Piacentino v The Queen [2019] VSCA 153

1 During the evening of 28 February 2017, the applicant, Storm Piacentino, armed with a chainsaw which he used to cause a large laceration to his victim's arm, robbed Mina Mankarious ('Mankarious') of a BMW motor vehicle. He committed this armed robbery with Omar Altaee ('Altaee') and another male.

2 On 23 January 2018 the applicant pleaded guilty before a judge in the County Court to armed robbery[1] (charge 1) and on 5 June 2018 pleaded guilty to dealing with property suspected of being the proceeds of crime[2] (a related summary offence).

3 Following a plea hearing conducted on 5 June 2018, on 21 September 2018 the judge sentenced the applicant to be imprisoned for four years and three months on charge 1 and for six months on the related summary offence. Two months of the sentence on the related summary offence was ordered to be served cumulatively upon the sentence for armed robbery, thus producing a total effective sentence of four years and five months' imprisonment, upon which the judge fixed a non-parole period of two years and seven months.[3] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, she would have sentenced the applicant to a total effective sentence of six years' imprisonment, with a non-parole period of three years and eight months.

4 Altaee also pleaded guilty before the same judge to the armed robbery (charge 1). Additionally, he pleaded guilty to reckless conduct endangering serious injury (charge 2); criminal damage (charge 3); possessing a drug of dependence (charge 4); and to unlicensed driving (related summary offence). On 11 February 2019, the judge sentenced Altaee to 612 days' imprisonment (which represented the time that he had spent in custody), together with a community correction order ('CCO') of three years' duration. The CCO had conditions directed to supervision; assessment and treatment in relation to drug and alcohol use; assessment and treatment in relation to medical health; offence-specific programs; non-association with the applicant; judicial monitoring; and a six week conditional curfew.

5 The applicant seeks leave to appeal against sentence on two grounds:

1. The sentencing discretion miscarried due to the failure to pay appropriate regard to the mitigatory effect of [the applicant's] intellectual disability, in particular:
   1. An appropriate reduction in his moral culpability; and
   2. Appropriate moderation of general deterrence.
2. The learned sentencing judge erred by imposing on the applicant a sentence that, when regard is had to the sentence imposed on the co-offender Altaee, breached the principle of parity.

6 In our view, neither ground has substance. For the reasons that follow, leave to appeal should be refused.

7 At the time of offending, the applicant was aged 25 years[4] and Altaee was 20.[5]

8 On Monday, 27 February 2017, Fatima El Ardi - who did not know the applicant or Altaee - loaned her Hyundai motor vehicle to her former partner, Muhanad Rashid ('Rashid'). Without her knowledge or permission, the Hyundai was subsequently used in the commission of certain offending.

9 At about 6.50 pm the next day, 28 February 2017, Mankarious - who owned a black BMW X5 motor vehicle - drove Rashid and a man named Yehia in his BMW to shops in Carson Street, Reservoir. Shortly afterward, the applicant, Altaee and an unknown male, arrived in the Hyundai and blocked the BMW's egress. Mankarious remained in the driver's seat with his window down. The applicant, Altaee and the third man approached the BMW and stood by the open driver's window. Altaee demanded that Mankarious surrender the BMW's keys. Rashid, Altaee said, owed him $1400, and he was taking the BMW as payment.

10 Mankarious refused to hand over the keys. The applicant then went back to the Hyundai and grabbed a chainsaw. He returned to the BMW, approached Mankarious, and pulled the chainsaw's ignition cord twice, starting it. The applicant then put the chainsaw through the open driver's window onto Mankarious' arm, causing a large laceration that required 20 stitches. The chainsaw then stalled, and Mankarious fled into a shop to get help.

11 Altaee followed Mankarious into the shop and again demanded the car keys. He threatened to shoot Mankarious and lifted his shirt to reveal a handle which was tucked down the front of his pants. Mankarious believed that the handle was that of a handgun. As a consequence, he handed his car keys to Altaee, who then left the shop, got into the BMW and drove away. The applicant and the unknown male got into the Hyundai and followed. These events form the basis of the charge of armed robbery.

