GN v R

The Applicant's Intellectual Functioning and Likelihood of reoffending 47Tendered to his Honour were a probation and parole pre-sentence report dated 9 March 2011, a psychological pre-sentence assessment report prepared by a psychologist retained on behalf of the Crown (Mr Baird) and a report from a forensic psychologist retained on behalf of the applicant (Dr Collins). Some older reports and material concerning his intellectual functioning were also tendered. 48It is necessary to consider this material in some detail having regard to four issues: (i) the level of his intellectual function; (ii) the connection, if any, between any impairment in his intellectual functioning and his offending behaviour; (iii) the likelihood of his reoffending; and (iv) the rehabilitative options that were said to be available. 49In relation to the first issue, Mr Baird stated that the material recorded that the applicant was on "the lower extreme of intellectual functioning" and was "functioning in the mildly delayed ability range". 50Dr Collins had access to some recently completed intelligence testing. She described the testing and its outcome as follows: "[GN] completed the Wechsler Abbreviated Scale of Intelligence (WASI) on 7 July 2010, which is a brief, four-tasks intelligence test that is broken into two tasks testing verbal and non verbal skill areas. The verbal scale assesses language, comprehension, word knowledge and the capacity for verbal abstract reasoning, whilst the non-verbal scale is measured by visual-spatial reasoning and visual-motor ability. On the verbal scale, [GN] achieved a score that places him within the extremely low range of ability, out performing less than the bottom 1% of the normative sample for his age. His score on the non-verbal scale was contrastingly higher, falling in the borderline to below average ability range, outscoring the bottom 8% of the normative aged sample. The disparity between these two scores meant that it is inappropriate to give an overall assessment of [GN's] intelligence. He presents with low non-verbal skills but impaired verbal competence. The results highlight that he is a generally low functioning individual which is consistent with his personal history and presentation and interview. He is considered to meet the criteria of an intellectual disability on the basis of these results." 51In relation to the second issue, Mr Baird identified a number of what he described as "dynamic factors" that it appeared had played a role in the applicant's offending history. He identified a sexual "curiosity" regarding children, an elevated sex drive and social isolation. He added: "The extent to which [GN's] intellectual limitations contribute to impulsivity regarding his sexual urges around children and poor problem solving regarding satisfying his needs should be explored further in a treatment setting. Finally, it may be important to explore, in a treatment setting, the contribution to [GN's] sexual offending, of his own sexual abuse when he was younger." 52Dr Collins did not specifically address the existence of any connection between the applicant's intellectual impairment and his offending behaviour. However, the following conclusion in her report appears to exclude any such connection: "It seems to be a combination of his own abuse experiences and perhaps the confusion this has created regarding intimacy, in addition to the disinhibiting effect alcohol has upon his behaviour that exacerbates sexual deviance and the underlying sexual interest in children for [GN]." 53Counsel for the applicant pointed to a statement in Dr Collins' report that he was "able to articulate the understanding of lack of consent in children, but only to a superficial extent" as suggestive of a causal connection between his impairment and his offending behaviour. However the reference to his inability to "articulate" a matter needs to be considered in the context of the disparity between his verbal and non-verbal ability that Dr Collins explained in the extract set out above. Dr Collins' report did not suggest that the applicant's intellectual impairment affected his ability to control his actions or appreciate that they were wrong. 54At its highest this material suggested only a weak connection between his intellectual impairment and his offending behaviour. 55Third, both psychological reports assessed the applicant's prospects of re-offending. His Honour described both reports as "essentially" coming to the same conclusions. Mr Baird described his "overall general risk level" as "Moderate-High" which rose to "High" in the circumstance that he was living with children and not the beneficiary of "sex offender specific treatment". Dr Collins concluded: "On the basis of the current assessment, [GN] presents an overall moderate-high risk of sexual recidivism. Risk will be highest in relation to his development of future relationships with partners who have children, given the repeated pattern of such behaviour." 56Fourth, both sets of psychologists suggested that if he received a custodial sentence he would need to be assessed by "custody based sex offender program staff" to determine a suitable treatment program. Mr Baird suggested that he would be more suited to the "Self Regulation Programme" rather than a program which catered for offenders with intellectual disabilities. He added that the applicant would "need a non parole period of between 12 and 18 months to complete the "Self Regulation Program". Dr Collins also suggested that he should be assessed. She stated that his behaviour "should moderate following intervention, pending his potentially good treatment progress". As noted, Mr Baird only considered that the absence of specific treatment would lead to a moderate to high risk of recidivism being elevated to a high risk.

