Analysis
67 In R v Hemsley [2004] NSWCCA 228 Sperling J usefully summarised the significance of mental illness in the sentencing context as follows -
"[33] Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
[36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]."
68 Although these observations directly refer to mental illness, as distinct from other mental disabilities, it seems to me that they relate also - with obvious adjustments - to the problem of sentencing any individual with significant mental disabilities of any kind, whether or not they might be regarded in a medical sense as mental illnesses: R v George [2004] NSWCCA 247. It is obvious that Finnane DCJ thought that these considerations were irrelevant. In this regard I have concluded, with respect, that his Honour erred. However, this does not necessarily mean that the sentence imposed should be reduced.
69 In this case, the problem facing the applicant is that (as pointed out above) the opinion of Dr Lennings appears to have the consequence that, although Arnold's culpability may have been somewhat reduced by his mental condition, by the same token, his prospects of rehabilitation are substantially reduced. Moreover, the danger which he therefore presents to the community militates against a sentence at the lower end of the available range. It is, perhaps, worth noting that this danger is in all events strongly suggested by the scope and character of the crime spree that led to his sentences. The most serious of the offences, namely those involving the temporary but intentionally frightening disablement of elderly people, did not to my mind demonstrate a marked degree of confusion of thought or judgment. Balancing these considerations nevertheless leads me to the conclusion that Arnold's mental condition, as described by Dr Lennings, did reduce his culpability to an extent that ought, in justice, to have been reflected in the sentence, though not, perhaps, by very much.
70 An additional problem in this case arises from the failure to state, when specifying the appropriate total sentence, whether it had been adjusted by reference to Thomson & Houlton (2000) 49 NSWLR 383 considerations. The mere fact that the individual sentences had been discounted does not assist in this regard, since it is obvious that the effect of the adjustments can be wholly or partly negated by the mode of accumulation. Having regard to the language of his Honour in explaining how he arrived at the overall sentence of twenty years and the length of the term itself, I have concluded that, indeed, his Honour did not have regard at that stage to the need to extend - and be seen as unmistakeably extending - the benefit of the utilitarian discount of his pleas to the applicant. If this is not done, the important public policy which Thomson & Houlton is designed to effectuate will be frustrated. In this case there was not only the saving of considerable public resources by obviating the requirement of multiple trials but also a large number of elderly and frail witnesses were spared the painful necessity of reliving their experiences in a public forum. Whilst I would not be prepared to go so far as to find that Finnane DCJ ignored the latter consideration, it seems to me that the discount he allowed did not give it as much weight as it deserved. With respect, I cannot see why the full indicative twenty-five per cent discount should not have been allowed.
71 I note that Mr Button of counsel who appeared for the applicant in this Court assumed that, indeed, the starting point for Finnane DCJ's overall sentence was twenty-five years and argued that this demonstrated that his Honour's starting point was manifestly excessive and that the resulting sentence did not realistically demonstrate any discount for Arnold's pleas.
72 Mr Button submitted that, in measuring Arnold's overall criminality, it was significant that that he had not used any weapon except, it seemed, on one occasion against one victim, and that he had acted alone and as a drug addict rather than as a professional criminal. His detection was aided by DNA evidence, including that which was obtained from bloodstains left by him, and his repetitious modus operandi. Moreover, he was convicted of the aggravated versions of the most serious offences, not the "specially aggravated" versions.
73 These submissions fairly and correctly state a number of considerations that reduce the seriousness of each offence to a level substantially below the most serious category, and should have a concomitant effect on the overall sentence but, aside from the length of the sentence itself, there is no indication that the learned sentencing judge overlooked these matters. In this case, moreover, it is obvious that the sheer number of offences must weigh very heavily in the measure of seriousness.
74 If Finnane DCJ indeed chose twenty-five years as the appropriate starting point for the overall sentence before the Thomson & Houlton discount, this would in my respectful opinion have been manifestly excessive. If, on the other hand, the sentence of twenty years did not involve any discount under this head - as I am inclined to think is the case - then this was an error justifying the intervention of this Court. When the other matters to which I have adverted are taken into account, the conclusion that this Court should interfere is inevitable.
75 Arnold has tendered an affidavit that deals essentially with his situation as it has developed in prison. He is on protection but there is no evidence that suggests he is subjected to a significantly more harsh regime than would otherwise be the case. He claims to suffer from back injuries that cause significant pain and discomfort. He takes painkilling medication, which is only partly effective and is waiting to have an operation. These factors do not seem to me to justify any further adjustment in the sentences which I propose.