Perticarini v Regina

[2019] NSWCCA 192

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Perticarini v Regina [2019] NSWCCA 192
Hearing dates:	28 June 2019
Date of orders:	19 August 2019
Decision date:	19 August 2019
Before:	Bathurst CJ at [1] Harrison J at [2] N Adams J at [3]
Decision:	(1) Grant leave to appeal.  (2) Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against sentence – robbery armed with knife – whether error in failing to find intellectual disability mitigated moral culpability – whether error in failing to take into account intellectual disability when considering general deterrence – whether sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), s 97(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2), s 54D Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases Cited:	Aslan v R [2014] NSWCCA 114 Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Faleafga v R [2016] NSWCCA 178 Gardiner v R [2018] NSWCCA 27 Kocyigit v R [2018] NSWCCA 279 Lowndes v The Queen (1999) 195 CLR 665 Luque v R [2017] NSWCCA 226 Markarian v The Queen (2005) 228 CLR 357 Moore v R [2005] NSWCCA 407 R v Alkanaan [2017] NSWCCA 56 R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64 R v Henry [1999] NSWCCA 111 R v Hetherington [2016] NSWCCA 165 R v Qutami [2001] NSWCCA 353
Texts Cited:	Diagnostic and statistical manual of mental disorders (5th ed, 2013)
Category:	Principal judgment
Parties:	Marco Perticarini (Applicant) Regina (Respondent)
Representation:	Counsel: Ms R Khalilizadeh (Applicant) Ms B Baker (Respondent)   Solicitors: Lamont Law (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2017/262796
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Date of Decision: 13 April 2018 Before: Wells DCJ SC File Number(s): 2017/262796

Judgment

1. BATHURST CJ: I agree with the orders proposed by N Adams J and with her Honour’s reasons.

2. HARRISON J: I agree with N Adams J.

3. N ADAMS J: In the early hours of 3 August 2017 the applicant, Marco Perticarini, robbed a taxi driver in Rockdale. He had just lost all of his money playing poker machines at the St George Tavern. He drove away from the Tavern in his car before stopping to retrieve a 10 to 15 centimetre knife from a tackle box kept in the boot. He disguised himself before proceeding to threaten the victim, who had just completed his shift, with the knife. His victim handed over all the money that he had earned that night: $175. The applicant demanded more. At this point, he thrust the knife towards the victim. He then demanded the victim’s car keys, which the victim also handed over, before the applicant fled the scene. Following investigations, police arrested and interviewed him. He denied any involvement in the offence.

4. On 30 November 2017, the applicant pleaded guilty in the Local Court at Sydney to one count of robbery armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 20 years imprisonment.

5. After proceedings on sentence before her Honour Judge Wells SC at the District Court in Lismore on 13 April 2018, her Honour delivered an ex tempore judgment. The applicant was sentenced to 4 years imprisonment comprising a non-parole period of 2 years and 3 months and a balance of term of 1 year and 9 months. He received the full 25% discount for his guilty plea.

6. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the severity of his sentence. In doing so, he relies upon three grounds of appeal: that the sentencing judge erred in failing to find that his intellectual disability mitigated his moral culpability (Ground 1); that the sentencing judge erred in failing to take into account his intellectual disability when considering general deterrence (Ground 2); and that the sentence is manifestly excessive (Ground 3).

Factual background

7. Mr Petricarini was sentenced on the basis of an Agreed Statement of Facts, as tendered by the Crown, which can be summarised as follows.

8. At approximately 2:20am on 3 August 2017, the applicant drove to Rockdale and entered the St George Tavern. He withdrew some money from an ATM and started playing a poker machine. He continued to play for about an hour. During this time, he lost a significant sum of money. CCTV footage of the Tavern shows him walking in circles around the tavern at 3:14am, with his hands on his head.

