Lewis v R

Court of Criminal Appeal (NSW)|2011-08-17|Before: Whealy JA, Latham J, Harrison J

Stewart John Lewis (Applicant) Crown (Respondent) Representation: A W Hunt (Applicant) N Noman (Respondent) B Sandland (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/243069 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-08-19 00:00:00 Before: Freeman DCJ File Number(s): 2009/217585

Judgment 1WHEALY JA : I agree with the judgment of Harrison J and the orders he proposes. 2LATHAM J : I agree with Harrison J. 3HARRISON J : The applicant pleaded guilty before Payne DCJ on 20 May 2010 in the Armidale District Court to a series of offences. Freeman DCJ sentenced him for those offences on 19 August 2010 as follows: Count 1 : 2 years and 6 months with a non-parole period of 1 year and 10 months to date from 4 February 2009 and to expire on 3 December 2010. Count 2 : (taking into account items on the Form 1), 1 year and 8 months with a non-parole period of 1 year and 3 months to date from 4 August 2010 and to expire on 3 November 2011. Count 3 : (taking into account the item on the Form 1), 2 years and 6 months with a non-parole period of 1 year and 10 months to date from 4 August 2011 to expire on 3 June 2013. Count 4 : 5 years with a non-parole period of 1 year and 8 months to date from 4 December 2012 to expire on 3 August 2014. Two s 166 matters : in each case, 6 months fixed term to date from 4 February 2009 to expire on 3 August 2009. 4The applicant was sentenced to a total term of imprisonment of 8 years and 10 months commencing on 4 February 2009 and expiring on 3 December 2017 with a non-parole period of 5 years and 6 months expiring on 3 August 2014. The applicant now seeks leave to appeal against the severity of the sentences imposed upon the following grounds: Ground 1 : The sentencing judge failed to have proper regard to the sentencing principles relating to mental illness and failed to give proper weight to the mental illness of the applicant when sentencing him. Ground 2 : The sentencing judge failed to have proper regard to the totality principle in his accumulation of sentence. Ground 3 : The sentencing judge failed to consider that the steal from dwelling offence could have been dealt with in the Local Court. Ground 4 : The sentence is manifestly excessive.

Background 5The following facts were agreed. 6With respect to count 1, the victim's partner woke in the early hours of 4 January 2009 to find the applicant standing in the doorway of their bedroom. He called out to the victim to turn her light on, which she did. The applicant could then be seen standing in the room. The victim told the applicant to leave and followed him out. She was then naked. As she went to close the door behind him, the applicant grabbed her on her crotch and said, "I love you". The victim pushed his hand a way and said, "Don't touch me". She shut and locked the door behind him. The applicant was employed to mow lawns that included the premises occupied by the victim. These facts constituted the break and enter and commit serious indictable offence charge. 7The victim of count 2 was absent from her residence at New England Girls' School between December 2008 and 19 January 2009. During that time she received two sexually explicit and offensive text messages from the applicant. These are the subject of charges on a Form 1. Upon her return to her residence the applicant found a note under her door. It was in similarly explicit and offensive terms. The victim reported this to the police. She moved out of the premises two days later. These facts constituted the intimidate offences. The Form 1 contains a further offence involving another customer of the lawn mowing business. The applicant also left a note in similarly explicit and offensive terms, which included his mobile telephone number. 8The victim of count 3 also lived at the school. She was on holidays between 22 November 2008 and 27 December 2008. On her return she washed her laundry and left it on racks to dry. She then spent three days away from the premises. Upon her return she discovered that ten pairs of her underpants had been stolen. She went to stay with her boyfriend for a few days on 3 February 2009. She left her room closed but not locked. On 6 February 2009 the victim attended the police station to make a statement. She identified her stolen property, including a video camera and a bikini bottom that she had not previously missed. These items relate to the steal from dwelling offence and the larceny charge, relating to about ten pairs of underpants, on the Form 1. 9The victim of count 4 was a 17-year-old female living at the school. Early on the morning of 4 February 2009 the applicant entered her bedroom as she slept and placed his hand inside her underpants. He inserted his fingers into her vagina. He continued this with increasing force as the victim awoke from her sleep. The applicant restrained the victim and despite her calling for help he persisted pressing his fingers into her vagina. This did not cease until the applicant fled following noise from an adjacent room. 10His Honour Freeman DCJ made the following findings. The applicant was heavily intoxicated when he committed the offences on 3 February 2009, and his intoxication contributed to the commission of the offences. The applicant has an intellectual disability that causes him difficulty in foreseeing the long-term consequences of his actions. The applicant has extremely limited interpersonal skills and coping abilities, equivalent to the level of functioning of a six year old, and he is prone to anti-social behaviour. The applicant's poor frontal lobe function produces a tendency to be impulsive, to feel entitled and to be disinhibited. The applicant had sufficient wit to proffer an explanation to police for his presence in the school grounds when he was apprehended on the morning of 4 February 2009. There had been a level of planning overnight on 3 February 2009 to commit "some evil doing under cover of darkness", if not the specific offences themselves. The applicant suffers from alcohol related brain damage and chronic alcoholism. His criminal history is of benefit to him as he has not previously offended in a similar way. The applicant progressed fairly rapidly from stealing women's underwear in late 2008 to a forceful, sustained and apparently uninhibited sexual assault on 4 February 2009. There is a moderate risk of reoffending. Special circumstances existed because of the manner in which the applicant will be held in custody.

