R v Edwards

Exhibits

1. Before me are 4 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes: 1. Notice of Committal; 2. Charge Certificate; 3. Statement of Agreed Facts (recited above); 4. The offender's criminal history; 5. The offender's custodial history; and 6. The Victim Impact Statement of AB.
2. Exhibit 2 is a report of Dr Sathish Dayalan, forensic psychiatrist, dated 2 March 2022.
3. Exhibit 3 contains 4 chapters of the Bugmy Bar Book which are found on the Public Defenders' website. The tendered chapters are Childhood Exposure to Domestic and Family Violence, Childhood Sexual Abuse, Covid-19: Risks and Impacts for Prisoners and Communities and Early Exposure to Alcohol and Other Drug Abuse.
4. Exhibit 4 is a disc containing CCTV footage of the incident.

Evidence

1. I will now summarise some of the documents which have been placed before me.
2. Exhibit 1 contains the offender's criminal history. It is not so extensive as to be aggravating, but neither does it allow me to exercise leniency. At the time of the offence, Mr Edwards was in breach of parole and in breach of an Intensive Correction Order (ICO), which it is agreed aggravates the offending. He has been in continuous custody since his arrest for this offence on 3 October 2010, save for a period of 3 months when he was on Supreme Court bail.
3. AB provided a victim impact statement which is also part of exhibit 1. In her statement she says that she has felt afraid generally, and afraid of falling asleep since the incident. When she is able to sleep she has nightmares. She feels hatred for the offender for "all the things he has done and for all the suffering she has been experiencing since". After the incident, AB frequently quarrelled with her employer and she lost her employment. Tragically, AB is even afraid that her husband might harm her, and she is scared to drive a car. She sees no future for herself.
4. There is no doubt that the incident would have been terrifying for the victim. Her reaction to it demonstrates the lasting harm caused by the actions of the offender. On behalf of the community, the court acknowledges the harm caused to AB by the actions of Mr Edwards.
5. Dr Dayalan reported on 2 March 2022. He assessed Mr Edwards via audio visual link on 23 February 2022. Dr Dayalan is a Staff Specialist psychiatrist at the Forensic Hospital, Malabar, a Visiting Medical Officer at Justice Health and the South Coast Correctional Centre and a consulting psychiatrist at Forensic Psychiatry Consulting & St Leonards Specialist Clinic.
6. Dr Dayalan observed that the offender was 22 years of age. He has a son aged three years and ongoing contact with him. At the time of his arrest, Mr Edwards had been of no fixed abode and was effectively homeless. At the time of the report Mr Edwards was in segregation and was unable to work or engage in rehabilitation courses. He had not previously engaged in treatment with mental health professionals or received treatment with psychotropic medication.
7. As a child, Mr Edwards was sexually assaulted at school and at church. He was six years of age at the time of the initial sexual assault and was sexually assaulted again at the age of nine years. He did not wish to share details of the sexual assaults with Dr Dayalan, as he found it too distressing. Mr Edwards reported witnessing alot of violence at home and in his neighbourhood. He had witnessed people being stabbed and believed it to be normal as he saw it alot. He told Dr Dayalan that he had initially feared for his safety as a child, but he became desensitised to violence as he grew older.
8. Mr Edwards's mother's partners had been physically abusive towards his mother. Although they had smacked him, he denied having been subjected to extensive physical abuse. His mother had abused alcohol and cannabis during his childhood but had rehabilitated herself in recent years.
9. At school Mr Edwards struggled academically and he has ongoing difficulty with reading and writing, ie literacy. He stopped attending school in year 8. He was bullied by older children.
10. When discussing the impact of the sexual abuse, Mr Edwards described experiencing nightmares and flashbacks to the sexual assaults. He acknowledged long standing problems with sleep due to the nightmares. He avoided talking about the abuse. He had not disclosed the abuse to anyone in his family as he felt ashamed. He was unable to change his son's diaper, and avoided going to church, chapel and education classes within the gaol as they reminded him of his past experiences. He acknowledged increased irritability, hypervigilance and an exaggerated startle response. He denied having had suicidal intent as his family was a protective factor. At about the age of nine years, he experienced panic attacks but he has not experienced them in recent years. He admitted to having experienced paranoia and auditory hallucinations mostly in the context of using illicit drugs. He heard voices telling him to hurt people and to not trust others.
11. At about the time of the offence, Mr Edwards had used crystal methamphetamine, heroin, OxyContin, cannabis and alcohol. He admitted to the intravenous use of drugs which he used "to block everything out". In the days prior to the offence, he had an argument with his ex-partner who is the mother of his son and he was asked to leave the home. Thereafter he had no accommodation. He was distressed by his accommodation status and the loss of the relationship with his ex-partner. Dr Dayalan noted ongoing symptoms relating to past traumatic events. The offender had not slept properly for four days prior to the offence. He denied persecutory delusions but he had experienced auditory hallucinations. He claimed that the offence was "a spur of the moment thing". On reflection the offender observed that he feels angry with himself, and that if he had not gone out with his friends, he would be with his son.