Other Findings 57I will briefly note a number of findings made by his Honour. 58First, his Honour found that the applicant was genuinely remorseful. 59Second, his Honour heard and accepted evidence from the applicant that there are difficulties with his incarceration including his having been assaulted. 60Third, the applicant gave evidence that he was taking tablets to restrict his sex drive. I assume his Honour accepted that evidence. 61Fourth, having regard to the evidence of the victim to the effect that she had been abused on earlier occasions and the statements that had been made to her by the applicant, his Honour concluded that the offence was not an isolated occurrence and that the applicant was not entitled to any leniency on that account. 62Fifth, his Honour noted that the victim suffered physical pain during the incident, that it was a serious form of intercourse and that there were clearly psychological consequences for the victim. In accordance with s 28 of the Sentencing Procedure Act his Honour received a statement from the maternal grandmother of the victim. It appears that the victim now lives with her grandmother. She described a number of adverse changes in the victim's behaviour including that the victim was now more "wary of people, particularly males", appeared to be suffering from anxiety and had become withdrawn. Whereas previously she was a compliant child, she had become more emotional and easily moved to tears. She experienced poor sleep patterns and nightmares. 63Annexed to that statement was a letter written by the victim on 16 October 2010 to her mother. It describes her anguish at being separated from her mother and her siblings. It seems that she had been taken from them and placed with her grandmother. Distressingly, she blames herself for that having occurred. She wrote that, if she had not disclosed the applicant's conduct, she might be still living with her mother and siblings. In describing this, his Honour found, "as sad a picture as it paints, the physical and mental harm are I believe of no greater substantial harm than would normally occur to a 10 year old sexually molested by her step-father". 64This finding needs to be put in context. His Honour was required to characterise the harm in that manner because it would have been erroneous to take into account a characteristic or consequence of the offence, which even though not an element of the offence, is likely to be reflected in the maximum penalty and any applicable standard non-parole period (see R v Koloamatangi [2011] NSWCCA 288 at [25] per Basten JA and cases there cited). In this case, the maximum penalty for the offence is a sentence of life imprisonment. The standard non-parole period is 15 years. Such penalties comprehend very serious consequences for the victims and others if the provision is contravened. The circumstances of this case amply demonstrate that. 65Sixth, overall his Honour characterised the offence "at the mid range of the seriousness of this offence." Ground 2(ii) of the appeal complained that in doing so his Honour impermissibly strayed from considering only "the nature of the offending" (Muldrock at [28]) and had regard to the fact that the applicant was still the subject of a bond under s 9 of the Sentencing Procedure Act at the time he committed the offence. This can be accepted but his Honour's overall characterisation of the seriousness of the offence was still correct.

Further Evidence 66At the hearing of the application an affidavit from the applicant was read on the basis that the Court would consider in the event that it proposed to resentence the applicant. He describes being abused and assaulted by other inmates who suspect (correctly) that he is a sex offender. He describes brief contact with his mother and how he misses his family. He has undertaken some wood-working courses. He states that he has seen the "mental health lady" once and is taking anti-depressants and blood pressure medicine. He states that he wants to undertake a "Sex Offenders' Program" but it is his belief that it is not available at the gaol at which he is detained. 67An affidavit from a solicitor for the Crown was also read on the appeal on the same basis. Based on her inquiries it appears that the applicant undertook a "Problem Solving Program" for people with disabilities in 2010. He attends Alcoholic Anonymous meetings every second week and has completed a "Work Readiness Course". The affidavit confirms that he has been recommended for the "Preparatory Sex Offenders' Program" which is available at his current gaol and the "Self Regulation Sex Offenders' Program". He is on a waiting list for the latter program. When a place becomes available he will be transferred to the gaol which administers that program. It is not stated how long that will take.

