Consideration
44The sentencing judge understandably considered both offences in Counts 1 and 2 to be serious offences and his Honour appropriately recognised the need to impose substantive sentences to both vindicate the rights of the victim and to recognise the seriousness of the offence to her and the indignity inflicted upon her. A substantial offence would also express the community's abhorrence of offences of this kind.
45It is, however, also apparent that the applicant's mental health issues and his related substance addiction were central in assessing the applicant's moral culpability.
46A pre-sentence report dated 17 March 2010 and the two reports of Dr Furst dated 23 November 2009 and 24 November 2009 were tendered at the sentencing hearing. Both require consideration.
47In the pre-sentence report, it was observed that the applicant's upbringing had been a difficult one and that, at a young age, he had exhibited self-harm and unusual behaviour. Reference was also made to the fact that the applicant had been prescribed and was, at the time of interview, currently on prescribed medication for "mental illness" and that the medication had appeared to have stabilised his mood.
48The report noted that the applicant had continued to use cannabis until he was taken into custody. He had admitted to using ecstasy and speed regularly from the age of 21.
49At the time of the pre-sentence assessment, he was on the Methadone programme.
50The author of the pre-sentence report, Mr Robert Messitt, observed, inter alia (at p.2):-
"... It would appear that his ongoing substance abuse may have exacerbated his mental health issues and contributed to his offending ..."
51Dr Furst undertook a psychiatric assessment in order to determine the applicant's medical condition at the time of the offences and to provide an opinion on options that were available to the Court and to also examine his fitness to be tried.
52Dr Furst interviewed him at Grafton Correctional Centre on 13 November 2009. He had available to him medical and other historical records including a Discharge Summary from the Wyong Mental Health Unit dated 23 October 2008.
53The applicant provided a history to Dr Furst which included an account of having moved from the Central Coast to live with a friend in Grafton in October 2008 but found it hard to cope. He then moved in with his parents in Coffs Harbour.
54By February 2009 (approximately two months before the subject offences), the applicant's parents asked him to obtain help for his ongoing drug abuse and mood problems. In the month of the offending, the evidence indicates that he was asked to leave his parents' home "because of continuing drug abuse and ended up staying with friends" (Dr Furst's report dated 23 November 2009 at p.3).
55Dr Furst noted that some weeks before the offences, namely, on 26 March 2009, the applicant rang the Mental Health Intake Line at Coffs Harbour. He then told the Intake Officer about his previous history of self-harm, suicide attempts and mental health treatment and provided a detailed history of hallucinations and "seeing dark figures standing over him, saying derogatory things ..." . He told the Intake Officer he had feelings of "wanting to harm someone" brought on by the lack of access to his son, who had moved to the South Coast. He also had significant financial stresses and was unemployed.
56Dr Furst's history recorded that, on another occasion, the applicant had been assessed at the Jordan Centre by a Clinical Nurse Specialist as a result of him seeking help for his condition and medication. The assessment was undertaken on 27 March 2009.
57Dr Furst noted in his report dated 23 November 2009 at p.4:-
"... Mental state examination revealed he was disorganized, disorientated, had low mood, was frustrated, had poor sleep, and had increased irritability. His clinical formulation included the presence of a personality disorder and polysubstance abuse. A mental health assessment was booked for 1/04/09."
58It appears that the assessment did not proceed on 1 April 2009.
59Dr Furst observed that the anxiety symptoms and paranoia that had been experienced in August 2008 were related to drug abuse.
60Dr Furst stated in answer to a specific question posed for his opinion that, in relation to the applicant's condition at the time of the commission of the offences (report dated 23 November 2009 at p.7):-
" [The applicant] was depressed in mood, stressed because of his financial problems, lack of access to his son, and inability to continue living with his parents. He was continuing to abuse cannabis and was intoxicated to a moderate-high level at the time in question.
There was also evidence that he was both depressed and psychotic. An assessment at the Jordan Centre only three weeks before the events in question revealed he had irritable mood, expressed suicidal ideation, and thoughts of harming others out of the frustration of not seeing his son. He had reduced reactivity and complained of 'mood swings - gets frustrated easily and then voices start up'. A mental state examination at the time indicated he was cooperative with the assessment, but was irritable and had both auditory and visual hallucinations."
61Dr Furst considered that, at the time he assessed him, the applicant's condition included a drug induced psychosis as well as cannabis dependence and a borderline personality disorder.
62The evidence, in particular, the evidence of Dr Furst and the material contained in his reports established the following:-
(1) At the time of the offences, the applicant was a young man who suffered from a number of mental health problems. These included a borderline personality disorder, cannabis dependence and depressed mood.
(2) The applicant had, from a very young age, suffered from a number of personality problems for which he had been seen by medical and other professionals over many years. The problems, which had exhibited themselves in dysfunctional behaviour, had impaired his interaction with others and affected his coping skills.
(3) In the weeks prior to the offences, an increase in his problems prompted the applicant to contact the Mental Health Intake Line at Coffs Harbour on 26 March 2009. The history at that time establishes that he was at a very dysfunctional level. The examination on 27 March 2009 revealed that his mental state exhibited disorganisation, disorientation and low mood marked by frustration and increased irritability.
