Her prognosis should be considered very cautiously due to the nature and extent of her various difficulties. She is a woman who is extremely vulnerable and she will require a lot of thought based community support."
The Proceedings Below
24 The proceedings came before his Honour Judge Knight on 31 August 2006 and the matter proceeded before his Honour on that date. At the conclusion of the hearing on that date his Honour issued ex tempore Remarks on Sentence. The Remarks on Sentence recite as does this judgment the agreed facts. His Honour describes (ROS 4) the criminal offence as "a very significant robbery in company". In this regard he refers to the fact that there were two persons; not merely threats of violence, but actual violence; and "not a single punch but repeated occasioning of violence against the victim".
25 The sentencing judge also recites the personal history of the applicant and refers at some length to the report of Dr Bruce Westmore, the forensic psychiatrist. On a number of occasions the sentencing judge refers to the existence of and extent of the psychiatric problems suffered by the applicant. His Honour refers to the lengthy history of psychiatric problems; the extent to which those psychiatric problems have been caused by or contributed to by the use of illegal drugs; the long-standing problem with the use of illegal drugs; the axes to which Dr Westmore refers and which are recited above; the admission to Cumberland Hospital and the scheduling, including the fact that the applicant suffered from suicidal ideation, schizophrenia and anti-social and borderline personality disorder. His Honour the sentencing judge spends some time on the principles of sentencing as they relate to the treatment of significant psychiatric problems. He cites and relies upon R v Hemsley [2004] NSWCCA 228.
26 His Honour remarks (ROS 6-7) to the applicant:
"It is perfectly plain that you do suffer from some form of psychosis and whether it is properly described as paranoid schizophrenia or whether it is simply a drug-induced psychosis seems to me not to matter very much for the purpose of sentencing."
27 The applicant submits that the above passage evidences error in his Honour's approach. There is often a very different approach taken in sentencing to psychoses caused by self-induced drug abuse and those arising from a pre-existing medical condition. However, this is not how his Honour was approaching the issue. Nor, in the context of his Honour's remarks, can it be reasonably understood in that way.
28 His Honour made it clear that he treated the psychosis in a manner consistent with the appropriate approach to a pre-existing medical problem. The comment quoted above was, it should be remembered, made in the context of an ex tempore judgment.
29 His Honour, shortly after the above quoted words, said:
"I think the probabilities are that you were continuing to suffer from that mental illness, although I note, and accept, Dr Westmore's opinion that he was unable to identify any specific psychiatric defence to the charges. Nevertheless, I consider that there was in your case a limited appreciation of the wrongfulness of the act and its moral culpability which, although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing. [See R v Henry (1999) 46 NSWLR 346 per the then Chief Judge at Common Law Wood J at page 394]. Similarly, I am satisfied that your mental illness renders you a less appropriate vehicle for general deterrence and therefore moderates that consideration. And thirdly I am satisfied that any custodial sentence will weigh more heavily on you as a mentally ill person. So in my view all three of the matters mentioned in Hemsley are relevant here and I take them into account. As far as the fourth factor mentioned in Hemsley , namely the level of danger which you present to the community, I consider that there is comparatively little danger to the community at the present time, having regard to your criminal history which shows that you have never previously committed an offence of violence to the person and you have committed no offences other than the one that brings you before the Court since 1998."
30 The sentencing judge refers to the fact of the plea of guilty, its timing and the benefit that ought be provided to the applicant for such a plea. He refers to the judgment of the Court of Criminal Appeal in R v Thomson and Houlton (2000) 49 NSWLR 383 and allowed a discount of 15 percent for the utilitarian value of the plea. Given the nature of the offence the sentencing judge also referred, for comparison purposes, to the guideline judgment in R v Henry (1999) 46 NSWLR 346 at 394. His Honour then proceeds to consider each of the elements in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, ultimately, arrives at the sentence already recited.
Ground 1: Manifest Inadequacy
31 As already stated the overall sentence imposed was a non-parole period of 1 year and 3 months concluding on 30 November 2007 with a remainder of sentence that would conclude on 28 February 2009. This sentence is imposed in the context where the maximum sentence for an offence of this kind is 20 years' imprisonment. Further, while the factual situation faced by Knight DCJ was not the typical robbery case identified in R v Henry, the guidelines for sentencing for breach of section 97 of the Crimes Act described in Henry is a factor to be taken into account in the determination of this sentence.