Ground 1 11His Honour accepted the applicant's submission that the delay in entering his guilty plea was explained in part by the need to have him assessed as to his fitness and the difficulties in getting him fully to understand the implications of the charges that he faced. His Honour accepted these submissions concerning the timing of the plea and awarded a one sixth discount on sentence as a result. No complaint is made about that. 12Because there was a causal link between the applicant's mental illness and his offending, the applicant submitted that it was properly open to his Honour to find that the applicant's moral culpability was reduced in light of cases such as R v Hemsley [2004] NSWCCA 228 at [33] - [36] as follows: "[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]." 13The applicant contended that his Honour appeared instead to move away from the position identified in Hemsley on account of the applicant having demonstrated an inability to control his sexual urges only relatively recently, at the age of approximately 40, whereas his disability had been of longstanding. His Honour ultimately held that the applicant's entitlement to be sentenced more leniently should be tempered with a certain degree of caution concerning his prospects of rehabilitation. 14In cases involving offenders suffering from intellectual disabilities or mental disorders, general deterrence is given less weight and may be moderated according to the extent to which a particular offender knows what he or she is doing and the gravity of his or her actions. Basic norms of sexual privacy and human dignity are not intellectual notions and persons of lesser intelligence are not necessarily more likely to commit such assaults: R v Champion (1992) 64 A Crim R 244; R v Bus (NSWCCA, 8 March 1996 - unreported). 15Dr Furst reported that the applicant suffered from a mildly severe intellectual disability that affected his ability to process information, make decisions, solve problems and regulate his emotions. He also showed signs of communication problems and difficulties with daily living skills and socialisation. Dr Furst assessed his interpersonal and coping skills as consistent with a child aged 6 years and 8 months. He said that this level of disability made it much more difficult for him than a normal person to understand concepts and learn new information. 16It was in these circumstances that the applicant contended that the sentencing judge placed undue weight on the moderate risk that the applicant would re-offend, in circumstances where, as his Honour remarked, "such improvements as can be made to his understanding and appreciation of the wrongfulness of his actions remain[ed] unclear". The applicant submitted that whilst it was appropriate for his Honour to give weight to community protection in those circumstances, as in Hemsley at [36], his Honour failed properly to consider the way in which the applicant's illness rendered him an inappropriate vehicle for specific deterrence or to moderate the need for general and specific deterrence. The applicant conceded that whereas his Honour had given appropriate weight to the impact of custody upon him as a consequence of his mental condition, he gave insufficient weight to his mental illness in all of the circumstances. 17His Honour clearly accepted that there was a causal connection between his mental condition and the offending conduct. He referred to R v Engert (1995) 84 A Crim R 67 at 71 as follows: "The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or the need to protect the public." 18In Zaharos v R [2008] NSWCCA 336 at [14], McClellan CJ at CL said: "[14]...Where mental illness has played a part in the offending, the need for general deterrence may be diminished: R v Wright (1997) 93 A Crim R 48. However, where an offender understands what he is doing and the gravity of his actions, general deterrence may be of continuing significance: Wright at 51; R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [252]-[254]. The issue is further discussed in R v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 and R v Hemsley [2004] NSWCCA 228 at [33]-[36]." 19Moreover, Howie J in Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371 at [83] said this: "[83] The fact that an offender is mentally ill does not mean that the sentence imposed must be less than that imposed upon a person who commits the same criminal act without any abnormality of mind. It may do so for all the reasons given in R v Israil [2002] NSWCCA 225. In particular the fact that the offender is suffering from a mental illness may reduce the person's culpability. But even that fact does not necessarily result in a lesser sentence ... Provided that the sentence is commensurate with the gravity of the offence viewed objectively, there is no error of principle in imposing a sentence aimed at protecting the community from the offender's recidivism by removing him or her from society."