12. Mr Edwards was using buprenorphine in custody prior to placement in segregation which had helped him with sleep. He has ongoing nightmares and flashbacks and persisting increased irritability. He is vigilant with respect to his surroundings. He has moments when he believes that other inmates are talking about him. He occasionally hears voices, but they are faint. He fears for his safety within the correctional environment.
13. The offender started drinking alcohol at the age of 12 years and cannabis from the age of nine years after the sexual assault at school. He started using crystal methamphetamine at age 14 and at the age of 18 commenced using heroin and OxyContin. He has never completed any rehabilitation program. Mr Edwards told Dr Dayalan that he would like to stop using drugs in the future as he did not want to be a bad role model for his son.
14. Mr Edwards has three sisters and three brothers, and a half-brother and a half sister through his father. His parents separated when he was very young and he has limited recollection of his father during childhood. His siblings abused illicit substances and his father abused drugs. He experienced learning difficulties at school and he has not undertaken any further education after leaving in year 8.
15. Mr Edwards presented as a young Aboriginal man whose mood was low and anxious. He accepted that he suffered from mental health problems and substance use disorder. He was willing to engage in rehabilitation.
16. In Dr Dayalan's opinion, the offender was subjected to sexual assaults during his childhood and due to a sense of shame, he had not disclosed the events until recently. He had been exposed to alot of violence in the home environment and in his neighbourhood. In his view, the offender's strong family history of substance use indicates a genetic vulnerability to substance use disorders. The pattern of use of substances indicates that Mr Edwards suffers from substance use disorders with respect to alcohol, cannabis, stimulants and opiates.
17. Consequent to the sexual assaults and exposure to violent events, Mr Edwards described intrusion symptoms such as nightmares and flashbacks. There was a history of avoidant behaviour. Negative alterations in mood were evident. He described features of increased levels of arousal such as sleep problems, increased irritability, poor concentration, hypervigilance and increased startle response. Dr Dayalan acknowledged the limitations to making a psychiatric diagnosis such as post traumatic stress disorder (PTSD) in the absence of health records which corroborate the offender's history. However, based on the consistency of the symptoms reported during the offender's presentation when discussing past traumatic events, in his opinion Mr Edwards qualifies for a diagnosis of PTSD. He observes, referring to the Bugmy Bar Book, that childhood exposure to domestic violence and sexual abuse is associated with increased aggression, lack of emotional control, learning difficulties and substance abuse. Symptoms of PTSD are usually exacerbated in the context of stress. Whilst there is no corroborative information to describe the offender's mental state at the time of the offending, in Dr Dayalan's opinion it is very likely that his use of substances and lack of sleep due to the worsening of his mental state would have adversely affected his cognition and his capacity to fully appreciate the consequences of his behaviour. He observed that the offender demonstrated little insight into his offending behaviour which is probably reflective of an external locus of control.
18. Dr Dayalan observed that the anxiety associated with the offender's psychiatric condition was reported to be exacerbated within the prison setting, which is unlikely to assist with his rehabilitation prospects. The custodial environment will probably exacerbate his anxiety symptoms and continue to contribute to his substance use and violent behaviour.
19. With respect to recommendations for treatment, in Dr Dayalan's opinion Mr Edwards would benefit from treatment with medication such as selective serotonin reuptake inhibitor, which is first-line treatment in the management of PTSD. He should also engage in psychological treatment specific to PTSD such as trauma-focused cognitive behaviour therapy or eye movement desensitisation and reprocessing therapy. Successful treatment will improve his prospects of engaging in a drug rehabilitation program and placement in a residential rehabilitation facility is recommended prior to transition into the community.
20. Finally, Dr Dayalan says that a detailed assessment of the offender's cognitive functioning would assist services such as Community Corrections and health services in determining the level of support Mr Edwards requires in the community. Such an assessment would assist in tailoring his psychological treatment and rehabilitation according to his cognitive capacity.
21. Mr May did not require Dr Dayalan for cross-examination and, properly, accepted the history and the representations contained in Dr Dayalan's report.
22. Exhibit 4 depicts the incident from a far distance. One of the offenders lags behind the others and does not approach the side of the vehicle until after the four others are there.

