James v The Queen - [2021] NSWCCA 23

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: James v R [2021] NSWCCA 23
Hearing dates: 1 December 2020
Date of orders: 03 March 2021
Decision date: 03 March 2021
Before: Brereton JA at [1]
Bellew J at [85]
Campbell J at [91]
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed in the District Court on 19 February 2020 and in lieu thereof sentence the applicant to a term of four years imprisonment, with a non-parole period of nineteen months and five days, dating from 1 August 2019, so that he is eligible for release to parole on 5 March 2021.

Catchwords:
CRIME – Appeals – Appeal against sentence – Aggravated break and enter and steal – Whether sentencing judge erred in failing to take into account the extent and severity of the applicant’s mental conditions – Whether sentencing judge erred in failing to determine whether and to what extent the applicant’s mental conditions reduced his moral culpability for his offending behaviour

Legislation Cited:
(NSW) Crimes Act 1900, s 112(2)
(NSW) Crimes (Sentencing Procedure) Act 1999, ss 10, 10A, 11, 44(2)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Clarke-Jeffries v R [2019] NSWCCA 56
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61
Hung v R [2019] NSWCCA 303
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

Texts Cited:
Nil

Category: Principal judgment
Parties: Matthew Christopher James (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Barrow (Applicant)
M Kumar (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/343135
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 February 2020

Before:

Delaney ADCJ

File Number(s):

2017/343135

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, who has a significant psychological impairment and a borderline IQ, with very low cognitive ability (falling into the bottom 2%-5% of the population), impaired executive functioning skills (falling into the bottom 1%-4% of the population), and level one to two Autism Spectrum Disorder, pleaded guilty to the offence of breaking and entering and committing a serious indictable offence in circumstances of aggravation, contrary to s 112(2) of the Crimes Act 1900 (NSW), and was sentenced in the District Court to a term of four years imprisonment, with a non-parole period of two years. He sought leave to appeal from the sentence on the grounds that the primary judge erred in failing to take into account the extent and severity of his psychological conditions and in failing to determine whether and to what extent they reduced his moral culpability, and on the ground that the sentence was manifestly excessive.

Held, granting leave to appeal, allowing the appeal against sentence, quashing the sentence imposed by the District Court and in lieu thereof sentencing the applicant to a term of four years imprisonment with a non-parole period of nineteen months and five days: [84] (Brereton JA).

1. (Per Brereton JA; Bellew J and Campbell J agreeing) The sentencing judge did not appropriately recognise the full extent of the applicant’s significant intellectual disability, nor appropriately assess the applicant’s moral culpability in light of it. The significance given by the sentencing judge to denunciation and retribution was inconsistent with the principle that reduced mental and intellectual capacity substantially lessens an offender’s moral culpability and renders the denunciatory aspect and retributive effect of a sentence inappropriate. The psychological evidence established a powerful case justifying departure from the ordinary statutory proportion between the non-parole period and the term of the sentence as provided by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): [51]-[73] (Brereton JA).

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Aslan v R; [2014] NSWCCA 114; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, applied.

2. (Per Brereton JA; Campbell J agreeing) While the offending was objectively serious, the applicant’s intellectual disability; his positive response to his initial period of custody; his good prospects of rehabilitation; the very harsh conditions of his incarceration as illustrated by further evidence adduced on appeal; the unavailability to him in gaol of psychological and psychiatric assistance essential to his rehabilitation; and other matters; all supported a significantly longer than usual period of supervision after he completes fulltime custody, and provided an uncommonly strong constellation of special circumstances justifying a very substantial departure from the statutory proportion between the non-parole period and the term of the sentence, reducing the non-parole period to 19 months, being 40% of the head sentence: [74]-[82] (Brereton JA); [91] (Campbell J).

3. (Per Bellew J, dissenting) While error has been established and the re-exercise of the sentencing discretion by this Court is required, a reduction of the non-parole period to 40% of the head sentence is not appropriate. Rehabilitation cannot be the sole or even primary consideration, while in the present case the objective seriousness of the offending and the applicant’s criminal history were both substantial: [85]-[90] (Bellew J).

R v Simpson (2001) 52 NSWLR 704; [2001] NSWCCA 534, referred to.

Judgment

BRERETON JA: The applicant Matthew Christopher James was sentenced in the District Court, having pleaded guilty in the Local Court, for the following offence, contrary to (NSW) Crimes Act 1900, s 112(2):

“That Matthew Christopher James on the 25^th day of October 2017, at Chatswood, in the State of New South Wales, did break and enter the dwelling house of Angus ….. situate at ………………….., Chatswood, and then in the said dwelling house did commit a serious indictable offence, to wit, stealing in circumstances of aggravation, to wit, in company with Corey Fahey and one other unknown male.”

The maximum penalty for the offence is twenty years imprisonment, and there is a standard non-parole period of five years. On 19 February 2020, Delaney ADCJ sentenced the applicant to a term of four years imprisonment, with a non-parole period of two years, dating from 1 August 2019, so that he would be eligible for release to parole on 31 July 2021.
The applicant seeks leave to appeal from the sentence, on the grounds that:

his Honour erred in failing to:

take into account the extent and severity of the applicant’s mental conditions; and

determine whether and to what extent the applicant’s mental conditions reduced his moral culpability for his offending behaviour; and

the sentence is manifestly excessive.

Agreed facts

The applicant was sentenced upon agreed facts, which may be summarised as follows. Together with Fahey and the unknown third offender, he travelled to the victim’s address in Chatswood on the early afternoon of 25 October 2017. The victim, aged 16, was home alone and asleep in his bedroom, which was directly accessible from outside through sliding glass doors. The applicant and his co-offenders entered the victim’s bedroom. Demands were made for cannabis. The victim told the offenders that he no longer supplied cannabis and did not have any to give them. He was punched ten times in the face, mouth, and chest, and dragged off his bed. One of the offenders threatened to stab him if cannabis was not provided. The offenders removed from the victim’s bedroom a laptop worth $3,000, which contained all the victim’s HSC music work, including compositions; an Apple iPad; an iPhone 5S; and the victim’s wallet containing his licence, an Opal Card, and $20. They left the victim’s bedroom and house via a glass sliding door, having been there for less than five minutes.
Police were called and the victim was observed to have suffered a small cut to his lip. Forensic testing revealed the applicant’s fingerprints on the entry and exit point of the premises. The victim’s iPad was located in the possession of the co-offender Fahey on 29 October 2017. Fahey made admissions to police at that time that he was involved and that he had “jumped on the victim’s head, punched him in the head and kicked the victim in the face”. Fahey nominated the applicant as having been involved. Fahey also told police that he had stolen the iPad, the laptop, the phone, and the money.