12 The applicant was arrested on 22 March 2017. He exercised his right to remain silent. At his residential premises police found two stolen number plates attached to a vehicle. Police also found one Makita Grinder and one Hilti drill, believed to be stolen. These facts form the basis of the related summary charge.

13 Altaee was also involved in further offending which did not involve the applicant.

14 Thus, on 1 March 2017, at about 6.00 pm, Edward Holman was driving his vehicle in heavy traffic in St Albans. Altaee was driving the stolen BMW erratically in the service lane behind Mr Holman's vehicle. When traffic stopped, Altaee leaned out of the BMW and struck Mr Holman's vehicle five times with a baseball bat, damaging the rear left tail-light and body (charge 3 - criminal damage).

15 Further, between 1 March 2017 and approximately 6.40 am on 2 March 2017, Altaee was seen driving the BMW erratically and at a fast speed on or near the Princes Freeway. At about 2.48 am on 2 March 2017, police observed the BMW driving on Heaths Road, Hoppers Crossing. The BMW turned south onto Morris Road and police attempted to intercept it, but the BMW accelerated, suddenly swerving onto the wrong side of the road heading straight towards a taxi coming from the other direction. Just before a collision occurred, however, the BMW swerved back onto the correct side of the road, missing the taxi by only a few meters (charge 2 - reckless conduct endangering serious injury).

16 While under observation by police, the BMW travelled at extremely fast speed with its headlights turned off. At about 3.07 am on 2 March 2017, the BMW crashed into the side of the Laverton Club Hotel. Two males exited the vehicle and ran away. Police arrested Altaee a few minutes later. A search of Altaee located the keys to the BMW and two zip lock bags, each containing methylamphetamine crystals. The total weight of the crystals was 6.31 grams (charge 4 - possessing a drug of dependence).

17 At the time of his driving, Altaee was disqualified from driving (related summary charges of unlicensed driving).

Ground 1: The applicant's intellectual disability

18 As part of her plea on the applicant's behalf, counsel relied on the applicant's plea of guilty both for its utilitarian benefit and indication of remorse. Despite the fact that the applicant was aged 26 years, counsel also sought to rely on the applicant's 'relative youth', and that he had spent a significant period on remand (that being his first experience of adult prison).

19 The applicant's counsel also relied on the fact that the applicant had first been assessed as having an intellectual disability under the Disability Act 2006 in 2001, Verdins[6] principles being attracted. Counsel relied on a report by Alison Mynard, clinical psychologist, dated 13 May 2018 (Exhibit SP2), who diagnosed the applicant as having a Major Depressive Disorder; a Generalised Anxiety Disorder; Substance Abuse (Alcohol Dependence); Substance Abuse (Methamphetamines, with psychotic features); and an Intellectual Disability. Ms Mynard stated that the applicant's intellectual disability 'means that a range of his abilities are impaired and impact upon a number of areas, including his comprehension, his processing abilities, his reasoning skills and his working memory', and she expressed the following opinion:

The writer is concerned that incarceration is having a detrimental effect upon Mr Piacentino and his mental health. He presented as being very depressed and anxious in combination with his low cognitive functioning. It is the writer's opinion that he has found being in custody more difficult than other prisoners, given his vulnerable state.

20 Counsel informed the judge that the applicant's contact with the Department of Health and Human Services ('DHHS') has been intermittent over the years, with service provision last commencing in October 2014. Based on Ms Mynard's report it was contended that, as a consequence of his disability, the applicant's verbal comprehension and expression are compromised; he is overwhelmed easily; he struggles to interpret complex information; and has difficulty asserting himself. Further, the applicant's perceptual reasoning abilities are impaired, along with his processing speed and his working memory abilities fall within the extremely low ranges for his age. Ms Mynard's report also contained the following:[7]

On the day of the offending, Mr Piacentino explained that he was at home, drinking alcohol and he was intoxicated. His friend called him to come and help him recover some money that was owed. He went with his friend. Mr Piacentino denied using a chainsaw as a weapon and stated that there was someone else there who did this, as well as his friend. However, the police brief states that when the victims refused to hand over their valuables, Mr Piacentino grabbed a chainsaw and started it up, putting it through the open window of the victim, injuring the victim's arm with a 20cm cut.

