NADEBAUM v POLICE - [2019] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NADEBAUM v POLICE
[2019] SASC 102
Judgment of The Honourable Justice Lovell
25 June 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
The appellant was sentenced in the Magistrates Court to a term of imprisonment for a number of offences committed between 2015 and 2018. The appellant is a person of borderline intelligence and has a psychiatric disability. She appeals against her sentence on the basis that it is manifestly excessive due to errors made by the Magistrate.
Whether the Magistrate adequately considered the principle of diminished responsibility – whether sufficient weight was given to the principle of rehabilitation – whether personal deterrence is appropriate where psychiatric disability
Held, allowing the appeal:
1. The Magistrate erred in properly considering the effect the appellant’s psychiatric diagnosis had on her behaviour and moral culpability.
2. The Magistrate erred in not considering whether personal deterrence would be effective considering the appellant’s psychiatric condition.
R v Jongewaard [2009] SASC 346; House v The King (1936) 55 CLR 499; Wong v The Queen (2001) 207 CLR 584; Hili v The Queen (2010) 242 CLR 520; R v Kreutzer (2013) 118 SASR 211; R v Morse (1979) 23 SASR 98; Markarian v R (2005) 228 CLR 357; R v Wiskich [2000] SASC 64; R v Hronopoulos [2017] SASCFC 143; R v Tsiaras [1996] 1 VR 398; Mason-Stuart v The Queen (1993) 61 SASR 204; R v Douglass [2019] SASCFC 67, considered.

NADEBAUM v POLICE
[2019] SASC 102
LOVELL J:
Overview

The appellant, a person of borderline intelligence and with a psychiatric disability, was sentenced in the Magistrates Court to a term of imprisonment of one year, five months and 15 days with a non-parole period of 10 months for a number of offences committed between 2015 and 2018. The appellant appeals the sentence, contending that the Magistrate made a number of errors leading to the sentence being manifestly excessive.
Background
The matter has a complex background.
At the time of sentence, the appellant was a single 32-year-old woman who was unemployed and receiving Newstart benefits. She had an extensive psychiatric history. A neuropsychological review found her IQ to be in the “extremely low average to borderline” range. Of importance is that the appellant, in May 2009, had been diagnosed by her treating psychiatrist, Dr Jennings, as suffering an Intermittent Explosive Disorder. Dr Jennings had been treating her since that time for that disorder.
On the 18 March 2014, the appellant was sentenced, in relation to earlier offending, on two counts of assault and one count of threaten to cause harm. Dr Jennings provided an opinion that at the time of the offending the appellant was mentally incompetent to commit the offences. This diagnosis was accepted by the court at the time of sentencing and the appellant was released on licence pursuant to section 269NB of the Criminal Law Consolidation Act 1935 (SA). A condition of the licence was that she undergo treatment for her psychiatric condition. She did not breach her licence conditions.
During 2016, the appellant ceased using her prescribed medication due to its side effects which caused drooling and pruritus. At this time she was in a relationship. The appellant missed a number of appointments with Dr Jennings but eventually consulted him in February 2017. At that time she told Dr Jennings that she was keen to restart the medication as she had noticed an increase in her anger outbursts. In October 2017, she consulted Dr Jennings and reported that she was suffering anger outbursts when provoked.
It is against that background that the appellant committed a range of offences from July 2015 to August 2018. The delay in having the matters finalised related to a court-ordered Part 8A investigation into whether the appellant suffered a mental impairment such that she was totally unable to control the conduct alleged to give rise to the offending. During the course of the remand to obtain the report the appellant committed further offences.
Counsel for the appellant sought to obtain a report from Dr Jennings. The appellant failed to attend the nominated appointment time. The Court ordered a report from a different psychiatrist, Dr Lim. Dr Lim reported on 20 January 2018 that she disagreed with the diagnosis of Dr Jennings that the appellant suffered from an Intermittent Explosive Disorder. She considered that the appellant suffered from an Antisocial Personality Disorder and also had borderline personality traits. Dr Lim considered that the appellant was not “completely unable” to control her behaviour pursuant to s 269C(1)(c) of the Criminal Law Consolidation Act 1935 (SA) and therefore did not support a “mental impairment” defence.
The appellant disputed the opinion of Dr Lim and a report was obtained from Dr Jennings. In his report of 18 November 2018, Dr Jennings adhered to his opinion that the appellant suffered from an Intermittent Explosive Disorder, but agreed with Dr Lim that a mental impairment defence could not be sustained. Dr Jennings pointed to a change in the wording of the legislation since 2014 to support his inability, as at November 2018, to support such a defence. For reasons discussed later, the change in legislation created a further problem.
Against this background the appellant pleaded guilty to all the offending.
The offending
Between April and July of 2015, the appellant committed the theft of two television sets, worth about $500 each, from Adelaide International Villages.
On 11 August 2016, the appellant became angry in a Cash Converters store and, after being asked to leave, she wilfully damaged a toaster and computer by knocking them to the ground.
On 17 October 2016, the appellant committed the offences of aggravated assault, indecent behaviour and wilful damage at a real estate agency. After being told the manager was not available to see her, the appellant yelled at an administrative assistant, threw the counter bell at her, bent over and exposed her buttocks and anus to her, kicked her in the head and mouth, dug her nails into the assistant’s arm and on leaving, smashed a glass door and ripped a power cord from a keyboard.
On 14 December 2016, the appellant behaved in a disorderly manner. She and her boyfriend were camping on a reserve when they had a fight. It was a loud argument that was disturbing to neighbours and the appellant was seen to be naked from the waist down.
On 10 September 2017, the appellant committed the offences of assault and threaten harm. The appellant became angry with a customer service officer at an On The Run over an issue recharging a phone card. She threw items from the counter at the customer service officer, screaming, calling her a “whore” and a “cunt” and threatening to return and stab her when she finished work. Another worker at the store told the appellant to leave and the appellant threw a number of items at her, hitting her with a bottle of orange juice.
On 18 November 2017, the appellant assaulted a café worker after being asked to leave. The appellant threw a coffee cup at the worker, which hit her in the stomach, as well as other items which missed.
On 17 December 2017, the appellant committed the offences of offensive language, assault, wilful damage and refuse name. A manager at Woolworths in Walkerville asked the appellant to leave after she became irate in the store. The appellant tried to get into a service area for staff, grabbed at the manager’s face with her knuckles hitting her forehead, snatched her glasses and squashed them beyond repair, and yelled words like “cunt”, “fucking whore”, “hoe” and “fat bitch”.
On 22 December 2017, the appellant breached bail by attending the Woolworths store at Walkerville.
On 22 February 2018, the appellant committed the offences of wilful damage, assault and refuse name. After being told to leave a premise on King William Street because she was being aggressive, the appellant smashed a cup, causing a floor tile to break, and struck the owner with a clenched fist to his hand.
On 23 February 2018, the appellant behaved in a disorderly manner and assaulted a person waiting at a bus stop. The victim was the sister of the appellant’s former boyfriend and the appellant yelled at her, threw her bag to the ground and slapped her in the chest.
On 26 April 2018, the appellant behaved in a disorderly manner at a dental clinic. She was aggressive and confrontational to staff, swearing and shouting at staff and other members in the room.
On 22 August 2018, the appellant committed the offences of wilful damage and refuse name. She was refused a loan at Cash Wizard so became angry, picked up an Eftpos machine and threw it across the room, pushed a computer keyboard, mouse and printer off the counter and threw a television on the ground. The appellant refused to provide details to the police.
The psychiatric evidence
The Magistrate had before him the reports of the two psychiatrists, Dr Jennings and Dr Lim. These reports were obtained for the purpose of determining whether the appellant was totally unable to control her conduct such that she had a mental impairment defence. The appellant’s interview with Dr Lim was terminated early because the appellant lost her temper with Dr Lim and demanded she apologise for making her angry. When no apology was forthcoming the appellant threatened to assault Dr Lim.
Dr Lim did not have the benefit of the report from Dr Jennings, which contained a detailed psychiatric history. It is unfortunate that Dr Lim was not asked to comment on the further history provided by Dr Jennings as to the appellant’s response to treatment, nor the explanation Dr Jennings gave, in response to Dr Lim’s report, as to why he maintained his diagnosis. At the time of writing her report, Dr Lim did not have the benefit of the up-to-date history taken by Dr Jennings and, in particular, the good response the appellant showed to his treatment of her psychiatric condition, however described.
What is important however, is that both psychiatrists considered that the appellant had a significant psychiatric illness; they disagreed on the diagnosis. While Dr Lim disagreed with the diagnosis of an Intermittent Explosive Disorder, she considered that the appellant had an Antisocial Personality Disorder and borderline personality traits.
Symptoms of a Borderline Personality Disorder include impulsivity, irritability and aggressiveness coupled with reckless disregard for the safety of herself or others and a lack of remorse. Dr Lim noted that individuals with an Antisocial Personality Disorder are prone to angry outbursts which are reinforced if they result in secondary gains. Dr Lim considered that the appellant also had borderline personality traits characterised by actual or threats of self-harm, a pattern of unstable interpersonal relationships and emotional dysregulation resulting in inappropriate intense anger or frequent displays of temper.
Dr Lim was not asked, nor did she provide any opinion on, what, if any, treatment the appellant should undertake relating to her illness. The only evidence relating to past and future treatment that was before the Magistrate was the uncontradicted evidence of Dr Jennings. Whilst it was open to the Magistrate to accept Dr Lim’s diagnosis, Dr Jennings was treating the appellant and, whatever label could be attached to her illness, she appeared to respond to, at least to some extent, his management of her condition.
The submissions before the Magistrate
The appellant, not having a mental impairment defence (this issue is dealt with later in these reasons), pleaded guilty to all charges. The appellant had acknowledged, from the outset, the objective elements of all the offending. The delay in entering guilty pleas was due to the Part 8A investigation. Once that issue was resolved, the appellant pleaded guilty. The Magistrate allowed a 30% discount for the pleas of guilty.
The appellant, through her counsel, urged the Magistrate to accept that, because of her psychiatric condition in conjunction with her low to borderline IQ, she had “diminished responsibility”. Counsel urged the Magistrate to show leniency when sentencing.
Counsel urged the Magistrate to accept the opinion of Dr Jennings, but submitted that even if he were to accept the opinion of Dr Lim, the same submissions applied. Counsel referred to the appellant’s extensive psychiatric condition, her “low to borderline IQ”, the fact that since she had resumed treatment from Dr Jennings she had committed no further offences and that she had recently obtained employment selling copies of “The Big Issue” in the Adelaide CBD. The appellant sought a suspension of any sentence of imprisonment.
The Magistrate’s reasons
The Magistrate, having heard submissions, revoked the appellant’s bail and remanded her in custody for sentence. He sentenced her two days later.
The Magistrate began his reasons by setting out the facts relating to the offending. Some of the offending was serious. He then turned to a discussion of the psychiatric evidence.
The Magistrate referred briefly to the report of Dr Jennings remarking that he outlined the appellant’s background “in helpful detail”. The Magistrate noted that the report referred “to [her] treatment for Intermittent Explosive Disorder using prescribed mood stabilisers and tranquilisers”; he made no comment on the fact that the treatment, in part at least, was of assistance. The Magistrate noted that Dr Jennings maintained his diagnosis of Intermittent Explosive Disorder but that was in contrast with the report of Dr Lim.
The Magistrate then turned to a discussion of Dr Lim’s report, setting out in considerable detail the history of her conflict with the appellant during the interview and her reasons for disagreeing with the diagnosis of Dr Jennings. The Magistrate found her report “convincing” without any analysis of Dr Jennings’ response to her report. The Magistrate accepted the opinion of Dr Lim over the treating psychiatrist Dr Jennings. That finding was open to him and the appellant does not challenge that finding.
