Flentjar v The King

[2023] NSWCCA 303

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Flentjar v R [2023] NSWCCA 303

Hearing dates:

1 November 2023

Date of orders:

01 December 2023

Decision date:

01 December 2023

Before:

Wilson J at [1]
Fagan J at [2]
Sweeney J at [3]

Decision:

1. Leave to appeal is granted.

2. The appeal is dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence — Purposes of sentencing — General and specific deterrence — subjective circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Road Transport Act 2013 (NSW)

Cases Cited:

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

R v Engert (1995) 84 A Crim R 67

R v Millwood [2012] NSWCCA 2

Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 343

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Caleb Flentjar (applicant)
Rex (Respondent)

Representation:

Counsel:
C O’Neill (Applicant)
V Garrity (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2022/060511; 126606

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 115

Date of Decision:

1 February 2023

Before:

Haesler SC DCJ

File Number(s):

2022/060511; 126606

JUDGMENT

1. WILSON J: I agree with Sweeney J.

2. FAGAN J: I agree with Sweeney J.

3. SWEENEY J: Caleb Flentjar seeks leave to appeal against the sentence imposed upon him by Judge Haesler SC on 1 February 2023 in the District Court at Wollongong.

4. The applicant pleaded guilty in the Local Court to a number of offences arising out of two separate incidents.

5. Judge Haesler SC imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years. The sentence commenced on 2 April 2022 and will expire on 1 April 2027. The non-parole period is due to expire on 1 April 2025.

6. The applicant relies on the sole ground of appeal that his Honour erred in failing to reduce the weight to be given to general and specific deterrence by reason of the applicant's intellectual disability, mental health conditions, background of profound disadvantage and youth.

7. The Crown's position was that the sentencing judge did not fall into error.

The offences for sentence

8. There were two sets of offences for sentence, arising out of two separate incidents in December 2021 and January 2022.

9. The offences which occurred on 29 December 2021 were engaging in a police pursuit, contrary to s 51B(1) Crimes Act 1900 (NSW), which had a maximum penalty of five years imprisonment, and driving while disqualified from holding a drivers licence, contrary to s 54(1) Road Transport Act 2013 (NSW), which had a maximum penalty of 12 months imprisonment. The applicant asked that three offences on a Form 1 be taken into account when he was sentenced for the police pursuit offence. They were using an unregistered vehicle, using an uninsured vehicle, and displaying misleading numberplates.

10. The offences which occurred on 29 January 2022 were:

• engaging in a police pursuit contrary to s 51B(1) Crimes Act, with a maximum penalty of five years imprisonment

• aggravated dangerous driving (escaping pursuit) occasioning grievous bodily harm, contrary to s 52(4) Crimes Act, with a maximum penalty of 11 years imprisonment, with two offences on a Form 1 to be taken into account, of taking and driving a conveyance without the consent of the owner and having custody of a knife in a public place

• failing to stop and assist after a vehicle impact occasioning grievous bodily harm, contrary to s 52AB(2) Crimes Act, with a maximum penalty of seven years imprisonment

• driving whilst disqualified from holding a licence contrary to s 54(1)(a) Road Transport Act, with a maximum penalty of 12 months imprisonment

• assaulting a police officer, contrary to s 60(1) Crimes Act, with a maximum penalty of two years imprisonment, because it was being dealt with on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), as if it was being dealt with in the Local Court.

Indicative sentences

11. Judge Haesler SC reduced the sentences that he indicated for the individual offences by 25% for the applicant's pleas of guilty in the Local Court. He indicated the following sentences:

• for the police pursuit offence on 29 December 2021 with the Form 1 matters taken into account, 1 year and 6 months imprisonment

• for the driving while disqualified offence on 29 December 2021, 9 months imprisonment

• for the police pursuit offence on 29 January 2022, 1 year and 10 months imprisonment

• for the aggravated dangerous driving occasioning grievous bodily harm offence with the two matters on the Form 1 taken into account, 3 years 4 months imprisonment

• for the offence of failing to stop and assist on 29 January 2022, 9 months imprisonment

• for the offence of driving while disqualified on that date, 9 months imprisonment

• for the assault police officer offence on that date, 4 months imprisonment.

Remarks on Sentence

12. Judge Haesler SC delivered extempore sentence remarks soon after he completed the sentence hearing. Other than in relation to specific and general deterrence the applicant did not challenge the findings made by the sentencing judge. I will summarise them to the extent necessary.