32 Guideline judgments are not a matrix for the mechanical application of a sentence based upon the combination of parameters within that matrix. Henry was concerned with an offence by a young offender with little or no criminal history and using a weapon like a knife, capable of killing or inflicting serious injury. However the Court has stated that the guideline in Henry, if otherwise applicable, is equally applicable to robbery in company: R v Murchie (1999) 108 A Crim R 482 per Simpson J; R v Poihipi [2001] NSWCCA 306 per Mason P; R v Lesi [2005] NSWCCA 63.
33 In this case there are a number of factors which would take the offender and the offence outside the guideline. As earlier stated the offender is not young; it is not a situation where there was limited actual violence; and it is not a situation where the plea of guilty has limited significance. Nevertheless the guideline is a factor that may be utilised for comparison purposes. The maximum sentence, as already stated, for a penalty under section 97(1) of the Crimes Act is 20 years' imprisonment. This is clearly not a worst case and must be measured against the comparison with the factual circumstances that gave rise to the standards set in R v Henry. In R v Henry, which allowed for a 10 percent discount for the plea of guilty, the head sentence was 5 years' imprisonment.
34 In this case, the victim was particularly vulnerable. She was entitled to utilise public transport (or the public streets) without being robbed by two persons and assaulted in the process. The assault is not an element of robbery in company and is an aggravating feature of the offence in question.
35 Putting aside for the time being the question of the mental health problems of the applicant, this sentence could not be regarded as above the range available to the sentencing judge and, on any view, it would be at the lower end of that range if not below it. I bear in mind, in that regard, the fact that offences of violence have not hitherto been part of the conduct of this applicant.
Ground 2: Mental Health Consideration
36 I left aside in dealing with the first ground of appeal the question of the mental health condition of the applicant. It is alleged that the sentencing judge failed to give adequate consideration to that condition.
37 The principles in dealing with a person suffering from a mental health condition were dealt with at length by this Court in R v AN [2005] NSWCCA 239. In that matter Howie J, with whom James J and I agreed, summarised the principles that are applicable. That summary took account of the judgment of this Court in R v Engert (1995) 84 A Crim R 67; R v Letteri (NSWCCA), unreported, 18 March 1992; R v Israil [2002] NSWCCA 255.
38 There are two aspects to the issue. The first is that a mental disorder that affects a person's criminal responsibility necessarily impacts upon the purpose of the exercise of the sentencing discretion and the protection of the public. In the present circumstances, there is no evidence that the mental health issues suffered by the applicant affected her criminal responsibility. It is not said that the criminal conduct in question was a result of either delusions or an inability to control an aggressive response. Thus, in the present circumstances, the mental health condition of the applicant is not a factor that lessens the criminal culpability of the applicant.
39 Nevertheless mental health condition considerations are not confined to the issue of criminal culpability. A mental health condition is a factor that requires a sentencing judge to consider the balance between deterrence (general and specific), rehabilitation and retribution. While retribution may be of significantly less impact, as may general deterrence, specific deterrence may be of greater importance as might the protection of society: see R v Engert, supra, per Gleeson CJ. While the exercise of every sentencing discretion requires the balance of a number of competing, and sometimes inconsistent, goals, the balancing exercise becomes even more problematic when one is dealing with a person with a mental health condition.
40 I have already referred to the manner in which his Honour treated the mental illness and the submission of the applicant on the lack of due differentiation on the causes of that illness. (See paragraph 27 of this judgment.)
41 In the present circumstances, it cannot be said that the sentencing judge did not take into account that condition appropriately. Apart from the fact that his Honour mentioned the condition on a number of occasions and gave it some pre-eminence in his remarks, the sentence that has been imposed reflects a significant departure from the mid-range head sentence in R v Henry, which departure cannot be related solely to the discount for an early plea of guilty. There can be little doubt that his Honour, in sentencing the applicant, gave considerable weight to her mental health condition. Further, it is clear that the sentencing judge was entitled and did take the view that there was not, as there may be in some instances, any elevated risk of the applicant being a danger to society.
42 It cannot be said that the applicant has established an insufficient regard by the sentencing judge to the issues of her mental health. Further, even when taking into account the mental health condition, this sentence is not manifestly excessive. In those circumstances I would propose the following orders: