NGATI, John Walsh v R

The offences 7At the time that the applicant committed the offences he was thirty years of age. As I will explain, he had a substantial criminal history. 8The offences on the indictment and the two Form 1s embraced three robberies. 9The first robbery occurred just before 3:00pm on Monday, 28 March 2011. The applicant and a family relation ("AB") entered the Star Bar and Grill Hotel in George Street, Sydney. They went to the gaming room. AB approached a hotel employee and requested assistance. The employee left the gaming booth where she was standing. The applicant grabbed her and pushed her back into the gaming booth. AB followed them. The applicant forced the employee to open the cash register. As the applicant took money from the cash register, AB covered the employee's eyes with gaffer tape and told her not to move. 10The applicant and AB demanded that the employee open the safe, but she said she could not do so. Either the applicant or the co-offender then grabbed the employee's handbag. They were interrupted by the employee's manager. The co-offender pushed the employee to the ground. Both he and the applicant left the premises. They left the handbag behind. In the end $390 in cash was taken. 11These circumstances were the basis for the charges of robbery in company and detain person for advantage in company, which were both included on the Form 1 accompanying the count on the indictment concerning the second robbery on 19 April 2011. Robbery in company is also an offence under s 97(1) and attracts the maximum penalty of twenty years imprisonment. An offence of detaining a person for advantage in company has a maximum penalty of twenty years (Crimes Act 1900, s 86(2)). 12Just after 4:00pm on 19 April 2011 AB entered the Royal George Bar, also known as the Ivy Bar, in George Street, Sydney. He went to a gaming room. He was observed speaking on his mobile phone for some time. The applicant arrived at the hotel about twenty minutes later. After the other customers left the gaming room, AB asked an employee for assistance in playing one of the poker machines. While this was occurring AB called over the applicant. The applicant came to the gaming room. He ran at the employee with one of his arms raised at face level. The applicant pointed a white sharp object at the employee's neck. The applicant said to the employee "Don't scream or I'll kill you". 13AB grabbed the employee and wrapped his hand around his face, blocking his vision and making it difficult for the employee to breathe. AB said to him "Don't scream". The applicant said to him words to the effect "Give me all the money. Go to the till or you die". AB dragged the employee to the till while he still had his hand over the employee's mouth. The employee was told to open the till. AB then dragged him away and the applicant stole money from the till. AB "dropped" the employee to the ground. The applicant and AB ran from the premises. The robbery yielded $6,831 in cash. 14The applicant's conduct in robbing the employee while in company with AB and armed was the first of the charges on the indictment to which he pleaded guilty. His conduct in detaining the employee in company with AB was included on a Form 1 accompanying the count on the indictment concerning the third robbery on 5 May 2011. 15On 4 May 2011 AB entered the Belvedere Hotel in Kent Street, Sydney. He went to the third floor gaming room. He phoned the applicant from the hotel. At around 3:40pm the next day AB returned. Just prior to 4:00pm he phoned the applicant. AB then asked an employee for some assistance in operating a poker machine. The employee walked out from behind a secure bar. As she was assisting AB, the applicant entered the room, placed one hand over her mouth and pressed a knife against her collarbone with his other hand. He was wearing white gloves. 16The applicant led the employee towards the door of the bar, still holding her mouth and holding the knife to her throat. He told her to open the door and then the till. When she did so, the applicant let go of her and told AB to "tape her". He complied. The applicant took money from the till. The applicant said to the employee "Where is the rest of it?". However, the employee could not respond because she had tape over her mouth. AB told the employee to get on her knees. The applicant then told her to open another till. She crawled on her knees and opened it. The applicant took out money. The employee was then told to get on the ground. She lay on her side and AB wrapped tape around her ankles. The applicant then told the employee not to move until he was gone. He said to her words to the effect "Don't push the [alarm] button until I am gone or I'll come back and stab you in the throat". 17According to the sentencing judge, CCTV footage of the incident records the applicant repeatedly pointing at the employee as he walked away. The employee waited until they had left, and then called the manager. The robbery yielded $1,978.30 in cash. 18The applicant's conduct in robbing the employee while in company with AB and armed was the basis for the second charge on the indictment. His conduct in detaining the employee for advantage in company was also included on the Form 1 associated with this count of the indictment. 19It suffices to state at this point that the level of criminality disclosed by the applicant's conduct was very high. The conduct of the applicant towards the employees of the hotels, especially in the armed robberies committed on 19 April 2011 and 5 May 2011, was vicious. Not surprisingly, the sentencing judge described the applicant's actions as "callous and cruel in the extreme" and observed that it was "impossible to imagine the terror these victims were forced to endure in the course of these armed robberies". Critically for the resolution of this appeal, it is important to note that the offences involved planning and co-ordination by the applicant. As noted, AB was a family relation. He was a juvenile at the time of these offences. His Honour found that AB was acting "under the influence" of the applicant.

