Counsel for the applicant submitted that the sentencing judge erred by not reducing the weight to be given to specific and general deterrence because of the applicant's tragic and compelling subjective circumstances, but rather his Honour gave particular weight to those two factors. Counsel submitted that in sentencing the applicant his Honour had to reduce the weight given to general and specific deterrence. Counsel submitted that his Honour did not explain how his findings about the applicant's mental illness, intellectual disability, disadvantaged background, and youth and immaturity could be reconciled with his Honour's findings that the sentence must reflect general and specific deterrence, without moderating the weight given to them.
[2]
The Crown's submissions on the appeal
The Crown submitted that reading the sentencing judge's Remarks fairly and as a whole, the judge was not in error in finding that general and specific deterrence still had work to do in sentencing the applicant and that those findings were not inconsistent with the weight his Honour gave to the applicant's strong subjective case and his Honour's careful consideration of the other purposes of sentencing.
[3]
Determination
One of the authorities counsel for the applicant relied on was R v Engert (1995) 84 A Crim R 67, in support of the submission that the applicant was not an appropriate vehicle for general deterrence and it was an error to find otherwise. It is worth noting what Gleeson CJ said Engert:
"Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238 as follows:
' … protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.
A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise."
and
"On behalf of the applicant, it is submitted that his Honour should have paid regard, or greater regard, to a series of cases dealing with the circumstances in which a mental disorder suffered by a person being sentenced may produce the result that considerations of general deterrence are of less importance than they might otherwise be. There was a stage in counsel's submissions when they could have been interpreted as involving the proposition that a person suffering from a mental disorder is, on that account, entitled to a discount when being sentenced. The remarks made at the commencement of these reasons for judgment are intended by way of a response to that proposition.
The circumstance that an offender suffers from a mental disorder may well be of considerable relevance in a number of respects to the sentencing task. One of those respects, depending upon the facts and circumstances of the individual case, may relate to the matter referred to by this Court in the case of R v Scognamiglio (1991) 56 A Crim R 81. At p 86 the passage in a judgment of the then Chief Justice of Victoria was cited with approval. That passage was in the following terms:
'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 little weight.
…
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.'
Similarly, in R v Letteri (unreported, Court of Criminal Appeal, NSW, 18 March 1992) Badgery-Parker J said:
'The principle then is clear enough. It is correctly stated as follows; that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.'
In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 McClellan CJ at CL set out the now well recognised principles as follows (citations omitted):
"[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner:
Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.
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.
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.
It may reduce or eliminate the significance of specific deterrence.
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."
Counsel for the applicant submitted that it was mandatory for Judge Haesler SC to have reduced the weight he gave to general and specific deterrence in sentencing the applicant. As De La Rosa and Engert make clear, it is a discretionary consideration.
A fair reading of his Honour's sentencing remarks show that his Honour was well aware of the multiple aspects of the applicant's tragic and compelling subjective circumstances and took them into account. His Honour was also required, in properly performing his role, to have regard to all the purposes of sentencing, which are:
"(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
(s 3A Crimes (Sentencing Procedure) Act 1999 (NSW)).
I do not consider that his Honour's sentencing remarks, including [74] and [94], where he specifically referred to specific and general deterrence, lead to the conclusion that his Honour placed particular and inappropriate weight on general and specific deterrence in sentencing the applicant. His Honour had a difficult sentencing exercise where the objective seriousness of the offending and the consequences of one offence for a member of the community were in tension with the applicant's youth, disadvantaged background and diagnosed mental health conditions and intellectual disability. The applicant has not demonstrated that his Honour erred in the exercise of his sentencing discretion in such a complex, difficult case.
[4]
Orders
Therefore I would propose the following orders:
1. Leave to appeal be granted.
2. The appeal be dismissed.
[5]
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Decision last updated: 01 December 2023
His Honour assessed the objective seriousness of the police pursuit offence on 29 December 2021 as a serious example of the offence. He said given the time of day, the distance involved, the speeds reached relative to the posted speed limits, the driving out of lanes, the fact that many people were put at risk, the offence was a gross breach of the proper use of a motor vehicle and the Road Rules. Police and others were put at risk. The action showed a "high degree of moral culpability; that can only be reflected in a sentence of some length".
His Honour said the offence of driving whilst disqualified on 29 December 2021 showed contempt for the orders of the court and the Road Rules.
His Honour assessed the police pursuit offence of 29 January 2022 as he had the earlier police pursuit offence.
In assessing the seriousness of the dangerous driving offence, his Honour had regard to the guideline judgment of Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 343. By reference to the guideline judgment his Honour took into account that the applicant was young, the victim was a stranger to him, there was no injury to the applicant or his passenger, the plea of guilty was early but the evidence against him was overwhelming. His Honour said the applicant also put a number of people at risk, given the speed. He took into account that the applicant was, by his own admission, intoxicated with illicit substances; his driving was aggressive and erratic; he exposed others to risk, ignored warnings as he was escaping police pursuit, and despite multiple opportunities to stop, he failed to do so. His Honour said this was a serious example of this type of offence. He accepted submissions from both parties that the dangerous driving offence fell within the middle of the range of objective seriousness (although it was not an offence with a standard non-parole period prescribed). His Honour noted that he was dealing with an aggravated form of the offence.