Intellectually Impaired Offenders 68The applicant sought to draw support from Muldrock in four respects. First, he relied on Muldrock to establish that his Honour erred in the approach that was adopted to the standard non-parole period. Second, he relied on the discussion in Muldrock as to the approach to be adopted in sentencing offenders who suffer from an intellectual disability. Third, he relied on the reasoning in Muldrock for the overturning of this Court's failure to find "special circumstances" in that case. Fourth, he relied on the reasoning in Muldrock for quashing the head sentence of nine years on the basis that it was manifestly excessive (Muldrock at [60]). He contends that his circumstances were sufficiently similar to warrant a conclusion that a lesser sentence was "warranted in law". 69I have already accepted the first contention and will now address the second issue. In describing the approach to be taken towards offenders who suffer from an intellectual disability the High Court in Muldrock stated (at [53] to [55]): "53.... One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this [citing R v Mooney (unreported, Supreme Court, Vic, Full Court, 1 June 1978)]: "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." In the same case, Lush J explained the reason for the principle in this way: "[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. 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." 54The principle is well recognised [authorities cited]. 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 [citing R v Engert (1995) 84 A Crim R 67 at 71]. 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. 55In this case, there was unchallenged evidence of the causal relation between the appellant's retardation and his offending in the reports of Dr Muir and Ms Daniels. The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant [citation omitted], much less to use him as a medium by which to deter others from offending." 70The unchallenged evidence of Dr Muir and Ms Daniels was material suggesting that the appellant in Muldrock had little or no control over his actions due to his mental retardation (Muldrock at [40] to [41]). 71One of the cases cited in [54] of Muldock as recognising the relevant principle was R v Engert (1995) 84 A Crim R 67. The second sentence of [54] cites the judgment of Gleeson CJ in Engert at 71. At 71 his Honour stated, inter alia: "Similarly, in Letteri (NSW CCA unreported 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. I emphasise the concluding sentence in that passage. ......... In truth however, for the reasons given at the commencement of this judgement, 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." (emphasis) 72The reference to the "commencement of the judgment" in this passage is to 84 A Crim R 67 which includes the following statement (at 69.6): "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 light of the purpose to be served by the sentencing exercise." 73I have cited these passages from Engert at length in order to demonstrate that Muldrock did not overturn the principles usually applied in this State to dealing with offenders who suffer from a mental disorder or an intellectual disability. To the contrary it confirmed their application (see DPP (Cth) v De la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177], per McClellan CJ at CL). 74For the purposes of this application two matters should be noted. First, a conclusion that an offender suffers from an intellectual disability does not necessarily lead to a complete rejection of either general deterrence, retribution or denunciation as factors in sentencing. Such a conclusion might have no consequence or only result in a diminution in the weight attached to that factor. The extent of that diminution, if any, is a matter for the sentencing judge at first instance and will depend upon an interplay of factors including the extent of the disability. It may be that in some cases the need for general deterrence is completely removed and the weight to be attached to denunciation and retribution is substantially diminished. Thus later in Muldrock at [58] the High Court found that punishment and denunciation did not require "significant emphasis" in that case and there "was no requirement for general deterrence". This result followed from an assessment of the evidence of Dr Muir and Ms Daniels that I have described. 75Second, the diminution of the weight attached to, or even the removal of, general deterrence, denunciation and retribution as factors in the sentencing process may, but not necessarily will, lead to a lesser sentence being imposed. Although Gleeson CJ's comments in Engert concerned persons suffering from a mental disorder they are equally applicable to persons who have an intellectual disability. Thus, the greater weight that attaches to such factors as specific deterrence, the need to protect the community and the prospects of rehabilitation which flow from the diminution in weight attaching to other factors, does not necessarily operate in the offender's favour. An example is a case where the offender's intellectual disability is considered relatively mild, culpability is high and the prospects of rehabilitation are bleak. In such a case the need for specific deterrence and protection of the public may warrant a sentence no lesser in length than if general deterrence was fully engaged.

