Doolan v R

35. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person…

36. A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence… 18 Clearly, the first of those factors, the contribution of the mental illness to the commission of the offence, is relevant here. So is the second, the moderation of the consideration of general deterrence, although his Honour did not expressly refer to it. As to the third factor, there does not appear to have been any evidence about the likely impact of imprisonment on the applicant. I do not think that the fourth factor, the danger which the offender might present to the community, is a matter of concern here. It is true that the applicant has a history of non-compliance with medication regimes and his Honour was guarded about her prospects of rehabilitation. Nevertheless, her criminal history contains no offence of this character and, as I have said, the psychiatric report suggests that she has developed some insight into her psychiatric condition since being in custody. 19 His Honour referred to R v Henry [1999] NSWCCA 107. This was not the well known guideline judgment delivered by a five-judge bench, reported at (1999) 46 NSWLR 346. It was the separate judgment in which the Crown appeal in Henry's case was allowed. In respect of an offence of armed robbery and a separate offence of robbery in company, taking a minor summary offence into account, Henry was sentenced to concurrent terms of imprisonment for five and a half years, comprising a minimum term of three and a half years and an additional term of two years: see the judgment of Simpson J, with whom all the members of the bench except Hulme J agreed. 20 His Honour in the present case observed that there were "some distinctions" which reduced the applicant's criminality to a level less than that of Henry and of her co-offender, Ms Bennett. He went on to point out the differences between the applicant's case and that of Ms Bennett, but did not expressly deal with the distinction between her case and that of Henry. This is significant because his Honour does appear to have used the Henry sentence as a guide or yardstick and, in all probability, that is how the sentence of four and a half years imposed upon the applicant was arrived at. 21 Yet there were marked differences between the applicant's criminality and that of Henry. As I have said, Henry was being dealt with for two separate robbery offences. In addition, he was on conditional liberty of one form or another at the time of both of them. Allowing for the moderation which this Court exercises when re-sentencing on a Crown appeal, it does not appear to me that the disposition of Henry's case could be of any material assistance in determining the appropriate sentence for the applicant. 22 As it happens, the applicant's sentence sits squarely in the four to five year range of sentence propounded in the guideline judgment in Henry at [162] - [165]. It is appropriate to look to that guideline judgment for assistance in cases of robbery in company, an offence dealt with in the same provision in the Crimes Act as armed robbery and carrying the same maximum sentence. Of the characteristics of a typical case set out by the Chief Justice at [162], it could not be said that the applicant was a "young offender with no or little criminal history" or that the offence involved "limited, if any, actual violence". Indeed, given the amount of violence involved, this offence could be seen as significantly more serious than the typical armed robbery the subject of the guideline. 23 On the other hand, the applicant's role in the offence could fairly be described as subordinate to that of Ms Bennett and the contribution of her mental illness was a significant factor. In so saying, I am mindful that his Honour found it to be not the only factor and that her ingestion of alcohol and drugs had its part to play. In all the circumstances, I am persuaded that the sentence fails adequately to reflect her subjective case and, in particular, the relevance of her mental illness to her culpability for the offence and to considerations of deterrence. I think that some adjustment of the sentence, albeit modest, is required. 24 We received an affidavit of the applicant in the event that she was to be re-sentenced. It discloses that she has been undertaking educational courses in custody, that her behaviour has been satisfactory, and that she has been undergoing psychiatric treatment and drug and alcohol counselling. 25 I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court and, in lieu, I would sentence the applicant to imprisonment for three years and nine months, comprising a non-parole period of one year and nine months and a balance term of two years, to commence on 3 March 2005. She would be eligible for release on parole on 2 December 2006. 26 HALL, J: I have had the advantage of reading the judgments of McClellan, CJ. at CL. and of Hidden, J. in draft. I respectfully adopt Hidden, J.'s account of the facts and issues arising on this appeal. 27 In the written and oral submissions of Mr. Craigie, SC. on behalf of the applicant, it was submitted that the evidence as to the existence of a mental illness at the time of the offence and a causal relationship between the illness and the offence was not appropriately reflected in the formulation of the sentence or in an appropriate sentencing outcome (Ground 1 of the appeal). 28 In addition, it was contended that the sentence was manifestly excessive by reason of an error in approach said to have occurred in the course of the sentencing judge's consideration (Ground 2). It was contended that such an error supports the conclusion that the sentence exceeds that which was appropriate at law and in the particular circumstances. 29 In the course of his oral submissions, Mr. Craigie correctly observed that the learned sentencing judge made a number of findings in relation to the issue of mental illness and its causal relationship with the offence but contended that such findings were not sufficiently reflected in the outcome of the sentence. This, it was submitted, disclosed error. 