5. From today, 24 December 2010, the balance of the sentence is to be served by periodic detention to commence today and end on 20 July 2011, the first detention period to commence at 7:00pm on Friday 31 December 2010 and he is to report at that time to the Symonston Periodic Detention Centre, Mugga Lane, Symonston.

6. Mr Cooper is required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with the following conditions:

(a) a probation condition that he be under the supervision of an officer of ACT Corrective Services delegated by the Chief Executive or her delegate to supervise him for 18 months from today and obey all reasonable directions of that officer including as to treatment and counselling for anger management and his mental health; and

(b) a condition that he continue under the care of Dr Jennifer Thompson for at least 12 months or such lesser period as Dr Thompson considers therapeutically appropriate.

1. The appellant, Bradley Grant Cooper, was arrested on 14 January 2010 for having assaulted his former partner, the victim of the offence, by swerving a motor vehicle he was driving at a motor vehicle the victim was driving on 13 January 2010 and causing her fear that she would have a major accident in which she would be injured.

2. He appeared in the ACT Magistrates Court pleading not guilty on his second appearance but then entering a plea of guilty on 22 June 2010 and being sentenced on 29 October 2010. He was sentenced by the learned Sentencing Magistrate to nine months imprisonment to be released after serving six months, the balance of the term then being suspended with a good behaviour order for 24 months including a probation condition for 18 months.

3. Mr Cooper appeals from this sentence on the following grounds:

(a) the learned Magistrate placed inadequate weight upon the appellant's mental illness;

(b) notwithstanding the appellant's mental illness and contrary to law or principle, the learned Magistrate made the appellant a vehicle for general deterrence;

(d) the learned Magistrate made findings inconsistent with the evidence.

4. A statement of agreed facts was tendered. This is, of course, the basis on which the learned Sentencing Magistrate must approach the sentence. That is not to say that her Honour cannot make other findings about matters not contained in those facts, but ordinarily they would have to be consistent with them.

5. Briefly, Mr Cooper and the victim had been in a relationship which had ended. The victim left her work on 13 January 2010 from Fyshwick. As she was driving down Canberra Avenue, she saw Mr Cooper's car also travelling in the same direction. There was other traffic also on the road.

6. As she approached some traffic lights, the traffic in the lane in which Mr Cooper was travelling slowed so the victim's car had to pass Mr Cooper's car. As she did so, she looked over and noticed that Mr Cooper was driving the car. Mr Cooper then swerved his vehicle towards the victim, who was scared that this would cause her car to hit his and that there would be a major car accident. She swerved to the right, away from Mr Cooper's vehicle.

7. As she swerved, the victim saw that she was heading for a tree and had to swerve again. Fortunately no accident occurred.

8. In Ledson v Taylor [2010] ACTSC 42; (2010) 239 FLR 184, I set out (at [46]) the principles upon which such appeals are to be conducted. These were:

1. The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error.

2. In finding the facts, the appellate court is in as good a position as the lower court to decide the proper inferences to be drawn from the undisputed facts where no oral evidence is given in the court below, or the Trial Judge's findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the Magistrate, although, once having reached its own conclusion, must give effect to it.

3. The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the lower court.

4. A legal, factual or discretionary error may be found where the Lower Court, inter alia, has taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.

5. The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, given that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.

6. Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this is not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.

9. In Ross v Mothersole [2010] ACTSC 125, I noted (at [57]) that paragraph six was controversial and that it may not represent the law.

10. In Keen v Tither [2010] ACTSC 130, Penfold J held (at [44]) that the authorities pointed to the following principles instead:

(c) If error is found, the appeal court may exercise the sentencing discretion afresh and re-sentence the appellant, unless the appeal court in the exercise of its discretion concludes that no different sentence should be passed. That conclusion is clearly open where specific error is found.

(e) Three descriptions of cases in which a sentence may be replaced by an appeal court are found in the authorities, being:

(2) where the sentence is outside the appropriate range; and

(3) where some other sentence is appropriate or, in New South Wales, "warranted in law".

(f) That is, another sentence may be appropriate or warranted in law even if it is neither outside the appropriate range nor manifestly excessive.

