Primmer v Regina

Mitigating features and matters personal to the offender

1. The offender pleaded guilty at an early opportunity and was entitled to the 25% discount provided by the sentencing Judge.
2. As his Honour said, the plea was also relevant to the question of remorse. There was a strong body of evidence establishing that the applicant was remorseful. This came in the form of references, a pre-sentence report and in two psychological reports. His mother wrote a letter in which she said that the applicant wished that he had been injured rather than the victim whom he "loved like a little sister, as she was virtually living with us for the last year or so before the accident". The applicant had difficulties sleeping. He was taking sleeping pills and having nightmares every night. Conlon DCJ was satisfied that the applicant's expressions of contrition were genuine.
3. His Honour held that the applicant's driving record did not entitle him to leniency. He had never held a licence. In January 2011 he was convicted of driving at a speed and in a manner dangerous and police pursuit. In November 2013 he was charged with being an unlicensed driver, driving whilst disqualified, police pursuit and larceny. He had also been dealt with in the Children's Court for criminal offences committed in 2010.
4. The applicant was born on 5 August 1994. He was 19 years old at the time of the offence and almost 20 when he stood to be sentenced. He had an intellectual disability as a result of which he was bullied at school. His mother said that he was "getting a hard time in [gaol]" because he was a "big boy but a gentle giant who doesn't stand up for himself so they try to stand over him". A referee (Ms Beljan) said that the applicant had a "troubled life" but was "doing good until his parents got evicted". She said that he "does not think things through as he hasn't got the capacity as the majority of us do".
5. The pre-sentence report referred to his behavioural and social problems at school. It said that he was subject to bullying and harassment at school because of his height and learning difficulties. He told the author of the report that he received insufficient support and was treated differently to others. Under the heading "FACTORS RELATING TO OFFENDING" the report quoted an earlier psychological report that "indicates that Mr Primmer presents with a mild to moderate level of intellectual impairment and requires assistance with many areas of everyday living, compared with same age peers."
6. The reference to the earlier psychological report was a reference to a report of a psychologist, Liz Kramer, dated 31 August 2012. Based on the results of intelligence testing, Ms Kramer had reported "with 95% confidence" that the offender's IQ was within the "lower extreme range". There was a discrepancy between his verbal and non-verbal abilities making assessment difficult. In relation to the "non-verbal composite" he scored in the "lower extreme" range with 99.9% of same age peers outscoring him. He scored "extremely low" on a measure of adaptive functioning. Taken together, he presented with "a Mild to Moderate level of intellectual impairment." He requires assistance with many areas of everyday life.
7. Laura Durkin, psychologist, provided a report for the purpose of the sentencing hearing. The opinions stated in that report are central to the first ground of appeal. Ms Durkin was not required for cross-examination and the Crown did not challenge the opinions stated in her report. Her report set out her qualifications and she agreed to be bound by the Expert Witness Code of Conduct (Schedule 7, Uniform Civil Procedure Rules 2005). Ms Durkin interviewed the offender and administered some tests. Her interview was cut a little short due to a lock down at the gaol and "gaol imposed time restrictions". She had read the facts sheet, the criminal history and earlier psychological reports including that of Ms Kramer.
8. Ms Durkin referred to the offender's poor social functioning and the fact that he was bullied because he was considered to be a "dope". He was taken advantage of by friends and fell in with a group of delinquent peers. In spite of his attempts to gain acceptance, he was mistreated and even assaulted. He described symptoms of depression and outbursts of anger but "struggled to recall his mental health historically". He described his feelings for the victim and symptoms consistent with a "post-traumatic stress response". Ms Durkin provided a thorough review of the documentation. She noted that a report in 2011 under the hand of Ms Esme Nasser, clinical psychologist, described the applicant as being in the "intellectually deficient range" and that his "impairments were global". Another report from 2011 by Mr Matthew Lampen, clinical nurse consultant, said that there was a "developmental disability". This was based on interviews and document review rather than psychometric testing. Ms Durkin analysed the report of Ms Kramer in some detail.
9. Ms Durkin referred to the influence of his antisocial peer group and his "emotion dysregulation" as having a significant impact on his offending behaviour. She then provided the following opinion: "54. In addition to the aforementioned, there are other factors that appear to have influenced Mr Primmer's offending. Although this assessment cannot confirm Mr Primmer's exact level of functioning or the presence of intellectual disability, all information available to me would suggested that Mr Primmer is deficient intellectually and that his adaptive functioning is poor, indicating that he would meet diagnosis for intellectual disability. Three other clinicians have confirmed this impairment and I would expect their conclusions to remain accurate given the life long nature of such disability. Given this, Mr Primmer is likely to struggle with attention, comprehension, perception, memory and thinking generally. This can affect his problem solving, consequential thinking, capacity for self-regulation, and self-moderation. Indeed, there are examples of his weaknesses in these domains, as outlined in this report. However, specifically related to the offending, it is likely that Mr Primmer's cognitive difficulties affected his ability to attend appropriately while driving, concentrate on the task at hand, moderate his conduct while driving, effectively manage any issues that arose and understand or implement the best course of action in a timely manner if a problem arose. Further to this, Mr Primmer reported being distracted by his passengers around the time of the collision. For an individual with already compromised intellectual ability, distraction is only likely to exacerbate his weaknesses. Added to these factors, Mr Primmer reported being intoxicated on 'ice' and, thus combined, his cognitive capacity would have been notably impaired."

