Dipangkear v R

[2010] NSWCCA 156

New South Wales
Court of Criminal Appeal

CITATION:	Dipangkear v Regina [2010] NSWCCA 156
HEARING DATE(S):	12/07/2010
JUDGMENT DATE:	21 July 2010
JUDGMENT OF:	Hodgson JA at 1; Whealy J at 2; Buddin J at 55
DECISION:	1. Time is extended to allow the application for leave to be made. 2. Leave to appeal granted. 3. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Sentencing principles - Sexual assault - Questions of hardship to a third party - exceptional circumstances - Mental illness of offender - Whether failure to take matters into account.
LEGISLATION CITED:	Crimes Act 1900 Drugs Misuse & Trafficking Act 1988
CASES CITED:	Clarke v Regina [2009] NSWCCA 13 per Kirby J Dinsdale v The Queen [2000] HCA 54, [2000] 202 CLR 321 at 330 Cynthia Therese Edwards (1966) 90 A Crim R 510 Lovell v Lovell (1950) 81 CLR 513 at [519] per Latham J R v Girard [2004] NSWCCA 170 at [21] per Hodgson R v Hemsley [2004] NSWCCA R v Hinton [2002] 134 A Crim R 286 R Togias [2001] 127 A Crim R 23 Wirth (1976) 14 SASR 291 at 295-296 The Queen v Verdins [2007] VSCA 102
PARTIES:	Paul Dipangkear v Regina
FILE NUMBER(S):	CCA 2008/19177
COUNSEL:	R. Wilson - Applicant P Miller - Respondent Crown
SOLICITORS:	Greenfield Lawyers - Applicant S Kavangh - DPP
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Knight DCJ
LOWER COURT DATE OF DECISION:	29/05/2009

- 1 -

2008/19177

HODGSON JA
WHEALY J
BUDDIN J

WEDNESDAY 21 July 2010

Paul DIPANGKEAR v Regina

Judgment

1 HODGSON JA: I agree with Whealy J.

2 WHEALY J: Paul Dipangkear (“the applicant”) seeks leave to appeal against a sentence imposed upon him by his Honour Knight DCJ in the District Court of Sydney on 29 May 2009 and for an extension of time in which to apply for leave.

3 The applicant had pleaded guilty to an offence of sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) of the Crimes Act 1900. The maximum penalty for this offence is 20 years imprisonment. There is a standard non-parole period of ten years applicable to the offence. The applicant also asked that a further offence against that section be taken into account on a Form 1. The offence for which he was to be sentenced involved digital penetration of the vagina, and the Form 1 offence involved digital penetration of the anus. Both occurred in the same attack on the victim.

4 The circumstances of aggravation were that immediately before the offence the applicant intentionally inflicted actual bodily harm on the victim. The applicant was sentenced to imprisonment for four years and six months with a non-parole period of two years and three months, special circumstances having been found. The sentence was ordered to commence on 8 February 2009. The non-parole period will expire on 7 May 2011.

CIRCUMSTANCES OF THE OFFENCE

5 On the evening of 19 June 2008, the victim, a young Irish woman aged 24, had left her unit in Botany Road, Waterloo after an argument with her cousin. She was upset and was in the course of attempting to make arrangements to stay at a friend’s place. She used her mobile phone for this purpose. She was also looking for an ATM to get money to pay for the taxi fare to her friend’s house.

6 While she was walking along Botany Road, the applicant, who was a complete stranger to the victim, pulled up in his Ford Festiva motor vehicle and endeavoured to entice her into his vehicle. The victim declined and continued to walk along Botany Road still looking for an ATM. Not content with this rebuff, the applicant again pulled up alongside the victim and again invited her to get into his car. Once again, the victim refused. The applicant then drove off.

7 The victim continued to walk along Botany Road, Waterloo until she reached the Cauliflower Hotel. She was still upset and crying. The applicant drove past her once more. He stopped his car near a driveway to a warehouse. He alighted from the car, seized the victim and attempted to kiss her. The victim resisted and a struggle then ensued. The applicant punched the victim with a closed fist in the face. He hit her in the vicinity of her chin and lip area, and then struck her again on the side of her head. Both her lower lip and the side of her head were injured by the force of these blows.