Facts of the offences

13. Judge Haesler SC summarised the agreed facts, which I summarise as follows.

14. At about midday on 29 December 2021, police performing speed checks on the M1 motorway near Wollongong in an 80km/h zone observed a car exceeding the speed limit. The applicant was driving the car. It was uninsured, unregistered and displaying numberplates that were not allocated to the car. There were two passengers in the car. The applicant was on parole and disqualified from driving but brought himself to the notice of police by speeding. His Honour said that demonstrated the applicant's "immaturity, lack of foresight and lack of concern for himself and others". Police estimated that at times the car was travelling at more than 140km/h.

15. Police pursued the speeding car, with their warning devices activated. Police caught up to the applicant's vehicle at a turn. It appeared that he was going to stop, but he slowed and drove across a painted traffic island. He continued north and accelerated away from the police at well in excess of the speed limit. The police followed.

16. He overtook other vehicles, using the breakdown lane. He merged into other lanes but made no attempt to slow down or stop. As he approached slowing traffic he merged right and overtook on the shoulder. He reached speeds up to 130km/h.

17. He then overtook vehicles on the right shoulder, beeping his horn at vehicles ahead of him. At times he reached a speed of 185km/h. Police terminated the pursuit, given the nature of the applicant's driving and their concerns for the safety of other road users.

18. Soon after, a witness saw the car with its front tyres "hanging off". Three people got out of the car and were recognised by people in the area. The applicant having escaped police, he was not arrested until after the next incident.

19. On 29 January 2022 the applicant was with a friend, who gave him her car keys, expecting him to collect something from her car. Instead he drove off with her car. Later that afternoon, at about 3:13pm, police near Nowra and south of Berry saw the car speeding in a 100km/h zone, travelling at about 130-140km/h. Police did a U-turn and followed the speeding car. They activated their lights and sirens. The applicant failed to stop. Rather, he increased his speed and drove on the wrong side of the road, overtaking many vehicles. At one stage he pulled over. The police thought he was going to stop, but he accelerated off onto the shoulder, overtaking other vehicles. His speed, as he approached Berry, reached 180km/h. At that point, the police, in accordance with protocol, terminated the pursuit due to safety concerns.

20. Shortly afterwards, police saw the car driven by the applicant travelling south on the Princes Highway, speeding. The speed limit at the time due to roadworks was 80km/h. The applicant was travelling in excess of 100km/h. Police obtained permission to reengage the pursuit. The applicant reached speeds of 130km/h in 70 and 80km/h speed zones.

21. While pursuing the car police noticed that pieces of the car's rear tyre were delaminating. The applicant made corrections and manoeuvred the car onto the wrong side of the road. The car lost traction, but was still accelerating. Police then deployed road spikes which deflated three of the tyres. At that time another car was approaching an intersection with a green light. The car driven by the applicant travelled through the intersection at high speed and collided with the passenger side of the other car, where the victim passenger was sitting.

22. On impact both vehicles spun and came to a stop in the middle of the intersection. Police ran to the applicant's car. He left the vehicle and ran, chased by police.

23. A police officer managed to grab the applicant's right leg, but the applicant kicked him in the chest, causing him to fall. That was the offence of assaulting a police officer. The applicant ran to a nearby creek, jumped in, swam to the other side and ran away.

24. Inside the car police found a passenger, a key belonging to the friend who owned the now damaged car and a large silver meat cleaver, the subject of the custody of a knife charge.

25. The passenger in the car with which the applicant had collided was taken to hospital. He had severe pain in his hip, thigh and knee, and the side of his chest. Scans revealed a complex fracture of the left side of his pelvis. His injuries included a displaced pelvic ring fracture and non-displaced fractures to his ribs. His Honour said:

"his injuries… are likely to cause him prolonged pain and distress, and there is a possibility of long-term pain and reduced mobility of his leg. Although I have received no Victim Impact Statement, it takes little imagination to understand the impact – both immediate and future – on the victim of the collision and his injuries.”

Assessment of objective seriousness

26. His Honour assessed the objective seriousness of the police pursuit offence on 29 December 2021 as a serious example of the offence. He said given the time of day, the distance involved, the speeds reached relative to the posted speed limits, the driving out of lanes, the fact that many people were put at risk, the offence was a gross breach of the proper use of a motor vehicle and the Road Rules. Police and others were put at risk. The action showed a “high degree of moral culpability; that can only be reflected in a sentence of some length".

27. His Honour said the offence of driving whilst disqualified on 29 December 2021 showed contempt for the orders of the court and the Road Rules.