Ground 1:"The learned sentencing judge erred in rejecting the evidence that the applicant's intellectual disability contributed to the commission of the offence."

1. The sentencing judge set out various passages from Ms Durkin's report. His Honour quoted paragraph 54 of the report (set out above at [29]). His Honour then said: "In respect of those last mentioned observations I am unable to accept that his "intellectual functioning" contributed to the commission of the offence in a material way. Courts are regularly provided with reports from psychologists who no doubt do their best to ameliorate the conduct of the persons that they are interviewing. As earlier observed, his driving complete with revving engine, screeching tyres and speed was typical of many like-minded, young, irresponsible drivers who believe that they are impressing their friends. In other words, showing off or aggressive driving that all too often ends in tragedy. That driving as observed by the witness simply had nothing to do with any passenger distracting him. Indeed, the dangerous driving was simply inconsistent with such a suggestion and I reject it. I have already referred to the facts in respect of the police pursuit in September 10 days before this particular offence. He was not distracted then, he showed complete ability to be able to observe police and manage by his aggressive driving on that occasion to escape them."
2. A sentencing Judge is not bound to act on the opinions of expert witnesses even where there is no challenge to those opinions. However, the basis of the rejection of Ms Durkin's opinion demonstrated error of a significant kind. It was based on two inappropriate generalisations.
3. First, it was suggested that Ms Durkin was a witness of a kind who "no doubt do their best to ameliorate the conduct of the person's they are interviewing." There was no evidence to support this suggestion. The report was thoughtful and balanced. Ms Durkin agreed to be bound by the Expert Code of Conduct. The responded submitted that this comment might be seen as merely "infelicitous". It is certainly that and brings to mind the "unholy trinity" observation that was subject to criticism in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572-573.
4. Second, it was based on a generalisation of the behaviour of "like-minded, young irresponsible drivers who believe they are impressing their friends". The comment appeared to disregard the individual circumstances and difficulties of the applicant: contra R v Latouf (NSWCCA, Mahoney ACJ, 12 December 1996, unrep).
5. The fact that the applicant had committed an earlier offence involving a police pursuit did not logically discredit the opinion of Ms Durkin. His conduct on the earlier occasion was equally likely to have been influenced by his "difficulties in problem solving, consequential thinking, capacity for self-regulation and self moderation."
6. Ms Durkin's opinion as to the causal connexion between the applicant's intellectual disability and his offending behaviour was significant in a proper assessment of the applicant's moral culpability for the offence for which he was to be sentenced: R v Israil at [24] (Spigelman CJ).
7. In Kentwell v The Queen [2014] HCA 37; 313 ALR 451 the High Court considered the proper approach to be taken under s 6(3) of Criminal Appeal Act 1912 (NSW) once error is established in an appeal against sentence. At [40]-[42] French CJ, Hayne, Bell and Keane JJ approved of the approach suggested by Spigelman CJ in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284. Their Honours went on at [42]: "42. … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. 43. After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. [Footnotes omitted]"
8. On my independent assessment of all of the evidence, including an affidavit read in the event of re-sentencing, I have concluded that a less severe sentence is warranted. I will return to articulate the reasons for that conclusion.
9. Ground 1 has been established. The appeal should be allowed, the sentence quashed and the applicant re-sentenced.

Ground 2:"The learned sentencing judge erred in his application of the findings of special circumstances."

1. The sentencing Judge found that there were special circumstances pursuant to s 44 of the Sentencing Act. The non-parole period was adjusted downwards by a small degree. The applicant contends that the adjustment was insufficient. Ms Cook acknowledges the difficulties in interfering with a matter that lies firmly within the discretion of the sentencing Judge. In R v Cramp [2004] NSWCCA 264 it was held at [31] that the extent of an adjustment to the non-parole period upon a finding of special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene".
2. In view of the necessity to re-sentence arising from the upholding of Ground 1, it is unnecessary to determine whether there was independent error in the application of the finding of special circumstances. I will form my own assessment in determining the appropriate sentence and non-parole period.