8 The victim, now clearly upset, attempted to resist any further physical contact with the applicant. However, he was not to be deterred. He pulled down the zip of her jeans and caressed and kissed her breasts. The victim cried out “Please don’t do this”.

9 The applicant pushed the victim to the ground and forcibly undid and tore off her pants. He undid his trousers pulled her legs apart and demanded that she touch his penis. He said to her “We can do this the nice way or my way, I’m a bad man”.

10 The victim repeatedly asked the applicant to leave her alone. It was at this point, when he was unable to maintain an erection, that he inserted his finger into her vagina and pushed it in and out a couple of times. He also inserted his finger into her anus and pushed it in and out a couple of times. The victim was screaming loudly and the applicant covered her mouth with his hand to quieten her. He then left her lying on the ground and walked off to his motor vehicle. As it happened, the victim was able to make a note of the number plate of the applicant’s vehicle and this led to his arrest early the next morning.

11 The victim was taken by police to a hospital. Examination showed that her lower lip was swollen. There were two bruises on it and there was bruising behind her left ear.

12 The applicant was interviewed by police on 19 June 2008. He admitted to driving in the Waterloo area at the time of the offence. He said that he had driven from Darling Harbour after he had finished work at Nick’s Seafood Restaurant and consumed four or five drinks, including two double scotches and a schooner of beer, at a hotel on Botany Road Waterloo. He said he left shortly before midnight but could not remember anything thereafter until he arrived home. He declined to participate in an identification parade.

13 Later, the victim selected a photograph of the applicant as the person who had attacked her. In addition, the DNA analysis taken from the victim matched the applicant’s DNA profile.

14 The sentencing Judge correctly assessed the criminality involved in the circumstances I have described in these terms: -

“It does not need words of mine to indicate that this offence was one of considerable criminality. To assault a woman and then sexually further assault her are offences that any right thinking member of the community would regard with extreme disapprobation. Nothing that I say should be taken as in anyway indicating that I view this as anything other than a very serious criminal offence and one which, notwithstanding some strong subjective factors to which I will refer in a moment, I regard as carrying the only appropriate penalty of fulltime imprisonment”.

15 His Honour continued: -

“However, I should also point out that offences under s 61J cover a wide range of sexual assaults and the present offences being digital penetration of the vagina and of the anus would generally be regarded as of lesser criminality than penis in the vagina intercourse or penis in the anus intercourse. I also point out that although the injuries suffered by (the victim) do constitute actual bodily harm, they are towards the bottom of the range of actual bodily harm. There is no evidence before me that she suffered any bodily harm from the actual intercourse as opposed to the punching that occurred prior to the acts of intercourse. When I say injury of course, I mean physical injury.
Accordingly, I would assess the criminality involved in this offence as being somewhat less than the mid-range for an offence of this nature, that is for an offence under the relevant section 61J(1)”.

16 On an earlier day when the matter was to be heard before Finnane DCJ, the applicant had entered a plea of guilty to the offence. It had been indicated to the Crown a few days earlier that the applicant intended to plead guilty on the hearing date. The trial Judge accepted the plea of guilty, remanded the applicant in custody for sentencing and stood the matter over for hearing before another Judge. It was in those circumstances that Knight DCJ came to be the sentencing Judge on 29 May 2009.

Grounds of Appeal

17 There are two grounds of appeal. These fall within a very limited area. The grounds are: -

(a) The sentencing Judge failed to give proper consideration to the question of hardship to the appellant’s wife and his (then) unborn child.

(b) The sentencing Judge failed to give proper consideration to the mental illness of the applicant.

18 As to the first ground, it focuses on a number of aspects of hardship that were likely to be sustained by the applicant’s wife as a consequence of his being placed in a fulltime custodial situation. (It should be borne in mind, however, that Mr Moralis who appeared for the applicant at the sentencing hearing conceded that a term of fulltime imprisonment was called for. Sentencing transcript at page 19 lines 45 to 50).

