Stanley v R

Court of Criminal Appeal (NSW)|2018-05-09|Before: Johnson J, Harrison J

Judgment

SIMPSON AJA: I agree with Harrison J.
JOHNSON J: The reasons of Harrison J reflect my reasons for joining in the making of orders on 9 May 2018 allowing the appeal and resentencing the applicant.
HARRISON J: The applicant is a 32 year old Aboriginal man with an intellectual disability who was sentenced by McLennan DCJ on 7 September 2017 to a period of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months, on a charge of robbery in company. The applicant had pleaded guilty at the earliest opportunity and was given a 25 percent discount for doing so. It follows that the starting point for the sentence imposed by his Honour for the robbery count was 4 years and 8 months. The applicant was also sentenced to a fixed term of 6 months imprisonment for resisting police. Both sentences commenced on 15 August 2016. The fixed term sentence has now expired. The applicant will become eligible for release on parole on 15 February next year.
The applicant sought leave to appeal against the severity of his sentence on a number of grounds as follows: Ground 1(a): The sentencing judge erred in not finding that the applicant's intellectual disability reduced the objective seriousness of the applicant's offending. Ground 1(b): The sentencing judge erred in not finding that the applicant's deprived background reduced his moral culpability. Ground 2: The sentencing judge erred in finding, in the circumstances of this case, that the subject offences were aggravated by the fact that the applicant was on conditional liberty in Queensland at the time of the commission of the subject offences. Ground 3: The sentence imposed is manifestly excessive.
At the conclusion of the hearing, the Court made the following orders: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed on the applicant by McLennan DCJ on 7 September 2017 on the charge of robbery in company. (4) In lieu thereof, sentence the applicant to a non-parole period of imprisonment of 21 months commencing on 15 August 2016 and expiring on 14 May 2018 with a balance of term of 15 months expiring on 14 August 2019. (5) Note that by operation of s 158 of the Crimes (Administration of Sentences) Act 1999 the applicant will be entitled to release on parole on 15 May 2018.

Background

At 11.10am on 15 August 2016, David Lysaght, a man in his early twenties, left his house in Moree and commenced to walk to work. He was approached by two Aboriginal men who threatened him by saying, among other things, that they were going to knock him out and take his belongings. Shortly thereafter Mr Lysaght was approached by the same men, who had by this time been joined by the applicant. One of the first two men said, "Give us all your shit or we'll bash you, we'll knock you out." Mr Lysaght thereupon gave the men two twenty dollar notes from his wallet. One of the men said, "That better be all of it." Mr Lysaght then noticed an off-duty policeman driving past. He flagged him down. The officer drove Mr Lysaght to the police station where he gave a statement.
Later the same day the applicant was located and approached by police. As he was being cautioned he attempted to run away. The officer managed to restrain the applicant and forced him to the ground. A short struggle ensued, after which the applicant was handcuffed and taken into custody.
The applicant took part in an electronically recorded interview. He said that after he had been given cigarettes by Mr Lysaght, he left. He said, however, that he heard someone say that they took forty dollars and that the other two men ran off when the off-duty policeman arrived.

