[2018] HCA 25
Bugmy v The Queen (2013) 249 CLR 571
[2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR1
[2010] NSWCCA 194
DS v R
[2014] HCA 37
McKittrick v R [2014] NSWCCA 128
McLaren v R [2021] NSWCCA 12
Muldrock v The Queen [2011] HCA 39
Source
Original judgment source is linked above.
Catchwords
[2018] HCA 25
Bugmy v The Queen (2013) 249 CLR 571[2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR1[2010] NSWCCA 194
DS v R[2014] HCA 37
McKittrick v R [2014] NSWCCA 128
McLaren v R [2021] NSWCCA 12
Muldrock v The Queen [2011] HCA 39244 CLR 120
Pereira v R [2018] NSWCCA 171
R v Burke [2002] NSWCCA 353
R v Deng [2007] NSWCCA 216(2007) 176 A Crim R 1
R v Henry (1999) 46 NSWLR 346[1999] NSWCCA 111
R v Israil [2002] NSWCCA 255
R v Lauritsen [2000] WASCA 3(2000) 114 A Crim R 333
R v Schofield (2003) 138 A Crim R 19
Judgment (6 paragraphs)
[1]
The Application to this Court
If granted leave the applicant advances three grounds of appeal:
1. "The sentencing judge erred by not finding that the applicant's PTSD with psychotic features was a mental condition that reduced her moral culpability and the need for general deterrence.
2. The sentencing judge erred by not taking into account the factors that are relevant to assessing the objective seriousness of the attempted offences; and
3. The aggregate sentence was manifestly excessive."
For the reasons that follow, although I would grant leave to appeal, I do not regard any of the proposed grounds as established and would dismiss the appeal.
[2]
Ground One
The applicant argues that, although the sentencing judge accepted the opinion expressed in her report by Ms Hubner, he did not accept that the applicant's mental condition contributed to the offending and justified a reduction in moral culpability and the need for general deterrence. She characterises his Honour's process of reasoning as "unreasonable" in that the sentencing judge had regard to the degree of planning the offences involved when considering the degree to which her mental conditions were causative.
The applicant argued that the reduction in sentence afforded her in recognition of "Bugmy factors" only recognised childhood deprivation and could not reflect the applicant's difficult circumstances in adulthood.
The Crown submitted that the existence of a mental illness did not automatically result in a particular sentencing outcome. It could result in a diminution of moral culpability and in the application of the principle of general deterrence or, conversely, point to a greater need for the sentence to reflect the principle of specific deterrence, but none of those consequences are automatic. The assessment of the relevance of a mental condition and whether there was any impact of that factor on sentence were matters within the discretion of the sentencing judge.
Part of this ground cannot be made out because it relies upon a misunderstanding or misreading of what the sentencing judge said about the applicant's mental health condition and the application of the principle of general deterrence. His Honour did not, as the applicant complains, decline to mitigate the effect of general deterrence on sentence; in fact, he did exactly that, concluding that her mental health "requires moderation of general deterrence".
The balance of the ground complains of the failure by the sentencing judge to conclude that the applicant's moral culpability for the offences was diminished by her mental illness. The preface or subtext to that part of the ground appears to be a contention that, on his Honour accepting that the applicant had a mental health condition, he was then required to reach a conclusion that her moral culpability was diminished. No such requirement operated. This Court has made that point frequently, recently in Apulu v R [2022] NSWCCA 244, at [125] - [126].
"[…] the applicant's contention that there must have been a reduction in moral culpability and in the application of the principle of general deterrence by the sentencing judge must be rejected. Nothing in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 mandates that a particular consequence or consequences follow from evidence of a mental condition or other impairment. The features listed at [177] of that judgment are features that may have significance in the determination of sentence; that they do have such significance is a matter to be determined by a proper assessment of the evidence in the particular case. The point was made both before and after judgment was given in De La Rosa. In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said, at 68:
"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 decisions. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application to 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.
[…]
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".
In Aslan v R [2014] NSWCCA 114 Simpson J, as her Honour then was, when referring to the considerations listed at [177] in De La Rosa observed, at [34] - [35], that none of the principles were "absolute" She continued:
"Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)" (emphasis in original).
Whilst his Honour could have made a finding of diminished culpability, that he did not do so does not inevitably point to error. The existence of a mental health condition may, or may not, have an effect upon sentence, whether ameliorative or the opposite, with that assessment being very much a matter for the sentencing judge. It is clear that, whilst his Honour accepted that the applicant suffered from a mental health condition, he was not persuaded that it was directly linked to the commission of the criminal offences, or that it operated in the circumstances of the offending to reduce her moral culpability. That was a conclusion that was open to his Honour on the evidence.
It was not irrelevant to the assessment that his Honour made to observe, as he did, that these were offences that involved a degree of planning, system, and persistence, features which had a role to play in the assessment of the moral culpability of the applicant.
Whilst there was some evidence that pointed to the applicant's PTSD and other problems having a role to play in her conduct, there was also evidence that suggested that an equally important or even more significant consideration was the applicant's drug addiction, and her desire to fund her drug use. The applicant deposed in her evidence in chief that her motivation for offending was to obtain funds to escape her violent relationship and get assistance with her health, but she also said in cross examination, in what reads from the transcript as a much less prepared piece of evidence, that she committed these offences to get drugs.
