Luque v R

[2017] NSWCCA 226

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Luque v R [2017] NSWCCA 226
Hearing dates:	16 August 2017
Date of orders:	16 August 2017
Decision date:	20 September 2017
Before:	Macfarlan JA at [1] Button J at [2] Hamill [113]
Decision:	(1) The Court grants leave to appeal against sentence imposed in the District Court. (2) It allows the appeal. (3) It quashes the sentence imposed on 30 January 2017. (4) It re-sentences the applicant by imposing a term of imprisonment with a non-parole period of 10 months commencing on 4 October 2016 and concluding on 3 August 17, and a balance of term of eight months concluding on 3 April 2018. (5) Directs that the applicant be released forthwith.
Catchwords:	CRIME – leave to appeal against sentence – where appellant convicted of offence against public justice – pursuant to s 314 of the Crimes Act 1900 (NSW) – whether sentencing judge erred in consideration of the applicant’s mental state – whether sentence manifestly excessive – appeal allowed – discretion to re-sentence exercised – lower sentence imposed
Legislation Cited:	Crimes Act 1900 (NSW), s 314
Cases Cited:	Aslan v R [2014] NSWCCA 114 Devaney v R [2012] NSWCCA 285 Dinsdale v R (2000) CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 House v The King (1936) 55 CLR 499; [1936] HCA 40 Laspina v R [2016] NSWCCA 181 R v Scognamiglio (1991) 56 A Crim R 81 R v Qutami [2001] NSWCCA 353 R v Forrester (NSWCCA, 16 October 1998, unrep) Richards v R [2006] NSWCCA 262 Ryan v R [2017] NSWCCA 209 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Elisabeth Irene Luque (Applicant) Regina (Respondent)
Representation:	Counsel: P Coady (Applicant) M England (Respondent) Solicitors:
File Number(s):	2015/00337290
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 30 January 2017 Before: Delaney AJ File Number(s): 2015/00337290

Judgment

1. MACFARLAN JA: My reasons for joining in the Court’s orders accord with those given by Button J.

2. BUTTON J:

Introduction

3. On 16 August 2017, I joined in orders of this Court that had the effect of immediately releasing Elisabeth Irene Luque (the applicant) to parole. The following are my reasons for doing so.

4. The applicant had sought leave to appeal against the sentence imposed upon her by Acting Judge Delaney sitting in the District Court at Penrith on 30 January 2017. A single count of making an accusation intending another person to be the subject of investigation for an offence, knowing that other person to be innocent, had been placed before his Honour by way of a committal for sentence. That is an offence contrary to s 314 of the Crimes Act 1900 (NSW). It carries a maximum penalty of imprisonment for seven years when dealt with on indictment, and has no standard non-parole period.

5. At first instance, the solicitor for the applicant had submitted that there were alternatives to full-time custody available. The prosecutor submitted to the contrary, and his Honour accepted the latter submission. The learned sentencing judge imposed a head sentence of imprisonment for two years and six months, with a non-parole period of 12 months; clearly enough, special circumstances were found that led to a marked reduction in the ratio between the non-parole period and the head sentence. A backdate was provided that reflected a discrete period spent in custody by the applicant bail refused before the imposition of sentence.

Background

6. The background of the matter is unusual. I say that because it featured evidence of serious dishonesty that commenced in the context of what may well have been a genuine suicide attempt.

Objective features

7. According to an agreed statement of facts placed before his Honour, in September 2015 the applicant, then aged 33 years, was employed as a medic at Epping Railway Station. On 2 September 2015, a lost wallet containing a number of debit and credit cards was handed in to the lost property office of that train station. CCTV footage and other digital evidence established that the applicant stole the wallet from her workplace later on the same day, and covered her tracks by making a false entry in the station computer system to the effect that the wallet had been returned to its owner.

8. On the following day, the applicant used one of the debit cards contained in the wallet she had stolen to make a number of purchases at various shops within a shopping centre at Hornsby.

9. Exactly two months later, on 3 November 2015, the applicant was arrested by transport police, and charged with offences of dishonesty.

