R v Omar

THE FACTS

1. The sentencing judge summarised the facts as follows (commencing at ROS 3): The agreed facts in relation to the aggravated sexual intercourse without consent are that in 2004 the complainant was a 39 year old mother of two children who resided with her husband and children in Bankstown. Part of her routine was to take a morning walk around the area. She took the same route each day. Around 6am on 17 July she left for her morning walk. There was not much light in the street. As she walked along one of the streets she looked to her left and saw a male person. That male person was the offender who was walking in the park. He walked towards her. She noticed that he was wearing something yellow. About 2 minutes later she reached the first building which was attached to the Bankstown Senior College. She was struck hard to the right side of her face from behind. She screamed for help and was immediately struck again from behind, and knocked to the ground. She screamed 'help' again. Each time she yelled out the offender said 'shut up.' She was struck four times. When she was on the ground the offender picked her up and threw her over a low fence into the school grounds. As she landed she felt pain to her left shoulder. The offender grabbed her by the top of her jacket and dragged her backwards to her left side. She pleaded saying 'don't kill me, don't kill me, I've got two kids at home, please don't kill me.' The offender said 'shut up or I'll kill you.' She was scared and continued to plead with him. The offender dragged her about 6 metres and in the process her tracksuit pants began to come down. She tried to pull them up with her right hand as her left arm was in pain from earlier injury. At one point she managed to regain her feet. The offender then pushed her from behind. She continued to plead for her life. The offender kept saying 'shut up or I'll kill you.' She did not scream much because she feared she was going to be killed. Shortly afterwards the offender told her to stop and to close her eyes. She managed to glimpse where she was before closing her eyes. She was in the rear school yard near the fence. The offender moved in front of her and said suck my cock and suck my balls and swallow.' He pushed her down so she was on her knees with her face level with his penis. The offender pushed her face towards his penis and she felt that his penis was out of his pants. She opened her eyes and saw his flaccid penis. He was not wearing a condom. In fear of her safety, she placed his penis in her mouth and began sucking his penis. She did this until the penis became hard. He kept saying 'suck my dick, suck my cock and swallow.' She heard him moaning. She thought she was going to vomit. After a few minutes he said 'ok that's enough.' He did not ejaculate. The offender pushed her on to her back and said 'don't move, don't move.' She was attempting to hold her pants in an effort to protect herself. The offender took hold of her right shoe, removed her right tracksuit pant leg and underwear and pulled her legs apart. She tried to keep them closed but she was unable to do so. The offender told her to open them wider. He lifted her legs in the air and stretched them apart. He knelt in front of her and inserted his penis into her vagina. He said 'is it in 'and she said 'yes.' He thrust his erect penis in and out of her vagina for a few minutes. The offender stopped and said 'I am going to put it in your anus.' She said 'just do what you want to do, just don't kill me.' The offender said 'is it virgin there' and she said 'yes of course.' He was still holding up her legs, she had her right arm over her face, covering her eyes. The offender then placed his penis in her anus. That activity was for a short period of time. A short time later the offender stopped. The complainant was unsure if he had ejaculated. She began to put on her underwear. She had her eyes closed. She heard the offender say 'don't move or I'll shoot you and don't peep. I warn you if the police come and get me I'll come and get you and kill you.' She lay there for a few minutes before she sat up. She put on herunderwear, pants, and shoes and stood up and began to walk but it was painful. She hobbled to the Bankstown hospital and whilst she was doing that she was looking out for the offender. When she got to the hospital she started saying 'please help me.' She hobbled into the front entrance of the hospital and called for help. A security guard came and assisted her and took her to the Emergency Department. She was transported to Liverpool hospital sexual assault unit, where she was examined and on examination it was found that she had bruising to her right eye and face which resulted in complete loss of vision for a few days. The complainant also sustained bruising and scratches to her right hand, lumps on her head, cuts to her left shoulder, a broken left shoulder, bruising and grazing on her left side, and pain to her back, neck and right shoulder. A sample of semen was taken from a high swab of her vagina. The facts in relation to the offending on 13 September 2006 are that Mohammed Kanbar and another person worked at the A1 Noor Butchery in Auburn. Mr Kanbar was a casual employee. On 13 September Mr Kanbar started his shift about 8am. At about 9.30am the other employee arrived at the shop then left to go to the bank. At around 10.40am the offender entered the butcher's through the rear entrance. Mr Kanbar did not recognise him. The offender greeted Mr Kanbar in Arabic, saying 'good business.' Mr Kanbar replied 'thank God.' At the time that the offender entered the shop Mr Kanbar was cutting up lamb and completing an order. He thought that the man was a delivery driver and the two spoke about the business. Mr Kanbar put the knife he was using on a bench and walked to the mincing machine. As he did this he turned his back on the offender. He then felt a punch to the right side of his face which caused pain and nearly knocked him unconscious. He sustained a cut under his right eye which began to bleed. He felt a number of punches to his face, head and body. He later realised that he sustained a number of stab wounds to his head, face and body. He ended up face down on the ground. He felt his wallet being taken from his right back pocket. The offender then left the store. A short time later, Mr Kanbar picked up his mobile phone, walked out of the front of the shop and sat on the footpath. A passer-by called triple O. Police arrived shortly afterwards and established a crime scene. On a canvass of the area police found a knife on the fence line at the rear of an adjacent property. Forensic examination of that knife revealed a DNA profile different from that of Mr Kanbar. At the time the DNA profile was not matched on the DNA database. Mr Kanbar's wallet was found close by and handed to the police. Mr Kanbar was taken to Westmead Hospital where he was examined and found to have lacerations around the left and right orbit and posterior scalp, a laceration to the right cheek, a laceration to the right pectoral and nipple, lacerations to the left and right side of his back and laceration to his left forearm. All of these injuries required sutures except the injury to his head which required two sutures and nine staples. He also sustained a small fracture to his nose requiring surgery. Mr Kanbar spent two days in Westmead Hospital. The proceeds of the robbery were $60 in cash and a number of personal cards. The float from the till was not taken. In October 2011 police received information that the offender may be responsible in relation to the matters, they commenced investigation and obtained a DNA sample from the offender. His DNA matched the DNA on the database taken in relation to the sexual assault and the attack on Mr Kanbar. On 10 December 2012 police attended the home address of the offender and arrested him."

