MDZ v REGINA

Agreed facts 10At the sentencing hearing, a statement of agreed facts was tendered. 11The relevant facts were set out in the Crown's written submissions which, with some modifications, I adopt and reproduce below:- "7. The victim ... was born on 8.5.1996. On Sunday 19 April, 2009 (when [the victim] was 12 years of age), she walked to her friend, T's home at .... Coffs Harbour. She was to sleep over at T's house for T's 13 th birthday party. Also present for the party were K (aged 11 years) and A (aged 11 years). 8. The applicant (26 years old at the time of the offence) was staying at T and K's house and had been for about 6 weeks on and off. 9. As a result of T having her friends over for her birthday, it was necessary for some alteration in the sleeping arrangements so that various temporary beds and the lounges were to be used. 10. T also had three sisters, aged 18, 15 and 11 years, they were also staying in the house. 11. The owner of the premises, BH made up a mattress on the floor of the lounge room for the applicant to sleep on. 12. The complainant, ..., was also sleeping in the lounge room with two other 11 year old girls. They were to sleep on two lounges that had been pulled together. 13. During the night T went to sleep and [the complainant] went out to the lounge room where A and K were still awake. She sat on the lounge with them and they were laughing and talking. The applicant was in his bed on the floor and at one point told the girls to 'shut up'. 14. Later during the evening, the applicant called [the complainant] over to him. When she was near him, he pulled her down onto the mattress on the floor and he kissed her. He then put his hand down her pants and inserted a finger into her vagina (count 1). The applicant then rubbed her on the breasts, both on the outside and inside her top (form 1). 15. He then removed her pants and underwear and his own shorts and underpants and put his penis into her vagina (approximately 2 to 3 cms). 16. The applicant then took his penis out of her vagina, but again inserted it attempting to push it in further, causing [the complainant] pain. She called on him to stop and he removed his penis from her vagina. 17. [The complainant] then got up off the mattress and went back to the lounge. The applicant then went to sleep on the mattress. 18. [The complainant] went back to the lounge, woke up A and complained about what the applicant had done. 19. The following morning, BH sat with the two girls on the lounge and [the complainant] said 'that man up there molested me last night'. BH then asked the applicant whether he touched [the complainant] but he didn't reply. She then went and rang [the complainant's] mother, Mrs R. 20. Mrs R went to the house and said to the applicant 'Alright what's gone on?'. 21. The applicant said 'I didn't touch your daughter. I didn't do anything to her, she's lying'. [The complainant] called out 'Yes you did'. 22. BH said to the applicant 'You better tell me what happened' and he replied, 'The girl was saying she was molested when she was 4 and she had been sexually active for months. They were throwing things on me, salt or something, Next thing she was in my bed. I started and she said stop and I did and she's still a virgin'. 23. At about 6.25 pm on 20.4.09, [the complainant] was examined by Dr Marilyn Clarke, who observed that [she] had redness at the entrance of the vagina. The doctor took various swabs that were subsequently examined by Michele Franco, an analyst with the NSW Health Department. 24. Semen was detected on the low vaginal swab and on pubic hair region smears. DNA testing was carried out and it was found that the applicant has the same DNA profile as the DNA recovered from the low vaginal swab. 25. At about 1.15 pm on Monday 20.4.09, Detective Martin attended ... Coffs Harbour, where he saw the applicant and told him he would have to accompany him to the Coffs Harbour Police Station. 26. Later that day, Detective Martin conducted an interview with the applicant. 27. In this interview, he agreed that he touched her breasts (Q345), penetrated her vagina with finger (Q338), claimed he did not ejaculate (Q394) and tried twice to put his penis into her vagina (Q407) each time, no more than inch or two (Q652). 28. He also said she had said she had lost her virginity when she was 4 (Q313), she had told him she was 16 and she was consenting (Q42)." 12The transcript of the ERISP conducted on 20 April 2009 was admitted into evidence at the sentencing hearing (Exhibit C). During the interview, the applicant was asked a number of questions, the answers to which established that, whilst at the complainant's home and on the day of the offences, he had smoked a considerable quantity of "cones" of cannabis: at questions 174-180, 195, 196, 230, 360, 468, 499.