Objective Seriousness

1. That the offence is objectively serious is evident from the legislative yardsticks of the maximum penalty of 14 years and the standard non-parole period of 5 years, which I take into account.
2. Here there was little if any planning and the offence appears to have been opportunistic. Five persons were involved in the joint criminal enterprise. They terrorised two women returning home at night in a motor vehicle. One victim was taken forcibly out of the car, and another was threatened with a knife. Although there is no evidence of any person suffering physical injury, the event was violent. It was meant to instil fear into the victims. The vehicle itself was taken from the victim to Alice Edwards Village, formerly the Bourke Aboriginal Reserve, which is an indigenous community on the outskirts of Bourke. It was later found destroyed. The motive for the offence is unknown.
3. The offending is aggravated by the offender being on conditional liberty, the details of which are noted above. As part of the joint criminal enterprise, there was violence and a weapon used, which further aggravates the offending.
4. As to the role of the offender, the Crown concedes that I cannot find beyond reasonable doubt that he was the instigator. I find on the balance of probabilities that he did not pull CD from the passenger seat out of the car, as CD recognised the voice of that person, and it was not the voice of the offender. Ms Melhiush submitted that as the facts note that the offender stopped to talk to someone about 3 minutes prior to the incident, I should find on balance that he is the person seen in exhibit 4 who last approaches the vehicle at a time when the threat with the knife was likely already made to AB. I am unable to make such a finding on the balance of probabilities because of the grainy quality of the CCTV footage and because it is taken from such a great distance. I note however the Crown's concession that the Crown cannot prove beyond reasonable doubt that the offender pulled AB out of the car, threatened her or held the knife. That said, the offender is criminally responsible for all of the acts carried out by his co-offenders which form part of the joint criminal enterprise. He is responsible for those things the co-offenders did that he knew about. As conceded by the Crown, this is not a case of extended joint criminal enterprise where an offender is responsible for actions that he could have reasonably foreseen. The facts are largely silent as to what occurred prior to the offence, but I am satisfied that the offender did know that the event would involve intimidation of the victims.
5. It is submitted by the Crown that the offending lies at about the mid-range of objective seriousness. This is not disputed by Ms Melhuish.
6. In my opinion, the offending sits at the mid-range of objective seriousness.
7. As will shortly be seen, I am satisfied that the offender's moral culpability is significantly reduced given the co-relationship between his background of profound disadvantage, his mental health issues and the commission of the offence.

Plea of Guilty

1. It is agreed between the parties that the accused is entitled to a 25% discount for his plea of guilty. His plea also demonstrates some remorse.

Prior Criminal History

1. As I have already said, the accused's prior criminal history is not aggravating. However, neither is he entitled to leniency.

Remorse

1. It was conceded by Ms Melhuish that the offender's remorse, expressed by his plea of guilty and evolving insight into his offending as expressed to Dr Dayalan, does not amount to a statutory mitigating factor pursuant to section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). I agree, but observe that I would not expect someone with the offender's background and education to be in a position to satisfy the requirements of the section, without perhaps some considerable assistance of a lawyer. I find that the offender has shown some remorse and I propose to take it into account, not as a statutory mitigating factor, but rather as a matter to synthesise on sentence.

Time in custody

1. The offender has been in custody in respect to this offence, save for three months, since his arrest on 3 October 2020.
2. It is accepted that I have the discretion to backdate the sentence to a date on which the offender might have been released to parole for reasons discussed by Simpson J in Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145. Ms Melhuish said that it would be appropriate to backdate the sentence to 3 January 2021. Mr May submitted that it should be later, but he acknowledged that I would be exercising my discretion judicially if I backdated to any time in January 2021. I propose to backdate Mr Edwards's sentence to 10 January 2021.