Further, his Honour concluded that the applicant's moral culpability was diminished because of her deprived background. There was no obligation on the sentencing judge to further diminish moral culpability on a second basis. There is no rule of sentence that requires some percentage reduction to be made for each feature that could have an impact upon moral culpability; it is a question for the sentencing judge to assess the overall effect of the evidence on an offender's moral culpability and, taking into account all relevant evidence and law, determine a sentence that appropriately reflects the objective gravity of the crimes, and properly reflects the sentencing case.
It was open to the sentencing judge to assess the matter as he did. Weight was given to the applicant's mental health throughout the sentencing exercise, including by a finding of special circumstances that reduced the NPP in the applicant's favour. His Honour was not obliged to factor in a further reduction in sentence to reflect a diminution in moral culpability due to mental illness.
This ground should be dismissed.
[3]
Ground Two
Ground Two as filed complained of error in "not taking into account the factors that are relevant to assessing the objective seriousness of the attempted offences". The applicant's written submissions argued that most of the applicant's crimes were attempts to obtain an advantage by deception, and that she gained comparatively little by the commission of these crimes. The applicant relied upon R v Taouk (1992) 65 A Crim R 387 and R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3 at [139] to argue that an attempt to commit a crime that was unlikely to succeed should be assessed as of lesser seriousness and gravity than a successful crime. In oral argument before this Court the ground shifted somewhat to become a complaint of error in the assessment of objective seriousness. Howsoever argued, this ground cannot be established.
It is important to note at the outset that the applicant did not, in her arguments before the sentencing judge, seek to make any submission as to the assessment of the objective gravity of the offences, perhaps because no standard NPP applies to any of her crimes. In written submissions she said only:
"Without diminishing the seriousness of the amount attempted to be obtained, it is noted:
1. The total amount of cash moneys obtained was at the low end.
2. In some instances, the Offender used her own address […]".
In support of this application and in contrast to the stance taken before his Honour, the applicant argues that his Honour was in error in concluding that the offences involving an attempt were not less serious than "below the mid-range", because each was only an attempt, his Honour did not assess the chances of success of each attempt, or the competence and seriousness of each.
Her complaint is one which is difficult to establish. Recently, in Towse v R [2022] NSWCCA 252 Basten AJA observed, at [12]:
"[…] there are significant difficulties in challenging the finding by a sentencing judge of the objective seriousness of the particular offending. While that assessment is an important part of the sentencing function, it is pre-eminently an evaluative exercise and usually described according to an imprecise scale." (footnotes omitted).
See also Salafia v R [2015] NSWCCA 141 at [88] - [91].
His Honour considered each of the nine offences before the court, and the two offences on the Form 1 document, and made an individual assessment of the gravity of each as "below the mid-range" by reference to the features of the particular offences. The term "below the mid-range" is a broad one and conveys only that the crimes fell in what might be regarded as the lower half of any notional scale of objective gravity.
His Honour referred, in making those assessments, to the facts and circumstances of the offences, including his observation that most of the applicant's crimes were unsuccessful, and that she had gained only a very limited amount in terms of cash and goods by committing them. His Honour clearly did not overlook the fact that most of the applicant's crimes did not gain her any financial reward. He did not use the words "chances of success" or "competence", but nor was he obliged to. He did refer multiple times to the "attempts" involved, and specifically to each attempt offence as such.
The approach taken by the sentencing judge in referring to the facts and circumstances of the offences is one which accords with what was said at [29] in Muldrock v The Queen [2011] 244 CLR 120; HCA 39 as to the importance of identifying "fully the facts, matters and circumstances" that bear upon the gravity of the crime.
His Honour's conclusion that the offences each fell "below the mid-range" was well open to his Honour, whether the offence reflected a successful offence, or an attempt to commit an offence. There is no rule of law, and there is nothing in the authorities relied upon by the applicant, that establishes that an attempt to commit a crime will always be of lesser seriousness than a completed offence. What is important is to assess the facts and circumstances relevant to the offence and determine its gravity, as was observed in R v Doorey [2000] NSWCCA 456, at [29]:
"So far as it was suggested that the matter lacked objective seriousness being only an attempt, I would similarly reject that proposition. It is the case that an attempt attracts the same potential maximum penalty as the performance of the substantive crime. Every case has to be treated and assessed upon its merits. In some cases an attempt may constitute an offence of lesser seriousness, if there was a withdrawal or a failure to carry the matter through from a very early stage. In the present case, however, it was only the inability of the applicant to open the till, which meant that the substantive offence was not implemented. In the circumstances of this case I would regard the attempt as still constituting a matter of particular seriousness."
The applicant's crimes were, for the most part, unsuccessful, but that did not diminish the fact that she took multiple and sometimes complex steps to carry them out, and the attempts were, in each case, very serious. Her attempts also had a direct impact upon those persons whose identities the applicant fraudulently used in an endeavour to obtain, overall, a very substantial amount of money.