The sentencing judgment 20The description of the offences that I have set out above is largely taken from his Honour's sentencing judgment. I have already noted some of the findings made by his Honour. The balance of the sentencing judgment dealt with the subjective case of the applicant and then synthesised the various factors to produce the sentence noted in [4]. The material concerning the applicant's personal circumstances was largely taken from a report from a psychologist, Mr Mark Howard, and to a lesser extent from a psychiatrist, Dr Adams. It appears that his Honour accepted the recitation of his background as set out in those reports. Otherwise, I note the following points about the sentencing judgment. 21First, his Honour noted that the applicant came to Australia with his family from New Zealand when he was young. His parents separated when he was five and his mother returned to New Zealand. He resided with his father. He left the family home at the age of either fourteen or fifteen and after he began to exhibit "behavioural problems". 22Second, his Honour noted the applicant's extensive criminal record. It included three robbery offences as a juvenile. In October 2002, when he was 23, the applicant was sentenced to substantial terms of imprisonment for three offences of robbery armed with an offensive weapon, one offence of assault with intent to rob armed with an offensive weapon, and an offence of robbery in company. Overall he received a sentence of imprisonment for five years commencing on 29 March 2001 and concluding on 28 March 2006, with a non-parole period of four years concluding on 28 March 2005. He was released after the expiry of his non-parole period, but his parole was revoked when he was convicted of larceny offences in July 2006. He received a further term of imprisonment of twelve months for those offences. He was convicted of further larceny offences in 2009 and 2011. He received custodial sentences in respect of each set of those offences. 23Third, his Honour noted that after the applicant was released from custody in 2009 he had worked for a period in the mining industry and, while not working, lived with his partner. His Honour noted that the applicant told Mr Howard that in the weeks prior to committing the offences, he experienced conflict with his partner and he was not living with her when he committed these offences. His Honour noted that his mother had returned to live in Australia, but she had passed away in 2012. The applicant had some ongoing contact with his father and step-mother. 24Fourth, his Honour noted that the applicant's history of substance abuse commenced when he began using heroin at age seventeen. After the applicant was released in 2009 he abstained from heroin while in employment, but relapsed again in April or May 2011 following disputes with his partner. His Honour noted that the applicant stated that he committed the offences to obtain money to feed a daily heroin addiction. 25Fifth, his Honour noted that Mr Howard reported that the applicant expressed sorrow for his actions and concern for his victims, but had also stated that the "[applicant's] expressions of remorse and distress" indicate "self orientated regret for the personal consequences and causes of his behaviour". His Honour also noted the letters of apology written by the applicant to each of the victims. 26Sixth, his Honour dealt in detail with the contents of Mr Howard's and Dr Adams' reports. I will return to address this in dealing with the complaint of error on the part of his Honour. It suffices at this point to note that Mr Howard's testing had indicated the applicant's intellectual functioning was significantly impaired. Also, both Mr Howard and Dr Adams referred to an incident when the applicant suffered a head injury when he was in Year 7, but neither was able to conclude that the incident was of any significance. 27Seventh, his Honour noted that he was required to have regard to the guideline judgment for such offences, being R v Henry [1999] NSWCCA 111; 46 NSWLR 346 ("Henry"). His Honour considered that these offences were of much greater objective seriousness than "the common cases identified in Henry" in that they were in company, involved more than limited planning, involved the making of serious threats, and the use of significant violence against the victims. Further, this applicant was not a "young offender with no or little criminal history" (cf Henry at [162]). 28Eighth, his Honour considered the offences were aggravated because they were committed while the applicant was on bail. 29Ninth, his Honour considered that he could not conclude that the applicant had "favourable prospects of rehabilitation". To the contrary, his Honour found that there was "a real risk that the offender will re-offend". 