11. While (f) may need some further articulation in the light of what Kirby J called "the strong resistance that exists against appellate 'tinkering' with sentences" in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at 341), and while I am not convinced that the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW) have merely codified the common law, requiring me instead to pay regard to the statutory provisions in this jurisdiction (see per Gleeson CJ and Hayne J (at 324) in Dinsdale v The Queen), I accept that these statements more accurately articulate the principle than did the form of the sixth principle that I set out in Ledson v Taylor.

12. I also note that under s 216 of the Magistrates Court Act 1930 (ACT), the execution of the sentence imposed on Mr Cooper has been stayed and that attention will need to be paid to this when disposing of the appeal.

13. Mr Cooper was arrested on 14 January 2010 and appeared in the Magistrates Court the next day. The proceedings had been adjourned to 27 January 2010 when he entered a plea of not guilty. He had been charged with both dangerous driving (contrary to s 7 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) punishable by 100 penalty units or 1 year imprisonment on both) and common assault (contrary to s 26 of the Crimes Act 1900 (ACT), punishable by 2 years imprisonment). Bail appears to have been refused. On 22 January 2010, the Supreme Court granted him bail. There were several more adjournments until, on 22 June 2010, Mr Cooper pleaded guilty and a Pre-Sentence Report was ordered.

14. The matter came on for sentencing on 2 September 2010. By this time the dangerous driving offence had been discontinued. The Pre-Sentence Report was received. An adjournment was sought on behalf of Mr Cooper because of some matters in that Report. Mr Cooper had been seeing a psychiatrist who had expressed to his lawyer her concerns about a risk of self-harm by Mr Cooper.

15. Mr Cooper's counsel sought an opportunity to have a report from the psychiatrist available on sentence for it would, perhaps more importantly, set out that there appeared to be a problem underlying Mr Cooper's behaviour of which the court should be informed.

16. The learned Sentencing Magistrate expressed some scepticism about that, saying:

I don't know that I would be greatly assisted, looking at his past criminal history and the number of opportunities that he's had to undertake some sort of rehabilitation in relation to his violence, because it's just extraordinary that at his age, with eight prior convictions of violence, the man is now thinking, "Maybe there's something wrong with me".

17. That is at best a curious approach to receiving evidence from a professional who may be able to provide evidentiary material that would importantly inform the sentencing discretion.

18. It was also wrong because Mr Cooper had apparently successfully completed an anger management course to address his behaviour and of which there was verified confirmation in the Pre-Sentence Report.

19. In any event, the prosecution agreed "that a report does need to be prepared" and the adjournment was granted.

20. The matter returned to court on 29 October 2010. The psychiatric report which had been obtained was tendered and read and the sentence imposed is noted above (at [2]).

21. The report of the psychiatrist was tendered without objection. No application was made to cross-examine the author of the report. The author stated she had read and agreed to be bound by "the District Court Code of Conduct". That is probably sufficient but, of course, the relevant code is the Expert Code of Conduct under Magistrates Court Practice Direction 1 of 2004. No point was taken about this. The author had significant qualifications in forensic psychiatry and experience in the Prison Medical Service.

22. The Report set out a personal history that had some differences from that described in the Pre-Sentence Report. I am not able to say whether that was a result of Mr Cooper dissembling, or because of the greater information that can flow from the therapeutic relationship that a psychiatrist will build with a patient compared to the rather formal relationship that is possibly inevitable with a probation officer preparing a Pre-Sentence Report that must include some judgmental material.

23. It did also detail, however, matters not addressed in the Pre-Sentence Report, in particular, his prior relationships with women. There were three. The first ended when he found his partner in bed with another man, and, it appears as a result of his violence to her at that time, he was sentenced to a term of imprisonment. The second was with the victim, a relationship which was described as "disastrous" for it was said she was "mercurial" and she and Mr Cooper developed a "love-hate interdependent relationship", both being "physically attracted to each other but emotionally conflicted, with numerous rows". At one stage, the victim had slashed the tyres or Mr Cooper's car and she was charged with malicious damage. She had also been violent to him, resulting in a split lip. As to the third, they were just friends and were only corresponding over the Internet at this stage.

