The applicant's submissions
Ground one: the sentencing judge erred by having insufficient regard to the applicant's history of mental illness
32 The primary contention in relation to ground one was that the plaintiff had a history of mental illness for which she had been treated before the first offence and that that history, together with her behaviour at the time of the commission of the offences suggested that she was afflicted by a mental illness falling short of insanity.
33 Reliance was placed upon the sentencing principle in Anderson (supra) at 160. There, the court, inter alia, stated that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
34 The court further stated that the mental condition of the offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, "… the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced".
35 The central issue arising from ground one is whether the sentencing judge failed to assess the diminution that should have been applied to the sentence having regard to the effect of the applicant's mental condition on her ability to appreciate the gravity of her actions and her impaired volition. The subset to this submission is that general deterrence was not a factor that ought to have been accorded the weight given to it by the sentencing judge.
36 There is a need for caution to be exercised before resolving such an issue. So much is clear from the judgment of Gleeson, CJ. in Engert (supra) especially at 68. A mental condition, as the Chief Justice there observed, may lessen whatever might otherwise be the importance of general deterrence but, at the same time, increase the importance of deterrence of the offender (p.68).
37 It is important to examine the approach taken by the sentencing judge in allowing for the applicant's mental condition and, secondly, to determine the effect of that approach upon the level of sentence imposed giving due allowance for the discretionary nature of the sentencing decision.
38 Whether there should be diminution in sentence for the reduced importance of general deterrence or an allowance for that factor may depend upon whether there should be a counter-balancing in the sentence for the importance of specific deterrence or of the need to protect the public.
39 The essential questions in this case are whether the sentencing judge failed to moderate the consideration of general deterrence and, if so, whether that failure was offset by making an appropriate reduction in the sentence by adopting another approach. Was the approach adopted based upon an erroneous finding that the applicant acted with knowledge of what she was doing and with knowledge of the gravity of her actions?
40 It is clear from the quoted passage in [20] above that the sentencing judge did not reduce the sentence on account of lack of the need for general deterrence arising from the applicant's mental condition. This arose from the finding which I have earlier concluded was contrary to the medical evidence. However, the finding of special circumstances in relation to an effective head sentence of seven years and an effective non-parole period of four years meant that the statutory ratio of 75% was varied to 50%. That, however, still leaves unanswered the question as to whether the effective head sentence was appropriate, given the sentencing judges' conclusion that she did not accept, contrary to the evidence, that the applicant acted without knowledge of the gravity of her actions.
41 In Engert (supra), Gleeson, CJ. emphasised the observation of Badgery-Parker, J. in Regina v. Letteri (CCA, unreported 18 March 1992), namely:-
"… in every case it is a matter of balancing the relevant factors in a manner no different from what is involved in every sentencing exercise."
42 By reason of what I consider to be an erroneous conclusion of the sentencing judge as to the impact or effect of the applicant's mental disorder on her ability to appreciate the gravity of her actions and the effect of Valium as a contributor to the applicant acting violently, I consider such error calls for the intervention of this Court.
43 A head sentence of seven years represents a starting point, allowing for the discount for the utilitarian value of the pleas of guilty, of almost 10 years. This was in respect of the admittedly serious offence of malicious wounding (Crimes Act, s.35, maximum penalty, imprisonment for seven years) and the two offences of robbery whilst armed with a dangerous weapon (Crimes Act, s.92(2), maximum penalty of 25 years). As to the latter offences, whilst I accept the Crown's submission that those offences (as indeed the offence under s.35) were grave indeed, the applicant, a middle aged, mentally ill mother, does not entirely come within the category of case, the subject of the guideline judgment in Regina v. Henry (1999) 46 NSWLR 346. The offence of the character described by the Chief Justice at 380 (armed robbery) was generally said to fall within four and five years for the full term. I do not lose sight of the fact that the applicant committed not one but two offences under s.97(2) of the Crimes Act within 15 minutes of each other on 17 July 2003.
44 In Regina v. Israil [2002] NSWCCA 255, the Crown appealed against the alleged inadequacy of a sentence imposed by the District Court in respect of one count of robbery armed with an offensive weapon, namely a blood-filled syringe, contrary to s.97(1) of the Crimes Act 1900 and a second count of attempted robbery with an offensive weapon, namely a mock rifle, contrary to s.344A of the Crimes Act 1900. Two additional charges were taken into account on a Form 1, namely, demanding of money with menaces and another armed robbery.
45 The respondent in that case had had a history of delusional conduct from a young age which had been later exacerbated by the taking of a range of drugs. At the time of the offences, he had been using heroin and cocaine.
46 The trial judge accepted that the respondent had suffered from a mental illness, namely, substance induced psychosis and a mood disorder as well as an underlying psychotic disorder, either schizophrenia or bi-polar mood disorder. On the evidence, the respondent's prospects of rehabilitation were good provided his treatment remained in place.
47 The court in Israil (supra) had used the Henry (supra) guideline of four to five years as a starting point. The respondent had the benefit of 25% discount for an early plea which reduced the tentative sentence of three years by six months. He had already served almost seven months in custody and the court determined a term of imprisonment of two years, taking into account the time actually served in custody. The sentence was imposed in respect of two offences. It was suspended upon the respondent entering a bond. His good prospects of rehabilitation were a major consideration.
48 Spigelman, CJ., in Israil (supra), reviewed the authorities noting that the requirement of general deterrence is a significant consideration in sentencing for the offence of armed robbery. The Chief Justice recorded the following propositions:-