28. His Honour assessed the police pursuit offence of 29 January 2022 as he had the earlier police pursuit offence.

29. In assessing the seriousness of the dangerous driving offence, his Honour had regard to the guideline judgment of Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 343. By reference to the guideline judgment his Honour took into account that the applicant was young, the victim was a stranger to him, there was no injury to the applicant or his passenger, the plea of guilty was early but the evidence against him was overwhelming. His Honour said the applicant also put a number of people at risk, given the speed. He took into account that the applicant was, by his own admission, intoxicated with illicit substances; his driving was aggressive and erratic; he exposed others to risk, ignored warnings as he was escaping police pursuit, and despite multiple opportunities to stop, he failed to do so. His Honour said this was a serious example of this type of offence. He accepted submissions from both parties that the dangerous driving offence fell within the middle of the range of objective seriousness (although it was not an offence with a standard non-parole period prescribed). His Honour noted that he was dealing with an aggravated form of the offence.

30. His Honour said the offence of not stopping and rendering assistance after an impact did not lead to a police investigation being compromised or the charge of dangerous driving being avoided, nor could death have resulted from the failure to stop and assist. His Honour considered it was another example of the applicant's "complete lack of concern for others”.

31. Of the assault of a police officer his Honour noted the assault was a kick and “Penalties must be proportionate to the crime committed, but when police are assaulted courts must… attempt to deter this offender and others from similar offending".

32. His Honour said of the Form 1 matters of 29 December 2021 that they formed part of the facts already taken into account and as they would generally result in fines, they would not add significantly to the penalty for the matter for sentence. He said of the Form 1 matters for 29 January 2022 "there must be some increase in sentence to recognise the need for personal deterrence and retribution for the crime for sentence". His Honour noted that the applicant had taken and destroyed a friend's car (the take and drive conveyance offence), and the cleaver was not used, was just found in the car, but should never have been carried.

33. His Honour stated "the objective seriousness of every one of his offences for sentence is so high that custodial sentences must be imposed for each of them”.

Subjective circumstances

34. Judge Haesler SC took into account the following aspects of the applicant's subjective circumstances.

35. Near the beginning of his Remarks on Sentence his Honour said:

"It is also clear from the material before the Court that the matters that led up to the commission of these offences and the background of the offender are… ‘desperately sad’.

In many respects, both the juvenile and adult justice systems have failed [the applicant] and the community. Rather than allowing him, during his time in custody, the opportunity for improvement and rehabilitation, he has been subject to traumatic incidents, including sexual assaults. He has not had any opportunity to learn from or appreciate consequences of his actions. As a result on release he has, almost immediately, fallen in with criminal associates, and returned to crime. He has not been in a position to take up any assistance that was offered to him."

36. The applicant is an indigenous man who has been unable to engage in his culture because "most of his short life [has] been spent in custody.” His Honour noted that he had, since very young, experienced multiple traumas and adverse childhood experiences. In his childhood he witnessed his mother's drug use and violence towards his father. The sexual assaults he experienced, the developmental trauma he suffered, and his adolescent traumas were all taken into account and “given full weight.”

37. Family members introduced the applicant to drugs when he was 11. He spent most of his teens in and out of juvenile detention. He is institutionalised. He has rarely attended school and when he did, he struggled academically. There was an indication the applicant cannot read or write. He has never worked.

38. He was sexually assaulted in juvenile detention at 14 and has not been able to access Victim Services.

39. He has used “copious amounts of drugs during his young life” and never engaged in any form of rehabilitation. His Honour said the applicant's early use of drugs was understandable given his history and family history. That he was affected by drugs during the second incident made him more dangerous to himself and others. His Honour took into account that the applicant was taking buprenorphine to deal with his drug use.

40. A Justice Health psychiatrist, Dr Gerald Chew, reported that the applicant's multiple diagnoses included schizophrenia, intellectual disability, ADHD, ODD, depression, personality disorder, a substance use disorder, chronic problems with self-harm, and a long history of heroin, methylamphetamine and Xanax abuse. Dr Chew said the applicant's multiple psychological and psychiatric symptoms were in the context of developmental trauma including sexual assault. In a psycho-social assessment Ms Rebecca Assaf said multiple traumas had helped to form the applicant's identity and his meaning system was ruptured. She said given his intellectual cognitive deficits, he would require considerable assistance, including trauma treatment and trauma-informed psychological programs.

41. Judge Haesler SC said the applicant's mental illnesses and conditions impacted on his moral culpability. He also noted he was young and immature (being 21 at the time of the offences and 22 when sentenced). His Honour said the applicant's youth and cognitive, emotional and psychological immaturity reduced his moral culpability, his "blameworthiness". His Honour said his personal circumstances, capacity to reason, and lack of education other than in detention or custody, "effectively means that he does not fully appreciate the wrongness of his actions or has the capacity to control his actions”. His Honour said that background must be given “full weight”.

