Merkel v R

Aggravating factors

1. King SC DCJ found that the applicant was in a position of authority over the victim at the time of the offending and that he breached the trust inherent in his being permitted to take the victim from her grandmother's to his mother's premises. It can be noted that these are both aggravating factors within s 21A(2)(k) of the Sentencing Procedure Act. Although being in a position of authority and breach of trust are distinct concepts, it has been observed that they often arise out of the same facts: MRW v R [2011] NSWCCA 260 at [77].
2. A Victim Impact Statement was provided to the Court and detailed the effects of the offending on the victim including: personality changes; negative effects on education; difficulty trusting males, including relatives; nightmares and difficulty sleeping which had to be addressed through medication; and, near the commencement of the trial, weight increase and depression. The sentencing judge accepted that the consequences for the victim were significant and would continue for a prolonged period, if not her entire life. Nonetheless, his Honour noted that the consequences of such offending as in the present case had been taken into account in determining the maximum penalties. The sequelae for the victim did not go beyond what could reasonably be expected from conduct of this nature and thus they did not further aggravate the offending.

Submissions

1. The applicant's primary submissions were that the remarks on sentence indicated that the sentencing judge had considered the applicant's intellectual disability "as a subjective feature with little impact upon the objective criminality". In the present case, it was said that the objective criminality of the offending was moderated by the fact that there was minimal planning and the uncontested evidence of the intellectual disability of the applicant. It was contended that, when his Honour dealt with his disability, his attention was focused upon the ability of Corrective Services to deal with the issues.
2. The applicant relied upon the principle referred to by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) particularly at [54]: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community." (footnotes omitted)
3. The applicant also relied upon the statement of this Court in Yun v R [2017] NSWCCA 317 at [47]: "It is apparent that this Court has invariably determined since Muldrock (with the possible exception of Badans and Subramaniam) that an offender's mental condition at the time of the commission of the offence is a critical component of "moral culpability" which in turn affects the assessment of "objective seriousness". …"
4. The applicant then submitted that the sentencing judge's error was not recognising or giving prominence to the applicant's intellectual disability in the assessment of objective seriousness and "thus [his Honour] began from a sentence consideration that was inappropriately high". It was also said that it was erroneous to conclude that a high level of specific deterrence was required having regard to the applicant's circumstances and disabilities. Similarly, the applicant contended that the sentencing judge erred in not specifically acknowledging that it was appropriate to reduce the significance of general deterrence in the case of an intellectually disadvantaged offender.
5. The Crown submitted that ground 1 should be rejected because: 1. in so far as the applicant relied upon the sentencing judge's not giving prominence to the applicant's intellectual disability, this was not a sufficient ground for intervention on appeal: Stines v R [2019] NSWCCA 115 at [22]-[25] and other authorities to a similar effect; 2. an offender's intellectual capacity may be relevant to assessing culpability if it is shown that it contributed to the commission of the offence but no causal link was established in the present case; 3. the principle in Muldrock did not require the conclusion that the applicant was not, in the circumstances of the present case, a suitable vehicle for general deterrence or that the significance of specific deterrence was reduced or completely eliminated; 4. the applicant's case on sentence did not involve an assertion that there was a connection between his intellectual disability and the offending nor that any drug use as a teenager and young adult was associated with his intellectual disability such as to have an impact on his moral culpability. Consequently, the sentencing judge did not err as contended by the applicant.

Consideration

1. It was clear from the remarks on sentence (at p 10) that the learned sentencing judge accepted that the applicant had a mild intellectual disability. He also noted: "that there was a significant difference between his verbal and non-verbal cognitive reasoning, with his verbal reasoning being in the range of borderline intellectual disability, whilst his non-verbal skills are in the range of moderate intellectual disability."
2. The sentencing judge's comment during the sentence proceedings that it was not evident to him from viewing the Police interview that the applicant experienced any difficulty in communicating is consistent with what was said in the passage quoted in the preceding paragraph. The comment does not provide a basis for inferring that the sentencing judge was sceptical of the extent of the applicant's intellectual disability as the applicant's written submissions appeared to contend.
3. The applicant's intellectual disability was taken into account when the sentencing judge considered the applicant's subjective circumstances and, immediately after referring to the importance of specific and general deterrence, his Honour referred again to the applicant's intellectual disability (at p 16 of the remarks on sentence).
4. It is true that the applicant's intellectual disability was not mentioned when the judge made his assessment of the objective seriousness of the offending. This is understandable because there was no finding that the applicant's intellectual disability was causally related to his offending. The case that was put on the applicant's behalf before the sentencing judge did not include a contention that there was such a causal relationship. Experienced counsel who appeared for the applicant on that occasion, submitted concerning the applicant's intellectual disability (at T12.41 ff) as follows: "HALL: … So [his intellectual functioning is] at a very low level. It's certainly not the case that I can draw any clear distinction [? connection] between his intellectual disability and the offending in this particular case, but certainly, in my submission, the fact that he is someone who functions at such a low level does, of necessity, in my respectful submission, mean that he is someone who is less suitable as a vehicle for general deterrence. I don't submit that general deterrence has no application. But I say that, bearing in mind the assessment by Professor Hayes - that he does function at a range of mild intellectual disability at a level lower than 99.8 per cent of his age peers - is evidence of a significant intellectual disability and does certainly play a role in terms of his viability as a vehicle for general deterrence."
5. The question of whether the transcript of the proceedings on sentence was correct in recording "distinction" instead of another word such as "connection" was raised with the parties during the oral hearing of the appeal. Having regard to transcript and the parties' submissions, it appears clear to me that, whether the word "distinction" was a mistranscription or was actually said at the sentence hearing, what was intended, and what the sentencing judge apparently understood, was that there was no submission that there was a clear connection between the applicant's intellectual disability and the offending. What was submitted was that his intellectual disability made him "someone who is less suitable as a vehicle for general deterrence".