Criminal and custodial history

At the time of the offence, the applicant was 19 years of age. He then had no previous convictions, but he was on bail in respect of charges for resisting an officer in the execution of his duty and assaulting an officer in the execution of his duty (on 7 August 2017), and common assault (on 7 July 2017). Those matters were finalised on 8 January 2019, as described below.
Subsequent to being charged with the current matter on 13 November 2017, the applicant was charged with resisting or hindering an officer in the execution of his duty; going onto or into or remaining on running lines; and intentionally throwing an object at a vehicle (on 29 December 2017). These matters were finalised on 26 July 2018, as described below.
Meanwhile, on 18 April 2018, he was charged with an offence of common assault (on 16 April 2018), for which he was sentenced on 8 January 2019, as described below.
On 26 July 2018, he was dealt with in Sutherland Local Court for the offences of 29 December 2017 (resist or hinder officer in execution of duty; go onto or into or remain on or in running lines; and intentionally throw object at vehicle) by way of bonds pursuant to (NSW) Crimes (Sentencing Procedure) Act 1999, s 10, and conviction without other penalty under s 10A. Conditions of the bonds included consulting his general practitioner, his psychologist, and a psychiatrist; taking medication as prescribed; and continuing to engage in counselling with Odyssey House.
On 1 December 2018, he was refused bail after being charged with affray and assault occasioning actual bodily harm in company, and was thereafter in custody.
On 8 January 2019, he was dealt with in Burwood Local Court for the offences of 7 August 2017 (resist officer in the execution of duty; assault officer in execution of duty), and was fined $500 and placed on a twelve month Community Correction order, requiring him to participate in psychological intervention and supervision and to abstain from alcohol and drugs. That order expired on 7 January 2020.
On 24 May 2019, he was convicted of the offences of 1 December 2018 (affray; assault occasion actual bodily harm in company; and a third offence). He was also called up for breach of the 26 July 2018 bond in respect of the offences of 29 December 2017 (resist or hinder officer in execution of duty; and intentionally throw object at vehicle). He was sentenced to an aggregate term of twelve months imprisonment with a non-parole period of five months and 24 days dating from 1 December 2018, so that he was released from custody on the day he was sentenced in the Local Court, having been in custody for five months and 24 days. On 21 October 2019, his conviction for the third offence was quashed on appeal, and the overall sentence was quashed and substituted with a further two year Community Correction Order.
Following his release from custody on 24 May 2019, he had committed no further offences prior to being sentenced for the instant matter, in respect of which he first appeared for sentence in the District Court on 22 June 2018; however, the matter was adjourned several times until it came before Delaney ADCJ on 23 October 2019, with the sentence ultimately being imposed on 19 February 2020.

The psychological evidence at the sentencing hearing

Before the sentencing judge was a report dated 29 October 2017 of Ms Nadim of Enhance Psychology, which, although post-dating the commission of the instant offence by four days, was not prepared for any criminal proceeding, but on a referral to ascertain the level of the applicant’s cognitive and adaptive functioning. Ms Nadim reviewed the applicant’s developmental history and earlier reports concerning his mental health and psychiatric diagnoses, noting (emphasis added):

“Enhance Health Services referral made by Rabyh Barhoum (Psychologist, Headspace Camperdown) dated 27/07/2017 indicated that Mr. James has a diagnosis of Autism Spectrum Disorder and “significant intellectual difficulties.” The referral also noted that due to Mr. James’s rigid thinking, Mr. James experiences difficulties regulating his emotions and has had longstanding difficulties (+ 10 years) with anger and irritability. Mr. James’s father has reported that Mr. James has had admissions to hospital in 2017 for mental health treatment.
Previous reports indicate that Mr. James was initially diagnosed with Asperger’s Syndrome with overall functioning in the below average (borderline) range of intellectual ability (Tumbatin Clinic Assessment Report, 12/06/2003). This report also noted that Mr. James presented with severely impaired expressive language skills with reasonably normal receptive language skills, immature fine motor skills and difficulties with distractibility. This was consistent with Mr. James’s parents’ reports of a stagnation in Mr. James’s development of new skills from approximately the age of 2½ to 3 years. Upon a review appointment at Tumbatin Clinic in 2006, it was decided that a diagnosis of Pervasive Developmental Disorder – Not Otherwise Specified (PDD – NOS) was more appropriate (Tumbatin Clinic Assessment Report, 14/03/2006). DADHC report dated 02/06/2003 also confirmed Mr James had a diagnosis of PDD-NOS.”

Ms Nadim noted that at preschool he had accessed additional weekly support sessions with a special educator; that he had received speech, occupational, and physiotherapy services through a community health centre; and that he had completed a Certificate II in Construction and Hospitality at High School. His early developmental history indicated difficulties in social interactions, maintaining eye contact, waiting his turn and sharing, and he experienced significant difficulties with social and play skills, “often asking questions with a repetitive element in verbal interactions and not participating in group activities”. She added:

“Presently, Mr. James is reported to have poor frustration tolerance and limited friendships, with required support in social skills. Mr. James’s father has reported Mr. James can become physically aggressive and intimidating, which is likely related to his diagnosis of ASD and related difficulties in emotion regulation and understanding expectations of behaviour.”

Ms Nadim described autism as “a lifelong, pervasive developmental disorder, with difficulties in three main areas: communication, social interaction, restricted and repetitive interests and behaviour”. On the Wechsler Adult Intelligence Scale (WAIS-IV), the applicant had a full-scale IQ in the range 68-76, and a percentile rank of 3. His Adaptive Behaviour score was in the range 64-70 on the General Adaptive Composite Score, to a 95% confidence level; relative to individuals of the same age he was functioning in the first percentile, in the Extremely Low range of adaptive skills.
Also before the sentencing judge was a report dated 9 February 2018 of Ms Godbee, psychologist, who had assessed the applicant on 1 February 2018, for the purpose of the proceedings relating to the offences committed in 2017; she also had access to Ms Nadim’s report. Ms Godbee recorded a history, obtained from the applicant, of having been bullied at high school; since leaving school, he had had one short-lived job working for a glazier and window-fitter. He had commenced using cannabis at age 17 in 2015-2016, and ceased in January 2018, when aged 19, after he began to hear voices. He also tried other prohibited drugs, and misused Xanax. He told Ms Godbee that he realised that he needed to stop abusing drugs, and that he would engage in drug and alcohol counselling if it was recommended.
Ms Godbee considered that he met the diagnostic criteria for Major Depressive Disorder, single episode, mild, and concluded (emphasis added)

“34.   Formulation and Recommendations: Given the limited information provided by Mr James at interview, the following formulation is tentative. Although Mr James reported a generally positive and stable home life during his early years, it is hypothesised that his emerging ASD and pervasive developmental disorder contributed to social and behavioural difficulties that his parents had limited support to manage. Mr James’ experiences at school were less positive, and his perception of being “different” to the other children predisposed him to negative beliefs about himself. His social and communication difficulties also led to trouble establishing friendships, which resulted in him being lonely and having few opportunities to learn age-appropriate social skills. Mr James also struggled to regulate his anger and, in response to bullying from peers, he began to engage in violence towards them as a way to temporarily alleviate his anger. His experiences of bullying throughout high school compounded his negative beliefs about himself, and, in the absence of an effective response from teachers or his parents, Mr James likely learned to dislike authority and withdrew from his support people. At this time, he also began associating with substance using peers, who encouraged his drug use and his anti-authority attitudes. His susceptibility to peer influence was likely compounded by his lower cognitive functioning.
35.   In the two years prior to his index offending, Mr James continued to associate with antisocial peers and increase his substance use, both of which may have been strategies to compensate for his social worries. As his cannabis, alcohol and Xanax use increased, his mood decreased and he experienced further difficulties managing his anger. Mr James’ behaviours contributed to unstable relationships at home, as well as accommodation difficulties. Given his pre-existing cognitive, social and communication difficulties, as well as his low mood and withdrawal, Mr James had few internal resources to cope with these accumulating stressors. His prior tendency to use aggression in response to anger, compounded by his anti-authority beliefs and the disinhibiting effects of substances, contributed to his violence towards his father and the Police.
36.   Positively, Mr James presented with reasonable insight into the problems caused by his substance abuse and his violence, and presented as motivated to desist from these behaviours. However, he appears to minimise his responsibility for his actions and his need to engage in treatment to help him make these lifestyle changes. Mr James is reportedly supported by a pro-social family, although I note that his father also tends to minimise the seriousness of Mr James’ behaviour.”

