Griffin v R

Circumstances of the offending

1. The applicant was sentenced by the same judge and at the same time as his brother. At the time of the offences, the applicant was 19 years old and his brother was 17 years old but there was evidence to suggest the brother had the stronger personality of the two. The Crown relied on a statement of agreed facts, the contents of which are summarised below. In addition, oral evidence was adduced at the hearing from the informant as to the estimated cost of the damage to each building.
2. In the days leading up to the offences the brothers had entered the Centrelink building in Goulburn via a rooftop door. They fled after an alarm was activated. On 27 June 2016, the brothers returned to the building and entered by the same rooftop door. The applicant's brother had a multi-tool knife which he had obtained from Kmart on the way. A fire was lit using paper stored in the building.
3. The boys then ran from the building and scaled a wire fence into the premises of the old St Patrick's School, which was then a secured construction site. They forced entry to those premises through a boarded-up doorway where they lit a fire in the corner of the room by setting alight roof insulation bats that had been left on the premises.
4. The applicant fled from those premises. His brother remained after hearing sirens and was arrested a short time later. He made "certain admissions" but denied starting either fire.
5. The applicant was arrested at his home and later participated in a recorded interview. He made admissions in relation to lighting the fire at Centrelink and admitted attending the old St Patrick's School but denied entering the building where the second fire was lit. He stated that he had waited outside while his brother was inside going to the toilet. The statement of facts did not permit resolution of the issue as to who lit that fire.
6. The informant gave evidence that the Centrelink building was "virtually destroyed" and had to be rebuilt at an estimated cost of $3 million. The damage to the building on the construction site was considerably less, being estimated in the order of $20,000.
7. Each offender pleaded guilty in the Local Court and was allowed a discount of 25% to reflect the utilitarian value of the pleas. The indicative sentences were: for count 1 (entering the Centrelink building with intent to damage property by fire), 3 years; for count 2 (intentionally damaging the Centrelink building by fire), 6 years and for count 3 (breaking and entering the building at the construction site and damaging it by fire), 4 years. The indicative sentence for count 2 was particularly stern, having a starting point (before discount) of 8 years against a maximum penalty of 11 years.
8. As already indicated, the judge imposed an aggregate sentence of 8 years with a non-parole period of 5 years.

Grounds of appeal

1. The applicant relies on 3 grounds of appeal as follows: "(1) The sentencing judge erred in his approach to the applicant's mental illness/condition. (2) The sentencing judge erred in his approach to the applicant's youth; (3) The sentence is manifestly excessive."

