Director of Public Prosecutions (Acting) v CBF - [2016] TASCCA 1

[2016] TASCCA 1

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1

PARTIES:  ACTING DIRECTOR OF PUBLIC PROSECUTIONS
  v
  CBF

FILE NO:  CCA 644/2015
DELIVERED ON:  29 January 2016
DELIVERED AT:  Hobart
HEARING DATE/S:  12 November 2015
JUDGMENT OF:  Tennent, Porter and Estcourt JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Attempted murder, attempted rape, aggravated assault and aggravated burglary – Young offender with impaired mental health – Weight to be given to evidence about impairment – Relevant considerations – Crown appeal in circumstances where evidence about mental health not sought to be clarified or challenged before sentencing judge.
R v Verdins (2007) 16 VR 269, applied.
Director of Public Prosecutions v O'Neill [2015] VSCA 325, considered.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  L Mason
             Respondent:  C Gunson
Solicitors:
             Appellant:  Acting Director of Public Prosecutions
             Respondent:  FitzGerald and Browne

Judgment Number: [2016] TASCCA 1
Number of paragraphs 88

Serial No 1/2016
File No CCA 644/2015

ACTING DIRECTOR OF PUBLIC PROSECUTIONS v CBF

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
PORTER J
ESTCOURT J
29 January 2016

Order of the Court

Appeal dismissed.

Serial No 1/2016
File No CCA 644/2015

ACTING DIRECTOR OF PUBLIC PROSECUTIONS v CBF

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

TENNENT J
29 January 2016

I have had the benefit of reading in draft form the reasons of Porter and Estcourt JJ. I agree substantially with those reasons and would also dismiss the appeal.

File No CCA 644/2015

ACTING DIRECTOR OF PUBLIC PROSECUTIONS v CBF

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER J
29 January 2016

Introduction

This is a Crown appeal against sentence. The respondent pleaded guilty to charges of aggravated burglary, aggravated assault (an assault with intent to rape), attempting to commit rape and attempting to commit murder. Those crimes were committed during the one incident on 23 November 2013 when the respondent was 17 years old, and represented a violent attack on a 17 year old female in her home.
On 4 June 2014, Blow CJ sentenced the respondent to 4½ years' imprisonment to take effect from 23 November 2013, and ordered that he not be eligible for parole until he had served one half of that sentence. His Honour also made an order under the Community Protection (Offender Reporting) Act that the respondent's name be placed on the register, and that he comply with the reporting obligations for a period of 10 years from the date of sentence.
I have had the advantage of reading the reasons for judgment of Estcourt J. His Honour has set out the facts of the offending and the impact on the complainant as described by the sentencing judge, and the sentencing judge's comments which directly relate to the sentence imposed. There is no need for me to repeat any of that detail, but a short summary is convenient, to which I will add some additional information.
The respondent and the complainant had been at school together but were bare acquaintances only. The respondent went to the complainant's home and entered uninvited. He had armed himself with a pair of scissors that he apparently found outside. The attack commenced in the complainant's bedroom where she was on the bed. The respondent produced the scissors, jumped onto the bed, held the scissors to her throat and tried to pull down her pyjama trousers and underwear. When she resisted, he said, "Do it or I'll kill you". Twice he grabbed her round the throat and squeezed until she had difficulty breathing. The complainant managed to extract herself and go to the kitchen.
There, the respondent approached her from behind and stabbed her three times with a kitchen knife, first to the left upper chest, secondly to her right side, and lastly in her stomach, close to the navel. The respondent stabbed the complainant several more times, including about three times to the back and at least once to the neck. She managed to grab the knife from him, suffering a deep cut to her hand as a result. He grabbed her by the hair, causing her to fall to the floor, upon which he hit her around her head with the glass lid of a frying pan until it shattered. He then picked up another knife and tried to force it down her throat, causing a cut to her tongue. The attack continued with the respondent going outside, taking a wrench from a tool box, which he ultimately threw at her, hitting her on the side of her head.
The complainant's mother then drove into the driveway of the house, at which point the respondent ran to, and jumped over, the front fence but returned. When the complainant's mother told him that she was calling the police, he said words to the effect of, "It's not me doing this, it's someone else. I've got a problem." He then waited for the police to arrive and he was arrested.
During the course of the attack the respondent was speaking in a way which made no sense to the complainant. He told her that she was playing with him, and that he had been trying to get her. Later, he said that he had tried hard to get her many times but she had rejected him. In the kitchen, after he had stabbed her in the stomach, he said words to the effect of, "I need help, there is someone else inside me. Call the police. I need help."
The complainant suffered severe injuries requiring surgical procedures and a total of nine days in hospital. She underwent lengthy rehabilitation. She has a lot of scarring, continuing breathing problems and significant psychological difficulties. Those psychological difficulties included anxiety and panic attacks. The complainant has physical limitations on what she can do and says she is not able to work. Plainly enough, the impact on her has been very significant and should not be understated or overlooked.
The respondent had no recorded history of offending, no history of alcohol or drug use, nor of violence or other misbehaviour. The sentencing judge had a number of references and reports that related to the respondent's previous character and to his behaviour in Ashley Detention Centre after his arrest. There were three references from persons in authority at the respondent's college, and one from the mother of a close friend of the respondent. All persons expressed the high regard in which the respondent was held. He is described as polite and considerate, hardworking and a high achiever, both academically and at sport. All seem somewhat shocked at the respondent's behaviour and all describe it as out of character. There were four reports from people in supervisory and educational roles at Ashley. These people describe the respondent's conduct and attitude as excellent and attest to outstanding study results.
I should add that the respondent himself suffered rather serious injuries in the attack. He sustained serious cuts to both hands. It is a little unclear but surgical tendon repair was required for the wounds on at least the right hand. These wounds seem to have been sustained accidently. There is no specific suggestion that they were self-inflicted.