10. At about 1.41 am on 4 November 2015, a call was made to triple 0 by a female requesting an ambulance to the home address of the applicant. One is entitled to infer that the caller was the applicant. When paramedics entered, they found the front door unlocked, and the applicant lying face down on the floor, unresponsive, with her hands and feet bound. She responded to the administration of a well-known anti-narcotic drug. On transfer and admission to Nepean Hospital, she was found to be suffering from a number of soft tissue injuries. Later toxicology showed that she had a number of prohibited drugs in her system, along with prescription drugs prone to abuse.

11. Shortly after arriving at the hospital, the applicant told the authorities a complicated and completely false story about having been the subject of sexual and physical violence. Part of the story featured her being forced to use the debit card unlawfully, and one can infer that at least that part of what she said was an effort at dishonest exculpation.

12. The police believed that they were confronted with the case of a woman who had been the victim of a home invasion that left her physically and sexually brutalised, drugged, and restrained. As one would expect, significant resources were expended investigating that claim, including maintaining the integrity of the purported crime scene.

13. The applicant went to the extent of engaging in a “video walk-through” with the police, in which she re-enacted in detail what she claimed had occurred. She also, according to the statement of facts, spoke to a television journalist, and claimed that she had been sexually assaulted and detained by a man whom she had met on a website devoted to finding a flatmate.

14. In the course of her series of lies to police, the applicant implicated another man who, in truth, was entirely innocent. There is no need to recount the details of that, except to say that there was no danger of him ever actually being charged, for the simple reason that, from an early stage, there was a degree of circumspection on the part of the police about what the applicant had to say.

Arrest, detention, bail

15. By 16 November 2015, the police definitively rejected the version of the applicant. Far from continuing their investigations, they charged her with the offence detailed above. At that stage, she exercised her right to silence.

16. The applicant was refused bail on arrest. She was granted bail on 11 March 2016, but not before having being dealt with in the Local Court at Hornsby on 3 February 2016 for the larceny of the debit card and its repeated dishonest use. For the former offence, she received a fixed term of imprisonment for two months, commencing on 1 December 2015 and concluding on 31 January 2016. For the latter offences, she was placed on concurrent 12 month bonds. In other words, two months of her incarceration between 16 November 2015 and 11 March 2016 was not referrable to the matter under appeal.

17. Once released to bail, the applicant travelled to Townsville and reunited with her parents (I shall discuss the events that occurred there later in this judgment). She returned from Far North Queensland to be sentenced by his Honour on 30 January 2017 as described above, and remained in custody from that date until the hearing of the application before this Court on 16 August 2017.

Criminal record

18. A criminal history of the applicant from New South Wales showed only the entries from the court appearance of 3 February 2016. A criminal record from Queensland, however, was more extensive. It showed the following.

19. In 2003, in the Magistrates Court at Townsville, the applicant had been dealt with for “stealing by clerks and servants”. No conviction was recorded, but she was fined $500.

20. In February 2005, in the same Court, she had been dealt with for stealing. Again, no conviction was recorded, but the applicant was fined $600, and ordered to pay restitution of $100.

21. In February 2007, in the same Court, the applicant was dealt with for committing a public nuisance (no particulars of what she actually did were before the District Court or this Court). No conviction was recorded, and the applicant was fined $300.

22. In the following month and in the same Court, the applicant was dealt with for “possession of anything appropriated to the use of the police service” (again, no further particulars were provided), and stealing. Yet again, no conviction was recorded on each charge, but the applicant was placed on probation for a period of 18 months.

23. In short, as at the date of the offence under appeal, the applicant had a well-established proclivity to dishonesty; on the other hand, it seemed to manifest itself in trivial ways.

Some aspects of the proceedings on sentence

24. As for the defence case on sentence, no oral evidence was placed before his Honour. Documentary evidence was relied upon, in the form of a report from forensic psychiatrist Dr Richard Furst, a letter from the father of the applicant, “some medical records” (seemingly all from Nepean Hospital), a letter from a psychotherapist who had been treating the applicant in Townsville, and a letter from the applicant expressing remorse about the past and optimism about the future.