General Deterrence and denunciation

1. General deterrence and denunciation clearly have some role to play in this sentencing exercise as the offence is serious, notwithstanding the offender's youth, disadvantage, deprivation and his mental health issues (which as will be seen, in my view reduces his moral culpability).
2. However, in my opinion general deterrence is a lesser factor in this sentencing exercise, and it will be reflected in the sentence I will impose. For similar reasons, these issues also reduce the significance of specific deterrence.

Prospects of Rehabilitation

1. The Crown submits that the offender's prospects of rehabilitation are guarded. He agrees that with appropriate treatment, Mr Edwards's prospects will improve.
2. It is submitted by the offender that he has some prospects by virtue of his youth, and his comments to Dr Dayalan which demonstrate some insight into his offending, which I have described as "evolving" insight.
3. I observe that there is evidence of the offender's mother achieving her rehabilitation after years of substance abuse. This, in my opinion, is a factor in favour of his own prospects. The offender is close to his mother, who sat with him in court during the proceedings, and she can both assist him and serve as a role model.
4. Taking all matters into account, I do not find that the offender's prospects of rehabilitation are good, and that he is unlikely to re-offend. His prospects are guarded. On the other hand, it is hoped that ultimately the offender is rehabilitated and makes a positive contribution to society. He has a young child and a supportive mother. Mr Edwards has some prospects, in my opinion, but they are entirely dependent on him being assisted with his rehabilitation in the community. I accept too, taking into account the offender's personal circumstances (including his past history of offending and abuse of a variety of illicit substances), that specific deterrence has some very limited role to play.

Youth

1. The offender had just turned 21 years of age at the time of the offending and in my view, he can only be described as youthful. The importance of the offender's youth in this sentencing exercise was acknowledged by the Crown. The topic of youth was recently revisited by the Court of Criminal Appeal in Byrne & Cahill v R (2021) NSWCCA 185. There the court reaffirmed the general principles relating to the role of youth in determining the appropriate penalty for serious offending. The following principles emerge as relevant to sentencing (and see BP v R (2010) NSWCCA 303): 1. The age of the offender; 2. The actual degree of maturity - or immaturity; 3. The fact that, generally speaking, "…emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be fully developed until the early to mid-twenties…" (BP per Hodgson JA at [19]; and 4. Any specific insight into mental or psychological condition of the offender which might have affected decision-making in this context.
2. In Clarke-Jeffries v R [2019] NSWCCA 56 Bellew J (Simpson AJA and Campbell agreeing) summarised the principles that govern the sentencing of youthful offenders, citing KT v R [2008] NSWCCA 51, and which I will apply to this case: [49] The principles which govern the sentencing of youthful offenders are well known. They include the following: 1. Considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence; 2. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation; 3. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law; 4. Allowance will be made for an offender's youth, and not just his or her biological age; and 5. Where the immaturity of an offender is a significant factor in the commission of an offence, the criminality involved will be less than if the same offence was committed by an adult.
3. In Miller v R [2015] NSWCCA 86, Schmidt J reiterated the well-recognised principle that the capacity for young people to reform and mould their character to conform to society's norms is usually greater than that of an older offender. In the result, considerable emphasis is usually placed on the need to provide young offenders with the opportunity for rehabilitation. In that case, the appellant was 20 years old. Her Honour went on to say that it is also well settled that the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Notwithstanding that comment, her Honour said that the greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation.
4. I add the following, which is relevant to the sentencing of Mr Edwards. In Yildiz v R [2020] NSWCCA 69, their Honours Simpson AJA and N Adams J said at [2]: The applicant was 18 years and 5 months at the time of the offence and had no prior convictions. The principles with respect to sentencing young offenders have been stated many times by this court: R v T (2008) 182 A Crim R 379; [2008] NSWCCA 51; BP v R (2010) NSWCCA 159. Recently, in Howard v R [2019] NSWCCA 109 Fullerton J (with whom MacFarlan JA agreed, Bellew J in dissent) observed at [13]: "It is not necessary to restate the principles articulated in a succession of authorities governing the sentencing of youthful offenders referred to by Bellew J, save to emphasise that the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that the emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20's." … …chronological age is a pointer to maturity, but not decisive. On average, emotional maturity and mature executive functioning does not occur until the early 20s. In some cases, it occurs at a later chronological age than for other persons, but there is a significant difference between the brain maturity of an 18-year-old and a 21-year-old or, indeed, a 23-year-old (at which age most persons achieve full maturity)."
5. In this case, the offender's subjective case points to emotional immaturity and immature executive functioning. Amongst the causes are the disadvantage, deprivation and mental health issues he has suffered (to which see below) and his youth, which in my view affected his decision-making on the night of the offending. I accept for the purpose of this sentence that the offender's immaturity contributed to his breach of the law and that greater emphasis must be put on the opportunity for him to rehabilitate.