The respondent's mental health

A prominent issue in this case is the respondent's mental health at the time of the offending, and its connection to that offending. At the sentencing hearing, the respondent's counsel tendered a number of psychiatric and psychological reports. None of this material was challenged by the Crown. These reports included ones from an eminent forensic psychiatrist, Dr Ian Sale, dated 27 November 2013, and 27 April 2014. There was also a report from Mr Brad Mertens dated 11 July 2014. Mr Mertens was the respondent's treating psychologist before the incident giving rise to the charges. His report includes a number of reports from his practice to the respondent's treating medical practitioners. Before sentencing the respondent, the sentencing judge obtained a report from Community Forensic Health Services. That report was provided by Dr Teresa Flower, a consultant psychiatrist, on behalf of the Clinical Director of Forensic Mental Health Services. Neither party sought to call Dr Flower to give evidence.
The following detail of the respondent's history is taken from Dr Sale's second report. There is a family history of mental health problems including a maternal aunt who has been subject to psychotic symptoms and periods of dissociation. During September 2012 the respondent started to experience seizures. These took variable forms, ranging from minor "absences" to incidents where there were whole body movements. The respondent denied recall or awareness of these, nor warning that they were about to happen. Specialist assessment was carried out. The respondent was under the care of a paediatrician and a neurologist. Various investigations were performed but no specific abnormality was found. Trials of medication, including anti-convulsants, had no impact. At one stage the respondent was prescribed an anti-depressant medication. Treating doctors formed the view that the seizures were psychogenic in origin, and the respondent was referred to a psychologist.
A few weeks after the onset of seizures, the respondent exhibited the appearance of psychiatric symptoms, including an apparent change of personality reported by others. Initially this took the form of a young child, to whom a specific identity was later ascribed by the respondent and his family; Kane. Later, other personalities emerged who were identified as Eugene and Michael. The respondent did not report the presence of Michael until after the incident. The respondent also reported complex hallucinatory experiences, including visions of deceased female relatives. The respondent also reported auditory hallucinations taking the form of whispers and growling sounds rather than formal speech, and at times he experienced other unusual sensory experiences, including smells and touching. The psychological treatment focussed on providing assistance in managing anxiety, which was assumed to be a factor in the seizure episodes.
In his second report of 27 November 2014, Dr Sale says that the respondent and the respondent's mother had researched the possibility that the respondent suffered from dissociative identity disorder. The mother had spoken to her sister who was said to experience similar problems. Doctor Sale notes that there is accordingly a clear belief within the family network that such a disorder existed, even though mental health professionals had tended to downplay the possibility.
In his first report of 27 November 2013, Dr Sale's "very provisional" diagnosis was that of dissociative identity disorder, with the psychiatric situation being unusual and complex by requiring thorough assessment and treatment. In his second report, about a year later, Dr Sale was still reluctant to embrace the diagnosis. He said that there was no indication that the respondent's problems were contrived, the difficulty clearly being apparent before the incident leading to the charges, and he had received extensive investigation and treatment for some aspects of these difficulties. As to the seizures, it is worth noting that they continued for a short time after the respondent was taken into custody; one happened whilst in court on 25 November 2013, resulting in admission to a hospital psychiatric unit.
Doctor Flower's report is very comprehensive. Her diagnosis is that the respondent suffers from "Major Depressive Disorder with anxiety (in remission since March/April 2014) [and] Narcissistic Personality Disorder". Dr Flower says that from the time of first interview, the respondent consistently maintained that he had no memory of events, reporting that he suffered from dissociative identity disorder, and that "Michael" was responsible for the offending. However, in April 2014, he told a psychologist that he was starting to remember the incident and was able to give a very full account of the day of the assault when seen on 1 May 2015. He was able to recall much of the detail, but was apparently unable to explain his motivation. Counsel for the respondent raised with the sentencing judge as to whether the recollection was a true recollection, or a reconstruction from the Crown papers, but did not urge a conclusion.
It is worth setting out relevant parts of the report, in which I have de-identified the respondent. At page 7, Dr Flower says:
"… C's history does not really suggest the conditions under which Dissociative Identity Disorder would arise. At Ashley C has presented as a somewhat narcissistic and histrionic young man whose interest in Dissociative Identity Disorder has diminished since this no longer appeared to be of assistance to him in mounting a defence. My initial impression was of a factitious disorder; however it may be more generous to think of C's adoption of the disorder as resulting from the modelling of a family member; his maternal aunt. It does not appear that C 'invented' the disorder to excuse his conduct but that he was already using the mechanism of different personalities as a way of expressing distress. The emergence of the personalities was immediately preceded by a bout of seizures, subsequently found to be psychogenic in origin. It is interesting to note that C has used what are often termed 'hysterical' means of expressing distress. Both the pseudo-seizures and the invention of other personalities suggests that C struggles to express emotions that he finds distressing."
Later in the report, Dr Flower says:
"It is difficult to understand what led to C going to [the complainant's] house; there may have been an element of dissociation involved. C himself denies planning the incident and he does not appear to have gone to her house equipped with the means to harm her and his choice of weapon appears to have been opportunistic. There seems to be no evidence of substance abuse clouding his judgment. It may be that he did have some feelings of sexual attraction towards [the complainant] and this is why he visited her and when faced with her he was reminded of his recent rejection by his girlfriend which made [the complainant] an object for his rage.
The assault was very serious and whilst C has expressed abhorrence at what occurred he has not truly expressed remorse, but tends to view the action as something that is out of character for him and therefore has tended to ignore responsibilities for his actions. My discussions with C have tended to focus on what the future holds for him and the ways of finishing his education and commencing a pathway to employment at some point in the future; this very much fits with a narcissistic personality. It is to be hoped that now he has disclosed his version of events some work can commence on examining the factors that led to his offending. However, I am concerned about the grandiosity and excitement that accompanied his description of the crime and that this could lead to him deriving a sense of importance from the seriousness of his offence.
C will require a great deal of psychological work in order for him to understand why he committed this offence … In view of C's history of no prior offending and no antisocial behaviour such as violence towards peers or substance abuse and positive factors such as his high intelligence and athletic prowess, with adequate psychological assistance, his prospects for rehabilitation should be good. His mental health is generally good and he certainly appears to derive benefit from [an anti-depressant] and I would not recommend ceasing medication at least for a further 12 months, although there may be an argument for him remaining on [the medication] indefinitely … ."
In his comments on sentencing, the sentencing judge referred to the respondent displaying a variety of psychiatric symptoms, particularly anxiety, and the suffering of psychogenic seizures, along with the reported multiple personalities and complex hallucinatory experiences. He noted there were times when the respondent would lapse into apparent unconsciousness. His Honour noted that during the respondent's time at Ashley Youth Detention Centre, he had been diagnosed as suffering from a major depressive disorder with anxiety, although that condition had been in remission now for over 12 months, and there was also a diagnosis of a narcissistic personality disorder. His Honour said that the respondent had been taking anti-depressant medication since January 2013, and would require a great deal of further psychotherapy; "He does not understand why he attacked the complainant. His prognosis is uncertain. [He] has expressed abhorrence at what he did. He wishes to overcome his psychiatric problems."
Immediately before passing sentence, his Honour said:
"Finally, the crimes that Mr CBF committed were extremely serious. If he were an adult offender without mental health problems I would impose a very long prison sentence on him. Because of his mental health problems, this is not an appropriate case for me to impose a sentence that is designed to deter others from violent sexual attacks. Because he is young, the emphasis should be on his rehabilitation. However his crimes were so serious that a substantial sentence of imprisonment is the only appropriate penalty. Because of his age and his mental health problems, I will impose the shortest possible non-parole period."