The Applicant's Sentence 76I will turn to the third and fourth matters raised by the applicant in reliance on Muldrock. At the outset it should be noted that on these issues the applicant has moved from relying on the principles stated in Muldrock to seeking to rely on the specific findings made by the High Court in Muldrock. I address the argument as framed but it needs to be firmly kept in mind that those findings concern another case involving different facts. They are not binding on me in the exercise of the function that I am undertaking at this point under s 6(3) of the Criminal Appeal Act. That said, the High Court's reasoning in support of its finding that the sentence imposed on Muldrock was manifestly excessive provides an example of the application of the principles it stated and its conclusions inform the task that I am undertaking. Further the approach of comparing and contrasting the features of this case with those of Muldrock assists in the elucidation of my reasoning. 77The appellant in Muldrock pleaded guilty to one offence under s 66A of the Crimes Act 1900. He had sucked the penis of a nine year old boy. At the time he committed the offence the appellant was aged 30. He had been assessed as suffering a "mild intellectual disability". The appellant had committed a similar offence seven years previously while living with his parents in Queensland. At the sentence hearing evidence was received that he was eligible for admission to a residential treatment facility known as "Selwood Lane". It was designed to assist intellectually handicapped individuals to moderate their sexually inappropriate behaviour. It was a secure facility where staff were directed to maintain "line of sight supervision [of residents] at all times" (Muldrock at [45]). 78The sentencing judge in Muldrock imposed a term of imprisonment of nine years with a non-parole period of 96 days. The ratio of those two periods reflected a finding of special circumstances. The non-parole period was backdated to the commencement of his incarceration so that he was to be released on the date of the imposition of his sentence. It was a condition of his release on parole that he reside at Selwood Lane. This was erroneous as his Honour did not have power to impose a parole condition for a sentence of more than three years (Muldrock at [4]). 79The Court of Criminal Appeal rejected an appeal against the term of nine years but upheld a Crown appeal against the non-parole period. It overturned the finding of special circumstances (R v Muldrock [2010] NSWCCA 106 at [34]). The Court substituted a non-parole period of six years and eight months and a balance of sentence of two years and four months. 80The High Court found that the Court of Criminal Appeal erred in finding that there were no special circumstances (Muldrock at [58]) and quashed the term of nine years imprisonment on the basis that it was manifestly excessive (Muldrock at [60]). The case was remitted to the Court of Criminal Appeal for the appellant to be resentenced in accordance with the High Court's reasons. His resentencing is yet to occur. Nothing in these reasons addresses what the outcome of that process should be. 81As I have stated, in contending for both a shorter term of imprisonment and a finding of special circumstances the applicant points to the various similarities between his case and that of Muldrock. He submitted: "Like the appellant in Muldrock, the applicant met the criteria for mild intellectual disability, he was effectively illiterate, had attended a special school, had suffered from sexual assault whilst he was a child and had committed prior related offences." 82Bearing in mind the limitations on this exercise of comparison that I have referred to above, I will address this argument by comparing and contrasting the evidence concerning the intellectual disability of the appellant in Muldrock and its connection with the offence he committed and that of the applicant. I have already referred to the two reports in Muldrock which were prepared for his sentencing for an earlier offence which described the history and extent of his impairment (Muldrock at [39] to [40]). The High Court's description of the evidence concerning his intellectual functioning included the following (at [42]): "Professor Hayes reported that the appellant's IQ Composite Standard Score of 62 was indicative of a mild intellectual disability. The appellant functions at a level lower than 99% of the population. His receptive and expressive language is equivalent to that of a child aged five and a half years. Test results measuring the appellant's ability to communicate, daily living skills and level of socialisation (adaptive behaviour) confirmed the diagnosis of mild intellectual disability. The appellant functions in the lowest 0.1% of the population in terms of his adaptive behaviour." 83The High Court recorded that Professor Hayes' evidence was that the appellant had "deficits in empathy" ([43]) and "would benefit from a program designed for a sex offender with an intellectual disability" ([44]). 