His Honour said the offence of not stopping and rendering assistance after an impact did not lead to a police investigation being compromised or the charge of dangerous driving being avoided, nor could death have resulted from the failure to stop and assist. His Honour considered it was another example of the applicant's "complete lack of concern for others".
Of the assault of a police officer his Honour noted the assault was a kick and "Penalties must be proportionate to the crime committed, but when police are assaulted courts must… attempt to deter this offender and others from similar offending".
His Honour said of the Form 1 matters of 29 December 2021 that they formed part of the facts already taken into account and as they would generally result in fines, they would not add significantly to the penalty for the matter for sentence. He said of the Form 1 matters for 29 January 2022 "there must be some increase in sentence to recognise the need for personal deterrence and retribution for the crime for sentence". His Honour noted that the applicant had taken and destroyed a friend's car (the take and drive conveyance offence), and the cleaver was not used, was just found in the car, but should never have been carried.
His Honour stated "the objective seriousness of every one of his offences for sentence is so high that custodial sentences must be imposed for each of them".
Subjective circumstances
Judge Haesler SC took into account the following aspects of the applicant's subjective circumstances.
Near the beginning of his Remarks on Sentence his Honour said:
"It is also clear from the material before the Court that the matters that led up to the commission of these offences and the background of the offender are… 'desperately sad'.
In many respects, both the juvenile and adult justice systems have failed [the applicant] and the community. Rather than allowing him, during his time in custody, the opportunity for improvement and rehabilitation, he has been subject to traumatic incidents, including sexual assaults. He has not had any opportunity to learn from or appreciate consequences of his actions. As a result on release he has, almost immediately, fallen in with criminal associates, and returned to crime. He has not been in a position to take up any assistance that was offered to him."
The applicant is an indigenous man who has been unable to engage in his culture because "most of his short life [has] been spent in custody." His Honour noted that he had, since very young, experienced multiple traumas and adverse childhood experiences. In his childhood he witnessed his mother's drug use and violence towards his father. The sexual assaults he experienced, the developmental trauma he suffered, and his adolescent traumas were all taken into account and "given full weight."
Family members introduced the applicant to drugs when he was 11. He spent most of his teens in and out of juvenile detention. He is institutionalised. He has rarely attended school and when he did, he struggled academically. There was an indication the applicant cannot read or write. He has never worked.
He was sexually assaulted in juvenile detention at 14 and has not been able to access Victim Services.
He has used "copious amounts of drugs during his young life" and never engaged in any form of rehabilitation. His Honour said the applicant's early use of drugs was understandable given his history and family history. That he was affected by drugs during the second incident made him more dangerous to himself and others. His Honour took into account that the applicant was taking buprenorphine to deal with his drug use.
A Justice Health psychiatrist, Dr Gerald Chew, reported that the applicant's multiple diagnoses included schizophrenia, intellectual disability, ADHD, ODD, depression, personality disorder, a substance use disorder, chronic problems with self-harm, and a long history of heroin, methylamphetamine and Xanax abuse. Dr Chew said the applicant's multiple psychological and psychiatric symptoms were in the context of developmental trauma including sexual assault. In a psycho-social assessment Ms Rebecca Assaf said multiple traumas had helped to form the applicant's identity and his meaning system was ruptured. She said given his intellectual cognitive deficits, he would require considerable assistance, including trauma treatment and trauma-informed psychological programs.
Judge Haesler SC said the applicant's mental illnesses and conditions impacted on his moral culpability. He also noted he was young and immature (being 21 at the time of the offences and 22 when sentenced). His Honour said the applicant's youth and cognitive, emotional and psychological immaturity reduced his moral culpability, his "blameworthiness". His Honour said his personal circumstances, capacity to reason, and lack of education other than in detention or custody, "effectively means that he does not fully appreciate the wrongness of his actions or has the capacity to control his actions". His Honour said that background must be given "full weight".
His Honour said "A person with a background such as this offender will have fewer emotional or other resources to guide his decisions. Although that does not mean he does not bear responsibility for his actions": R v Millwood [2012] NSWCCA 2 at [69]. His Honour said the applicant's background "has compromised his capacity to mature and learn from experience. Those matters do not diminish over time and will be given full weight": [92].
His Honour noted that the applicant's criminal history indicated that his present offending was not uncharacteristic or an aberration, but rather demonstrated his continuing disobedience of the law. His Honour noted that the applicant's Children's Court matters included two police pursuit offences and he then committed offences of reckless driving and driving while disqualified. He had a history of being in juvenile detention and prison and being released on parole. He had most recently before the offences for sentence been released on parole on 13 December 2021. His Honour considered the fact that the applicant committed the offences while on parole as an aggravating circumstance.
His balance of parole continued until 5 March 2023. His Honour commenced the sentence he imposed from 2 April 2022, one month after the applicant was arrested on 2 March 2022 and taken into custody.
His Honour said in terms of remorse, the applicant had:
"…little concern for himself, let alone others. I do not think he understands how serious his offending was, but that is partly a product of his cognitive deficits and the trauma he has suffered. He did, however, accept responsibility at the very earliest, and he is aware of the consequence of his actions. I will take those matters into account."
His Honour took into account the applicant had had a difficult time in custody. He was in the Special Management Unit, his file was marked "under threat", and he had served most of his time in custody subject to Covid restrictions.