Before this Court the applicant appeared to suggest that the crimes involving an attempt were almost victimless, but that is to ignore the significant impact of the applicant's crimes upon the six individuals whose financial accounts were seriously interfered with, and whose credit ratings, a valuable commodity in the modern world, were put in grave jeopardy. Two individuals saw attempts made to steal their no doubt hard earned superannuation savings.
That the majority of the offences were unsuccessful was not for any want of earnest, involved, and persistent efforts on the applicant's part. This was not a feature that greatly diminished the seriousness of the crimes.
A conclusion that the offences fell below the mid-range was open on the evidence, and no error has been demonstrated.
This ground should be dismissed.
[4]
Ground Three
The applicant's final ground complains that the sentence imposed upon her is unfair and unjust. It is argued that the "notional" starting point of 8 years imprisonment, reduced to 6 years by application of the 25% discount on sentence for the pleas of guilty, is demonstrative of error. It is submitted that the sentence fails to reflect that these were unsophisticated and generally unsuccessful offences.
The applicant points to a number of decisions of this Court which, she argues, highlight the unfairness of the sentence imposed upon her, being: Siwek v R [2017] NSWCCA 178; Pereira v R [2018] NSWCCA 171; Johnston v R [2017] NSWCCA 53; Gaffney v R [2009] NSWCCA 160; Stroud v R [2019] NSWCCA 249; R v Burke [2002] NSWCCA 353; McKittrick v R [2014] NSWCCA 128; R v Whyte [2019] NSWCCA 218; and McLaren v R [2021] NSWCCA 12.
"Comparable cases" are of limited assistance in determining a claim of manifest excess, as McNaughton J commented in R v SS (a pseudonym) [2022] NSWCCA 258 at [76]:
"It is well established that whilst some assistance may be obtained from looking at previous cases, the individual circumstances of each must be examined, and caution should be exercised. Even if comparative cases establish a range, that does not signify any concrete outer limit as it is simply a record of what has been done in the past. It does not fix the boundaries within which future judges should sentence. The attempt which is to be made is to discern unifying principles from past cases, and what is sought is consistency in the application of principle, not numerical equivalence: Sharma v R [2022] NSWCCA 190 at [76]-[82]; Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [53]-[55]".
Having reviewed each of the decisions cited by the applicant and having considered the facts and circumstances of the offending and the applicant's subjective case, the applicant's contention that the sentence is unjust should be rejected.
Each of the cases cited is readily distinguished from the present case, and does little to establish a range of sentence, or one outside of which that imposed upon the applicant falls. All are very different to the present case. In Siwek there had been an earnest attempt to repay the funds obtained, strong prospects of rehabilitation, and no record for similar offences. In Pereira (where the sentence was almost identical to that imposed upon the applicant) there was a strong subjective case with good prospects of rehabilitation. In Johnston some of the monies had been repaid and there were no relevant priors. Gaffney had similar features, with some monies repaid and good prospects of rehabilitation. In Stroud there was no record for dishonesty. In Burke the sentence was one of 10 years. In Whyte there was one victim, and no prior offending. In McKittrick there had been significant steps towards rehabilitation and the offender was unlikely to offend again, In McLaren the offender had no prior criminal history.
These decisions are of limited assistance.
The sentencing judge took into account all relevant features of the objective and subjective cases and imposed a sentence that had to comprehend serious and persistent dishonesty adversely affecting six people and many financial institutions, committed to fund the purchase of drugs among other reasons, by an offender with a lengthy and very repetitive criminal history for fraud and dishonesty across two nations and three jurisdictions.
Whilst the applicant's subjective case was a sad one (on the basis that such of her evidence as was unsupported by evidence independent of her could be accepted on balance) her prospects were "guarded". There was no real basis for hope that the applicant will not return to a criminal lifestyle when she is again in the community.
Specific deterrence had a significant role to play in the exercise of the sentencing discretion, as did the protection of the community.
In my conclusion the sentence is not outside the available range and cannot be regarded as unfair or unjust.
This ground cannot be made out.
[5]
Conclusion
For these reasons I propose the following orders:
1. Leave to appeal is granted;
2. The appeal is dismissed.
[6]
.
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: 15 February 2023
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant pleaded guilty in the Local Court to nine dishonesty offences contrary to ss 192C(2) and 192E(1)(a)-(b) of the Crimes Act 1900 (NSW) with two further offences taken into account on two Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offences were committed by the applicant over a four month period, and each involved the assumption or theft of the identity of another individual, and the subsequent use of six stolen identities to apply for financial advantages from various institutions. The sentencing judge imposed a sentence of 6 years imprisonment with a non-parole period of 4 years and 3 months. The applicant sought leave to appeal against sentence.
The issues on appeal were:
(i) whether the sentencing judge erred by not finding that the applicant's PTSD with psychotic features was a mental condition that reduced her moral culpability and the need for general deterrence;
(ii) whether the sentencing judge erred by not taking into account the factors that are relevant to assessing the objective seriousness of the attempted offences; and
(iii) whether the aggregate sentence was manifestly excessive.