19 The circumstances of the applicant’s wife and soon to be born child were dealt with in some considerable detail by the sentencing Judge. The applicant himself was 29 years of age at the time he committed the offences and was 30 years of age at the sentencing hearing. He was university educated and completed his high school education in Bangladesh and tertiary education in 2001. The applicant came to Australia in 2002 on a student visa to engage in further education. He returned briefly to Bangladesh in 2003 to marry his wife with whom he had been in a relationship since 1996. The couple then returned to Australia. In 2005 the applicant graduated with a Masters in Information Systems Management from the University of Queensland.

20 Whilst studying in Australia, the applicant had supported himself by working in the hospitality industry, principally as a chef, and since graduating he had continued to work in that capacity. It was contemplated by the applicant, after his release from custody, he would return to work as a chef.

21 The trial Judge described the applicant’s relationship with his wife as one of “mutual support”. The couple had been unable to have children and as a consequence they had both been engaged for sometime in the IVF program. This had been ultimately successful. At the sentencing hearing the wife was pregnant expecting the baby to be born in August 2009. There was a pre-sentence report before his Honour. This was dated 27 May 2009 and it was completed by Caroline Read, a Probation & Parole Officer at Silverwater. The circumstances of the applicant’s wife are conveniently set out at page 2 of the report: -

“The offender stated that he and his wife both worked part-time to support themselves while he was also studying fulltime, until his wife became ill in 2004 and was unable to continue working, at which point Mr Dipangkear became the sole income earner. He commented that the stress he experienced from this point intensified after he and his wife were told in 2005 that they were unable to conceive naturally and his wife endured chronic pain and several medical procedures (including unsuccessful IVF attempts). The offender stated that he and his wife attempted IVF again, successfully, in late 2008 while he was on bail for the current offence, but commented that his wife had experienced complications throughout the pregnancy. He also commented that his wife is due to have the baby in August and is experiencing financial hardship as a consequence of his incarceration.
Mr Dipangkear reported that although he and his wife did not initially have any family members in Australia they have a supportive network consisting of friends from their home country who have also immigrated to Australia. He stated that his sister-in-law subsequently moved to Australia in 2005 and his brother-in-law moved to Australia in 2007 and resides with the offender’s wife in the community. The offender reported a positive relationship with his family of origin, including his father, before he died in 1985. He stated that prior to entering custody he maintained frequent telephone contact with his mother and siblings in Bangladesh but had not spoken with them since he entered custody on 24 March 2009 as he was ashamed of his offence”.

22 There was also placed before the Court a brief report from Elizabeth Davies, Social Worker at Westmead Hospital. This report dated 25 May 2009 is in the following terms: -

“I am providing the following information at the request of Atashi Maitra. She is booked to have her first baby at Westmead Hospital. Her expected date of delivery is 14 August 2009. Her pregnancy is the result of long-term fertility treatment at Westmead Hospital.
Mrs Maitra is socially very isolated in Australia. She has only one brother in Sydney. Most of her family remain in Bangladesh. Her husband’s incarceration has further increased her isolation and loneliness and exacerbated her distress. Please contact me if you require any further information”.

23 Also before the Court were a number of testimonials and references. One striking feature of this is that the material, as a whole, corroborates that a significant number of people, apparently of Bangladeshi origin, were providing support to the applicant and his wife at the time of his sentence hearing. Ms Maitra’s brother’s testimonial stated: -

“Presently, my sister is seven months pregnant, before three months she had an operation and I have seen how look after Paul to my sister. But now Paul is not here, she is now billeted to take care herself every week she has to go to hospital. Also she do not know how to drive. It’s a very pathetic situation for us. I am a student. I have to go to class four days in a week also working in a restaurant, that’s why I can’t help her financially as well as in the other way. Most of the time I need to stay at my friend’s house for my study”.