The appeal – discussion

The sole ground of appeal is that the sentence is manifestly inadequate. The appellant invites this Court to view the incident as involving two stages or episodes, the second of which involves the crime of attempting to commit murder. It is submitted that both involve serious examples of the types of crime. I do not need any persuading that the respondent's conduct was gravely brutal and with serious and lasting consequences for the complainant; so much can be readily accepted.
In support of the ground of appeal, the appellant referred to the range of sentences for the crime of attempting to commit murder, imposed between 1990 and 2000. Excluding one notorious case involving 20 counts, that range was imprisonment for between three years and 10 years; the median being five years. That range is also to be found in 12 or so cases in the subsequent 15 years, excluding one sentence of 15 years, and one of 20 years, both for two counts.
That does not advance the matter much at all, for reasons which have been stated many times. To start with, such a range is merely a statistical one; it is not a range of sentences for comparable offending. Even if it were, this sentence is within that range. If it were not within such a range, that fact would still not be determined if, as a sentence outside the range of comparable offending, simply serves to increase the level of scrutiny given to the sentence, in order to determine whether it is a disproportionate and unreasonable response to the circumstances of the case. A "tariff", in the sense of a range, is but one factor to be taken into account.
Despite accepting the proposition that individual past sentences only provide assistance in terms of the principles endorsed within them, the appellant placed much store in the sentence of eight years' imprisonment imposed in the case of SK, Crawford CJ, 19 November 2009. In that case, a 15 year old youth used a hatchet to attack his former girlfriend, a person of the same age, at a pre-arranged meeting place. He struck four blows to the back of the complainant's head intending to kill her, and left the scene. It was accepted that the intention to kill was formed just before the first blow. SK suffered from mild depression but with some fantasies of grandeur, and had some obsessive personality traits leading to feelings of a need to control.

In order to avoid any apparent endorsement of the approach of comparing one case with another, I do not propose to say anything much about the case of SK. While it is true that consistency in sentencing is something to be strived for, manifest excessiveness or manifest inadequacy is not to be determined by comparing one case with another, and the exercise is not assisted by such comparisons. Consistency is not demonstrated by, and does not require, numerical equivalents. The consistency that is sought is consistency in the application of relevant legal principles: Hili v The Queen (2010) 242 CLR 520 at 535 [48], [49]. As to SK, suffice it to say that there are some material differences.
That leads me to another point which arose in the appellant's submissions. The appellant's underlying argument is that the sentence in this case failed to properly reflect the factors of general deterrence and denunciation. When questioned, the appellant's counsel said that the appellant did not assert that a sentence involving any additional time in actual custody was called for. Counsel accepted that what would have been appropriate was a head sentence in the order of that imposed in SK, or slightly more, with the execution of such part of it suspended so as to reduce the time of actual custody to the 4½ years imposed, and with a non-parole period of one half of that term to be served.
The orthodox view suggests that the suspended part of that sentence would of itself amount to real punishment, and one which would reinforce the rehabilitative aspect of the sentence. On the other hand, to the extent that the respondent's sentence was widely publicised, the deterrent effect of the head sentence with the execution of effectively half being suspended, might be seriously questioned, given what is widely recognised as the public view of suspended sentences: see Director of Public Prosecutions v Broadby, Cockshut and Woolley [2010] TASCCA 13 per Evans J at [9]-[10]. The appellant's position as to what would have been an "acceptable" exercise of the discretion is not determinative, but may be of some relevance in assessing whether the sentence is manifestly inadequate.
The last thing I want to mention is the approach taken to the evidence about the respondent's mental health. In the sentencing proceedings, counsel for the respondent, (not the one who appeared in the appeal), did not put to the sentencing judge that he could be satisfied that the respondent's condition affected his mental functioning at the time of the offending in such a way as to reduce moral culpability.
What counsel said was that the reports would give his Honour some significant insight into the respondent's medical background:
"… it is still an open question – it's not been resolved by the medical professionals who reviewed him – as to whether this psychiatric background played any and if so what specified role in the commission of the offence. … [H]e was certainly a person who had suffered significant psychological or psychiatric issues up until that point."
Crown counsel (who also appeared for the appellant), while addressing his Honour in reply about some aspects of the reports did not deal with the issue of the causative connection between any mental health condition and the offending. Crown counsel made submissions discounting the existence of a dissociative identity disorder and put that the sentencing judge could safely conclude that the seizures were the consequence of stress and anxiety.
In the appeal, the appellant sought to limit the extent of the respondent's mental condition to that of anxiety and depression. It was submitted that there was no evidence of anything untoward before the respondent arrived at the house, that he was then in a stressful situation in which he had placed himself, and reacted violently. Accordingly, at least as I understand the submission, the respondent had not shown that his culpability was in any way reduced.
In the appeal, the counsel for the respondent specifically embraced the proposition that his moral and criminal culpability must be reduced by reason of his mental condition. The written submissions contain the following:
"The circumstances in which the offending occurred, the particularly unusual comments made by the respondent to the complainant at the time of the offending, what the respondent told the complainant's mother before police arrive, and indeed that he remained at the crime scene to surrender to police are all highly suggestive that the respondent was suffering from a serious psychiatric condition or episode at the time of the offending."
The respondent submits that the sentencing judge was correct to consider that the respondent's moral and criminal culpability were reduced, and also to consider that issues relating to general deterrence were of little importance in the sentencing process.
Accordingly, a large part of the debate was whether the sentencing judge was right in being satisfied, as it appears he was, that the respondent's mental condition contributed to the offending so that moral culpability was reduced, and the respondent was not an appropriate medium for making an example to others.

