Anderson v R

[2022] NSWCCA 187

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Anderson v R [2022] NSWCCA 187

Hearing dates:

17 August 2022

Date of orders:

2 September 2022

Decision date:

02 September 2022

Before:

Bell CJ; Davies J; Fagan J

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIME — appeals — appeal against sentence – whether error in manner of taking into account prescribed standard non-parole period – whether error in findings concerning applicant’s mental health – consideration of borderline intellectual functioning as defined in DSM-5 – reliance upon DSM-labelled conditions – whether sentence miscarried due to the Crown submitting a sentence below two years may give rise to appellable error – consideration of Barbaro v The Queen – prosecutorial duty to the court in sentence proceedings

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49

R v Jermyn (1985) 2 NSWLR 194

R v MacNeil-Brown (2008) 20 VR 677

R v Tait and Bartley (1979) 24 ALR 473

R v Wendy Olive Lawrence [2005] NSWCCA 91

R v Wilton (1981) 28 SASR 362

Texts Cited:

American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5 (5th edition, 2013, American Psychiatric Association).

Category:

Principal judgment

Parties:

Faron Anderson (applicant)
Regina (respondent)

Representation:

Counsel:
D Carroll (applicant)
D Scully (respondent)

Solicitors:
Legal Aid NSW (applicant)
Solicitor for Director of Public Prosecutions (respondent)

File Number(s):

2020/00082025

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 December 2021

Before:

King SC DCJ

File Number(s):

2020/82025

Judgment

1. THE COURT: This is an application for leave to appeal against a sentence imposed by his Honour Judge King SC in the District Court at Port Macquarie on 2 December 2021. The applicant was charged as follows:

1   that on 14 March 2020, in Port Macquarie in the State of New South Wales, [he] did wound Barrie JONES with intent to cause grievous bodily harm to him (s 33(1)(a) of the Crimes Act 1900 (NSW))

and in the alternative

2   that on 14 March 2020, at Port Macquarie in the State of New South Wales, [he] did recklessly wound Barrie JONES (s 34 of the Crimes Act).

2. In the Local Court the applicant offered a plea of guilty to the alternative count but the Crown pressed the more serious charge. When arraigned in the presence of a jury panel on 15 September 2021 the applicant pleaded not guilty to both counts. His trial proceeded and on 17 September 2021 verdicts of not guilty on the first count and guilty on the second were returned.

3. The maximum penalty under s 35(4) of the Crimes Act 1900 (NSW) is 7 years’ imprisonment. A standard non-parole period of 3 years is prescribed. The learned judge allowed a discount of 25% for the offered plea and sentenced the applicant to imprisonment for 2 years and 6 months with a non-parole period of 1 year and 3 months, both commencing from 30 November 2021, a back date to allow for three days custody immediately following the applicant’s arrest.

4. The grounds of appeal are as follows:

1   His Honour erred in giving greater significance to the standard non-parole period because the applicant had pleaded not guilty.

2   His Honour erred in failing to take into account the evidence that the applicant suffered from:

(a)   Borderline Intellectual functioning (DSM5 V62.89); and

(b)   Persistent Depressive Disorder (Dysthymia), with pure dysthymic syndrome (DSM 300.4).

3   The sentence is manifestly excessive.

4   The sentence miscarried by virtue [of] the Crown Prosecutor submitting that the sentencing judge would be committing appealable error if he imposed a sentence of less than two years.

Circumstances of the offending

5. From the evidence given in the trial and consistently with the jury’s verdict, the learned sentencing judge found that the offence was committed in the following circumstances. The applicant was 30 years old at the date of the offence and nearly 32 when sentenced. He was on William Street Port Macquarie late on the evening of 14 March 2020 with his partner, Ms Russ, and his younger brother, Mr Binge. All three had spent the evening at a nearby hotel. Ms Russ had not been drinking but the applicant and Mr Binge had. The applicant was to some extent affected by alcohol.

6. The victim, Mr Jones, was also on William Street in company with a group of friends – the learned judge’s Remarks on Sentence do not state how many. Mr Jones and his group had been drinking at another hotel and Mr Jones was more affected by alcohol than the applicant. He was carrying a bottle of vodka as he walked along William Street and he and his friends were drinking from it. The contents had nearly all been consumed by the time the two groups came together. Mr Jones knew Mr Binge and some conversation commenced. The conversation became argumentative, apparently concerning the respective indigenous origins of those present.

7. Mr Jones commenced to provoke physical conflict. He offered to fight anyone, “proclaiming his prowess”, and he removed his T-shirt. There was pushing and shoving between the two groups. Ms Russ stepped between Mr Jones and the applicant to prevent them fighting. Mr Jones aimed a blow at the applicant but missed and hit Ms Russ on her left cheek. Mr Jones had placed the empty vodka bottle on the concrete footpath by this time. It was smashed, either by the applicant or by someone else, and the applicant picked up a piece of the glass. He was at that time about 2-3m from Mr Jones. Mr Jones backed away from the applicant and took hold of one of his friends, pulling the friend into a position in between the applicant and himself. In the course of this Mr Jones and his friend lost their footing and fell to the surface of the roadway.

8. The applicant then rushed onto Mr Jones and delivered two slashing strikes to his head with the piece of glass. A laceration was inflicted towards the top of Mr Jones’ forehead, within the hairline, and another across his right forehead and over the bridge of his nose and onto his left cheek. Mr Jones was able to get up and proceed to fight the applicant. The fight was broken up by others. His Honour was satisfied that the applicant had wounded Mr Jones in revenge for the accidental striking of Ms Russ and not from any perceived need to defend himself or any other person. His Honour noted Ms Russ’s evidence that the applicant had broken free from her in order to rush at Mr Jones.

9. Mr Jones is permanently scarred. The laceration across the bridge of his nose and left cheek came very close to his eye. The learned judge considered that if the slashing blow had followed a very slightly different course it would have damaged one of Mr Jones’ eyes. The applicant also inflicted upon Mr Jones multiple lacerations to his right forearm, each measuring less than 1cm. The following conclusions about the overall gravity of the offence were drawn:

I accept that this was a serious offence. Striking another person with a broken bottle or glass, commonly referred to as “glassing”, frequently results in very serious injuries particularly when the point of contact is the facial area. While the victim was no doubt argumentative and provocative, it did not in any way justify the offender in assaulting him in the way that he did, causing a significant injury. The offence involved the use of a broken bottle and was in circumstances where the victim was on the ground when struck by the offender. The injury was of course to his face and head as well as the right forearm, and the victim was struck more than once.

In my view, the offence falls, in those circumstances, towards the mid-range of objective seriousness, but not at the mid-range.

Subjective circumstances

10. The applicant was 30 years old at the date of the offence and nearly 32 when sentenced. As a juvenile between the ages of 15 and 17 he had committed offences of possessing and administering prohibited drugs, breaking and entering, larceny, possession of housebreaking implements and being conveyed in a vehicle without the owner’s consent. The applicant attributed the turbulence of those three years to his association with antisocial peers, following his expulsion from school. Connection with negative influences was severed and the applicant’s conduct settled down very significantly. That occurred at about the age of 18 when his first child was born to his then partner.

11. The applicant committed only a few offences in early adulthood between the ages of 19 and 27, mainly motor vehicle licence and registration infringements. He was convicted of an assault occasioning actual bodily harm, in a domestic setting, in 2012 at the age of 22. That was against his present partner. His Honour accepted the applicant’s evidence that there had been no further violence between them. Prior to his arrest for the index offence the applicant had only ever served three days in custody as an adult. The learned judge noted in the applicant’s favour the absence of any significant record of violent offending and the marked reduction in encounters with law-enforcement since reaching adulthood. His Honour said:

In my view, in the light of his record he could not be assessed as more than a low to medium risk of reoffending in respect of violence.

12. The applicant gave an account of his childhood and developmental years to a psychologist, Ms Koh. Her report dated 19 November 2021 was tendered on sentence and the applicant gave evidence confirming the history that he had recounted to her. He was the only child of his biological parents. His father was absent from the time of his birth. The applicant’s mother and grandmother both took part in raising him and were supportive. His mother re-partnered twice and had six more children from those relationships. Both of the stepfathers abused marijuana and alcohol. Both of them were violent towards the applicant’s mother but he was not physically or sexually abused. The applicant was widely exposed to alcohol and drug fuelled violence in his community during childhood. His first stepfather attempted to hang himself when the applicant was six years old. The applicant found him. That experience caused subsequent traumatic reaction. The applicant’s grandmother, with whom he had been particularly close, died when he was 15.

13. For reasons considered further below, the applicant did not do well at school. He had difficulties with speech, literacy, numeracy and concentration. He required placement in a special education support unit. No doubt as a consequence of his academic underperformance, the applicant began fighting at school and he was eventually expelled. It is not clear what grade he attained. After leaving school he had no employment until the age of 25 when he worked for six months at a meat works. He was then employed as a labourer for a local Council for a brief period. Since then he has been in receipt of a disability support pension.

14. The applicant had two children with his first partner. He has described that relationship as mutually abusive, emotionally and physically. The applicant has been in a relationship with his present partner for 11 years. At the time of the sentence proceedings they had three children together.

15. From the age of 15 and continuing for many years the applicant used cannabis daily. At the time of sentence he said that he was using it weekly. He has at times abused alcohol to the point of drinking himself unconscious. At one time he undertook three months rehabilitation with respect to both alcohol and cannabis. The applicant used methyl amphetamine over a relatively brief period prior to the offence.

16. Ms Koh’s report includes the following concerning the contribution of the applicant’s disadvantaged background to his commission of the offence:

In summary, my assessment of [the applicant] revealed a background of exposure to domestic violence, which likely contributed to the lack of development of adaptive emotional regulation, coping, and problem solving skills. [The applicant] likely has borderline intellectual functioning and has had difficulties with processing speed, communication and learning since childhood. Therefore when faced with stressful situations, [the applicant] would have reduced ability for judgement, problem solving and consequential thinking under pressure. These factors were identified as contributing factors towards [the applicant’s] offence.

17. The learned judge evidently accepted that the applicant’s background had contributed to the commission of the offence, in the following passage of his Remarks:

I accept that the offender had a difficult childhood and that the matters that I have previously referred to support the submission made on his behalf […] that the factors referred to in such cases as [Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 and Fernando v R (1992) 76 A Crim R 58] are relevant to the sentencing of this offender. I am unable to find that any persistent depressive disorder has any relevance to this matter: that is that it is not in any relevant way causal of the offending. This appears to have been a spontaneous reaction to a circumstance of provocation in relation to which the offender lost control of himself and acted in a way which is uncharacteristic on the basis of the material that is before me.

Accordingly I accept, consistent with [Bugmy v The Queen], that his moral culpability for this offending is reduced by those factors and accordingly also the need for the sentence imposed to provide for general deterrence.

18. The words highlighted are relevant to ground 2 and will be considered in that connection, below. The balance of the above passage was favourable to the applicant. Taken as a whole, his Honour’s findings involve that the applicant’s moral culpability and the need for general deterrence were reduced because of continuing adverse influence upon his behaviour stemming from the adversity of his childhood, while at the same time the applicant was given credit for having stabilised his life, as exhibited by the turnaround in his criminal record that led his Honour to the view that the applicant’s loss of control on this occasion was “uncharacteristic”. These findings might be regarded as to some degree in tension with each other but the applicant was given the benefit of all of them.

19. The learned sentencing judge accepted that the applicant was genuinely remorseful and contrite, that he had “at least a reasonable prospect that [he] will not reoffend” and that, if provided with some assistance in the future, there could be “a reasonable expectation of rehabilitation”.

Borderline intellectual functioning and depression

20. The following extracts from the numbered paragraphs of Dr Koh’s report contain her tentative conclusions about the applicant’s intellectual functioning (emphasis added):

3   [The applicant] likely has borderline intellectual functioning and has had difficulties with processing speed, communication and learning since childhood.

16   [The applicant’s] history indicated early speech, literacy and numeracy issues suggestive of learning disorder. He reported being assessed during various stages of his life, however was uncertain the reason for those tests. He was also unsure if he had been ever formally tested in relation to his cognitive abilities. Based on [the applicant’s] presentation and reported history, it was considered likely that he has borderline intellectual functioning (DSM5 V62.89). It should be noted that this opinion was based on observations of [the applicant] and reported history, and no formal cognitive testing was performed as part of this assessment.

23   [The applicant] was assessed to likely have borderline intellectual functioning (DSM5 V62.89). He was noted to have learning difficulties since a young age. He also reported some difficulties with adaptive functioning when younger, for instance, he had difficulties with speech and communication. His presentation during assessment also noted slow speech and difficulties in comprehension at times. It was uncertain if [the applicant] would meet the criteria for mild intellectual disability; this would need to be further investigated.

25   Taken together, [the applicant’s] borderline intellectual functioning (DSM5 V62.89), lack of problem-solving and emotional regulation skills were factors that were likely to have contributed towards his offending behaviours.

27(a)   It is recommended that [the applicant] be referred for further cognitive assessment in relation to potential borderline intellectual functioning or mild intellectual disability.

21. With respect to depression, Dr Koh reported in these terms:

18   Mr Anderson recalled feeling depressed between the ages of twenty-six (26) to twenty-eight (28). He related that he had little self-esteem at the time and felt hopeless as he perceived that he was unable to achieve any goals in life (eg, retaining employment, buying a house and providing for his family). He was also experiencing relationship difficulties at the time. He disclosed often having suicidal ideations and had attempted suicide on one (1) occasion when he was twenty-eight (28) years old where he doused himself with petrol and lit himself on fire. He recalled that when his leg had caught fire, the police and fire brigade arrived [and he] was hospitalised for two days and was prescribed Seroquel to manage his mood. However, he was not compliant with the medication as he experienced side effects (eg, feeling drowsy and decreased motivation) and believed that the medication would be harmful in the long term, therefore he ceased medication altogether. He had also seen a counsellor at the time for six (6) sessions but ceased attending sessions as he believed that he was feeling better. Although further assessment and monitoring is recommended in relation to his mental health, a preliminary diagnosis of Persistent Depressive Disorder (Dysthymia), with pure dysthymic syndrome (DSM 300.4) was considered suitable based on his presentation and history obtained at the time of assessment.

22   The Depression Anxiety Stress Scales 21 item (DASS-21) is a self-report scale consisting of twenty-one (21) items which measures the severity of symptoms relating to depression, anxiety, and stress over a one (1) week period. It can also be used to assess change in symptom severity over time. The DASS- 21 has been demonstrated to have high levels of reliability, internal consistency and concurrent validity. Mr. Anderson’s scores on the DASS-21 placed him in the normal range for depression (D=2), normal range for anxiety (A=3) and normal range for stress (S=2) at the time of assessment. Due to Mr. Anderson’s difficulties with comprehension, these results should be interpreted with caution as they may be an underestimation of the emotional difficulties that Mr. Anderson may be experiencing. (Original emphasis shown).

22. The sentencing judge’s assessment of this evidence appears in the following passage of his Remarks (with numbers added for ease of reference):

(i)   As to his mental health I have already referred to his difficulties with speech, literacy and numeracy which are suggestive of a learning disorder and I accept that. The psychologist found that it was likely that he has a borderline intellectual functioning but there has been no formal cognitive testing, so that cannot be confirmed. I have heard him speak with police officers on the evening of his arrest in the recorded video, and I have heard him give evidence in court. I would accept that he does not have a high level of intellectual functioning, whether that equates to a borderline intellectual functioning is a different question which cannot be answered in the absence of formal testing.

(ii)   He is said to have been depressed between the ages of 26 and 28 and to have some suicidal ideation and attempted suicide on one occasion when he was 28 years of age, dousing himself with petrol and lighting a fire. Fortunately the police and fire brigade arrived and he was hospitalised only for two days before then being prescribed Seroquel to manage his mood.

(iii)   The psychologist noted that his speech was slow, which was something I noted when he gave evidence in this matter. She provided a preliminary diagnosis of persistent depressive disorder with dysthymic syndrome, on the basis of his presentation and the history provided by him.

(iv)   As to his depression, at the time of the report he was tested on the Depression Anxiety Stress Scale; he was found to be in the normal range for depression, the normal range for anxiety and the normal range for stress. It was posited that there may be some difficulty with those results due to his difficulties with comprehension.

(v)   The psychologist opined that long-term exposure to early life adversity can impact childhood brain development and disrupt an individual’s ability to regulate response to stress. These difficulties with low self-esteem, emotional regulation and problem: solving also likely contributed towards his persistent depressive disorder. She also noted that he had expressed remorse for his offending behaviours and did not appear to endorse pro-violence attitudes.

(vi)   While there is a lack of background testing on the basis of which a firm diagnosis could be made, I accept that the psychologist's opinions have some reasonable foundation.

23. Shortly afterwards, in the passage fully quoted at [17] above, his Honour added this:

I am unable to find that any persistent depressive disorder has any relevance to this matter: that is that it is not in any relevant way causal of the offending.

Ground 1 – significance accorded to standard non-parole period

24. Section 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides as follows:

(2)   The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

25. Pursuant to ground 1 the applicant impugns the following parts of the sentencing judge’s Remarks (emphasis added):

p 1   I note that he had offered to plead guilty to the alternative count in the Local Court prior to committal, that offer was declined by the prosecution and that he is accordingly entitled to a 25% discount for the utility of the offered plea. However, I note that at the time of trial he entered a plea of not guilty to the alternative count as well as the primary count. In my view, that means that the standard non-parole period is still relevant to take into account as a guideline in respect of the offence.

p 16   Taking all of those matters into account, including the fact of the early offer of a plea which entitles him to a 25% discount, while in my view the standard non-parole period remains relevant because the offender elected at trial to “roll the dice” on both charges rather than enter a plea of guilty to the alternative count as [had] been offered in the Local Court […].

26. The applicant made this submission:

Whilst his Honour’s reasoning with respect to the standard non-parole period was to a degree, with respect, opaque, it was explicit that the standard non-parole period was to play a greater significance as a consequence of the applicant’s plea of not guilty to the reckless wounding charge. This reasoning was in error.

27. That submission is rejected. It is not explicit in his Honour’s reasons, nor can it be read into them, that he gave greater significance to the standard non-parole period by reason of the lesser charge having been defended than he would have done if it had been conceded before the jury. The standard non-parole provisions in Pt 4 Div 1A of the Act are to be taken into account irrespective of whether an offender has pleaded guilty or has been convicted following a trial. The highlighted words in the above passages appear to reflect that his Honour may have thought, mistakenly, that the standard non-parole period would not have been relevant if he had been passing sentence following a plea of guilty. If his Honour was under that misapprehension it had no consequence because he did consider the standard non-parole period as he was required to do. Ground 1 must be rejected.

Ground 2(a) – failure to take into account borderline intellectual functioning

28. The applicant elaborated ground 2(a) by submitting that it was “incumbent upon his Honour to make clear findings upon Dr Koh’s report and her opinion as to the mental health of the applicant”. The applicant argued as follows:

It was not open to his Honour to reject Dr Koh’s opinion as to borderline intellectual functioning on the basis of the absence of further cognitive testing. The uncertainty described by Dr Koh was as to whether the applicant suffered from a more severe form of impairment; specifically an intellectual disability. There is no uncertainty as to her finding of at least borderline intellectual functioning.

29. That argument betrays a misapprehension of what borderline intellectual functioning is, according to the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (“DSM-5”). In her report Dr Koh did not quote from the Manual. It is a readily available publication. In an early section, entitled “Intellectual Disabilities”, the Manual specifies the following:

Intellectual Disability (Intellectual Developmental Disorder)

Diagnostic Criteria

Intellectual disability (intellectual developmental disorder) is a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains. The following three criteria must be met:

A   Deficits in intellectual functions such as reasoning problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualised, standardised intelligence testing.

B   Deficits in adaptive functioning that result in failure to meet developmental and socio-cultural standards for personal independence and social responsibility. Without ongoing support, the adaptive deficits limit functioning in one or more activities of daily life, such as communication, social participation, and independent living, across multiple environments, such as home, school, work and community.

C   Onset of intellectual and adaptive deficits during the developmental period.

30. The Manual specifies, in detailed descriptive terms, varying degrees of deficit with respect to each of the three criteria. The degrees of severity are grouped at four levels, thus permitting categorisation of Intellectual Disability (Intellectual Developmental Disorder). Each level is assigned a diagnostic code within the DSM-5 classification of disorders:

F70   Mild

F71   Moderate

F72   Severe

F73   Profound

31. Borderline intellectual functioning is not a diagnosis. It is not a disorder or condition within the DSM-5 classification system. The expression is used in a chapter towards the end of the Manual entitled “Other Conditions That May Be a Focus of Clinical Attention”. That chapter commences with the following explanation (emphasis added):

This discussion covers other conditions and problems that may be a focus of clinical attention or that may otherwise affect the diagnosis, course, prognosis, or treatment of a patient’s mental disorder. […]. A condition or problem in this chapter may be coded if it is a reason for the current visit or helps to explain the need for a test, procedure, or treatment. Conditions and problems in this chapter may also be included in the medical record as useful information on circumstances that may affect the patient’s care, regardless of their relevance to the current visit.

The conditions and problems listed in this chapter are not mental disorders. Their inclusion in DSM-5 is meant to draw attention to the scope of additional issues that may be encountered in routine clinical practice and to provide a systematic listing that may be useful to clinicians in documenting these issues.

32. The last entry in this chapter is the following:

V62.89 (R41.83) Borderline Intellectual Functioning

This category can be used when an individual’s borderline intellectual functioning is the focus of clinical attention or has impact on the individual’s treatment or prognosis. Differentiating borderline intellectual functioning and mild intellectual disability (intellectual developmental disorder) requires careful assessment of intellectual and adaptive functions and their discrepancies, particularly in the presence of co-occurring mental disorders that may affect patient compliance with standardised testing procedures (eg, schizophrenia or attention-deficit/hyperactivity disorder with severe impulsivity).

33. A “Text Revised” edition of the Manual, DSM-5-TR, was published in February 2022. The wording quoted at [31] above is substantially unchanged in DSM-5-TR. The wording quoted at [32] is identical but the code has been changed to R41.83. Ms Koh’s tentative and qualified statements on this subject show that she did not even reach a conclusion that the applicant exhibited borderline intellectual functioning. Had she done so, as DSM-5 makes clear, this would not have been a diagnosis of a disorder but merely a formal notation of a “focus of clinical attention” that may bear upon the diagnosis, prognosis or treatment of some other condition that is a recognised mental disorder.

34. The following observation of Spigelman CJ in R v Wendy Olive Lawrence [2005] NSWCCA 91, concerning an earlier edition of the Manual, is pertinent to the applicant’s ground 2(a):

[23]   Although DSM(IV) has come to be widely used for the purposes of categorisation, it should not be assumed that because, as a result of the rather tortuous process by which DSM(IV) is compiled and amended, some kind of recognition is given, by means of affixing a label to a mental condition, that any such condition is such as to attract the sentencing principle that less weight is to be given to general deterrence. That may not be true of a particular condition.

That caution is still more important in relation to the label of borderline intellectual functioning, which DSM-5 has affixed to a mere subject of clinical focus and where the Manual does not purport to recognise a mental disorder of that name or its code.

35. Heeding Spigelman CJ’s point, uncritical reliance should not be placed upon DSM-labelled conditions for any of the sentencing considerations that may be engaged in cases of mental disorder, as identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. The considerations are (1) reduced moral culpability if the mental condition has contributed to the commission of the offence, (2) reduced importance of general deterrence (the matter that Spigelman CJ referred to in R v Wendy Olive Lawrence), (3) greater impact of imprisonment on a mentally unwell offender, (4) less call for specific deterrence and (5) conversely, potential danger to the community arising from the offender’s mental disorder.

36. Dr Koh used the words “likely” and “potential” in relation to borderline intellectual functioning. At par 27(a) of her report she recommended that the applicant be “referred for further cognitive assessment in relation to potential borderline intellectual functioning or mild intellectual disability”. The applicant’s submission that there was “no uncertainty as to her finding of at least borderline intellectual functioning” and that the only uncertainty concerned “whether the applicant suffered from a more severe form of impairment” is incorrect. That is not what the expert reported. The Court rejects the applicant’s contention that “it was not open to his Honour to reject Dr Koh’s opinion as to borderline intellectual functioning on the basis of absence of further cognitive testing”. The absence of such testing caused Dr Koh herself not to draw a firm conclusion about this “focus of clinical attention”.

37. His Honour’s findings on this topic at a pars (i) and (vi) of the passage quoted at [22] above are in full accord with the psychologist’s caution and, like the psychologist’s opinions, the findings rest upon observation of the applicant when speaking. His Honour had listened to the applicant’s recorded interview with police and had observed him in the witness box. Dr Koh’s opinion that it was “likely that he has borderline intellectual functioning (DSM5 V62.89)” was expressly “based on observations of [the applicant] and reported history”.

38. There is no substance in ground 2(a).

Ground 2(b) – failure to take into account persistent depressive disorder

39. The paragraphs of the applicant’s written submissions that appear to be directed to ground 2(b) are the following. Having regard to the way these submissions were expanded in oral argument, the term “mental health” seems to refer to a diagnosis of Persistent Depressive Disorder (DSM-5 300.4):

[It] was incumbent upon his Honour to make clear findings upon Dr Koh’s report and her opinion as to the mental health of the applicant. It is also necessary for his Honour to make findings as to how he took these matters into account and if not, why not. […].

Beyond the issue of causal connection between the applicant’s mental health and his offending, the applicant’s mental health remained relevant to the issue of general deterrence and whether custody would be more onerous for the applicant. His Honour was bound to make findings with respect to these issues.

40. As can be seen at pars (ii), (iii) and (iv) in the extract quoted at [22] above, his Honour accurately noted that Dr Koh had only made a preliminary diagnosis of Persistent Depressive Disorder, based upon presentation and history, and that that appeared to be contradicted by the results of administering a scale that relied upon self-report, the outcome of which was doubtful because of the applicant’s “difficulties with comprehension”. On this evidence it was well open to his Honour not to be satisfied on the balance of probabilities that the applicant suffered Persistent Depressive Disorder when the offence was committed or at the date of sentence. That inability to draw a conclusion on the balance of probabilities was consistent with Dr Koh’s own hesitancy and her recommendation, at par 27(c) of her report, that the applicant would benefit “from being reviewed by a psychiatrist for review of his mental health and medications (if applicable)”.

41. Notwithstanding that the learned judge did not find that a depressive illness had been proved, his Honour gave the applicant the benefit of recognising that “the psychologist’s opinions have some foundation”: par (vi) of the extract at [22] above. By that statement his Honour indicated that he made allowance, in mitigation of sentence, for the applicant’s subjective characteristics of low intelligence and low mood. His Honour accepted that on an occasion some two years prior to the offending the applicant had suffered from a depressed mental state that led to self-harm and suicidal ideation. In oral argument on the leave application the applicant’s counsel cited authorities that have followed Director of Public Prosecutions (Cth) v De La Rosa as to the manner in which an offender’s mental illness should be taken into account. It is not necessary to deal with those principles because the judge was not satisfied that the applicant had a mental illness at any relevant time. In that respect his evaluation of the evidence was open to him. Ground 2(b) must be rejected.

Ground 3 – manifestly excessive sentence

42. Implicitly, his Honour’s starting point was a head sentence of 3 years and 4 months. The reduction of 25% for the applicant’s offer to plead guilty resulted in a head sentence of 2 years and 6 months. His Honour found that the applicant’s special circumstances warranted a non-parole period of 1 year and 3 months, being only 50% of the head sentence and therefore a very significant and favourable departure from the statutory default ratio of 75%.