Consideration of Ground 1 20I am not satisfied that his Honour fell into any error in the way that he took account of the applicant's mental condition in arriving at the sentences that he imposed. It is not suggested in this case that the applicant was so mentally disabled that he was incapable of understanding the nature and quality of his actions or that they were wrong. The evidence from Dr Furst does not support such a position. It does appear that the applicant's condition may have materially contributed to the commission of the offences in the sense that he was less able to regulate his emotions. As earlier noted, his Honour expressly accepted "that there [was], in this case, a causal connection between [the applicant's] mental incapacity and the commission of these offences". 21Dr Furst expressed agreement with the results of an assessment conducted by Dr Drew at the MRRC on 1 September 2009 suggesting that she did not regard the applicant as having a mental condition and no specific mental health treatment was recommended. There was no evidence of serious mental illness. The applicant suffers from a mild developmental disability: his Full-Scale IQ score of 60 was consistent with mild intellectual disability. 22With the exception of the count 3 offences (which are referred to later in these reasons when considering ground 3), the sentences imposed would appear to be commensurate with the gravity of the offences concerned, having regard to the applicant's mental condition. The limited nature and extent of the applicant's mental illness in this case would not lead me to conclude that the individual sentences are infected by error. Moreover, his Honour would appear clearly to have been concerned about specific deterrence and the risk of reoffending. Dr Furst opined that the applicant was in a category of offenders at moderate risk of reoffending. That risk was not lessened by the applicant's alcohol abuse. He expressed the view that "[c]ounselling for his sexual offending that includes elements of victim empathy and education about appropriate intimacy could also be of assistance in reducing his future risk of offending". His Honour was entitled to take these matters into account in terms of the risk to the community and the need for specific deterrence. 23His Honour's remarks on sentence contain the following passage to which in my view no identifiable exception can be taken: "I think the proper approach, having identified where on the scale of criminality his activities lie, is to sentence him more leniently than would be the case with a man without his disabilities, but to temper this with a certain caution about his ability to reform and rehabilitate." 24It does not appear to me, however, that his Honour consistently or uniformly gave effect to these sentiments. The sentence for count 3 seems to me to be disproportionately long, both in isolation and in comparison to the other sentences. No allowance for the applicant's mental condition appears to have been brought to account with respect to it. By way of contrast, the non-parole period imposed in respect of count 4 is admittedly somewhat lenient. For example, the larceny charge on count 3 has a non-parole period that is 2 months less than the sexual assault on count 4. That could certainly be explained by the influence of the applicant's mental condition, and favourably to him. 25In general terms, the extent of the accumulation of the sentences has produced an overall sentence that is arguably manifestly excessive. I do not however consider that this flows from any failure by his Honour to accommodate or apply considerations arising from the applicant's mental condition. I do not consider that this ground is made out. If the applicant is able to establish that some other sentence is warranted and should have been passed, it is for other reasons. This is referred to in more detail later when considering ground 4.