The Court held, granting leave to appeal, dismissing the appeal:
As to issue (i), per Wilson J, Davies J agreeing that the ground be dismissed, Simpson AJA dissenting:
1. That the sentencing judge accepted the applicant had a mental health condition does not automatically lead to a reduction in moral culpability and the application of the principle of general deterrence. In a separate dissenting judgment, Simpson AJA held that the sentencing judge misunderstood the import of the psychological report relied upon by the applicant on sentence and accordingly, failed to apply established sentencing principles in relation to offenders suffering from mental health conditions. In consequence, Simpson AJA held that the offender ought to be resentenced making due allowance for the applicant's diminished moral culpability by reason of her diagnosed PTSD and unstable mental condition (Wilson J at [107]-[117]; Simpson AJA at [3]-[41]; Davies J at [41]).
Apulu v R [2022] NSWCCA 244; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR1; [2010] NSWCCA 194; R v Stonestreet [2020] NSWCCA 212; Anderson v R [2022] NSWCCA 187; Rossal v R [2021] NSWCCA 200; Barbieri v R [2016] NSWCCA 295; DS v R; DM v R [2022] NSWCCA 156; R v Israil [2002] NSWCCA 255; R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111; in R v Lauritsen [2000] WASCA 3; (2000) 114 A Crim R 333; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Williams v R [2021] NSWCCA 15; Kentwell v The Queen [2014] 252 CLR 601; [2014] HCA 37; Betts v The Queen (2018) 258 CLR 420; [2018] HCA 25; R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 considered.
As to issue (ii), per Wilson J, Davies J agreeing that the ground be dismissed, Simpson AJA not deciding:
1. The sentencing judge's conclusion that the offences each fell "below the mid-range" was well open to his Honour on the evidence and that an attempt to commit a crime is not automatically of lesser seriousness than a completed offence. That the majority of the applicant's offences were unsuccessful was not a feature that greatly diminished the seriousness of the crimes (Wilson J at [118]-[131]; Davies J at [41]; Simpson AJA not deciding).
R v Taouk (1992) 65 A Crim R 387; R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3; Towse v R [2022] NSWCCA 252; Salafia v R [2015] NSWCCA; Muldrock v The Queen [2011] 244 CLR 120; HCA 39; in R v Doorey [2000] NSWCCA 456 considered.
As to issue (iii), per Wilson J, Davies J agreeing that the ground be dismissed, Simpson AJA not deciding:
1. The sentence imposed is not outside the available range, nor can it be regarded as unfair or unjust. The sentencing judge took all relevant features of the objective and subjective case into account, and whilst the applicant's subjective case was a strong one, her prospects of rehabilitation were "guarded" (Wilson J at [132]-[142]; Davies J at [41]; Simpson AJA not deciding).
Siwek v R [2017] NSWCCA 178; Pereira v R [2018] NSWCCA 171; Johnston v R [2017] NSWCCA 53; Gaffney v R [2009] NSWCCA 160; Stroud v R [2019] NSWCCA 249; R v Burke [2002] NSWCCA 353; McKittrick v R [2014] NSWCCA 128; R v Whyte [2019] NSWCCA 218; McLaren v R [2021] NSWCCA 12; R v SS (a pseudonym) [2022] NSWCCA 258 considered.
Judgment
SIMPSON AJA: The relevant facts and circumstances of this application for leave to appeal are fully set out in the judgment of Wilson J, which I have read in draft.
I begin by observing that, as is obvious from the account of the offences given in Wilson J's judgment, the objective gravity of the applicant's criminality over a four month period is high, as indicated by the persistence with which she set about her attempted depredations, the quantum of money involved (notwithstanding the limited success of those attempts) and the nature of the offending, which was to infiltrate the personal identity of no fewer than six different victims.
The issue on which I wish to focus is that raised by ground 1 of the proposed appeal, by which the applicant complains that:
"The sentencing judge erred by not finding that the applicant's PTSD with psychotic features was a mental condition that reduced her moral culpability and the need for general deterrence."
The applicant's moral culpability for this criminality is to be assessed against the backdrop of her personal history. It was not in issue that, as reported by the psychologist, Ms Emma Hubner, the applicant suffered "post traumatic stress disorder with psychotic features", attributable to a long history of exposure to violence and deprivation.
The principles on which "mental illness, intellectual handicap or other mental problems" may affect the sentencing of an offender were stated by McClellan CJ at CL at [177]-[178] in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR1; [2010] NSWCCA 194 and were derived from a comprehensive review of previous decisions. De La Rosa was an appeal by the Commonwealth Director of Public Prosecutions against what was asserted to be the manifest inadequacy of a sentence imposed following Mr De La Rosa's plea of guilty to a charge of importing not less than the marketable quantity of a border-controlled drug. The principal issue in that case concerned the proper construction of the newly enacted s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), which circumscribed the approach previously taken by this Court to the determination of Crown appeals against the asserted inadequacy of sentence. For that purpose a bench of five judges was convened.