25. As one would expect in the circumstances of: the applicant pleading guilty to lying to police and others extensively; in the context of having stolen a valuable item in the custody of her employer; making a dishonest computer entry to cover up that crime; and thereafter repeatedly using a debit card dishonestly to obtain goods, his Honour was extremely cautious about accepting anything that the applicant had to say; in particular, things that were not on oath and were mitigatory. Nevertheless, the remarks on sentence indicate that his Honour was prepared to accept the following.

26. As I have said, the applicant was born in 1982, and was 33 years of age when the offending occurred. At the time, she was living alone in the suburb of Glenmore Park, some distance from Epping. She had been born in South Korea, and had been adopted by Australian parents. For a time she lived in Perth, but thereafter moved to Queensland. She was married in 2002, and for a second time in 2011, and is the mother of two children.

27. Separately, his Honour accepted, on the basis of the letter addressed to the Court from the applicant, that she was remorseful.

Evidence about the mental state of the applicant

28. Because of the importance of the question of mental illness or disturbance to the two grounds of appeal and the disposition of the matter by this Court, it is necessary to summarise the documentary evidence about those topics in some detail.

The report of the forensic psychiatrist

29. Dr Furst noted that he had been asked to provide an opinion as to whether, at the time of committing the offence, there were any mitigating psychiatric or psychological factors relevant to the applicant.

30. He recorded that he relied upon the following sources of information: his assessment of the applicant at his practice; the police facts; the criminal history of the applicant, and some medical records from Justice Health (the latter were not placed in evidence by either party).

31. Derived from what he had been told by the applicant, Dr Furst described a privileged upbringing. He recorded a history of depression as a teenager, arising from the inability of the applicant to fulfil her dream of working as a vet. He also reported a brief period of self-harming.

32. He received a history of treatment by a psychiatrist from the age of about 20 years, including the prescription of various mood-stabilising medications.

33. The applicant told Dr Furst that the offences of dishonesty were committed as a result of financial and emotional stress. As for the substantive offence that began on 4 November 2015, the applicant told him that “it was basically a suicide attempt gone wrong”.

34. Dr Furst recorded that the applicant had been prescribed amphetamines for attention deficit hyperactive disorder (ADHD) by a psychiatrist about three years previously. She had also been prescribed sedatives for insomnia and anxiety in the past.

35. Using a self-report scale, Dr Furst found that the results of the applicant were “highly suggestive” of ongoing symptoms of ADHD.

36. With regard to the medical records from Justice Health, Dr Furst noted a mental health assessment at Mulawa Correctional Centre on 19 November 2015. The applicant was noted to have symptoms of panic attacks, insomnia, and ADHD. The applicant was managed in a “safe cell” during the first days of her remand period.

37. The psychiatrist also noted a further mental health assessment at Dilwynnia Correctional Centre on 14 December 2015. On that occasion, the applicant had reported a previous diagnosis of ADHD, and having been treated for bipolar disorder with various drugs. At the time there were no overt signs of mental illness, although possible personality disorder was suspected.

38. A court liaison report of 8 November 2015 suggested that the applicant had been prescribed amphetamines for ADHD. Her mood appeared depressed at that time. The applicant gave a history of apparent hypomanic episodes, and provided details of their effects on her behaviour.

39. Dr Furst saw the notes of Dr Singh, which included a prescription for amphetamines, along with a prescription for an anti-convulsant medication often prescribed in the treatment of bipolar disorder.

40. Dr Furst provided a relevant diagnosis of: ADHD; possible bipolar affective disorder (type II); and likely borderline personality traits. He went on to detail the characteristics of each of those conditions, and to propose treatment for them.

41. ADHD was described as a neurobehavioral developmental disorder, featuring problems with attention and hyperactivity. The symptoms commence at an early age.

42. Bipolar affective disorder (type II) was described by the psychiatrist as “a mood disorder characterised by one or more episodes of abnormally elevated energy levels and mood, cognitive disturbance, and one or more depressive episodes.”

43. Borderline personality disorder was described by the psychiatrist as “a prolonged disturbance of personality function characterised by depth and variability of moods.” Attempted and completed suicide were noted as possible outcomes of the disorder.