Ground 2 26In passing sentence in respect of the fourth count, his Honour expressly stated that he had disturbed the statutory proportions of that sentence, in part because of the accumulation. The accumulation in respect of the sentences for the first three counts was 80 per cent of the non-parole period. The applicant contended such accumulation was not "some degree of partial accumulation" but instead a very significant degree of accumulation in each case. 27In R v Clements (1993) 68 A Crim R 167 at 172-3, Macrossan CJ and de Jersey J held that the court should look for some clear reason why sentences should be served cumulatively in a particular case before so ordering and should also determine whether the resulting effective sentence was out of proportion to the combined series of offences. Concurrent terms will usually be called for in a series of related offences over a short time span. While the need for caution was noted, the judicial discretion in addressing the question was also acknowledged. 28The applicant contended that the degree of accumulation chosen by his Honour was substantial and at odds with his finding that "from stealing women's underwear in late 2008 [the applicant] progressed fairly rapidly to the indecent assault of Ms S... in January then, via the range of text messages and other messages sent to his victims in late January, to finally sexually assaulting Ms K... in this forceful and sustained and apparently uninhibited way on 4 February". While acknowledging the need to apply the principle in R v Wheeler [2000] NSWCCA 34 that the community should not be left with the impression that the offender has escaped effective punishment for the offences committed, the applicant submitted that his Honour failed to have sufficient regard for the principle of totality. That principle "enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes become so crushing as to call for the merciful intervention by the court by way of reducing the total effect:" per King CJ in R v Rossi (CCA (SA), 20 April 1988, unreported). 29The Crown contended that the offences were unrelated in time or type. Some degree of accumulation was to be expected but this was not a case where the criminality of one offence comprehended and reflected the criminality of any other. The Crown drew upon the remarks of Hall J in R v XX [2009] NSWCCA 115 at [52]. 30The Crown pointed out that the overall ratio of the non-parole period to the total term was 62 per cent, varying for individual sentences between 33 per cent and 75 per cent. The Crown submitted that the individual sentences were structured so that the overall result achieved through staged accumulation supported the view that his Honour had in fact had proper regard to the principles of totality. The overall result did not support a conclusion that his Honour's discretion miscarried.

Consideration of Ground 2 31I disagree with this last submission by the Crown. As I have previously intimated, the degree of accumulation of the various sentences has produced an overall sentence that is in my view manifestly excessive. The acts of individual criminality in this case were separate and distinct and were deserving of a degree of accumulation to reflect that fact in accordance with well-known principles. However, I accept the applicant's submission that in terms of totality, his Honour has imposed an overall term and a total non-parole period that are each disproportionate to the combined level of criminality involved. This appears to be so notwithstanding his Honour's expressed concerns about specific deterrence and the protection of the community. The 22-month non-parole period for the count 1 break enter and commit an indecent assault offence expires on 3 December 2010, whereas the 20 month non-parole period for the count 4 sexual intercourse without consent offence does not commence until 2 years later on 4 December 2012. The intervening period is taken up by a combination of the non-parole periods of 15 months on the count 2 intimidation offence and 22 months on the count 3 break and enter and commit larceny offence. 32This level of accumulation produces an unduly harsh result and is indicative of error.

