R v Mizzi

R v Mizzi - [2025] NSWDC 6 - NSWDC 2024 case summary — Zoe

[8]

Dr Karen Scally, psychologist

Dr Scally assessed the offender by way of video conference in August 2024. At the time of the assessment, she had available medical records which confirmed previous diagnosis of various neurodevelopmental disorders including Tourette's Syndrome, ADHD and autism spectrum disorder.
It was noted from the treating paediatricians that the offender had a longstanding history of learning difficulties, sleep onset disorder, anxiety, emotional disturbance, and behavioural issues including oppositional, defiant behaviour and difficulties with anger management.
The offender provided a history of living with his mother and four siblings in the Campbelltown area until the age of 12. His father had been in and out of prison since his early childhood and was sentenced to 14 years manslaughter when he was between the ages of six and seven.
He was unable to recall his childhood well although he did remember that he would be subjected to bashings at hands of his father. He was also physically disciplined by his mother.
At the age of 12 he lived with his maternal grandmother, although he returned to live with his mother and two siblings in October 2023. He reported, consistent with other material, that he experienced significant learning difficulties through his schooling, which he did not enjoy. He described difficulties focusing, maintaining attention, vulnerability to internal and external distractions and difficulty socialising with his peers. He was frequently suspended in his early high school years before being home schooled. He reported that his sleep was poor since childhood and was diagnosed with various disorders.
Dr Scally further reported a persistent daily history of suicidal ideation since he was young, and that he had engaged in self-harm by cutting, and indeed attempted to strangle himself on several occasions. However, he denied any suicidal ideations at the time of the assessment.
The offender began to drink alcohol and smoke marijuana at the age of 16. He also reported a short period of using cocaine which was being financed by stealing from others. The psychologist noted the offender's forensic history including his previous criminal convictions.
Behavioural observations on clinical examination were largely unremarkable. Dr Scally administered various tests which revealed weaknesses in basic attention and concentration, working memory, speed of information processing, verbal learning capacity, retrieval of verbal material from memory as well as executive functioning, including planning, organisation and cognitive inhibition. These weaknesses were likely attributable to his various neurodevelopmental conditions as well as significant depression and anxiety symptoms. Further, the testing revealed severe depressive, antisocial and passive aggressive personality traits, anxiety, and drug dependence.
Dr Scally concluded: "Mr Mizzi-Ngati has long-standing diagnoses of ADHD and Tourette's Syndrome. These are both neurodevelopmental conditions which impact frontal executive brain function, that is the part of the brain responsible for planning and organisational skills, logical reasoning, behavioural inhibition, and cognitive flexibility. Both disorders are characterised by impairments in impulse control or behavioural inhibition which is likely to result in impulsive behaviour with reduced ability to consider the consequences of one's actions"
These deficits were further exacerbated by acute alcohol consumption. It is unsurprising in the circumstances that Dr Scally considered that these impairments likely contributed to the offender's offending behaviour.
The offender's conditions were likely to make a custodial sentence more onerous. Dr Scally considered that the offender's prospects of rehabilitation would be better advanced in the community rather than in custody. This is in circumstances where a more comprehensive evaluation and treatment plan could be implemented in the community.

[9]