THE FINDINGS OF THE SENTENCING JUDGE

1. The sentencing judge found (at ROS 8) that each of the offences for which the respondent was to be sentenced was objectively serious and that no sentence other than a term of imprisonment would be appropriate. Having referred to various authorities, his Honour turned to an assessment of the objective criminality of the offending and said (commencing at ROS 9): "In assessing the objective criminality I draw from the cases the following propositions; the fact that an offence is an isolated incident is not irrelevant to its valuation for purposes of assessing whether it is in the mid-range. Where an offence is defined in the statute to include several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence or the particular category of conduct but on the facts of the case in which the nature of intercourse will be but one factor that will determine the seriousness of the offence. While penile/vaginal penetration may well be more serious than forced fellatio, it does not mean that fellatio must necessarily fall below the mid-point of seriousness. Matters of aggravation will be matters that may lift a matter to or beyond that point. Other matters that may impact on it include how the offence took place, the span of time over which an offence occurred, the degree of force or coercion applied to the complainant, the use of threats before or after a criminal intercourse to ensure compliance with demands made, and/or subsequent silence, the level of physical and other harm done to the complainant. The forms of intercourse in relation to the complainant was forced oralintercourse, forced vaginal intercourse and forced anal intercourse. Somepeople might think that this is a more serious form of sexual intercourse thanothers, whilst others might take a different view. In times past it wassometimes said there were gradations of forms of sexual intercourse. I do notbelieve that it is possible to say that forced oral sex is any worse or any betterthan forced vaginal sex, or any worse or any better than forced anal sex. In this matter I need to also take into account that so far as the vaginal sexual intercourse was concerned, the offender ejaculated. The offender had that form of sexual intercourse which is generally regarded as the most serious form of sexual intercourse covered by the definition of the term. The courts have traditionally regarded the risks of pregnancy and sexually transmitted diseases associated with unprotected penile/vaginal intercourse as well as the very personal, intimate nature of such acts as demonstrating that offences of this kind are very serious indeed. Of course in this case I note the high vaginal swab indicates that the offender had unprotected sex with the complainant. In this matter the level of violence was considerable. In relation to the offence of armed robbery with wounding, in accordance with the authorities I need to take into account the guideline judgment in relation to armed robbery in Henry (1999) 46 NSWLR 346. The guideline in Henry relates to a young offender with no or little criminal history, a weapon like a knife capable of killing or inflicting serious injury, limited degree of planning, limited if any actual violence but a real threat thereof, victim in a vulnerable position such as a shopkeeper or taxi driver, small amount taken and a late plea the significance of which is limited by a strong prosecution case. The guideline in Henry indicated that a sentence in the region of four to five years would be expected. … So it seems that the Henry guideline is between three years and three years and nine months for an early plea such as the plea here. As this is an offence of armed robbery with wounding, any guideline needs to be adjusted upwards to take into account the more serious offence. So far as the robbery with wounding is concerned it seems to me that the offending was opportunistic. It seems that the offender went to the shop. I am not able to be satisfied beyond reasonable doubt that at that particular time he went there to rob it. It seems that when Mr Kanbar turned his back on the offender, the offender then struck Mr Kanbar and then availed himself of the knife which Mr Kanbar had just left where