44. In summary, Dr Furst said “in my opinion, her emotional instability as a consequence of her ADHD, borderline personality traits and possible bipolar affective disorder contributed to her poor judgement at the time of making false allegations that triggered a major police investigation.”

45. The report of Dr Furst concluded by proposing various treatment options in custody and in the community; by noting that, on the basis of his diagnosis, Dr Furst believed that custody would “weigh more heavily” upon the applicant than upon other inmates; and by expressing a degree of optimism about the future of the applicant.

The letter from the father of the applicant

46. The letter from the father of the applicant addressed to the sentencing judge spoke of the “longstanding mental health issues” of the applicant. It also spoke of them being successfully addressed since she had been living in Townsville and engaging in treatment.

47. Her father spoke of the reclusive, withdrawn, and virtually incommunicative person that she was when she arrived in Townsville in March 2016. She spent most of her time in bed, and was incapable of caring for her children.

48. After a time, the applicant commenced to see “a highly qualified and experienced psychiatrist”, as well as a respected clinical psychologist. She attended frequent appointments with each of them.

49. According to her father, things changed markedly: the applicant began to be able to interact with her husband, her children, and her parents.

50. Her father described the applicant as having “become rational again”. She had also become able to care for her children again.

51. The letter from the applicant’s father concludes by expressing concern about the prospect of the applicant receiving a custodial sentence, and expresses confidence that, if able to return to Townsville, the applicant would enjoy continuing family support and “continue with her psychiatric and psychotherapeutic care.”

Report of the treating psychotherapist

52. The letter of the psychotherapist, Mr de Groot, spoke of the applicant attending his practice twice a week. Her initial presentation was of major depression. He described the applicant as initially being suspicious and withdrawn, but moving to a position of “free and frank exchange” with him.

53. The psychotherapist also spoke of the prognosis as being very favourable, with the applicant demonstrating a determination to make “positive and a real change”. He wrote of the fact that the applicant had reunited with her children; re-established her relationship with her ex-husband (to the benefit of her children); re-established contact with her adoptive parents; and developed a “purposeful projection” of the future, including the possible establishment of a business based on exercise and diet.

54. In short, the report was positive about the progress that had been made in the past many months, and optimistic about the future.

The medical records

55. The medical records from Nepean Hospital generally confirmed the circumstances of the offence of 4 November 2015, including the fact that the applicant was found unconscious on the floor, resuscitated by way of an anti-narcotic drug, and spoke to others of an alleged assault. The applicant was described as “teary and emotional”, and having taken an overdose of an opioid. Even at that stage, suspicion was raised about the version given by the applicant, in that the medical records speak of “Alleged sexual assault/physical assault/ ?deliberate vs forced opiate overdose”.

The letter from the applicant

56. Finally, the letter from the applicant to the sentencing judge spoke of herself at the time of the offence as not being “in a good place mentally, financially and emotionally.” The letter goes on to speak of how difficult it was to be in custody for a time, the progress that had been made in Far North Queensland, her remorse for her actions, and the proposition that “I am rebuilding”.

Aspects of remarks on sentence

57. The remarks on sentence may be summarised as follows.

58. They recount the agreed objective features, detailing the stealing of the wallet, the dishonest use of the debit card, and the detailed lies told by the applicant after her discovery on 4 November 2015. The remarks also detail the numerous bases upon which the police came to believe, correctly, that the assertions of the applicant were false.

59. The remarks on sentence also emphasise that a “significant amount of police time was wasted in investigating innocent people.”

60. His Honour assessed the objective seriousness of the matter as being “just slightly below the mid-range of objective seriousness.”

61. As for the mental state of the applicant at the time of the commission of the offence, his Honour found that the matter featured significant planning. The finding was also made that this was “a cunning and devious attempt to divert attention from what she had already done and to place blame on someone else.”

