KENNEDY, James Anthony v R

Court of Criminal Appeal (NSW)|2008-02-05|Before: Beazley JA, James J, Kirby J

Background facts 3 The applicant, who was born in January 1988, was 17 years and 9 months at the time of the offence. He had been in a de facto relationship with the victim of the assault, who was 24 years of age at the time of the offence, for about 13 to 14 months. Both the applicant and the victim are of Aboriginal descent. Their relationship had been volatile and on 15 August 2005, the police took out an interim AVO on the victim's behalf, after she had "kicked [the applicant] out" of their place of cohabitation in Forbes. Their relationship resumed a short time thereafter and they went to Broken Hill together. However, there were further difficulties and the victim left the relationship, and on 5 September 2005, the original interim AVO was extended. The applicant and the victim had reunited again shortly prior to the date of the offence. 4 On 4 October 2005, the day of the offence, the applicant, the victim and a friend had been drinking at different places from the afternoon onwards. The offence occurred at about 10pm, shortly after the three left the Wilcannia Golf Club together. The assault was particularly violent and was unprovoked. The victim suffered severe physical injuries, including facial fractures, fractures to her nasal bones and fractures of the mandible, as well as multiple dental injuries. She required hospitalisation and was flown to the Royal Adelaide Hospital for treatment, including surgery. She was in hospital for two weeks. In addition to the sequelae of her physical injuries, she has ongoing psychological problems of depression and anger. 5 The applicant left the scene of the assault and went to his aunt's home. He informed another occupant of the house that he had "bashed" the victim. He then went to bed. Early the next day, 5 October 2005, the applicant stated to his aunt that he didn't know what he had done to the victim, but that he knew he had "played up". His aunt counselled him to turn himself into the police. Later that morning, the applicant went to the police station to "hand himself in". An ERISP was conducted at about midday on 5 October 2005, but the applicant said that he did "not want to talk" about what had happened on the previous evening. Subsequently, on 15 August 2006, he pleaded guilty at the District Court to the count of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm. 6 The applicant's personal background reveals problems of severe social and educational dislocation. His parents separated when he was 8 years of age and he was brought up by his aunts. He was exposed to domestic violence and physical abuse, including one occasion of sexual abuse. He has had limited contact with his seven younger siblings. He had learning problems at school and left at age 14. He was essentially illiterate at the time of offence, although his reading and writing skills have improved since being in custody. 7 At age 15 he was diagnosed, it would seem, with schizophrenia, for which he was prescribed medication. However, as at the date of the assault, he had not taken his medication for approximately three weeks. Dr Stephen Allnutt, Forensic Psychiatrist, in a report which was in evidence before the sentencing judge, recorded that the applicant explained to him that his medication had been in the victim's bag and that he did not have access to it because she had taken it with her when she left the relationship. In his evidence before the sentencing judge, the applicant repeated this explanation. He also said that he had started to feel unwell because he was not taking the medication and he knew that he needed to obtain a further prescription. However, he said his father was ill and he did not want to leave his side. He said that before he had arranged to get another prescription, the victim had returned and asked him to go to Wilcannia with her. 8 In sentencing the applicant, the sentencing judge took into account: the applicant's prior criminal record, a matter to which I will return; his schizophrenia to which I will also return; and his generally disadvantaged background, including his poor educational level. His Honour then dealt specifically with s 21A of the Crimes (Sentencing Procedure) Act, which requires a court to take into account aggravating and mitigating factors when sentencing. His Honour found that the fact that the applicant was subject to an AVO at the time of the incident, which had been taken out to protect the victim, was an aggravating factor. He took into account, as mitigating factors, the applicant's attendance at the police station the day after the offence; his plea of guilty; and his contrition. His Honour also took into account the applicant's youth and his psychological problems. 9 His Honour found that the offence was objectively very serious, so as to place it in the upper level of seriousness. His Honour observed that ss 54A and 54B provided that a minimum non-parole period of 7 years should be applied in the case of an offence of the mid-range of seriousness. On that basis, his Honour considered that a non-parole period in this case could be anything of up to 10 years. His Honour referred, however, in general terms, to Court of Criminal Appeal authority to the effect that the minimum non-parole period specified in s 54A was more relevant where there had been a trial. In this matter, of course, there had been a plea of guilty. His Honour also observed that with a person just under 18 years at the time of the offence, a sentence that was too long may be counter-productive and undermine the protection of the community that sentencing was intended to achieve. His Honour considered that the appropriate sentence was 7 years imprisonment. He found special circumstances and thus varied the standard ratio of the non-parole and parole period and ordered a non-parole period of 4 years.