he was cutting up the lamb. It was clear that there was no planning, in my view, in relation to that matter and he needs to be sentenced as if it were an opportunistic offence. So far as the offending in relation to the aggravated sexual assault without consent is concerned, although the facts indicate that the complainant regularly took that particular path in her walk in the morning, there is nothing before me which would indicate that the offender had any knowledge of that. It seems to me that the offender came upon the complainant in the early hours of the morning. The material before me indicates that the offender, around that time, regularly slept in one or other of the local parks. It seems to me that so far as his offending in relation to that matter is concerned that again, I could not be satisfied beyond reasonable doubt other than that it was also opportunistic. The offending in July 2004 is aggravated in the sense that the offenceswere committed whilst the offender was on conditional liberty having been released on a bond pursuant to the provisions of s 12 of the Crimes (Sentencing Procedure) Act 1999 on 19 April, a matter for which I have already sentenced him."
2. His Honour repeated his finding that the entirety of the offending was opportunistic at ROS 15.

THE RESPONDENT'S SUBJECTIVE CASE

1. At the time of sentence the respondent was 33 years of age. He was born in Lebanon and spent the first 10 years of his life in Lebanon and Syria before migrating to Australia with his family.
2. His Honour made lengthy reference (commencing at ROS 12) to a report of Professor Woods which was tendered in the respondent's case on sentence and to which I have made further reference below when considering the individual grounds of appeal. His Honour found (at ROS 13) that at the time of the respective offending the respondent was using illicit drugs on a daily basis. However, he noted (at ROS 13) that at the conclusion of 2006 the respondent formed a new relationship and that with his partner's assistance had now reached the point where he was drug free. The respondent's partner has since given birth to three children. His Honour also found (at ROS 14) that the respondent had greatly assisted his partner with the care of her son from a previous relationship who has a number of special needs for which he receives psychological treatment. His Honour also found that after a period of estrangement, the respondent had re-established a relationship with his family who were supportive of him (at ROS 14).
3. His Honour concluded (at ROS 14): "Clearly in my view I am sentencing an offender who is a totally differentperson from the person who committed the offences in 2004 and in 2006. Theevidence establishes that the offender is now absent from drug abuse, he isemployed, he has close family supportive ties. The Crown in his submissionaccepts that the offender is rehabilitated."
4. His Honour then turned to the delay which had been occasioned in the matter and noted (at ROS 15) that DNA matching had brought the offences to light in 2011. His Honour referred to a number of authorities on the question of delay before concluding (at ROS 17): "In my view there has been considerable rehabilitation and it is a matter that I need to take into account. The Crown in his submission makes mention of the fact that the offender was in the community and did not admit to his offending. That may or may not be right, it may or may not be correct that the offender was in a position of being able to provide the police with sufficient particulars. I do not know and I am not prepared to speculate about these things but it seems to me, in accordance with the authorities, I need to take into account the rehabilitation that has been shown and that operates on questions of specific deterrence."
5. His Honour found (at ROS 17) that the respondent was deeply contrite. He also found (at ROS 20) that the son of the respondent's partner would be considerably affected by the fact that the respondent was incarcerated. His Honour did not regard this as exceptional but treated it as a matter that he needed "to take into account in the factual matrix".
6. His Honour then proceeded to impose the sentences previously set out.