The remarks on sentence 13The sentencing judge observed (ROS at pp.3-4):- "A standard non parole period applies where the court determines that the offence is at least mid range offence and where there has been a conviction following trial. Where there has been no conviction following trial because there has been a plea, a Judge is not obliged to impose the standard non parole period of ten years even if he determines that the matter is a mid range offence. But a Judge must have regard to that as one of the two guide posts on sentence ..." 14His Honour then referred at some length to the applicant's mental health issues. His Honour stated (ROS at pp.4-5):- "There is no evidence before me that he is mentally ill but there is evidence that he has unusual mental affectation. It is also clear from the probation and parole report that he is someone who when he was young found himself excluded at school, partly because he had engaged from time to time in forms of behaviour that led other people to shun him. He has taken drugs at various points during his life. He has displayed suicidal tendencies, he has harmed himself with knives and he has acted in a way that caused great distress to his family." 15His Honour noted that the applicant had previously worked in various positions but had left his last employment by reason of "unresolved mental health and substance abuse issues" . His Honour proceeded (ROS at pp.5):- "... He has been diagnosed as having a borderline personality disorder. It is difficult to know exactly what that is, it is not a mental illness as such but it is certainly something that makes him not the normal person entirely. He is currently getting medication of some kind for this ..." 16His Honour then went on to refer to problems arising from the applicant's drug and alcohol use, including his drug and alcohol addiction. 17The sentencing judge referred to an affidavit sworn by his mother which was relied upon for the purposes of the sentencing hearing. His Honour observed (ROS at pp.5-6):- "... I have read the contents of [the affidavit] . It is very sad and it confirms from an early time in his life he acted in strange ways that made other people treat him at a distance ... He has seen numerous doctors. He has attempted self harm on numerous occasions and he has acted in a way that indicates he is far from normal. Ultimately, his parents could not continue to have him living in their house because of his persistent drug behaviour and his other antisocial methods of acting." 18Reference was made by the sentencing judge to the psychiatric reports of Dr Richard Furst, Consultant Forensic Psychiatrist, which were relied upon at the sentencing hearing. His Honour stated (ROS at p.6):- "... They confirm he has a personality disorder but he does not have a mental illness as such. This may seem strange when, to observers, he has on occasions appeared to be psychotic. But I have to say there are many people who come before the courts with what is described as borderline personality disorder, who are said at times to act in a psychotic fashion but at other times they do not. I have to accept what the psychiatrists say. At the same time I accept what his mother says, and there is no doubt in my mind that over the years he has gone before people associated with mental health on many occasions because of his behaviour." 19His Honour then proceeded to refer to the Victim Impact Statement. 20His Honour referred to the fact that (ROS at p.6):- "The offence itself was in fact a predatory offence because it was committed by [the applicant] on a young girl who just happened to be nearby. She was defenceless. He was an adult. He attacked her. He no doubt feels very sorry for what he did now. But the fact is, that he attempted to use force, to have sexual intercourse with a twelve year old girl." 21In determining sentence, the sentencing judge observed (ROS at pp.6-7):- "One of the functions of the court in giving a sentence is to protect the community. Some sexual offenders are so dangerous that all that can be done is put them away for a very lengthy period. I do not think he falls into that category because he has insight into what he has done, and although he has had a disturbed life and although what he did was quite bad, he wants to do something about it. It is rare in my experience for people who commit this offence ever to want to do anything about it ..." 22His Honour proceeded to consider the objective seriousness of the offences stating that both were serious offences noting that they occurred whilst the applicant was "... acting at times in a strange way and although someone who was affected by drugs at various stages, was sane at the time he committed the offences" (ROS at p.7). 23His Honour stated (ROS at p.7);- " The second count in my opinion was an offence that should be regarded as being at least a mid range matter . There was twice an attempt to force his penis into the vagina of a young girl against her will, causing her pain. Penetration was significant. It is always difficult when coming to these conclusions, but in my opinion that is how it should be viewed." (emphasis added) 24A little later, the sentencing judge observed (ROS at pp.8-9):- "... I take into account in determining the sentence everything in his background. To some extent he is not a totally normal offender, and I take that into account in saying that the sentence does not have to be as severely deterrent as it would otherwise need to be. At the same time, what he did was very serious." 25In sentencing the applicant, a 10% discount was allowed in respect of the plea of guilty at trial. His Honour also made a finding of special circumstances and recommended that during his term of imprisonment, the applicant be given access "... urgently to programs available for sex offenders, drug offenders and alcohol offenders, and he be given such psychiatric and psychological assistance as may be desirable" (ROS at p.9). 26In determining sentence, his Honour noted that it was likely that the applicant would be in protection whilst in custody during the course of his sentence.

Ground 1: In respect of Count 1, his Honour erred in failing to determine the extent to which the objective serious ness of the offence fell below the mid-range

