Decision
27Two observations may be made concerning the submission that the judge should have found that the offence was less serious because of the applicant's reduced moral culpability. First, his Honour did not express any finding as to the level of seriousness of the offence, apart from saying that the applicant "was involved in drug trafficking to a substantial degree". That was a finding that was well open on the evidence regardless of any determination of moral culpability.
28Secondly, the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154 at [27] appears to have rejected the notion propounded in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [86] that matters personal to an offender, including a mental illness, can be said to affect the objective seriousness of an offence. I have said, "appears to have rejected", because it has not been universally accepted.
29In MDZ v R [2011] NSWCCA 243, Hall J (Tobias AJA and Johnson J agreeing) stated:
[67] In my opinion, in light of the High Court's judgment in Muldrock (supra), it is open to conclude that the mental condition of the applicant at the time of the offence may bear upon the objective seriousness of the offences: Muldrock (supra) at [27] and [29]. Certainly, in the present case, the sentencing judge, on the evidence, was required to expressly determine the moral culpability of the applicant in assessing the seriousness of the offences and in determining the appropriate sentences to be imposed in relation to them. In this case, the evidence required a finding that the applicant's moral culpability was reduced by his mental health issues.
30In Ayshow v R [2011] NSWCCA 240 the point was referred to but not decided. Johnson J (Bathurst CJ and James J agreeing) said (at [39]):
To the extent that a question arises whether the Applicant's mental state at the time of the offence may bear upon objective seriousness (Muldrock at 1162-1163 [27], 1163 [29]), it remains a relevant factor on sentence in an assessment of moral culpability. Accordingly, if there is evidence to support a finding that an offender's moral culpability is reduced by a relevant mental condition, the offender is entitled to have it called in aid on sentence.
31There are first instance decisions that reflect different approaches. In R v Biddle [2011] NSWSC 1262 at [88], Garling J, with reference to Muldrock, specifically excluded from an assessment of the objective seriousness of the offence the offender's mental health (an impaired capacity of the offender to control himself due to brain damage).
32The point is not entirely clear, with respect, in the approach taken by Harrison J in R v Mohammed Fahda [2012] NSWSC 114. His Honour said:
[50] The objective seriousness of the offence is to be determined without reference to the personal attributes of the offender, but "wholly by reference to the nature of the offending": Muldrock at [27]. However, such factors remain particularly relevant to any determination of the appropriate sentence to be imposed.
33Earlier, however, his Honour said:
[38] I accept that the offender suffered from post-traumatic stress disorder that was caused and evident prior to the commission of the offence and that this was associated with hyper-vigilance, paranoia, auditory hallucinations, depression and inverted sleep patterns. I also find that the offender was substantially impaired by an abnormality of mind arising from an underlying condition in the form of post-traumatic stress disorder or an anxiety disorder and a probable psychotic illness. I have taken all of this into account in mitigation of the objective criminality of the offence.
34In R v Tuan Anh Tran [2011] NSWSC 1480 at [13], Rothman J took into account in an assessment of objective seriousness, "circumstances personal to the offender that are causally connected to the commission of the offence such as his state of mind". The "state of mind" he was speaking of does not appear to have been any mental condition. The case concerned a murder committed at a meeting between parties involved in an illicit drug transaction. The offender engaged another man (the actual killer) to provide protection because he was in fear of the deceased's notoriety for violence and it would appear that it was this that his Honour had in mind.
35In R v Cotterill [2012] NSWSC 89, McCallum J (at [30]) said that the assessment of the objective seriousness of the offence may include consideration of circumstances personal to the offender that are causally connected to the commission of the offence. Her Honour added that she did not understand Muldrock to hold otherwise. It was concluded (at [45]) that the seriousness of the offence was mitigated by the offender's impaired control due to several psychiatric disorders.
36Finally, I note that in R v Koloamatangi [2011] NSWCCA 288 at [18], Basten JA said that Muldrock limits the range of factors to be considered in determining the objective seriousness of the offence.
37This issue in relation to Muldrock was not the subject of submissions by the parties and I have come to the view that it is unnecessary to decide. It would be a relevant matter if the contention was that the judge overestimated the seriousness of the offence. Aside from the finding that the applicant was involved in drug trafficking to a substantial degree, about which there was no criticism, his Honour did not otherwise express a view as to the relative seriousness of the offence. In these circumstances it is not possible to say that a finding was made that was not open on the evidence.
38That is not to say that an assessment of the applicant's moral culpability was irrelevant. If her moral culpability was reduced for the reasons advanced under this ground, it would have been necessary for the judge to assess its significance, along with all other relevant factors, in making a judgment as to the appropriate sentence to impose: Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 351 [51].
39It is correct, as counsel for the applicant submitted, that there was no challenge to the opinions expressed by Dr Devsam and Ms Wakely. A question was raised at the hearing of the application as to whether it would have been possible for the Crown to "challenge" the evidence, given that the applicant did not give evidence. I do not think anything turns on this because there was substantial consistency between what the applicant had said to Ms Wakely and what she had told Dr Devsam over a period of years.