42. His Honour said "A person with a background such as this offender will have fewer emotional or other resources to guide his decisions. Although that does not mean he does not bear responsibility for his actions": R v Millwood [2012] NSWCCA 2 at [69]. His Honour said the applicant's background “has compromised his capacity to mature and learn from experience. Those matters do not diminish over time and will be given full weight”: [92].

43. His Honour noted that the applicant's criminal history indicated that his present offending was not uncharacteristic or an aberration, but rather demonstrated his continuing disobedience of the law. His Honour noted that the applicant's Children's Court matters included two police pursuit offences and he then committed offences of reckless driving and driving while disqualified. He had a history of being in juvenile detention and prison and being released on parole. He had most recently before the offences for sentence been released on parole on 13 December 2021. His Honour considered the fact that the applicant committed the offences while on parole as an aggravating circumstance.

44. His balance of parole continued until 5 March 2023. His Honour commenced the sentence he imposed from 2 April 2022, one month after the applicant was arrested on 2 March 2022 and taken into custody.

45. His Honour said in terms of remorse, the applicant had:

"…little concern for himself, let alone others. I do not think he understands how serious his offending was, but that is partly a product of his cognitive deficits and the trauma he has suffered. He did, however, accept responsibility at the very earliest, and he is aware of the consequence of his actions. I will take those matters into account."

46. His Honour took into account the applicant had had a difficult time in custody. He was in the Special Management Unit, his file was marked "under threat", and he had served most of his time in custody subject to Covid restrictions.

Purposes of sentencing

47. His Honour said:

"While his prognosis remains bleak, every effort has to be made to ensure protection of the community and minimise chance of recidivism: [88].

I have to consider all the purposes of sentencing and recognise the harm done. The offender’s conduct must be denounced, and he must be, despite his background, held accountable for what he did. He has to learn, I hope, the consequences of his actions: [89].

I have to take into account the risk he posed, in both instances, to members of the community and the individual police officers involved. I cannot and do not ignore that, as a consequence of his driving, another man was seriously injured, hospitalised, and may have to endure the pain, stress, and possibly, long-term consequences for [the applicant's] behaviour: [90].

That said, an offender who had a start in life like [the applicant] did, cannot be held to be of equal moral responsibility with one who had what might be described as a normal or advantaged upbringing. That background has left a mark on [him] for all the reasons I have summarised and are detailed in the reports. That background has compromised his capacity to mature and learn from experience. Those matters do not diminish over time and will be given full weight: [92].

Each of the indicated sentences must still, however, retain some reasonable proportionality to the objective circumstances and the seriousness of the offences: [93].”

Submissions to the sentencing judge about specific deterrence and general deterrence

48. The Crown’s written submissions on sentence included the following:

“Although it is acknowledged that there is material before the Court that would permit the Court to exercise its discretion in placing less weight on the principle of general deterrence, it is still an important factor in the sentencing exercise for matters of this type. The Court must send a clear message to the community to deter others from committing offences such as the present offences."

and

“The Crown accepts that the Court, in exercising its discretion, can have regard to the offender’s mental health diagnoses and some weight can be given to an argument that the offender’s moral culpability is reduced and that he is not the appropriate vehicle for general deterrence in the circumstances as per Muldrock and De La Rosa."

49. The written submissions in the District Court on behalf of the applicant included the following:

"General deterrence – guideline for s 52A – R v Musumeci (unrep. 30/9/97) NSWCCA (Hunt CJ quoted by Spigleman CJ in R v Jurisic (1998) 45 NSWLR 209)

Relevant considerations arising:

• Need for public deterrence means youth given less weight as a subjective factor."

and

“In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, McClellan CJ at CL at [177], listed the following propositions:

• where the state of a person's mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence…

• it may also have the consequence that the offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed…

• it may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced…

• it may reduce or eliminate the significance of specific deterrence…

• conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence…"

50. Neither the Crown’s representative or the applicant's representative made any oral submission to Judge Haesler SC about general deterrence or specific deterrence.

Judge Haesler SC’s findings about specific and general deterrence

51. In respect of specific deterrence, Judge Haesler SC said:

“[74] There is evidence that he is doing his time in gaol harder than most, being under threat and in the Special Management Unit. But that does not mean there is no need for special [specific] deterrence. [He] has to understand, somehow, that to continue to behave as he did and put others at risk, can only attract heavier and harsher penalties. And, paradoxically, the risk he posed, and poses, if not given assistance, means that community protection looms large as an issue in these proceedings."

52. In respect of general deterrence, his Honour said:

“[94] A persuasive subjective case cannot lead to an inadequate sentence. Given the objective circumstances here, while those matters are not determinative, there must still be a retributive sentence, others in the community must understand the consequences of behaving as [the applicant] did. While there is a broad discretion, as indicated in Whyte, I must be guided by the application of principle."

The applicant’s submissions on the appeal

53. Counsel for the applicant submitted that the sentencing judge erred by not reducing the weight to be given to specific and general deterrence because of the applicant's tragic and compelling subjective circumstances, but rather his Honour gave particular weight to those two factors. Counsel submitted that in sentencing the applicant his Honour had to reduce the weight given to general and specific deterrence. Counsel submitted that his Honour did not explain how his findings about the applicant's mental illness, intellectual disability, disadvantaged background, and youth and immaturity could be reconciled with his Honour’s findings that the sentence must reflect general and specific deterrence, without moderating the weight given to them.

The Crown’s submissions on the appeal

54. The Crown submitted that reading the sentencing judge's Remarks fairly and as a whole, the judge was not in error in finding that general and specific deterrence still had work to do in sentencing the applicant and that those findings were not inconsistent with the weight his Honour gave to the applicant's strong subjective case and his Honour’s careful consideration of the other purposes of sentencing.

Determination

55. One of the authorities counsel for the applicant relied on was R v Engert (1995) 84 A Crim R 67, in support of the submission that the applicant was not an appropriate vehicle for general deterrence and it was an error to find otherwise. It is worth noting what Gleeson CJ said Engert:

“Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238 as follows:

' … protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.

A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”

56. and

“On behalf of the applicant, it is submitted that his Honour should have paid regard, or greater regard, to a series of cases dealing with the circumstances in which a mental disorder suffered by a person being sentenced may produce the result that considerations of general deterrence are of less importance than they might otherwise be. There was a stage in counsel's submissions when they could have been interpreted as involving the proposition that a person suffering from a mental disorder is, on that account, entitled to a discount when being sentenced. The remarks made at the commencement of these reasons for judgment are intended by way of a response to that proposition.

The circumstance that an offender suffers from a mental disorder may well be of considerable relevance in a number of respects to the sentencing task. One of those respects, depending upon the facts and circumstances of the individual case, may relate to the matter referred to by this Court in the case of R v Scognamiglio (1991) 56 A Crim R 81. At p 86 the passage in a judgment of the then Chief Justice of Victoria was cited with approval. That passage was in the following terms:

‘In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other, but in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given little weight.

…

General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.’

Similarly, in R v Letteri (unreported, Court of Criminal Appeal, NSW, 18 March 1992) Badgery-Parker J said:

‘The principle then is clear enough. It is correctly stated as follows; that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.’

57. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 McClellan CJ at CL set out the now well recognised principles as follows (citations omitted):

“[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner:

Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

It may reduce or eliminate the significance of specific deterrence.

Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.”

58. Counsel for the applicant submitted that it was mandatory for Judge Haesler SC to have reduced the weight he gave to general and specific deterrence in sentencing the applicant. As De La Rosa and Engert make clear, it is a discretionary consideration.

59. A fair reading of his Honour's sentencing remarks show that his Honour was well aware of the multiple aspects of the applicant's tragic and compelling subjective circumstances and took them into account. His Honour was also required, in properly performing his role, to have regard to all the purposes of sentencing, which are:

“(a)  to ensure that the offender is adequately punished for the offence,

(b)  to prevent crime by deterring the offender and other persons from committing similar offences,

(c)  to protect the community from the offender,

(d)  to promote the rehabilitation of the offender,

(e)  to make the offender accountable for his or her actions,

(f)  to denounce the conduct of the offender,

(g)  to recognise the harm done to the victim of the crime and the community.”

(s 3A Crimes (Sentencing Procedure) Act 1999 (NSW)).

60. I do not consider that his Honour’s sentencing remarks, including [74] and [94], where he specifically referred to specific and general deterrence, lead to the conclusion that his Honour placed particular and inappropriate weight on general and specific deterrence in sentencing the applicant. His Honour had a difficult sentencing exercise where the objective seriousness of the offending and the consequences of one offence for a member of the community were in tension with the applicant's youth, disadvantaged background and diagnosed mental health conditions and intellectual disability. The applicant has not demonstrated that his Honour erred in the exercise of his sentencing discretion in such a complex, difficult case.

Orders

61. Therefore I would propose the following orders:

1. Leave to appeal be granted.

2. The appeal be dismissed.

**********

Decision last updated: 01 December 2023