Ground 3:"The sentence in all the circumstances is manifestly excessive."

1. Because I have concluded that the applicant must be re-sentenced, it is strictly unnecessary to consider this ground at length. However, in my view the sentence imposed was manifestly excessive.
2. In coming to that conclusion, I am mindful that sentencing is a discretionary exercise, that there is no single correct sentence and that this Court is not permitted to substitute its own opinion as to an appropriate sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]-[28]. The applicant must establish that the sentence imposed by the sentencing judge was "unreasonable", "plainly unjust", or "manifestly wrong": see, for example, Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gaudron and Gummow JJ at [22].
3. As Ms Cook pointed out, the starting point, before the 25% reduction based on the plea of guilty, was a total sentence of four years and eight months. That is against a maximum penalty of seven years and the guideline judgment in R v Whyte where Spigelman CJ spoke of a sentence (non-parole period and additional term) of at least two years where there was an abandonment of responsibility and a plea of limited utilitarian value. In view of the applicant's subjective case, and giving full account to the seriousness of the offending and the devastating nature of the injuries suffered by the fourteen year old victim, the starting point of four years and eight months is indicative of error.
4. It may be that the manifest excess was a direct result of the error identified under Ground 1 and his Honour's treatment of the applicant's intellectual disability. His Honour rejected a submission that the applicant's disability was such that he was not an appropriate vehicle for general deterrence. While accepting that general deterrence remained an important consideration, I would give it far less weight than it would receive in the case of an offender who did not suffer from the applicant's intellectual disability.
5. I would also uphold Ground 3.

