanaan's moral culpability was not reduced by reason of his mental illness was in the circumstances of this case also open to him. Each conclusion followed from the nature of Mr Alkanaan's crime, which involved a shot to Mr Khanafer's head from a sawn off shotgun, in front of his family, upon the street outside his own home, during the afternoon, and in full view of other members of the community."
For these reasons, and for substantially the same reasons given in respect of Ground 1, this ground of appeal has not been made out. Ground 3 - The sentencing judge erred in finding that there was no reason to regard the conduct of the applicant prior to trial, or during trial, as meriting any lesser sentence because he facilitated the administration of justice.
The applicant submitted that s 22A of the Crimes (Sentencing Procedure) Act allows a court to impose a lesser penalty "having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise)". He submitted that the sentencing judge had erred in his finding that the applicant had done little to facilitate the course of justice.
The applicant identified issues which were conceded by the defence and which assisted the Crown:

The applicant submitted that although he was not entitled to a discount for a plea of guilty, it was wrong for his Honour to conclude that his conduct did little to facilitate the course of justice. Consideration
It is important to note that although his Honour referred specifically to this issue in the sentence judgment, no submissions were made on this matter by either counsel in the sentence proceedings.
The applicant's submissions go no higher than establishing the proposition that it was open to his Honour to allow a small discount for the forensic decisions made on behalf of the applicant, but he was not obliged to do so. That is particularly so when the precise nature of the concessions said to be made are examined. Most were beyond argument and would have been very easy to prove. The plea to the offence of manslaughter before the jury was no doubt intended to keep fairly and squarely before the jury the availability of a finding of manslaughter and the applicant's reasonableness in accepting the reality of what had happened.
The correct approach to the issue was considered by this Court in Mulvihill v R [2016] NSWCCA 259 at [26]-[264] where the Court (Ward JA, Beech-Jones and Fagan JJ) said: "260 Ground 11 contends that her Honour erred in failing to take into account the applicant's facilitation of the administration of justice pursuant to s 22A of the Sentencing Act. Section 22A provides: … 261 The written submissions in support of this ground were brief. They referred to the fact that during the trial a significant number of admissions were made in writing by the applicant and a number of witness statements were read without the need to call their authors to give oral evidence. In a written submission lodged after the hearing of the appeal, counsel referred the Court to the discussion of s 22A in RP v R (2015) 90 NSWLR 234; [2015] NSWCCA 215 at [88] to [97]. 262 The Crown's submissions were equally succinct. They noted that no submission was made to her Honour relying on s 22A and contended that appeals to the Court are not an occasion to "rehear a plea in mitigation on different bases" when no attempt is undertaken to "explain why the approach taken by a predecessor in the court below was erroneous or misguided" (citing Abdallah v The Queen [2016] NSWCCA 34 at [133]). 263 The Crown's contention should be accepted. The hearing on sentence was a substantial exercise which involved the adducing of additional evidence from the Crown as well from the accused, including evidence from a psychiatrist. Detailed written and oral submissions were made on behalf of the applicant and the Crown. At no time was any reliance placed on s 22A. The admissions document referred to was not insubstantial but it is not obvious that it caused any appreciable reduction in the length of the Crown case. The admissions that were made only reflected the evidence that the applicant gave on oath. Most significantly, if reliance had been placed on s 22A at first instance, her Honour would have been able to assess whether the matters to which the applicant now points truly did facilitate the administration of justice. As the trial judge, her Honour was best placed to do so. In circumstances where no submission relying on s 22A was made, no error has been established by her Honour not expressly addressing the provision. As stated by Davies J in RP at [96] (with whom Johnson J and Hamill J agreed on this point at [1] and [169] respectively): "… in the absence of any submission made to his Honour in relation to a reduction in sentence whether by dint of the application of s 22A or generally by the facilitation of justice for the way the trial was conducted, I do not consider there is any basis for holding that error has occurred on the part of the Sentencing Judge." 264 Ground 11 is rejected."
The same considerations apply here. This ground of appeal has not been made out. Ground 4 - The sentence is manifestly excessive.
The applicant submitted that the sentence was manifestly excessive, unreasonable or plainly unjust for the following reasons:

The applicant submitted that by reference to the Judicial Information Research System (JIRS), maintained by the Judicial Commission, only 19% of offenders received a sentence in excess of the applicant's head sentence of 27 years and only 27% of offenders were sentenced to a non-parole period greater than 18 years. The applicant submitted that although the statistical material was of only limited value, it showed that the sentence imposed on the applicant was in the high range for offences of this kind. Consideration
In Vaiusu v R [2017] NSWCCA 71 R A Hulme J (with whom Bathurst CJ and Beech-Jones J agreed) said in relation to a claim of manifest excess: "28 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55]. (a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. (b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. (c) It is not to the point that this Court might have exercised the sentencing discretion differently. (d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. (e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust. 29 To the extent that the applicant complains of insufficient weight having been given to the applicant's subjective case it must be borne in mind that matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25]. Further, as Button J observed in Hanania v R [2012] NSWCCA 220 at [33], "the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed"."
In relation to the specific matters relied on by the applicant - age, impairment of self-control, intellectual disability, provocation, good character, prospects of rehabilitation, first time in custody, and the facilitation of the course of justice - these were not only specifically identified and addressed by his Honour, but have been specifically considered in this judgment. In the sentence judgment, some were rejected outright such as provocation, impairment of self-control and the facilitation of the course of justice. The effect of others was significantly qualified. Age, good character, prospects of rehabilitation and the fact that it was his first time in custody were taken into account by his Honour in his finding of special circumstances and which was reflected in a substantial reduction in the ratio of the non-parole period to the head sentence.
The failure of the applicant to make out his challenge to his Honour's finding that the objective seriousness of the offending was above the midrange, constitutes a significant difficulty in making out this ground. This is particularly so when his Honour gave appropriate weight to the applicant's subjective case. In summary, the offence was committed in a context of a domestic relationship. General deterrence, community protection and denunciation in sentencing for domestic violence are considerations which are of considerable importance in the community at the present time. The observations of Wilson J in R v Archer [2015] NSWSC 1487 at [174] are apposite. "174 Sadly, it is rare that a week goes by in Australia without a woman somewhere in the country being murdered by her spouse or partner. … That is something of which we as a community should be ashamed, and which the courts must seek to address when sentencing offenders ..."
The observations of the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) in Munda v State of Western Australia [2013] HCA 38; 249 CLR 600 at [54] are to similar effect: "54 … To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. … 55 A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim …"
This ground of appeal has not been made out. Extension of time
The application for leave to appeal was well out of time. A Notice of Intention to Appeal was filed on 7 November 2011 by the applicant's previous solicitors, but nothing further was done to pursue the appeal. The applicant's present solicitors became involved in the matter in May 2016 and obtained an advice from senior counsel supporting an appeal against sentence in November 2016. The matter appears to have proceeded in an expeditious way since the present solicitors became involved.
In support of the extension of time application, there is an affidavit from the applicant's present solicitor, Mr Allport, affirmed 16 December 2016 and an affidavit from the applicant, affirmed 19 December 2016. In his affidavit, the applicant states that he lost contact with his former solicitors in 2011. He made an application for legal aid in October 2012 but that application was unsuccessful. He again applied for legal aid in March 2016. That application was successful and resulted in the application for leave to appeal coming before the Court.
The applicant's explanation for delay is that he lost contact with his solicitors in 2011 and did not receive any legal advice until his application for legal aid was successful in 2016. In his affidavit, the applicant says: "12 Before this most recent application, I did not know which way to go because I know nothing about the law. I had no help, no correspondence or guidance to put me on the right path. 13 I also have problems with my memory because of the meningoencephalitis that I previously suffered from. Things come back to me sometimes but I can't remember a lot of things. 14 I am 68 years old too, so age is against me as well. 15 I think I slipped through the cracks because I was oblivious about how the legal system works."
The Crown opposes an extension of time.
As was made clear in Kentwell v The Queen [2014] HCA 37; 252 CLR 601, when considering an application for an extension of time, the Court has to take into account the "interests of justice". This often involves looking at the merits of the substantive appeal. In this case, the application for leave to appeal against sentence did raise an important issue and the inability of the applicant to obtain legal advice between 2011 and 2016 adequately explains the delay. In those circumstances, I would grant the extension of time sought by the applicant. Orders
The orders which I propose are as follows: 1. Grant an extension of time for the bringing of the application for leave to appeal against sentence. 2. Grant leave to appeal against sentence. 3. Dismiss the appeal.
ROTHMAN J: I agree with orders proposed by Hoeben CJ at CL. Except as qualified hereunder, I also agree with his Honour's reasons.
In relation to Ground 4, manifest excess, the applicant must establish that the sentence imposed discloses error that is otherwise not able to be identified. In so doing, the applicant must be able to satisfy the Court that the sentence imposed is "plainly unjust" or "unreasonable".
I adopt, with respect, the analysis of Beech-Jones J to which Hoeben CJ at CL has referred. I add that the test to which I have referred is from House v R (1936) 55 CLR 499; [1936] HCA 40 at CLR 505 and is very long-standing.
Further, the goals and purposes of sentencing are set forth in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 at CLR 476 and in s 3A of the Crimes (Sentencing Procedure) Act 1999. They include the protection of society; general deterrence; specific deterrence; punishment; retribution; denunciation; and reform and rehabilitation.
If it is to be suggested that sentencing should include some factor to inculcate "shame" on society as a whole, then it is not in accordance with principle. Further, if it be suggested that sentencing should be utilised to impose societal changes, beyond that which is necessary for general deterrence, then, again, it is inconsistent with principle.
Alterations to societal behaviour and views, unless included in the notion of general deterrence, is a matter for government, not the judiciary. Sentencing of an individual is a very blunt instrument for the achievement of social reform.
Nevertheless, the applicant has not shown manifest error. The sentence is neither unreasonable nor plainly unjust and is within the range available for this offence and this offender.
As to the manner in which an impairment of mind or mental state may be utilised, I adopt, with respect, the comments of McCallum J, Harrison J and of Simpson J to which Hoeben CJ at CL has referred and which he has recited above.
In my view, there is no tension in the principles established by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. Nor is there tension between the reasons for judgment in Muldrock, supra, and The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48. There remains a distinction between the objective seriousness of an offender's conduct and the categorisation of the offence as a whole.
Further, factors peculiar to a particular offender are relevant to objective seriousness when those factors ameliorate culpability. Such may be the case in mental illness.
Whatever be the objective seriousness, mental illness will be a subjective factor that may ameliorate (or sometimes exacerbate) the need for punishment, the opportunities for reform and rehabilitation, the need to protect society and the appropriateness of the offender as a vehicle for general deterrence.
Whether or not one took account of the suggested mental impairment of this offender in either task, it would have made no difference to his Honour's result. In my view, no error has been identified and no error is manifest.
PRICE J: I agree with Hoeben CJ at CL.

Biddle v R

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