A report of Dr Keller, psychiatrist, dated 18 August 2018, noted a history of “significant medical and psychosocial challenges”, and a “very disruptive schooling” with “persistent bullying” and “significant problems with substance abuse”. He summarised (emphasis added):

“In summary, Matthew appears to have a complex picture of developmental issues. He has a prior diagnosis of level I to II autism spectrum disorder and a borderline IQ. I have no reason to doubt the validity of these diagnoses. He has probable ongoing effects from persistent trauma, related to bullying and a lack of support during his schooling. His response to this trauma was to ‘act out’ and become aggressive and he has had difficulty modulating his affect. He has developed a range of disruptive behaviours and later significant substance misuse and criminal behaviour. Some of this has been in company as a benign accomplice. Although it is at an early point, he does appear to be responding to structured psychological support. He appears to have been able to remain abstinent from substances for a short period of time.”

A letter dated 18 October 2019 by Sonya Averio, support co-ordinator with Quality Health Care, reported that the applicant had been engaged with Quality Health since April 2018, and was attending fortnightly for the purpose of building his skills to understand and implement his current NDIS plan; he was also engaging frequently with his psychologist.
A report dated 14 October 2019 of Mira Azar, psychologist, stated that the applicant had attended twenty counselling sessions since 25 June 2018 (emphasis added):

“It is evident from clinical interview, observation and assessment that Mr James has experienced significant life stressors, and mental health issues including a diagnosis of Autism, Epilepsy, Anxiety and Chronic Depression, which have contributed to his ability to make decisions. Many of these symptoms are comorbid with a diagnosis of Autism.”

She reported that he had attended all scheduled appointments, had identified the underlying problem and continued to engage in psychological support, had openly discussed all his concerns, and was active and engaged in improving his coping strategies and overall wellbeing. She said:

“Currently Mr James is in the process of applying for independent housing and is making good progress in further developing the necessary everyday living skills. They are focussed on realistic and sustainable modifications.”

In a report dated 17 October 2019, Jackson Goding, an alcohol and drug counsellor at Odyssey House, stated that the applicant had engaged in the non-residential treatment program at Odyssey House from 29 May 2019, had completed Module 1, and was currently attending Module 2 with the intention to complete it:

“Matthew has removed himself from the people and the places, as well as this he has shown dedication and drive to work on his internal world, including his previous trauma and other debilitating adversities experienced. With more commitment and work towards his goals, Matthew is on the right path to recovery, learning how to best be within the community.”

Finally, and most comprehensively, there was a report of Dr Lennings, psychologist, dated 28 January 2020, which was obtained and tendered at a relatively late stage of the sentencing proceedings. He had assessed the applicant on 21 January 2020, and had been provided with the reports mentioned above and other documents. He also interviewed the applicant’s father and obtained from him a history of the applicant’s development. After reviewing the applicant’s account of the offence (which the Crown did not accept), his employment, medical history, substance use, and relationships, he observed (emphasis added):

“An odd aspect of Matthew’s account is that despite relatively low cognitive functioning, and a neurodevelopmental disorder Matthew clearly gained insight into how drug use was affecting him medially [sic] and behaviourally and made a concerted effort to cease use of all drugs with an excellent behavioural and medical response since then.”

Referring to the earlier cognitive assessments, Dr Lennings observed that there was a “substantially stable pattern over a long period of time establishing that Matthew’s cognitive ability falls into the borderline range, somewhere between the bottom 2 and the bottom 5% of the population for ability. This is a level of significant impairment” (emphasis added). Adaptive functioning skills were similarly low and most of his basic life skills were also low. “The import of these assessments is to suggest that Matthew had some but not a good ability for independence”.
Dr Lennings conducted further testing to expand on the known deficits by assessing memory for learning and executive function, which is necessary for people to control behaviour, inhibit impulsivity and learn from errors. From a range of tests, he concluded that the applicant’s Global Executive Composite index was elevated, such that it was inferior to 99% of the population for executive function, as were the Behavioural Regulation Index (99%) and Metacognition Index (96%). As a result:

“Concerns are noted with his ability to inhibit impulsive responses, adjust to changes in routine or task demands, modulate emotions, monitor social behaviour, initiate problem solving or activity, sustain working memory, and attend to task-oriented output. Matthew James’ ability to plan and organize problem-solving approaches and organize environment and materials is not described as problematic. His profile suggests significant problem-solving rigidity combined with emotional dysregulation. Individuals with his profile have a tendency to lose emotional control when their routines or perspectives are challenged and/or flexibility is required.”

Dr Lennings concluded (emphasis added):

“Formulation. Matthew is a young man of significant psychological impairment. He suffers from a neurodevelopmental disorder, Autism, and also from a range of psychological conditions including very low cognitive ability that makes him particularly susceptible to external anti-social influences. His psychological state is compromised by an inability to develop agency or independence, impaired executive functioning skills that prevent him using what cognitive ability he does have to consider reflectively the situation he finds himself in, and combined with a severe drug addiction has led to highly deranged behaviour that bordered on the psychotic. He continues to show some worrying symptoms of residual psychosis although he did not present as psychotic on the day I saw him. He continues to experience strong depressive and anxious elements. At the time of the offence he was significantly impaired and would have had great difficulty in directing or correcting his behaviour. Since then he has made an encouraging commitment to sobriety, he has strong family support and has engaged well with his current therapist. Although he is a very troubled and vulnerable young man, his future now appears more positive than at the time of his offence.”

Dr Lennings expressed opinions that:

appropriate treatment was available in the community and the applicant was strongly motivated to engage in therapy. He considered that “his [previous] experience of gaol was so horrific that it has had a ‘hugely corrective influence on him’”;

there was no likelihood that he would have access to the necessary therapeutic services while in custody. Incarceration was likely to lead to deterioration in his functioning, with the risk of serious self-harming behaviours; and

his experience of incarceration would be substantially harsher than for the average offender.

None of this evidence was challenged nor contradicted. Taken as a whole, it established a powerful case that the applicant’s behaviour was affected by a neurodevelopmental disorder (autism), and most relevantly, a very low cognitive ability, the significance of which is perhaps best comprehended by the evidence which placed him as inferior in cognitive ability and executive functioning skills to between 95% and 99% of the population; with his full-scale IQ in the range 68-76 (percentile rank 3) and Adaptive Behaviour score in the range 64-70. The evidence also explained how his condition was causative of the applicant’s descent into criminality, culminating in his participation in the instant offence.
As to the significance of his intellectual disability, reference might be made to the following observations of the High Court in Muldrock v The Queen (citations omitted):[1]

“[50] The assessment that the appellant suffers from a “mild intellectual disability” should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. “Significantly subaverage intellectual functioning” is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission:
A person’s intellectual disability can be classified as “mild”, “moderate”, “severe” or “profound”, based upon certain IQ (intelligence quotient) ranges. A further category, “borderline”, is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a “severe” or “profound” disability may be unable to learn basic social skills such as speech, walking and personal care, and is likely to require supported accommodation. The majority of people with an intellectual disability have a “mild” level of intellectual disability and “can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.” These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a “mild” intellectual disability is inconsequential. (footnotes omitted)

[51] The fact that the appellant had engaged in some paid employment and that he held a driver’s licence does not detract from the assessment of his retardation. The evidence was that he had “enormous difficulty with employment”. …”

1. (2011) 244 CLR 120, 137-138 [50]-[51] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2011] HCA 39.