30 It was further argued that there were more than sufficient grounds for a significant differentiation between the criminality of the applicant and that of her co-offender, even before taking into account the factor of mental illness. It was contended for the applicant that his Honour did not adequately differentiate on this account. 31 The sentencing judge's remarks on sentence contain extensive consideration of the medical evidence bearing upon the applicant's mental state and, in particular, the nature and extent of the contribution which the appellant's mental state made to her involvement in the offence. In this respect, extensive reference was made to the evidence of Dr. Barbara Sinclair, forensic psychiatrist, and no criticism has or could be made in respect of the discrete findings his Honour made based upon that evidence. 32 I do not consider that, his Honour having made a detailed analysis of the medical evidence, and having made appropriate findings, then failed to properly evaluate such matters in determining the appropriate sentence. It is clear that his Honour had regard to the maximum penalty for the offence and to the sentence that was imposed upon the applicant's co-accused on 15 July 2005. In this latter respect, reference was made by his Honour to the existence of a number of factors, which distinguished the applicant's situation from that of her co-offender, some of which related to her objective involvement and some to the subjective features of the case. 33 I consider that his Honour correctly proceeded, inter alia, by reference to the relevant findings made concerning the appellant's mental state and with due regard to the sentence imposed upon her co-offender, to determine the sentence imposed being one which was in the range of sentences appropriate for the case. 34 I respectfully agree with what has been stated by McClellan, CJ. at CL. that the serious nature of the offence, taken in context, but also with due regard to the applicant's psychiatric illness, nonetheless required a sentence that marked the gravity of the crime and that a term of imprisonment comprised of a non-parole period of two and half years with a balance of term of two years was within the range of possible sentences for the offence. 35 I, accordingly, agree with McClellan, CJ. at CL. that the applicant should be granted leave to appeal but that the appeal should be dismissed. 36 HALL, J: I have had the advantage of reading the judgments of McClellan, CJ. at CL. and of Hidden, J. in draft. I respectfully adopt Hidden, J.'s account of the facts and issues arising on this appeal. 37 In the written and oral submissions of Mr. Craigie, SC. on behalf of the applicant, it was submitted that the evidence as to the existence of a mental illness at the time of the offence and a causal relationship between the illness and the offence was not appropriately reflected in the formulation of the sentence or in an appropriate sentencing outcome (Ground 1 of the appeal). 38 In addition, it was contended that the sentence was manifestly excessive by reason of an error in approach said to have occurred in the course of the sentencing judge's consideration (Ground 2). It was contended that such an error supports the conclusion that the sentence exceeds that which was appropriate at law and in the particular circumstances. 39 In the course of his oral submissions, Mr. Craigie directly observed that the learned sentencing judge made a number of findings in relation to the issue of mental illness and its causal relationship with the offence but contended that such findings were not sufficiently reflected in the outcome of the sentence. This, it was contended, disclosed an error. 40 It was further argued that there were more than sufficient grounds for a significant differentiation between the criminality of the applicant and that of her co-offender, even before taking into account the factor of mental illness. It was contended that his Honour did not adequately differentiate on this account. 41 The sentencing judge's remarks on sentence contain extensive consideration of the medical evidence bearing upon the applicant's mental state and, in particular, the nature and extent of the contribution which the appellant's mental state made to her involvement in the offence. In this respect, extensive reference was made to the evidence of Dr. Barbara Sinclair, forensic psychiatrist and no criticism has or could be made in respect of the discrete findings his Honour made based upon that evidence. 42 I do not consider that, his Honour having made a detailed analysis of the medical evidence, and having made appropriate findings, then failed to properly evaluate such matters in determining the appropriate sentence. It is plain that his Honour had regard to the maximum penalty for the offence and in light thereof to the sentence that was imposed upon the applicant's co-accused on 15 July 2005. In this respect, reference was made to the existence of a number of factors, which distinguished the applicant's situation from that of her co-offender, some of which related to her objective involvement and some to the subjective features of the case. 43 I consider that his Honour correctly proceeded, by reference to the relevant findings made concerning the appellant's mental state and with due regard to the sentence imposed upon her co-offender, determined a sentence which was in the range of sentences appropriate for the case. 44 I respectfully agree with what has been stated by McClellan, CJ. at CL. that the serious nature of the offence, taken in context but with due regard to the applicant's psychiatric illness, nonetheless required a sentence that marked the gravity of the crime and that a term of imprisonment comprised of a non-parole period of two and half years with a balance of term of two years was within the range. 45 I, accordingly, agree with McClellan, CJ. at CL. that the applicant should be granted leave to appeal but that the appeal should be dismissed. **********

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