Mr Piacentino stated that he was shocked at what occurred and refused to participate any longer with the co-offenders. He went home and recalled that 'he couldn't believe what had just happened'. He then used ice to try to calm down. He recalled being angry and overwhelmed at the time, trying to process what occurred. Since then, Mr Piacentino stated that he thinks about what occurred very often. He said, 'it didn't have to end up like that' and realises that the victims must have been very fearful. He stated that he 'feels bad for what happened' and if he could go back in time, would rather talk to resolve issues, rather than use intimidation or violence.

...

When intoxicated by alcohol, Mr Piacentino's cognitive abilities are likely even more impaired. In addition, Mr Piacentino has reportedly placed utmost importance on his peer relationships. The writer believes that this has contributed to Mr Piacentino's feelings acceptance and increased his confidence and self-esteem. However, he also has been easily led and the writer believes that he has been impulsive in his actions, in efforts to be accepted by his peers. His intellectual disability also means that his consequential thinking is impaired. The writer is aware that Mr Piacentino does have remorse for his actions in the offending, however, also believes that his impairments in intellectual functioning and mental illness need to be considered.

21 Further, a DHHS 'Client Overview Report', dated 9 January 2012 (part of Exhibit SP3) recorded the following:

Mr Storm Piacentino has been issued with a statement that he has an intellectual disability as defined by the Disability Act 2006. An assessment of Mr Piacentino's cognitive abilities conducted by a Disability Services Psychologist, Cameron Ho, in 2001 indicated that his level of intellectual functioning fell within the mildly intellectually disabled range. This means that while Mr Piacentino can function reasonably independently within the community, he requires additional support in some areas.

Mr Piacentino has functional personal care skills, and is able to independently perform the majority of daily living tasks. Mr Piacentino has advised the writer that he is unable to use public transport independently and only does so in the company of others. Mr Piacentino has limited literacy and numeracy skills. He is able to recognise and write simple words and phrases, but requires support with more complex tasks. Similarly, Mr Piacentino is able to recognise numbers, but has difficulty performing mathematical tasks, such as working out the correct change after a transaction.

Mr Piacentino demonstrates strengths in the following areas: he has good expressive communication skills and can effectively make his needs known able to competently; and is independent in most areas of self-care.

22 Ultimately, the applicant's counsel submitted that the judge ought to consider a 'combined sentence' of imprisonment and a CCO, given the applicant's significant vulnerabilities and impairments; the substantial time that he had already served in adult custody on remand; and the recommendations made in Ms Mynard's report.

23 Addressing the submissions made by the applicant's counsel concerning Verdins, in her reasons for sentence the judge said that she did not believe that there was enough basis for her to conclude that there was 'a causal nexus' between the applicant's offending behaviour and his mild intellectual disability. Her Honour then remarked:

In my view the issue squarely is your drug and alcohol abuse. That use is chronic and serious. Clearly, when intoxicated, you have at times behaved in very violent and irrational ways. Drug and alcohol taking does not and cannot mitigate moral culpability. Ms Mynard states,

'When intoxicated by alcohol Mr Piacentino's cognitive abilities are likely even more impaired'.

Your history of offending behaviour and appearances at court would no doubt have made you aware of that fact.

I do take into account in a more general way your deprived background and that you do have some cognitive limitations. I take into account your serious anxiety and depression, and the fact this is making imprisonment more difficulty [sic] for you. I take into account you are still a relatively young man and that this is your first time in custody and has been a significant period on remand.

24 In this Court, counsel for the applicant submitted that while the sentencing judge 'accepted the application of limbs 5 and 6 of Verdins, she did not accept the application of limb 1'. It was submitted that while the applicant's 'mental state was complicated by alcohol use', 'the exacerbation of disability by substance abuse does not negate the existence or effect of the disability itself'. Thus, while alcohol use 'might have moderated the weight to be given to limb 1, it ought not to have eliminated it entirely'. This, however, was not reflected in the judge's sentence. Furthermore, the judge's sentencing remarks 'do not address what, if any, finding she made in relation to limbs 2, 3 and 4 of Verdins'. It was submitted that her Honour specifically 'ought to have given some weight to limb 3 - moderation of general deterrence'. Counsel drew attention to the High Court's statement in Muldrock[8] concerning the relevance of intellectual disability, and submitted that the applicant 'stood to be sentenced as an intellectually disabled person'. In those circumstances, counsel submitted, and regardless of the sentencing judge's finding as to 'causal nexus', the applicant 'was a less appropriate vehicle for general deterrence than a person of unimpaired cognitive function'.

25 Counsel for the respondent submitted that the judge did not err in her treatment of the applicant's disability. The offending in this case, counsel submitted, 'was most extraordinary'. It is one thing to rob the victim of a motor vehicle, 'but it is altogether another thing for the applicant to brandish and use a live chainsaw' during the robbery's commission. The evidence in this case, counsel for the respondent submitted, was 'unequivocal': the applicant knew right from wrong; he behaved in a violent and irrational manner when intoxicated; he appreciated from past experience that intoxication led to offending behaviour; and he was intoxicated at the time of the subject offending. That an offender has an intellectual disability, the respondent's counsel submitted, 'does not result in the logical conclusion that such impairment contributed in a material sense to the relevant offending'.[9] In this case it was the applicant's intoxication, rather than his cognitive deficits, which impaired his thinking. In any event, notwithstanding the judge's conclusion as to causality, she took the applicant's cognitive limitations into account in a 'general manner'.

26 In our view, the complaint that the sentencing judge failed to afford the applicant an appropriate reduction in his moral culpability because of his intellectual disability, and thereby failed to moderate general deterrence to an appropriate extent, cannot be sustained.

27 The available evidence indicates that the applicant has a mild intellectual disability, and can function reasonably independently in the community. He has functional personal care skills, and is able to perform the majority of daily living tasks independently. According to Ms Mynard, the significance of the applicant's intellectual disability is that his consequential thinking is impaired and he is easily led. Importantly, however, Ms Mynard indicated that the applicant's cognitive abilities are likely to be more impaired when intoxicated by alcohol.

28 In light of these matters, it was well open to the judge to find that the real issue is the applicant's drug and alcohol abuse, which 'is chronic and serious', leading the applicant when intoxicated to behave 'in very violent and irrational ways'. And as the judge correctly observed, drug and alcohol taking 'does not and cannot mitigate moral culpability'.

29 So far as we can see, beyond the assertion that the applicant's consequential thinking is impaired and that he is easily led, there was nothing that would establish that the applicant's moral culpability for the armed robbery was to any appreciable extent reduced by his mild intellectual disability. Indeed, it will be remembered that he told Ms Mynard that 'he was shocked at what occurred and refused to participate any longer with the co-offenders'. So much is some indication that he is able to reason with moderate composure, and his consequential thinking is not impaired to an extent that would reduce his moral culpability to any significant degree (notwithstanding Ms Mynard's view that the applicant has impairment in comprehension and processing abilities, reasoning skills and working memory). He was not so easily led that he felt unable to withdraw from the criminal escapade he had embarked upon with Altaee and the other male.

30 In our view, the applicant failed to demonstrate that his intellectual disability had any influence on the application of either general or specific deterrence. As was observed in Romero:[10]

It is now sufficiently well recognised in this court that an intellectual disability may attract the principles in Verdins,[11] as impairment of mental function sensibly encompasses intellectual disability.[12] But as this court has cautioned in Ashe v R[13] and in Director of Public Prosecutions v Patterson,[14] it is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence, and how it is likely to affect him in the future. The question must always be whether, in the particular case, it has been shown that the offender's moral culpability or the significance of general or specific deterrence is reduced because of the intellectual disablement. It must therefore be determined whether the applicant's disablement had the effect, in the language of Verdins,[15] of impairing the offender's ability to exercise appropriate judgment, or impairing the offender's ability to make calm and rational choices, or to think clearly at the time of the offence.

31 Notwithstanding that the available material did not show that the applicant's mild intellectual disability reduced his moral culpability to any significant extent, it is to be noted that the judge did take into account in a general way the applicant's deprived background and the applicant's cognitive limitations, together with his anxiety and depression.

32 Finally, we consider that specific deterrence was important in the applicant's case. As the judge observed in her sentencing remarks:

I must take into account specific deterrence in your case. You have a number of serious prior convictions. There are several for violence, including unlawful assault, making a threat to kill, criminal damage, contravene family violence intervention orders, possessing controlled weapon, and most recently in 2014 and again in 2015, you were dealt with for separate offences of recklessly causing injury. Penalties imposed reflect the fact that you have been given a number of opportunities, which must have taken into account your background and your status as a registered client with the [DHHS] Disability Services. ...

33 The applicant's outrageous offending - involving the use of a running chainsaw - was chilling. No doubt, its use was calculated to terrify. We cannot see that the sentence imposed does other than indicate that the judge must have given full weight to the matters that properly could be taken into account in mitigation of the applicant's offending.

34 The first ground cannot be upheld. But even had we been of the view that there was substance in the ground, we would nonetheless have refused leave to appeal, there being no reasonable prospect that the Court would impose a less severe sentence than the sentence first imposed.[16]

35 In support of the complaint of unacceptable disparity, counsel for the applicant acknowledged that there were differences in the applicant's and Altaee's roles and personal circumstances, sufficient to justify some difference in the sentences imposed on them, including that the applicant was five years older; the applicant actually wielded the chainsaw; and Altaee was subject to a number of assaults in custody whilst on remand for the offending, leading to an acquired brain injury and some physical difficulties.

36 Notwithstanding those factors, counsel for the applicant submitted, the disparity between the sentences imposed was too great and gives rise to a justifiable sense of grievance, taking into account the following:

• Altaee, as the judge found, was the ringleader; carried a grudge; and made the demands for the keys;

• although the applicant was armed with the chainsaw - the judge found that the use of the chainsaw 'was a more spontaneous act' on his part - Altaee nevertheless stood to be sentenced on the basis that he was complicit in that conduct (and persisted in the armed robbery, following the victim into the shop and making a further demand under the threat of an apparent firearm);

• the pleas of both resolved at the same time, following a contested committal;

• both presented with intellectual difficulties at the time of the offending and at the time of sentence;

• the judge accepted that limbs 5 and 6 of Verdins applied to both (although she found that limbs 2, 3, 4 and, to a limited extent, limb 1, also applied to Altaee alone);

• both had prior criminal histories which commenced in the Children's Court, including for prior violent offending (although Altaee had relevant prior convictions for reckless conduct offences and armed robbery);

• Altaee had previously spent several periods in custody between 2015 and 2018, whereas the applicant's remand for this matter was his first substantial period in custody;

• Altaee committed the offences during the operational period of a CCO; and

• both had lengthy histories of drug use, and were drug-affected at the time of the offending.

37 The respondent's counsel submitted that, quite apart from their roles in the offending, differences in the applicant's and Altaee's personal histories 'justified a differing approach to sentence'. Altaee was 20 years old at the time of offending, the applicant being five years older.

38 Importantly, during a period of remand (on unrelated matters) in November 2016, Altaee was seriously assaulted in custody, and suffered a permanent and life-changing severe traumatic brain injury, resulting in a range of physical, cognitive and emotional difficulties.

39 Altaee was again assaulted in custody in August 2017; was rendered unconscious and hospitalised; and made a slow recovery with residual physical weaknesses. A neuropsychologist, Dr Matt Treeby noted a range of cognitive difficulties since the severe traumatic brain injury in 2016, and thought that the assault in August 2017 likely worsened the brain injury and contributed to Altaee's cognitive impairment, concluding that Altaee would 'experience significant functional disability across all life domains for the remainder of his life'.

40 And in a third attack whilst in protection, in July 2018, Altaee lost consciousness and was taken to hospital. He suffered a mild head injury (and a nasal fracture). The medical experts concluded that this head injury has exacerbated Altaee's brain injury (inflicted in 2016) and the deficits in his cognitive functioning. As a result of this third attack, Altaee began experiencing seizures, falls and blackouts after his discharge from hospital. He also found walking difficult, and his expressive language had deteriorated (including the development of a stutter). Altaee was later assessed by Dr Treeby in September 2018 as having an IQ of 66 (which is in the extremely low range). Disturbingly, Altaee's IQ had worsened since Dr Treeby's previous assessment, and Dr Treeby concluded that Altaee's brain injury, physical disability and psychiatric difficulties would make serving a custodial term more onerous.