Principles relevant to sentencing offender with intellectual disability

That the intellectual disability of an offender is a mitigating factor which diminishes an offender’s moral culpability and reduces the relevance of general deterrence is well established. In Muldrock, the High Court – pointing out that in a case of intellectual disability (as distinct from mental illness), questions of the causal relationship between the disability and the offending behaviour will rarely arise, because the lack of capacity to reason as an ordinary person might as to the wrongfulness of the conduct will generally substantially lessen the offender’s moral culpability – said (emphasis added):

“[53] … One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this [R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5, cited in R v Anderson [1981] VR 155 at 160]:
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.

In the same case, Lush J explained the reason for the principle in this way [R v Mooney (unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 8, cited in R v Anderson [1981] VR 155 at 160-161]:
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.

[54] The principle is well recognised [Veen v The Queen [No 2]] (1988) 164 CLR 465 at 476-477. See also R v Anderson [1981] VR 155; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, Court of Criminal Appeal (NSW), No 60407 of 1991, 18 March 1992; R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48]. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence [See R v Engert (1995) 84 A Crim R 67 at 71]. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

The impact of intellectual disability on sentencing is not limited to moral culpability and general deterrence. The ways in which an offender’s mental illness, intellectual disability, or other abnormality of the mind which has materially contributed to the commission of the offence may affect the appropriate sentence have been explained by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (‘De La Rosa’),[2] and by Simpson J (as her Honour then was) in Aslan v R (‘Aslan’),[3] as follows:
2. (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (McClellan CJ at CL).
3. [2014] NSWCCA 114 at [33] (Simpson J; Adams J and McCallum J agreeing).

the offender's moral culpability may be reduced, with the consequence that need for denunciation may be reduced, and concomitantly so may be the sentence;

the offender may be an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed;

a custodial sentence may weigh more heavily on the person, so the length of the prison term or the conditions under which it is served may be reduced;

the significance of specific deterrence may be reduced or extinguished; and

conversely, the risk to the community may be increased, and considerations of specific deterrence and protection of the community may result in an increased sentence.

As Simpson J explained in Aslan, “the compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution”. [4] Her Honour continued:

“[34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.”
4. [2014] NSWCCA 114 at [33] (Simpson J; Adams J and McCallum J agreeing).

Thus the sentencing judge was required to examine and resolve how those considerations applied in the context of the applicant’s intellectual disability in this case. At the forefront of them was whether and to what extent it reduced his moral culpability.

His Honour’s remarks on sentence

The sentencing judge had previously sentenced the co-offender Fahey, who in respect of the common offence received an indicative sentence of four years and six months imprisonment with a non-parole period of two years and seven months.
The sentencing judge rejected an application that the proceedings in respect of the applicant be adjourned pursuant to (NSW) Crimes (Sentencing Procedure) Act 1999, s 11.
For the applicant, it was submitted that his moral culpability was significantly reduced by his disabilities, and that the matter be could be dealt with by way of an Intensive Correctional Order. The Crown submitted that the applicant’s diagnosis of Autism Spectrum Disorder (ASD) and depression were conditions that did not contribute to the commission of the offence in a material way and were therefore not relevant to the applicant’s moral culpability, that any assertion by the applicant’s treating psychologists that his moral culpability is lesser due to this difficulty in regulating his emotions should not bear great weight in the sentencing for this offence, and that only a sentence of full-time imprisonment was appropriate.
The sentencing judge noted the applicant’s age and immaturity (for which he was entitled to consideration), the maximum penalty (twenty years), and standard non-parole period (five years), that the applicant was entitled to a 25% discount for his plea of guilty, and that he had spent in excess of six months in custody (which was taken into account), that he had no criminal record at the time of the offence, and that his co-offender Fahey had been sentenced to an aggregate term of five years and six months with a non-parole period of three years and three months, with an indicative sentence for the common offence of four years and six months with a non-parole period of two years and seven months (which was relevant on questions of parity).
His Honour recited the agreed facts and concluded that the offence was below the mid-range of “objective criminality”:

“In my view, having regard to the extent of the entry into the premises, the period of time spent there, the nature of the activity, involving injury to an innocent person, seeking drugs, the offence is below mid-range of objective criminality.”

His Honour recited the substance of parts of Dr Lennings’ report, observing that the applicant had had problems requiring therapy in his early days, that his schooling was “not of the highest order due to a number of features of his overall behaviour”, that he had a long history of counselling in both primary and high school, that his education was less than ideal, that having finished high school he had not had ongoing employment, save for a job which his father had obtained for him, that he had had a number of seizures which Dr Lennings had considered to be drug-related, that he began using cannabis sometime during high school and had also used other drugs including Xanax and briefly methylamphetamine, and that he had a speech disorder and had ‘binged’ on alcohol. His Honour observed (emphasis added):

“Ultimately, he was diagnosed with depression and anxiety and indeed as Mr Lennings says, apparently diagnosed with some form of autism or Asperger’s. The problem, of course, with these types of diagnoses as the report says, was the uncertainty based on the history that was provided to the practitioner but there is clearly a dysfunction there in the offender’s development.”

His Honour also noted that Dr Lennings said that the applicant was “struggling to make sense of himself in the world”, misunderstands social cues and forms wrong opinions of what people are thinking, and was to a significant degree, isolated. His Honour accepted that the results of the testing administered by Dr Lennings were consistent with other material, and that he had and would experience a harsher time in custody than many other offenders. His Honour said that he took those factors into account:

“As far as cognitive assessment is concerned, these are problems which were identified in other assessments but the current assessment which was undertaken by Mr Lennings allowed him to reach the concerns that he referred to in para 53, an inability or rather concerns are noted, he said, with his ability to inhibit impulsive responses. His ability to plan and organise was not described as problematic, however.

He was given a personality assessment inventory which is self-administered and, of course, this is self-diagnosis to a great extent but I am satisfied that the results are consistent with the remainder of the material that was tendered on his behalf and I agree that he will, and he already has, experienced a harsher time in incarceration than many other offenders due to the factors that are referred to in Mr Lennings’ report. I take all of those factors into account in the sentencing process.
I do not refer to all of the material in detail and some of it in summary. There is no doubt that he has a number of factors impinging against his overall capacity to be able to cope with ordinary, everyday life.”