24. The report referred particularly to his fear of prison. It said:

He feels terrified of returning to the prison. He would lose everything and eventually would have to start again with increasing debts. He feels he has put in a great effort and he would have to start again. He used to focus at work on the future, and now he focuses on getting through day by day. He is making little progress and receives no joy from life at present.

Acts of violence witnessed in prison worries him; then getting out of prison would worry him as he has no supports in the community and would have to make a new start.

25. The report concluded that he was suffering from Chronic Anxiety and Major Depression and related these to the Diagnostic and Statistical Manual IV (DSM - IV - TR) of the American Psychiatric Association.

26. The report was clearly in the nature of a forensic report but did not detail the treatment Mr Cooper was receiving from the psychiatrist. It did say he had been prescribed an "antidepressant or anti-anxiety agent", apparently Mirtazepine.

27. The report further addressed some specific questions which appear to have come from the letter of instruction sent to the psychiatrist by Mr Cooper's lawyers. The first two were:

1. Is Mr Cooper currently suffering any mental illness or condition?

He is not suffering from a mental illness. He is suffering from depression and anxiety.

2. Was Mr Cooper suffering from mental illness or condition at the time of the alleged offence?

He is suffering from depression and anxiety. He was angry and had difficulty controlling his anger.

28. The answer to question one was repeated in the answer to question six as follows:

6. Is Mr Cooper suffering from a mental illness or condition for which treatment is available in a hospital?

No. He is not suffering from a mental illness. He is suffering from depression and anxiety.

Treatment is available in hospital but it is unlikely to qualify for admission as these conditions are usually treated in the community.

29. It did, however, set out a treatment plan consisting of the following elements:

• Continue to resolve his issues. If in prison he should see a psychologist regularly

• If in prison he should be offered work in prison to be able to relate to the officers and be occupied

• If sentenced to community service this should be done to allow him to continue to work full-time

• If given a suspended sentence he should complete anger management groups with a service such as Mancare or comply with all requirements of Probation and Parole

30. The report was, perhaps, not as helpful as it might have been. It did not contain any prognosis and did not consider in any particular depth the relationship between the psychiatric condition from which Mr Cooper suffered and the offence he had committed.

31. It did, however, clearly indicate that he would be particularly adversely affected by imprisonment and that there were treatments that were sensible for him to undertake.

32. Both the psychiatrist's report and the Pre-Sentence Report set out the personal background to Mr Cooper. He was born, raised and went to school in Canberra. The Pre-Sentence Report described "an unremarkable upbringing, untempered by domestic violence or alcohol abuse", though the psychiatric report did refer to "some violence in the home, mainly from father ... father used to physically belt him with a belt, often when he was not at fault. Enough for him to realise he does not want to be like his father".

33. He left school at age 15 and completed an apprenticeship as a glazier at 18. He is now employed as a plant operator, having had employment also as a backhoe operator, truck driver and steel fixer. His employer confirmed his employment.

34. He is currently in debt and experiencing financial difficulties. Prison would clearly exacerbate that position.

35. He started drinking alcohol when he left school. A little later it "got out of hand" but he ceased use by age 18. He resumed social drinking at the weekends, though he stated he now "rarely" drinks alcohol. He has clearly been able to control his former alcohol abuse.

36. He has begun to use cannabis to relieve his stress, particularly over the criminal proceedings he is facing. He has been counselled by Directions ACT. He has also attended an anger management for men course which he completed in 2007.

37. He has a long and depressing criminal history. It includes a number of assault charges and he was sentenced to a suspended term of imprisonment for assault occasioning actual bodily harm in 2005. It appears this was committed on his first partner. He was sentenced to prison in 2007 and again in 2008, in both cases for offences that included assaults.

38. He appears to have been released in about September 2009 and, until these offences, had not been in trouble with the law since then.

39. The Pre-Sentence Report did express the view that he showed little remorse for the offence, though he did say, rather naively, that he intended only to frighten the victim and not cause her actual injury. The psychiatric report, completed later and after some counselling, did state that he has expressed shame for what happened. He had read the Victim Impact Statement which had, it was reported, affected him.

40. A Victim Impact Statement was tendered. It unsurprisingly stated how seriously the incident had affected her.

41. In it the victim did acknowledge that she and Mr Cooper "[d]uring the relationship... had our problems" and she stated that she decided "it would be best for [her] if [they] parted company".