Crown submissions

The Crown conceded the offender was entitled to 25% discount given the timing of the plea. Reference was made to the guideline judgement in R v Henry (1999) 46 NSWLR 346 (Henry), contending that the offending was "somewhat comparable" with what was considered in Henry.
The Crown submitted an aggravating factor pursuant to s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (the CSPA) was the vulnerability of the victim. As much was conceded by the solicitor for the offender. Whilst the property taken was reasonably low value and did not involve serious violence, there was a persistent threat of such violence.
The Crown contended that the offender in the initial stages assented and encouraged the co-offender's threats and demands for the victim's property. This is conceded by the solicitor for the offender. The Crown conceded that there was no evidence of planning and no sophistication to the offending. In oral submissions, the Crown conceded that given the circumstances, the court could be satisfied that the offending was entirely spontaneous.
Ultimately, without distinguishing between the roles of the respective offenders, it was contended that the offence fell just below the mid-range of objective seriousness. However, several features identified in the Crown's submissions were isolated to the co-offender. It was noted with an aggravating factor (s 21A(2)(j)) was that the offence was committed whilst the offender was subject to a community correction order.
It is accepted the offender's plea was a mitigating factor. As to a statutory mitigating factor of lack of planning, the Crown referred to the decision in Kennedy v R [2022] NSWCCA 215, submitting that the lack of planning did not necessarily become a mitigating factor. It was contended by the Crown that in the circumstances of the present case it would not be considered as a statutory mitigating factor. By reference to principles of parity it was conceded that the offenders played "slightly" different roles and that the co-offender was clearly the primary offender. However, the Crown contended that the offender's role was not insubstantial.
By reference to the subjective material, the Crown conceded there was a nexus between the offender's diagnoses and the offending which may operate to reduce his moral culpability to an extent. Further, it was conceded that the offender was a less appropriate vehicle for general deterrence, although this continued to be a relevant factor in the sentencing process. It was noted that there was no evidence that the recommendations of the psychologist had yet been implemented.
Ultimately, it was submitted that the s 5 threshold had been crossed and that an intensive correction order would not be available given the term of sentence which would be imposed. However, in the event such an order was available to the court, the Crown conceded that community safety may be best addressed by the offender serving his sentence in the community.

[10]

Offender's submissions

In short, the offender contended that whilst the s 5 threshold had been crossed, the term of imprisonment would not exceed two years and accordingly an intensive correction order would be made.
The objective seriousness fell within the low range.
There was a significant subjective case and strong prospects of rehabilitation. These submissions helpfully identified with some precision the relevant features of the offending for the purposes of assessing the objective seriousness. This included the absence of planning, sophistication, or use of a weapon.
The offending occurred over a relatively short period and involved a relatively low value of property taken. It was conceded the victim was vulnerable to some degree, although the physical stature of the offenders and the victim were not dissimilar. It was contended that the co-offender took the primary role, having initiated the offending and subsequently issuing the further threats. The offending was not a part of an organised criminal activity.
It was contended that the well-known principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 were applicable given the contents of the psychologist's report, and accordingly general deterrence had a lesser role to play, although remained relevant.
It was acknowledged that specific deterrence continued to be relevant in the sentencing process, although this was moderated given the offender's underlying conditions. Submissions also identified the offender's disadvantaged upbringing, contending that this afforded some mitigation.
Similarly, the offender's youth, particularly when considered in the context of his underlying neurodevelopmental conditions, were relevant to the assessment of moral culpability and prospects of rehabilitation.
Whilst the offender's criminal history disentitled him to leniency, it was not otherwise significant. It was conceded that an aggravating factor was that the offender was subject to conditional liberty. Whilst it was acknowledged that the offender's use of alcohol and drugs at the time of the offending was not a mitigating factor, his abstinence since was encouraging in considering the prospects of rehabilitation.
Given the subjective material, the offender's prospects of rehabilitation were positive. There were clear expressions of remorse and an acceptance of responsibility.
It was contended that whilst there are several features consistent with those identified in the Henry guideline judgement, the offending also differed in a number of ways including the absence of a weapon, the limited degree of planning, the vulnerability of the victim and the early plea.
It ultimately was submitted that the offending differed significantly from the category of case identified in Henry. Emphasis would be placed on other objective and subjective features.
It was acknowledged that denunciation, retribution, general deterrence, and specific deterrence continued to have an important role to play in the sentencing exercise, however the weight to be attributed to denunciation and general deterrence was moderated due to the offender's underlying conditions.
The court would also take into account that the offender spent a period of 26 consecutive days in custody whilst bail refused. Considerable emphasis would be placed on the offender's prospects of rehabilitation. The offender has also been subject to onerous bail conditions, which the court was entitled to consider.
It ultimately was contended that a sentence of two years or less would be imposed given the considerations in s 66 of the CSPA. The court would order any term of imprisonment be served by way of an intensive correction order.

