Consideration
28The applicant submitted that the sentencing judge failed to apply the principles relevant to sentencing offenders with a mental illness. He relied in particular upon the statements in The Queen v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported) as to the principles to be applied when sentencing offenders whose mental illness at the time of the offending was such as to provide a defence of insanity although the defence was not relied upon. It is appropriate to set out the passages upon which the applicant relied:
"On a plea of guilty a sentencing juge is precluded from passing sentence on any basis inconsistent with the conclusion that the offender is legally responsible for the crime to which he has pleaded guilty.
How, then, is a trial judge to sentence an offender who adduces evidence in support of a plea in mitigation to the effect that he was mentally ill at the time of the commission of the offence?
In sentencing generally it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor, which should often be given very little weight ... because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than what the offender's responsibility for the offence should be regarded as having been reduced." (per Young CJ)
"In the present case, a defence of insanity probably could have been made out on Mooney's behalf. That defence not having been taken, the Court could not deal with him upon the basis that a disease of the mind had so affected his reason that he did not know that he was doing, or that what he was doing was wrong ... The sentencing court, however, must proceed upon the basis that the offender has accepted legal responsibility for his offence, either by plea or verdict. His mental condition, and in particular the possibility that his mental condition in the future may be different from that existing at the time of the offence, remain significant in the determination of what is an appropriate course to be adopted in relation to him as an individual and to the protection of the community from him and from those who might be disposed to imitate him.
In my opinion Mooney was, at the time when he was sentenced, an inappropriate person to be made the medium of a deterrent sentence. Moreover, since public sentiment is of significance in this area of the law, I think that sensible people well informed as to the facts would have held that view." (per Lush J)
"... [A]n evaluation of the offender's moral responsibility for his crime is always required in the exercise of the sentencing discretion." (per Jenkinson J)
29A similar approach was taken by this Court in Engert, to which the sentencing judge referred. In Engert, Gleeson CJ stated, at [71], that:
"... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."
30The applicant makes no complaint in respect of his Honour's approach to questions of personal or general deterrence. Although the remarks in Mooney that a mentally ill offender is not an appropriate medium of a deterrent sentence were not directly applied, the applicant accepted that the primary judge's findings on deterrence operated in his favour. The applicant contended, however, that his Honour wrongly applied other sentencing principles, including those discussed in Mooney and Engert, in relation to offenders suffering from a mental illness. In particular, the applicant submitted that his Honour erred in rejecting the applicant's mental illness in his assessment of the objective seriousness of the offence. The applicant contended that although his plea of guilty precluded his mental illness from absolving him of criminal responsibility, it could be used to demonstrate his significantly impaired state of mind at the time of offending which, on his submission, informed both objective criminality and moral culpability.
31The question of what is meant by moral culpability in the sentencing process and whether the assessment of the objective seriousness of the offence is to be assessed without regard to an offender's mental state at the time of the offending was considered in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The High Court there observed, at [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." (citations omitted)
32The Court had earlier stated, at [27]:
"Section 54B(2) and (3) [of the Crimes (Sentencing Procedure) Act] 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." (emphasis added)
33In McLaren v Regina [2012] NSWCCA 284, McCallum J (McClellan CJ at CL and Bellew J agreeing), in considering this passage, stated:
"27 The appellant contends that his Honour's conclusion may now be seen to have entailed error in that the decision in Muldrock renders impermissible any consideration of the applicant's state of mind in assessing the objective seriousness of the offence at hand.
28 In my view, that submission misconceives the effect of the decision in Muldrock. The phrase 'objective seriousness' in Muldrock at [27] ... refers specifically to the definition in s 54A(2) of the Act as to what a 'standard non-parole period' denotes. That is the "concept" referred to in the previous sentence of that paragraph. The point there made by the High Court, as I would understand it, is that there is no sense in attempting to place the offence at hand (with all its features, including matters personal to the offender where relevant to an assessment of the nature of the offending) at a point along a purely hypothetical range which, of its nature, is ignorant of those matters.
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)."
34Her Honour's analysis is, respectfully, not only correct, but aptly captures the relevance of moral culpability in the sentencing process.
35It follows, in my opinion, that the sentencing judge in this case erred in determining that the applicant had waived his right to have his mental illness considered as a causal factor in the commission of the crime.
36That is sufficient itself for the grant of leave to appeal. Whether the appeal should be allowed requires the Court to determine, in accordance with the Criminal Appeal Act 1912, s 6(3), whether some other sentence is warranted in law and should have been passed. Before considering that question, reference should be made to grounds 2 and 3 of the appeal.