42. She also expressed her ongoing fears of Mr Cooper which led her to change her job, where she had been very happy and, as a consequence, lose some close friendships she had made there. It was not entirely clear to me why one would have to lose friendships just because one changed jobs.

43. She stated she took steps to "change my routine ... to avoid the possibility of [Mr Cooper] finding [her]".

44. On 29 October 2010, as I have noted, the psychiatric report was tendered and relied on by Mr Cooper's counsel.

45. His counsel conceded that the offence was serious, as indeed it was. It potentially could have resulted in death, a regrettably common result of motor vehicle collisions. The use of motor vehicles as, effectively, a weapon is to be strongly deplored and met with appropriate severity by the courts.

46. He referred to "extra curial [sic] punishment" inflicted when the bail conditions imposed by the Supreme Court had prevented him from entering Queanbeyan where he had lived in premises for which he was still required to pay rent.

47. Mr Cooper's counsel put emphasis on the material in the psychiatric report referring to the fact that he had now been prescribed medication for the underlying problem which he had now recognised.

48. The learned Sentencing Magistrate expressed some scepticism about the report, noting that it disclosed that she had seen him on only three occasions for 90 minutes. His counsel said that he was certain that he had seen her for more time than that for therapeutic purposes but no further details were forthcoming either on sentencing or on this appeal.

49. The learned Sentencing Magistrate asked about the supervision following the most recent imprisonment and was told that because he had returned to this Territory, no supervision was provided. Nevertheless, the Pre-Sentence Report did record, after the author had confirmed the information, that he had undertaken an Anger Management Course.

50. Mr Cooper's counsel submitted that, now Mr Cooper was under professional care, an opportunity should be given for him to show that he could benefit from that. He noted that he had overcome his alcohol problem and that, with the benefit of support from his psychiatrist, he expected to be able to overcome his aggressive tendencies to violence.

51. The prosecutor submitted that the seriousness of the offence meant that imprisonment was the only option. Reference was made to the unprovoked nature of the assault, designed for no better reason than to frighten the victim. It was a dangerous act, not only to the victim but also to all road users. It was suggested to be an offence of "a mid-range level of objective seriousness".

52. Reliance was placed on Mr Cooper's criminal history and previous "hope" held out for his reform. Of course, he cannot be punished twice for his criminal record, though it is relevant on sentencing: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.

53. The prosecutor submitted that he had been given a number of opportunities to reform. While that is so, and the court cannot necessarily continue to extend leniency or construct sentences that emphasise rehabilitation without end, each sentence has to be tailored to the particular circumstances of each case. Failure to reform in the past does not necessarily disentitle an offender from further opportunities to reform, though it may be necessary to have a higher threshold of certainty that the proposal is likely to be successful, assessing the offender's commitment, the motivation for doing so, and the quality of the reformative process, such as the effectiveness of the course, the professionalism of the provider and the like.

54. The prosecutor further commented on his prior imprisonment. She said:

The defendant has been given a number of opportunities to reform his behaviour. He's been given an opportunity on several occasions to undergo counselling and the previous leniency afforded to him in terms of suspended sentence have not deterred him. Going to prison has not deterred him from committing further offences.

The defendant has not been deterred by imprisonment, by suspended sentences and by being given the opportunity to reform his behaviour. And it was within that context that I would say that there is no other option except for imprisonment in this case. This conduct has to be - there has to be denunciation and as well the protection of the community.

55. I do find such a submission somewhat curious. It amounts to saying that imprisonment has not deterred so more imprisonment must be imposed to deter. Of course, where short periods of imprisonment have not deterred, longer periods may be more effective in that regard, though proportionality is an important sentencing principle. In addition, sometimes the courts have no alternative save to imprison an offender, even where previous imprisonment has not deterred, but then the purpose of the imprisonment is not so much to deter but to punish and, of course, that is a perfectly proper purpose of punishment.

56. Nevertheless, deterrence is always an important consideration for it has the intention of influencing future behaviour and thus not only punishing and denouncing past behaviour but also intending to protect society by preventing future crime. In this, however, it has the same aim as rehabilitation; whereas deterrence tends to use "the stick" to achieve that purpose, rehabilitation is reformative, addressing the causes or the symptoms of offending behaviour.