Ground 1 - alleged error concerning the applicant's mental condition

1. There was cogent, uncontradicted evidence that, as a result of an appallingly dysfunctional childhood, the applicant suffered from significant psychological problems including major depressive disorder and post-traumatic stress disorder (PTSD). He had also been assessed to have extremely poor emotional and intellectual function.
2. The evidence was all one way on those issues. The Crown tendered a pre-sentence report from Corrective Services. There was also detailed material tendered by the applicant including a psychological assessment report by Ms Danielle Hopkins (a clinical psychologist) and a letter from Dr Matthew Hearps (a psychiatrist with Justice Health).
3. The pre-sentence report stated that the applicant was removed from his biological parents at the age of four against a history of chronic neglect and abuse, including sexual abuse. There were records of another adult male living in the family home who also sexually abused the applicant and his siblings. Without descending into detail, other recorded material reveals that the applicant's biological parents had an aberrant approach to parenting in which sexualisation of the children was normalised.
4. After being removed from his parents the applicant was placed in foster care where he again became the victim of sexual abuse. He described being given alcohol by his foster brother during periods of sexual abuse. He was removed from that foster home at the age of 5 or 6. He was later placed in a second foster home with a foster mother he described as an alcoholic and a foster father who inflicted corporal punishment.
5. When he turned 18, the applicant returned to his biological father and then his biological mother. He described his father as a heavy consumer of alcohol and his mother as a stranger to him until his recent reconnection with her.
6. The applicant told the author of the pre-sentence report that reconnecting with his family was detrimental to his wellbeing, saying "my family is no good for me. Bad things happen when I am with them and I know I need to stay away from them."
7. As to his relationship with his brother, the applicant said they had only recently reconnected when he was living with his mother. His brother "showed up and was on the run".
8. The pre-sentence report concluded: "It is well evidenced that the offender experienced a traumatic upbringing that has impeded his ability to function appropriately in the community. The deprivation of emotional safety within the family context and subsequent foster care placements, combined with the chronic neglect and sexual abuse has resulted in a young man who struggles to understand where his place is in society. Nonetheless, his offences are of a serious nature and his assessed risk of recidivism appears to warrant the need for further intervention to address his criminogenic needs."
9. The psychological report tendered by the applicant at the proceedings on sentence provided similar detail of that background. The author, Ms Hopkins, undertook the cognitive testing which identified the poor intellectual function to which I have referred. Ms Hopkins reported her results as follows: "On the verbal scale, [the applicant] achieved a score that places him within the Borderline level of ability, outperforming only 4% of the normative sample for his age. His performance on the non-verbal scale was similar, falling within the Low Average ability range, and scoring higher than 19% of the standardised sample. His verbal and non-verbal functioning combined to produce a full-scale intellectual functioning score in the Low Average range, higher than only 10% of an age matched sample. It is noted that he is above the cusp that would warrant investigation for intellectual disability, but that he is a quite low functioning intellectually."
10. Ms Hopkins considered that the information provided to her by the applicant suggested some form of psychotic disorder which she thought should be further assessed. She formulated her conclusions in the following terms: "Mr Griffin was exposed to significant child protection violations throughout his childhood and earlier adolescence. He was physically and sexually abused, neglected by his biological parents and his first foster family and generally experienced instability in his housing and parental support. Mr Griffin was bullied during his schooling and he has interpersonal deficits such that he has struggled to make friends and he has been a generally socially isolated individual. These interpersonal concerns have generalised to custody and he is struggling to cope with threats by other inmates. His only support seemed to be his younger brother, who was a negative influence for him especially given Mr Griffin impressed as a malleable individual. Despite years of mental health concerns, Mr Griffin has not been able to adhere to consistent psychological treatment beyond medication, due to his unstable housing arrangements. In early 2015, when Mr Griffin ceased receiving FaCS support as he turned 18, he found himself residing with his father and then, his mother. He was further rejected by them as they refused him accommodation after a period and he was uncomfortable with them regardless, because they were essentially strangers to him. Mr Griffin began to reside in a group home in Blackheath, but he impulsively absconded from this home in June 2016 to return to spend time with his mother in Taree and then Goulburn. This occurred as a means of developing a closer relationship with her (and to obtain a "mother figure") when she sought his assistance. This decision was seemingly motivated by his feelings of isolation, lack of support, failed previous relationships with his parents, unmedicated ADHD and mental health issues including trauma and psychotic symptoms. In Goulburn, he spent time with his younger brother whom he feared, but he was also his only source of similar aged support. Given his interpersonal concerns and apprehension around his brother due to past aggression perpetrated on Mr Griffin, he was malleable to his brother's influences, borne of fear. He engaged in the offending without clear forethought and with no gain for Mr Griffin other than supporting his brother's destruction as a method of expression of anger, and, to avoid potential perceived harm to himself. He is considered to have been a significantly vulnerable youth when he was charged and he remains so at present."
11. There was also a letter from Dr Hearps, a psychiatrist who has assessed the applicant in prison. He recorded the unsurprising conclusion that the applicant suffers from major depressive disorder and PTSD. As at the date of Dr Hearps' letter, the applicant was being treated with both anti-depressant and anti-psychotic medication.