The grounds of appeal 10 It is convenient to first deal with ground 2 of the appeal.

Ground 2: his Honour was in error in finding that the applicant's "psychological status was of his own default" 11 The sentencing judge accepted that the applicant had been diagnosed with a psychological disorder. Dr Allnutt, who saw the applicant on 18 December 2005 and again on 21 June 2006 and whose reports dated 13 January 2006 and 29 June 2006, respectively, were before the sentencing judge, made a differential diagnosis of Schizophrenia, Schizoaffective Disorder, Depression with psychotic features and Drug Induced Psychosis. 12 Dr Allnutt recorded a history of hallucinations, including, relevantly, in the weeks immediately preceding the offence and at the time of the offence. Dr Allnutt found that there was "… insufficient evidence to conclude that [the applicant's] 'defect of reason' caused him to not know the nature and quality of his actions."

He also found that there was "… insufficient evidence to conclude that [the applicant] lacked capacity to understand the wrongfulness of his actions." 13 These matters were relevant to whether the applicant had the requisite mens rea, in particular, whether he had requisite intent so as to be guilty of the serious crime with which he was charged: s 33, or whether his offence was properly charged under s 35. This question does not have present relevance, save that it is convenient to mention the matter at this point in dealing with the applicant's psychotic status, because it explains the delay in the applicant's formally entering the plea of guilty. 14 The sentencing judge dealt with the applicant's mental status in two respects. First, his Honour referred to the applicant's evidence that he did not remember what had happened and to the references to auditory hallucinations. His Honour appeared to give this no weight, to the extent that he found that the applicant's state of mind was induced by his failure to take his medication, such that his "psychological status was of his own default". Secondly, his Honour took the applicant's mental status into account as a mitigating factor. 15 Counsel for the applicant submitted that the sentencing judge erred in two respects in the manner in which he dealt with the applicant's psychiatric status. First, it was submitted that the seriousness of the offence was to be judged by reference to both the actions of the offender (the actus reus) and his mental state (the mens rea). If by reason of mental illness the offender's appreciation of his actions or capacity for self-control was impaired, his culpability is diminished. It was submitted that his Honour's findings, that the applicant's mental state "was of his own default", which is the second error alleged under the ground, meant that his Honour erred in the first respect which I have identified. I will deal with the second of these challenges first. 16 The applicant gave a history to Dr Allnutt that he heard voices prior to the assault, telling him to harm the victim and also commanding him to harm himself. In his evidence before the sentencing judge, the applicant repeated this and said that he did not remember committing the assault. The applicant also explained in his evidence that he had not been taking his medication because it was in the victim's bag when she had left him three weeks previously. He agreed in cross-examination that he was aware that he "knew how to get more pills"; that he knew that he needed to go and see a doctor; and he knew that he needed more pills because he was starting to feel unwell. The applicant said, however, that he did not do so because his father was ill and did not want him to leave. He also said that there was no doctor in Broken Hill, there was only the "health man". He said that by the time he was going to look to obtaining the medication, the victim had returned to him and asked him to accompany her to Wilcannia. 17 The applicant submitted that the sentencing judge's finding that the applicant's psychological status was of "his own default" had not been established beyond reasonable doubt: see The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [27]-[28], or, at least, that it was not apparent from his Honour's reasons that he had applied the criminal standard in making the finding adverse to the applicant. He further submitted that his Honour had failed to give reasons for his finding: see R v Thomson; R v Houlton [2007] NSWCCA 309; (2000) 49 NSWLR 383 at [42]. It was submitted that the sentencing judge did not state why he rejected the applicant's evidence and in this respect failed to accord procedural fairness. There was no dispute that the principles relied upon by the applicant were correctly stated and governed his case. 18 His Honour's finding was in these terms: "… whilst the prisoner before me stated that he did not remember what happened - although made reference to auditory hallucinations - he had for some years been aware of his mental problem and was on medication but at the time had not been taking his medication so his psychological status was of his own default. " 19 It is difficult to know from his Honour's reasons whether he was satisfied beyond reasonable doubt that the applicant's psychological status was of "his own default". The fact that the applicant had not been taking his medication was certainly established at the requisite standard. However, the question of whether that was as a result of the applicant's "own default" (and whether that was established beyond reasonable doubt) required a consideration of all of the circumstances which led to and/or surrounded the applicant not taking his medication, which in turn affected his mental state. I have outlined those above at [16]. None are referred to in his Honour's reasons. 