30Tenth, his Honour gave some weight to the plea of guilty entered by the applicant, but noted that it was of "limited utilitarian value". It was entered around the time the applicant's trial was due to commence. 31Eleventh, his Honour assessed the objective seriousness of the robbery on 5 May 2011 to be "somewhat greater" than that of the robbery on 19 April 2011 because of the "high level of violence and serious threats perpetrated and made upon" the victim. However, as the Form 1 associated with the robbery on 19 April 2011 included the robbery committed on 28 March 2011, his Honour considered it appropriate to indicate the same total sentence for each offence "and to reflect the offender's total criminality by way of some partial cumulation". These observations were reflected in the aggregate sentence and the sentence indications outlined above (at [4] to [5]). 32Twelfth, his Honour declined to make a finding of special circumstances. His Honour also found that a minimum sentence less than the non-parole period that he proposed to impose, namely nine years, would not appropriately reflect the total criminality involved in the commission of the offences. The applicant's submissions in this Court argued that a finding of special circumstances was warranted in the event the Court decided to intervene. However, it was not contended that there was any separate error in the manner in which his Honour dealt with this aspect of the applicant's sentence.

Alleged error in finding that the applicant's criminal culpability was not mitigated by findings that the applicant's intelligence lay in the lower extreme range 33Counsel for the applicant submitted that the evidence provided by Mr Howard and Dr Adams concerning the applicant's intellectual capacity was relevant to an assessment of his "moral culpability" for the offences, and that his Honour erred in finding to the contrary. 34As noted, Mr Howard conducted intelligence testing of the applicant which revealed that he had an overall IQ score that was in the "lower extreme range of intelligence". Mr Howard determined that his intelligence was in the percentile of "0.2%" which translated into a composite IQ score ranging between 52 and 66 (within a 90% confidence interval). 35Counsel for the applicant pointed to the following part of Mr Howard's report which was before his Honour: "John's account of his offending indicated significant difficulties with regulating stress and negative psychological states without recourse to substance use. John recalled that when last in the community he achieved relative stability in terms of work, partnership and regulation of heroin use. He disclosed, however that in the weeks prior to the offences he experienced acute psychological distress following [a] dispute with his partner. He described reactive avoidant behaviour such as withdrawing from the relationship and relapsing into regular heroin use to alleviate distress. It is not uncommon that individuals may resort to previous methods of coping such as substance use when exposed to stressors. From this, John associated his offending with immediate financial demands to perpetuate use of heroin. The likelihood that John may return to substance use and related offending in times of stress may be aggravated by below average intelligence, which can be associated with decreased control of [offending] behaviours and capacities for consequential reasoning." (emphasis added) 36This passage from Mr Howard's report was specifically directed to the applicant's prospects of future offending. The suggested connection between his impaired level of intellectual functioning and future offending was necessarily qualified ("may be" and "can be"). Mr Howard did not expressly address the topic of whether, and if so how, the applicant's reduced intellectual functioning did, or may have, contributed to his commission of the offences the subject of this application. 37Counsel for the applicant also pointed to the following extracts from Dr Adams' report which was before his Honour: "The psychometric testing carried out by Mr Howard indicates that [the applicant's] level of intelligence falls within the lower extreme range. In my view this has likely compounded his reasoning and decision-making capacity. ... On the basis of the information currently available, in my opinion Mr Ngati's clinical presentation can best be understood in terms of his emotionally unstable personality structure and antisocial traits, heroin dependence, and a background of impaired intelligence and cognitive capacity (with the additional possibility of brain injury)." (emphasis added) 38These passages are to be found in part of Dr Adams' report entitled "Re: psychiatric issues". They are not specifically directed to the applicant's "reasoning and decision making capacity" in relation to the subject offences. Otherwise, Dr Adams' report did not expressly address the existence of any link between his impaired intelligence and his commission of the three armed robberies. 