A point not taken below

1. The Crown submitted that the significance of the applicant's mental condition was not advanced on the plea and that the applicant should not be permitted to reformulate his case in this Court. Specifically, the Crown noted that no submission was made in the Court below that the applicant's mental condition was causally related to his offending or that it operated to reduce his moral culpability.
2. It should be acknowledged that the sentencing judge received almost no assistance on that issue. While detailed written submissions were provided on behalf of the co-offender, the written submissions for the applicant were brief and confusing. The applicant's subjective circumstances were addressed cursorily and in terms that were unhelpful: "20 years old, 19 at the time of the offences. Was in care from the age of 4 until 18 years old. Was sexually, physically and emotionally abused in his first placement. Had consistent bullying throughout his schooling. The court must take into account the personal circumstances of the offender which may, because of his or her race, indicate a deprived background and lower standard of life: Wise v R (CCA(NSW), 14 April 1989, unreported, BC8902291); Rogers v R (1989) 44 A Crim R 301. An offender's social disadvantage when young by reason of the influence of peers and extended family members committing criminal acts in a small community was relevant to the offender's moral culpability and ought to have been taken into account: Ingrey v R [2016] NSWCCA 31… Mild Intellectual Disability - P4 of Pacific health and wellness report. PTSD and major depressive disorder as reported in the letter from Dr Hearps."
3. Surprisingly, no oral submissions were made on behalf of either offender, each electing to rest on what had been put in writing. In the case of the co-offender, that was not inappropriate. In the case of the applicant, it left the judge with inadequate and in some respects obscure submissions. In my respectful opinion, however, that did not obviate the need for the judge to make an assessment of the significance of the evidence as to the applicant's mental health in accordance with established principle.
4. The Crown relied in this context on the decision of this Court in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [79]-[81] per Johnson J, McClellan CJ at CL agreeing; but cf [142] per Rothman J. The relevant passage from the judgment of Johnson J is lengthy but, in the circumstances, warrants consideration in full: "79. This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. 80. There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. It might be thought that defence counsel would have ample opportunity to consider whether an argument concerning possible summary disposal should be made in the District Court, given that the acceptance of a plea of guilty to a lesser charge usually follows charge negotiations, as occurred in this case. The fact that a less serious charge is to proceed (and its consequences) would be at the forefront of counsel's thinking. 81. The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]."
5. The reference to a "practical expectation" that factors relied upon in mitigation will be identified cannot be elevated to a principle subverting the entitlement of an offender to be sentenced according to law. I would not understand his Honour to have intended to express any such principle.
6. The submission put for the first time in the appellate court in Zreika was that the sentencing judge erred by failing to have regard to the possibility that the matter could have been prosecuted in the Local Court. As the Court unanimously held, that is the kind of point which, if not expressly raised by counsel, may appropriately be put to one side by the sentencing judge. Abject disadvantage of the kind seen in this case, with all the psychological harm it produced, is in a different category. While counsel's failure to address the issue in any helpful way was unfortunate and may go some way to explaining how the process may have miscarried, I do not think the observations made in Zreika should preclude the Court from entertaining the present ground. The ultimate question in sentence appeals is whether the applicant was sentenced according to law. That issue is not necessarily determined, as an issue raised in a civil appeal might be, by the answer to the question whether the point was taken in the court below.
7. In my respectful opinion, in circumstances where there was cogent evidence before the Court as to the applicant's mental condition, the sentencing judge was required to consider the significance of that evidence in assessing the applicant's moral culpability for the offence and in considering the objects of sentencing. That is consistent with the proper approach to sentencing described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], as follows: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case."
8. For those reasons, I do not think the fact that the issue was inadequately developed in submissions at first instance warrants our refusing to entertain the issue as a ground of appeal in this Court. Indeed, for this Court to refuse to have regard to the evidence of the applicant's mental state on that basis would perpetuate a serious injustice in the circumstances of this case: cf Zreika at [81].