24 There were also two reports from Dr Suman Tyagi placed before the sentencing Judge. The second and most relevant of these was a report completed in April 2009. The report confirms that the applicant’s wife had been referred to Dr Tyagi by Canterbury Community Mental Health Department on 26 March 2009. She had been treated for distress and depression in the context of her husband suddenly being placed in custody in Silverwater Gaol (bail refused) after he had pleaded guilty to the sexual assault charges. The report suggests that the applicant’s wife, who had had recent surgery for bowel obstruction, needed ongoing follow up and medical support particularly in view of the fact that she was 21 weeks pregnant and could not cope with “this sudden turn of events”. She was referred to Dr Tyagi for counselling support and was found to be “very isolated, distressed and disturbed”.

25 Dr Tyagi stated that the applicant’s wife did not have any personal and family psychiatric history. She was diagnosed with adjustment disorder (depressed type) after her husband had been caught out in the sexual assault incident in May 2008. She then began taking anti-depressant medication and was given support of counselling through Dr Tyagi’s medical centre.

26 Dr Tyagi’s concluding comments included the following: -

“Mrs Maitra had suffered with depressant symptoms after her husband’s sexual assault incident in May 2008 and took months before she could forgive him and start marital relations with him…she is pregnant and needs more emotional support than before from her husband as she does not have much support in Australia. Mr & Mrs Maitra lost most of their social support since the sexual assault incident in 2008…I believe that Mrs Maitra will be left in a most vulnerable situation if Mr Paul had to serve the sentence in the gaol for a specified period. Mrs Maitra would be on her own to deal with a range of circumstances. She would not have any financial means to care for herself and her baby as her husband was the only earning member in the family. She would not go to work due to her ongoing pain management issues and surgical interventions. Considering her mental state, she will be at risk of relapse putting herself (during pregnancy and also after birth) and her to be born baby at risk and neglect. Due to social and cultural rejection after the incident of May 2008, from the community, it would be very difficult for Mrs Maitra to raise her child that the couple has been waiting to have for the past six years”.

27 Dr Tyagi concluded with a request that the Court might consider releasing the applicant for community service, together with a good behaviour bond on the basis that he did not have any previous criminal history and for other reasons mentioned in the report.

28 The applicant’s wife herself provided the Court with a statement dated 9 May 2009. In this statement, she said: -

“Every day a nurse comes to me for dressing still a nurse comes to me every one day after. At this stage Paul lost his bail and he has to go to custody. Without Paul I am simply helpless. I know him from 1996. He is a very honest and trustworthy husband. When I was all the time he inspired me in various ways. Every Friday we used to go to a temple for pray. All Doctor told us about my pregnancy that it is a 50-50 chance. However, probably we will get a child for the bless of God. This baby is very valuable for us and it is the effect of our long worship. From my physical condition I would not work in future. I have no income support. At the moment I am taking Centrelink benefits, that money is only enough for house rent. I borrow some money Paul’s friend and my sister for my other expenditure. Paul have also a lot of debt and he used to give monthly payment. Now all bills are due. I have no money…without him to survive myself is not possible physically, mentally also financially, I am simply helpless…He very much regrets the offence for what he has been charged. I strongly believe if the charge is given with mercy on penalty with any good behaviour bond, he will never breach it because of his past clean record, devotion and sincerity to me and also his family…I wish to ask that the future of my family and especially of soon to be born baby is taken into consideration by your Honour in his sentencing”.