57. In sentencing, the learned Sentencing Magistrate briefly summarised the facts. In doing so, however, she made reference to Mr Cooper's car being parked in Canberra Avenue, perhaps with the implication that he was waiting for the victim's car to pass.

58. The problem was that this fact was not asserted in the agreed statement of facts. On appeal, my attention was drawn to the original police statement of facts. This included that information and also some other material that was not part of the agreed statement of facts which, indeed, was quite adverse to Mr Cooper.

59. The reference to this fact caused Mr Cooper's counsel to interrupt the learned Sentencing Magistrate, and the following exchange too place:

The facts in this matter, and they were agreed facts, are that after the relationship with [the victim] ended she was driving home on the afternoon of Wednesday 13 January in Fyshwick and she saw the defendant in a car. It was parked - or they were stopped at one stage fairly close to each other. And I will not go through the whole statement of facts, but the defendant apparently swerved - - -

MR SAEEDI: Sorry, your Honour. Does your Honour have the same document?

MR SAEEDI: The statement of facts that I have appears to have - - -

HER HONOUR: There's an agreed statement of facts that I'm reading from.

HER HONOUR: She was travelling at about 70 to 80 kilometres an hour. She sped up in the traffic in the right-hand lane. The traffic slowed. She was required to pass the defendant's vehicle. As she was in line with the defendant's vehicle she looked over and saw that he was the driver and, in fact, that he was her ex-partner. This is the agreed statement of facts that was tendered on the last occasion.

MR SAEEDI: It is, your Honour, but I didn't understand - I may have misheard your Honour that the car was parked on the side of the road. But it wasn't - - -

HER HONOUR: No, no, no, I didn't say it was parked on the - I said they came - well, if I said parked, I take that back. It wasn't parked.

60. It was of concern that in the agreed statement of facts there was no reference to Mr Cooper's car being parked (or stopped) and that could not reasonably be concluded from it. On the other hand, there was an express reference to that fact in the police statement of facts. It is not clear why the police statement of facts would be on the court file; it may have been left there following a bail application. In any event, it was included in the Appeal Book and I saw it and agree that it was different, in at least these respects, to the agreed statement of facts and did not include material prejudicial to Mr Cooper not contained in the agreed statement of facts.

61. Her Honour then completed a summary of the facts and noted his plea, though not made at the earliest opportunity. She noted that the actions of the Mr Cooper were dangerous.

62. She noted that he had had a problem with alcohol in the past and, despite express references in both the psychiatric report and the Pre-Sentence Report to the fact that he no longer drinks, a fact relied on by Mr Cooper's counsel to show his capacity to rehabilitate himself, her Honour curiously commented "whether he still does or whether he does not - who knows". She did, however, refer to the Pre-Sentence Report, which, understandably, relied on self-report and added "but I can only accept what's said in the Pre-Sentence report".

63. Her Honour referred to Mr Cooper's record and prior imprisonment. Her Honour then commented:

Now it would, in my view, be a gross miscarriage of justice if a defendant with either prior convictions for violence, some of which he's served sentences of imprisonment, escaped a sentence of imprisonment for his ninth. And his record affords him very little leniency if no leniency.

64. It is unclear what her Honour meant when she referred to "a gross miscarriage of justice". A miscarriage of justice occurs when a sentence is imposed that is infected by error. A sentence is, as the High Court made clear in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 (especially at 611), a result of the sentencer taking account of all of the relevant factors involved. There is not a linear calculation based on one factor, his prior record, which determines the result. Not to take into account relevant factors would, itself, be a miscarriage of justice.

65. The learned Sentencing Magistrate acknowledged that Mr Cooper could not be sentenced for his prior offences but, correctly, commented that it "can certainly be looked at to see whether or not he has indeed been deterred or whether he's learnt anything from the punishments and the dispositions that have been imposed upon him".

66. Her Honour then noted that the law had a protective as well as a punishment role.

67. Her Honour then referred to Mr Cooper's release from prison and his risk of re-offending. She said:

It would have been obvious to anybody that somebody who has spent time in prison for assaults would, four months after release from prison on his eighth conviction for assault, commit within such a very short period of time yet another assault. So obviously he doesn't have much insight into the consequences of his behaviour or if he does he behaves in that way anyway.