Reasons for concluding that ground 1 is made out

1. The Crown submitted that, in any event, the sentencing judge did take the evidence as to the applicant's mental health into account and give careful consideration to that evidence. I accept that the judge did recite parts of the evidence in his ex tempore judgment, principally by reference to the pre-sentence report and the report of Ms Hopkins. His Honour made passing reference to the letter from the psychiatrist (which recorded the diagnosis of severe depression and PTSD) but said "I do not propose to go into the detail of that."
2. The judge also noted that he had "some documents from Pacific Wellness", identifying the relevant reports by date. His Honour did not discuss the contents of those reports. They revealed that the applicant had been referred by Ageing, Disability and Home Care for assessment as to whether Pacific Health and Wellness, an organisation providing training, therapy and disability care, had capacity to provide accommodation support for the applicant upon his release from prison in respect of these matters. The report stated that the applicant had been assessed as suitable to enter an accommodation program which would provide intensive support services to address his "complex formative trauma" and facilitate his return to the community.
3. The report concluded: "Mr Griffin requires expert intervention to deal with the underlying factors that underpin his offending behaviours. He has not had this depth of intervention and sustained treatment as his current funding would suggest and the inappropriate accommodation (seven aged residents) where he was placed at the time of the offence. While the NDIS philosophy is underpinned by what the supported person wants to do, any conditions of post release supervision with community corrections will allow flexibility by adding community obligations. Mr Griffin appears to be ready to be supported in a manner that resolves his underlying and behavioural issues. At this time he has a placement where these can be ameliorated and developed."
4. An updated report dated 15 May 2017 confirmed those arrangements and expressed the opinion that the applicant would benefit from "a therapeutic approach to deal with the complex and multiple emotional, trauma informed and family of origin issues underpinning his behaviours in the community."
5. The reports were signed by Mr Webber Roberts who, as the judge was informed, had attended the proceedings on sentence to support the applicant.
6. As already noted, the judge focused primarily on the psychological reports and did not discuss the contents of the psychiatrist's letter or Mr Webber's post-release accommodation support plan. In my respectful opinion, although he recited parts of the relevant evidence, the judge did not proceed to analyse the significance of that evidence in assessing the applicant's moral culpability for the offence. After reciting highlights of the psychological evidence (at pages 4-7 of the judgment), the judge said (at page 7): "It is a question of what it all means. I do not actually accept that he did not have an appreciation to a very substantial extent of the wrongfulness and consequences of his actions. It does not take much appreciation to realise that setting fire to a building is going to cause some dire consequences."
7. The Crown submitted that this finding was open, since it followed a discussion of the evidence. However, the effect of the finding is to set the evidence at nothing, without explanation or analysis.
8. The judge then referred to the written submissions, saying "I do not propose to refer to all the submissions because I do not have time." That was understandable having regard to the unhelpful presentation of the submissions, which included a formulaic recitation of uncontroversial legal propositions with no real analysis of the significance of the factors relevant to sentence in the particular case. The judge did recite aspects of those submissions but omitted any reference to the part of the submissions addressing deprived background and the negative influence of family members. Having recited a selection of the matters listed in the written submissions, his Honour said (pages 7-8): "When I look at all the offences it seems to me they are all serious offences of their type. I consider all the offences to be in the mid-range somewhere. He was the older brother. I take into account his contended motivation and his contended duress. He may well have felt under pressure, but there were other avenues to him to obviate that."
9. There was no elucidation of that last remark. In my assessment, the evidence overwhelmingly established that the applicant had no avenues of support available to him. He was aged 19 years; his life up to that point had been damaging and detrimental. He had not enjoyed anything of the nurturing and education required to support good decision-making.
10. As noted by the Crown, the psychiatric and psychological evidence did not go so far as to assert, in terms, that the applicant's mental condition was "causally related" to his offending but it is well-recognised that evidence of the kind outlined is relevant, serving to reduce an offender's moral culpability.
11. The only specific finding made by the judge concerning the applicant's dysfunctional upbringing was to the applicant's detriment. In considering a submission that the applicant had good prospects of rehabilitation (supported by reference to Mr Roberts' reports), the judge said (pages 7-8): "It is contended he has good prospects and he is fully aware of the consequences… I do not accept he has good prospects. Realistically he has poor prospects because of his unfortunate history. I cannot conclude that he is unlikely to reoffend because he is fact [sic] malleable and easily led."
12. The reference to the offender's being "fully aware of the consequences" misquoted the applicant's written submissions. What had been referred to (albeit in confusing terms) was the mitigating factor listed in s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability.
13. I should acknowledge that, towards the end of the judgment, his Honour said there would be "some diminution of the objective gravity" for each offender "by reason of their condition as a result of the profound disadvantage." However, the glib treatment of the issue in the discussion of the applicant's subjective circumstances is at odds with that remark.
14. The applicant submitted that the sentencing judge's treatment of the issue of the applicant's mental problems failed to have regard to the principles summarised in the well-known passage from the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], as follows (citations omitted): "● 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."
15. Justice McClelland further emphasised at [178] that the mental health problems of an offender "need not amount to a serious psychiatric illness before they will be relevant to the sentencing process" and that a mental disorder of "modest severity" may nevertheless be appropriate to moderate the need for general or specific deterrence.
16. I acknowledge that the judge was not taken to the decision in De La Rosa but the application of those principles was essential to a fair sentencing process in the present case. In my respectful opinion, the judge failed to undertake the required analysis of the significance on sentence of the applicant's dysfunctional upbringing and its psychological consequences.
17. For those reasons, I am satisfied that the sentencing process miscarried and that it is necessary to re-sentence the applicant. In expressing this conclusion, I acknowledge the significant burden placed on sentencing judges in a busy sentencing court such as the District Court and the pressures under which the judges of that Court operate, especially when proper assistance is not provided by counsel.
18. In the circumstances, it is not necessary to deal with grounds 2 and 3. It will of course be necessary to have regard to the matter raised by ground 2 (the applicant's youth) on re-sentence.