40Dr Devsam reported that the applicant was "frequently depressed and emotionally upset"; she had been "counselled for anxiety and depression" for the past three years; her back pain "worsens her depression"; she had "a long history of chronic depression for the last 5 years"; the problems in the relationship with her mother "is aggravating her depression and anxiety"; and she "often has panic attacks ... associated with severe anxiety". There was no expression of opinion by the doctor concerning the connection between these conditions and the offences for which the applicant was to be sentenced.
41The submissions for the applicant referred to Ms Wakely's opinion that depression would likely interfere with effective daily living. Ms Wakely also made reference to feelings of pessimism, guilt, hopelessness, worthlessness, low self worth and poor self-esteem. There were references to "current difficulties"; for example, "tension and difficulty relaxing, sadness, apathy and feelings relating to self doubt and being socially awkward". There was a suggestion of a previous experience (with no detail as to what it was) that was "intensely threatening and/or fearful" to which the applicant had reacted "by having uncontrolled and intrusive thoughts, flashbacks or nightmares". Ms Wakely said that her testing confirmed that the conditions of anxiety and depression were current and problematic. The applicant's "current" levels of depression were of "great concern" and required attention and formal assistance. There was also evidence of symptoms of Post-Traumatic Stress Disorder.
42It may be readily accepted that these various conditions were likely to have been present at the time of the commission of the offences. However, it does not necessarily follow that they operated to reduce the applicant's moral culpability.
43His Honour referred to the evidence of the applicant suffering from depression and anxiety. He considered it highly likely to be one of the reasons she had been using illicit drugs. He found no evidence that the applicant did not know what she was doing, or did not fully appreciate the consequences of her conduct (the latter finding is the subject of the second ground of appeal). His Honour did take the applicant's mental condition into account, along with the separation from her daughter, in finding that any time in custody would be more burdensome.
44The judge found that the applicant's motive for supplying drugs was to fund her own habit, as well as to provide money that her mother had demanded from her to support her mother's gambling addiction and to fund a trip to China. His Honour acknowledged that because of her mental health issues, the applicant would have been vulnerable to pressure from her mother.
45The first of the principles referred to by McClellan CJ at CL in DPP (Cth) v De La Rosa, supra, at [177] was that:
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...
46It is notable that the principle is concerned with a mental condition that contributes to the commission of the offence in a material way. Whether a mental condition is one that has had that effect is a question of fact. The sentencing judge in this case was not asked to make such a finding and I am unable to conclude on the evidence that was before his Honour that such a finding had to be made.
47In R v Israil [2002] NSWCCA 255 at [23], Spigelman CJ referred to a mental condition impacting upon the level of culpability of an offender where there was an inability to understand the wrongfulness of his or her actions, make reasonable judgments, or control his or her faculties and emotions. The evidence in the present case did not require a finding that the applicant had any such inability.
48The second of the principles set out by McClellan CJ at CL was that:
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... (Emphasis added).
49This is clearly a discretionary issue in the domain of a sentencing judge. In the present case, the judge was not invited to make such a finding. In fact, aside from a general reference to having taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, his Honour made no reference to general deterrence (or denunciation) at all. In those circumstances, it is difficult to conclude that inappropriate weight was given to any of the "purposes" listed in that section.
50It was submitted that when his Honour said "there was no evidence that, at the time of the offence, she did not know what she was doing and did not fully appreciate the consequences of her conduct", he was confining himself to whether the statutory mitigating factor in s 21A(3)(j) had been established. So, it was argued, his Honour made the same error identified in Watts v R, supra, at [24] of failing to recognise that "the relevance of an offender's mental disorder transcends a matter of mitigation under this provision".
51There would be force in this submission if it were the case that his Honour did not take the applicant's mental condition into account at all; but he did. In the extract from the sentencing remarks set out above, it is clear that he regarded it as one of two explanations for the applicant's recourse to drug use; it was part of the reason why custody would be more burdensome; and it was a reason why the applicant was vulnerable to pressure from her mother. These are all matters beyond a consideration of s 21A(3)(j).
52It was submitted for the applicant before the sentencing judge that special circumstances should be found "because of the issues in the psychological report" (POS at 10.11). Although his Honour did not expressly say so, I am inclined to the view that, when he referred to the applicant's "strong subjective case" as a reason for finding special circumstances, he had that submission in mind.
53The discretionary decision made by his Honour in light of the facts, matters and circumstances of the case was one that was uniquely for him. It was one that can only be interfered with by this Court on House v The King principles (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505). I am not persuaded that his Honour's discretion miscarried. Clearly, he was alive to the applicant's mental condition and he took it into account in a number of ways that were favourable to her. I would not uphold this ground.