The Psychologist's Report
8 Ms Katie Seidler complied a psychologist's report on the applicant. Because of the nature of the argument put, the psychologist's report takes on a significance it might not otherwise. Ms Seidler says:
"[The applicant's] affect was inappropriate in the sense that he impressed as being immature and he often laughed or chuckled inappropriately. He … presented as a simple person who was not particularly psychologically minded. He was both oriented and alert and did not demonstrate any overt evidence of mood or thought disorder. …
[The applicant] was generally restless during testing and readily tried to give up on tasks that were clearly difficult for him. At times, he needed a great deal of encouragement and direction to stay focused on the tasks required of him.
[The applicant's] intelligence was assessed. … Verbal measures are generally more affected by education, cultural experiences and language familiarity than non-verbal tests. [The applicant's] verbal intelligence was assessed as falling in the range of a mild intellectual disability, with his scores being superior to only 2% of similar aged peers. His non-verbal or performance intelligence was determined to be in the below average range at the 21st percentile. There was a 20 point difference in [the applicant's] verbal and non-verbal IQ scores and a difference of this magnitude is statistically significant, such that making an estimate of his overall intelligence quotient is inappropriate. It is suggested that [the applicant's] non-verbal intelligence levels are probably a more sound estimate of his optimal intellectual functioning, however, functionally he is suggested to be performing at a level below this, probably in the borderline range. [The applicant's] lower verbal intelligence is probably further compromised by his learning difficulties and only limited formal educational experience.
[The applicant's] reading ability was assessed. … His score on this measure was commensurate with that of an 11 year old child. This is barely above the minimum standard of survival literacy skills, which is generally accepted to be equivalent to the age of 10 years.
[The applicant] then completed … a measure of short term memory or attention skills which requires the testee to hold and manipulate numerical information in memory. He performed at below the first percentile which is very poor and consistent with his lower verbal intelligence and reported history of attention deficit symptomatology. …
[The applicant's] visual organisation skills are considered to be impaired, over and above his assessed level of intelligence. …
Overall, [the applicant] is a man who is functioning at a low level intellectually. In particular, he has a verbal intellectual deficit, which includes limited literacy and verbal comprehension skills. His functioning ability is considered to be partly reflective of his learning difficulties and very limited educational experience, in addition to genetic vulnerabilities. Verbal intelligence is known to be associated with the ability to self regulate through the mechanism of internal speech. Therefore [the applicant] would likely find it very difficult to reflect on experience and monitor his behaviour accordingly. He would have limited insight and would have poor perspective taking skills. In addition, his ability to reason in abstract or conceptual terms would be limited by his executive functioning difficulties. Specifically, [the applicant] could be expected to have greater difficulty utilising what cognitive resources he possess when compromised by stress, distress or increased demand. In summary, [the applicant] is a person with severely compromised cognitive and psychological maturity."
9 Further, the pre-sentence report from the Probation and Parole Service confirms the views expressed by Ms Seidler and refers to his history of substance abuse. The applicant is a person who knows that what he did, in committing the offence, was wrong. But his intellectual disability prevents him from understanding why it is wrong. Persons who suffer from an intellectual or mental disorder do not serve as an appropriate medium for making an example to others: R v Wright (1997) 93 A Crim R 48 at 50, per Hunt CJ at CL. However, his Honour went on to say:
"Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities can not be expected of a person whose intellectual function is insufficient to have that understanding."