Ground 3 33The larceny offences related to items that were valued at less than $60,000. In those circumstances the offence must be dealt with in the Local Court unless an election is made for trial on indictment: s 260 of the Criminal Procedure Act 1986 and cl 8 of Schedule 1. The election by the prosecution is likely to have been made because the remaining three counts were required to be dealt with in the District Court. 34The relevant principles are to be found set out by Hall J in R v Palmer [2005] NSWCCA 349 at [15] as follows: "[15] The written submissions on behalf of the applicant and those also on behalf of the respondent refer to a number of decisions of this Court. For the purposes of this application, they are stated in short form as a series of propositions or principles as follows:- (a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30]. (b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15]. (c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16]. (d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115. (e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17]. (f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed)." 35See also McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 at [21] - [27]. In Bonwick v R [2010] NSWCCA 177, Davies J said this at [43] -[45]: "[43] Whilst it is clear that there is no obligation on the sentencing Judge to regard himself or herself limited by the maximum penalty available in the Local Court, two relevantly important principles emerge from the cases. The first is that the extent of the criminality is an important consideration in having regard to the Local Court penalty: R v Hanslow [2004] NSWCCA 163 at [21]; Regina v Said El Masri [2005] NSWCCA 167 at [29] and McCullough at [26]. Secondly, where it appears that the matter of the Local Court penalty has been entirely overlooked by the sentencing Judge that may properly justify the grant of leave to appeal: R v Crombie [1999] NSWCCA 297 at [16]. [44] In the present case, it is likely that the matter was entirely overlooked by the sentencing Judge because it is accepted that neither counsel drew it to the Judge's attention. Further support for that inference derives from the omission of the sentencing Judge to make any reference to the fact that the offences could have been dealt with by the Local Court and from the length of the sentence imposed for each of the offences. [45] This failure to refer to the Local Court limitation on sentence amounts to an error justifying the intervention of this Court. This is because, as the highlighted passages in Palmer make clear, the fact that the Local Court could have dealt with the matter is a relevant consideration to be taken into account." 36In Dagdanasar v R [2010] NSWCCA 310 at [40] -[42], Price J dealt with the issue in this way: "[40] It is unsurprising that the sentencing judge did not mention that the offence could have been dealt with summarily. The objective seriousness of the offence, the criminal record of the applicant and the fact that it was committed in breach of parole all called for a sentence in excess of two years. The applicant was not entitled, in my opinion, to any weight being given to the loss of chance of summary disposition. In R EI Masri [2005] NSWCCA 167, Johnson J (with whom Hunt AJA and Hulme J agreed) said at [29]: 'It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie, at paragraph 16; Doan, at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule (Sandford, at 195) nor a factor which operates universally to reduce sentence (Doan, at 124). In some circumstances, the Court may conclude that the offender's criminality was too serious to be dealt with in the Local Court and that the matter was properly before the District Court: R v Hanslow [2004] NSWCCA 163 at paragraph 21. The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13.' [41] In Palmer, when discussing the principles relevant to the possibility of summary disposal, Hall J (with whom Grove J and Smart J agreed) said at [15]: '(a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: R v Crombie [1999] NSWCCA 297 at [16]; R v LPY (2002) 136 A. Crim. R 237 at 240 and R v El Masri [2005] NSWCCA 167 at [30].' [42] The offence could not have been appropriately disposed of in the Local Court. I do not consider in the present case that the sentencing judge's failure to make reference to the fact that the offence could have been dealt with in the Local Court in his sentencing remarks indicates that his Honour erred. I would reject this ground of appeal." 37Finally in Strickland v R; O'Connor v R [2011] NSWCCA 166 at [25] - [26], Buddin J said this: "[25]It is common ground that the offences which gave rise to counts 2a, 3a and 4a in respect of each applicant were all Table 1 matters, within the meaning of the Criminal Procedure Act 1986 , and as such were capable of being dealt with in the Local Court. The maximum penalty which the Local Court can impose for such an offence is 2 years imprisonment. It was in that context that counsel for each of the applicants relied upon this Court's decision in Bonwick v R [2010] NSWCCA 177... [26]It is also common ground that, as in Bonwick , the sentencing judge in the present case made no reference to the fact that the offences in question could have been dealt with in the Local Court. It is equally clear that neither party drew the matter to her Honour's attention. It was urged on behalf of the applicants that her Honour's conclusion that each of the offences in question were "below mid-range" was of particular significance in an assessment of this ground. It was submitted that the total sentence of 4 years and 3 months imprisonment imposed upon the applicant Strickland in relation to Court 4a was impossible to reconcile with her Honour's finding, particularly as he had pleaded guilty and was remorseful. Moreover, it further demonstrated, so it was submitted, that her Honour had simply overlooked the fact that that matter, as well as the other two offences, could have been dealt with in the Local Court. It was submitted on behalf of the applicant O'Connor that there was even greater warrant for consideration to have been given to this issue in his case, since his role was limited to that of a principal in the second degree in respect of the two break, enter and steal offences, whilst in respect of the remaining matter he was to be sentenced in relation to the less serious offence of receiving." 38The applicant accepted that the failure by his Honour to mention in his remarks on sentence that the matter could have been disposed of in the Local Court does not necessarily establish that he failed to have regard to it. In some circumstances, the length of the sentence may not suggest that the matter was overlooked: R v Depoma [2003] NSWCCA 382 at [17]. However, the applicant contended in the present case that the length of the sentence imposed rather suggested that the sentencing judge did not have regard to this issue when determining the appropriate sentence. 39In circumstances in which the sentencing judge makes no reference to the summary disposal issue in the remarks on sentence, it is necessary to consider whether that omission is indicative of error. The applicant submitted that one way of testing the proposition was to consider whether the sentence itself appears manifestly excessive in all of the circumstances of the case. If the factor has been taken into account and given appropriate weight, a substantially lesser sentence will be appropriate: R v El Masri [2005] NSWCCA 167 at [45] per Johnson J. The applicant contended that the present case was such a case. 40It is common ground that no submissions were made to his Honour about this. His Honour found that the offences taken in combination were "unarguably serious". He later remarked, "these crimes require significant periods of imprisonment". However, he identified the particular offence on count 3 to be an offence "below mid range, even after taking into consideration the fact that there is another item to be taken into account on the Form 1". 41The sentence imposed exceeded the limit in the Local Court. The Crown submitted that his Honour was of the opinion that there was no loss of chance of summary disposal. He also had to take account of the matters on the Form 1. The Crown contended that this was not a matter that could have been appropriately disposed of in the Local Court.