57. His Honour recorded that “it was submitted that a mental illness, where it contributes to the commission of the offence in a material way, may reduce the moral culpability of the offender”, and accepted the clear correctness of that principle. Thereafter, however, his Honour embarked on a detailed analysis of the psychiatric report of Dr Furst, approaching the history recorded in it with the utmost caution, bearing in mind that much of what the applicant had told the psychiatrist was uncorroborated, and that she had not given evidence in the proceedings on sentence.

58. An important part of the remarks on sentence is the following paragraph:

“There is no suggestion in anything that Dr Furst says that the actions taken by the offender were something that she could not see [sic] control, over which she had no independent capability of exercising discretion, or had no understanding of what she was doing. In my opinion, the reports do not establish a basis to find that her actions were a direct result of any mental illness or incapacity. She certainly had some depression around that time, but this went far beyond something which could be excused on the basis she had no idea what she was doing.”

64. His Honour went on to describe the applicant as a person whom he assessed as “intelligent, capable of independent and constructive thought”, and someone who had been able to overcome many of the difficulties in her life.

65. His Honour concluded by re-emphasising the seriousness of the offending, noting again the waste of valuable police resources, making the finding that full-time imprisonment should be imposed, making a finding of special circumstances, and thereafter imposing the sentence the subject of appeal.

Grounds

The following grounds were notified and pressed at the hearing of the application:

(1)   The sentencing judge erred in his consideration of the applicant’s mental state.

(2)   The sentence is manifestly excessive.

Ground one

Submissions

66. Counsel for the applicant submitted that the sentencing judge erred in his consideration of the applicant’s mental state and expert evidence about the topic. It was said that the evidence was that the applicant’s mental illness did indeed contribute to the offence in a material way, and that his Honour failed to refer adequately to, and accept, the expert evidence. Emphasis was placed on the diagnosis made by Dr Furst of possible bipolar affective disorder, the applicant’s financial and relationship stressors at the time of the offence, and her compromised mental state.

67. That error, it was submitted, infected the findings of his Honour about the level of planning, the motivation for the offence, her moral culpability, and indeed its objective seriousness. It was said that this was a case in which the applicant’s moral culpability was reduced, and although there was a need for denunciation and for the sentence to reflect the need for general deterrence, those needs were reduced as well: Laspina v R [2016] NSWCCA 181 at [39]-[40].

68. The Crown submitted that the sentencing judge had committed no error in the assessment of, or approach to, the mental condition of the applicant.

69. Counsel submitted that his Honour was correct in finding that the expert reports of Dr Furst and Mr de Groot did not establish that the applicant’s actions were a direct result of any mental illness or incapacity, in the sense that her mental health contributed in “a material way” to the commission of the offence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177]. That finding was said to be open on the evidence placed before his Honour, and there was no error in the exercise of his Honour’s discretion or evaluative judgment: House v The King (1936) 55 CLR 499; [1936] HCA 40.

70. It was emphasised that any mental condition of the applicant did not automatically entitle her to a more lenient sentence: Aslan v R [2014] NSWCCA 114 at [34]. In any event, in making a finding of special circumstances, his Honour took into account the need for the applicant to undergo some “psychological counselling”.

Determination

71. One can understand a sentencing judge approaching with circumspection statements made to a psychiatrist by a person in the position of the applicant. In saying that, I am not speaking of the general caution that should, as a matter of common sense, be exercised in such circumstances, spoken of by this Court in R v Qutami [2001] NSWCCA 353, and many times since.

72. Nor am I seeking to lay down some hard and fast rule to be applied by sentencing judges in circumstances where, on the one hand, the Crown neither objects to the receipt of a document (whether authored by the offender or by a person to whom he or she has spoken) into evidence nor requires its author for cross-examination; but, on the other hand, the tribunal of fact is left with no sworn evidence, no cross-examination, and no impression of the demeanour of an offender in the witness box.

73. This is hardly the case in which one can or should do so, because the admitted offending and its context inevitably give rise to a need for great caution in accepting anything that the applicant had to say about any topic.

74. Nevertheless, the evidence about the mental state of the applicant did not merely derive from what she had to say. It came from a number of sources, as follows.