Re-sentence

1. The Crown's submissions did not address the issue of resentence.
2. The circumstances discussed in detail above lead me to the conclusion that a significantly lesser sentence is warranted and should have been passed. For the reasons explained above, I consider that the applicant's moral culpability for the offences was considerably less than the sentencing judge assessed it to be. The recognition that the applicant should have been capable of appreciating the damage his actions might cause over-simplifies the functional disadvantages he faced.
3. I also respectfully do not share his Honour's dire assessment of the applicant's prospects of rehabilitation. The material provided by Webber Roberts (to which the judge did not refer) affords a sound basis for optimism in that respect. Affidavits relied upon on resentence establish that the offer of supported accommodation is still open to the applicant. An affidavit sworn by the applicant stated that Mr Roberts is his only visitor in prison. He states "my mother used to visit me but it is better for me to not see her at all". Other material tendered on re-sentence establishes that the applicant has been progressing well as a prisoner, undertaking many employment and education opportunities.
4. Since his imprisonment, the applicant has been receiving regular telephone counselling sessions organised through the Royal Commission into Institutional Responses to Child Sexual Abuse. A letter from the counsellor was provided to this Court to be relied upon in the event of resentence. She stated that she had built "a strong therapeutic relationship" with the applicant and that he has made significant progress, impressing her with the level of personal insight he has disclosed and his application to the task of his recovery using the techniques she has discussed with him.
5. The applicant's personal background was also relevant to the weight to be given to deterrence. When his offending is viewed through the prism of the psychological impact of being a victim of child sexual abuse, it is difficult to see any role for general deterrence. As to specific deterrence and his prospects of rehabilitation, his criminal history and the evidence of his being easily led certainly pose challenges for his prospects of rehabilitation. However, the program he is now offered upon his release will provide intensive support of a kind he has not previously had available to him and, in my view, will go a considerable way to addressing that concern.
6. The applicant's need for intense support and the availability of a community-based program specifically tailored to that end, which will undoubtedly be better adapted to securing his rehabilitation than time spent in prison, warrant a substantial adjustment to the statutory ratio of the non-parole period to the balance of term.
7. In all the circumstances, I consider that a significantly lesser sentence is warranted. The sentence I propose is an aggregate sentence of imprisonment for 6 years with a non-parole period of 3 years. The indicative sentences (after allowing the discount of 25%) are, for count 1 (entering the Centrelink building with intent to damage property by fire), 3 years; for count 2 (intentionally damaging the Centrelink building by fire), 4 years and for count 3 (breaking and entering the building at the construction site and damaging it by fire), 4 years.
8. I acknowledge that this sentence is less than that imposed on the applicant's brother. It is, nonetheless, the sentence I consider to be appropriate. In circumstances where one offender has appealed and one has not, I do not think the appellate court is required to impose a sentence higher than that which it otherwise considers appropriate. To take that approach would subvert the principle of equality.
9. The orders I propose are: 1. that leave to appeal be granted; 2. that the sentence imposed at first instance be quashed and, in substitution therefor, that the applicant be sentenced to an aggregate sentence of imprisonment for six years commencing on 27 June 2016 with a non-parole period of three years concluding on 26 June 2019 and a balance of term of three years concluding on 26 June 2022. 3. I note that the first day on which the applicant will be eligible for release to parole is 26 June 2019.
10. DAVIES J: I agree with McCallum J.

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