Consideration

1. As to the applicant's medical challenges, the sentencing judge accepted that: "there is nothing contained in the report which would indicate that Corrective Services are not fully capable of dealing with any ongoing problems and of course arranging for appropriate investigation and supervision to ensure that his conditions do not deteriorate or return."
2. As a result of this finding, the applicant's medical conditions would not weigh heavily in favour of a finding of special circumstances.
3. In Caristo v R [2011] NSWCCA 7, R A Hulme J (Giles JA and Adams J agreeing) gave a non-exhaustive statement of the principles applicable to the setting of the non-parole period of a sentence s 44 of the Sentencing Procedure Act and determining whether there were "special circumstances", at [27]-[31]: "27. The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v The Queen [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34]. 28. A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. 29. "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive": R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp at [36]. 30. Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow , above, at [22]. 31. The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp , above, at [31]; Trad v R [2009] NSWCCA 56 at [33]."
4. The aggregate sentence imposed comprised a non-parole period of 11 years and 3 months together with a balance of 3 years and 9 months. It is clear from his Honour's remarks on sentence that he took into account the need for, and the benefit that the applicant could derive from, supervision while on parole in the community. Having regard to the usual situation that "the period of supervision under a supervision condition imposed on a parole order … is the lesser of three years or the period that the parole order is in force", [1] the sentencing judge was satisfied, in effect, that a non-parole period of three years and nine months would be adequate.
5. While the matters raised in the applicant's submissions are circumstances which might be capable of constituting "special circumstances" for the purposes of s 44(2) of the Sentencing Procedure Act, the sentencing Court was not required to make a finding of special circumstances: R v Fidow [2004] NSWCCA 172 (Fidow) at [22]. Indeed, for a finding a special circumstances to be made, the circumstances must be sufficiently special to justify a variation downwards from the statutory ratio: Fidow at [22].

Submissions

1. The applicant submitted that the aggregate sentence in the present case was outside the range of penalties for the offences when considered against the relevant maximum penalties and standard non-parole periods. The applicant also drew attention to a number of decisions which was said to point to: "sentences less than that applied to the applicant given the objective criminality and extreme personal circumstances of the applicant and the Court should resentence the applicant in accordance with the principles in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42]".
2. These decisions were: R v Egan [2016] NSWCCA 285; MLP v R [2006] NSWCCA 271; [2014] NSWCCA 183; AWKO v R [2010] NSWCCA 90; RR v R [2011] NSWCCA 235; Kite v Regina [2009] NSWCCA 12; SW v R [2013] NSWCCA 255; R v Ronald King [2009] NSWCCA 117; R v AJP [2004] NSWCCA; 150 A Crim R 575; and Jones v R [2012] NSWCCA 262. In addition, the applicant relied upon the sentence imposed when the offender in Muldrock v The Queen (2011) 244 CLR 120 was re-sentenced by the Court of Criminal Appeal after the High Court's decision.
3. In oral submissions, Ms Kluss of counsel, who appeared for the applicant, also submitted that the sentences were manifestly excessive because of: 1. the failure to balance the role of general deterrence when dealing with a person with an intellectual disability such as the applicant; and 2. the length of sentence imposed would mean that the applicant would struggle against being institutionalised during the term of any sentence and post release.
4. The Crown submitted that the indicative sentences and the aggregate sentence did not stand out as being inconsistent with the unchallenged findings of objective seriousness made by the sentencing judge, especially having regard to the legislative guideposts in the form of the applicable maximum penalties and the standard non-parole periods for the relevant offences. The Crown drew attention, in particular, to the following features of the offending as justifying a stern sentence: 1. the victim being six years of age when the age range for such offences was up to 10 years; 2. the offences were aggravated because the applicant was in a position of trust and authority over the victim; 3. the applicant threatened the victim and her mother with harm in order to gain compliance; and 4. the applicant used force, including in forcing entry to the room, pushing the victim onto a mattress, placing a pillow over her face while she struggled and removing her lower clothing.
5. As to the use of comparative cases, the Crown drew attention to the principles referred to in MLP v R [2014] NSWCCA 183 and made submissions on the particular similarities and differences between the present case and those relied upon by the applicant, which were presented by way of a table.

Consideration

1. The applicable principles concerning appellate intervention on the ground that a sentence is manifestly excessive can be summarised as follows: 1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; 2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; 3. it is not to the point that this Court might have exercised the sentencing discretion differently; 4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and 5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust: Roach v R [2019] NSWCCA 160 at [174]; Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221 at [443] and the authorities there referred to.
2. When, as in the present case, it is submitted that the manifest excessiveness of the sentence imposed is demonstrated by comparing the sentence with the sentences imposed in other cases, it is important to bear in mind the following principles: 1. consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49], MLP at [41]; 2. Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed, but the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41], MLP at [42]; and 3. A careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] Bellew J (McClellan CJ at CL and Johnson J agreeing). This arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another: MLP at [44].
3. In the present case, the applicant was sentenced in respect of three offences for which the findings as to objective seriousness, the statutory guideposts of the maximum sentence and standard non-parole periods and the indicative sentences were as follows: Offence Objective seriousness finding Maximum penalty & standard non-parole period Indicative sentence 1 Sexual intercourse with a person under 10 years (Crimes Act s 66A) Mid-range 25 yrs (max) 14 yrs 15 yrs (SNPP) 10 yrs 6 m 2 Attempted sexual intercourse with a person under 10 years (Crimes Act s 66B) Mid-range 25 yrs (max) 10 yrs 10 yrs (SNPP) 7 yrs 6 m 3 Indecent assault on a person under 10 years (Crimes Act s 61M(2)) Marginally below mid-range 10 yrs (max) 4 yrs 8 yrs (SNPP) 3 yrs

1. The aggregate sentence imposed was 15 years with a non-parole period of 11 years and 3 months. This was consistent with the findings as to the objective seriousness of the offending and the subjective circumstances of the applicant.
2. The findings as to objective seriousness were unchallenged and were more than adequately supported by the circumstances identified by the sentencing judge including: 1. the young age of the victim, being 6, which was well below the upper limit of 10 years for the offences in question; 2. the applicant used threats to harm the victim and her mother in order to have the victim submit to the offending; 3. force was used to obtain entry to the bedroom where the victim sought to protect herself from the applicant, to push the victim onto the mattress and to remove her lower clothing; 4. the applicant placed a pillow on the victim's face; 5. the applicant did not take the victim directly to her destination but took her to a place where no-one would be present apart from the victim and the applicant; 6. although there was no evidence of extensive premeditation, the applicant clearly intended to commit sexual offences against the victim before picking her up; and 7. the three offences occurred on the one occasion.
3. The offences were aggravated by the fact that the applicant had authority over the victim and breached his position of trust.
4. The applicant's subjective circumstances included: 1. the applicant was 20 at the time of the offending; 2. the applicant grew up in a family and had a troubled education but he has regular telephone contact with his father in what appears to be a supportive, caring relationship; 3. the applicant began to use drugs when he was about 11 and left home at about the age of 13 and at some time apparently had no fixed place in which to live; 4. although the applicant has had a number of jobs, he last worked at the age of 22; 5. the applicant has a mild intellectual disability, with his verbal reasoning being in the range of borderline intellectual disability whilst his non-verbal skills were in the range of moderate intellectual disability; 6. he has a rare cancer as a result of which he has had a kidney and renal gland removed and has some difficulty walking and has ongoing pain as well as digestive problems and a heart condition; 7. the applicant, when in the community, has had the assistance of carers some five days per week; 8. the applicant has been in protective custody and is likely to remain in such custody during the course of any sentence imposed; 9. the applicant has a significant criminal history including a number of sexual offences relating to children where two sets of offences occurred before and one after the offences for which the applicant was sentenced by King SC DCJ; 10. the applicant has breached parole conditions by having contact with a person under 16 years of age and failing to follow a direction to delete contact with the 13-year-old from his social media account; 11. the applicant's compliance with the conditions of his extended supervision order under the Crimes (High Risk Offenders) Act has been satisfactory; 12. his risk of reoffending is high; 13. the applicant's prospect of effective rehabilitation is low or poor; and 14. there was no evidence of remorse or contrition.

[2014] HCA 2

(2014) 253 CLR 58

(2010) 242 CLR 520

(2011) 244 CLR 120

(2017) 96 NSWLR 155

(1988) 164 CLR 465

(2014) 252 CLR 601

[2010] HCA 45

[2012] NSWCCA 262

[2009] NSWCCA 12

[2017] NSWCCA 221

[2012] NSWCCA 108

[2009] NSWCCA 117

[2017] NSWCCA 317

[2010] NSWCCA 194

[2001] NSWCCA 534

[2010] NSWCCA 277

[2009] NSWCCA 56

[2010] NSWCCA 90

[2006] NSWCCA 271

[2014] NSWCCA 183

[2004] NSWCCA 172

[2011] NSWCCA 235

[2019] NSWCCA 115

[2013] NSWCCA 255

[1974] HCA 26

[2004] NSWCCA 264

[2012] NSWCCA 236

[2004] NSWCCA 434