75. First, the letter from her father spoke directly about her “longstanding mental health issues”, and the fact that there had been marked improvement since she had commenced to receive help from both an experienced psychiatrist and a clinical psychologist. That letter went on to discuss, in great detail, the differences between the applicant before and after effective treatment, and the undoubtedly positive changes that were apparent.

76. Secondly, the letter from Mr de Groot, the psychotherapist who had been treating the applicant in Townsville, did not constitute a diagnosis based upon things the applicant had said to him. Rather, it was a summary of her positive response to the treatment that she had received between March 2016 and January 2017, a period of 10 months.

77. Thirdly, it can be seen that the primary diagnosis provided by Dr Furst was of ADHD. It is true that that was based to some degree on the history and the self-assessment provided by the applicant at the time that she saw the psychiatrist. But it was also based on her presentation, her medical records, and her past diagnosis under the care of an entirely separate medical practitioner (including a prescription written by that other doctor, and sighted by Dr Furst, for a drug well known for treating ADHD).

78. As for bipolar affective disorder, Dr Furst expressed the opinion that it was possible that the applicant met the criteria for that diagnosis. Similarly, with regard to borderline personality disorder, Dr Furst expressed a diagnosis of “likely borderline personality traits.”

79. As I have shown by the extract above at [44], the opinion ultimately expressed by Dr Furst was that ADHD, borderline personality traits, and possible bipolar affective disorder contributed to the poor judgment of the applicant, which underpinned her commission of the offence. That was hardly a naïvely overgenerous expression of opinion; to my mind, it was (understandably) appropriately circumspect. I respectfully do not consider that that opinion was so founded merely on things that had been said to the psychiatrist by the applicant as to be deserving of little or no weight.

80. Separately, in my respectful opinion, the approach adopted by his Honour to the whole question of mental condition was somewhat too restrictive: by that I mean, too high a bar was set before the mental conditions of the applicant were judged to be able to be taken into account on sentence.

81. In the portion of the remarks on sentence that I have extracted above, I consider that some of the negative propositions called upon the applicant to demonstrate more than the law of sentencing required. By that I mean, she did not need to demonstrate that her actions were beyond her control; nor that she had no independent capability of controlling them; nor that she had no understanding of what she was doing. Nor was it incumbent upon the applicant to show that her actions were “excused” on the basis that she had “no idea what she was doing”.

82. Contrary to the foregoing, the question was whether the applicant had established on the balance of probabilities that her actions were mitigated, on the basis that a mental illness or condition played a role of some significance in her offending: for a recent example of that principle, enunciated as long ago as in R v Scognamiglio (1991) 56 A Crim R 81, see Ryan v R [2017] NSWCCA 209.

83. It is perfectly true that, at an earlier stage of the remarks on sentence, his Honour referred, with respect correctly, to the applicable principle. But the subsequent portion of the remarks on sentence that I have extracted above suggests, I respectfully think, that, in applying that principle, too restrictive an approach was taken in practice.

84. In short, whilst the cautious approach to the question of proof of mitigating mental conditions adopted by his Honour was perfectly understandable in the undisputed circumstances of this case, I have respectfully come to the view that the approach adopted by his Honour to the whole question of the mental condition of the applicant was too restrictive.

85. For that reason, I consider that ground one is made out.

Ground two

Submissions

86. Counsel for the applicant submitted that the sentence imposed was manifestly excessive, in light of the following aspects of the offence and its circumstances.

87. Although significant police resources were expended in investigating the applicant’s false accusation, the police determined at a reasonably early stage that she was lying. The person whom she falsely implicated was at no stage charged, prosecuted, or imprisoned.

88. It was said that the sentence did not adequately reflect the applicant’s mental health and efforts at rehabilitation.

89. Finally, the discount afforded to the applicant for her plea of guilty was 25%. Absent this discount, as a starting point, a head sentence of imprisonment for three years and four months would have been imposed. That was said to be simply too long, in light of all of the objective and subjective features (save for the utilitarian value of the plea of guilty), and the applicable maximum penalty.