20 The absence of reference to any of these matters makes it likely that his Honour considered them to be irrelevant factors or, alternatively, his Honour totally overlooked them. In my opinion, they were not irrelevant, although his Honour would have been entitled to treat the applicant's evidence as to why he had not taken his medication as he thought fit. That is, his Honour could have accepted some of the evidence as truthful; rejected some or all of its truthfulness, or placed varying degrees of weight upon it. 21 However, his Honour did not expressly reject the applicant's evidence and if he did, he was required to explain why that was so. But, in any event, there were aspects of the explanation given by the applicant that his Honour appears to have accepted that required substantial weight to be given to them. In particular, it was relevant that the victim had taken the applicant's medication with her. That appears to have been accepted. That was the precise reason he was not taking his medication and substantial weight should have been given to that factor. The applicant was restrained by the terms of the AVO from contacting the victim. The existence of the AVO was also relevant to the question of whether the applicant could have approached the victim to obtain his medication. This was relevant, notwithstanding that the victim herself was content from time to time to ignore its operation. 22 Next, the applicant was aware that he needed his medication as he was beginning to feel unwell. While in normal circumstances that might be an indicator that as a matter of common sense he should have taken steps to obtain further medication, it cannot be assumed that common sense operates when a person, because of a mental condition, is feeling unwell. Indeed, it is likely that such a person would be less likely to be able to take appropriate steps for his or her own care. As I understand it, senior counsel for the Crown reasonably acknowledged that this was likely to be so. 23 The applicant was also young and was coping with a number of serious personal matters: not only was he mentally unwell, his partner had left him; he was subject to an AVO; his father was ill and he was either not in his usual home town or was itinerant and did not have a 'home town', so that he was unfamiliar with the medical services in Broken Hill. He said that there was no doctor, only a "health man". Broken Hill remains a major regional centre, notwithstanding the significant decline in its population over the last two to three decades, and I would have expected that medical services were available. However, the applicant's evidence is, perhaps, best understood as evidence that the only medical services that the applicant knew or believed were available to him were from a "health man". 24 Even if a doctor was available for him to consult, it might be thought to be unlikely that a general practitioner could, on a single consultation with an unfamiliar patient, diagnose schizophrenia and prescribe medicine. Other possibilities present themselves, of course. A general practitioner consulted in such circumstances might have been able to contact the original prescribing doctor. Whatever be the case, these considerations indicate that it was not necessarily a straightforward matter for the applicant to have obtained new medication. 25 As I have indicated, the applicant challenged his Honour's finding in two respects: a failure to make the finding he did on the requisite standard of proof and a failure to give reasons. In respect of the latter complaint, Hayne J, in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402, explained that a complaint of a failure to give reasons may have two aspects. His Honour said at [129]-[130]: "Reference was made in argument to the 'sufficiency' of the primary judge's reasons. When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.

In the present case, however, reference to the 'sufficiency' of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue." (References omitted) 26 In my opinion, the error here is the second of the errors identified by Hayne J. If a trial judge fails to examine all of the material relevant to a particular issue, it follows that a conclusion reached by the judge, without examining all of the relevant material, is tainted. It must also follow, by the very fact of the failure to consider relevant matters, that such conclusion cannot be arrived at beyond reasonable doubt, or if it is purported to be a finding made beyond reasonable doubt, such a finding would be flawed. 27 These considerations are sufficient to uphold ground 2 of the appeal. The effect that his Honour's error had on the sentencing process falls for consideration under ground 1.