Specifically, the Magistrate found:
In my view, the offending shows a pattern of behaviour where you behave angrily to frighten others to do what you want, or, punish them for not doing what you want. I accept Dr Lim’s diagnosis that your conduct is consistent with an Antisocial Personality Disorder.
In relation to the submissions of the appellant the Magistrate stated:
It was submitted on your behalf that I should show a great deal of leniency because your responsibility for your actions are diminished because of your disorder. I do accept and take into account in your favour for sentencing your borderline intelligence that no doubt makes life a hard challenge for you.
…
You need to understand that you do not get your own way by being threatening, abusive and violent. The only thing you will get from that sort of conduct, given your prior history, is imprisonment. No other sentencing option but imprisonment is appropriate to reflect the seriousness of the offending before the Court, the need for general deterrence and, most importantly, the need to deter you personally from behaving this way in the future.
You must take personal responsibility for your actions, recognise the suffering you inflict on others and change your behaviour. What you have done throughout this offending is simply unfair to others and unacceptable to people going about their business. You need to be deterred from continuing to act in this way towards others.
(Underlining added)
The Magistrate imposed one sentence for all the offending having indicated the starting point for each group of offences. The Magistrate stated that had it not been for the pleas of guilty he would have imposed a sentence of 25 months imprisonment. To allow for the guilty pleas he reduced the sentence to one year, five months and 15 days and set a non-parole period of 10 months.
Grounds of Appeal
The appellant contended that the sentence was manifestly excessive. Particulars of this ground were that the Magistrate failed to apply the principle of diminished responsibility and/or failed to give sufficient weight to the principle of rehabilitation.
During the course of the hearing of this appeal, the appellant was granted leave to add a further ground alleging that, at least in relation to some of the offences, the two psychiatrists applied the wrong test when assessing mental incompetence pursuant to s 269C(1)(c) of the Criminal Law Consolidation Act 1935 (SA).
Principles on appeal
The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[1] where Doyle CJ said:[2]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy”.
(Citations omitted)
[1] [2009] SASC 346.
[2] [2009] SASC 346 at [40].
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[3] does the appeal court have the power to quash the sentence passed below.
[3] (1936) 55 CLR 499.
Manifest excess is a conclusion. Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, as the plurality said in Wong v The Queen:[4]
… intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
[4] [2001] HCA 64 at [58]; (2001) 207 CLR 584, 605.
As the High Court said in Hili v The Queen,[5] “that is a conclusion that does not admit of lengthy exposition”.
[5] [2010] HCA 45 at [59]; (2010) 242 CLR 520, 539.
As was said in R v Kreutzer[6] by Kourakis CJ,[7] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[6] [2013] SASCFC 130; (2013) 118 SASR 211.
[7] [2013] SASCFC 130 at [10]; (2013) 118 SASR 211, 214-215.

The approach to be adopted when considering the question of manifest excess was discussed in Hili v The Queen where the Court said:[8]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
…
But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
(Citations omitted and emphasis added)
[8] (2010) 242 CLR 520, 538-539 at [59]-[60]; see also R v Cecchin [2017] SASCFC 109 at [44]-[46] (Lovell J).
Factors to be considered when deciding the question of whether a sentence is manifestly excessive include the maximum penalty for the offence, the standards of sentencing customarily observed for that offending, where the criminal conduct sits in the scale of seriousness of crimes of that type and the personal circumstances of the offender.[9]
[9] R v Morse (1979) 23 SASR 98.
This Court, on appeal, is not to interfere with a sentencing discretion unless an error was made in the exercise of that discretion.[10] Similarly, this Court is not to interfere merely because it would have exercised its discretion in a manner different from the way in which the sentencing Magistrate did.[11]
[10] House v The King (1936) 55 CLR 499.
[11] Markarian v R (2005) 228 CLR 357.