Remarks on sentence

The following extracts from his Honour's remarks on sentence appear to be relevant to the present appeal.
With respect to the applicant's involvement in the subject offences, his Honour said this: "As will be apparent from this recitation of the facts, it is apparent that the initial contact between the complainant and the co-offenders of Mr Stanley had occurred at a time when Mr Stanley was not present. It is unclear to me whether or not Mr Stanley simply joined in on an episode that had been commenced by two others or was always part of the plan. Being unclear about that and not being able to be satisfied beyond reasonable doubt that he was always a part of a plan to rob a particular individual, I am approaching the matter on the basis that the most one can say about Mr Stanley's involvement is that he became part of a group of three who subsequently robbed the complainant of money at a point in time after two unidentified males in their mid-20s approached the complainant. It seems to me that the evidence established that Mr Stanley at that point joined in a robbery after having initially asked for a smoke, but then having been told I infer what the other two males had been doing, it is only at that point that all three males surround the complainant with the offender standing in front of the complainant. I accept that the threats were not offered by the accused, but at the point of his joining in of course in what was then a joint criminal enterprise the fact that he did not actually utter any threats is of small moment in the circumstances. The robbery was at least from the point at which Mr Stanley joined in a relatively brief one. The complainant was not physically assaulted, although was no doubt frightened of being assaulted which is why he handed over the sum of money. The sum of money that was handed over was relatively small in the grand scheme of things. The assessment that I make of this robbery is that it is well below mid-range of objective seriousness and indeed was the lower end of the range of street robberies, so called."
His Honour detailed the applicant's background as follows: "Dealing first with Ms Hübner's report, she observes that the offender was born in Moree on 18 December 1985, is currently 31 years of age, is the oldest of three children. He comes from a background where his father drank heavily and smoked cannabis and there was conflict within the family home which contributed to his parents' separation when he was six years of age. It seems that the offender moved back and forth between mother and father, depending on who was able to control him at various times and who could not. When he was 12 he ran away, he commenced drinking and using drugs. His attendance at academic institutions was fractured due to multiple relocations. He experienced early learning difficulties and ultimately was placed into a supported learning class for children with intellectual disabilities. He has not had a significant history of employment. Indeed, he was last employed when he was 18 for a period of six months when he worked for a coal mine. Mr Stanley reported commencing smoking cannabis with his mother at the age of ten and drinking with his father at the age of 15, and commenced using amphetamines with his brother and an uncle at the age of 17. He subsequently developed an opioid addiction and, as I understand it, there was a period when he was using heroin. He also used methylamphetamine and Fentanyl pain medication patches. He is functioning, according to Ms Hübner, at a level that is weaker than 99% of the normative population. She assesses Mr Stanley's overall IQ composite as below 70, and places him within the lower extreme range."
On the issue of the applicant's moral culpability his Honour stated: "In my view the evidence does not establish that Mr Stanley did not know what he was doing was wrong and nor in fact does it establish that his understanding was diminished in any way whatsoever. I do not see any causal link between his intellectual functioning and the offending on this particular occasion."
His Honour found that the applicant showed no remorse in relation to the commission of the subject offences and, in the report of Ms Hübner, "sought to minimise, and indeed completely avoid, criminal responsibility." He found that the offence was related to his "drug seeking behaviour" and that the offence was "relatively spontaneous". He concluded that general deterrence should be reduced because of the applicant's background and intellectual disability but that there was a need for specific deterrence having regard to his history of offending.
On the issue of general and specific deterrence his Honour said: "There is, as I have said, an argument for a reduction of the significance of general deterrence by virtue of his background and intellectual disability in combination with each other. But I do not consider general deterrence to be completely irrelevant in this particular case. More importantly perhaps is the need for specific deterrence on the part of Mr Stanley having regard to his history of offending."
His Honour then went on to detail the applicant's criminal antecedents in both New South Wales and Queensland. When referring to the applicant's Queensland criminal antecedents he stated: "The material reveals that he was bailed for an offence of assault and obstructing police in respect of an offence which occurred on 23 June 2011. Bail having been granted, he failed to appear and a warrant was issued on 11 July 2011. He was therefore on conditional liberty from Queensland at the time of the commission of this offence which is an aggravating matter."
His Honour then referred to the pre-sentence report (exhibit A on sentence) and to the applicant's prospects of rehabilitation and re-offending. He concluded: "In my view it has to be said looking at his overall response to supervision which is described at best as borderline by the author of the report, and looking at his behaviour in the past as well as his behaviour in respect of this particular offence, it is impossible to come to any conclusion that he has at this stage reasonable prospects of rehabilitation, and indeed in terms of the unlikelihood of him re-offending I think it is much more likely that he will re-offend than not, and indeed the author of the report correctly in my view assesses Mr Stanley at being of medium to high risk of re-offending."
His Honour rejected the submission that he should find special circumstances so as to vary the ratio of the non-parole period to the total sentence to be imposed on the basis that the applicant "has very poor prospects of being rehabilitated," but if wrong in that regard he stated: "the period of imprisonment that I am going to impose, including the non-parole period, is the most lenient period of imprisonment that could be imposed taking into account the reduced need, but still necessary need, for general deterrence, the need for specific deterrence, the need to recognise the undoubted fear of the victim as well as acknowledging the subjective circumstances in his particular case."