A LESS SEVERE SENTENCE IS WARRANTED

1. In re-exercising the sentencing discretion, I pay careful attention to the maximum penalty of seven years: cf Markarian at [30]-[31].
2. I have considered the guideline judgment in R v Whyte, noting that the two year guideline was what was considered the minimum appropriate sentence when there was an abandonment of responsibility. The present case has many features of the "frequently recurring case" referred to at [204]. There were present a number of the aggravating features referred to in paragraph [216]. As other members of this Court have pointed out, the guideline judgment was not "unduly prescriptive in setting out a range of sentences for a typical case" and that the court "made no reference to the upper limits of such a sentence but endeavoured to indicate a lower limit for a typical case": see WW v R [2012] NSWCCA 165 per Hoeben CJ at CL at [74]-[76]; see also Stanyard v R [2013] NSWCCA 134 per Fullerton J at [40].
3. An important feature of the present case was the evidence concerning the applicant's intellectual disability. The relevance of such evidence to the proper exercise of the sentencing discretion was considered by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 and Bugmy v The Queen [2013] HCA 37; 249 CLR 571. As Ms Cook pointed out in oral submissions the evidence and description of the applicant's disability was similar to that considered by the High Court in Muldrock. The Court said at [50] that "[t]he assessment that the appellant suffers from a 'mild intellectual disability' should not obscure the fact that he is mentally retarded."
4. It is well established that an offender's intellectual capacity may impact upon sentencing in a variety of ways, not all of which are dependent upon a causal link being established between the condition and the offending. In R v Israil Spigelman CJ said at [21]-[26]: "21. The significance of mental illness of an offender in the sentencing exercised has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294. 22. In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion. 23. To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry, supra, at [254]: '... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.' 24. I agree with the observations of Malcolm CJ in Lauritsen at [48]: '... mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence.' 25. Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it: '... specific deterrence may be more difficult to achieve and is often not worth pursuing as such.' (Tsiaras, supra, at 400) 26. Finally, a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras, supra, at 400). However in Lauritsen at [51], Malcolm CJ noted that this factor, identified by the Victorian Court of Appeal in Tsiaras, may not represent the law in Western Australia. It is unnecessary to determine whether this is the law in New South Wales. It appears to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25]. I see no reason why this would not be so, but the matter was not fully argued."
5. Israil was an offender with a mental illness (schizophrenia). The same principles apply to an offender with an intellectual disability although the weight to be afforded to matters of deterrence will vary from case to case depending on the circumstances and severity of the disability. In this case, the evidence suggests his disability is a serious one. I accept the evidence of Ms Durkin as to the link between the offender's intellectual disability and his offending behaviour. I accept that his moral culpability is reduced to some degree. I accept the submission made before the primary Judge that the applicant's condition makes him an inappropriate vehicle for general deterrence. However, the prevalence and nature of the offence means that general deterrence still has some role to play. Nevertheless, the offender's intellectual disability means that it should be given less weight than it would in many cases of this nature. On the other hand, while noting the observations in Israil and the Victorian case of Tsiaris, I accept the respondent's submission that the applicant's traffic record heightens the need for specific deterrence and that his intellectual disability is not such that specific deterrence should be ignored. Like the primary Judge, I accept that his experience of gaol will be (and has been) more difficult as a result of his intellectual functioning.
6. No "automatic consequences follow" as a result of these findings and the existence of a causal relationship between the applicant's condition and his offending "does not automatically produce the result that [he] will receive a lesser sentence": see R v Engert (1995) 84 A Crim R 67 at 68, 71 (Gleeson CJ). However, my assessment is that it is a particularly important consideration in a principled assessment of the proper sentence to be imposed on this applicant.
7. I have taken into account the purposes of punishment in s 3A of the Sentencing Act. The applicant must be adequately punished and made accountable for his actions. His conduct should be denounced. The harm to the victim must be recognised. She has suffered a devastating injury and her quality of life is greatly diminished. The victim impact statement demonstrates this fact in a moving and graphic way. Subject to the observations I have made about deterrence in the context of his intellectual disability, the sentence must deter the applicant and others from committing similar offences. Those purposes of punishment point toward a severe sentence. However, it is also important to promote the applicant's rehabilitation and that objective will, in turn, serve to protect the community. Given his difficulties, I have reached the conclusion that a very lengthy period of supervised parole is the best way to achieve his rehabilitation. For that reason, the sentence I propose includes a significant adjustment to the non-parole period.
8. I have considered the affidavit of Mr Eccleshall tendered in the event of re-sentencing. It details a number of difficulties that the applicant has had while in custody. It also demonstrates that, within the limits of his ability, he is making the most of his time in custody. He continues to have "flashbacks" of the car accident and shows symptoms of depression. As recently as 28 April 2015 he was "dealing with significant shame, guilt and sadness around the effect of his [offence] on the victim". He has "deformed toes" or "clawed feet" and there are concerns that these may be caused by "neurological pathology". There have been a number of problems with other inmates and cell-mates and he has been moved to different cells as a result. He believed he was being punished. Because of his size (he is 7 foot 3 inches - 225 cm - tall) his involvement in a cooking course was difficult because his coordination was hindered because the height of the bench.
9. Synthesising all of these factors and applying the purposes and principles of sentencing, I have reached the conclusion that an appropriate and just sentence will result in the applicant's imminent release from custody. That conclusion requires a substantial adjustment to the non-parole period following upon the finding of special circumstances under s 44. I appreciate that the non-parole period I propose may appear to some to be one at the lower end of the range in view of the seriousness of the offence and the injuries and disabilities suffered by the victim. In reaching the conclusion that the proposed non-parole period is appropriate, in addition to the matters to which I have earlier referred, I have kept in mind the observations concerning individual justice of Mahoney ACJ in R v Latouf: "To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest" "It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of a comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person" "There is in what the judge did an element of faith."

RE-SENTENCING

1. I would commence with a starting point of four years. I would reduce that by 25% to reflect the utilitarian value of the plea of guilty. That would result in a total sentence of three years. Like the sentencing Judge, I would find special circumstances pursuant to s 44 of the Sentencing Act. The special circumstances include the difficulties that the applicant has experienced while in custody and the need to foster his rehabilitation by providing for a lengthy period of supervision upon his release. For the reasons I have identified, I have made a significant adjustment to the length of the non-parole period.
2. There is no suggestion that the period of disqualification should be reduced and no appeal directed to the concurrent fixed terms imposed for those matters originally dealt with in the Local Court where various bonds were revoked by the sentencing Judge.
3. The orders that I propose are: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed for the offence under s 52A [CAN H 52971217/1 (58912004)] is quashed and in lieu thereof the applicant is sentenced to a non-parole period of 1 year 7 months commencing on 6 December 2013 and expiring on 5 July 2015. There will be an additional term of 1 year 5 months commencing 6 July 2015 and expiring on 5 December 2016. 4. The disqualification period of 10 years is confirmed. 5. All other sentences imposed in the District Court on 25 June 2014 are confirmed. 6. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 direct that the applicant to be released at the expiration of the non-parole period.

Amendments 26 June 2015 - paragraph 53 - changed "2.25 cm" to "225 cm" 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: 26 June 2015