Grounds 1, 2 and 3.
4 The foundations of these grounds lies in a report from Miss Robilliard, a psychologist, to the effect that the Applicant is intellectually limited in his ability to negotiate the ordinary demands of every day living, functioning at around the bottom 1% of the population. According to Miss Robilliard he exhibits schizoid and anti-social behaviours and lacks the ability and social understanding needed to cope with a difficult moral dilemma. He was likely to behave in an impetuous manner and pay little heed to the consequences of his actions.
5 The dilemma to which Miss Robilliard was referring arose because of a claim by the Applicant that his former de facto wife and a young girl whom he had recently befriended had become addicted to drugs and the Applicant believed Mr Chalmers to be a drug dealer. It would seem there were some grounds for that belief. The Applicant claimed that he had attended Mr Chalmers' premises for the purpose of giving him a hiding.
6 Evidence given by the Applicant had some support for this claim as to why he attended the premises. So did some of his responses during the conduct of an ERISP. However his evidence under cross-examination was not calculated to inspire confidence and His Honour recorded that he was unable to say whether the Applicant's attendance at the premises was primarily for the purposes of a drug rip-off but also that he was also "unable to accept (the prisoner's evidence) that the prisoner committed this offence primarily because of some sense of moral judgment or that his ability to perceive the wrongness of the offence was in any way clouded". Of course a third possibility, though this does not seem to be canvassed, was that the Applicant's attendance at the premises was for both purposes.
7 His Honour's failure to find that the Applicant's only motivation in attending the premises was to give Mr Chalmers a hiding was the subject of attack in this appeal. It was submitted that particularly in light of the Applicant's low intelligence as ascertained by Miss Robilliard when one has regard to the way in which the Applicant referred to his reason for attending the premises during the course of his ERISP and in particular a degree of coyness in that regard and also what he had to say about it in the witness box, His Honour should have concluded that it was in the highest degree unlikely that this was a story made up by the Applicant and thus His Honour should have accepted that was the truth.
8 However, as I have indicated the Applicant gave evidence and his answers in cross-examination were somewhat less than frank. His Honour saw the Applicant in the witness box, an opportunity of course denied to this court and in those circumstances I find it impossible to reach the conclusion that this Court can come to a different view to that reached by the sentencing judge.
9 In reaching that conclusion I am not unmindful of the argument advanced on behalf of the Applicant but nor am I convinced that the only conclusion to which His Honour should have arrived was that contended for. His Honour clearly was conscious of the Applicant's low intelligence as witnessed by another part of his judgment but, given the matter largely depended upon questions of credibility, I take the view that I have expressed.
10 His Honour also observed that there was nothing in Miss Robilliard's report to suggest that the prisoner had any problem in knowing what was right and wrong and I am satisfied that he certainly did and was able to perceive the consequences of his acts. His Honour also expressed the view that the seriousness of the offence was not significantly affected whether it was robbery or the giving of a hiding to Mr Chalmers that prompted the attendance of the Applicant at Mr Chalmers' premises. In light of his Honour's findings that the Applicant had no problem in knowing the difference between right and wrong and that he was able to perceive the consequences of his acts - findings with which I would agree - this was a view His Honour was entitled to take and I see no error such as is asserted in the second and third grounds of appeal.
11 Although His Honour said that he took into account some of the remarks and opinions voiced by Miss Robilliard he did not identify the way in which, if at all, he took into account on the issue of general or specific deterrence her findings of the applicant's limited intellectual capacity. However a further statement that deterrence must feature strongly in any sentence imposed suggests that his Honour may well not have regarded the Applicant's intellectual functioning as described by Miss Robilliard as significantly reducing the weight to be given to the deterrence factors.
12 I doubt whether the Applicant's intellectual functioning in this regard has any significance so far as personal deterrence is concerned. For, given the Applicant's actions, particularly when considered in light of his record, about which I will say more below, there is much to be said for the view that the element of personal deterrence by punishment is one which should feature strongly in any sentence and not less than in the case of a person who is more susceptible presumably to reason. I can see that in other circumstances there may well be some force in the argument that the Applicant's intellectual functioning level might well make him a poor example to use by way of general deterrence but his Honour's findings that the Applicant had no problem in knowing the difference between right and wrong and that he was able to perceive the consequences of his acts leads me to the view that the argument has no, or negligible, weight here.
13 In any event, this is a case where if the Applicant's actions are to be explained on the basis of his low intellectual level, the protection of the community would argue for a higher sentence than in many other cases. There is nothing in the first ground of appeal which, of itself, causes me to think that His Honour erred in the sentence he imposed.