84I have described the evidence concerning the applicant's intellectual functioning above. Although it was impaired it was qualitatively superior to that of the appellant in Muldrock. On the non-verbal scale he functioned above the bottom 8%. Although his functioning on the verbal scale was less than 1% nothing in the material suggested he had the "receptive and adaptive language of a child aged five and a half years" as was the case with the appellant in Muldrock. Further, as I have explained, the connection between his intellectual functioning and the commission of the offence was at best weak. There was no evidentiary equivalent of the evidence of Dr Muir and Ms Daniels. 85In Muldrock the Court considered that the material concerning the causal relation between the appellant's retardation and his offending behaviour meant that he had "limited moral culpability for his offence" (at [58]). The Court found that there "was no requirement for general deterrence" and that retribution and denunciation "did not require significant emphasis" (at [58]). In this case his Honour found the applicant's intellectual disability makes him "an inappropriate vehicle for general deterrence to the fullest extent." I consider that reflects the correct approach for this case. His intellectual functioning was impaired but not to a degree that significantly affected his moral culpability for the offence. It did not warrant the removal of general deterrence as a factor altogether. Further, the other sentencing factors remained. I will consider these further in the context of considering whether special circumstances exist, but their comparative elevation did not warrant any lesser overall term of imprisonment in the circumstances of this case. 86One obvious difference between the two cases is that the applicant's offence was committed in circumstances of aggravation. The appellant in Muldrock was convicted under a previous form of s 66A which prohibited sexual intercourse with a person under the age of 10 years and specified a maximum penalty of 25 years. Since 1 January 2009 that offence and penalty is found in s 66A(1) of the Crimes Act. Subsection 66A(2) prohibited that conduct in circumstances of aggravation and provides for a maximum penalty of imprisonment for life (see Crimes Amendments (Serious Offences) Act 2008). A maximum term of life imprisonment is the most emphatic statement of the seriousness of the offence that the legislature may make. 87In concluding that the sentence of nine years imposed by the sentencing judge in Muldrock was manifestly excessive the High Court found (at [60]): "A fundamental precept of the criminal law is that a sentence should not be increased beyond that which is proportionate to the crime in order to extend the period of protection of the community [citations omitted]. The distinction between extending a sentence to protect society and taking into account society's protection in determining the appropriate sentence may not always be easy to draw [citations omitted]. The expert evidence did not provide a foundation for the conclusion that the appellant's sexually aberrant behaviour could not be controlled by treatment and a program addressing the matters identified in Professor Hayes' report. The appellant's mental retardation and the fact that he has not previously served a sentence of full-time custody, together with the circumstances of the offence, the nature of the intercourse, its short duration and the absence of accompanying threats or other intimidating behaviour, did not warrant the imposition of a term of nine years' imprisonment (after reduction for the plea of guilty). The sentence was manifestly excessive." 88This passage highlights the significant differences between the applicant's case and the appellant's case in Muldrock. In the applicant's case the expert evidence did not provide a foundation for a conclusion that his aberrant behaviour could be controlled by treatment or any program available in or out of custody. Dr Collins was only prepared to state that his behaviour "should moderate" if suitable treatment was available. The extent of the moderation was not predicted. Given her assessment of him as having a moderate to high risk of recidivism it would be unlikely to be significant. Neither Mr Baird's report nor his past history would support such an assessment. 89The "circumstances of the offence" including the "nature of the intercourse" and its duration were all more severe in the applicant's case compared with the appellant in Muldrock. I have already described the intercourse that occurred. The events transpired over a period of time and involved the victim feeling terrified and vulnerable in her own home. Unlike the appellant in Muldrock, in the applicant's case there were "accompanying threats" and "other intimidating behaviour". 90The above discussion highlights that there are a number of points of difference between this case and Muldrock namely the level of the applicant's intellectual functioning, the connection between his impaired functioning and the commission of the offence, his moral culpability, the maximum sentence and the circumstances of the offence. Those factors and the other matters that arose on the sentencing that I have described above lead me to the conclusion that, subject to considering the question of special circumstances, no interference with the sentence imposed is warranted.