Ground 1(a)

According to his psychologist, Ms Hübner, the applicant's overall IQ composite score fell within the lower extreme range (that is, well below 70) with his overall performance being weaker than 99 percent of the population. On examination he appeared to have limited receptive and expressive language skills, and provided concrete answers to questions. That is to be compared with his Honour's reference in his remarks on sentence to the applicant's score being merely "below 70 percent". The applicant maintained that this difference was significant and that it amounted to an error inasmuch as his Honour, if only inadvertently, has understated the applicant's mental or intellectual difficulties with a corresponding impact upon his sentencing discretion and upon the ultimate sentence that he imposed.
The applicant re-emphasised what the High Court said in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [50]-[54] in the following terms: "Sentencing mentally retarded offenders [50] The assessment that the appellant suffers from a 'mild intellectual disability' should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. 'Significantly subaverage intellectual functioning' is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission: 'A person's intellectual disability can be classified as "mild", "moderate", "severe" or "profound", based upon certain IQ (intelligence quotient) ranges. A further category, "borderline", is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a "severe" or "profound" disability may be unable to learn basic social skills such as speech, walking and personal care, and is likely to require supported accommodation. The majority of people with an intellectual disability have a "mild" level of intellectual disability and "can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community." These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a "mild" intellectual disability is inconsequential.' (footnotes omitted) [51] The fact that the appellant had engaged in some paid employment and that he held a driver's licence does not detract from the assessment of his retardation. The evidence was that he had 'enormous difficulty with employment'. He was unemployed at the time Ms Daniels assessed him. She recommended that he would benefit from 'a properly supervised sheltered workshop environment'. He was in receipt of a disability support pension in mid-2008 and had been so for some time when he was assessed by Dr Westmore to determine whether he had sufficient capacity to be fit to be tried. [52] Dr Muir's assessment that the appellant understood the wrongfulness of his conduct respecting the earlier offence was qualified by the observation that this was 'only a superficial awareness'. Dr Muir also said: 'In the interview situation, it is readily apparent that Mr Muldrock is significantly mentally retarded. His speech is very slow and measured and in a monotone.' [53] Black DCJ's finding, expressed in lay terms, that the appellant's intellectual disability is 'significant', was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the Court to find that Black DCJ's determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this: '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.' In the same case, Lush J explained the reason for the principle in this way: '[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.' [54] The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
His Honour also had the benefit not only of Ms Hübner's IQ test assessment but also her opinion as to the way in which his mental capacities would appear to have affected his ability to function in society. For example, Ms Hübner said this: "8. Mr Stanley attended numerous academic institutions due to multiple relocations. He experienced early learning difficulties and was placed into supported learning classes for children with intellectual disabilities. He reportedly left school at age 13, because he was 'easily bored and already behind'. He advised that he was functionally illiterate at the time of his assessment. 9. When asked about employment, he said 'I worked for a coal mine, locating Aboriginal artefacts prior to excavation'. This period of employment reportedly occurred when he was 18, and lasted six months. No further employment history was recorded."
The applicant also drew attention to what was said by this Court in Yun v R [2017] NSWCCA 317 at [47] as follows: "[47] It is apparent that this Court has invariably determined since Muldrock (with the possible exception of Badans and Subramaniam) that an offender's mental condition at the time of the commission of the offence is a critical component of 'moral culpability' which in turn affects the assessment of 'objective seriousness'…"
It seems to me that it is presently unnecessary to consider the relationship between mental retardation and either moral culpability or objective seriousness in the context of sentencing this applicant in order to dispose of this ground of appeal. It is not in dispute that the applicant suffers from a significant intellectual deficit. As the High Court has made clear in Muldrock, somewhat different considerations apply to the calculation of a proper sentence in the case of an intellectually disabled offender. It is evident, or at least arguable, that his Honour misconceived or misapprehended the extent of the applicant's mental problems. While it must be emphasised that this is understandable in the context of a very busy District Court criminal list in Moree, or any similarly congested regional or metropolitan sittings, the difference between "below 70 percent" and "well below 70 percent" is potentially quite significant. I consider that his Honour fell into error in apparently not recognising or not giving prominence to the difference.