Disadvantage/Deprivation/Mental Health

1. Ms Melhuish tendered four chapters of the Bugmy Bar Book, the details of which I have set out above. In my opinion, two additional chapters are of some relevance - Interrupted School Attendance and Suspension and Homelessness.
2. The Bar Book Project, known as the Bugmy Bar Book, contains research chapters freely available to practitioners derived from respected experts. It is found on the Public Defenders website: https://www.publicdefenders.nsw.gov.au/barbook, and provides an invaluable resource of evidence relating to sixteen (soon to be eighteen) indicia of disadvantage: see N Cowdery AO QC, J Hunter and R McMahon, "Sentencing and disadvantage: The Use of Research to Inform the Court" (2020) 32(5) JOB 43.
3. Indeed each chapter of the Bar Book has a subtitle as follows:- The purpose of this document is to collate published research, the findings of government reports and inquiries, and academic commentary in relation to [name of relevant chapter] and the effects this may have on a person's behaviour; development and social well-being; and links to contact with the criminal justice system.
4. The Bar Book provides additional expert material based on international research which may be used when sentencing an offender: see R v Tsingolas [2022] NSWDC 34 per Yehia SC DCJ. I leave to one side the chapter on Covid-19, which I deal with separately below. I turn then to each of the other five chapters.

Childhood Exposure to Domestic and Family Violence

1. As to childhood exposure to domestic and family violence, the Bar Book cites research that "there is mounting empirical evidence of the effects of exposure to domestic and family violence on children's development, and a growing recognition of the ways these harms can manifest in intergenerational cycles of trauma, violence and disadvantage." [1]
2. Whilst the offender himself was apparently not the object of the violence: There is increasing recognition that children exposed to family violence are not passive 'witnesses' and that they suffer lasting effects even if they are not the direct object of the violence or do not directly witness it. [2]
3. Here, there would appear to be no doubt about the effect of the violence in the offender's family on Mr Edwards.
4. As Fullerton J said in Perkins v R [2018] NSWCCA 62 at 99: The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.

Childhood Sexual Abuse

1. As to childhood sexual abuse, the courts have long recognised that psychological and emotional damage to children from sexual abuse can be assumed: R v Tuala [2015] NSWCCA 8 at [56]; R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [110]; R v MJB [2014] NSWCCA 195 at [49]; R v Erazo [2016] NSWCCA 139 at [44]); and most pertinently in this context, see Nasrallah v R [2021] NSWCCA 207 at [99] to [102] per Hamill J.
2. The Bar Book cites research that sexual abuse is a 'substantial risk factor for the development of subsequent mental health problems'. [3]
3. Further, it notes that the Royal Commission into Institutional Responses to Child Sexual Abuse found that the impacts of sexual abuse are interconnected in complex ways, making specific impacts difficult to isolate:- These interconnected impacts can be experienced at the same time or consecutively, as a cascade of effects over a lifetime. For instance, we heard from many survivors that they developed addictions after using alcohol or other drugs to manage the psychological trauma of abuse, which in turn affected their physical and mental health, sometimes leading to criminal behaviour and relationship difficulties. [4]
4. The Bar Book makes plain that there is ample research demonstrating that sexual abuse experienced as a child may cause ongoing mental health issues, risk taking and impulsivity, alcohol and substance abuse, difficulties with interpersonal relationships and trust, negative health, educational and economic outcomes and housing insecurity. It is also cites research that adult survivors of child sexual abuse are more likely to be arrested for drug offences and property crime.
5. In this case, whilst there is no evidence that the sexual abuse suffered by Mr Edwards caused him to offend, the factors mentioned in the paragraph above (all present in this case) demonstrate how interconnected the disadvantage suffered by Mr Edwards is with his criminal behaviour.