63The reports of Dr Furst's confirm that the applicant, from a young age, had problems associated with a low intellect and mood-swings and emotional problems. Dr Furst noted that these are often associated with borderline personality disorders. The underlying condition from which he suffered manifested itself in personality dysfunction, including variability and depth of mood and an unusual level of instability in mood. Those problems had been significantly exacerbated by his drug problems, including his long-standing cannabis dependence. He had, from time to time, suffered from drug induced psychoses which had manifested themselves in the form of delusions, hallucinations and thought disorder.
64When asked as to the applicant's condition and functioning and whether it had a bearing on his offending conduct on 20 April 2009, Dr Furst in his report of 24 November 2009 at p.3, replied:-
" [The applicant] was intoxicated with cannabis at the time in question to a moderate-high level. He had been sleeping just prior to the events in question and it was dark. He was also depressed in mood and gave a history of psychotic symptoms, including both auditory and visual hallucinations. The combination of these factors, his underlying personality style (borderline) and his relative low intellect is likely to have had a bearing on his conduct and his ability to think through the consequences of his actions."
65The evidence establishes that the combination of the applicant's problems, including his cannabis intoxication, contributed to what could be described as a sudden or spontaneous, rather than a planned or premeditated course of criminal conduct. In that sense, it was opportunistic in nature but associated with those mental health issues.
66The structure and terms of the remarks on sentence, in my opinion, indicate that the approach taken by the sentencing judge was one whereby the objective seriousness of the matter was primarily evaluated by reference to the physical aspects of the offending, particularly in relation to Count 2.
67In my opinion, in light of the High Court's judgment in Muldrock (supra), it is open to conclude that the mental condition of the applicant at the time of the offence may bear upon the objective seriousness of the offences: Muldrock (supra) at [27] and [29]. Certainly, in the present case, the sentencing judge, on the evidence, was required to expressly determine the moral culpability of the applicant in assessing the seriousness of the offences and in determining the appropriate sentences to be imposed in relation to them. In this case, the evidence required a finding that the applicant's moral culpability was reduced by his mental health issues.
68It is necessary at this point to observe the sequence of matters addressed in the remarks on sentence. On p.3 of the remarks, his Honour noted the serious nature of the offences, the increase that he said had occurred in recent years in the legislatively prescribed maximum penalties and noting the relevant prescribed standard non-parole period of 10 years.
69On p.4 of the remarks on sentence, his Honour then referred to the applicant's "mental health problems" . When read in context, these observations were considered as subjective features but not considered either expressly or in the context of the objective seriousness of the offences. In that respect, his Honour stated (ROS at p.4):-
"I must have regard to the objective seriousness of the matter as the number one matter to be taken into account. I also must have regard to subjective features and I must have regard to the fact that the offender did plead guilty ultimately and he has expressed remorse. As it will become obvious he is a man who has mental health problems ..."
70His Honour then proceeded to discuss the applicant's borderline personality disorder and his addiction to drugs.
71In dealing with Count 2, it is clear that his Honour, in determining the offence as being "at least" a mid-range offence, focused very much upon the physical aspects of the offending and proceeded to make the observations that have been extracted in paragraph [23] above.
72The Crown, in its written submissions, properly observed at [56]:-
"There is no issue that if there was a causal link between the applicant's mental condition and the commission of the offence, then that was a relevant matter to take into account in assessing the objective seriousness of the offence ..."
73In summary, whilst his Honour clearly considered and referred to the evidence concerning the applicant's mental health in determining sentence, an examination of the remarks on sentence establishes that he did not focus attention upon implications of the applicant's borderline personality and drug addiction by way of a finding as to his moral culpability in relation to Counts 1 and 2.
74In determining the objective seriousness of the applicant's offending, in my opinion, the following matters were relevant:-
(1) The fact that the applicant's borderline personality disorder (which arose from at least the age of 15 years), contributed to the development of his long-term addictive substance abuse problem.
(2) The fact that, on the day of the offending, the applicant had engaged in smoking cannabis to an extent that produced (on Dr Furst's assessment) a moderate/high level of intoxication.
(3) The fact that, on the medical evidence, the combination of the applicant's underlying personality disorder, his low intellect, his cannabis dependence and drug intoxication operated on his ability to engage in rational thinking: Dr Furst's report dated 24 November 2009 at p.3.
(4) The fact that the evidence disclosed the applicant's acts constituting the offences in Counts 1 and 2 arose suddenly or spontaneously and were not planned or premeditated. The spontaneous nature of the activity according to Dr Furst was associated with the applicant's cannabis intoxication.
75The medical evidence, accordingly, established a causal association between those circumstances and the commission of the offences the subject of Counts 1 and 2. In an assessment of the objective seriousness of the offence the applicant's mental health and drug addiction were central. In my opinion, once taken into account, the evidence would not justify the finding made in respect of Count 2 that the offence was a mid-range offence.