[11]

Consideration

The offender is to be sentenced with respect to the offence of robbery in company, the offence having been committed with the co-offender Bryce Smith.
The victim was only 15 years of age and at the time was in the company of his female friend. The victim was clearly vulnerable by reason of his age. The offence was committed in a matter of minutes, although clearly would have been terrifying for the victim given the co-offender's use of violence and subsequent threats.
It was the co-offender who took the victim aside before becoming physical, coinciding with the threat of further violence. It was the offender who then extracted the victim's property before walking away.
The co-offender physically pulled the victim away, demanding access codes for the victim's mobile phone, before issuing threats of violence in the event the victim reported the incident to authorities.
The offending did not involve the use of a weapon, although there were threats of further violence.
I am satisfied that the offending was extremely unsophisticated, occurring in the vicinity of CCTV cameras where the offenders could be readily identified. I am satisfied that the offending was relatively spontaneous, there being no evidence of any particular planning.
The application of force was relatively minimal although it was accompanied by threats of further violence. The property stolen was of a relatively low value.
I am satisfied that the co-offender took the primary role in the commission of the offence given the following: 1. The co-offender made the initial approach to the victim; 2. The co-offender asked to speak to the victim separately before taking his arm and removing him out of the sight of his friend; 3. The co-offender physically engaged with the victim before demanding property, accompanied by threats of violence; 4. The co-offender physically removed the victim to another area of the train station before demanding access to passwords; 5. The co-offender was the one who issued threats to discourage the victim reporting the matter to authorities.
I am satisfied, given the features of the offending identified, that the offender's role in the offence falls within the low range of objective seriousness.
I am satisfied that the offence was not part of a planned organised criminal activity (s 21A(3) of the CSPA).
An aggravating feature is that the offence was committed whilst the offender was on conditional liberty (s 21A(2)(j)), being the subject of a community correction order arising from the offence of stalk/intimidate with intent to cause fear of physical harm.
I accept the history provided by the offender to Dr Scally, in large part corroborated by the affidavit evidence of the offender's grandmother, that the offender had a significantly disadvantaged childhood, including being subjected to violence at the hands of his father, being physically disciplined by his mother, and his transient living circumstances, including residing with his grandmother.
All this occurred during his most formative years. His upbringing was made more difficult by his underlying conditions manifested during his childhood years of attention deficit hyperactivity disorder and Tourette's syndrome. This resulted in the offender being subjected to bullying leading to his premature departure from formal schooling.
I accept that the offender's dysfunctional upbringing justifies some mitigation on sentence, consistent with the observations of Simpson J in R v Millwood [2012] NSWCCA 2.
I accept the opinion of Dr Scally that the offender suffers deficits in basic attention and concentration, working memory, speed of information processing, verbal learning capacity and retrieval of verbal memory from his memory, as well as impairments with executive functioning. I further accept that because of these underlying conditions the offender has suffered from significant depression and anxiety symptoms. I accept that the offender's underlying disorders have resulted in impairments in impulse control or behavioural inhibition, which is likely to result in impulsive behaviour, with reduced ability to consider the consequences of his actions.
I accept, consistent with the opinion of Dr Scally, that the offender's underlying impairments have contributed to his offending behaviour.
As to the effect of a mental condition reducing an offender's moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed: "[74] A reduction in moral culpability results where an offender's mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending. [75] The sentencing task should not be approached in "an unduly technical or restrictive way": see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence. [76] While a sentencing Judge should not become preoccupied with the issue of "causation" as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing)." (R v Brown [2023] at [78])."
I accept that the offender's moral culpability is reduced by reason of the conditions identified in the report of Dr Scally and accordingly deterrence, retribution, and denunciation, while still having a role in sentencing considerations, are moderated by reason of the offender's underlying conditions: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; Muldrock v The Queen (2011) 244 CLR 120.
I accept the offender's submission that his relative youth at the time of commission of the offences needs to be further considered in the context of his social history and neurodevelopmental conditions. I accept that when the offender's youth is considered in this context, moral culpability is further moderated: Miller v R [2015] NSWCCA 86 at [97].
The offender's criminal history, whilst not a statutory aggravating factor, disentitles him to leniency.
I accept the offender's expressions of remorse, albeit limited, recorded in the Sentencing Assessment Report and the report of Dr Scally.
I further accept that the offender's early guilty plea contains an element remorse. With respect to the guilty plea, the offender is entitled to 25% discount on the sentence that would otherwise be imposed.
