Strecker v Trenerry [1997] NTSC 69; 93 A Crim R 407

Strecker v Trenerry [1997] NTSC 69; 93 A Crim R 407 - NTSC 1997 case summary — Zoe

[56]

I accept Mr Coates' submission that the appellant's intellectual and psychological problems was a mitigating factor. It was relevant, both as to his level of culpability and to the extent to which a deterrent sentence was appropriate. But it is not the case that general deterrence has no role to play in cases of this kind. In extreme cases, where an offender is suffering from a mental disorder or severe intellectual handicap the proper application of appropriate sentencing principles may have the result that considerations of general deterrence are totally outweighed by other factors; see Neil Norman Simms (1995) 83 A Crim R 1 at 4-5; and see R v Anderson [1981] VicRp 17; (1981) VR 155. The extent to which general deterrence in the sentencing process has a role to play depends upon the level of disability which the defendant is suffering from. In Evan Lloyd Mason-Stuart [1993] SASC 4322; (1993) 68 A Crim R 163, the Court of Criminal Appeal, South Australia, was dealing with a 20 year old male who had sustained brain damage before birth, which had had a severe stunting effect on his physical growth and upon mental capacity. He was of low average intelligence but able to function in the community and held down a job, but his capacity to appreciate the nature of interpersonal relationships and sexual relationships and to appreciate the consequences of his actions appeared to be impaired. He had what the court described as a "substantial degree of diminished responsibility". He had pleaded guilty to the rape of a 12 year old girl whom he had accosted in a public place and dragged away for the purposes of committing the offence. King CJ said, at page 164: "It seems to me that the degree of the appellant's subjective responsibility is so diminished by the damage to the brain which he has suffered, that a court must try to find some way of protecting the public which does not impose the heavy burden of a long period of imprisonment, upon a person whose subjective responsibility has been so diminished.

[61]

The effect of these authorities is that it is not necessarily the case that it is inappropriate to give some weight to general deterrence. The weight to be given will depend upon the circumstances and the level of the appellant's intellectual and psychological difficulties. Elements of special deterrence most certainly have a role to play, as may the need to protect the public. It is not the case that a prison sentence is inappropriate in the case of serious offending. In any event it cannot be said that the imposition of a fully suspended sentence of imprisonment has the same effect, so far as general deterrence is concerned, as an actual sentence of imprisonment. There is no authority of which I am aware which is authority for such a proposition. It would be obvious to anybody that, so far as general deterrence is concerned, an actual sentence of imprisonment is far more likely to deter others than a fully suspended one. I do not regard the provisions of ss 40(5)of the Sentencing Act to say otherwise. That provision provides that a wholly suspended sentence of imprisonment shall be taken to be a sentence of imprisonment for the purpose of all enactments except certain specified enactments. That can have no bearing upon the general deterrent effect of a wholly suspended sentence of imprisonment. So far as general deterrence is concerned I am unable to accept Mr Coates' submission that the learned Magistrate was wrong when he said that there needed to be an element of general deterrence although not as high as it would be for someone without the appellant's disabilities. It would appear from his Worship's sentencing remarks that he gave general deterrence some weight but as he fully suspended the sentences it can hardly be said to have been given very much weight at all. So far as special deterrence is concerned, the case of Mason-Stuart, supra, makes it plain that it is not inappropriate in a proper case to take special deterrence into account when imposing sentence upon a person suffering from diminished responsibility.

[67]

In Lade's case the learned Magistrate had adopted the device of not passing any sentence for one or more of the offences to achieve an acceptable aggregate. This practice was deprecated by Nadar J but as Fox and Freiberg, Sentencing: State and Federal Law in Victoria , observe (paragraph 9.415): "The imposition of a heavy sentence in respect of one count and no sentence on the remaining counts is not unknown. The danger which inheres in reaching the desired aggregate by loading the most serious offence or by adding a number of shorter consecutive sentences is that if an appeal is taken against conviction only upon the most serious charge and the conviction is quashed, the court, notwithstanding s 569(1) of the Crimes Act , will have no power to interfere with the sentences imposed on the counts not the subject of appeal. The remaining sentences may then fail adequately to reflect the true gravity of the charges." There is little direct authority on what a court is to do if it considers that the reverse has had happened, namely, that some of the sentences imposed are excessive but that the overall aggregate sentence is appropriate. I adhere to the view I expressed in V.T. v Winzar , supra, that the court ought not to interfere if it considers that no substantial miscarriage of justice has occurred. In Harridine (1992) 61 A Crim R 201 Prior J, at 209, accepted the totality principle as an explanation for a 3 year sentence for an assault occasioning actual bodily harm which had been imposed cumulatively upon two concurrent sentences of 7 years passed for rape. His Honour said that he could not regard the 3 year sentence as manifestly excessive as an appropriate overall sentence was passed. Mullighan J, at 210-211, seems to have accepted the principle, but concluded in the end that the overall sentences for the rapes were not so low as to lead to the conclusion that they must have been reduced in accordance with the totality principle. Some further support is to be found for this approach in The Queen v Knight (1981) 26 SASR 573 at 576, and in the observations of Street CJ in Holder and Johnson (1983) 13 A Crim R 375 at 389 where his Honour said: "As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other.) The important factor is the practical significance of the sentencing order." Further, even in cases where there has been a successful appeal upon conviction in relation to one charge, in circumstances where the appellant had been convicted of a number of charges and in respect of which there were separate sentences, it does not necessarily follow that the appeal court will reduce the sentences in relation to the other offences: see Phillip Anthony Tyler (1992) 62 A Crim R 241 at 250 and R v Tideman (1975-76) 14 SASR 130 at 132 and at 136-137.

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Judgment (79 paragraphs)

Strecker v Trenerry [1997] NTSC 69; 93 A Crim R 407 (2 June 1997)

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Cases Cited (5)