43. In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Gleeson CJ and Hayne J said this with respect to the question of manifest excess or inadequacy:

[6]   Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

44. Taking into account all relevant factors, this was not a manifestly excessive sentence. His Honour’s conclusion that full-time custody was called for was open to him. The length of the sentence imposed is not unreasonable or plainly unjust. Ground 3 is not made out.

Ground 4 – prosecutor’s submission concerning sentence less than 2 years

45. Ground 4 is based upon the following exchange between the learned sentencing judge and counsel during the sentence hearing, after the evidence had been taken:

[COUNSEL FOR THE APPLICANT]: […] I submit it is open for your Honour to consider that a sentence of two years or less may be appropriate and your Honour could order that that be served by way of an intensive correction order […].

[Submissions for the applicant in mitigation of sentence, generally].

HIS HONOUR: Perhaps, Mr Crown, [counsel for the applicant], as consistent with his acting for the accused on the [plea], is aiming for the bottom of the tree as it were, that is while he’s accepted a sentence of imprisonment is appropriate his submission is that it could be two years or less, so that an ICO could be considered. […]. Do you have anything you’d like to say in relation to the submission made by [counsel for the applicant].

[CROWN PROSECUTOR]: Your Honour would appreciate there are restrictions on the Crown urging upon your Honour particular sentences.

HIS HONOUR: Yes, but you are entitled to always inform a judge that a particular result may or may not be appellable error.

[CROWN PROSECUTOR]: I think my answer to that question would be that would depend upon the decision your makes in relation to [the submission for the applicant, that the wounding occurred by way of excessive self defence]. If your Honour was to form the view as to the first proposition, that the conduct was not necessary, then I think the Crown would suggest your Honour may fall into appellable error if your Honour formed [sic] the sentence of less than two years. If your Honour however was to form the view that the conduct was not a reasonable response, noting the concession that I’ve already made that Mr Jones, on any view of the evidence, was the aggressor and perhaps on any view of the evidence had, whether accidentally or otherwise, struck Ms Russ, then it may not be an appellable error.

46. Contrary to what is asserted in ground 4, counsel for the Crown did not submit that “the sentencing judge would be committing appellable error if he imposed a sentence of less than two years”. He made a contingent submission that a sentence of less than two years may be appellable if it should follow upon a finding that the applicant had not believed that his conduct was necessary to defend himself or others, so that his culpability was greater than would be the case if liability arose only from an excessive response: s 418 of the Crimes Act. The Crown was answering the learned judge’s request, expressly directed to the operation of s 68 of the Crimes (Sentencing Procedure) Act, which is in these terms:

68   Intensive correction orders not available where imprisonment exceeds limits

(1)   An intensive correction order must not be made in respect of a single offence if the duration of the term of imprisonment imposed for the offence exceeds 2 years.

47. In support of ground 4 the applicant argued that the prosecutor’s response to the learned judge infringed “concerns” articulated by French CJ, Hayne, Kiefel and Bell JJ in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [33] as follows:

[33]   The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution's view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.

48. Barbaro v The Queen was an application for leave to appeal by offenders who complained that the judge who sentenced them had declined to receive a submission from the prosecution about what range of sentences she could impose. The applicants relied upon the decision of the majority of the Victorian Court of Appeal in R v MacNeil-Brown (2008) 20 VR 677 where it was said that:

the making of submissions on sentencing range is an aspect of the duty of the prosecutor to assist the court.

49. The Court granted leave in Barbaro v The Queen but dismissed the appeal unanimously. The plurality said at [23]:

To the extent to which MacNeil-Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled. The practice to which MacNeil-Brown has given rise should cease. The practice is wrong in principle.

50. Barbaro v The Queen does not stand for a proposition that if Crown counsel should purport to nominate an available range of sentence, contrary to the High Court’s disapproval, the sentencing process would thereby miscarry rendering the imposed penalty liable to be set aside. No subsequent decision has extrapolated the reasoning in Barbaro v The Queen to any such proposition. An extension to that effect would be unsupportable.

51. Further, the decision in Barbaro v The Queen did not abrogate or qualify the long-standing principle that in sentence proceedings the prosecution is obliged to assist the court to avoid appellable error. In R v Tait and Bartley (1979) 24 ALR 473 Brennan, Deane and Gallop JJ said this:

It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error. The Crown has been said not to be concerned with sentence [citations omitted], but when a statutory right of appeal is conferred upon the Crown, that proposition must be more precisely defined. It remains true that the Crown is required to make its submissions as to sentence fairly and in an evenhanded manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant's case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. […]

Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by a defendant [citations omitted] there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him.

52. With relevance to the present case, the obligation of the Crown is particularly engaged where a sentencing judge is considering, or has been invited by the offender to consider, a form of punishment less severe than full-time custody. In R v Wilton (1981) 28 SASR 362 at 367-368 King CJ (with whom Mitchell and Williams JJ agreed) invoked the principle in relation to a Crown appeal against suspension of a sentence, as follows:

It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R v Tait and Bartley by “double jeopardy”. […]. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on [a Crown appeal].