41 Furthermore, Altaee had spent considerable time in solitary custody confinement for his own safety. The judge received evidence that such confinement is likely to result in a further deterioration in Altaee's cognitive disorders.

42 As the respondent' counsel pointed out, the judge was alive to the need to apply the principle of parity. In sentencing Altaee she said:

For completeness, before passing sentence, I note that for reasons discussed during the course of the plea, issues of parity in my view are now limited, both by the events just prior to and now subsequent to the offending. In particular for example I did not find the principles of Verdins applied to Mr Piacentino, along with other distinctions, for example his use of the chainsaw and also his slightly older age.

1. The principles that guide the Court when considering a 'parity' complaint were usefully summarised in Collins:[17]

The principles governing parity are well-established.[18] Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a 'marked' or 'manifest' disparity between sentences which gives rise to a justifiable sense of grievance on an appellant's part, then the principle of parity may be said to have been infringed.[19] However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.[20] When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[21]

44 In our view, there were sound reasons for the judge to impose different sentences upon the applicant and Altaee, based on their respective roles in the armed robbery and their differing personal circumstances.

45 True it might be that Altaee may have been the ringleader in the armed robbery, but the applicant's use of the chainsaw elevated his participation to an alarming extent. It almost beggars belief that a person in the applicant's position would lacerate another's arm with a chainsaw in the course of an armed robbery. As opposed to Altaee (albeit that in the eyes of the law Altaee was complicit in the armed robbery, and used the threat of force to put Mankarious in fear) the applicant used actual force of an appalling kind in order to accomplish his and Altaee's aims. We regard the applicant's offending on that account as arguably more serious than Altaee's.

46 Beyond their respective roles, however, there were other sound reasons for differentiating between them. First, Altaee was only 20 at the time of offending, considerably younger than the applicant. Secondly, and very importantly, as a result of several prison assaults, Altaee had suffered significant impairment, which would make his incarceration more burdensome. Indeed, her Honour accepted that, moderated to an extent, the first limb of Verdins was attracted - she could not make the same finding concerning the applicant - and that all other limbs of Verdins were also attracted.[22] In her sentencing remarks concerning Altaee she said:

Given the events subsequent to the November 2016 acquired brain injury as I have outlined, and in particular the significant deterioration to your cognitive and physical state since July 2018, I am however of the view that it is appropriate to take into account all other limbs of Verdins. That is, your current state has a bearing on the kind of sentence which should be imposed and the conditions attaching to it. General and specific deterrence which would have loomed large given the seriousness of these offences and of your prior criminal history, while not eliminated should be sensibly moderated.

The prosecution accepted, but only to a degree, that limbs 5 and 6 pertaining to your time in custody apply. ...

47 In light of the foregoing, the second proposed ground cannot be upheld.

48 For these reasons, we would refuse leave to appeal.

[1] Crimes Act 1958, s 75A(1). The maximum penalty is 25 years' imprisonment.

[2] Crimes Act 1958, s 195. The maximum penalty is two years' imprisonment.

[3] The judge also ordered forfeiture of registration plates, tools and items of clothing.

[6] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins'). See n 22.

[8] Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 139 [54].

[9] Counsel cited Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 490 [13] ('Romero').

[10] Romero, 490 [13] (citations as in original).

[11] [2007] VSCA 102; (2007) 16 VR 269.

[12] R v McIntosh [2008] VSCA 242; (2008) 191 A Crim R 370 at 381-4, [84]-[104]; Director of Public Prosecutions v Patterson [2009] VSCA 222, at [43]; R v HJM [2009] VSCA 267.

[13] [2010] VSCA 119, at [14].

[14] [2009] VSCA 222.

[15] [2007] VSCA 102; (2007) 16 VR 269.

[16] Criminal Procedure Act 2009, s 280(1)(a).

[17] Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (citations as in original).

[18] See Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; and Roujnikov v The Queen [2015] VSCA 97, [24]-[25] (Weinberg and Kyrou JJA).

[19] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; R v Postiglione [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462.

[20] Roujnikov v The Queen [2015] VSCA 97 quoting McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA).

[21] Hilder v The Queen [2011] VSCA 192, [38]-[39] (Maxwell P).

[22] In Verdins, 276 [32], it was said:

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.