PRINCIPLES APPLICABLE TO A CROWN APPEAL AGAINST INADEQUACY

1. The right of appeal by the Crown against a sentence which is said to be manifestly inadequate is an exceptional one. It is a right which must be exercised with restraint, so as to allow the Court to lay down sentencing principles: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Everett v R [1994] HCA 49; (1994) 181 CLR 295; R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372. In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ put the matter in this way (at [1] and [36], citations omitted): "[1] The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ("Crown appeals") under s 5D of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the "residual discretion". …. [36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."

Ground 1 - His Honour erred by finding the offender had mental problems

The evidence before the sentencing judge

1. Exhibit 2 before the sentencing judge was a report of Professor Stephen Woods, Psychologist, dated 13 June 2013. That report was prepared following an examination and assessment conducted by Professor Woods on 30 April 2013.
2. Professor Woods obtained a history from the respondent that he had a vague and incomplete memory of the offending which is the subject of sequences 1, 3 and 4. The respondent explained that he was living on the streets at that time, often staying with a group of fellow drug users in premises at Merrylands. He reported that during this period he sometimes spent the night at a park near where the sexual assaults were committed, in order to be close to his family home. The respondent told Professor Woods that at this time of his life he was drug affected every day.
3. The respondent told Professor Woods that he had absolutely no memory of committing the armed robbery offence which is the subject of sequence 2 but that he accepted his guilt. Again, he cited his then drug dependence as the reason for his lack of memory.
4. The respondent gave a history to Professor Woods of having commenced consuming alcohol on a regular basis at about 16 years of age. He said that he first experimented with cannabis at the age of 15 and that in his late teenage years his use of cannabis increased. At age 18-19 his drug use extended to cocaine. By the age of 21-22 he was addicted to crystal methamphetamine. He reported that he had been able to completely relinquish his drug habit with the support of his current partner.
5. At Part 4:2 of his report, under the heading "Diagnosis", Professor Woods reported in the following terms: "In terms of a formal diagnosis, Mr Omar satisfies the criteria of: - (Poly) Substance (illicit drugs) Dependence Disorder (DSM-IV-TR 304.80) in remission; (Poly) Substance Induced Mood Disorder with mixed features (onset during intoxication and withdrawal) (D.S.M.-IV - TR); Residual symptoms of Posttraumatic Stress Disorder (P.T.S.D.) (D.S.M. -IV - TR 309.81) secondary to A) sexual abuse during childhood, B) exposure to war/conflicts but C) most importantly realisation of the nature of his offending behaviour and its impact on the victims. Adjustment Disorder with Mixed Anxiety and Depressed Mood, secondary to the current matter (DSM - IV - TR 309.28)".
6. Professor Woods went on to state: "In cases involving illicit drug use, sexual assault and physical assault with a weapon a diagnosis of Antisocial Personality Disorder would be appropriate. Further, a recommendation for inclusion in relevant offender rehabilitation programmes would have occurred. In Mr Omar's case however, it would appear that he has, with support and assistance of his partner, already largely rehabilitated himself. The main area in which Mr Omar requires treatment is that of trauma suffered in relation to his offending behaviour."
7. Professor Woods gave evidence in the sentence proceedings on 15 November 2013. He expressed the view (T3 L13-17) that the respondent had some symptoms of Post Traumatic Stress Disorder although not to the extent required to support a formal diagnosis. He said (commencing at T3 L19) that in his opinion the respondent's symptoms of Post Traumatic Stress Disorder were partly the result of his experiences as a child in war torn Lebanon. Professor Woods went on to state (T3 L42 and following): "…There is good evidence to - scientific evidence to support the argument that he would have been affected by that, predisposed to poor impulse control, plus a person who is exposed to trauma early and there was a sexual abuse of course that occurred as a child, that would have an influencing factor in leading to that poorly developed sense of self, that poorly developed sense of interacting with other people and appropriate boundaries, and leading onto the drug charge, drug use, yes."
8. The respondent also gave evidence. He confirmed (commencing at T10 L48) that he was currently drug free and had been for a number of years.

