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.