Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent Crown)
File Number(s): 2016/206050
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 18 November 2016
Before: Judge Hunt
File Number(s): 2016/206050
[2]
Judgment
LEEMING JA: I agree with Hamill J.
BUTTON J: I agree with Hamill J.
HAMILL J: Jason Ryan seeks leave to appeal against a sentence imposed by his Honour Judge Hunt on 18 November 2016 in the District Court sitting in Campbelltown. The applicant entered a plea of guilty to an offence of ongoing supply of a prohibited drug. That is an offence contrary to s 25A of the Drug Misuse and Trafficking Act 1986 (NSW) which prescribes a maximum penalty of 20 years imprisonment. There is no applicable standard non-parole period. The applicant received a reduction of 25% for his plea of guilty and his Honour imposed a total sentence of three years. This comprised of a non-parole period of 2 years commencing 7 July 2016 and expiring 6 July 2018 with a balance of term of 1 year from 7 July 2018 to 6 July 2019. His Honour found special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and reduced the non-parole period from 75% of the total sentence to 66.6% of that sentence.
The applicant advanced two grounds of appeal:
1. The sentencing judge erred in failing to take into account the applicant's mental disorders in relation to his moral culpability.
2. The sentencing judge erred in failing to take into account the diminished need for general deterrence in light of the applicant's mental disorders.
The agreed facts were that the applicant supplied small quantities of heroin and methylamphetamine on seven occasions between 20 March 2016 and 19 April 2016. The quantities involved were as low as 0.17 grams of methylamphetamine on 20 March 2016, and as high as 3.43 grams of methylamphetamine on 19 April 2016. Most of the individual supply offences involved quantities of less than 0.5 grams and all but one of these supplies was made to a police operative. The primary judge correctly described the offender's conduct as "street level dealing". His Honour took into account an offence on a Form 1 which involved a separate supply on 17 February 2016 of 0.2 grams of methylamphetamine.
The sentencing hearing took place on 18 November 2016 and Judge Hunt imposed sentence later that day.
In addition to the agreed statement of facts, the Crown tendered the applicant's criminal history. This included a large number of relatively minor offences going back twenty years or so. There were a number of offences of dishonesty, a few offences of violence and some drug offences. As I have said, the offences were minor but they were repetitive until around 2007. The applicant had been sentenced to very short terms of imprisonment in 1999, 2000 and 2001. There was a gap in his criminal record from 2007 until 2016 except for a cultivation charge in 2012 for which he received a small fine. The record was typical for an offender struggling with drug addiction.
The applicant tendered a report of a forensic psychologist, Jen Grant, who diagnosed the applicant as suffering from a "delusional disorder", an "adjustment disorder with anxiety", and a "polysubstance (heroin and crystal methamphetamine) use disorder".
On appeal, but not at first instance, the respondent submitted that "this Court has previously expressed concern where a psychologist, and not a psychiatrist, purports to diagnose the existence of a mental illness". Reference was made to a number of cases where judges sitting in this Court made observations as to the experts who have the appropriate expertise to make psychiatric diagnoses. [1] In the circumstances of the present case, it is not appropriate for this Court to gainsay the diagnosis made by a psychologist and admitted without objection before the sentencing judge. The diagnosis was not in dispute in the sentencing hearing, the expertise of Ms Grant was not challenged, and she was not required for cross examination. The diagnosis appeared to be consistent with the symptoms exhibited by the applicant which is no doubt why the diagnosis was not challenged by the prosecutor. It is, therefore, unnecessary to consider whether the earlier observations made by Judges of this Court accurately reflect the law in this area.
In any event, it was abundantly clear that the applicant suffered from a serious mental disorder and the learned sentencing judge so found. His Honour said this:
I am prepared to place some significant reliance on the report of Jen Grant, who prepared a confidential forensic psychological report in relation to Mr Ryan, having interviewed him in custody. Notwithstanding that I do not have any sworn evidence from the offender, much of what the offender says, rather than being self-serving, presents a picture of somebody who is rather insightful about the potential damage of his dealing in drugs, most particularly because he has had the personal experience of his first period of heroin addiction and of knowing how limiting and destructive a drug addiction can be.