76I consider that the applicant's personality disorder and other problems referred to above were such that they operated to reduce the objective criminality of the offence.
77In addition, the sentencing judge, in my opinion, was also required to evaluate the following circumstances in determining the sentence to be imposed:-
(1) The fact that the applicant had no history of violence and no significant criminal history. The principal risk that had been identified previously was the risk of the applicant harming himself and/or the risk of suicide over the longer term.
(2) Dr Furst's assessment that placed the applicant in the category of offenders who had a low/moderate risk of violence and recidivism, and a low risk for serious violent behaviour: Dr Furst's report dated 24 November 2009 at p.4.
(3) The fact that the applicant had, some weeks before the offending, recognised the fact that his mental health symptoms and polysubstance abuse had reached an alarming level and had sought medical help for them from the Jordan Centre. His recognition of his problems and his attempt to obtain help are relevant in the assessment of his mental state or state of mind at the time of the offence.
(4) The applicant's action in smoking cannabis on the day of the offending cannot, on the evidence, be characterised as involving intoxication through reckless conduct. It is clear that his cannabis use was due to a very long-standing addiction intermingled with the underlying personality disorder. Accordingly, his lengthy polysubstance addiction cannot be considered a circumstance of aggravation. On the particular facts of the case, it operated to mitigate the offences. The two offences in Counts 1 and 2 were out of character in the sense that, as earlier noted, the applicant had not previously engaged in acts of violence including acts of sexual violence.
78On the question of the applicant's drug-intoxicated condition, Ms R Burgess of counsel, who appeared on behalf of the applicant, relied upon the observations of Hunt CJ at CL in R v Coleman (1990) 47 A Crim R 306 at 327 as follows:-
"... The degree of deliberation shown by an offender is usually a matter to be taken into account; such intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character ..."
79Ms Burgess also relied upon the observations in Waters v R [2007] NSWCCA 219 per James J at [38] (with whom Giles JA and Hislop J agreed) as follows:-
"The fact that an offender was intoxicated at the time of committing an offence is not of itself a reason for mitigating the sentence which should be imposed on the offender. However, the fact that an offender was intoxicated at the time of committing the offence may be taken into account as mitigating the objective criminality of the offence, insofar as it indicates that the offence was impulsive and unplanned and that the offender's capacity to exercise judgment was impaired. See R v Henry (1999) 46 NSWLR 346 per Wood CJ at CL at 397-398 (273)."
80An offence under s.61J(1) by a 26 year old male upon a girl aged 12 years is clearly one that involves serious criminality. In circumstances in which there was a significant impairment of the applicant's capacity to reason and exercise judgment, the objective seriousness of the offence constituting Count 2 was, in my opinion, as I have earlier stated, substantially below mid-range for an offence of this type.
81In Monteiro v R [2011] NSWCCA 113, the applicant was convicted of an offence under s.61J of the Crimes Act . The aggravating circumstance in that case was the infliction of actual bodily on the complainant. The level of violence involved in the offence was substantial. Following a guilty verdict, the offender was sentenced to a total sentence of 11 years made up of a non-parole period 6 years and 6 months with a balance of 4 years and 6 months. In that case, Simpson J (with whom Hoeben and Price JJ agreed) considered that the sentence was well within the range available to the sentencing judge. Her Honour observed at [238]:-
"... The sentence imposed in respect of the sexual assault offence was not manifestly excessive. When measured against the standard non-parole period, it was very lenient indeed. Only a very generous application of the principles relating to mental illness could possibly have justified departure of such magnitude from the standard non-parole period ..."
82In that case, the Crown appealed the sentence upon the basis of the degree to which the non-parole period imposed (6 years and 6 months) departed from the standard non-parole period (10 years). The sentencing judge had determined the appellant's offence was of less than mid-range gravity, but only marginally so, stating that it was on "the cusp of the mid-range" . Simpson J observed that such a finding would justify at most only a minimal reduction in the non-parole period, that is, unless there were other circumstances that justified a greater departure.
83In the present case, allowing for a discount of 10% for the applicant's plea of guilty, the imposition of a non-parole period of 7 years, as against the standard non-parole period of 10 years, can, in my opinion, be taken as reflecting an allowance in determining the sentence for Count 2 for the fact that the applicant had been affected by his mental health problems and cannabis abuse at the time of the offending, but not one, in my opinion, that adequately reflected that fact.
84Bearing in mind the circumstances of the offence and the circumstances of the offender, a sentence of 11 years imprisonment with a non-parole period of 7 years represents, in my respectful opinion, a sentence that was manifestly excessive.
85Appellable error having been established in relation to the determination of the objective circumstances of the offences constituting Counts 1 and 2, the sentences imposed should be set aside.
86I agree with the sentencing judge's finding of special circumstances and that the applicant should be re-sentenced on that basis. I am of the opinion that the appropriate sentences, in the particular circumstances of the case, are:-
(1) In respect of Count 1, a term of imprisonment of 4 years with a non-parole period of 2 years and 6 months.
(2) In respect of Count 2, a concurrent term of imprisonment of 8 years with a non-parole period of 5 years.