Early Exposure to Alcohol and Other Drug Abuse

1. The Bar Book notes that it is "well established that children in families with parental or carer substance abuse are at a greater risk of adverse developmental outcomes" [5] , that these factors include the likelihood that children themselves develop substance abuse problems, making it more probable that they will come into contact with the criminal justice system. [6]
2. Research is cited that exposure to alcohol and other drug abuse increases aggression, family conflict, disturbed school attendance, the deprivation of food, clothing, and housing and health care. Furthermore, it is noted that there is a well-established complex link between alcohol and substance abuse and criminal offending which may develop when children who have been exposed to substance abuse at an early age go on to model their carers' poor behaviours. [7]
3. In my opinion, Mr Edwards's early exposure to alcohol and other drug abuse has likely contributed to his own substance abuse issues, his disturbed school attendance, his mental health issues and his contact with the criminal justice system as suggested by the research.

Interrupted School Attendance

1. The offender left school in Year 8 and has ongoing literacy issues. His school attendance was interrupted at an early age.
2. The Bar Book cites research which suggests that an early exit from education is linked with a variety of poor outcomes, including contact with the criminal justice system. Absence of academic supervision can be a catalyst for an increase in anti-social behaviour, increased contact with anti-social peers and the vulnerability of young people to contact with police. Unsurprisingly, research also suggests that early school leaving is associated with adverse physical and mental health outcomes, risk taking behaviours and poverty.
3. These adverse outcomes are present in the offender's case, and in my opinion are at least partly attributable to his offending.

Homelessness

1. Although the reported episodes of homelessness in the offender's case are sporadic, the Bar Book notes that it is "one of the most potent examples of disadvantage in the community and one of the most important markers of social exclusion". [8] It is well known that Aboriginal and Torres Strait Islander persons have a significantly increased incidence of homelessness compared to the general Australian community.
2. Furthermore, the Bar Book cites research that housing, homelessness and mental health are interrelated, and that episodes of homelessness can trigger mental health issues. As the research suggests, and which appears obvious, there is a relationship between homelessness and poverty, violence, substance abuse, social exclusion, ill health and interaction with the criminal justice system.
3. Homelessness in my opinion sits at the apex of disadvantage, for how can a person be effectively rehabilitated without a permanent abode? The offender may have no access to the internet and all the information available to the average person. He has no fixed address to receive mail or to access home treatment from service providers including Community Corrections and case management services. He has no place to store his possessions including food and clothing. He has no place to wash and maintain hygiene. Without a home, he is destined to live a transient lifestyle, disconnected from society and isolated from friends, family and support networks.
4. The offender's (sporadic) homelessness is not to be underestimated as a barrier to his ultimate rehabilitation for these reasons, and in my view constitutes significant disadvantage.

Mental Health Issues

1. Although the offender's significant and untreated mental health issues are not dealt with in the Bar Book, so intertwined are they with the elements of disadvantage set out above, that in my view his mental health cannot be disentangled from the deprivation he has suffered throughout his life.
2. The Crown fairly says that there is no evidence that the offender's mental health issues caused his offending. However, in my view, the language of the common law and its interaction with concepts relating to mental health is unhelpful in Mr Edwards's case. In Luque v R [2017] NSWCCA 226, Hamill J said at 114:- …a sentencing Judge dealing with evidence of an offender's mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. In other respects, the impact of an offender's mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender's difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.
3. In my opinion there is a clear association, or a bright line between, or a co-relationship with or a nexus between the offender's significant mental health issues, the sexual abuse he suffered as a child, his interrupted school attendance and literacy issues, his early exposure to alcohol and drug abuse, his childhood exposure to domestic and family violence and his episodic homelessness, that whilst perhaps may not amount to causation comes perilously close. In my view, there is at least an indirect material contribution between the offender's mental health and the offending.
4. In my opinion, in all of the offender's circumstances and because of the combination of the disadvantage he has suffered, he was unable to make choices in the same way as an average person at the time of the offending.
5. I must determine whether the disadvantage and adversity suffered by Mr Edwards reduces his moral culpability. In my opinion, there is more than ample indicia, which I do not arrange in any hierarchy. In this case there is abundant evidence to establish the offender's background of significant deprivation, and I give it full weight in this sentencing exercise: Bugmy v the Queen (2013) 249 CLR 571 at 44.
6. I note the oft cited quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]: I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.
7. This is such a case. Taking into account the limited emotional resources of the offender and the trauma Mr Edwards has experienced, it is unsurprising that the events the subject of these proceedings, have manifest themselves.