In Ms Grant's careful assessment of him, she diagnoses him as having a delusional disorder, an adjustment disorder with anxiety, and a polysubstance use disorder, that being his use of heroin and crystal methamphetamine. Putting to one side the effect that it is likely to have on his disordered mental state, it is a little bit difficult to understand how one could combine a destructive stimulant drug like ice on a daily basis, leavened by use every second day of heroin. …
The offender is lucky that he has the enduring support of his mother, who brought him up with the assistance of her mother, in circumstances where his father disappeared and played no active role in his life. It is clear that the absence of a male role model, among other things, has left him feeling socially disengaged with a raft of personal problems that are well summarised in the psychological report. Although I am satisfied that he has a range of mental health difficulties, I am not in a position to find that there was any causal relationship between the mental health problems and the offences that were committed to properly operate to reduce the moral culpability of his offending.
It is clear that, although there is no explicit evidence of this, I can safely draw an inference that Mr Ryan's time in custody is and will continue to be more difficult because of the range of psychological and psychiatric problems that he has. I find that Mr Ryan's prospects of rehabilitation are guarded. I accept the Crown's submission that, while the evidence supports a view that Mr Ryan is earnest in wanting to be well and stay crime free, his record and the big relapse that he has undertaken does create some cause for reflection.
Both parties agree that this is a matter where the plea of guilty was entered at the earliest available opportunity and I intend to apply a full 25% discount to the sentence that would otherwise be appropriate for the utilitarian value of the plea to the criminal justice system, and as indicating an acceptance of responsibility and willingness to facilitate the course of justice. There is evidence of remorse in the psychological assessment, which I accept as being genuine.
The non-parole period to be fixed needs to represent the minimum period that the offender should spend in custody, having regard to all the elements of punishment for purposes of s 3A of the Crimes (Sentencing Procedure) Act, including the objective seriousness of the offence as I have found it, the need for specific deterrence to deter Mr Ryan from further engaging in supply of prohibited drugs, and general deterrence, which is required in this sentencing exercise because of the prevalent nature of this particular offence, which is so gravely destructive to the community.
I am persuaded by Ms Jowett's submission that I should find special circumstances. The special circumstances that exist in this case are twofold: the offender's precarious mental health, involving particularly his delusional condition that is not necessarily borne of his use of prohibited drugs and, because he has had a very long history of addiction, recovery, relapse and further addiction, he will need a period longer than would otherwise be provided by the provision of the statutory formulation for the purposes of s 44(2).
As will be seen from the above passage, the sentencing judge placed some weight on the applicant's mental health issues. However, his Honour was "not in a position to find that there was any causal relationship between the mental health problems and the offences that were committed". This finding was not challenged by a specific ground of appeal and it was clearly open to the sentencing judge, even though there was some evidence suggesting an indirect link between the "adjustment disorder" and the offending. Ms Grant said that a combination of "life events" in the year "preceding the current offences" led the applicant to display signs of an adjustment disorder, to stop taking his methadone and then to relapse into drug use. His involvement in the street level supply of drugs appeared to be motivated by a desire to fund his drug habit.
The ways in which mental disorders, intellectual impairment and similar conditions might impact on the exercise of the sentencing discretion has been considered in many previous cases. In R v Israil [2002] NSWCCA 255, Spigelman CJ explained:
22 In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion.
23 To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry, supra, at [254]:
"… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing."
24 I agree with the observations of Malcolm CJ in Lauritsen at [48]:
"… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence."
25 Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it:
"… specific deterrence may be more difficult to achieve and is often not worth pursuing as such." (Tsiaras, supra, at 400)
26 Finally, a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras, supra, at 400). However in Lauritsen at [51], Malcolm CJ noted that this factor, identified by the Victorian Court of Appeal in Tsiaras, may not represent the law in Western Australia. It is unnecessary to determine whether this is the law in New South Wales. It appears to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25]. I see no reason why this would not be so, but the matter was not fully argued.
The principles were summarised in several dot points by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]:
● 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 [2007] NSWCCA 90 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].
[3]
Ground 1
Under ground 1, the applicant submits that Judge Hunt erred in failing to take into account what was said to be the reduction in the applicant's moral culpability as a result of his mental illness. It was submitted that his Honour's focus on the issue of a causative link was misplaced in this regard. I am unable to accept this submission.
As the passages extracted from Israil and De La Rosa show, an offender's moral culpability is diminished when their mental health (or similar) issues contributed to the commission of the offence. It is difficult to contemplate, as a matter of logic and common sense, why an offender's moral culpability would be reduced as a result of some mental health or similar issue that plays no part in the offending. That is not to say that a sentencing judge should become preoccupied with the issue of "causation" as a technical matter. However, there must be some link, direct or indirect, between the offending and the mental health issue in question. The following observation of Judge Hunt was completely orthodox:
"I am not in a position to find that there was any causal relationship between the mental health problems and the offences that were committed to properly operate to reduce the moral culpability of his offending."