His Honour noted a report of Dr Keller, psychiatrist, observing that “Dr Keller, psychiatrist on 18 August 2018 said, inter alia, that he had a complex picture of developmental issue and a prior diagnosis of level 1 to 2 autism spectrum disorder and a borderline IQ. The doctor had no reason to doubt the validity of these diagnoses”.
His Honour noted that Ms Godbee was of the view that there was clearly documented history over many years of dysfunctional life that had impacted on his capacity to live a normal life. His Honour also noted two sentencing assessment reports from Community Corrections:

“The sentencing assessment reports from the Community Corrections Service were not inconsistent with the general approach taken by the other professionals and third party assessors. He was assessed at a medium risk of re-offending in the report of the sentencing assessment of 11 December 2018 and he generally has given the impression through all of the documentation that if his overall lifestyle could be modified, and he continues to have the support through the NDIS, that there is a chance for him to overcome his problems for the future. Indeed, that has been the case throughout the time that this matter has been in the list.”

His Honour then summarised the subjective considerations as follows:

“What is the summary then of the subjective issues. Firstly, there is to be a discount of 25%. Secondly, I am satisfied that he is remorseful and contrite for what he did. Thirdly, I am satisfied that he has, because of his family support, prospects of rehabilitation even though his background in employment and his medical situation need to be overcome to some significant degree before he can be out of the woods, as it were, in relation to this area but I think that this experience, and particularly over the period of time he has spent in custody, is against questions of him being likely to re-offend in the same way again.
I also, as I said, take into account the views expressed by Bellew [J] in Clarke-Jeffries about young persons and he still is a very young man and was at the time of the offence. He was born in 1998 and the offence occurred in October 2017. Those matters cannot be overlooked.
In addition, I am satisfied when considering as I will now turn to, the principles of sentencing that questions of general deterrence for his involvement in this offence must be given a lesser priority than many other cases of a similar type based on the fact that he has the psychological and psychiatric issues which have been identified by Mr Lennings, Dr Keller, Ms Godbee and others.”

His Honour then observed:

“Nevertheless, the principles under s 3A of the Crimes (Sentencing Procedure) Act being the purposes of sentencing, remain relevant. Those purposes are to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender and to make the offender accountable for his or actions and to denounce the conduct of the offender and recognise the harm done to the victim and the community. This was a cowardly attack on a person in their home for no good reason, in company. It must have been terrifying for that person.
A person’s home is supposed to be his sanctuary. He is supposed to be able to live in that home and enjoy the quiet enjoyment of those premises without being interfered with in the manner that is described in the agreed facts in this case. Not only was there an entry, there was a vicious assault. The only matter of lesser importance is the fact that the injuries were of a slight degree. But one needs only to think of how that victim would have felt.”

Having ascertained from counsel that there was no particular matter of fact or law to which he had not referred, his Honour expressed himself to be satisfied that no other sentence than a custodial one could be imposed, and took the luncheon adjournment “to continue the sentence remarks so that I can address the submissions that were made by Mr Jauncey in relation to the disposition of this case”. Returning after the adjournment, his Honour noted that “On behalf of the offender counsel has made a number of significant submissions to which I shall now refer”, and continued (emphasis added):

“First of all, going back just briefly to the question of the criminality, as I said I found that the objective gravity was below mid-range. Despite the Crown had submitted that I would not find that he was of good character because he was on bail, nevertheless I am satisfied that the extent of his record still entitles consideration to be given to leniency. This is particularly so because, as Mr Jauncey reminded me, the offender was only 19 at the time of the offending. True it is, as the Crown said, that there was some violence involved but the situation that led to this offending was clearly unusual and connected with his overall psychological and psychiatric profile.
In that regard, following my view that the general deterrence plays a lesser part in this case, Mr Jauncey had submitted that his moral culpability was less. Although the Crown submitted that there was a problem about his overall reaction to his medical condition and therefore specific deterrence was of some importance I am of the view that there should be consideration given to his situation as far as specific deterrence is concerned, taking into account the support that he has from those with whom he has daily contact.
Mr Jauncey outlined in his submissions, after the tender of Dr Lennings’ report, a scenario which he said could lead to a finding that might ultimately lead to a sentence other than full-time custody. This was based on a number of factors relating to his personal and subjective circumstances; a fact that he had already served some time in custody and his reaction to that, which I find quite a terrifying experience for him; and that therefore some consideration could be given to those issues. I have considered Mr Jauncey’s overall submissions but for the reasons that I will outline in more detail in a moment I am satisfied that there is no other sentence in this case other than a full time custodial sentence and whilst it is unfortunate he will have to be returned to custody to serve the balance of any sentence, taking into account such time as he has served.
When saying this I have had regard to what degree it is necessary such amendments as were made to the Crimes (Sentencing Procedure) Act in September 2018; of views expressed in Fangaloka and of course they do not really come into play unless the sentence that I propose is two years or less and for the following reasons it is not.”

His Honour then referred again to the sentence he had imposed on the co-offender Fahey, and continued (emphasis added):

“On the question of parity, taking into account the general comments made in relation to that in Valsamakis I note that the Crown submitted that between Fahey and the offender the objective seriousness of the offending was equal and there is something to be said for that submission. I accept that the offender’s criminal record is less significant. I am satisfied, however, that his prospects of rehabilitation are good; that his prospects of reoffending are low. In this case his intellectual disability and dysfunctional life is more significant and more pronounced in the various reports in a De La Rosa sense than Fahey. To that extent they both have dysfunctional backgrounds but of a different type. Whilst Mr Fahey’s drug addiction I found existed from the age of 13, the drug addiction has been mixed and of various types and at various times. The Crown conceded that more likely than not, if I understand the submissions, that the sentence on Fahey would be at least the same, if not higher, than this one.”

His Honour then found special circumstances, based on “the first time incarceration the effects of which have already been seen, the difficult time he will spend in custody and the difficulty in re-establishing himself on his release, the need for continuing treatment by way of psychological and psychiatric assistance will remain significant and without help he will find it difficult to reintegrate into the community, obtain employment and re-establish his life, even with the family support that he has”.
His Honour concluded:

“The offender has committed what I have already indicated was a significant offence in company. It does not need further statement about the objective gravity or the effects on the victim. Although the injury to the offender was not serious the property stolen was not only valuable to the victim but specifically valuable for the terms of its value in the way in which he lived his life. It is not always the monetary value of stolen property that is the touchstone of the seriousness of the offence.
I am satisfied that there is some difference between the offender and Fahey which can be accommodated with a variation in not only the head sentence but also the non-parole period.”

Thus it appears that the rejection of the applicant’s counsel’s submission, the conclusion that only a full-time custodial sentence was appropriate, and the sentence ultimately imposed, were substantially founded on two considerations: parity (with Fahey), and denunciation and retribution.