All judges agreed that the appeal should be dismissed. Because the real issue in the appeal was the construction of s 68A, no other member of the Court expressly agreed with that part of the judgment of McClellan CJ at CL that was directed to the question of the effect on sentencing of an offender's mental condition. On that basis, the principles so stated could not be said to be part of the ratio of the decision. That part of his Honour's reasons has, however, been cited and applied on countless occasions in this Court, and by sentencing courts, since 2010. A somewhat random sample includes:
R v Stonestreet [2020] NSWCCA 212 at [46], per Bell P (as the Chief Justice then was), Davies and Adams JJ, concurring;
Anderson v R [2022] NSWCCA 187 at [35], per Bell CJ, Davies and Fagan JJ;
Rossal v R [2021] NSWCCA 200 at [85]-[86] per Garling J, Bathurst CJ and Rothman J concurring;
Barbieri v R [2016] NSWCCA 295 at [53], per Simpson JA, and [142], per McCallum J;
DS v R; DM v R [2022] NSWCCA 156 at [95]-[96], per Beech-Jones CJ at CL, N Adams and Cavanagh JJ.
A Very Brief Summary of the Submissions to the Sentencing Court
The Crown submitted that the offending fell somewhat below the mid-range of objective seriousness. It pointed to the applicant's extensive history for fraud and dishonesty offences, which was submitted to disentitle the applicant to leniency as well as elevating the need for the sentence to deter and denounce the applicant and protect the community.
The applicant submitted that the offences were all towards the lower end of gravity as she had obtained only very limited goods and cash, and the frauds were clumsy, in that she had on occasion used her own address in establishing fraudulent accounts or seeking to do so. Considerable emphasis was placed upon the applicant's abusive upbringing, and the violent relationship in which she had been caught since she was 16 years old. Reliance was placed on the references in prison records to the applicant's display of psychotic symptoms, and the various diagnoses referred to from time to time. It was asserted that the applicant's motivation in committing the offences was to secure funds to enable her and her children to leave a violent relationship. The applicant submitted that her culpability was significantly diminished because she was a "battered woman" and also because of "Bugmy" factors, being a reference to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
It was submitted that the sentence imposed upon her should give emphasis to her rehabilitation, with a finding of special circumstances made to permit a "lengthy" period of supervision.
I now take [177]-[178] of De La Rosa to state authoritatively the relevant law in this State with respect to the sentencing of offenders suffering from mental illness or other mental disability or infirmity. The relevant principles, as stated by McClellan CJ at CL at [177], are:
"177 …
• 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 a Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public …" (internal citations omitted)
His Honour went on to add:
"178 I should stress 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. The circumstances may indicate that when offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence."
One of the many previous decisions to which McClellan CJ at CL referred was that in R v Israil [2002] NSWCCA 255. There Spigelman CJ, with whom Blanch AJ and I agreed, said:
"21 The significance of mental illness of offender in the sentencing exercised [sic] has long been accepted …
22 In the present case the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion.
23 To the extent that mental illness explains the offence … then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law."
His Honour referred to the reasons of Wood CJ at CL in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 as follows:
"… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of her or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing."
The Chief Justice also quoted from the reasons of Malcolm CJ in R v Lauritsen [2000] WASCA 3; (2000) 114 A Crim R 333; as follows:
"… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence."
As recorded in the judgment of Wilson J, the sentencing judge had available to him a report of an experienced psychologist, Ms Emma Hubner. Ms Hubner's report depended substantially on a history taken by her from the applicant. The applicant gave evidence that the information she had provided to Ms Hubner was truthful. She was not challenged by cross-examination with respect to any of the history she had given. So far as is relevant to ground 1 of the present application, that history is as follows.
The applicant was born in April 1986 in New Zealand to a Maori New Zealand mother and a father of Scottish heritage. The applicant's father regularly, in the applicant's presence, violently assaulted her mother, sufficiently to result in physical disfigurement. When the applicant's brothers attempted to intervene they, too, were assaulted.
Both parents drank heavily, and at different times the applicant was sent to live with relatives. An uncle, with whom she lived for a time from the age of 8, sexually abused her in a way she described as "violent and degrading". On hearing of the abuse the applicant's aunt "beat her mercilessly", forced her to bathe in scalding water and scrub her body, including her genitals, with a scourer. The applicant thought her parents would come and save her, but they did not. At age 11 the applicant absconded and returned to live with her parents. She began to use alcohol and cannabis and to commit petty theft. The following year she was sent to live with a paternal aunt (with whom she had lived from about 6 months to 2 years). The aunt was emotionally and physically abusive. The applicant was later placed in foster care.
By 14 years of age the applicant was using illicit drugs and was rebellious. At age 16 she became involved with her first and only partner, with whom she remained for 18 years and had 7 children. The partner was violent from the start and throughout the relationship.
At age 28 the applicant, with her abusive husband and children, moved to Australia, where her husband's parents (also abusive) lived. At age 31 the applicant was left by her husband, by way of payment for debts, at an apartment where she was drugged and gang raped by members of an Outlaw Motor Cycle Club and forced into prostitution. She remained there for what she believed was 6 months, before her husband returned to take her home.
It is unsurprising, in these circumstances, that the applicant reported to Ms Hubner that, in 2018, she had been diagnosed with post traumatic stress disorder (PTSD) and Battered Woman Syndrome; nor that she made four attempts at suicide between 2019 and early 2020 (encompassing the period of offending). The applicant reported to Ms Hubner that she was, at the time of the consultation (June and August 2021), suffering symptoms of PTSD. The applicant also reported ongoing visual and auditory hallucinations, and delusional beliefs.