90. Counsel for the applicant also invited attention to two decisions of this Court with regard to the offence of making a false accusation as points of comparison. In those matters the sentences imposed were one year and six months (with a non-parole period of 6 months), and a fixed term of 12 months respectively: R v Forrester (NSWCCA, 16 October 1998, unrep); Richards v R [2006] NSWCCA 262. In the submission of counsel for the applicant, a comparison of this case with the objective and subjective features in those cases demonstrated that it was not open to impose a substantially more severe sentence upon this applicant.

91. Counsel for the Crown submitted in response that, in all the circumstances, the sentence could not be said to be unreasonable or plainly unjust: Dinsdale v R (2000) CLR 321; [2000] HCA 54 at [6].

92. She submitted that the circumstances identified by the applicant did not indicate some misapplication of principle: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. In particular, counsel noted the fact that an innocent person was subject to police investigation; the unnecessary police resources expended in investigating the allegations made by the applicant; the evaluative judgment open to the sentencing judge with regard to the expert evidence about the mental condition of the applicant; the very significant reduction in the non-parole period away from the statutory ratio; an error made by the sentencing judge in the applicant’s favour with regard to her having no criminal history; and the fact that the offence was committed in breach of conditional liberty, because the applicant had been granted bail for the dishonesty offences some hours beforehand.

Determination

93. As for ground two, in light of the fact that I am affirmatively satisfied that ground one has been established, there is an argument for not troubling to determine it, but simply taking into account all that was said by the parties about that ground on re-sentence.

94. The fact that the applicant has already been released – and therefore the question of the appropriateness of the sentence imposed at first instance is in that sense of historical interest only – argues in the same direction.

95. Finally, the fact that the sentence actually imposed by his Honour was inevitably informed by the erroneous approach to principle that underpins ground one argues in that way as well.

96. Rather than saying nothing about the ground, however, I consider that the better course is merely to deal with it concisely.

97. I think it is sufficient for me to record that, in my opinion, it was open to the discretion of the sentencing judge to impose a sentence of full-time imprisonment.

98. I also think that the non-parole period of 12 months cannot be impugned as manifestly excessive.

99. On the other hand, I think there is force in the proposition of counsel for the applicant that, bearing in mind the maximum penalty, the finding of remorse, the fact that previous criminality had never led to a formal conviction, and the fact that, at the least – even if one were not to accept that the applicant suffered from a number of mental conditions – the offence nevertheless had a distinct flavour of irrationality about it, the starting point of a head sentence of three years and four months was excessive in all of the circumstances of this case.

100. In short, I would uphold ground two, with regard to the length of the head sentence actually imposed.

Re-sentence

101. Exercising the sentencing discretion afresh on re-sentence, I regard the following factors as important.

102. First, the offending was objectively serious, although below mid-range. It extended over a period of some days, had a degree of determination to it, and, as was conceded by the solicitor for the applicant at first instance, constituted a vast waste of valuable police resources.

103. Secondly, on the other hand, I am satisfied on the balance of probabilities that it occurred in the context of a person who was suffering from a constellation of mental conditions, as described by Dr Furst and corroborated by evidence from a large number of sources. Quite apart from that, the circumstances of the offence, its brazenness, disproportionality, and bizarre nature, far from detracting from that proposition, in fact support the correctness of the view of the psychiatrist.

104. Thirdly, although the applicant has committed repeated criminal convictions for dishonesty, they are clearly not of the greatest seriousness. And, bearing in mind the evidence of her father that the applicant does indeed suffer from longstanding mental health issues, one might infer that those offences have a flavour of disturbed compulsion about them.

105. Fourthly, the insightful letters from her father, and from her treating psychotherapist, bode well for the future.

106. Fifthly, although I undoubtedly approach things said by the applicant with significant caution, I do accept the portion of her affidavit (read on re-sentence) deposing that in custody she has been treated by a well-known anti-psychotic drug, and that she has found custody very difficult. In particular, the former factor corroborates the proposition that she is indeed a person who is suffering from mental conditions of some significance.

107. Sixthly and finally, in a sense the decision of the Court to impose a full-time sentence of imprisonment on re-sentence had its hypothetical aspects, for the simple reason that the unalterable reality was that the applicant had served a significant period in custody by the time the application was heard.