39It is important to note how this material was relied upon by the applicant before his Honour. When pressed, counsel appearing for the applicant expressly disclaimed any submission to the effect that the applicant "wasn't fully aware of the seriousness or the consequences" of his conduct. Instead, it was submitted that, because the applicant had "an overall IQ score in the lower extreme range of intelligence", then his Honour should "take that into account when weighing up the factors in [the] sentencing process". This submission was consistent with Dr Adams' reference to the applicant having a "background of impaired intelligence". 40As noted, in the sentencing judgment his Honour referred to Mr Howard's assessment of the applicant's intellectual functioning. His Honour also quoted extensively from Dr Adams' report including the extract that I have noted above at [37]. His Honour addressed this material in the following passage: "Nor can it be said in my view that the offender's criminal culpability is mitigated by Mr Howard's finding that upon testing the offender's intelligence lies in the lower extreme range. These offences clearly involve a degree of planning. I agree with the Crown contention that the degree of planning is in excess of the limited planning as one of the factors referred to in the common case in the guideline judgment [in R v Henry] but I do not regard the degree of planning as being in excess of what would be inherent to planning for offences of this kind such as to constitute aggravating factors. But the fact is they did involve a degree of planning and I am satisfied the offender was fully aware when he committed these offences despite the IQ testing results of Mr Howard, that what he was doing was seriously wrong. Indeed, that is admitted effectively by the offender in his letters of apology to the victims and in what he said to Mr Howard and to some degree to Dr Adams." (emphasis added) 41At the heart of the applicant's challenge to his Honour's sentence was his reliance on the following passage from the High Court's judgment in Muldrock v R [2011] HCA 39; 244 CLR 120 at [54] ("Muldrock"): "[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." (emphasis added) 42It was submitted that his Honour failed to recognise that, with persons who have an impaired intellectual capacity, an inquiry into their "moral culpability" must conform with the approach stated in the emphasised passage from Muldrock just noted. 43Earlier in Muldrock, at [27], the High Court had noted that: "...objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." 44Paragraphs [27] and [54] of Muldrock have been considered on a number of occasions by this Court. It suffices to state that the reference to the "objective seriousness" of the offence as referred to in [27] of Muldrock is to be distinguished from an assessment of the relevant offender's "moral culpability" as referred to in [54]. An offender's mental state, including their impaired intellectual functioning, is clearly relevant to any assessment of the latter (McLaren v R [2012] NSWCCA 284 at [29] per McCallum J, McClellan CJ at CL and Bellew J agreeing ("McLaren"); Elturk v R [2014] NSWCCA 61 at [34] per Beazley P). It is unnecessary to consider this further as it is clear that in the passage from the sentencing judgment set out above (at [40]) his Honour (correctly) used the phrase "offender's criminal culpability" in the sense of "moral culpability" as referred to in Muldrock at [54] and discussed by McCallum J in McLaren. 45In this case it is not contended that the applicant was suffering from a "mental illness". However, it can be accepted that the intelligence testing revealed a deficit in the applicant's intellectual functioning that could answer the description "intellectual handicap". In Muldrock at [54] the High Court stated that questions as to a causal relation are less likely to arise in sentencing such offenders because they "lack ... capacity to reason, as an ordinary person might, as to the wrongfulness of [their] conduct" and this will, "in most cases", substantially lessen their moral culpability for the offence. This is illustrated by the facts in Muldrock. In Muldrock there was "unchallenged evidence of a causal relationship between the appellant's retardation" and his commission of sexual offences towards children (Muldrock at [55]). In particular, a psychiatrist had assessed the appellant in that case as being aware of the wrongfulness of his own conduct but had observed that it was "only a superficial awareness" (Muldrock at [52]), and a psychologist had concluded that he had little control over his "acting out behaviour" (Muldrock at [41]). 