(c) The Court failing to take into account the applicant's intellectual disability.
72 It is convenient to deal with these grounds together. It is, as the applicant observed in his written submissions, the fact that Geraghty, DCJ. did not make express reference to the provisions of s.21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and did not in terms refer to aggravating or mitigating factors nor was there reference to the delay that had occurred between the commission of the offence and the final disposition of the matter. As the Crown also observed, the learned judge made no factual findings in relation to the applicant's role in the offence and made no assessment of the relevance of his mental disabilities in relation to the commission of the offence or the impact of his disabilities on the question of general deterrence.
73 The Crown also observed that there was difficulty in discerning the approach taken by his Honour's statement (remarks on sentence, p.5):-
"… On an objective basis, if he were somebody who came before me who did not have the intellectual disability which he does have, I would be sentencing him to a limited term of three years imprisonment."
74 The learned judge did, of course, later in his remarks on sentence say:-
"… I would have imposed what is referred to as a 'limiting term' of three years imprisonment, from 9 March 2005 to 8 March 2008."
75 The Crown has observed that whilst the statement referred to in paragraph [73] tends to suggest the limiting term was determined by reference only to objective factors, it submitted that the structure of the remarks (pp. 2 to 4) tends to suggest that his Honour did, in fact, have regard, not just to the objective facts, but also to the fact that the offence was committed by someone with an intellectual disability and with the social development skill of a six or seven year old, as well as to subjective matters, in addition to the applicant's disability, including his background situation.
76 The Crown further submitted (paragraph [65] of the Crown's written submissions):-
"It is, perhaps, not necessary to finally determine this issue or, indeed, grounds of appeal 3 - 5 because it would appear that there was error in the exercise of discretion in that his Honour did not give consideration to whether it was appropriate to take into account any period during which the applicant had been held in custody in relation to the offence and, further, his Honour does not appear to have taken into account the fact that the applicant was subject to the s.9 bond and the extent to which there was compliance by reason of his regular contact with the Probation and Parole Service, albeit for a short period from 29 March 2004 until his imprisonment for malicious wounding on 10 August 2004."
77 The Crown proceeded in its written submissions to identify the factors, correctly, that were relevant should this Court proceed to "re-sentence". These included the nature of the offence, the maximum penalty of 20 years imprisonment (although acknowledging that the present offence did not fall into the worst category of case for the offence) and the objective serious nature of the incident. The Crown acknowledged that the co-offender played a greater role, having assaulted the victim earlier and being the one wielding the stick. The Crown submitted, however, that the applicant's participation was active and his criminality, objectively viewed, was not much less than that of the co-offender.
78 On the question of the applicant's culpability being reduced by reason of his mental disability, the Crown submitted that, while it can be accepted that he may, in general terms, be suggestible in a way typical of people with low intelligence and that consumption of alcohol had a role to play in his behaviour, as the 2004 convictions for the malicious wounding and the assault offences vividly demonstrate "the applicant can and does act violently when on his own or of his own volition and does so towards victims who are themselves in vulnerable positions …".
79 The Crown fairly conceded that the level of the applicant's intellectual and social functioning is such that there may well be need for some moderation of general deterrence but that there are countervailing considerations in determining an appropriate sentence. These, it is submitted, have been highlighted by the commission of the "disturbing" offences constituting the breach of the s.9 bond. The Crown submitted that both personal deterrence and the protection of the community remain relevant considerations.
80 The Crown also addressed the question of parity with the applicant's co-offender. The Crown noted that the co-offender was entitled to a discount by reason of his (late) plea of guilty, his identification of the applicant as the other offender and his promise to give evidence against the applicant and the fact that his sentence was being served in protective custody. A specific finding of contrition was made and the sentencing judge discounted the sentence by one year because of his assistance to the authorities.
81 In relation to the question of delay, the Crown observed that a short period of delay was attributable to the applicant's failure to appear for sentence on 21 November 2003, resulting in the matter being stood over to 12 March 2004. The bulk of the delay, otherwise, has been in terms of time taken to proceed through the fitness and special hearing processes and the breach and re-sentence process. There, however, had not been any rehabilitation in the meantime.
82 The Crown also submitted that whilst totality is a relevant consideration, the applicant's imprisonment from 7 August 2004 to 6 December 2005 related to the malicious wounding offence which was committed during the term of the s.9 bond. The sentence imposed in respect of the assault offence, which was also committed in breach of the bond, was wholly subsumed within that sentence.
83 The Crown noted that by dating the limiting term from 9 March 2005, it was partly concurrent with the non-parole period imposed in respect of each of those offences.
84 The Crown acknowledged that it is necessary to take into account the fact that the applicant was subject to a s.9 bond between 29 March 2004 until his incarceration on 10 August 2004 and the extent of his compliance with that bond. Attention was also drawn to the fact that it is necessary to take into account s.23(5) (as to the time a limiting term takes effect) and s.23(6) (of the Mental Health (Criminal Procedure) Act 1990 (NSW)). Additionally, upon nominating a limiting term, it is necessary to give consideration to the consequences of nominating such a term as set out in s.24 of the Mental Health (Criminal Procedure) Act 1990 (NSW).
85 It is clear from the remarks on sentence (pp.3 to 4) that his Honour was mindful of the evidence indicating the applicant's intellectual handicap and his limited social development but I accept the submission made by Ms. Burgess that those observations do not appear to have translated into the determination of the appropriate duration of the limiting term.
86 I also accept that there is no reference to any allowance being given for the period the applicant spent in custody or detention before and during the special hearing nor for the period the applicant was subject to the s.9 bond prior to August 2004 and that due allowance was in fact required to be given.
87 In relation to the question of parity, Ms. Burgess has identified matters that indicate a lower level of culpability in the applicant, having regard to his role and disabilities than that of his co-accused. In this respect, it was observed that, whilst there were similarities given that both the applicant and the co-offender were Aboriginal and came from a disadvantaged background, the co-offender was sentenced for two offences. Further, he did not suffer from an intellectual disability and he was older than the applicant (being 26 years of age at the time of the offence). As Ms. Burgess observed, the co-offender was the instigator of the offence and was more actively involved. After he had sexually assaulted the victim on the verandah, he threatened the victim and hit him.
88 It was submitted that, in the present case, the reduction of the applicant's limiting term would not lead to a gravely inadequate sentence and that the applicant has a justifiable sense of grievance considering that he received the same three year "sentence" as the co-offender.
89 I accept that the later offences occurred in breach of the s.9 bond and were only relevant on the question of the applicant's prospects of rehabilitation. I accept that it was relevant to have regard to the fact that the applicant has a supportive family and that he did maintain contact with the Probation and Parole Service during his period on bail and following the imposition of the s.9 bond.
90 I am of the opinion that, taking into account the applicant's role, the objective circumstances of the case, the subjective circumstances of the case, including, in particular, the applicant's intellectual disability and considerations of parity, and the period spent in custody and the s.9 bond as discussed below, that the sentence imposed was manifestly excessive in all the circumstances and this Court should intervene and re-sentence him.
91 In all the circumstances, I am of the opinion that:-