Consideration

It cannot be said that his Honour did not refer to the applicant’s disabilities. The question is whether his Honour appropriately recognised the full extent of the applicant’s disabilities, particularly in evaluating his moral culpability, so that they were properly reflected in the sentence.
As has been seen, his Honour referred to the background and history of the applicant as set out in the report of Dr Lennings, and apparently proceeded on the basis that he had a diagnosis of autism spectrum disorder, although it must be observed that on the evidence there was no real scope for such doubt as to the diagnosis of autism, as appears to be inherent in the observation quoted at [40] above. However, the passage quoted above at [41] does not really capture Dr Lennings’ description of significant psychological impairment, including a neurodevelopmental disorder and very low cognitive ability and impaired executive functioning skills. Perhaps the closest the remarks on sentence approach recognising the significance of his intellectual disability is in referring to Dr Keller’s report, to the effect that the applicant had a complex picture of developmental issues, a prior diagnosis of level 1 to 2 ASD, and a borderline IQ. However, there is no extrapolation of the implications of those findings for his moral culpability.
His Honour also accepted that the applicant was likely to experience a more difficult than usual time in custody, due to the matters referred to in Dr Lennings’ report. However, while this was relevant to the finding of ‘special circumstances’, it did not involve addressing the question of moral culpability.
The Crown identified three particular passages in his Honour’s remarks as most closely approaching engagement with the question of moral culpability. First was the passage in which His Honour, having referred to “a number of significant submissions” made by counsel for the offender, stated (emphasis added):

“First of all, going back just briefly to the question of the criminality, as I said I found that the objective gravity was below mid-range. Despite the Crown had submitted that I would not find that he was of good character because he was on bail, nevertheless I am satisfied that the extent of his record still entitles consideration to be given to leniency. This is particularly so because, as Mr Jauncey reminded me, the offender was only 19 at the time of the offending. True it is, as the Crown said, that there was some violence involved but the situation that led to this offending was clearly unusual and connected with his overall psychological and psychiatric profile.
In that regard, following my view that the general deterrence plays a lesser part in this case, Mr Jauncey had submitted that his moral culpability was less. Although the Crown submitted that there was a problem about his overall reaction to his medical condition and therefore specific deterrence was of some importance I am of the view that there should be consideration given to his situation as far as specific deterrence is concerned, taking into account the support that he has from those with whom he has daily contact.”

The Crown submitted that his Honour’s above reference to “criminality”, when viewed in context, was a reference to the applicant’s moral culpability, criminality being distinct from objective gravity. I do not agree: it refers back to his Honour’s earlier finding that objective gravity was below mid-range, in which his Honour used ‘criminality’ as synonymous with objective gravity, as follows:

“In my view, having regard to the extent of the entry into the premises, the period of time spent there, the nature of the activity, involving injury to an innocent person, seeking drugs, the offence is below mid-range of objective criminality.”

While, in the first paragraph extracted above, his Honour said that the offending was “clearly unusual” and connected with his overall psychological and psychiatric profile, this was in response to a Crown submission that there was some violence involved. While that would ordinarily be relevant to objective gravity, it appears in the context of discussion of whether the applicant was disentitled to leniency by reason of his being on conditional liberty at the time of the offence. A fair reading is that his Honour found that the applicant’s record was not such as to disentitle him to leniency, having regard to his youth and his “overall psychological and psychiatric profile”.
In the second paragraph extracted, his Honour, having recorded the express submission that the applicant’s moral culpability was reduced, stated that contrary to the submission made by the Crown about his overall reaction to his medical condition, consideration should be given to the applicant’s situation in regard to specific deterrence, taking into account the support from those with whom he had daily contact. This appears to refer to the need for specific deterrence being moderated by the support available to him, rather than by his disability. While a reduced need for specific deterrence is one potential consequence of intellectual disability, it is not the same as diminished blameworthiness or moral culpability.
Neither of those passages addressed the impact of the applicant’s condition on his moral culpability, notwithstanding that reference was made to a specific submission on that issue.
Secondly, when considering the question of parity, his Honour said:

“In this case his intellectual disability and dysfunctional life is more significant and more pronounced in the various reports in a De La Rosa sense than Fahey.”

The reference to De La Rosa indicates that his Honour adverted in a general way to the relevance of intellectual disability to sentencing. However, a reference to it in the context of parity does not bespeak any assessment of its impact on the applicant’s moral culpability.
Thirdly, in dealing with his youth, his Honour said:

“I also, as I said, take into account the views expressed by Bellew J in Clarke-Jeffries about young persons and he still is a very young man and was at the time of the offence. He was born in 1998 and the offence occurred in October 2017. Those matters cannot be overlooked.
In addition, I am satisfied when considering as I will now turn to, the principles of sentencing that questions of general deterrence for his involvement in this offence must be given a lesser priority than many other cases of a similar type based on the fact that he has the psychological and psychiatric issues which have been identified by Mr Lennings, Dr Keller, Ms Godbee and others.”

In Clarke-Jeffries v R,[5] Bellew J said at [49]:

“The principles which govern the sentencing of youthful offenders are well known. They include the following:
●   considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence;
●   in recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;
●   the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law;
●   allowance will be made for an offender’s youth, and not just his or her biological age; and
●   where the immaturity of an offender is a significant factor in the commission of an offence, the criminality involved will be less than if the same offence was committed by an adult.”
5. [2019] NSWCCA 56.

His Honour’s reference to Clarke-Jeffries indicates that his Honour also allowed that the applicant’s moral culpability was reduced by his youth and immaturity; but that is not the same as his significant intellectual disability. Further, it is apparent that his Honour recognised that the applicant’s youth and psychological condition reduced the significance of general deterrence; however, again, that is not the same as moral culpability.
I accept that it may suffice for a sentencing judge to identify that an offender’s mental illness was brought to account in determining the extent of moral culpability, and that it is not necessary to offer a more detailed explanation as to how it is taken into account, by identifying some percentage reduction or weighting of relevant factors. [6] However, while his Honour adverted to the applicant’s intellectual disability as reducing the significance of general deterrence and of specific deterrence, and bore in mind that a sentence of imprisonment would weigh more heavily on the applicant as a result of his conditions, what is absent from the remarks is any evaluation of moral culpability. Although his Honour referred to the applicant’s “significant subjective case”, and considered his condition in making findings favourable to the applicant in respect of general deterrence, specific deterrence, and special circumstances, his Honour did not engage with nor resolve the fundamental submission that the applicant’s moral culpability was reduced by his intellectual disability.
6. Hung v R [2019] NSWCCA 303 at [30] (Cavanagh J).
Moreover, the considerations which informed his Honour’s rejection of the applicant’s submissions – parity, and denunciation and retribution – were themselves matters the significance of which was liable to affected by considerations of moral culpability: parity, because if the applicant’s moral culpability were significantly reduced, there was ample reason for an absence of parity; and denunciation and retribution, because those elements of a sentence will usually be of reduced significance where the offender is intellectually disabled. His Honour’s remarks do not reflect the principle, explained in Muldrock, that an offender’s reduced capacity to reason substantially lessens his or her moral culpability for the offence, and that the retributive effect and denunciatory aspect of a sentence appropriate to a person of ordinary capacity is inappropriate to the situation of such an offender and the needs of the community.

For those reasons, in my opinion, his Honour erred in not determining whether and to what extent the applicant’s mental condition, and in particular his intellectual disability, reduced his moral culpability for the offending behaviour.
Although, in the context of an offence for which the maximum penalty is twenty years imprisonment, and which carries a standard non-parole period of five years, a sentence of four years imprisonment, with a non-parole period of two years, is significantly lenient – even given a 25% discount for the guilty plea, and the finding that the offending was below the mid-range of objective seriousness – I am of opinion that in light of the applicant’s intellectual disability, and the other matters referred to below, a lesser sentence is warranted in law and should have been passed. In my judgment, as in Muldrock, this was particularly so in respect of determining the non-parole period – that is to say, the minimum period of full-time custody which the applicant should be required to serve.
That conclusion renders it unnecessary to consider the second ground of appeal, being that the sentence was manifestly excessive.

Resentencing

Objectively this was a brazen and cowardly home invasion, committed when the victim was present, in company, with not inconsiderable personal violence though fortunately only slight injury to the victim, for whom it must, as his Honour said, have been terrifying. Nonetheless, I would not differ from his Honour’s finding that it was below the mid-range of objective gravity, having regard to the manner of entry (through a door, which the agreed facts does not suggest was locked); the duration of the incursion (less than five minutes); the absence of a weapon; the use of considerable personal violence, for which Fahey appears to have been primarily responsible, in connection with a demand for drugs; the absence of serious injury to the victim; and the relatively slight value of the property stolen, albeit that it was important to the victim. However, the subjective circumstances of the applicant were of great significance, and his intellectual disability, and its impact on his moral culpability, was at the forefront of his subjective case.
The applicant’s criminal history must be viewed in the light of his psychological condition and intellectual disability, as discussed below. It is of some significance that the period of five months imprisonment which he served was referable to a sentence which was later quashed, though it was taken into account by his Honour in the sentence for the instant matter. Most importantly, he had not offended again after he was released, consistent with Dr Lennings’ view that this experience of gaol was so horrific that it had a “hugely corrective influence on him”. Moreover, he was engaging with and benefiting from support in the community, which would not be available to him in gaol, where his condition would in all likelihood deteriorate, due to both the absence of appropriate support services and his vulnerability due to his condition.
As has been mentioned, the psychological evidence established a powerful case that the applicant’s behaviour was affected by a neurodevelopmental disorder (autism), and most relevantly, a very low cognitive ability, and that these conditions materially contributed to his descent into criminality and his participation in the instant offence. With cognitive ability and executive functioning skills inferior to between 95% and 99% of the population, a full-scale IQ in the range 68-76 (percentile rank 3), and an adaptive behaviour score in the range 64-70, his deficits were significant and considerable. Such markedly inferior cognitive ability and executive functioning skills substantially lessen his moral culpability for the offence, render him an inappropriate vehicle for general deterrence, and reduce the significance of retribution and denunciation.
In Muldrock, the High Court explained why such circumstances could constitute special circumstances justifying a departure from the statutory proportion between the non-parole period and the term of the sentence:

“[58] The desirability of the appellant undergoing suitable rehabilitative treatment was plainly capable of being a special circumstance justifying a departure from the statutory proportion between the non-parole period and the term of the sentence. The Court of Criminal Appeal was wrong to hold that Judge Black had been diverted by the evidence concerning Selwood Lane, and that he failed to carry out the task required of a sentencing judge in focusing on rehabilitation and not on denunciation, punishment and deterrence. As explained, punishment, in the sense of retribution, and denunciation did not require significant emphasis in light of the appellant’s limited moral culpability for his offence. And there was no requirement for general deterrence. It was open to Judge Black to view personal deterrence as likely to be advanced by a sentence that required the appellant to undergo appropriately tailored treatment in a secure facility such as Selwood Lane. The Court of Criminal Appeal erred in finding that there were no special circumstances within s 44(2) of the Sentencing Act.”

While, as Simpson J explained in Aslan, in the passage quoted at [33] above, it is also relevant that sentences should reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution, in this case the applicant’s condition made him an inappropriate vehicle for general deterrence, and markedly reduced the need for denunciation and retribution. As in Muldrock, this is a case in which, particularly in fixing the minimum period of fulltime custody, rehabilitation rather than denunciation, punishment, and deterrence requires emphasis: retribution and denunciation have reduced significance in light of the applicant’s limited moral culpability for his offence. As his intellectual disability makes him an inappropriate vehicle for general deterrence, there is no occasion to reflect it in the sentence. Specific deterrence is also of reduced significance, not only because of the support he is receiving (as his Honour reasoned), but most notably because the impact of his initial period of custody appears already to have achieved a strongly deterrent effect, a conclusion which is reinforced by the additional evidence read on the usual basis in this Court, referred to below. This is not a case in which the applicant's intellectual disability gave rise, as often happens, to competing tensions:[7] in particular, there was no suggestion that the need for protection of the community is elevated.
7. Cf Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61 at [47] (Beazley P).
Given the applicant’s psychological condition, I do not regard parity with Fahey as a significant consideration.
Further, as his Honour accepted, a custodial sentence would weigh more heavily than usual on the applicant, for the reasons explained by Dr Lennings, in particular that he would not receive appropriate support if incarcerated, and his condition would make him very vulnerable. However, the extent to which that is so has been borne out by subsequent events, to an extent and in a manner that is much more confronting than the evidence before the sentencing proceedings, as revealed in two affidavits which were read, without objection, on the usual basis.
The applicant’s affidavit, affirmed 27 November 2020, deposed that he was now 22 years of age. He served the first month of his sentence month at Parklea, then seven months at Nowra, and was then moved in quick succession to Bathurst, Junee, then back to Bathurst and presently Long Bay; he believes he has been moved so frequently because he is not safe anywhere. He has been on protection (Special Management Area Protection) for the whole duration of his incarceration, due to an earlier charge which was ultimately dismissed. He said that over the preceding six weeks he had been assaulted and stood over, that he could trust no one, and that he could not sleep. He said that he had never been so scared in his life.
He explained that he tried to keep to himself to avoid getting into trouble, but that this had not been successful. He said he was assaulted in Parklea by a sweeper in February 2020, and again on 30 April 2020. He said he was the subject of another assault on 6 October 2020 at Nowra, and after he appeared to be smiling following this, a further serious assault, which was captured on CCTV, resulting in the dislocation of his shoulder for which he was taken to hospital. Further, he said that after being moved rapidly to Parklea, Bathurst, and then Junee, he was assaulted again when being inducted to Junee, in the presence of guards. From 27 October to 11 November he was on ‘medical segregation’, effectively in solitary confinement. The CCTV footage was tendered, and gaol records corroborate several of his accounts. He deposed:

“26. I could be better, to be honest. It is my headspace. I feel all over the place. I can’t think straight. I am not good at making decisions in here to keep me protected. I have a lot of negative thoughts. I feel set up and paranoid all the time. I wonder whether someone will get me when I am not looking. So, I try to look all the time. But I am starting to feel really tired. I am too scared to sleep. I find it hard to get to sleep and when I do, I toss and turn. Other blokes in the pod carry on at night, some fighting and some screaming. I keep thinking something is going to happen to me if I switch off. So, I don’t.
27. I think I look different from the assaults. I don’t look like myself. There is kind of a shadow under my left eye now and my eye socket looks stretched. I don’t like the way I look. I have trouble seeing out of my right eye and get blurred vision. I never had that before. I feel like I now have a lisp and have trouble pronouncing words. I don’t know if that is from the assault but it’s like my jaw gets stuck sometimes.”