108. By that I mean, to have upheld the appeal and to have imposed (for example) a three year bond would in many ways have been more onerous for the applicant than imposing a short and backdated sentence that featured her immediate release, and thereafter a short period on parole.

109. Weighing up all of the objective and subjective factors myself, on re-sentence I was of the view that a short sentence of full-time imprisonment was appropriate.

110. Consistently with that view, by the time the applicant had served over eight months in custody solely referable to the offence under appeal (constituted by the period from 16 November 2015 until 30 November 2015; the period from 1 February 2016 until 11 March 2016; and the period from 30 January 2017 until 16 August 2017), I felt on re-sentence that that was a sufficient period of mandatory incarceration, to be followed by a short period of conditional liberty (maintaining the finding of the sentencing judge of special circumstances).

111. In particular, the sentence imposed by the Court featured a head sentence of imprisonment for 18 months. That meant that a starting point of two years was adopted; a not insignificant period.

Orders

112. It is for the foregoing reasons that I joined in the following orders that were made on 16 August 2017:

(1)   The Court grants leave to appeal against sentence imposed in the District Court;

(2)   It allows the appeal;

(3)   It quashes the sentence imposed on 30 January 2017;

(4)   It re-sentences the applicant by imposing a term of imprisonment with a non-parole period of 10 months commencing on 4 October 2016 and concluding on 3 August 17, and a balance of term of eight months concluding on 3 April 2018;

(5)   Direct that the applicant be released forthwith;

(6)   The Court will provide its reasons in due course.

113. HAMILL: On 16 August 2017 I joined in orders allowing the applicant’s appeal against sentence and sentencing her in a way that resulted in her immediate release from gaol. I have now had the great benefit of reading the draft judgment of Button J. My reasons for joining in the orders are essentially the same as those of his Honour. However, I would like to make a few additional observations.

114. The first is that a sentencing Judge dealing with evidence of an offender’s mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. In other respects, the impact of an offender’s mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender’s difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.

115. The second matter is that an offender who relies on evidence of psychiatric issues as a matter of mitigation is not setting out to establish a defence of mental illness or substantial impairment and is not required to prove that they did not understand what they were doing, or that they did not know that what they were doing was wrong. The part of the sentencing judgment cited by Button J at [63] comes perilously close to imposing such a burden on the applicant.

116. The third matter is that the circumspection with which a sentencing Judge may treat self-serving (hearsay) statements made by an offender to an expert witness ought not to equate to a devaluation of the opinion provided by the expert. Nor does that circumspection necessarily apply to the psychiatric history provided to the expert. That is particularly so where, as in this case, there is a substantial body of evidence to corroborate the history provided. As the judgment of Button J shows there was cogent evidence in various forms establishing both a sad history of mental health issues and a connection between that history and the applicant’s criminal conduct. Allsop P (as his Honour then was) stated the correct approach emphatically in Devaney v R [2012] NSWCCA 285 at [88]:

“87. The Crown put the submission below and on appeal, and to a degree the submission was adopted by her Honour, that there should be some discounting of the clarity and force of the psychiatric evidence because the applicant did not give evidence. For instance, her Honour thought that there was a degree of manipulation of the psychiatrists by the applicant.

88. It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition.”

117. Finally, I agree with Button J that the total sentence imposed by the sentencing Judge was manifestly excessive. It was unreasonable and plainly wrong. I would have come to a similar view in relation to the non-parole period. The applicant had a record of what must have been nuisance style offences of dishonesty. The courts which dealt with her had not previously recorded a conviction for those offences. She had made progress towards rehabilitation during the period of her remand. This was a case where it would have been open to the sentencing Judge to have imposed a non-custodial alternative or to have imposed a sentence of less than two years whereupon consideration should have been given to suspending the sentence on the applicant entering a conditional bond. However, as Button J has explained, those options were not real or practical alternatives by the time the matter came to be considered by this Court because the applicant had already been in full time custody for more than eight months. Further, for the reasons explained by Button J, the offence was a serious one.

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Decision last updated: 01 August 2019