Special Circumstances 91There remains the applicant's contention that a finding of "special circumstances" for the purposes of s 44(2) of the Sentencing Procedure Act was and is warranted. Again he relies on Muldrock. I repeat the comments I have made above concerning the difficulties with that approach. 92At [57] of the judgment in Muldrock, the High Court found that the Court of Criminal Appeal erred in determining the structure of a sentence "upon a view that the appellant would benefit from treatment while in full time custody." The Court stated that such custody is punitive and the availability of rehabilitative programs is a matter for the executive and "no confident prediction" can be made that an offender would participate in any such program. The affidavits read on this application are completely consistent with this. Their Honours continued (at [58]): "The desirability of the appellant undergoing suitable rehabilitative treatment was plainly capable of being a special circumstance justifying a departure from the statutory proportion between the non-parole period and the term of the sentence. The Court of Criminal Appeal was wrong to hold that Black DCJ had been diverted by the evidence concerning Selwood Lane, and that he failed to carry out the task required of a sentencing judge [reference omitted] in focusing on rehabilitation and not on denunciation, punishment and deterrence [reference omitted]. As explained, punishment, in the sense of retribution, and denunciation did not require significant emphasis in light of the appellant's limited moral culpability for his offence. And there was no requirement for general deterrence. It was open to Black DCJ to view personal deterrence as likely to be advanced by a sentence that required the appellant to undergo appropriately tailored treatment in a secure facility such as Selwood Lane. The Court of Criminal Appeal erred in finding that there were no special circumstances within s44(2) of the Sentencing Act [citations omitted]." (emphasis added) 93The emphasised part of this paragraph confirms that an exercise of the power conferred by s 44(2) of the Sentencing Procedure Act in a manner favourable to the offender does not involve merely considering whether there are any distinctive features of the offender's case but whether any such features warrant a variation of the ratio between the non parole period and the additional term. Subsection 44(2) refers to a Court deciding that there are "special circumstances for [the balance of term] being more" than one third of the non-parole period. 94The applicant's intellectual impairment and the circumstance that, prior to committing this offence, he had not previously served a period of imprisonment, were clearly capable of contributing to a finding that there were "special circumstances for [the balance of term] being more" than one third of the non-parole period. However that is not the conclusion of the inquiry. In Muldrock the requirement for general deterrence was removed. Retribution and denunciation were said not to require significant emphasis (Muldrock at [58]). One can see how the objectives of specific deterrence and rehabilitation could be furthered by varying the statutory ratio so as to enable him to take up a place (at some point) in the heavily supervised environment of Selwood Lane. 95Unlike the sentencing judge in Muldrock, in this case his Honour was not presented with any program of "suitable rehabilitative treatment" which could justify any variation in the statutory ratio (cf Muldrock at [58]). Further the requirement for general deterrence was not removed although it had reduced emphasis. The objectives of specific deterrence, rehabilitation and denunciation remain. Nothing in the evidence suggested that these objectives, or any of them, would be furthered by any variation in the statutory ratio. In particular the material did not suggest that any period of intensive treatment or supervision beyond that which was likely to occur during a balance of term which bore the usual ratio to the non-parole period would make any appreciable difference to the applicant's risk of reoffending. The further evidence tendered on the appeal does not alter this assessment. 96It follows that I do not consider that a finding under s 44(2) of the Sentencing Procedure Act should be made and that I do not consider that a different sentence to that imposed by His Honour is warranted in law. 97Accordingly the orders I propose are: (1)The application for leave to appeal be granted; and (2)The appeal be dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2012