The character, antecedents, age, means and physical or mental condition of the person: s 16A(2)(m)
- The Offender, who is 53-years-old, presents with a strong subjective case. The starting point is that he has no relevant criminal history.
- Most importantly, all of the mandatory considerations of s16A(2)(m) and the ultimate sentence fall to be assessed through the prism of the Offender's intellectual disability and complex psychiatric and medical conditions. These mental conditions and intellectual disabilities are significant and include:
1. Borderline intellectual disability;
2. Attention deficit hyperactivity disorder;
3. Pervasive developmental disorder;
4. Generalised anxiety disorder
5. Major depressive illness
6. Bipolar disorder
- His physical health conditions include Crohn's disease, diabetes mellitus, gastro-oesophageal reflux disorder and arthritis.
- I have read the following reports tendered in the Offender's case:
1. Report of Dr Tony Mastroianni
2. Report of Satish Dayalan
3. Report of Dr Amanda White
- The Offender has a diagnosis of a reasonably significant, albeit borderline, intellectual disability since his childhood, attention deficit hyperactivity disorder, pervasive developmental disorder (an umbrella category that comprises autism spectrum disorder and other related disorders), and comorbidly significant mental health impairment, including Generalised anxiety disorder, Major Depressive Illness, and Bipolar disorder (on a background of a strong genetic disposition to Bipolar disorder due to a family history in both his father and paternal grandmother.)
- Dr Mastroianni states that the Offender's engagement with online chatlines appears to be a maladaptive coping mechanism associated with extreme anxiety around significant events such as the death of his mother and later his father, COVID, the Offender's physical health conditions including immunotherapy for Crohn's disease, and his online relationship with Tamika, another intellectually disabled person which subsequently ended.
- Dr Mastroianni also opined that periods of physical ill-health have had the effect of unsettling the Offender's mental health and have made him regress in behaviours.
- Dr Mastroianni notes that in the context of his arrest and charging, the Offender was acutely suicidal, indicative of his level of shame in his conduct.
- Dr Dayalan endorses a diagnosis of borderline intellectual functioning, autism spectrum disorder, attention deficit disorder and bipolar affective disorder type 2. Dr Dayalan considers that the Offender's borderline intellectual functioning contributed to impairment in his judgement at the time of the offence and stress associated with relationships and his physical health would have exacerbated mood instability associated with his bipolar disorder.
- On the basis of Dr Dayalan's report, it is clear enough that the Offender's depressive illness around the time of the offending materially contributed to his offending.
- As was emphasised in Moiler v R [2021] NSWCCA 73 at [59] (per Button J):
"Care should be taken not to take too prescriptive an approach in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence".
- As I have said, general deterrence usually plays a significant role in the sentencing process for offences of this kind, see R v Asplund [2010] NSWCCA 316 McClellan CJ at CL [50]:
'the offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity".
- However, the role of general deterrence is significantly moderated in circumstances where the Offender has suffered from a persistent depressive disorder, which I do think contributed to his offending: see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; R v Israil [2002] NSWCCA 255; and R v Mueller [2015] NSWCCA 292 ("Mueller").
- Because of his mental conditions the Offender is not, in my opinion, an appropriate vehicle for general deterrence: see Mueller.
- The issue of the Offender's moral culpability is an important one in this sentencing exercise. The mental conditions suffered by the Offender are relevant, both individually and cumulatively, to my assessment of the Offender's moral culpability for his offending.
- I find that the moral culpability of the Offender is significantly reduced, relative to other Offenders in respect of whom there is no cognitive impairment.
- The question of reduced moral culpability may be taken into account when assessing the objective seriousness of the offence, given that moral culpability is a relevant consideration in making that assessment: Tepania v R [2018] NSWCCA 247 at [71], [112], [121] - [123]; BM v R [2019] NSWCCA 223 at [15]. See also DS v R; DM v R [2022] NSWCCA 156.
- The Offender has submitted here that his reduced moral culpability sounds in a finding that the objective seriousness falls in the low-range. I have already determined, taking into account the Offender's mental health, that the objective seriousness of the offending is towards the mid-range. Perhaps more importantly, I consider the Offender's mental and physical conditions to be significant as part of the Offender's subjective case. They also have a significant part to play in my assessment of his prospects of rehabilitation and ultimately, the question of an appropriate sentence.