The findings of the sentencing judge

1. At ROS 19, having referred to the evidence of Professor Woods, his Honour said: "It is clear in my view that the offender has considerable mental problems as stated in Professor Woods' report."
2. His Honour then cited the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 before stating (at ROS 19): "In my view the offender's mental problems need to be considered in relation to the moderation of general and specific deterrence and also how a custodial sentence will impact on a person with his mental problems."

Submissions of the Crown

1. The Crown submitted that on a proper analysis, the effect of Professor Woods' evidence was that any mental condition from which the respondent suffered was secondary to his voluntary use of illicit drugs. It was submitted that in these circumstances it was not open to the sentencing judge to find that the respondent had "mental problems".
2. In advancing this submission the Crown placed significant reliance upon the judgment of Wood CJ at CL in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273] and following where his Honour said: "[273] In my view the relevant principles are as follows: (a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation; (b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as: (i) the impulsivity of the offence and the extent of any planning for it; (cf Bouchard (1996) 84 A Crim R 499 at 501-502); and Nolan (1988) VSCA 135 (2 December 1998); (ii) the existence or non existence of any alternative reason that may have operated in aggravation of the offence, eg that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism; (iii) the state of mind or capacity of the offender to exercise judgment, eg if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act; (c) It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might: (i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword (eg Lewis Court of Criminal Appeal New South Wales 1 July 1992); (ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf Hodge Court of Criminal Appeal New South Wales 2 November 1993; and Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete; (iii) justify special consideration in the case of offenders judged to be at the "cross roads": Osenkowski (1982) 5 A Crim R 394. [274] To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case. [275] The legislature has, by the heavy maximum penalty prescribed for armed robbery, spoken clearly in relation to this offence. Drug dependent persons should not be encouraged, as a class, to think that they are free to engage in serious criminal conduct of whatever kind with impunity, or with any hope of favourable treatment because they are able to show that they needed money through their addiction. [276] In summary, I see no reason to depart from the planks of punishment, retribution and rehabilitation that underlie the sentencing process generally, and that permit of individualised sentencing by reference to the objective and subjective circumstances of each case."
3. The Crown further submitted that the sentencing judge's error in finding that the respondent had "mental problems" was, in effect, compounded by the further error of using that finding in a way which was contrary to the principles set out by Wood CJ at CL in Henry, and which afforded leniency to the respondent on the basis of his prior illicit drug use. In oral argument before this Court, the Crown submitted that even if the primary error relied upon in support of ground 1 was not made out, his Honour's use of the finding that he made was nevertheless erroneous and supported the Crown's position in respect of grounds 2, 3 and 4.

Submissions of the Respondent

1. Senior counsel for the respondent submitted that it had been open to his Honour to accept the evidence of Professor Woods, and that such evidence supported his conclusion as to the respondent's mental state.
2. It was further submitted that the Crown's position in respect of ground 1 reflected a misunderstanding of the judgment of Wood CJ at CL in Henry. It was submitted that his Honour's observations in that case were authority for the proposition that (inter alia) those who commit offences to feed a drug addiction cannot rely upon such addiction as a mitigating factor on sentence. Senior counsel submitted that no such issue arose in the present case. It was submitted that nothing in his Honour's judgment indicated that he had used the evidence of the respondent's prior drug use as a mitigating factor in any event.