Response of the Sentencing Judge

29 His Honour dealt with the situation of the applicant’s wife in a thorough and comprehensive fashion. During his remarks on sentence he said: -

“The next matter to which I wish to refer is this. I have had placed before me material which shows that any period of incarceration of you is going to very significantly impact on your wife. In other words, it is going to cause significant hardship to her. That is because she has considerable physical disabilities, including mental problems of a depressive nature. She is very heavily pregnant and due to give birth on 14 August 2009. She is somewhat isolated in this country, and, although she has a brother there are very few in the way of other relatives. She has no financial support and is not eligible, as I understand it, for Centrelink payments because she is awaiting permanent residence in Australia. There is a suggestion that because of her mental and physical situation a newborn child may be neglected.
It was strongly argued on your behalf that, in accordance with R v Edwards, this was a highly exceptional case and I therefore should take into account the hardship to your wife and to your future child when sentencing. It is, I think, quite plain from R v Edwards that it is only when the circumstances are highly exceptional, and where it would be inhuman not to do so, that hardship to others in sentencing can be taken into account. Having said that, there are two other ways in which it can be taken into account. One is as part of the general factual matrix involved in the subjective factors relating to the offences. I certainly take the problems that wife will sustain as a result of your going into custody in that way as part of the general factual matrix.

The second way in which it can be taken into account is in looking at the question of the non-parole period and whether special circumstances have been made out to change the statutory ratio. Again I take your wife’s situation into account in looking at that and it will be a factor that will lead me, amongst others, to find special circumstances in relation to the non-parole ratio in this case. However, I am not satisfied, notwithstanding the arguments that were addressed to me that all the circumstances in this case are so highly exceptional as to take the matter out of the principles set forth in R v Edwards. That is, it seems to me, that while there will be hardship to your wife, that hardship should not be regarded as highly exceptional in this case.”

The principles relating to whether a sentencing Court may take into account hardship to a third party.

30 The sentencing Judge’s reference in his remarks to R v Edwards is in fact a reference to the Court of Criminal Appeal’s decision in Cynthia Therese Edwards (1996) 90 A Crim R 510. This was a case where the relevant principles at common law had been extensively examined. Ms Edwards had pleaded guilty to manslaughter and was sentenced to penal servitude for three years. The sentencing Judge took into account the fact that Ms Edwards was the long-term carer for a 61-year-old patient in an institution. It seems he was a difficult and dangerous patient, and Ms Edwards had achieved greater success than anyone else in caring for him. At least in the short term, it seemed that there would be no one to care for him, if she were sentenced to fulltime imprisonment. The Court of Criminal Appeal disagreed with the sentencing Judge and found that the sentence was manifestly inadequate by virtue of an order allowing it to be served by way of periodic detention. At page 515 Gleeson CJ (with whom James and Ireland JJ agreed) said: -

“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison would more often than not cause hardship, sometimes-serious hardship, and sometimes-extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing Judges and Magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be bread winners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend on their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of fulltime imprisonment”.

31 And again page 516, Gleeson CJ said: -

“The real difficulty about a case such as the present, and many other cases in which imprisonment of an offender causes hardship to a third party, is to identify a ground upon which they can properly and relevantly be regarded as exceptional; regrettably, causing hardship to third parties by the imprisonment of an offender is only too common. Further more, as the Crown pointed out, if a hardship to (the invalid) were to be compared with a hardship that is commonly suffered by the spouse or children of a person sent to prison, it cannot be fairly categorised as exceptional in degree”.

32 Gleeson CJ referred to a frequently cited Australian judgment on the subject. This was the decision of Wells J in Wirth (1976) 14 SASR 291 at 295-296 where his Honour had said: -

“The argument thus presented to us raises the following question: when (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?
…Hardship to spouse, family and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court…it seems to me that Courts would often do less than their clear duty – especially where the element of retribution, deterrence, or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it is often been remarked that the strength of our law lies in the willingness of Judges, when applying a principle, not to carry it past the point where a sense of mercy or an affront to commonsense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so…For example, if it were demonstrated to the satisfaction of the Court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely hearted Judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, Courts should not go”.

33 In R v Togias [2001] 127 A Crim R 23 although dealing with sentencing in the Federal sphere, reaffirmed the continued applicably of the principles to which I have made reference. (See also R v Hinton [2002] 134 A Crim R 286 per Howie J (with whom Wood CJ at CL and Sully J agreed).

34 The present situation of the law, relevant to the present appeal, may be briefly stated as follows: -

(a) Where all the features of the particular case point to the need to impose a custodial sentence but there is evidence of extreme hardship, a court may take into account the extraordinary features of the case in any one of three ways. It may suspend the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased.

(b) Each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person.

35 In R v Girard [2004] NSWCCA 170 at [21] Hodgson JA (with whom Levine and Howie JJ agreed) said: -

“In relation to the children, in my opinion this was not shown to be a case falling within the category of exceptional circumstances as discussed in Edwards . It is certainly a matter of concern, and a matter that can be taken into account as one subjective circumstance in assessing the appropriate penalty that innocent children will be adversely affected by the imprisonment of their parents. However, in the absence of exceptional circumstances, this is not to be taken into account as a specific and particular matter resulting in a substantial reduction or elimination of a sentence of imprisonment”.

36 Girard was a case where both parents had been given fulltime custodial sentence for offences involving contraventions of the Drugs Misuse and Trafficking Act 1988. There were three children, being daughters aged 12, seven and four years. Hodgson JA (at para 23): -

“In this case, in my opinion, the sentencing Judge appropriately took into account the family circumstances. He referred to reports concerning the effect that incarceration of both parents would have on the children and noted this was a sad aspect of the case; and he accepted that children will be affected and sometimes irreversibly affected by the sudden loss of their parents. This remark I take to be referring to children generally and, to that extent, referring to the children in this case; but not as indicating that was a consideration that applied to the children in this case any more than children generally. The sentencing judge also properly took into account that the children were to be looked after by grandparents. There is no reason to think he did not take all those matters properly into account.”

The sentencing judge gave inadequate consideration to the question of hardship to the appellant’s wife and to the (then) unborn child

37 In my opinion, the first ground of appeal must fail. At the outset I should mention that, at the hearing, the applicant abandoned one aspect of this ground of appeal, which had been pressed in the written submissions. This was the suggestion that the sentencing Judge had not given adequate consideration to the question of the applicant’s wife’s “cultural isolation”. This was a concession very properly made by counsel for the applicant. There was an abundance of evidence before the sentencing Judge to show that the applicant’s wife not only had the support of her brother and sister in Australia, there were other families as well who were prepared to stand by her. In addition, the pre-sentence report to which I have made earlier reference referred to the fact that the applicant and his wife had a supportive network consisting of friends from their home country who had also migrated to Australia.

38 Counsel for the applicant also sought to clarify one other matter contained in the sentencing remarks. This was the reference by the sentencing Judge to the fact, as he found it, that the applicant’s wife had no financial support and was not eligible for Centrelink payments. It may well have been that there was a misunderstanding on this point but the applicant’s statement indicated that she was in receipt of Centrelink benefits and that this enabled her to pay her rent. On the hearing of this appeal, counsel for the applicant confirmed that this was so.

39 The principal complaint made at the present hearing was that the sentencing Judge did not adequately address the issue of hardship and did not give adequate reasons for his conclusion that the applicant’s wife’s circumstances (and those of her unborn child), were “not highly exceptional”.

40 In my view, however, the learned sentencing Judge dealt with the issue very adequately and fairly. There is no doubt that the applicant’s wife found herself in difficult circumstances. There is no doubt that the incarceration of her husband would, and no doubt did, create considerable hardship for her. The prospect of that hardship clearly would have a role to play in the birth and early upbringing of the child whose birth was anticipated in August 2009. The sentencing judge noted that imprisonment would have “a very significant impact” on the applicant’s wife. He acknowledged she had “considerable physical disabilities and had mental problems of a depressive nature”. The statement that she was “somewhat isolated” was accurate in the light of the facts I have earlier recited. It is quite clear, however, that his Honour did take into account Ms Maitri’s hardship. He stated quite clearly that he proposed to take her circumstances into account, firstly, as part of the general factual matrix in selecting an appropriate sentence. Secondly, he indicated that he would take them into account as a factor in relation as to whether special circumstances existed. In other words, the sentencing Judge took the hardship of the applicant’s wife and her child into account in two of the three permissible ways mentioned in the authorities.