9. The applicant then left the hotel and drove his car a short distance away. He had a fishing tackle in his car. He went to the boot of his car, and got a knife out of the tackle box. The knife was between 10 and 15 centimetres long.

10. Meanwhile, at about 3.20am, the victim pulled his taxi up on a street in Rockdale. He was about to hand the taxi over to another driver as he had just completed his shift. When he opened the rear driver's door to get his bag out, he felt a hand touch his right shoulder. The victim turned and saw the applicant, who was wearing a cap, a hood over the cap and a scarf across his face so only his eyes could be seen.

11. The applicant said to the victim “Give the fucking money”. The victim handed over the $175 that he had earned during his shift. The applicant then said “Give me more money from the car”. When the victim told the applicant that he had no more money in the car, the applicant began making thrusting motions with the knife towards the victim.

12. The applicant then demanded the victim’s car keys. The victim unlocked the driver’s side door, sat down in the driver’s seat and attempted to close the door to lock himself inside. The applicant grabbed the victim’s right forearm and the inside of the door to force the door open.

13. The victim gave the applicant the keys and the applicant ran off. As the applicant ran, the victim saw him throw something that sounded like the car keys and they hit a wall. The victim then called triple-0 and police attended a short time later.

14. The entire incident was captured on CCTV within the taxi. Stills showed what the applicant was wearing at the time. This footage was compared with footage at the Tavern. Inquiries of the company controlling the ATM inside the Tavern revealed that the account used on the night was owned by the applicant.

15. On 28 August 2017, a search warrant was issued at the applicant’s home where he had been living for the preceding ten days. The clothing depicted in the CCTV footage was located.

16. Following investigations, police arrested the applicant. In an interview with police, the applicant identified himself on CCTV footage taken from the St George Tavern but denied any involvement in the offence

The applicant’s subjective case

17. At the time of his proceedings on sentence the applicant was 24 years old. He had no criminal history. In addition to a Pre-Sentence Report, a number of documents were tendered on his behalf.

18. His mother, Nadia Pettovel, swore an affidavit on 12 April 2018. She was not required for cross-examination. She deposed to the applicant’s childhood and background. She had separated from the applicant’s father when he was three years old. In 2011 she had moved from Sydney to Mullumbimby to live whilst the applicant remained in Sydney because he was part way through an apprenticeship and wished to keep working for his employer. She stated that “I spoke with Marco daily and found at times he would be struggling with life as many young people do, however it was a little more difficult for Marco without having a connecting relationship with his father or family”. She was aware that the applicant had a three-year relationship with a young woman which broke up just before the robbery. In late 2016, she (the applicant’s mother) was preoccupied because she was trying to become her niece’s legal foster parent.

19. After the robbery, the applicant moved up to live with her. She expressed shock at learning that he had a gambling addiction. She stated that he had expressed remorse to her.

20. The applicant provided an affidavit dated 12 April 2018. The Crown objected to it being read unless he made himself available for cross examination.

21. In his affidavit, the applicant explained that he had struggled with alcohol, drugs and gambling since he was a teenager. He had been employed as an air conditioning technician for the past six years. By July 2017, his gambling was out of control. His girlfriend of three years left him and he lost his job. He had had a falling-out with his father. He stated that he felt that there was no one that he could turn to.

22. The applicant said that on the night of the offence he went to the Fairfield Bowls Club where he lost $1000 in 45 minutes. He said that he was “crazy” thinking about the money that he had lost. He decided that he had to win the money back and drove to the St George Tavern at Rockdale. At the St George Tavern he lost another $600, which was all the money that he had.

23. The applicant said that he was angry with himself. He said that he was playing with a fishing knife, and “next thing I know, without thinking at all, I showed the driver my knife and told him to give me his money”. The applicant stated that he “thought if [he] had a little money, [he] could use it to get [his] savings back”.

24. In his affidavit, the applicant expressed remorse for his offending, for the harm that he had done to the taxi driver and for the stress that he had caused to his mother and stepfather. He explained that he no longer gambles, and has been seeing a gambling counsellor for his addiction. He described the robbery as hitting “rock-bottom”.

25. In cross-examination, the applicant was shown a five page printout of transactions conducted on his ANZ chequing account. He was directed to a number of withdrawals amounting to $650 at the Illinois Hotel in Five Dock on 6 August, a few days after the robbery. The pattern of these withdrawals was similar to the pattern of withdrawals on the night of the offence. It was suggested to him that he had made these withdrawals for the purposes of gambling. The applicant denied that those withdrawals had been made for gambling. He explained that a couple of days after the offence he had gone to a strip club and spent $650 buying drinks for friends and for the dancers in order to make himself feel better.

26. It was put to the applicant by the ODPP solicitor that, if he had no job by then, it was “highly unlikely” that he would be spending $650 on drinks and dancing girls. The following exchange then took place:

“A.   Well mentally at that time I wasn’t thinking about situations. As I said, I had hit rock-bottom. Money didn’t faze me. Everything was just disappearing in my life

Q.   But I thought you hit rock-bottom on 3 August, not 6 August?

A.   I did, but rock-bottom is rock-bottom, you know. Once you hit it its very hard to come back from it, which I’ve tried.

Q.   So was robbing the taxi driver a turning point for you or not?

A.   The – leading points up to it, especially the gambling yes.”

27. At this stage of his evidence her Honour briefly questioned him as follows:

“Q.   But it didn’t stop you from going out and having drinks with your friends and paying for dancing girls?

A.    No yes.

Q.    That would suggest a celebration, not rock-bottom wouldn’t it?

A.    Yes your Honour. But I wasn’t celebrating your Honour.

Q.    Well what were you doing?

A.    I was just trying to forget about everything.”

28. The applicant was cross-examined extensively about the circumstances of the offence. He denied getting the knife out of the boot, so that he could use it to rob the taxi driver. With respect to his affidavit evidence that he “showed” the knife to the victim, he was shown the photograph stills from the CCTV in the taxi which depicted the knife at the victim’s neck and the victim’s hands up in the air. When it was suggested to him that he did more than just “show” the victim the knife, the applicant became non-responsive and had to be directed by her Honour to answer the question. The applicant ultimately agreed that he used thrusting motions to the victim, so as to intimidate the victim into giving him money.

29. The applicant agreed that he had told his psychologist that he did not think that what he had done could attract a gaol sentence. He explained that he had lost his job because he did not get on with a co-worker. He was paid a salary of $1656 a fortnight at the time.

30. The applicant was questioned about his finances and the fact that he wanted to buy a house and get a mortgage in the future. He was then asked the following questions:

“Q. You recognise that a mortgage can be – I mean whatever a house costs, but most houses are more than two hundred, $300,000 in regional centres, let alone in a city if that’s your ultimate goal. How will you be able to handle a debt of that magnitude, given what you did in the week since losing your job back in July last year?

A: Can you please explain that?

Q. Sorry, it was a long question.”

31. The ODPP solicitor then broke down the question, and the applicant continued to answer her questions.

32. A report from psychologist Amira Bergman, dated 24 February 2018 was relied upon by the applicant.

33. Ms Bergman described that throughout her interview with the applicant he struggled to understand “some simple concepts”, often asking “what you mean” or “what does that mean”, which required further clarification by this author. She explained that the applicant commenced an apprenticeship as a mechanic and attended TAFE once a week after completing school. He excelled at the practical component of the job but struggled with the learning component. He left the apprenticeship and was always in regular employment thereafter.

34. As for her expert opinion, she opined that according to the Diagnostic and statistical manual of mental disorders (5th ed, 2013) (“DSM-5”) the applicant met the criteria for the following diagnoses:

“300.4   Persistent Depressive Disorder (Dysthymia), with anxious distress, early onset, mild

312.31   Gambling Disorder, Persistent, in early remission, Severe with 8 out of 9 of the criteria met

305.70   Poly-Substance (Stimulant) disorder, Severe, in early remission, with 7 out of 11 of criteria met”

35. Ms Bergman went on to record the results obtained from cognitive psychometric testing and opined that the applicant met the criteria for:

“317    Intellectual Disability (FSIQ.=68 and moderate adaptive skills)”

36. She further stated:

“Marco’s general cognitive ability is within the extremely low range of intellectual functioning. Marco’s general cognitive ability is within the extremely low range of intellectual functioning, as measured by the FSIQ, His overall thinking and reasoning abilities excess those of only approximately 2% of individuals his age… Marco may experience great difficulty in keeping up with his peers in a wide variety of situations that require thinking and reasoning abilities.”

37. A report from Petra Hinchcliffe, his gambling counsellor, reported that the applicant was responding well to treatment but requires on going one on one counselling.

38. A reference from his current employer, Larry Wells, from Instant Screw Piling, disclosed that the applicant had commenced employment with him shortly after moving up to live with his mother. The applicant was described as a “motivated and hard-working employee” who shows initiative. A letter from a representative of the Foster Care organisation, arranging the fostering of the applicant’s cousin, reported that, after completing a risk assessment of the applicant, he had come to the view that the applicant is a valued member of the family.

Remarks on Sentence

39. The sentencing judge observed that the applicant was “quite immature and he has a mild intellectual disability”. She found that, at 24 years of age, he was a young man, but was not so young that he attracted special consideration. Her Honour also found that:

“The psychological report diagnoses him with a persistent mild depressive disorder with anxiety and distress, a gambling disorder, poly-substance disorder and an intellectual disability.

I accept the latter and that he has some depressive disorder, though not to the extent that it reduces his moral culpability or suggests that there is some causative link with his offending that would mitigate his responsibility for the offence. Though on one hand he has a gambling disorder, I agree with the submissions of the Crown prosecutor, who submits that whilst there might have been a poly-substance disorder diagnosed, it must have been fairly limited, given the pattern of use which suggests more of a recreational type of use than a steady addiction to those substances.

Individually, those matters do not mitigate the offending in any way. Collectively, they suggest that he showed a limited ability to think clearly and exercise judgment when he committed these offences.”

40. Taking all of the relevant subjective factors into account, the sentencing judge reached the following conclusion:

“A good deal has been said about his subjective circumstances and that there was a convergence of events that provided the trigger for the commission of these offences. Those events, the gambling and the other problems that he had though, were not matters that were out of his control. There is no suggestion that he came from the sort of deprived background wherein he had no idea of how to address his problems. Prior to the offence, he had been [in] employment that had provided him with quite a substantial income. Many offenders who appear before this Court facing such serious charges do not have those skills at all. They have no positive role models from whom they might be able to receive assistance in terms of a direction out of their difficulties. This offender, although he had some personal problems, simply took a shortcut that night when he had lost his money. I have had careful regard to his personal circumstances and a good deal of the Court's time has been taken in relation to detailing those personal circumstances. However, the circumstances and the fact that he has never before offended, cannot overwhelm the objective seriousness of the offence.”

41. In respect of the objective seriousness of the offence, her Honour took into account that there was some planning but that that planning was limited to the use of the knife and a disguise, that the robbery must have been “terrifying” for the taxi driver who was a vulnerable person and the offence occurred in the dark in the early hours of the morning. With respect to general deterrence, the sentencing judge said:

“The Court has to ensure that such offenders are adequately punished. The Court needs to impose a sentence that would not only deter the offender before the Court, but other offenders who might consider carrying out similar types of offences.”

