"[33] Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
[36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]."
22 In circumstances where there was no causal link between the applicant's illness and the commission of the offence, and no inference that his pharmacological regime was being mismanaged or inappropriate, the first basis upon which an offender's mental illness might be taken into account on sentence in accordance with the principles in Hemsley had no application. The interaction between the second and fourth principles is in issue.
23 Despite the first principle having no application to the sentencing exercise, given the applicant's criminal antecedents it was nevertheless open to his Honour not to entertain any optimism as to his prospects of rehabilitation or any confidence that he would not commit further offences on his release. In coming to that view his Honour was properly entitled to have regard to the fact that the subject offence was the second occasion where the applicant had breached parole over the course of a relatively significant criminal history since he migrated to Australia. It was in that context that his Honour concluded that there was a high probability that despite treatment for the applicant's condition being available in the prison system, the community was at risk of him committing further offences of the kind that are reflected in his criminal antecedents and, by inference, that considerations of specific deterrence were relevant.
24 It is the finding of future dangerousness (or risk to the community) that is the subject of challenge on the appeal, together with what is said to be his Honour's failure to counterweight that consideration (if it was an available finding) against a moderated need for the sentence to address the principle of general deterrence.
25 The applicant submitted that the finding of risk to the community was not open because of what is said to be the demonstrated connection between the applicant's prior offending and his mental illness and, as recognised in the second principle in Hemsley, an associated moderation of his moral culpability. It is submitted that viewed in this way his Honour's finding is also at variance with the approach to an assessment of future dangerous that the High Court has commended in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477:
"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."
26 I am not persuaded that his Honour's approach was wrong as a matter of principle. Hemsley recognises that the level of danger that an offender who suffers mental illness presents, or might present to the community may be a countervailing consideration even where his illness might otherwise operate in mitigation of sentence. Here the applicant's commission of the earlier offences (possibly attended by a causal connection with his mental illness) and his commission of the subject offence (absent any causal connection but with mental illnesses nevertheless established) were both considerations relevant to an assessment of the likelihood of the applicant presenting a danger to the community upon his release. (See also R v Arnold [2004] NSWCCA 294; R v Haines [2004] NSWCCA 294; R v Wicks [2005] NSWCCA 213; R v Pham [2005] NSWCCA 314 and R v Hughes [2005] NSWCCA 117.)