Ground 1: his Honour erred in impermissibly confining his sentencing discretion 28 The applicant submitted that the sentencing judge erred in the exercise of his discretion by focussing upon the standard non-parole period in order to determine the appropriateness of the sentence. It was submitted that the following passages reveal the error of which complaint is made: "So while finding that objectively an attack like the one before me which left the victim so seriously injured must be placed in the upper level of seriousness and thus if the legislature has decreed through the minimum non parole period tariff that seven years non-parole period is in the mid range, then this would suggest that the non parole period here could be anything up to ten years in the circumstances of this case. However the Court of Criminal Appeal has considered that the minimum non parole period in the table referred to in s 54 is more relevant to where there has been a trial on the matter and that where there has been a plea of guilty there must still be some scope to apply sentence after fully considering the subjective and objective features. (Remarks on Sentence 9)

One way to approach this case before me now is to acknowledge that objectively the facts put this offence into a range of twelve years or more for a head sentence but considering the plea of guilty, the age of the offender, his history of a disadvantaged background and his psychological problems, the need to protect the community in the future by rehabilitation rather than by a long term custodial term, that even after exercising my discretion in considering a head sentence lower than expected from the tariff suggested by the minimum non parole period legislation, I find special circumstances to vary the standard ratio of the non parole and parole period." (Remarks on Sentence 9-10) 29 The applicant contends that it is apparent from the sentencing judge's reasoning in these passages that his Honour erred by using the standard non-parole period as a starting point, contrary to the principles stated in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. 30 Section 54A of the Crimes (Sentencing Procedure) Act provides as follows: " 54A What is the standard non-parole period?

(1) For the purposes of this Division, the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division."

The standard non-parole period for an offence under s 33 of the Crimes Act is 7 years. 31 Section 54B of the Crimes (Sentencing Procedure) Act provides: " 54B Sentencing procedure

(1) This section applies when a court imposes a sentence of imprisonment for an offence set out in the Table to this Division.

(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

(5) The failure of a court to comply with this section does not invalidate the sentence." 32 In Way, this Court (Spigelman CJ, Wood CJ at CL and Simpson J) considered the proper approach to s 54B. The Court stated at [117] that in order to give effect to Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act, in which ss 54A and 54B appear: "… a sentencing judge must ask and answer the following question: 'are there reasons for not imposing the standard non-parole period?'" 33 The Court stated at [118]: "That question will be answered by considering:

(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed , so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1)." (Emphasis added) 34 The Court stated that if the question posed was answered affirmatively, then the court, in the exercise of its sentencing discretion, should proceed in accordance with established sentencing practice and by reference to the matters identified in ss 3A, 21A, 22, 22A and 23 of the Crimes (Sentencing Procedure) Act. On this approach, the Court stated, at [122], that "… the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant." 35 The Court concluded, at [130], that the purpose behind Div 1A of Pt 4 was to provide a guidepost or benchmark against which the case at hand could be compared and was not intended to mandate the sentence to be imposed or to remove the sentencing discretion. Their Honours added at [131]: "What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act." 36 In Mulato v R [2006] NSWCCA 282, Spigelman CJ confirmed what the Court had said in Way. His Honour, at [13], also confirmed that it was well established that it was an error of sentencing principle to select a specific figure by way of sentence and to add or subtract matters item by item in some sort of mathematical process. Such an approach constituted legal error because it "impermissibly confines the sentencing discretion": see also Markarian v R [2005] HCA 25; 228 CLR 357 at [30]-[31]. 37 In this case, the sentencing judge characterised the offence as being in the "upper level of seriousness". His Honour specified what he considered was the applicable non-parole period, given that characterisation, then took into account such matters of mitigation as he considered relevant. The Crown submitted that the sentencing judge's comment that the offence fell within the "upper level of seriousness" was unfortunate and that his Honour really meant that the offence fell above "the middle of the range of seriousness that called for a non-parole period of up to ten years imprisonment". The Crown submitted that despite the unfortunate reference and having regard to what his Honour really meant, there was no error in the result of the sentencing process. It was said that such a characterisation, that is, as the Crown contended, that the offence fell above "the middle of the range of seriousness", was open to his Honour. The Crown further pointed out that this was one of those offences where the standard non-parole period was considerably less than half the maximum penalty, reflecting the wide range of conduct that fell within the terms of this particular offence. That being the case, it was submitted that the standard non-parole period was of less relevance as a guidepost than was the maximum penalty in determining the appropriate sentence: see R v Marshall [2007] NSWCCA 24 at [34] and R v Mitchell; R v Gallagher [2007] NSWCCA 296 at [36]-[37]. 38 In my opinion, his Honour's statement that this case fell within the "upper level of seriousness" should be accepted as being the seriousness in which he classified the applicant's offending. But even if his Honour's remarks should be understood as a finding that the offence was above the middle range of seriousness, it is still necessary to determine whether his Honour correctly approached what I will describe as the 'classification process' in determining the objective seriousness of the offence. Way, at [118], requires the court, in determining the "objective seriousness of the offence", to have regard to the facts "which relate directly to its commission". This includes the seriousness of the physical attack. It also includes the factors which "may explain why [the offence] was committed". 39 This is apparent from Way, where Spigelman CJ said at [86]: "Some of the relevant circumstances which can be said 'objectively' to affect the 'seriousness' of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence." 40 The sentencing judge in this case, in determining the objective seriousness of the offence, only had regard to the physical aspects of the assault. This is apparent from his Honour's comment, reproduced at [*28] above, that "So while finding that objectively an attack like the one before me which left the victim so seriously injured must be placed in the upper level of seriousness …"