Is the sentence manifestly inadequate?

It is well established that psychiatric illness or impaired mental function is relevant to the sentencing process in a number of ways. Perhaps most commonly, such conditions may substantially lessen moral culpability because of consequential diminished self-control and impaired judgment, or it may be that factors of general deterrence, retribution and denunciation have little weight: Muldrock v The Queen (2011) 244 CLR 120 at 139 [54]; Hurd v The Queen [1988] Tas R 126 at 129, 131. In R v Tsiaras [1996] 1 VR 398 at 400, the court set out five ways in which serious psychiatric illness not amounting to insanity is relevant to the sentencing process. Those principles were reconsidered and restated by Maxwell P, Buchanan and Vincent JJA in R v Verdins (2007) 16 VR 269 at 276. That restatement was adopted in Startup v Tasmania [2010] TASCCA 5, and reads as follows:
"[32]   Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
1   The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2   The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3   Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4   Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5   The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6   Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."
Important features of this approach to impaired mental functioning are as follows. The considerations are not confined to a 'serious psychiatric condition'. They may arise in the case of mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness: Verdins at 271 [5]. Further, a court is not concerned with how a particular condition is to be classified or defined in terms of diagnosis or a label to be applied: "What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time": Verdins at 271 [8]; see also R v Sebalij [2006] VSCA 106 per Maxwell P at [21]. It is always necessary to consider how the particular condition affected the mental functioning of the offender at the time of the offence, and how it might affect the person in the future. Further, the question must always be whether, in the particular case, it has been shown that the offender's moral culpability or the significance of general specific deterrence is reduced because of the condition: Romerov The Queen (2011) 32 VR 486, per Redlich JA (Buchanan and Mandie JJA agreeing) at 490 [13]. The onus is on an accused: R v Skura [2004] VSCA 53 at [8]; Verdins at 272 [11].
After the present appeal was heard and the Court reserved its decision, the Victorian Court of Appeal (Warren CJ, Redlich and Kaye JJA) delivered a joint judgment in Director of Public Prosecutions v O'Neill [2015] VSCA 325. The case was properly brought to this Court's attention by Crown counsel with the assent of counsel for the respondent. I am grateful for the reference. Although neither party wanted to make any further submissions in light of it, there are some aspects which warrant noting. At par [68], their Honours said that it was clearly inappropriate to apply a mechanistic approach that, because an offender is said to suffer from impaired mental functioning, the Verdins principles are thus attracted; "Such an approach is overly simplistic, and erroneous." Their Honours said that careful consideration needs to be given as to whether the evidence establishes that mental capacity has been impaired and whether which of the circumstances set out in Verdins are engaged. That required a rigorous evaluation of the evidence.
Further observations included the following. Notably, at par [71], the court stressed that the principles set out in Verdins are enlivened only where the offender suffers from an impairment of mental functioning. The consequences will depend on the nature and severity of that impairment. For the second, third and fourth principles enunciated in Verdins to have application, there must be a connection between the impairment to mental functioning and the appellant's moral culpability or the need for general and specific deterrence. If the mental impairment exists at the time of the offending, it must have some "realistic connection" with the offending, or have "caused or contributed" to the offending, or be "causally linked" to the offending: [74]. Next, to show the necessary connection to the offending and to enliven limbs 1 to 4 of the Verdins principles, the offender must establish that the mental impairment affected his or her ability to appreciate the wrongfulness of the conduct, or obscured the offender's intent to commit the offence, or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence: [75]. Careful consideration needs to be given to whether the evidence establishes mental impairment, with the Crown having an important role in identifying any inadequacy in expert opinion, and challenging it if necessary: [80]-[81].
The court in O'Neill was dealing with a Crown submission that it is not any abnormality or psychological idiosyncrasy causally linked to the offender's behaviour which will enliven the Verdins principles and warrant a moderation in sentence. The offender in that case was described as suffering from a dependent personality disorder with prominent features of narcissistic personality disorder. It was held that there was no evidence that he suffered from an impairment of mental functioning, and that the personality disorders identified did not attract the operation of the principles.
That case is quite different from this one. As to the nature and effects of the respondent's condition, the sentencing judge was entitled to act on the unchallenged material before him. That material painted a rather complex picture but neither party sought to call the authors of the reports to clarify any aspect. The sentencing judge was entitled to give weight to the things the respondent said during and immediately after the attack, the full description of the respondent's mental condition as described in the reports, and Dr Flower's diagnosis. The respondent's statements to the complainant and the complainant's mother are of particular weight. Both Dr Sale and Dr Flower expressly did not endorse the proposition that the respondent's apparent difficulties were contrived or invented. Although the precise mechanisms by which the respondent's condition caused or contributed to the offending may have remained unclear, a finding, on the balance of probabilities, that the respondent was suffering significant mental impairment, and that this was operative at the time of the offending in a relevant way was plainly open.
The sentencing judge was faced with a very difficult task. The problem of dealing with offenders suffering from a psychiatric illness or mental impairment and who have committed serious offences was described by Brennan J in Channon v The Queen (1978) 33 FLR 433 at 436-437 in the following way:
"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem on one view to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another."
As I have noted, the sentencing judge was dealing with offending of an undeniably high level of seriousness. That incorporates the nature of the crimes and their effect on the victim. At the same time, he was dealing with a mentally impaired youth who had otherwise demonstrated excellent character and who had previously shown no propensity for violence or any other type of misconduct. The prospects for the respondent's rehabilitation with appropriate help and treatment were shown to be good. The sentencing judge could reasonably have concluded that an individualised approach was justified, and that the respondent was not an appropriate medium for the expression of general deterrence and denunciation.
It is of course true, as the appellant points out, that all of the crimes involved specific intentions, including an intention to murder. However, that of itself does not mean that a finding cannot properly be made of diminished responsibility reducing moral culpability. Gilchrist v The Queen serial no 82/1982 is a relevant example. By majority, a sentence of seven years for the attempted murder of a woman with an axe was set aside and a sentence of four years substituted, on the basis that the sentencing judge had failed to give adequate weight to the appellant's diminished responsibility through mental impairment.
To me, the conclusion that the sentence is manifestly inadequate is not one immediately drawn, and I have given the matter close consideration. The type of sentence as suggested by Crown counsel might have been reasonably taken, but what I would or might have done is irrelevant. When considering the sentence the order under the Community Protection (Offender Reporting) Act should not be overlooked. I am not persuaded that, taking account of all of the circumstances, the sentence is such that it clearly shows an error in the sentencing process. I would dismiss the appeal.

File No CCA 644/2015

ACTING DIRECTOR OF PUBLIC PROSECUTIONS v CBF

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

ESTCOURT J
29 January 2016

The appeal

This is an appeal against sentence.
On 4 June 2015, Blow CJ sentenced the respondent under the pseudonym of Mr CBF.
The respondent had pleaded guilty to four charges relating to a violent attack on a teenage girl on 23 November 2013.
The charges were aggravated burglary, aggravated assault (namely, an assault with the intention of committing the crime of rape), attempting to commit rape, and attempting to commit murder.
The learned sentencing judge convicted the respondent and sentenced him to 4½ years' imprisonment with effect from 23 November 2013. His Honour ordered that the respondent not be eligible for parole until he had served half of his sentence.
The appellant has appealed on the sole ground that the sentence was manifestly inadequate.

The law relating to the appeal

In her book, K Warner, Sentencing in Tasmania, 2^nd ed, The Federation Press, 2002, at 440, Professor Warner has said, on the subject of the basis of appellate review of sentencing in this State:
"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) 55 CLR 509 at 519] and Harris [(1954) 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."
As I have remarked in the past in appeals such as the present, where the sole ground is manifest excess or manifest inadequacy, bearing Professor Warner's caveat in mind, I will content myself with setting out what Porter J said in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34]. His Honour there observed:
"31      For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'
32        In Dinsdale v R (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:
'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted.]
33        Later, in Wong v R (above) at [58] Gaudron, Gummow and Hayne JJ said:
'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'
34        In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. …"

In Griffiths v The Queen (1977) 137 CLR 293 at 310, Barwick CJ said:
"Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle".

The facts

In passing sentence the sentencing judge set out the circumstances of the respondent's offending as follows:
"On the day in question both Mr CBF and the complainant were 17 years old. They had attended the same school in grades 7 and 8. Mr CBF had some contact with the complainant during 2011, particularly through Facebook. They saw a movie together during 2011, but ceased contact with one another during that year. Between then and the day in question, it appears that they saw each other only once, when Mr CBF showed up at her home during June 2013. He did not stay long on that occasion.
On the morning of 23 November 2013 Mr CBF again went to the complainant's home uninvited. He armed himself with a pair of scissors that he found at the rear of the property, and entered the house without permission. He has pleaded guilty to the crime of aggravated burglary on the basis that he entered the house as a trespasser, intending at the time of entry to commit a crime – either rape or assault or both. That was why he had armed himself with the scissors.
The complainant was alone in the house. Mr CBF went into her bedroom, where she was taken by surprise. Without speaking, he pulled out the scissors, jumped onto her bed, and held the scissors to her throat. Then he spoke. He told the complainant that she was playing with him, and that he had been trying to get her. His words made no sense. She was wearing pyjama trousers, with underwear underneath. He began to pull those garments down. The complainant resisted, trying to push him away with her hands, and attempting to kick him. He said words to the effect of, 'Do it or I'll kill you.' The complainant began screaming and told him to go away, but he would not let go of her. He let go of the scissors and began to strangle her, with both hands around her neck. This hurt her, and she had trouble breathing. Mr CBF said words to the effect of, 'I tried so hard to get you so many times but you rejected me.' He continued to squeeze her throat until she could not breathe properly. Then he stopped. She managed to take a few breaths, and began to resist. He grabbed her around the throat again. From time to time he let go of her throat and attempted to pull her pyjama pants down. Eventually the complainant told him that she needed a drink of water. He allowed her to go to the kitchen, but followed her, holding the hood of a jumper that she was wearing.
While she was drinking a glass of water in the kitchen with him behind her, he stabbed her without warning to the left upper chest with a kitchen knife. Then he stabbed her a second time, to the right side, in the area of the ribs. Then he stabbed her to the stomach area, close to her navel. She was screaming. She tried to grab the knife from him. He said words to the effect of, 'I need help. There is someone else inside me. Call the police. I need help.' The complainant told him that she would call the police. He stabbed her several more times, including about three times to the back and at least once to the neck. The complainant managed to grab the knife and pull it from his hands, suffering a deep cut to her left hand as a result. Mr CBF grabbed the knife back from her, sustaining a deep wound to one hand. The knife broke, and he dropped it. He then grabbed the complainant by the hair and caused her to fall to the floor. He grabbed the glass lid of a frying pan and hit her around the head with it until it shattered. He took another knife, and tried to force it down her throat. She suffered a cut to the tongue. She bit down on the knife. Mr CBF let go of it, walked outside, and seized a wrench from a toolbox with the intention of beating the complainant with it. She held a kitchen chair in front of herself for protection, so he threw the wrench at her. It hit her on the arm and the side of her head, causing pain and dizziness. At this point the complainant's mother drove into the driveway of the house and Mr CBF jumped over the front fence.
However he did not flee. The complainant's mother told him that she was calling the police. He said words to the effect of, 'It's not me doing this. It's someone else. I've got a problem.' He waited for the police to arrive. They arrested him and he has been in custody ever since." (Emphasis added.)

The impact on the complainant

In passing sentence the sentencing judge referred to the impact of the respondent's attacks upon her and upon her mother as follows:
"When the police arrived, the complainant was having difficulty breathing, and was going in and out of consciousness. She was taken to hospital by ambulance. Some of her injuries were life-threatening. Amongst other things, she had suffered a penetrating abdominal wound that involved the severing of the left inferior epigastric artery and two lacerations to the small bowel. She underwent an emergency laparotomy. The small bowel and the artery were successfully repaired. Other surgical treatment comprised the repair of a wound to the left eyelid, the cleaning and stitching of wounds on both hands, the cleaning and stitching of back and neck wounds, and the insertion of a tube into the space around the right lung to drain blood and air. The complainant remained in hospital for nine days. Thereafter she needed outpatient treatment of various kinds, including physiotherapy, wound care, ophthalmology, treatment for psychological problems, and attention from general surgeons and plastic surgeons.
The complainant continues to have psychological problems. I will not go into detail about them. She has a lot of scarring. She has not been able to work since the attack because of fitness and health problems. Her breathing has been affected.
These crimes have placed burdens on the complainant's mother. She initially had to clean up the blood in her kitchen, and has since had to look after an injured and disturbed daughter in various ways, including taking her to a lot of medical appointments."

The comments on passing sentence

On passing sentence the sentencing judge said:
"Mr CBF has no prior convictions. He has no history at all of drug use, violence or other misbehaviour. He is an intelligent young man. He was very highly regarded at his school. He excelled at school until mid-way through year 9, when he developed glandular fever. Thereafter, he displayed a variety of psychiatric symptoms, particularly anxiety. He suffered psychogenic seizures. He reported having multiple personalities, and complex hallucinatory experiences. There were times when he would lapse into apparent unconsciousness. He complained of problems with memory. He changed schools a couple of times. Home schooling was attempted. He had been seeing psychologists for over 12 months when he committed these crimes.
Since his arrest about 18 months ago, he has been at the Ashley Youth Detention Centre. Over that period, his behaviour has been exemplary. He is regarded there as a model student, and a very sociable young man. He has received treatment there from a psychologist and a psychiatrist. He has been diagnosed as suffering from a major depressive disorder with anxiety, though that condition had been in remission now for over 12 months, and from a narcissistic personality disorder. He has been taking antidepressant medication since January of last year. He will require a great deal of further psychotherapy. He does not understand why he attacked the complainant. His prognosis is uncertain. If he is taken from Ashley and placed in the adult prison system, he will be at risk of abuse and bullying, and might not have the same opportunities for education and rehabilitation. If he remains at Ashley, where he is older and brighter than most of the detainees, there could be difficulties in relation to grandiosity and narcissism.
Mr CBF has expressed abhorrence at what he did. He wishes to overcome his psychiatric problems. He decided at an early stage not to apply for bail. By pleading guilty, he has avoided the need for the complainant to give evidence, and saved the State the cost and inconvenience of a trial. There appears to be little chance of him re-offending, but there was little chance of him doing what he did in the first place. Because I cannot rule out the possibility of him re-offending, I will have to make an order placing his name on the sex offenders' register. I think it prudent to order that he comply with the reporting obligations for persons on that register for 10 years.
Plainly, the crimes that Mr CBF committed were extremely serious. If he were an adult offender without mental health problems, I would impose a very long prison sentence on him. Because of his mental health problems, this is not an appropriate case for me to impose a sentence that is designed to deter others from violent sexual attacks. Because he is young, the emphasis should be on his rehabilitation. However his crimes were so serious that a substantial sentence of imprisonment is the only appropriate penalty. Because of his age and his mental health problems, I will impose the shortest possible non-parole period. This may be a case in which the Parole Board should order a lengthy period of parole in order to facilitate the treatment of Mr CBF's psychiatric problems. I will backdate his sentence to the date of his arrest." (Emphasis added.)

Manifest inadequacy

In my view, to adopt the words of Gleeson CJ and Hayne J in Dinsdale (above) "inadequacy is not plainly apparent". Or, to adopt the words of Kourakis J (as he then was), in A, MC v Police (above), the sentence is not by reason of its inadequacy unreasonable or plainly unjust.
I accept the submission made by counsel for the appellant, Ms Mason, that it is not the individual past sentences that provide assistance to the exercise of sentencing discretion, but the principles endorsed within them (DPP (Acting) v Morgan [2015] TASCCA 11, per Wood J at [31]).
I am also conscious, as Hunt CJ at CL said in R v Ellis (1993) 68 A Crim R 449 at 461:
"What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range."
Having said that however, in my view, the facts and circumstances in SK (19/11/2009) are sufficiently similar to the present case, that, at first blush, one might suspect, as Barwick CJ put it in Griffiths v The Queen above, that there has been a gross departure from what might be regarded as the "norm", and as such, there has been an error in point of principle.
Crawford CJ sentenced SK to eight years' imprisonment as compared to the 4½ years' imprisonment imposed on the respondent by Blow CJ.
Four significant mitigating factors in this case were the respondent's youth, his absence of any prior convictions, his plea of guilty and his mental health issues. The same factors existed in SK.
In SK the comments on passing sentence by Crawford CJ reflected the well-known principles that are also thrown up in the present case, namely, that sometimes the seriousness of the offence requires greater significance to be focussed on general deterrence and just punishment than on the youthfulness of the offender, the required focus on rehabilitation and the absence of prior convictions, (R v Tran (2002) 4 VR 457; DPP (Acting) v Morgan (above) at [38]), and that an offender's mental health is relevant to the exercise of the sentencing discretion whatever the seriousness of the crime or crimes may be (R v Tsiaris [1996] 1 VR 398; R v Verdins (2007) 16 VR 269 at [32]; Startup v Tasmania [2010] TASCCA 5).

The facts of Tasmania v SK

In SK Crawford CJ set out the relevant facts as follows:
"K pleaded guilty to attempted murder.
The crime was committed on Sunday, 15 March 2009. He was 15 years old, as was the female victim.
They were fellow students at a high school. He was in grade 9 and she in grade 10. She became the girlfriend of a fellow male student who was a friend of the accused. He did not like her and made that known to a number of friends. He did not want his friend to go out with her.
About two weeks before the crime, the friend broke off his relationship with the girl. She was very upset about that and sent her ex-boyfriend many text messages.
The accused lived at Glenorchy. On 15 March he had weekend work that commenced at 6.30am. Prior to leaving for work, he packed two hatchets in a backpack, and during the day he texted the girl, saying that he would like to meet her to help sort things out. He arranged to meet her after he finished work. He caught a bus from Glenorchy to Bridgewater and met her, by arrangement, in a remote area at a wastewater treatment plant next to the River Derwent. She considered him to be a friend and had enjoyed hanging around with him and her ex-boyfriend.
The girl has no memory of what occurred and most of the factual basis for sentencing has come from the accused's interview with the police.
The Crown does not seek to establish that he intended to kill her when he first went to work that day. However, I am compelled to find that he contemplated using a hatchet against her as early as that. There is no rational explanation for him arming himself in the way he did and arranging to meet her where he did. At the hearing on 2 October, he declined to give or call evidence to establish that there was.
He told the police that he became extremely angry and asked her if anyone would miss her if she was dead. She said that she doubted that anyone would. He then removed one of the hatchets from his backpack and struck her with it in the back of her head, intending to kill her. She fell and rolled down a slope, coming to rest on dirt and rocks just above the high water mark. Ignoring her screams and begging of him to stop, he went down and struck her head three more times with the hatchet.
Thinking that he had killed her, he put the hatchet back in his backpack and walked away. However, he became concerned that she might not be dead and returned to take possession of her mobile telephone to prevent any possibility of her using it to call for help.
When her concerned grandmother texted to the mobile telephone, he texted back with a message that the girl would be home soon.
It seems that he may have been proud of what he had done. Certainly he was unable to keep it to himself. The next day at school, when news was about that the girl was missing, he said to a fellow student that he had killed her with an axe and had her telephone to prove it, displaying the telephone. However when the other became upset, he said that he was joking.
At 12.45pm that day, the girl was found on a bench seat in the grounds of the high school, having somehow managed to get herself there. That was about 22 hours after the crime. She was taken to hospital. Later, he disclosed to his friend, the ex-boyfriend of the girl, that he had hit her on the head with a hammer-type object, that she rolled down the hill and she begged him not to hit her again and that her begging drove him to in fact do so. He stated that he hit her about nine times and then rolled her over and took her mobile telephone.
No doubt acting upon information they had received, police went to his home two days later. They found the backpack and hatchets behind his bed. They also found the girl's mobile telephone. About an hour later they arrested him where he was working.
That evening he was interviewed in the presence of his mother for a little over three hours. For the first 2½ hours he denied any involvement, even in the face of the statements of the two fellow students to whom he had made admissions. It was only after police put to him his telephone records and the fact that they had found the girl's telephone in his backpack that he admitted what he had done. He admitted to having contemplated being violent towards her before he went out to meet her but had not believed that he would be capable of it, asserting that the formation of an intention to kill only occurred just before he struck her for the first time. The following morning he went with the police to the scene and showed them where the crime occurred."
The significant material differences between the facts in SK and the present case are that in the present case the respondent did not leave the complainant for dead but remained at the scene and, unlike SK, the respondent did not deny he committed the attack. There is also a difference in the degree of premeditation, but in the present case it must be remembered that it is the fact that although the respondent did not pick up the knife until he was in the kitchen, he had armed himself with a pair of scissors before entering the house with at least rape or assault in mind, and that potentially, at that initial stage of the attack, he was not exhibiting floridly dissociative behaviour. A matter to which I will return.

The impact on the complainant in SK

In SK Crawford CJ recounted the complainant's injuries and their impact as follows:
"The victim suffered multiple blows to her skull and had a large wound in the back of her head. There were two identical depressed skull fractures three centimetres apart, extensive bruising to the scalp and underlying bruising to the brain, particularly to her frontal lobes. There was also considerable bruising to her arms and legs. She was in hospital for about three months. It appears that she suffered damage to the frontal lobes with resulting changes to her personality. She has become more aggressive and has difficulties with concentration. Because improvement from such injuries usually takes a long time, it may take a number of years before her final condition will be known, but the effects of the crime on her are considerable. Her memory has been badly affected. She appears to have lost much of her power of self-control and frequently becomes extremely angry towards objects, abusive and short tempered. She has problems with concentration and communication. Substantial weight gain has affected her self-esteem. She has been unable to attend school but receives some form of distance education. She misses very much going to school and having friends. Two disability workers assist with her care on weekdays. She takes anti-seizure medication."
It can be seen that the complainant's stay in hospital in that case was much longer than in the present, and of course, the injuries and their sequelae differ. However, at the level of abstraction required for present purposes both victims suffered horrendous injuries and their lives permanently changed as a result.

The circumstances of the offender in SK

In SK Crawford CJ said of the offender:
"He has demonstrated limited remorse. A consultant psychiatrist, who examined him about six weeks after the crime, said that at first glance there was a disturbing lack of expression of it. The psychiatrist thought that it may have been due to the fact that it is part of his character that he has difficulty freely expressing emotion. It was pointed out that there was nothing in his history in the way of irresponsible or antisocial behaviour to suggest that he is simply a callous psychopath. The forensic psychiatrist who saw him more recently commented that he expressed limited remorse or empathy for his victim. However, his counsel said that two days before the first sentencing hearing he was first told of the full extent of the injuries suffered by the girl and he very much broke down, and presented as devastated and very remorseful for what he had done to her.
The information before the Court suggests that has almost always been in control of his life and what he does. He is intelligent and received excellent high schools reports. His last, in December 2008, said that he was a polite, friendly and co-operative student who was successful, both academically and on the sporting field. He was said to be always conscious of the need to complete all set class work and demonstrated a high level of maturity. His class teacher and grade supervisor referred to him as a very good student, popular and one who would help other people when in trouble. They are dismayed and at a loss to understand his commission of the crime.
Since the crime, the Ashley school has reported that he is capable of achieving a very high standard of education and that his participation and attitude during his education sessions have been outstanding. He is described as genuinely likable and as having formed positive relationships with staff and students. His behavioural performance at Ashley is said to have been outstanding.
It appears that in the few months leading to the commission of the crime he was experiencing a degree of boredom at school and was insufficiently challenged. Those feelings may have played some part in his decision to commit the crime. The recent psychiatric report suggests that he may also have experienced an insidious mild depressive state. It also reveals that he developed fantasies of grandeur and imagined himself as a 'genius' who could commit a serious crime and avoid detection.
He presents with some obsessional personality traits, and according to the forensic psychiatrist, typically obsessionality predisposes to feelings of needing to control and can lead to over-controlled emotions. He displays signs of narcissism, highlighted by a grandiose sense of superiority, a preoccupation with being a success, a tendency towards being exploitive, a lack of empathy and mildly arrogant attitudes. There is no evidence that he suffers from a psychiatric illness or that there is an emerging antisocial attitude."

Again, at the appropriate level of abstraction, similarities to the present case are present. Both youths were model students at Ashley Detention Centre and were sociable and demonstrated exemplary behaviour. SK however, although displaying signs of narcissism, did not suffer from a diagnosed psychiatric illness. The respondent in the present case had formal diagnoses of Major Depressive Disorder with Anxiety and Narcissistic Personality Disorder, and in addition he had a confirmed history of psychogenic seizures and the non-factitious invention of different personalities as an hysterical means of expressing distressing emotions.