Consideration of Ground 3 42I disagree that count 3 could not have been appropriately dealt with in the Local Court. The theft of a video camera, part of a two-piece swimsuit and some underpants from a dwelling appears to me to be an offence that would in the normal course almost always be dealt with in that jurisdiction. The $60,000 jurisdictional limit alone would emphatically suggest as much, having regard to the presumed value of the stolen items in the present case. However, his Honour's so-called failure to refer to the summary disposal option was not made the subject of submissions to him and it would to my mind be somewhat artificial in the particular circumstances of this case to conclude that his Honour relevantly made an error that should lead this Court to intervene. It is in my opinion preferable, having regard to the conclusions I have otherwise reached, not to treat this ground of appeal as an independent ground because it overlaps to a considerable extent with the allegation of manifest excess in ground 4, and is more appropriately accommodated in that context. It follows that the arguably differing emphases exposed in the cases to which I referred do not need to be examined.

Ground 4 43Having regard to the discount applied by his Honour in recognition of the plea of guilty, the starting point for the sentence was 10.6 years, or a little over 10 years and 7 months. The applicant submitted that that was an excessive total term having regard to the offences committed. 44In his remarks on sentence his Honour indicated that he intended to impose a total term of 8 years and 6 months, whereas in fact he imposed a total term of 8 years and 10 months. In addition, the applicant contended that the total sentence of 8 years and 10 months, with a non-parole period of 5 years and 6 months, was excessive considering the combination of the following benign factors: His moral culpability was reduced because of his disability. The sexual assault offence is at the bottom of the mid range of objective seriousness. The applicant's antecedents are not such as to disentitle him to leniency. The applicant had no history of prior similar offending. The applicant's disability means that his incarceration will have a harsher impact upon him. 45The applicant submitted that the imposition of a total term of 2 years and 6 months with a non-parole period of 1 year and 10 months for stealing one video camera, one bikini bottom and 10 pairs of underpants from a dwelling was manifestly excessive. This is particularly so given the fact that it could have been dealt with summarily. The applicant also relied upon the previous three grounds of appeal in aid of the contention that the overall sentence was manifestly excessive, but in particular ground 2. 46The Crown submitted that the overall sentence was not excessive and that no other sentence was warranted or should have been passed.