While I accept the applicant's submission that the matter ought not be approached in a highly technical way, there is nothing to suggest that the sentencing judge approached the issue in a technical or legalistic manner. Here, it was open to his Honour to find that there was no relevant link between the mental health issues and the offending. It was clear that the applicant had a pre-existing drug problem and had previously succeeded in overcoming that problem. This is why he was on a methadone programme. The reality is that the applicant became involved in small-time drug dealing as a result of his relapse into drug abuse when he came off the methadone programme as a result of "life events".
It may be that the mental health issue played some role in his drug addiction but it was open to the sentencing judge to adopt the approach that he did. I am fortified in that conclusion by the fact that no submission was made to Judge Hunt that the offender's moral culpability for the offences was diminished as a result of the mental health issues.
[4]
Ground 2
The second ground asserts that Judge Hunt erred in "failing to take into account the diminished need for general deterrence in light of the applicant's mental disorders."
As the passages from De La Rosa and Israil demonstrate, mental disorders and similar issues may reduce the weight to be afforded to general deterrence in a particular sentencing case. In some cases, the disorder may mean that general deterrence has little or no role to play in the sentencing exercise. This may be so whether or not there is a link between the condition and the offending.
In R v Letteri (Unreported, New South Wales Court of Criminal Appeal, 18 March 1992) Badgery-Parker J (with whom Gleeson CJ and Sheller JA agreed) said:
"The principle … is clear enough. It is correctly stated as follows - that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result the considerations of general deterrence are totally outweighed by other factors."
Kirby P (as his Honour then was) adopted this passage in Champion (1992) 64 A Crim R 24. His Honour explained the rationale behind the principle while noting:
"General deterrence still operates. It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given."
It could not be - and was not - contended that this was a case where general deterrence had no role to play. However, if it was shown that the sentencing judge placed particular emphasis, or full weight, on general deterrence, it could be contended that he fell into error. It is certainly correct, as the applicant submitted, that his Honour did not refer in terms to the principles discussed in Letteri, Champion, Israil and De La Rosa. Nor did his Honour discuss deterrence in the context of the applicant's mental health issues. However, that does not establish that he was not conscious of those principles or that he disregarded them. All that the sentencing judge said in relation to general deterrence was to refer to it as one of the purposes of punishment in section 3A of the Crimes (Sentencing Procedure) Act and say that:
"general deterrence, which is required in this sentencing exercise because of the prevalent nature of this particular offence, which is so gravely destructive to the community."
There is nothing in that remark which suggests that Judge Hunt was particularly focused on the matter of general deterrence. Rather, he correctly identified that general deterrence was a factor in any sentencing exercise involving the ongoing supply of drugs. That proposition is well recognised.
The length of the sentence, in view of the available maximum penalty and the applicant's criminal history, does not suggest that his Honour placed particular emphasis on general deterrence. Further, no submission was made at first instance to suggest that the applicant was not an "appropriate vehicle" for a sentence in which some weight was given to the element of general deterrence. It is clear from his Honour's remarks that he was very conscious that he was dealing with an offender who had serious mental health issues. His Honour took the matter into account explicitly in finding that the applicant would find his time in gaol "more difficult because of the range of psychological and psychiatric problems that he has" and in reducing the non-parole period below what is sometimes referred to as the statutory ratio.
It must also be remembered that his Honour delivered his judgment and imposed sentence a short time after submissions were made and that no submissions were made as to the precise role that the mental health evidence would play in the sentencing exercise. In the circumstances, his Honour's remarks on sentence were thoughtful, balanced and compassionate. I am unable to discern any error in them. The sentence was a relatively moderate one in view of the maximum penalty, the facts of the offences and the applicant's criminal history.
I am not satisfied that the applicant has demonstrated error of the kind articulated in ground 2.
[5]
Conclusion
For those reasons the appeal must be dismissed. Because the applicant is a person who suffers from those identified mental conditions, and because the appeal grounds were at least arguable, I would grant leave to appeal.
Accordingly, the orders I favour are:
1. Application for leave to appeal granted.
2. Appeal against sentence dismissed.
[6]
Endnote
WW v R [2012] NSWCCA 165 at [58]-[60]; Lam v R [2015] NSWCCA 143 at [78]-[82]; Jung v R [2017] NSWCCA 24 at [39]; Zuffo v R [2017] NSWCCA 187 at [73].
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Decision last updated: 30 August 2017