and his later comment "One way to approach this case before me now is to acknowledge that objectively the facts put this offence into a range of twelve years or more for a head sentence but considering the plea of guilty, the age of the offender, his history of a disadvantaged background and his psychological problems …" 41 His Honour, in having regard to the applicant's psychological problems in this second passage, did so in the context of considering the mitigating factors relevant to the applicant's circumstances. As Way makes clear, an accused person's psychological condition may explain why an offence was committed and in this case, did so for the reasons I have already explained. The applicant had a mental illness which was incapacitating him at the time of the offence. In particular, he was hearing hallucinatory voices urging him to harm the victim. 42 For that reason, I consider that his Honour erred. But in any event, regardless of that error, I consider that the classification of the offence as being in the "upper level of seriousness" reveals an error in the evaluative process that s 54A requires. A court will not readily interfere in such an evaluative exercise undertaken by a sentencing judge. However, the Crown, by seeking to describe his Honour's finding in different terms, effectively recognises the error. Having regard to the wide range of factual circumstances which are captured by an offence under s 33, and as serious as this offence was, I am of the opinion that this sentence should properly be classified as in the mid-range of seriousness. My view is reinforced when regard is had to the circumstances in which the offence was committed. Those factors would lead me to view this offence as being at the lower end of the mid-range of seriousness. 43 The applicant has thus established error in two significant respects. However, the Court will only interfere with the sentence if it considers that some other sentence is warranted in law: see the Criminal Appeal Act 1912, s 6(3). The Crown contends that in this case, no other sentence is warranted in law. As the Crown's position on sentence throws up the question of what sentence was warranted and that question in turn raises the question of what effect the applicant's mental state and age should have had on the sentence, it is convenient to consider those matters under the rubric of grounds 3 and 4. 44 I should only add that, having regard to the errors that I have concluded were made by his Honour, it is not necessary to deal with the error as alleged by the applicant in ground 1. I should also state that when the matter was argued on the appeal, the errors which I have concluded were made, came into focus and were subject of argument by both parties.

Ground 3: his Honour failed to appropriately take into account the applicant's mental disorder when imposing sentence 45 In R v Wright (1997) 93 A Crim R 48, Hunt CJ at CL (Gleeson CJ and Hidden J agreeing) referred to the sentencing principle that the fact that an accused suffered from a mental illness did not lead to an automatic reduction in the weight to be given to general deterrence. In Wright, the applicant had not taken his medication for 3 days, having left his parents' home following a dispute, without taking his medication with him. In the subsequent days he was intoxicated, both with marijuana and amphetamines, which led to a psychotic state. Hunt CJ at CL considered that in those circumstances, the applicant's mental state was not a matter of mitigation. 46 The applicant in this case submitted that in the circumstances of his case, where his failure to take his medication was not due to his own fault, he was entitled to the principles that govern a person who is mentally ill, as stated in R v Hemsley [2004] NSWCCA 228. 47 In Hemsley, Sperling J, with whom Grove and Dowd JJ agreed, stated: "[33] Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