Covid-19

1. The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence. I take judicial notice of the fact that there have been outbreaks amongst the prison population throughout New South Wales.
2. Correctives NSW has imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the prison population. These conditions include locking down inmates, restricting access to shower facilities, suspending visits to inmates, restricting access to social activities, restricting travel between and within correctional facilities (as occurred in this case where Mr Edwards spent several days in the unairconditioned cells at Bourke Police Station when the day temperatures exceeded 35 degrees). These measures, though designed to protect inmates against contracting the virus, have and will continue to impact the quality of life enjoyed by the offender. Whilst the impact is difficult to quantify with any degree of specificity, I take the pandemic into account as a matter to synthesise on sentence.

Special Circumstances

1. The offence carries a standard non-parole period of 5 years imprisonment. I observe that this is not a starting or end point at arriving at an appropriate sentence. Rather I have had regard to all relevant factors including the legislative guideposts of the maximum penalty and the standard non-parole period.
2. Given the terms of s54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period are the special circumstances that I find, that is the existence of the Covid-19 pandemic and its effect on the offender, the offender's plea of guilty, his youth and significantly, the reduction in the offender's moral culpability which demonstrates an urgent need for psychiatric intervention, rehabilitation and an extended period on supervision. I have deviated to a ratio of 50% because of special circumstances.

Threshold

1. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Sentence

1. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given in my opinion the offender's urgent and pressing need for psychiatric review and rehabilitation which I give primacy in this sentencing exercise. I am not obliged to average out the competing considerations, and sometimes one (as in this case treatment and rehabilitation) can be determinative: R v Hopkins [2004] NSWCCA 105.
2. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
3. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of the offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. I am required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen [2005] HCA 25.
4. As I have said, in determining an appropriate sentence I have kept in mind the legislative guideposts, being the maximum penalty of 14 years and the standard non-parole period of 5 years.
5. Having considered all of the matters I have referred to in this sentence judgment, and in particular the offender's background of significant disadvantage, after allowing for a discount of 25% for the plea of guilty, I impose a sentence of imprisonment of 3 years.

Orders

1. Mr Edwards, I convict you of the offence of aggravated carjacking contrary to section 154C(2) of the Crimes Act 1900.
2. I impose a head sentence of 3 years, after applying a discount of 25% for your plea of guilty, and a non-parole period of 1 year and 6 months.
3. Your sentence will commence on 10 January 2021 and will expire on 9 January 2024.
4. You will be eligible to be released to parole on 9 July 2022.

Endnotes

1. Australian Institute of Family Studies, Children's Exposure to Domestic and Family Violence: Key Issues and Responses (December 2015) 2.
2. Royal Commission into Family Violence, Final Report (2018) vol 1, 35-6
3. Margaret C Cutajar et al, 'Psychopathology in a Large Cohort of Sexually Abused Children Followed Up to 43 Years' (2010) 34 Child Abuse & Neglect 813, 819.
4. Royal Commission into Institutional Responses to Child Sexual Abuse Final Report (2017) vol 3, 11.
5. See for example, Australian Institute of Family Studies, "Child Maltreatment and Substance Abuse' (NCPC Discussion Paper No 2 1996) and others studies cited at footnote one in this Chapter.
6. Australian Research Alliance for Children and Youth, The Impact of Drug and Alcohol Misuse on Children and Families (report, December 2006) 1.
7. Department of Community Services (NSW) Parental Alcohol Misuse and the Impact of Children (Research to Practice Note, October 2006) 1
8. Department of Human Services (Vic) Victorian Homelessness Strategy: Action Plan and Strategic Framework (2002), cited in Australian Bureau of Statistics, Census of Population and Housing: Estimating Homelessness, 2011 (Catalogue No 2049.0, 12 November 2012). 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: 13 April 2022