Ms Hubner reviewed an array of psychological assessments, reports and records, which confirmed much of what the applicant had told her, including the diagnosis of PTSD. Ms Hubner reported:
"52 Ms Kapua suffers from symptoms of PTSD with Psychotic Features between 2019 and April 2020. Her symptoms of this disorder are considered the result of her extensive history of victimisation perpetrated by her family and ex-partner members.
53 Those who have experienced childhood maltreatment such as Ms Kapua report higher rates, on average, of depression, criminal activity, PTSD symptoms, body image disturbances, sexual concerns, and suicidal ideation, compared to individuals who have not been abused as children …
54 Childhood maltreatment and adult interpersonal violence can have severe consequences for survivors, including the development of psychological disorders such as PTSD …"
Ms Hubner then went on to say:
55 Ms Kapua's diagnosis of PTSD and her alleged offending are considered linked. People react to threat or danger with a system comprised of biological, cognitive and behavioural responses. The biological responses involve a cascade of interdependent neurochemical changes in the brain and body. These changes influence thinking and behaviour. Normally, following the perception of threat or danger, an individual's neurochemistry returns to normal. However, in those with PTSD, the neurochemical responses outlive the threat and inhibit the system's ability to return to normal. Repeated exposure to traumatic events inhibits the neural system's ability to return to normal and changes the system to anticipate and to respond to trauma. Thus, people who have experienced complex trauma often experience poor concentration, poor attention and poor decision-making and judgment.
56 Ms Kapua smoked cannabis and methamphetamines, amongst other illicit substances, around the time of the index offences. The intoxicating effects of these drugs can result in disinhibition, cognitive-perceptual distortions, attention deficits, and poor judgment. Therefore the use of these drugs around the time of her index offending may have heightened her attentional bias towards perceived threat, intensified her reactivity, and negatively impacted her ability to make sound decisions. …
Additional Considerations
59 Ms Kapua was diagnosed with Battered Women's Syndrome (BWS) in 2018. BWS results from exposure to intense and ongoing abuse by a spouse or partner. Women with BWS experience heightened arousal and fear and many have distorted thinking. BWS is not a psychiatric illness but a cluster of depressive and anxiety symptoms related to PTSD. …
60 Although a psychiatric diagnosis cannot be given, it is my clinical opinion that Ms Kapua had BWS in late 2019. Her symptoms included distorted thinking, (ie that her partner had extreme power over and that the abuse she revealed was her own fault and deserved). She also felt powerless and unable to escape her partner's violence (learned helplessness).
…
62 Although Ms Kapua's symptoms of BWS are considered to have impaired her decision making, it is unlikely they would have reduced her capacity to plan or commit the index offences.
63 Ms Kapua advised that between January and April 2020, she was under a considerable amount of stress related to intrusive memories of childhood trauma, the abuse perpetrated against her by her partner, and problems related to illicit substance abuse. This stress may have increased the symptoms of mental illness (and BWS) and further reduced her capacity to make sound decisions." (emphasis added).
The sentencing judge recounted much of the history contained in Ms Hubner's report. He made specific reference to the opening sentence of [55] of the report, in which Ms Hubner drew a link between the applicant's PTSD and her offending, but passed over the remainder of [55] until the last sentence thereof, in which Ms Hubner said that people who have experienced complex trauma "often experience poor concentration, poor attention and poor decision making and judgment". His Honour said:
"Her condition did not mean that she did not understand the nature of what she was doing or was unable to plan in effecting these offences.
The offences involved planning and co-ordination: the use of email accounts in the names of victims and the setting out of bank accounts in the names of victims. She even changed one account online. There was a high degree of persistence on her part with the financial institutions to turn the attempts into a completed crime. If Mr McGorey's [counsel for the applicant] argument is that over a four month period with six different victims the persistent planned and co-ordinated attempts of the offender in opening numerous bank accounts and the use of email accounts in the name of the victims are the result of 'poor concentration, poor attention and poor decision making and judgment', then I reject that argument.
She understood the nature of what she was doing. She is a fraudster. She has a long history, both in this country and in New Zealand, as a fraudster."
In dealing with Ms Hubner's report in this way, the sentencing judge failed to grapple with what Ms Hubner had said. He focused on "poor concentration" and "poor attention" (which he considered were belied by the nature of the offending) to the exclusion of "poor decision-making and judgment". Ms Hubner did not say that the applicant suffered from poor concentration or poor attention, or that her offences were a result of poor concentration or poor attention. To the contrary, she explicitly said, at [62]:
"Although Ms Kapua's symptoms of BWS are considered to have impaired her decision making, it is unlikely they would have reduced her capacity to plan or commit the index offences."