However, the plea is a further mitigating factor beyond the statutory reduction in sentence. As Yehia J (with whom Chen and Wright JJ agreed) observed in Giles-Adam v R; Preca v R [2023] NSWCCA 122, "the utilitarian value of a plea of guilty and the willingness of an offender to facilitate the course of justice are conceptually different." As Her Honour observed the former is an objective factor requiring quantification whilst the latter is a subjective factor which has the potential to mitigate the sentence "as part of the process of instinctive synthesis".
Bell P (as his Honour then was) in Baden v R [2020] NSWCCA 23 observed: "In Cameron, Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused's 'willingness to facilitate the course of justice' which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount."
I am not satisfied that the plea was merely an acceptance of the inevitable in the face of an overwhelming Crown case, but rather a willingness to facilitate the course of justice which included the fact that the victim did not have to suffer the ordeal of giving evidence in court.
The offender's prospects of rehabilitation need to be approached with some caution, given his previous offending and the fact the offence was committed whilst the offender was the subject of a community correction order. However, I accept that there are positive indicators, particularly given the evidence of the offender's sister that the offender has abstained from illicit drug use, has embraced a more positive lifestyle and is now in a stable relationship with his partner who is prepared to provide him with support.
I accept the opinion of Dr Scally that for the reasons identified in her report the offender's underlying conditions would result in a custodial sentence being more onerous.
In determining an appropriate sentence, I have considered the guideline judgement in Henry. Whilst there are some common features with those identified in Henry, there are more distinguishing factors.
Whilst the offender has some criminal history, it is not significant. A weapon was not used. I am satisfied that there was no planning, and that the offending rather was spontaneous. I accept there was a threat of violence. The victim, whilst vulnerable, was not in the sort of position identified in Henry. The amount stolen was relatively small.
The plea of guilty was at the earliest opportunity, and I am not satisfied it was given simply in the face of an inevitably strong Crown case. The threat of violence was relatively brief although still significant. Of course, the additional features relevant in the sentencing of the offender include the strong subjective circumstances outlined in these remarks.
I am satisfied that the s 5 threshold has been crossed, and that no sentence other than imprisonment is appropriate.
In considering the remaining purposes of sentencing, I take into account that the offender has already spent a period of 28 days in custody solely referable to the offence and, since being released on bail, has been subject to relatively onerous bail conditions. This is relevant to ensure the offender is adequately punished, and to make him accountable for his actions.
There must be a recognition of the harm done to victims of crime. The absence of a victim impact statement does not give rise to an inference that the offence had little or no impact: s 30 the CSPA.
I consider an appropriate sentence is two years and eight months, from which is to be deducted by 25% for the utilitarian value of the plea of guilty, resulting in a sentence of imprisonment of two years.
In circumstances where the offender is sentenced to a sentence from a single offence not exceeding two years, it is necessary to determine whether the sentence be served in full-time custody or in the community, by way of an intensive correction order.
Section 66 of the CSPA provides community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. Section 66(2) further provides when considering community safety as required by s 66(1), the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. Further, when deciding whether to make an intensive correction order, the court is required to consider the purposes of sentencing provided in s 3(a) as well as any relevant common law sentencing principles.
In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, Gordon, Edelman, Steward and Gleeson JJ observed: "[74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender's risk of reoffending. Section 66(2) gives effect to Parliament's recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community. [75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending. [76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending."
I am satisfied that the offender's risk of reoffending is more suitably addressed with the offender serving the term of imprisonment in the community.
As previously observed, the offender has considerable support in the community from his sister, grandmother, and partner. His ongoing rehabilitation and prospects of reoffending are considerably more positive if the offender has this support available in the community. In the circumstances, I am overwhelmingly satisfied that community safety is best promoted by enabling the offender to serve the term of imprisonment in the community by way of an intensive correction order.
The conditions I intend to impose as part of the intensive correction order will continue to meet the purposes of sentencing, including ensuring the offender is adequately punished, is made accountable for his actions, and will continue to promote his rehabilitation.
Whilst I note the offender has served a period in full-time custody referred to above, I do not propose to adjust the term of the intensive correction order to reflect time spent in custody as was done in Mandranis v R [2021] NSWCCA 97 at [61] per Simpson JA. I have not done so as, I have separately taken into account, the period spent in custody in a general sense in determining the appropriate sentence.

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)