[36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]." 48 In the present case, the sentencing judge recognised the applicant's "clear psychological problems". He observed that in such circumstances "general and even particular deterrence" was of less weight and may also influence the need for rehabilitation. His Honour further observed it might impact on the applicant's moral culpability, although he dismissed that as being the case here (this is the matter raised in ground 2). 49 His Honour also referred to R v Israil [2002] NSWCCA 255. He said that in that case, it was held that where a person was under a mental illness at the time of the offence, so as to be unable to make a reasoned or ordered judgment and thus had a limited appreciation of the wrongfulness of the act, that may be a factor which reduced the implications of general and even specific deterrence, and also influenced the need for rehabilitation. His Honour sought to give effect to that consideration here by finding special circumstances. In my opinion, that was an error and failed to give effect to the principles in Hemsley. Those factors are relevant not only to the non-parole period, but also to the total sentence that is to be imposed in a particular case. Ground 3, therefore, has also been made out.

Ground 4: failure to properly take into account the applicant's youth in the sentencing process 50 The sentencing judge acknowledged the applicant's youth and in doing so was concerned with the need to impose an appropriate sentence in order to pay appropriate regard to the need for the applicant's rehabilitation. This is in accordance with principle: see GDP (1991) 53 A Crim R 112 at 116. It was submitted that, having regard to the sentence imposed, it was apparent that his Honour failed to properly reflect that principle in the ultimate sentence. However, as I have already found error in the sentencing judge's approach, it is not necessary to determine whether error on this basis has been made out. Rather, it is convenient to move to the question whether some other sentence was warranted in law.

Was some other sentence warranted in law? 51 The sentence imposed upon the applicant was 7 years imprisonment with a non-parole period of 4 years. In the course of these reasons, I have already referred to the matters taken into account by the sentencing judge. One of the factors that was relevant was the applicant's prior criminal history. The sentencing judge took into account that the applicant had a record in the juvenile court system of drive with a mid-range PCA and drive vehicle recklessly in 2004, and a common assault in 2005. In submissions to this Court, the Crown submits that the applicant's criminal history was in fact more serious than it was made known to the trial judge. The applicant had committed a number of offences that had been dealt with in the Children's Court mainly in 2002 for offences of break enter and steal, resist/hinder police, offensive language and additional driving matters. That record was before the Court and was not objected to. In addition, the applicant was convicted of a further assault on 15 May 2006. This offence occurred after the present offence but before sentence and was made known to the sentencing judge. The Crown submits that the commission of the second assault was relevant to the assessment of the applicant's true remorse and prospects of rehabilitation: R v Jancescki (No 2) [2005] NSWCCA 288; (2005) 44 MVR 328 at [34]. As I understand the Crown's approach to the full extent of the applicant's history, it is that if error in the sentencing process is established, this Court on re-sentence will have regard to the applicant's full criminal history. I consider that it is correct to do so. 52 In my opinion, there are a number of matters relevant to the question of whether some sentence other than that imposed was warranted in law. The first is the failure to take into account appropriately the reasons surrounding the applicant's failure to take his medication in the weeks leading up to the offence, so as to wrongly classify the seriousness of the offences. Secondly, his Honour failed, in my opinion, to appropriately and sufficiently take into account the applicant's mental condition. The third is the applicant's youth. He was not yet 18 at the time of the commission of the offence. I have already discussed the principles that relate to these issues. Further, this was the applicant's first custodial sentence. His historical and ongoing familial circumstances were ones of considerable social and medical disadvantage, including his serious mental disability. It is apparent from the applicant's evidence before the sentencing judge that he has obtained some educational benefits from his imprisonment to date. That is encouraging in terms of his prospects of rehabilitation. Although this was not the applicant's first offence, it is the first offence in which he had been dealt with in the adult system and the first period of imprisonment, although the sentencing judge did order that this be served in a juvenile detention centre. The applicant should also be sentenced on the basis that his offence was in the lower part of the mid-range of seriousness. I am also of the opinion that the applicant should be given the full benefit of an early plea. 53 I consider that the appropriate sentence in this case is 6 years. Such sentence of itself requires a departure from the standard non-parole period. This is also a case where, because of the applicant's age, mental health and better prospects of rehabilitation than were first apparent, I find special circumstances and thus vary the statutory proportion between the term of imprisonment and the non-parole period. For the reasons specified by his Honour, there should be a finding of special circumstances and I would impose a non-parole period of 3 years. 54 The orders I propose are:

Quash the sentence imposed by Woods ADCJ on 27 October 2006;

The applicant is sentenced to a term of imprisonment consisting of a non-parole period of 3 years dating from 5 October 2005 and expiring on 4 October 2008 with a balance of term of 3 years commencing on 5 October 2008 and expiring on 4 October 2011. 55 JAMES J: I agree with Beazley JA. 56 KIRBY J: I agree with Beazley JA. **********

03/03/2008 - Date of balance of term corrected - Paragraph(s) 54

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.

CITATION: KENNEDY, James Anthony v R [2008] NSWCCA 21 This decision has been amended. Please see the end of the judgment for a list of the amendments.

GDP (1991) 53 A Crim R 112 Markarian v R [2005] HCA 25; 228 CLR 357 Mulato v R [2006] NSWCCA 282 R v Hemsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 255 R v Jancescki (No 2) [2005] NSWCCA 288; (2005) 44 MVR 328 CASES CITED : R v Marshall [2007] NSWCCA 24 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Thomson; R v Houlton [2007] NSWCCA 309; (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v Wright (1997) 93 A Crim R 48The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402

His Honour erred in finding that the applicant's " psychological status was of his own default " (a) The sentencing judge erred in his failure to give reasons for his finding that the applicant's psychological status was by his own default. In particular, the sentencing judge's failure to examine the circumstances that had led the applicant to cease taking his medication. Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 (applied); R v Thomson; R v Houlton [2007] NSWCCA 309; (2000) 49 NSWLR 383 (referred to).

(b) The failure to consider these matters meant that the sentencing judge could not have arrived at such a conclusion beyond reasonable doubt [25] - [27]. The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 (applied)

(1) The sentencing judge erred in assessing the offence as being in the upper level of seriousness. (a) The sentencing judge erred in determining the objective seriousness of the offence by only having regard to the physical aspects of the assault, and failing to consider the applicant's psychological condition with respect to this objective seriousness [38] - [40]. R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 (applied) (b) Having regard to the wide range of factual circumstances captured by an offence under the Crimes Act 1900, s 33, the sentence should be classified in the mid-range of seriousness [42]. (2) (obiter) The purpose behind the Crimes (Sentencing Procedure) Act 1999, Part 4 Div 1A (here ss 54A and 54B) is to provide a guidepost against which the case at hand can be compared. It was not intended to mandate the sentence to be imposed or to remove the sentencing discretion [35]. It is an error of sentencing principle to select a figure by way of sentence and to add or subtract mitigating factors, as that impermissibly confines the sentencing discretion [35] - [36]. R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 (applied); Mulato v R [2006] NSWCCA 282 (applied); Markarian v R [2005] HCA 25; 228 CLR 357 (cited).

His Honour failed to appropriately take into account the applicant's mental disorder when imposing sentence Having regard to the applicant's mental disorder, it was necessary to consider whether his condition relevantly contributed to the commission of the offence in a material way such that the applicant's moral culpability was reduced [46] -[49]. R v Wright (1997) 93 A Crim R 48 (distinguished); R v Hemsley [2004] NSWCCA 228 (applied); R v Israil [2002] NSWCCA 255 (considered)

Re-sentencing of the applicant was warranted in law The sentencing judge failed to appropriately take into account the reasons surrounding the applicant's failure to take his medication, so as to wrongly classify the seriousness of the offence, and failed to appropriately take into account the applicant's mental condition. Considering these factors, as well the applicant's personal circumstances and prospects for rehabilitation, the applicant was re-sentenced to a non-parole period of 3 years with a balance term of 3 years. R v Jancescki (No 2) [2005] NSWCCA 288; (2005) 44 MVR 328 (cited)

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