Diminished responsibility
Section 11(1)(f) of the Sentencing Act 2017 (SA) requires a court to take into account the defendant’s age, and physical and mental condition (including any cognitive impairment) when sentencing an offender. At common law, the mental condition of an offender was always a relevant factor in the sentencing process. An offender suffering a psychiatric illness that falls short of mental incapacity is entitled to have the court consider whether that illness should be regarded as a mitigating factor. The weight to be given to the mental condition of an offender varies according to the circumstances of the offending and the nature and severity of the mental condition.
In R v Wiskich[12] Martin J observed:[13]
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
[12] [2000] SASC 64.
[13] R v Wiskich [2000] SASC 64 at [62]; see also R v Leach [2003] SASC 92; R v Hronopoulos [2017] SASCFC 143.
While the mental state of an offender at the time of his or her offending is always a relevant factor in determining sentence, the circumstances in each case will vary and the weight to be given to matters personal to the offender will depend on a number of circumstances. The severity of the offender’s condition is important, especially in considering whether the condition can be regarded as a cause of the offending. Other circumstances will also be relevant, such as the extent to which the offender has sought treatment.[14]
[14] R v Hronopoulos [2017] SASCFC 143 at [33].
As the Victorian Court of Appeal stated in R vTsiaras:[15]
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibilities. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may not have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a heavy sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[15] [1996] 1 VR 398, 400.
A court, when confronted with a defendant suffering from a mental illness must consider the question of whether the illness is such as to diminish the importance of general and personal deterrence in fashioning an appropriate sentence.
Parker J (Kelly and Stanley JJ agreeing) in R v Douglass,[16] when considering the question of section 11(1)(f) of the Sentencing Act 2017 (SA) observed:
[16] [2019] SASCFC 67 at [36]-[38]
In Muldrock v The Queen, the High Court considered the principles to be applied in sentencing persons described by the Court as “mentally retarded”. The Court noted that the hierarchical classification of intellectual disability has limited utility and can sometimes be misleading. Thus, persons without a full understanding of the disability may consider that a “mild” intellectual disability is inconsequential.
In Muldrock, the High Court cited with approval the observation by Young CJ of the Victoria Court of Criminal Appeal in R v Mooney that:
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.
The High Court also stated in Muldrock that:
The principle is well recognised. 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. 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.
(Footnotes omitted)
As King CJ observed in Mason-Stuart v The Queen:[17]
The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.
A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender’s offending. The problem is to find a solution which would enable the public to be protected without imposing a harsh punishment on a person whose subjective moral responsibility is seriously diminished.
[17] (1993) 61 SASR 204, 205-206.
These principles were not in dispute on this appeal.
Discussion
The Magistrate preferred the opinion of Dr Lim to that of Dr Jennings. However, that did not change the fact that the appellant suffers from a significant psychiatric illness. The appellant clearly suffered, in the opinion of Dr Lim, from a significant psychiatric problem, compounded by her low to borderline IQ.
The Magistrate’s finding that the “offending shows a pattern of behaviour where you behave angrily to frighten others to do what you want, or, punish them for not doing what you want” was open to him. However, the Magistrate needed to consider whether the psychiatric diagnosis proffered by Dr Lim contributed to that behaviour and if so, whether the appellant’s moral culpability was diminished by her condition.
The Magistrate, when considering the submission that the appellant deserved leniency due to her diminished responsibility, pointedly stated:
I do accept and take into account in your favour for sentencing your borderline intelligence that no doubt makes life a hard challenge for you.
The Magistrate, at this point, made no reference to the appellant’s psychiatric condition. From later remarks, it appears to have been a deliberate approach rather than an oversight. The Magistrate, later, referred to the need for personal deterrence and the fact that the appellant needed to take personal responsibility for her actions. The Magistrate appears to have approached his task on the basis that preferring the opinion of Dr Lim meant that he did not need to consider the appellant’s psychiatric condition any further. That approach was in error.