Ms Hubner's point, made repeatedly, was that the applicant's history adversely affected her decision making: see [55], [56], [59] and [62] of her report, all extracted in [19] above. In focussing only on "planning and co-ordination" and the "high degree of persistence" with which the applicant went about her offending, his Honour ignored Ms Hubner's multiple references to the impact of the applicant's history and her mental condition on her decision making and judgment. It is clear from the passage of the remarks on sentence extracted above that his Honour declined to make any allowance for the effect of the applicant's mental condition on her moral culpability (although he did expressly accept that her moral culpability was reduced by reason of her deprived background: see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"). While accepting that the applicant's PTSD required "moderation of general deterrence" his Honour held that "general deterrence still has a role to play in considering the nature and type of offending", and found that:
"the interests of rehabilitation' play a subservant role to general deterrence and specific deterrence".
I have come to the conclusion that the sentencing judge misunderstood the import of Ms Hubner's report and accordingly failed to apply established principles relating to sentencing offenders suffering from mental health conditions. I accept, as Wilson J says, that it was (or would have been) open to the sentencing judge to find that the applicant's mental health condition did not operate to reduce her moral culpability - but only on a proper consideration of the evidence. That was, in this case, lacking.
Two relevant paths to a reduction in moral culpability are recognised in the authorities. One is that commonly referred to as "Bugmy factors"; by which the effects of profound childhood deprivation are to be given full weight in the exercise of the sentencing discretion, because such deprivation "may leave its mark on a person throughout life", and "may compromise the person's capacity to mature and learn from experience".
It has not been suggested in this application that appropriate consideration was not given to the Bugmy principles. The sentencing judge expressly accepted that "the Bugmy principles are enlivened and [the applicant's] moral culpability for this offending is reduced".
There is, however, an additional (not alternative) path to reduction of moral culpability. That is where an offender's mental health condition or circumstances come within the De La Rosa principles. In Williams v R [2021] NSWCCA 15 Rothman J (with whom Johnson and Hamill JJ agreed) found error where a sentencing judge had made allowance for "Bugmy factors" but not for mental health issues. There is no basis for distinguishing the present case from Williams.
In my opinion, on a proper consideration of Ms Hubner's report, and on the proper application of the principles stated in De La Rosa the applicant was entitled to some reduction in the assessment of her moral culpability by reference, not only to her deprived background, but also to her diagnosed mental health condition, and to more significant moderation of general deterrence, for the same reasons.
In my opinion error in this respect has been established. That means that it would be necessary, if other members of the court agreed, to resentence the applicant: Kentwell v The Queen [2014] 252 CLR 601; [2014] HCA 37.
For that purpose the court received additional affidavit evidence "on the usual basis". "The usual basis" was explained in Betts v The Queen (2018) 258 CLR 420; [2018] HCA 25. Evidence of an offender's progress towards rehabilitation post sentencing may be, and routinely is, received by this Court on the limited basis that it may be taken into account in the event that the court finds error in the sentencing exercise comes to resentence: Kentwell at [43]; R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1 at [28]. Betts at [11], citing. Admission of evidence "on the usual basis" received against the possibility that error is found and this Court proceeds to resentence does not justify departure from case presented at first instance, or variation of forensic choices made by (or on behalf of) the offender at sentencing.
Annexed to an affidavit of the applicant's solicitor, Mr William Glowrey affirmed on 20 September 2022 was a bundle of documents produced by the Department of Communities and Justice, the Department of Corrective Services, Justice Health and the Australian Border Force. The purpose of this evidence, it may be taken, was to provide evidence of the applicant's progress towards rehabilitation and the unlikelihood of recidivism. However, some ambiguity and even discrepancies may be discerned in the material provided.
A case note in the records of the NSW Department of Corrective Services dated 1 November 2021 records that the applicant "has a very supportive partner" and that she would be deported to New Zealand on completion of her sentence and that she "is happy with this as she has good family support in Newzealand [sic] and will be living with her parents", and that "she stated that she has a very good relationship with her mother and Dad", and, again, that "she has a very supportive partner and children whom she keeps in contact with regularly."
A later case note (7 June 2022) records that the applicant has four children (she in fact has seven) and that she was "confident that [her husband] is a good father but as a husband not so good" and that "she is not sure that he will change but she appears to want [to] work on the relationship as he is the primary carer of her children".
It is difficult to reconcile the notes that the applicant was happy to return to New Zealand to live with her parents with whom she has "a very good relationship" with the history taken by Ms Hubner.
The notes that the applicant "has a very supportive partner" gave rise to a question by a member of the court as to whether that partner was the husband who had subjected the applicant to lengthy course of domestic violence. In order to explain this, leave was granted to the applicant to file a further affidavit: such an affidavit was affirmed on 18 October 2022. In that affidavit the applicant said that her "very supportive partner" is not her abusive husband but a female (SD) with whom the applicant has entered into a same sex romantic relationship, which commenced while both were in Department of Corrective Services custody. Annexed to the affidavit was a letter written by SD in support of an application made by the applicant for review of a decision made by the Australian Government to cancel her visa. While the letter attested to a close friendship with the applicant, and the willingness by SD to offer support, no mention was made of a romantic relationship. The applicant explained that by saying that SD is still married and, while her husband was aware of the in-custody relationship between the applicant and SD, SD and the applicant were not sure that that support would continue after the applicant's release.