He has had no bad behaviour since he was sentenced; he is not using drugs, and he has had no failed urine tests.
Although he nominated for work and programmes, and indicated that he wanted to learn new skills, he has been unable to do anything, because he is on protection (which limits the opportunities) and has a bad shoulder, and due to his autism.
He describes a close relationship with his parents and sister, with whom he speaks almost daily. However, after an initial visit, their visits were suspended due to COVID-19, and this has been difficult for him. He concluded:

“32.   I have had a lot of time to think here. I have had a lot of sleepless nights where thoughts come into my head. I think back to what I did and I feel really sorry. I would hate if that happened to me. I know what it feels like to feel unsafe.
33.   All I want is to get out of here alive and not too badly hurt. I feel tired, so tired from always being on alert and not knowing what will happen to me. My dad has already got a call from the Junee officers that something bad had happened to me. He told me how much it freaked him out. I don’t want him to get another call that something really bad has happened.
34.   If I get released, I want to get my shoulder reconstruction. It has been delayed while I am in custody because of the after care. I don’t want to feel weak anymore and like I can’t defend myself. I will live with my family while I recover. I then want to learn some independence, get a job and my own place. I need to feel like I can do things for myself. There is support out there for me and I want to take it. I want to get help communicating with others because I find it hard with the autism. I want to feel safe, like I can sometimes switch off. I will never, ever come back to gaol. I wouldn’t make it out alive if I did. This place is brutal.”

The affidavit of the applicant’s solicitor Carli Rothman of 27 November 2020 annexed a supplementary opinion of Dr Lennings of 6 November 2020, which observed that the applicant had difficulty with social cues, being a function of his autistic traits. This is likely to explain his alleged ‘smiling’ after an assault, triggering a further, more serious assault.
The applicant’s positive response to his initial period of custody; his good prospects of rehabilitation; what can now be seen to be the very harsh conditions of his incarceration; the imperative of his accessing psychological and psychiatric assistance in the community which is not available to him in gaol, if he is to reintegrate into the community, obtain employment, and re-establish his life; and the importance in this of the ongoing support of his family; all support a significantly longer than usual period of supervision after he completes fulltime custody, and provide an uncommonly strong constellation of special circumstances justifying a departure from the statutory proportion between the non-parole period and the term of the sentence.
I would not depart from the four year head sentence imposed by his Honour, but I would reduce the non-parole period to 40% of the head sentence, that is to say 19.2 months, dating from 1 August 2019, so that the applicant would be eligible for release to parole on 5 March 2021.
I propose the following orders:

Grant leave to appeal.

Allow the appeal.

Quash the sentence imposed in the District Court on 19 February 2020 and in lieu thereof sentence the applicant to a term of four years imprisonment, with a non-parole period of nineteen months and five days, dating from 1 August 2019, so that he is eligible for release to parole on 5 March 2021.

BELLEW J: I have had the advantage of reading, in draft, the judgment of Brereton JA which sets out in detail the circumstances of the applicant's offending, his subjective circumstances, and the relevant aspects of the reasons of the sentencing judge.
For the reasons given by Brereton JA, I agree that error has been established. In circumstances where this necessitates the re-exercise of the sentencing discretion by this Court, I also agree that the medical evidence to which his Honour has extensively referred warrants a finding of special circumstances pursuant to s (44)(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and thus an adjustment to the statutory ratio between the head sentence and the non-parole period. However, I am unable to agree with the sentence that his Honour proposes. Specifically, and giving full weight to the evidence of the applicant's mental health in particular, I am unable to conclude that an adjustment which reduces the non-parole period to 40% of the head sentence is appropriate.
Whilst I accept that the applicant's mental health issues justify him spending a longer period on parole in order to assist his reintegration into the community, it remains the case that the fixing of a non-parole period is not a matter that is to be determined solely, or even primarily, by reason of considerations of rehabilitation. [8] As Brereton JA has pointed out, a non-parole period is to be fixed by what a sentencing court concludes that all the circumstances of the case, including the need for rehabilitation, indicate should be the minimum period of actual incarceration. [9]
8. R v Simpson (2001) 52 NSWLR 704; [2001] NSWCCA 534 at [59] (Spigelman CJ; Mason P, Grove J and Newman AJ agreeing).
9. R v Simpson (2001) 52 NSWLR 704; [2001] NSWCCA 534 at [59] (Spigelman CJ; Mason P, Grove J and Newman AJ agreeing), citing Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.
In the present context, the phrase “all of the circumstances of the case" necessarily encompasses a consideration of the applicant’s need for rehabilitation in light of his mental health issues. However, it also encompasses a consideration of the facts surrounding his offending, as well as his criminal history. The facts of his offending have been set out at length in the judgment of Brereton JA. Leaving aside any assessment of the objective seriousness of that offending by reference to a hypothetical range, his Honour’s description of it as a brazen and cowardly home invasion, committed in company when the victim was present, and accompanied by not inconsiderable personal violence towards a terrified victim, is apt, and reflects offending which is of substantial objective seriousness. Moreover, the applicant’s criminal history, even when viewed through the prism of his mental health, is not insignificant.
In all of those circumstances, even when full weight is given to the applicant’s subjective case, I am unable to conclude that a non-parole period of nineteen months and five days imprisonment, being 40% of the proposed head sentence, is appropriate as the minimum period of actual incarceration.
As this is a dissenting judgment, it is not necessary for me to expand any further on these matters, and it is not appropriate that I indicate the sentence that I would have imposed on the applicant in the fresh exercise of the sentencing discretion.
CAMPBELL J: I have had the considerable advantage of considering the judgments of Brereton JA and Bellew J in draft. I acknowledge the force of Bellew J’s reasoning. However, I agree with the sentence proposed by Brereton JA for the reasons his Honour has given. In the particular circumstances of the case, I agree with his Honour that the adjustment of the ratio between the non-parole period and the additional term his Honour proposes is well justified. I am not of the view that the emphasis given to subjective circumstances including the need for rehabilitation is disproportionate. In particular, I agree with his Honour that the applicant’s intellectual disability substantially reduces his moral culpability, his appropriateness as a vehicle for general deterrence, and the utility of personal deterrence. The same consideration has demonstrably increased the burden of incarceration well beyond that of inmates of ordinary, mental soundness.

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Endnotes

Amendments

04 March 2021 - Paragraphs [10], [12] and [76] amended.

Decision last updated: 04 March 2021

Medium Neutral Citation:	James v R [2021] NSWCCA 23
Hearing dates:	1 December 2020
Date of orders:	03 March 2021
Decision date:	03 March 2021
Before:	Brereton JA at [1] Bellew J at [85] Campbell J at [91]
Decision:	1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed in the District Court on 19 February 2020 and in lieu thereof sentence the applicant to a term of four years imprisonment, with a non-parole period of nineteen months and five days, dating from 1 August 2019, so that he is eligible for release to parole on 5 March 2021.
Catchwords:	CRIME – Appeals – Appeal against sentence – Aggravated break and enter and steal – Whether sentencing judge erred in failing to take into account the extent and severity of the applicant’s mental conditions – Whether sentencing judge erred in failing to determine whether and to what extent the applicant’s mental conditions reduced his moral culpability for his offending behaviour
Legislation Cited:	(NSW) Crimes Act 1900, s 112(2) (NSW) Crimes (Sentencing Procedure) Act 1999, ss 10, 10A, 11, 44(2)
Cases Cited:	Aslan v R [2014] NSWCCA 114 Clarke-Jeffries v R [2019] NSWCCA 56 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61 Hung v R [2019] NSWCCA 303 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Matthew Christopher James (Applicant) Regina (Respondent)
Representation:	Counsel: D Barrow (Applicant) M Kumar (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/343135
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 19 February 2020 Before: Delaney ADCJ File Number(s): 2017/343135