Ground 2: In respect of Count 2, his Honour erred by finding in relation to the objective seriousness, that the offence was " at least a mid-range matter " 27The sentencing judge determined the offence constituting Count 1 to be less than a mid-range offence, although his Honour stated that it was clear from sentences imposed "in recent times" it warranted a quite severe sentence: (ROS at p.7). 28In relation to Count 2, the sentencing judge determined that the offence "... should be regarded as being at least a mid-range matter" . In so determining, it was noted that the applicant had twice attempted to force penetration of the young victim causing her pain. 29It was argued on behalf of the applicant, on then current authority, that it was necessary for a sentencing judge to indicate, not only whether an offence is assessed as below, of or above the mid-range of seriousness, but also to indicate the extent or degree to which it departs from the mid-range of objective seriousness: R v Knight & Biuvanua (2007) 176 A Crim R 338 at [4], [39] and [47]; R v Cheh [2009] NSWCCA 134; R v McEvoy [2010] NSWCCA 110 at [75]-[87] and R v Sutton [2010] NSWCCA 133 at [11]-[12]. 30It was argued that the sentencing judge did not give reasons as to why the objective seriousness of the offence constituting Count 1 fell below the mid-range or indicate the extent to which it did so. The submission was that the objective seriousness of the offence was at the bottom end of the range of objective seriousness and some other sentence is warranted in law: Appellant's written submissions at [29]. It was argued that the act of digital penetration was brief and was a preliminary act to the penile penetration. It was further contended that the alleged error led to a sentence which was manifestly excessive. 31Additionally, it was argued that the sentencing judge failed to take into account relevant matters being matters that were advanced in support of Ground 3 of the Notice of Grounds of Appeal. 32Similarly, in relation to the offence constituting Count 2, it was contended that the sentencing discretion miscarried and that objective seriousness of the offence was substantially below the mid-range. In this respect, reliance was placed upon submissions made concerning Grounds 3, 4 and 5. 33Whilst the Crown contended that the sentencing judge had correctly assessed the objective seriousness of each of the counts individually, it acknowledged that he did not give detail of exactly where the matters fell in the range of objective seriousness. 34Since the appellant's and the Crown's submissions were lodged in this application for leave to appeal, the High Court has delivered judgment in Muldrock v R [2011] HCA 39; 85 ALJR 1154 in which the principles established in R v Way [2004] 60 NSWLR 168 were reviewed. In Way (supra), the Court said that the sentencing judge should consider the objective seriousness of the offence (taking into account any facts explaining why the offence was committed) in order to determine whether the offence is within the mid-range of seriousness. However, the High Court determined that, in the application of standard non-parole periods, Way (supra) was wrongly decided (at [25]):- "... The Court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the mid-range of objective seriousness." 35The Court additionally stated (at [28]):- "Nothing in the amendments introduced by the Amending Act requires or permits the Court to engage in a two-stage process to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period." 36The Court also observed (at [31]):- "... The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case." 37The Court also there noted that the standard non-parole period for an offence is not the starting point in sentencing for a mid-range offence after conviction. Section 54B(2), read with s.54B(3) and s.21A, require an approach to sentencing for Division 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v R (2005) 228 CLR 357 at 378:- "The judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (emphasis added) 38In light of the judgment of the High Court in Muldrock (supra), Ground 1 which, in effect, asserted an error of process by the sentencing judge, is no longer viable as a ground of appeal. In those circumstances, the central issue in the present application is the question as to the finding made by the sentencing judge in relation to the objective seriousness of the offence, a matter discussed below in relation to Grounds 3, 4 and 5.

Ground 3: When considering the objective seriousness of both offences his Honour erred by failing to take into account a number of relevant considerations, in particular , the applicant ' s state of mind and capacity to reason at the time of the commission of the offences

Ground 4: His Honour erred by finding that the offences were predatory

Ground 5: In respect to Count 2, his Honour erred in not finding that the objective seriousness of the offence was substantially below the mid-range for an offence of that type 39Grounds 3, 4 and 5 were argued together and it is convenient to proceed on that basis. 40The matters taken into account in his Honour's assessment of the offence constituted by Count 2 included:- · That the applicant twice attempted to penetrate the complainant, a young girl, against her will. · The penetration was significant. · The offence was a predatory offence. · That it was an offence committed by the applicant as an adult and that it involved an attack by him upon the complainant. 41It was argued that the finding that the offence was "predatory" was an erroneous one. In the submissions for the applicant, it was contended "the offence was very much an opportunistic one" . 42In support of the submission that the offending was "opportunistic and impulsive" , it was contended that the sentencing judge did not refer to the following matters in his assessment of the objective seriousness of the offences:- · That the offence was an isolated incident of brief duration. · That there was no abuse of trust. · That the offence did not involve full penile penetration. · That when the complainant asked him to stop, he did so. · Whilst there was some force used, it was limited. Additionally, the complainant was not taken away or isolated from her friends who remained close by. · The evidence establishes that applicant's judgment, capacity to reason and understand the consequences of his actions were impaired. 43Detailed submissions were made on the applicant's behalf in respect of his "capacity to reason and impaired judgment" .

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.

Orders 87Accordingly, the orders I propose are:- (1) Leave to appeal granted and sentences imposed on 30 April 2010 are quashed. (2) That in respect of Count 1, the applicant be re-sentenced to a term of imprisonment of 4 years comprised of a non-parole period of 2 years and 6 months to commence on 20 April 2009 and to expire on 19 October 2011 with a balance of term of 18 months to commence on 20 October 2011 and to expire on 19 April 2013. (3) That in respect of Count 2, that the applicant be re-sentenced to a term of imprisonment of 8 years, concurrent with the sentence imposed in respect of Count 1, comprised of a non-parole period of 5 years to date from 20 April 2009 and to conclude on 19 April 2014 with a balance of term of 3 years to commence on 20 April 2014 and to expire on 19 April 2017. 88The total effective sentence in respect of the offences is, accordingly, the sentence in respect of Count 2. 89Accordingly, the first date on which the applicant will be eligible for parole is 19 April 2014. 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: 28 November 2011