Dr Lim considered that the appellant suffered from an Antisocial Personality Disorder. As mentioned earlier this diagnosis recognises that the appellant’s symptoms could include impulsivity, irritability and aggressiveness coupled with reckless disregard for the safety of herself or others and a lack of remorse. In addition, Dr Lim stated that the appellant’s borderline personality traits could be characterised by actual or threats of self-harm, a pattern of unstable interpersonal relationships and emotional dysregulation resulting in inappropriate intense anger or frequent displays of temper. These symptoms were, of course, clearly evident in much of the appellant’s offending behaviour.
The Magistrate, in his reasons, did not discuss, at all, the effect that the appellant’s psychiatric condition, as found by Dr Lim, had, or may have had, on her behaviour. To put that another way, the Magistrate was required to consider whether the appellant’s psychiatric condition reduced her moral culpability for the offending as opposed to her legal responsibility. His reasons do not indicate any such consideration. Nor do his remarks reveal any consideration of treatment of her recognised psychiatric difficulties overlaid by her intellectual difficulties.
The opinion of Dr Lim was limited to commenting on whether the appellant was “totally unable to control her behaviour”. She found the appellant was not “totally unable to control her behaviour”. This is of course not a finding that the appellant was totally able to control her behaviour. The appellant’s psychiatric condition and low to borderline IQ cannot be overlooked in this context. In my view, there is nothing in Dr Lim’s report that would support the observations of the Magistrate that the only way to teach the appellant to take personal responsibility for her offending was to fashion a sentence in which personal deterrence played the most significant role. To do so is to assume that the appellant was totally able to control her behaviour.
It is clear that the appellant’s ability to control her behaviour is diminished by her psychiatric condition and low to borderline IQ. This was the position whether the opinion of Dr Lim or Dr Jennings was accepted. What was in dispute between the psychiatrists was the diagnosis of her condition, not whether the appellant had a psychiatric disorder.
The Magistrate was in error in not considering the effect the appellant’s psychiatric condition had on her moral responsibility for the offending. Further, the Magistrate did not consider whether the specific deterrence he considered appropriate could even be achieved because of her psychiatric condition.
The Magistrate, in assessing the appellant’s responses to Dr Lim, appears to have overlooked that the appellant had been told that she had an Intermittent Explosive Disorder. This state of mind of the appellant was not fanciful or deceitful. It is precisely what she had been told by her treating psychiatrist. It was clearly reasonable for her to hold this belief. That it may have led to “secondary” gains, as described by Dr Lim, is simply part of her psychiatric condition. The Magistrate did not consider the question of possible treatment for the condition nor did he have regard to the opinion of Dr Jennings as to the appellant’s improvement when on medication.
It was necessary for the Magistrate to consider these matters. He has not done so and, in my view, he was in error in failing to do so.
I would allow the appeal on this ground.
Application of the test under s 269C of the Criminal Law Consolidation Act 1935 (SA)
It is not strictly necessary for me to decide this ground. However, this ground of appeal is relevant to the question of the proper approach on resentencing.
The appellant committed the relevant offending between July 2015 and August 2018. Both psychiatrists considered the question of whether the appellant was mentally incompetent to commit the offending (or at least some of it) on the test in the Sentencing Act 2017 (SA) as it was amended on 23 October 2017. That amendment could only apply prospectively. The test could not apply to offending that was committed before the amendment. The appellant sought leave to withdraw her pleas of guilty to those offences committed prior to 23 October 2017 as, she submitted, her pleas had been entered, mistakenly, on the basis that she could not establish that she was mentally incompetent to commit the offending.
The respondent opposed the application. While accepting that the amendment only applied prospectively, the respondent submitted that the change was one of form only as the pre-amendment phrase “unable to control” had been interpreted in earlier cases as meaning “totally unable to control”. That is, there was no practical difference between the two tests.
The Magistrate imposed a global penalty for all the offending. Given that I have decided the appeal on the first ground and the appellant is to be resentenced, I will hear the parties further on the approach to be adopted to this issue.
Order
Appeal allowed.
I will hear the parties further on the question of resentence.