He is a medium risk to re-offending. I would probably disagree with that assessment in the pre-sentence report. I regard this defendant as being a high risk of re-offending.

68. The reference to the offending four months after his release is an error. The offence was committed on 13 January 2010, but Mr Cooper had been eligible for parole on 4 September 2008 and apparently was released shortly after that date. Her Honour may have been referring to the date on which the sentence expired, which was 4 September 2009. This error appears to have affected her rejection of the assessment in the Pre-Sentence Report of his risk of re-offending.

69. Her Honour then referred to the completion by Mr Cooper of the anger management course and his attendance on the psychiatrist. She was somewhat dismissive of the psychiatric report, saying that defendants:

...cannot expect to escape the consequences of their behaviour by the preparation, pretty much at the 11th hour, of the psychiatric report or report from a psychiatrist to the court and there is nothing in that report which correlates his criminal behaviour to his mental condition.

People like the defendant can't expect to escape the consequences which must follow their criminal behaviour simply by the presentation of a report that says the defendant suffers from depression.

There's been no compelling evidence that has been presented to me to suggest that there is a link between depression and criminal behaviour and the factors that I have to take into account are relevant.

70. Her Honour then held that it was not possible that the report "could outweigh and distort all the other relevant sentencing principles". That, too, is a curious statement. The sentencer must take proper account of all relevant factors and the law then properly applied to them makes it a proper sentence.

71. Her Honour found that Mr Cooper had no remorse. Sentence was then imposed. Her Honour added that she regarded him to "have poor prospects for rehabilitation".

The learned Magistrate place inadequate weight upon the appellant's mental illness.

Notwithstanding the appellant's mental illness and contrary to law or principle, the learned Magistrate made the appellant a vehicle for general deterrence.

72. It is convenient to consider these grounds together.

73. Mr Cooper's counsel, Ms T Warwick, submitted that the learned Magistrate had been dismissive of the report because it was prepared late in the proceedings.

74. One difficulty for Mr Cooper is that the ground of appeal was framed in terms of mental illness but the psychiatrist had expressly denied that Mr Cooper suffered from a mental illness. She had, however, diagnosed him with severe and recognisable conditions and these were clearly what Mr Cooper was relying on in these grounds of appeal.

75. While the formulation of the grounds was at least careless in the light of the evidence, that they had to be read more broadly did not seem to prejudice the respondent. In her submissions, presented by Mr T Hickey, she noted the absence of a "mental illness" but did include submissions about how to take a mental condition into account.

76. I note that in R v Skura [2004] VSCA 53, Eames JA (with whom Buchanan JA agreed) said (at [8]):

A disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence but the onus was on the applicant to demonstrate that it did so in this case, by establishing that its effect reduced the seriousness of the offences and the moral culpability of the applicant.

77. Similarly, Maxwell P said in R v Sebalj [2006] VSCA 106 (at [21]):

... [it would] detract from the utility and flexibility of the propositions set out in Tsiaras if there were to be undue focus on the classification of the particular condition, that is, on whether or not it was a recognised psychiatric illness of one kind or another... What matters in any given case is not the label to be applied to the psychiatric condition but whether and to what extent the condition can be shown to have affected the offender's mental capacity at the time of the offence and/or at the time of sentence.

78. Often terms have been used when identifying the mental condition which must affect the sentencing process, such as "mental incapacity" (R v Wright (1997) 93 A Crim R 48 (at 50-1), "cognitive defects" (R v Morton [2010] NTSC 26; (2010) 27 NTLR 114 (at [50]), "mental disorder, or abnormality or an impairment of mental function" (R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (at [5]).

79. The question to be addressed, then, was, in the words of Maxwell P, "whether and to what extent the condition can be shown to have affected the offender's mental capacity at the time of the offence and/or [sic] at the time of sentence". That it was not a "mental illness" did not mean it should not be considered.