Consideration of Ground 4 47It will already be apparent that I consider that the overall effective sentence is manifestly excessive. A second look at the sentences suggests that a term of imprisonment of 8 years and 10 months with a non-parole period of 5 years and 6 months for a mentally disabled man with no relevant criminal history committed over a short period of time was excessive. It may be that the applicant had sufficient wit to offer an explanation of his presence in a particular place when confronted by the police, so that some practical appreciation of the applicant's mental illness, and his corresponding level of criminality, more clearly emerges. However, this has to be fairly starkly contrasted with the fact that he provided his mobile telephone number to the victim of the intimidation offence, and thereby to the police, with the inevitable result that he would be apprehended. 48His Honour certainly gave the applicant the benefit of some considerable leniency on the sexual assault charge in count 4. However, the non-parole period for the less serious indecent assault offence on count 1 is the same as for count 4. The difference between them is reflected in the greater balance of term in the case of the sexual assault count. Each sentence appears clearly to take account of the applicant's mental illness. In contrast, the break and enter and commit larceny offence on count 3 relating to inexpensive items of underwear and a camera attracted a non-parole period 2 months longer than either the sexual assault or indecent assault counts. The intimidation offences in count 2 were described by his Honour as vile, but were manifestly guileless and evidently causally connected to the applicant's mental disability. 49In my opinion the principle of totality impels me to the conclusion that his Honour's sentencing discretion miscarried. A lesser sentence is warranted in law and should have been passed. With the exception of the sentence for the offences in count 3, I propose to impose the same sentences that his Honour imposed but to vary the extent of accumulation and to increase the level of concurrence of these sentences. With respect to the offences in count 3, I consider that a fixed term of imprisonment of 12 months should be imposed in lieu of his Honour's sentence of 2 years and 6 months.

Conclusion 50Having regard to my conclusions, I consider that the following orders should be made:

Grant leave to appeal.
Allow the appeal.
Quash the sentences imposed by his Honour Freeman DCJ on 19 August 2010.
In lieu thereof the applicant is sentenced as follows: Count 1 : to a term of imprisonment of 2 years and 6 months commencing on 4 February 2009 and expiring on 3 August 2011 with a non-parole period of 22 months commencing on 4 February 2009 and expiring on 3 December 2010 and a balance of term of 8 months commencing on 4 December 2010 and expiring on 3 August 2011. Count 2 (taking into account items on the Form 1): to a term of imprisonment of 1 year and 8 months i commencing on 4 August 2010 and expiring on 3 April 2012 with a non-parole period of 1 year and 3 months commencing on 4 August 2010 and expiring on 3 November 2011 with a balance of term of 5 months commencing on 4 November 2011 and expiring on 3 April 2012. Count 3 (taking into account the item on the Form 1): to a fixed term of imprisonment of 12 months commencing on 4 April 2012 and expiring on 3 April 2013. Count 4 : to a term of imprisonment of 5 years commencing on 4 January 2011 and expiring on 3 January 2016 with a non-parole period of 1 year and 8 months commencing on 4 January 2011 and expiring on 3 September 2012 with a balance of term of 3 years and 4 months commencing on 4 September 2012 and expiring on 3 January 2016. S 166 matters : in each case to a fixed term of imprisonment of 6 months commencing on 4 February 2009 and expiring on 3 August 2009. 51The overall effective sentence is therefore one of imprisonment for 6 years and 11 months commencing on 4 February 2009 and expiring on 3 January 2016, with an effective non-parole period of 4 years and 2 months commencing on 4 February 2009 and expiring on 3 April 2013 with a balance of term of 3 years and 9 months commencing on 4 April 2013 and expiring on 3 January 2016. The first date upon which the applicant will be eligible for parole is 3 April 2013.

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: 13 September 2011

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