Troy LITTLE v R

Court of Criminal Appeal (NSW)|2009-04-21|Before: Grove J, Howie J, Buddin J

The applicant gave evidence that he had been admitted to hospital as a result of at least two sprint car crashes. 14 Defence counsel initially failed to mention the psychological report when addressing her Honour. However he later raised its relevance in additional submissions. He said this:

I'm sorry, your Honour, would you allow me to just point one other matter out to you and I have neglected to refer you to the psychologist's report, that's the only evidence before the Court today in relation to his mental condition and that is evidence of a mild generalised brain damage and diverse deterioration of cognitive functioning. What use would the Court make of that psychologist's report? Well one use is that the psychologist links that report of his to the conduct of the offender on that afternoon and if the Court accepted that link and in accordance with the cases this would not necessarily be a case for general deterrence and it would perhaps limit the role of specific deterrence of this individual offender in the sentencing of the offender. Those were the matters I neglected to put. 15 The prosecutor contended that the Judge should not act upon the report chiefly because there was no evidence that the applicant had suffered head trauma giving rise to brain injury. He also contended that such an injury was inconsistent with the applicant's professional skills as a sprint car driver. 16 The Judge stated:

A report from a psychologist has now been obtained and tendered. Test results reveal the offender to be at the lower end of the average range of intelligence, consistent in some instances with his responses to formal schooling. There are said to be no significant deficits in his right frontal lobe function.

In the opinion of the psychologist his overall level of intellectual functioning is in the average range. There is said to be a deterioration in his cognitive functioning in several areas consistent with someone with mild generalised brain damage consistent with sportsmen and women who have repeated insults to their brain. The psychologist refers to repeated injuries from sprint car crashes.

There is no medical evidence before me of repeated brain injury or repeated sprint car crashes. At its highest the offender says he's been admitted to hospital on two occasions that he can recall. In the opinion of the psychologist that the generalised nature of injuries suffered to his brain are likely to have compromised the mechanism of mood production and mood inhibition. He is said to have poor impulse control and an inability to control his temper. I find that opinion somewhat surprising, first because there is a lack of medical evidence referred to by the psychologist and there is none before this court, and secondly, because of the nature of his profession as an elite sportsman.

I am asked to find that his mental health is such that the issue of deterrence should be given less weight. I am not persuaded that that is so. The offender himself denies suffering from any form of mental illness and denies having mental health issues. The state of the psychological evidence is such that it can be given little or no weight. There is no medical evidence that supports the opinion of the psychologist. 17 The submission of the applicant before this Court is that there was no basis for the Judge to reject the opinion of the psychologist expressed in the report. It was noted that there was no objection to the tender of the report by the prosecutor and the validity of the psychologist's opinion was based upon tests he had performed rather than upon whether or not the applicant had been subject to brain trauma. 18 I agree with this submission. The fact that the applicant may have been an elite sportsman capable of skilfully driving a sprint car to championship level had absolutely nothing to do with whether he had generalised brain injury that was likely to have affected his ability to control his emotions or his anger or to make him more impulsive. In fact so far as the injury affected his impulsivity that may have been of positive assistance to him in risk taking during racing. The fact that the applicant did not believe he had mental health issues is also of no relevance to the question whether he had such issues, especially given the nature of the brain injury and the possible effect it had upon his emotional state. 19 But even if it were accepted that his brain injury was likely to have had some part to play in the offending, it was of little moment. I do not understand how it made him more likely to tie her hands behind her back or to try to tape up her mouth to stop her screaming. I do not know if the psychologist had read the recorded interview between the applicant and police, but it does not seem to have the hallmark of a person with poor impulse control or the inability to control his anger. Rather it presents the not-unusual scenario of a man who simply will not accept the right of a partner to bring a relationship to an end. There are long rambling answers in which the applicant reveals his frustration and deep disappointment with the complainant's conduct in finishing, without any justification that he could see, an intimate relationship that he hoped would end in marriage. He denied that he had slapped her. 20 Further, there was little in the evidence suggesting that these offences were impulsive. There can be no real suggestion that the applicant just happened to turn up at the back door minutes after the complainant had arrived home. He knew the routine and that the back door would be left open because of the cat being let out. It also cannot be the case that he just happened to have with him a printout of the complainant's Internet site. He clearly planned to confront the complainant in her own home by entering the house when he had no permission to do so. He knew that she would find his presence unwelcome. He may not have planned what would actually occur during the confrontation and his reaction to her screaming might have been impulsive. But those findings do little to mitigate the offences when considered as a whole. 21 There was no merit in the submission made by defence counsel before the Judge and repeated in this Court that the mental disorder, from which the applicant suffered, was of a kind that would warrant less regard being paid to general deterrence. It simply was not of such severity, nor had it such an effect on the applicant's behaviour either in the commission of the offence or otherwise, that the principles considered in cases such as R v Engert (1996) 84 A Crim R 67 and R v Hemsley [2004] NSWCCA 228 applied. It is not every abnormal mental condition that will engage these sentencing principles: see R v Dagwell [2006] NSWCCA 98. 22 In my opinion the sentences imposed were moderate, if not lenient. They did little to reflect general deterrence in any event. The applicant was fortunate to receive concurrent sentences for the two more serious offences. I am far from satisfied that any lesser sentence is warranted simply because of the material in the psychologist report. 23 I propose that the application for leave be granted but the appeal be dismissed. 24 BUDDIN J: I agree with Howie J. **********

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CITATION: Troy LITTLE v R [2009] NSWCCA 113

R v Engert (1996) 84 A Crim R 67 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Dagwell [2006] NSWCCA 98

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