Consideration

1. In my view, there are a number of difficulties arising from the way in which the Crown articulated its position in support of this ground.
2. Firstly, the terms of ground 1 sought to challenge a factual finding by the sentencing judge that the respondent had "mental problems". The Crown's submissions tended to conflate this factual finding with the use to which that finding was ultimately put by the sentencing judge. The two matters were completely separate. Only the first properly related to ground 1.
3. Secondly, fundamental to the Crown's submission was the proposition that if the respondent did suffer from mental problems, such problems were secondary to his illicit drug use. That submission ignores the evidence of Professor Woods. As set out at [24] above Professor Woods diagnosed four separate forms of mental illness. The first (and by inference the second) were in remission. The third and fourth were not. Even more significantly, Professor Woods' opinion was that the third and fourth conditions were not, as the Crown submitted, secondary to the use of illicit drugs at all. Rather, they were attributable to a variety of other factors. Professor Woods' opinions in these respects were largely unchallenged. The sentencing judge was entitled to, and did, accept them. They formed the basis of his finding that the respondent had mental problems. The Crown failed to demonstrate any error at all on the part of the sentencing judge in reaching that finding.
4. Thirdly, the Crown's submission that the resolution of this ground invited application of the principles articulated by Wood CJ at CL in Henry was based upon the erroneous proposition that the respondent's mental state was secondary to his drug taking. It was not put to the sentencing judge that the respondent was entitled to rely upon his drug addiction as a mitigating factor in the sense to which Wood CJ at CL referred. The sentencing judge made no such finding. The principles articulated by Wood CJ at CL in Henry are simply not engaged.
5. For all of these reasons, ground 1 is not made out.

Ground 2 - His Honour erred by finding that the offender's mental problems moderated the need for general deterrence.

Ground 3 - His Honour erred by finding the offender's mental problems moderated the need for specific deterrence.

Ground 4 - His Honour erred by finding that the offender's mental problems were relevant to an assessment of the impact of a custodial sentence.

The findings of the sentencing judge

1. The findings of the sentencing judge which are relevant to these grounds are set out in [28] and [29] above.

Submissions of the Crown

1. The Crown submitted that it was not open to the sentencing judge to conclude that the respondent's mental problems moderated the need for general or specific deterrence. Again, it was submitted that Professor Woods' evidence was to the effect that the entirety of the respondent's mental health issues were secondary to his drug taking. It was further submitted that any mental health issues had resolved, and that the only remaining issue was the trauma experienced by the respondent as a consequence of his own offending behaviour.
2. It was further submitted that there was no evidence before the sentencing judge that the respondent suffered from ongoing mental problems which would make more difficult for him to serve a custodial sentence.
3. Finally, the Crown submitted that in these circumstances his Honour "must have found" that there was some causal connection between the respondent's mental illness and his offending. Implicit in that submission, although not specifically put, was the proposition that such a finding was an error.

Submissions of the respondent

1. Senior counsel for the respondent submitted that the errors for which the Crown contended were not made out. It was submitted, in particular, that it was evident from the reference to De La Rosa that his Honour was aware of the relevant principles governing the relevance of mental illness on sentence, and that he applied them correctly.
2. It was further submitted that his Honour's findings as to the respondent's mental illness were supported by the oral evidence of Professor Woods set out at [26] above, who drew a causal connection between such mental illness and the offending.

Consideration

1. Once again there are a number of difficulties with the way in which the Crown put its position in support of these grounds.
2. Firstly, for the reasons I have already stated, the proposition that the respondent's mental illness was secondary to his drug taking, as well as the proposition that the respondent's mental health issues had resolved, must be rejected. Both ignore the unchallenged evidence of Professor Woods which the sentencing judge accepted.
3. Secondly, when dealing with this issue the sentencing judge made specific reference to the decision of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177]: "[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v R [2000] WASCA 203 ; (2000) 114 A Crim R 333 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28]. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23]-[24]. [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]."
4. Having referred to these passages, the sentencing judge found (at ROS 19) that the respondent's mental illness warranted the moderation of general and specific deterrence. Although his Honour did not specifically say so, it may be inferred that he found a causal connection between the respondent's mental state and his offending. Those findings do not reflect error. They were supported by the evidence of Professor Woods and they reflected a correct application of the principles set out by McClellan CJ at CL in De La Rosa. Having found that the respondent suffered from mental problems, it was open to his Honour to find that such problems would have some impact on any custodial sentence which was imposed.
5. Further, and to the extent that the Crown's submission might have suggested otherwise, an offender's mental state may remain relevant to sentence even in the absence of some causal link between such mental state and the relevant offending: Iskandar v R [2013] NSWCCA 235 at [30] per the Court (Beazley JA, R A Hulme and Bellew JJ).
6. Finally, in light of the matters discussed in respect of ground 5 below concerning the degree of the respondent's rehabilitation, it was open to his Honour to find that considerations of personal deterrence were similarly moderated.
7. For all of these reasons, grounds 2, 3 and 4 are not made out.

Ground 5 - The sentences, individually and in total, are manifestly inadequate

Submissions of the Crown

1. The Crown submitted that the sentences imposed at first instance reflected little weight having been given to general deterrence.
2. In terms of the offending in sequences 1, 3 and 4, it was submitted that the respondent's behaviour was consistent with someone who had "preyed" on the victim. It was submitted that the objective seriousness of the offending was reflected in the respondent: 1. setting upon the victim; 2. directing her to comply with sexual demands; 3. acting violently towards her and causing injury; 4. engaging in three separate and distinct forms of sexual intercourse; 5. ejaculating, thereby exposing the victim to the possibility of pregnancy and the possibility of acquiring a sexually transmitted disease.
3. The Crown submitted that the robbery offence in sequence 2 involved a vicious attack which targeted the victim's head with a knife. The Crown also submitted, in respect of the overall sentence, that partial accumulation was insufficient to properly reflect the totality of the respondent's offending.
4. Finally, the Crown submitted that the sentencing judge had afforded excessive weight to the issue of delay. It was submitted that the delay between the offending (in 2004 and 2006) and the respondent being charged (in 2011) was a consequence of the respondent "keeping quiet" about what he had done. It was submitted that in these circumstances it was not open to rely upon that delay as a mitigating factor.

Submissions of the respondent

1. Senior counsel for the respondent acknowledged that the offending was objectively serious. However, he submitted that in all of the circumstances the Crown had not established that the sentences imposed were unreasonable or plainly unjust. In advancing that submission, senior counsel relied upon a number of factors.
2. Firstly, in terms of general deterrence, senior counsel repeated the submission (which I have previously accepted in my consideration of grounds 2, 3 and 4) that it was open to the sentencing judge to conclude that considerations of general deterrence should be moderated in view of the respondent's mental illness.
3. Secondly, it was submitted that specific deterrence was a matter of limited relevance, given the degree of the respondent's rehabilitation.
4. Thirdly, it was submitted that the relevance of delay on sentence necessarily differed according to the circumstances of a particular case. It was submitted that in the present case, the respondent had undergone total rehabilitation during the period of the delay and that this was clearly a powerful mitigating factor.
5. Fourthly, reliance was placed on the finding of the sentencing judge that none of the offending was planned and was in fact opportunistic.
6. Finally, it was submitted that the present case called for the application of a significant degree of understanding and flexibility in determining sentence, particularly in view of the respondent's mental illness and his achieved level of rehabilitation.

Consideration

1. There is force in the Crown's submission as to the objective seriousness of the respondent's offending. The offending in sequences 1, 3 and 4 involved the commission of separate and distinct acts of forced sexual intercourse, accompanied by degrading commands being made of the victim with which she was forced to comply out of fear for her safety. Significantly, the victim suffered physical injury as a consequence of the offending. However I am not able to accept the Crown's submission in committing these offences the respondent had "preyed" on the victim. Such a submission suggests some degree of pre-meditation. That suggestion runs completely contrary to his Honour's uncontested finding that the entirety of the offending was opportunistic.
2. The robbery offence in sequence 2 was also serious. It involved a completely random and unprovoked attack on a shopkeeper who suffered serious injury as the result of an attack with a knife.
3. I am unable to accept the Crown's submission that the sentences imposed reflect insufficient weight being given to considerations of general deterrence. For the reasons previously stated, there was no error in his Honour's conclusions regarding the respondent's mental illness. That mental illness lessened the significance of general deterrence on sentence. It should also be pointed out that the sentencing judge did not find that general deterrence was of no weight at all. Rather, he concluded that the need for it was moderated in the circumstances of this case.
4. One of the most significant factors in terms of determining sentence in the present case was the rehabilitation undertaken by the respondent during the period between the offending and his arrest. His uncontested evidence was that at the time of sentence he had been drug free for 5 years. He was in a stable relationship with his partner who, when giving evidence before the sentencing judge, expressed her unequivocal support for the respondent, variously describing him as an "amazing individual" and a "good man".
5. His Honour effectively found (at ROS 14) that the respondent's rehabilitation was total and complete. Before this Court the Crown did not cavil with that proposition. That finding necessarily meant that considerations of specific deterrence were of less significance than might otherwise have been the case. His Honour also concluded (at ROS 17) that the respondent was deeply contrite, a sentiment that the respondent himself expressed when giving evidence.
6. In advancing the submission that the sentencing judge had given excessive weight to the delay which had occurred between the offending and the respondent being charged, the Crown relied upon the decision of this Court in R v Kay [2004] NSWCCA 130. In that case, the relevant offending had been detected as a result of DNA matching some 13 months after the offending, a substantially shorter period than that in the present case. McColl JA, with whom Hidden and Levine JJ agreed, made reference (at [23]-[25]) to the decision of this Court in R v Todd [1982] 2 NSWLR 517, and to the decision of the High Court in Mill v R [1998] HCA 70; (1988) 166 CLR 59. Both cases considered the effect of delay on sentence where such delay was caused by the operation of the criminal justice system.
7. In Todd Street CJ said (at 519): " … where there has been a lengthy postponement, whetherdue to an interstate sentence or otherwise, fairness to the prisoner requiresweight to be given to the progress of his rehabilitation during the term of hisearlier sentence, to the circumstance that he has been left in a state ofuncertain suspense as to what will happen to him when in due course hecomes up for sentence on the subsequent occasion, and to the fact thatsentencing for a stale crime, long after the committing of the offences, callsfor a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often leadto considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
8. The decision in Todd was referred to by the plurality (Wilson, Deane, Dawson, Toohey and Gaudron JJ) in Mill v R (at 66): "The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence."
9. In distinguishing those decisions, McColl JA said (at [33]): "… the applicant was content to remain silent, hoping, presumably, that his association with the October 2001 offence would not be detected. Having remained silent, he now argues that he ought, in effect, be rewarded for his successful concealment of his commission of the offence by a substantially reduced or even deferred sentence. The authorities make plain that the significance of the delay will turn on the circumstances of each case. In my view the circumstances of this case do not attract the Todd principle".
10. In the present case, the respondent did not submit to the sentencing judge that the delay was attributable to the criminal justice system and that it should be taken into account because it had caused him stress and anxiety. Accordingly, as was the case in Kay, the circumstances of the present case did not attract application of what McColl JA referred to as the "Todd principle".
11. Whether delay is relevant, and if so on what basis and to what extent, will depend on the circumstances. In my view, the submission made by senior counsel that the respondent's complete rehabilitation was a powerful mitigating factor should be accepted. In particular, it should be emphasised that the respondent reported to Professor Woods that he had an incomplete memory of the sexual offending, and no memory at all of the robbery. Those propositions were not challenged when the respondent was cross-examined in the sentence proceedings. Accordingly, this was not a case in which the respondent, in the knowledge that he had offended, had deliberately remained silent, or had deliberately "hidden" himself from the authorities, between the time of his offending and the time of his arrest. Those circumstances are clearly distinguishable from those considered in Kay.
12. In order to succeed on the present appeal, the Crown must establish that they were unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321. The sentences should, in my view, be regarded as lenient. At the same time however, they reflect considerations which were specific to the present case.
13. In particular, the sentences reflect the sentencing judge having reached a particular conclusion regarding the respondent's mental state, and its effect upon the need for general deterrence. They also reflect his Honour having properly given significant weight to the respondent's complete rehabilitation, and its effect upon the need for personal deterrence.
14. In all of these circumstances, I am not persuaded that the sentences are unreasonable or plainly unjust.

ORDERS

1. I propose the following order: 1. The Crown appeal is dismissed.

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