Discussion

Crawford CJ described the conduct of SK as "a chilling crime, a horrific one", its consequences for its victim as "dreadful". His Honour described the sentencing task as a difficult one. All of those things are true of the present case but with the additional complication of the respondent's mental health issues.
I do not wish to be understood as suggesting that a single dispositive feature of the present case is its similarity to one previous sentence. I do note however the importance of consistency in sentencing. In Harland-White v The Queen [1998] TASSC 999 at [3], Underwood J (as he then was) said:
"However, there is no rule of law that requires a sentence to fall within the range of sentences previously imposed for any particular crime. The sentencing discretion is unfettered by statute. The only requirement of the common law governing the exercise of that discretion is that all the relevant considerations must be taken into account and all irrelevant considerations must be excluded. A relevant matter is that there must be consistency in punishment. (Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611)."
In Burling v Tasmania [2007] TASSC 104 at [9] Underwood CJ said:
"Prior sentences set a framework to which reference should be made, and properly used, that reference will assist maintenance of the consistency principle, but in each case, sentence must be determined having regard to the gravity of the criminal conduct, its impact on, and consequences for, those affected by the conduct, and the circumstances of the individual offender."
In the present case I have also considered, quite divorced from any comparison with SK, the very grave nature of the criminal conduct, its impact on, and consequences for, the complainant, and the individual circumstances of the respondent. I have also considered the range of sentences for a single count of attempted murder, of between three and 10 years.
I accept the submission of counsel for the respondent, Mr C Gunson, that the sentencing judge was faced with a difficult sentencing conundrum. He had a youthful offender with mental health problems who had committed serious crimes.
Ultimately, I am persuaded by the submission of counsel for the respondent that the sentencing judge was correct in observing that because of the respondent's mental health problems, as outlined by his Honour in his comments on passing sentence, which, unlike SK, included recognised psychiatric disorders as well as mental illness not in the psychiatrist's taxonomy involving the psychogenic seizures and dissociative behaviour I have already mentioned, this case was not an appropriate one in which to impose a sentence that was designed to deter others from violent sexual attacks.
I accept the submission that once his Honour had, to the extent he did, removed general deterrence from the sentencing matrix for the reason he did, the appeal loses traction because it cannot then be simply asserted that the sentence is manifestly inadequate.
It is correct to say, as submitted by counsel for the respondent, that the respondent's moral and criminal culpability must be reduced by reason of his mental condition.
Even though the formal diagnosis of the respondent's recognised psychiatric disorders were a Major Depressive Disorder with Anxiety and a Narcissistic Personality Disorder, one must have regard to the other observations of psychiatrist Dr Teresa Flowers, whose report was before the sentencing judge. Those observations related to the psychogenic seizures and the non-factitious invention of different personalities that I have already mentioned. Those observations included a comment that it was difficult to understand what led to the respondent going to the complainant's house, but "there may have been an element of dissociation involved".
Mr Gunson observes in his written submission, correctly in my view, that:
"The circumstances in which the offending occurred, the particularly unusual comments made by the respondent to the complainant at the time of the offending, what the respondent told the complainant's mother before police arrived, and indeed that he remained at the crime scene to surrender to police are all highly suggestive that the respondent was suffering from a serious psychiatric condition or episode at the time of the offending."
Bearing in mind that the onus of proof of matters favourable to the respondent is on the balance of probabilities, those matters enumerated by his counsel, taken together with Dr Flowers' observations, and the fact that the offending was truly out of character for the respondent and lacked any adequate motive, provide a sufficient basis in, my view, to have enabled the sentencing judge to have drawn the inference that the respondent's mental health issues existing in addition to depression, anxiety and narcissism, were a cause of the respondent's criminal behaviour.
The sentencing judge did take into account the observations of Dr Flowers I have just mentioned. His Honour said:
"He excelled at school until mid-way through year 9, when he developed glandular fever. Thereafter, he displayed a variety of psychiatric symptoms, particularly anxiety. He suffered psychogenic seizures. He reported having multiple personalities, and complex hallucinatory experiences. There were times when he would lapse into apparent unconsciousness."
Those features of the respondent's mental health problems were not simply historical, they continued to exist and the sentencing judge cannot sensibly be taken, having referred to them, as then excluding them from his comment made shortly afterwards in his sentencing remarks:
"Because of his mental health problems, this is not an appropriate case for me to impose a sentence that is designed to deter others from violent sexual attacks."
The first of the six principles in R v Verdins (2007) (above) dealing with impaired mental functioning, whether temporary or permanent is engaged in this case. That principle is that:
"The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective."
The Court in Verdins accepted that these sentencing considerations were not applicable only to cases of "serious psychiatric illness" and also said at [8]:
"The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time."
These considerations, together with the respondent's youth and thus the weight to be given to the aspect of rehabilitation, lead me to the conclusion that the sentence of 4½ years' imprisonment is not, by virtue of its inadequacy, unreasonable and plainly unjust. No error is patent. The sentencing judge adopted a principled approach to sentencing and, armed with a proper understanding of those principles and of the nature of the criminal conduct, its impact on the complainant and the individual circumstances of the respondent, community expectations in sentencing would, in my view, be met.
The sentence is within range and there is, in my view, no unjustifiable discrepancy with the sentence in SK or any of the other cases I have considered. In any event, as Wood J said in Connelly v Tasmania [2015] TASCCA 15 at [5], albeit in dissent as to the result:
"The correct approach to seeking consistency with sentences imposed in other cases is well-established. The consistency that is sought is not demonstrated by, and does not require, 'numerical equivalence', but rather, consistency in the application of the relevant legal principles: Hili at [48] and [49]. By considering the circumstances that have given rise to the sentence, unifying principles may be discerned. Previous sentences encapsulate the 'accumulated wisdom and experience of first instance judges and appellate courts': Hili at [48]-[54], quoting Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [303]. Sometimes a history of sentences can establish a range of sentences. Even if there is an established range, that history does not mean that the range is the correct range, or that the upper or lower limits are the correct upper and lower limits: see Hili at [48]-[54], again quoting Simpson J in DPP (Cth) v De La Rosa at [303]-[304]. Moreover, an established or discernible range has not been established for attempted murder. In Burling, Underwood CJ at [18] stated that, 'having regard to the wide variety of conduct constituting the crime it cannot be said that there is really any 'tariff' for the crime of attempted murder'".

Disposition

I would dismiss the appeal.