Ground 1(b)

The evidence at the sentencing hearing demonstrated that the applicant came from an economically and socially impoverished or deprived background. This was uncontested below and appears from at least the following passages from Ms Hübner's report: "5. Mr Stanley maintained that when he was a child his father drank heavily and smoked cannabis, and that his parents were often involved in verbal and physical conflict. This apparently contributed to his parents' separation when he was six years old. 6. After his parents' separation, Mr Stanley remained living with his mother and siblings; residing in Brisbane, Adelaide and Central Australia. He advised that his mother was an authoritarian figure, and that she used harsh physical punishment to enforce household rule, however he said, 'it was always done for a good reason'. When asked about his relationship with his father during this time, he said, 'Mum would send us back to live with dad because she couldn't control use (sic), then he would send us back to Mum.' 7. He advised that he was eight years old when he began spending time with delinquent family members and peers, and that he was 12 when he 'ran away' went 'AWOL'. He described regular alcohol and drug use, and a pattern of general antisocial conduct that continued well into adulthood. … 13. Mr Stanley reportedly commenced smoking cannabis with his mother at 10 years old, and drinking alcohol with his father at 15. At aged 17, he also commenced using amphetamines with his brother and an uncle … … 26. Mr Stanley describe (sic) a history of exposure to domestic violence, substance use, and poverty within his family unit and wider community. These early experiences, may have had a damaging effect on the development of his core cognitive and emotional skills, and resulted in reduced opportunities for productive learning and social integration. 27. As an adolescent, Mr Stanley seemingly gravitated towards delinquent family members and peers with whom he felt more accepted. He soon commenced drinking alcohol, using drugs and offending. This pattern of behaviour continued well into adulthood."
Simpson J referred to the importance of such circumstances for sentencing purposes in R v Millwood [2012] NSWCCA 2 at [69]: "[69] … I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been 'tragic and dysfunctional'. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders."
Subject only to consideration of ground 3, it did not seem to me that his Honour demonstrably erred in failing to find that the applicant's deprived background reduced his moral culpability. His Honour accurately referred to the facts and I was not prepared to assume that in doing so he did not take all of what he recorded in his remarks on sentence into account.

Ground 2

His Honour's remarks on sentence referred to the applicant's criminal history in Queensland in the following terms: "He also has a criminal history from Queensland which includes stealing and obstructing police. More importantly, it seems to me that this particular offence was committed whilst he was on bail from Queensland and having absconded from Queensland. The material reveals that he was bailed for an offence of assault and obstructing police in respect of an offence which occurred on 23 June 2011. Bail having been granted, he failed to appear and a warrant issued on 11 July 2011. He was therefore on conditional liberty from Queensland at the time of commission of this offence which is an aggravating matter."
The applicant contended that it would be unreasonable to rely upon the fact that he was on bail at the relevant time as a circumstance of aggravation bearing in mind that the bail in question related to offences that occurred over 5 years before the subject offences. I did not consider that the antiquity of the offences for which the applicant was on bail meant that they could not qualify as an aggravating factor. His Honour was entitled to treat them as such. It was reasonably apparent, however, that his Honour did not consider this "aggravating matter" to be particularly significant.
This ground of appeal was not made out.

Ground 3

The principles that apply to a consideration of whether or not a sentence is manifestly excessive or unreasonable or plainly unjust are well settled and require no restatement: see, for example, Vale v R [2016] NSWCCA 154 at [37] and [38].
A sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].
His Honour concluded that the robbery offence was well below mid-range of objective seriousness and in fact was at the lower end of the range of what he characterised as street robberies. His Honour additionally considered that the offence was relatively spontaneous. Notwithstanding these largely unexceptionable remarks, his Honour selected a starting point, prior to the application of a 25 percent discount for an early plea of guilty, of 4 years and 8 months. In my opinion, having regard to all of the circumstances of this case, his Honour erred in doing so.
The applicant is a functionally illiterate indigenous man, with an intellectual capacity in the range of the lowest one to three percent of the population, from a deprived background replete with drug and alcohol abuse. The robbery offence involved no planning and no actual violence. The victim of the offence appears to have handed over forty dollars but not to the applicant. As already mentioned, the applicant related to the psychologist, Ms Hübner, a history of exposure to domestic violence, substance use and poverty. He led an unproductive life, having only ever been employed once when in his teens, engaging in hazardous levels of drug taking. Despite these matters, his Honour came to the following conclusion: "… in my view the period of imprisonment that I am going to impose, including the non-parole period, is the most lenient period of imprisonment that could be imposed taking into account the reduced need, but still necessary need, for general deterrence, the need for specific deterrence, the need to recognise the undoubted fear of the victim as well as acknowledging the subjective circumstances in his particular case."
It seemed to me that his Honour, whilst specifically acknowledging the fact that it was appropriate to reduce the significance of general deterrence in the case of an intellectually disadvantaged offender, failed properly or adequately to give effect to that requirement. In my view, full time incarceration of this applicant for a term or 2 years and 6 months imprisonment was manifestly excessive.

Re-sentence

Ms Hübner's recommendations serve eloquently to put the applicant's situation in clear focus: "32. It is recommended that Mr Stanley participate in individual psychological intervention tailored for those with cognitive limitations. Treatment could focus on criminogenic needs of antisocial associates, emotional regulation, and attitudes supportive of drug taking/offending which appear directly linked to his patterns of criminality. This type of treatment may be available via Corrective Services NSW or a service provider within the community. 33. Post release Mr Stanley will require ongoing support from Community Offender Services in order to apply and generalize treatment gains made during his time in custody. He may also require assistance finding suitable employment. Mr Stanley is functionally illiterate, so this would need to be considered. He may benefit from improving his literacy skills …"
When the application was heard, the applicant had already been in custody for a few days short of 1 year and 9 months. Although there can never be only a single correct sentence, and several sentences within a range may nevertheless withstand appellate intervention, I considered that in the present circumstances, it would be unreasonable and plainly unjust if he were required to remain in custody any longer. The sentence imposed upon the applicant was in my opinion disproportionate to the gravity of the crime, having regard to its objective seriousness and the applicant's intellectual ability.
I considered that the robbery offence fell at the lowest end of objective seriousness for offences of this type.
The period already served by the applicant was in my view sufficient to incorporate an appropriate element of specific deterrence. The significance of general deterrence is reduced in the case of an offender with an intellectual disability.
I note that his Honour was disinclined to find special circumstances for the reasons he clearly expressed. In my view, even though the scope for rehabilitative assistance, monitoring and support within a relatively short parole period may be limited, I nevertheless considered that it was important to optimise that period as far as reasonably practicable.
His Honour assessed the applicant's prospects for rehabilitation as poor and he considered that the applicant was not genuinely motivated to change. It may be that his Honour's predictive assessment was well founded. The difficulty with factoring that prediction into the sentencing equation in this case, however, was that it failed to make sufficient allowance for the fact that the applicant's endogenous abilities will never improve. It may therefore be potentially unfair to include these considerations in the sentencing of an individual who is inherently incapable of change, as opposed to someone with the intellectual resources to do so. For that reason, I considered that the applicant's prospects of rehabilitation were a direct function of his success in gaining access when released on parole to appropriate support and assistance of the kind identified by Ms Hübner.

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