41 The practical situation that confronted his Honour was that the applicant had committed a crime that plainly called for a reasonably substantial term of fulltime custodial imprisonment. The applicant’s legal representative accepted that this was so. It would not have been possible for his Honour to have given Periodic Detention, provide for a suspended sentence or realistically consider other non-custodial sentencing options. What his Honour clearly did was to reduce the penalty imposed, and to find special circumstances so as to increase the time during which the applicant would be on parole and under supervision. This was done notwithstanding his Honour’s finding that the hardship was not “highly exceptional”. On one view of it, his Honour was overly lenient in this regard as, normally, the two matters of sentencing response he favoured would only be entertained and permitted where the circumstances were in fact highly exceptional The authorities make it clear that it is only in exceptional cases that hardship to others can be taken into account as a distinct matter justifying any substantial modification of an otherwise appropriate penalty. In any event, for the reasons I have stated, the applicant can have no justifiable cause for complaint in this regard.

42 This was a serious offence. His Honour correctly categorised it as one of “considerable criminality”. This young woman was, in effect, pursued through the streets of Waterloo and, when she would not agree to stepping into the applicant’s car with him, she was assaulted in quite a frightening manner on the footpath of the street. There was not the slightest justification for the applicant’s behaviour and his Honour was undoubtedly correct in thinking that a fulltime custodial sentence was required. In my opinion, the applicant was treated leniently by the sentencing Judge for the reasons I have enumerated. Indeed, at the end of his sentencing remarks, his Honour said: -

“Mr Dipangkear, there are just a couple of things I want to say to you. I have treated you in what I regard as a lenient fashion for an offence of this nature because, after all, what you did was pretty terrible as you now recognise. I have done so because I am hopeful that once you come out of gaol, given appropriate supervision and help, you will be able to resume your life as a decent law abiding citizen. Let us see what you can do”.

Ground 2 – The sentencing judge failed to give proper consideration to the mental illness of the appellant

43 In my opinion there is no substance in this second ground of appeal. It may be dealt with relatively briefly. The evidence before the Court was that after he had been released on bail in August 2008 he was prescribed anti-depressant medication. His general practitioner confirmed to the Probation & Parole Officer that he had been assessed on 9 September 2008 and diagnosed with “reactive depression” in relation to his recent imprisonment (prior to his successful bail application) and marital stress. The GP also confirmed that the applicant had been seeing a psychiatrist at Westmead Hospital once or twice per week in conjunction with anti-depressant medication treatment. He was prescribed Avanza, an anti-depressant medication on a daily basis, while in custody following his return to prison on 24 March 2009. The psychological pre-sentence assessment report of Craig Baird, stated that, upon interview he did not detect any signs of mental illness. The applicant was depressed, the report stated, but not depressed to such an extent that required any immediate intervention. The applicant told Mr Baird that he felt some stress, anxiety and some depression at various times throughout his life, for example, regarding the financial struggles of his family in Bangladesh and his wife’s medical condition. However, he did not report any feelings of hostility, or of feeling victimised or resentful. The report did note that the applicant had experienced “significant levels” of depression since being charged for the 2008 sex offence, and it was recommended that he have treatment for his depression.

44 A report of Dr Olav Nielssen of 27 May 2009 was provided to the sentencing Court. This confirms that the applicant did not have any family history of mental illness. He was not aware of being severely depressed at the time of the offence, although he said that, in retrospect, he realised he felt “low” in mood because of the constant financial pressure and worry about his wife’s illness. It confirmed that the applicant became depressed after his arrest and particularly during his time in prison. Dr Nielssen’s opinion states that the applicant was significantly depressed when he examined him and that this was the case since he had been in prison. His ultimate opinion was stated as follows: -

“The diagnosis of depressive illness was made on the basis of Mr Dipangkear’s account of typical symptoms of depression and his presentation at interview, when he appeared quite depressed. He reported symptoms of depression prior to the offence in the form of sleep disturbance, fatigue, anxiety symptoms and pessimistic thought. However, the more severe symptoms have only emerged since being charged and he is currently receiving treatment with anti-depressant medication prescribed by his general practitioner”.