53. That passage was cited with approval in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 302. In this Court, R v Tait and Bartley and R v Wilton were applied in R v Jermyn (1985) 2 NSWLR 194, where it was held by Street CJ, McHugh JA and Lusher J that the Crown had failed in its duty to the District Court to assist on the issue of whether the offender in that case might be dealt with by the imposition of a bond. At 198 Street CJ said this:

The conclusion is inescapable that the Crown failed to assist the District Court to avoid appealable error. Nash DCJ […] sought the Crown's assistance upon whether it would be erroneous to deal with the matter on a non-custodial basis and the Crown specifically informed his Honour that it would not be erroneous. His Honour was entitled to look to the Crown for guidance. […] His Honour prudently and properly sought information from the Crown in relation to decisions of this Court on sentencing in matters of this nature. If the Crown was either not aware of the general tenor of such cases or did not have access to them, or a summary of them, it had a clear obligation to say so and the judge would no doubt then have taken further steps to obtain the requisite information. As it happens, the Crown made a definitive statement that there was no objection to the matter being dealt with by way of recognizance.

See also the judgment of McHugh JA at 202-204. In consequence of the prosecutor’s failure to assist the sentencing judge, the court dismissed a Crown inadequacy appeal.

54. The judgment of the plurality in Barbaro v The Queen did not refer to – and therefore did not detract from – the duty of prosecutors to assist sentencing judges to avoid error. The Crown’s obligation in this respect was expressly recognised by Gageler J at [57]:

[57]   […]. The earlier common law view that sentence was of no concern to the prosecution could not survive the enactment by State and Territory legislation of prosecution rights to appeal against sentence [R v Tait and Bartley (1979) 24 ALR 473 at 475, 477], picked up in respect of sentences of persons for federal offences by s 68(2) of the Judiciary Act 1903 (Cth). Once it became open to the prosecution under statute to seek to have a sentence set aside on appeal, it would have been perverse for the common law to have prevented the prosecution from making submissions to the sentencing court to assist that court to avoid appealable error in imposing the sentence. To the contrary, it came firmly to be established that the prosecution has a common law duty to assist the court to avoid such appealable error [R v Tait and Bartley (supra); R v Wilton (1981) 28 SASR 362 at 363-364, 368; Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 302; [1994] HCA 49; R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60 at 76; R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at 173 [28]].

55. In CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9, decided 13 months after Barbaro v The Queen, the High Court recognised that prosecutors remain under the duty that has been so clearly established in the authorities. French CJ and Gageler J said this:

[38]   […] The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that an "appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error" [R v Tait (1979) 24 ALR 473 at 477].

56. Kiefel, Bell and Keane JJ also endorsed the principle, in the following paragraphs (some citations omitted):

[63]   […] In [Everett v The Queen], the factor militating against the grant of leave was the failure of prosecuting counsel to submit that the sentence proposed by the sentencing judge was erroneously lenient. The joint reasons in [Everett v The Queen] approved King CJ's statement of principle in R v Wilton. […].

[64]   The determination of the appropriate sentence is one that rests solely with the court. The public interest in the sentencing of offenders does not permit the parties to bind the court by their agreement. Nonetheless, the prosecutor is under a duty to assist the court to avoid appealable error [R v Tait; Everett v The Queen citing R v Wilton]. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion. The weight of that consideration will depend upon all of the circumstances. A prosecution concession that a non-custodial sentence is an available disposition is a powerful consideration weighing against intervening to impose a sentence of imprisonment on appeal [R v Wilton; R v Jermyn in other cases].

57. The prosecutorial duty recognised in the above cases, particularly as applied in R v Wilton and R v Jermyn, was clearly engaged in this case. It had been submitted on behalf of the offender that an appropriate sentence would not exceed the limit up to which a punishment less severe than full-time custody, an intensive correction order, could be imposed. Crown counsel was of the view that, depending upon what findings the learned judge might make, a sentence of no more than two years to be served by way of intensive correction order might be manifestly inadequate. He was duty-bound to say so. In argument the applicant characterised the prosecutor’s response to the learned judge as “giving a range”. Even if that were a fair description and if the prosecutor’s answer might therefore be deprecated in light of Barbaro v The Queen, that would not be a ground of appeal. But the characterisation is wrong. The prosecutor, with complete propriety and in accordance with his duty, stated the Crown’s position that a sentence of 2 years or less to be served under an intensive correction order may, on one view of the objective facts of the crime, be manifestly inadequate.

58. Ground 4 is misconceived and must be rejected.

Orders

59. The orders of the Court will be:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

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Decision last updated: 02 September 2022