46Nevertheless the approach stated in Muldrock is only expressed to be apposite to "most cases" of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the applicant was "fully aware" that his conduct was "seriously wrong". Considered in this context, the finding that he was "fully aware" was clearly a reference to the applicant having a sufficiently deep understanding of its wrongful nature and consequences. 47Thus, in terms of Muldrock, his Honour's findings reveal that, notwithstanding his low IQ, at least in relation to these offences the applicant did not "lack the capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct". This is not surprising for three reasons. First, because counsel for the applicant had, during the course of submissions, expressly disclaimed any suggestion to that effect. Second, because the degree of planning and the circumstances surrounding the commission of these particular offences suggested to the contrary. The applicant was clearly not acting out an impulse or tendency. His actions were not only cruel, they were also deliberate and methodical. Third, properly considered, the evidence given by Mr Howard and Dr Adams did not suggest to the contrary. 48Counsel for the applicant also referred to the well known passage from the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] ("De La Rosa"), where his Honour distilled five principles from the authorities in relation to the sentencing of applicants suffering from a mental illness, intellectual handicap or other mental problems, namely: " Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. (citations omitted)  It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. (citations omitted)  It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. (citations omitted)  It may reduce or eliminate the significance of specific deterrence. (citations omitted)  Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public." (citations omitted; emphasis added) 49In Aslan v R [2014] NSWCCA 114 at [34], Simpson J observed as follows in relation to these principles: "34 It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for." (emphasis added) 50In this case, there is no doubt that the sentencing judge was cognisant of these principles. His Honour expressly sought assistance from counsel for the applicant during the sentencing hearing as to their application. Counsel for the applicant disclaimed any matter that could have operated to reduce the applicant's moral culpability for these particular offences. Thus the first principle stated in De La Rosa at [177] was not engaged. His Honour so found. In my view his Honour did not err in doing so. 51For the sake of completeness I note one further contention that was made in the applicant's written submissions, namely that: "The applicant's intellectual disability can be seen, from the content of the psychiatric and psychological reports, to have played a part in his resumption of heroin abuse as a response to his inability to manage domestic strife. The offences were committed to obtain funds to buy heroin. The applicant's intellectual disability should also have been recognised as contributing to a reduced capacity to engage in rational thinking and exercise judgment. To this extent there was a causative link between the offending conduct and the applicant's limited intellect." 52As I have sought to explain, the material that was placed before the sentencing judge was capable of demonstrating that the applicant's impaired intellectual function meant that he had a "reduced capacity to engage in rational thinking and exercise judgment". In assessing the applicant's background and his future prospects of re-offending and other matters relevant to sentencing, that general observation was relevant to the sentencing exercise and was considered by his Honour to be so. However, the critical question in the present context of considering the applicant's moral culpability was whether it affected his ability to engage in rational thinking and exercise judgment in relation to the offences in respect of which he was being sentenced. The difficulty for the applicant on that issue was the three matters noted in [47]. As I have stated, his Honour's findings expressly reject any such contention. 53Finally, I note that during oral submissions counsel for the applicant appeared to submit that his Honour erred in failing to consider whether the applicant was a poor candidate for a full application of general deterrence given his impaired intellectual functioning. However, no application was made to amend the grounds of appeal. In any event, I do not accept the contention has any substance. Given the findings that were made, I am satisfied that it was open to his Honour to adopt the approach that he did. 54I would reject the sole ground of appeal. Although I will grant leave to appeal, it is my view that the appeal should be dismissed. 55Accordingly, the orders I propose are: (1)Leave to appeal granted. (2)Appeal dismissed.

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: 10 July 2014