Also annexed to the applicant's affidavit was a letter written by herself in support of her application for review of the visa cancellation decision. In that letter she mentioned SD as one of a number of "friends", who had guaranteed her, on her release, a job cleaning or as a receptionist.
Both letters were written for the purpose of the application for review of the visa cancellation decision and travelled well beyond the subject matter for which leave to file further evidence was granted. The Crown, not unreasonably, objected to receipt of evidence beyond the explanation to references of the applicant's "very supportive partner". I have disregarded the additional content of the letters so far as they go beyond the limited subject matter for which leave was granted.
Given the circumstances in which the issue arose there was, in practical terms, no opportunity for cross-examination of the applicant. No real assessment of her credibility with respect to these issues could be made. On consideration, I would accept that the applicant's relationship with her husband has come to an end and that she is in a continuing and supportive relationship with SD. There remain, however, difficulties in reconciling discrepant accounts as recorded in the case notes with what was recorded by Ms Hubner.
Unaware of the relationship with SD, Ms Hubner assessed the applicant's prospects of rehabilitation as "guarded", an assessment with which the sentencing judge concurred. Notwithstanding the applicant's new relationship, having regard to the applicant's history of offending, I do not see any basis for a more favourable assessment.
I have come to the conclusion that, making due allowance for the applicant's diminished moral culpability by reason of her diagnosed PTSD and unstable mental condition, the applicant should be sentenced to an aggregate term of imprisonment of 5 years and 3 months; accepting, as did the sentencing judge, that special circumstances exist warranting a modest departure from the statutory ratio between the head sentence and the non-parole period prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I would specify a non-parole period of 3 years and 8 months.
The individual sentences I would specify are (by reference to the table in the judgment of Wilson J):
Sequence 10: attempt to dishonestly obtain a financial advantage by deception ($231,455): imprisonment for 2 years;
Sequence 11: attempt to dishonestly obtain a financial advantage by deception ($530,247.24): imprisonment for 2 years 9 months;
Sequence 12: attempt to dishonestly obtain a financial advantage by deception ($144,500): imprisonment for 1 year and 6 months;
Sequence 13: attempt to dishonestly obtain a financial advantage by deception ($43,000): imprisonment for 1 year;
Sequence 14: attempt to dishonestly obtain a financial advantage by deception ($181,200): imprisonment for 1 year and 9 months;
Sequence 15: attempt to dishonestly obtain a financial advantage by deception ($244,100): imprisonment for 2 years;
Sequence 16: deal with proceeds of crime: imprisonment for 6 months;
Sequence 17: dishonestly obtain property by deception ($6,477): imprisonment for 9 months;
Sequence 18: dishonestly obtain property by deception ($2426): imprisonment for 6 months.
The orders I would make are:
Leave to appeal granted;
Appeal allowed, sentence imposed on 8 September 2021 set aside;
In lieu thereof, the applicant is sentenced to a term of imprisonment made up of the non-parole period of non-parole period of 3 years and 8 months with a balance of term of one year and 9 months, the sentence to commence on 30 April 2020 and to expire on 29 July 2025. The applicant to be eligible for release on parole on 29 December 2023.
DAVIES J: I agree with Wilson J.
WILSON J: On 8 September 2021 an aggregate sentence of 6 years imprisonment with a non-parole period ("NPP") of 4 years and 3 months was imposed upon the applicant, Marjorie Te Kapua, before the District Court sitting at Albury with respect to a number of dishonesty offences, to which she had earlier pleaded guilty. Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) she seeks leave to appeal against that sentence.
The sentence reflected nine offences, with two further offences taken into account on two Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It commenced on 30 April 2020 and expires on 29 April 2026. The NPP expires on 29 July 2024.
The offences and indicative sentences are set out below.
Seq. Offence Maximum Penalty Indicative Sentence
10 Attempt to dishonestly obtain a financial advantage by deception ($231,455) 10 years 2 years 6 months
s 192E(1)(b) / s 344A Crimes Act
Attempt to dishonestly obtain a financial advantage by deception ($530,247.24)
11 s 192E(1)(b) / s 344A Crimes Act 10 years 3 years and 6 months
Form One offence (seq. 2) taken into account
12 Attempt to dishonestly obtain a financial advantage by deception ($144,500) 10 years 2 years
s 192E(1)(b) / s 344A Crimes Act
Attempt to dishonestly obtain a financial advantage by deception ($43,000)
13 s 192E(1)(b) / s 344A Crimes Act 10 years 18 months
Form One offence (seq. 4) taken into account
14 Attempt to dishonestly obtain a financial advantage by deception ($181,200) 10 years 2 years and 3 months
s 192E(1)(b) / s 344A Crimes Act
15 Attempt to dishonestly obtain a financial advantage by deception ($244,100) 10 years 2 years and 6 months
s 192E(1)(b) / s 344A Crimes Act
16 Deal with Proceeds of Crime 3 years 6 months
S 192C(2) Crimes Act
17 Dishonestly obtain property by deception ($6,477) 10 years 12 months
S 192E(1)(a) Crimes Act
18 Dishonestly obtain property by deception ($2426) 10 years 6 months
S 192E(1)(a) Crimes Act