45 There was also a report from Dr Tyagi concerning the applicant’s depression. Essentially, it noted that he had become depressed since the commission of the offence, and during his time in custody prior to release on bail. Dr Tyagi advised the applicant to continue his medications and to practice breathing and muscle relaxation exercises. He stated that the applicant continued to present with depressive symptoms due to the fear of leaving his wife “in the times when she needed him most”.

46 The submissions of Mr Wilson of counsel for the applicant suggested that the sentencing Judge had to take into account the applicant’s depression in one of a number of specific ways. Reference was made in the submission to the decision of the Court in R v Hemsley [2004] NSWCCA where mental illness may be relevant to sentencing in four possible ways:-

“Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may be not then the same call for denunciation and the punishment warranted may accordingly be reduced (case references omitted).
Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration (case references omitted).
Thirdly, a custodial sentence may weigh more heavily on a mentally ill person (case references omitted).
A fourth and countervailing consideration may arise, namely the level of danger, which the offender presents to the community. That may sound in special deterrence.”

47 The sentencing Judge dealt with the matter quite briefly. He said: -

“You have no previous criminal offences of any nature whatsoever and you have therefore not been in custody prior to the commission of these offences. All in all it is a history of a man who has been of good character up to the present time, who has been intelligent and applied himself at a level of sustained intellectual endeavour at tertiary level.
You are now suffering from depression and are taking anti-depressant medication. I have had placed before me appropriate reports from Dr Nielssen psychiatrist and also a psychological report which is attached to the pre-sentence report. It is quite apparent that, at the time you committed these offences, you were distressed and probably depressed because of the inability between you and your wife to have children and the problems that your wife was experiencing of a health’s nature. I am also satisfied that she too suffers from mental difficulties.”

48 It is perfectly clear that this was not a case where the applicant’s low level of anxiety or depression as at June 2008, arising from his wife’s illness and inability to have a child at that stage played any significant level of contribution to the commission of the offence. It was certainly not a major contributing factor. Nothing in the evidence suggests to the contrary. In the same way, it could not possibly be said that the plaintiff’s more severe reactive depression, brought about by his feelings of guilt and anxiety following the commission of the offence, rendered him an inappropriate vehicle for general deterrence or, for that matter, specific deterrence.

49 In my view, the sentencing Judge adequately addressed each of these issues and the lenient sentence the applicant received demonstrates they were properly taken into account. (See Clarke v Regina [2009] NSWCCA 13 per Kirby J (with whom Grove and Blanch JJ agreed) at [22]; Lovell v Lovell (1950) 81 CLR 513 at [519] per Latham CJ; Dinsdale v The Queen [2000] HCA 54; [2000] 202 CLR 321 at 330). It could not be said that there has been a failure to exercise a discretion entrusted to the sentencing court.

50 Finally, although the fact that the applicant suffered depression in gaol would have some impact on his experience of custodial life, this was moderated by the fact that he was receiving regular treatment for depression in custody and would be likely to do so throughout the remainder of his time in prison.

51 It is quite clear that the applicant’s reactive depression had been brought about as a consequence of his own actions in committing the offence. The same may be said of the natural concern he had arising from the fact that he would have to endure fulltime custody and not be available to help his wife or their newborn baby when it was born. These also were matters, in my opinion, the trial judge adequately took into account in imposing the lenient sentence he did.

52 The final submission made on the applicant’s behalf was that the decision in the Victorian Court of Appeal in The Queen v Verdins [2007] VSCA 102 has expanded the ways in which mental illness may be taken into account on sentencing. I doubt that this is so but in any event, for the reasons I have given, the trial judge did not fall into any error in this regard.

53 I would reject the second ground of appeal.

54 The orders I propose are: -

1. Time is extended to allow the application for leave to be made
2. Leave to appeal granted.
3. Appeal dismissed.

55 Buddin J: I agree with Whealy J

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