80. Thus, her Honour erred in her approach that the question as to whether there was a causal link between the mental condition of which he had been diagnosed and the offending behaviour was the only relevance of his mental condition. In Cotter v Corvisy (2008) 1 ACTLR 299, I set out (at 313) the ways in which a mental condition was relevant to sentence. I listed four ways:

1. as causally connected to the offending behaviour;

2. as reducing the weight which general deterrence should have on sentence;

3. as affecting the kind of sentence to be imposed; and

4. as moderating the sentence because it "will weigh more heavily" on the offender.

81. In this case, there was no evidence about the first of these matters on which the court could rely and nothing seemed relevant in relation to the third.

82. Clearly there was some evidence about the fourth matter. While prison is, and should be, something that an offender finds unpleasant, the effect on Mr Cooper somewhat exceeded the norm. That does not dictate a particular outcome but it must be taken into account.

83. As to the second, this is more problematic. There is no doubt that depression, particularly major depression, can be a mitigating factor. It was so held in R v Howell [2007] VSCA 119; (2007) 16 VR 349 where (at [20]) a "major depressive episode of mild - moderate severity" was held in the circumstances of that case to be mitigating.

84. Nettle JA (with whom Ashley and Redlich JJA agreed) commented (at [20]),

As was explained in Verdins, impaired mental functioning may reduce the offender's moral capability in any number of ways, including, without limitation, if it has the effect of impairing the offender's ability to exercise appropriate judgment or make calm and rational choices, or if it makes the offender disinhibited, or if it obscures the offender's intent to commit the offence.

85. I note the express reference to "without limitation".

86. It was, perhaps, a pity the learned Sentencing Magistrate was not favoured with the detailed psychiatric assistance that is sometimes provided in these reports. See, for example, Twigden v Centrelink [2010] SASC 154.

87. In R v Verdins, the Victorian Court of Appeal referred (at [14] to [22]) to a number of decisions which addressed the issue of moderating general deterrence. The decision included statements such as:

(i) R v Yaldiz [1998] 2 VR 376 (at 381): "general deterrence is not eliminated but still operates, sensibly moderated".

(ii) R v Mooney (1978) 2 Crim LJ 351 (cited in R v Anderson [1981] VicRp 17; [1981] VR 155 (at 160)): "A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community".

(iii) R v Wright (at 51): "But, if the offender acts with knowledge of what he is doing and the knowledge of the gravity of his actions, the moderation need not be great".

(iv) R v Engert (1995) 84 A Crim R 67 (at 72): "Human sympathy would say: 'Well, you would not expect him to get the same sentence as someone else'".

88. Of course, much, but not all, of this is because the mental condition aims to reduce moral culpability. In R v Verdins, the court identified (at [26]) the relevant factors, in the following way:

Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of:

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(f) contributing (causally) to the commission of an offence.

As we have said, this is not to be taken as an exhaustive list.

89. In R v Verdins, the court reformulated the principles about the affect of mental conditions on sentencing. The court said (at [32]):

Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of the sentence, or both.

The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

90. These are issues with which the sentencer, faced with a report such as that provided for Mr Cooper, must grapple. That it comes at the "11th hour" is irrelevant. If it is a valid professional assessment then, despite the frustration that a sentencer may feel at the delay its acquisition has caused, it must be addressed in the way that the principles of sentencing in such cases as this require.

92. That, of course, does not mean that in the particular case presented by Mr Cooper, her Honour was required to ignore or give no weight to general deterrence, as it still had a role to play but its role had to be recognised in the context of all the evidence and its correct evaluation.

93. It seems to me that her Honour failed to address these issues and allowed her concern for the seriousness of the offence and Mr Cooper's record to cause her to fail to address this issue.

94. Having said that, if the failure to take proper account of Mr Cooper's mental condition did not result in an inappropriate sentence, then the ground will not be made out.

95. It seems to me that a fair assessment of the report provided showed a number of things. It showed that the effect of imprisonment on Mr Cooper would be likely to be more severe than on others. The report stated:

In my opinion, if returned to prison he will be suicidal and will need good preventative observation. I would request, if he is sentenced to prison, that this report be forwarded to the relevant prison authorities.

Cooper v Corvisy

At a glance

Court

Decision date

Before

Source

Judgment (244 paragraphs)

Cooper v Corvisy (No 2) [2010] ACTSC 166 (24 December 2010)

Parties

Legislation Cited (8)

Cases Cited (10)