42. The sentencing judge allowed a 25% discount for the early plea of guilty and found the applicant was unlikely to reoffend. Her Honour considered the principles in the guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 and noted that the applicant was “close to being on all fours with the relevant characteristics”, namely: he is a young offender with no criminal history; he wielded a weapon, namely a knife, that was capable of inflicting serious injury; there was limited actual violence but a real threat of violence by his use of the knife and he did touch the victim; only a small amount of money was taken; and there was a plea of guilty, the significance of which was limited by the strong Crown case.

43. The sentencing judge found “special circumstances” within s 44(2) of the Crimes (Sentencing Procedure) Act1999 (NSW) and varied the statutory ratio such that the non parole period was only 56% of the head sentence.

Applicant’s submissions

Ground 1: error in failing to find that the applicant’s intellectual disability mitigated his moral culpability

44. The applicant submitted that the central issue on this application is whether the applicant’s intellectual disability should have been taken into account in the sentencing exercise. The applicant contended that the sentencing judge failed to appreciate the extent of his intellectual disability, and in turn erred in failing to find that his intellectual disability reduced his moral culpability. It was submitted that his intellectual disability, and the issues that flowed from that condition had a significant role to play in the sentencing exercise.

45. Although the sentencing judge accepted the evidence of the psychologist, Ms Bergman, which supported the diagnosis of an intellectual disability, it was submitted that the report went further than simply noting the diagnosis. Ms Bergman outlined the contribution of the applicant’s intellectual deficits to his involvement in the offending, as well as the link between low intellectual functioning and engaging in behaviours such as gambling or substance abuse, which were factors at play during the offence.

46. The applicant submitted that, while the sentencing judge referred to his limited ability to think clearly and exercise judgment, those factors should have diluted the very strong finding her Honour made that his moral culpability was not in any way affected by his intellectual disability.

47. Further, although the sentencing judge referred to his “mild” intellectual disability, there was no formal diagnosis of this. Although there was a reference to a previous utilisation of the term “mild retardation”, the descriptor of “mild” was not the way in which the applicant’s intellectual disability was described by the psychologist. In any event, it was submitted, just because it is “mild” does not mean it is inconsequential. The sentencing judge’s reference to a “mild intellectual disability” may have resulted in a misapprehension of the extent of the impact of his intellectual disability which, in turn, impacted upon sentencing judge’s discretion.

48. The applicant also submitted that it was not incumbent on him to show that the matters that led to the offending were matters that were not within his control, nor that he had no idea how to address the problems that led to the offence. While her Honour referred to the applicant’s psychological issues as “collectively” showing a “limited ability to think clearly and exercise judgment when he committed these offences”, it was submitted that this did not dilute nor negate the sentencing judge’s express remarks that his moral culpability and responsibility were not mitigated.

49. While recognising that the principles in Director of Public Prosecutions (Cth) v De la Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“DPP v De la Rosa”) are not absolute, the applicant submitted that in the present case his intellectual functioning is of particular importance as a result of the following factors: he struggled to understand simple concepts, he had difficulties with reading and learning at school, he struggled with the learning component of his TAFE apprenticeship, his general intellectual ability exceeds only 2% of individuals his age, his intellectual difficulties have been compounded by his other mental conditions (the complex nature of which is expounded by the psychologist), there was a link between his cognitive ability and the offending, in conjunction with the other aspects of his mental condition (such as his gambling disorder and poly-substance abuse disorder) and he was completely unaware that an offence like this carries a jail term.

Ground 2: Error in failing to take into account the applicant’s intellectual disability when considering general deterrence

50. The applicant submitted that the sentencing judge erred in the manner in which she had regard to general deterrence, as a result of the absence of any consideration of his intellectual disability and its impact upon that sentencing factor.

51. It was submitted that the applicant’s intellectual disability can be seen as having contributed both to his offending conduct and the circumstances giving rise to his offending conduct (such as his gambling disorder). As a result of his intellectual disability and its impact upon him and his offending conduct, he was not a suitable vehicle for general deterrence. Consideration should have been given to the impact of his intellectual disability on general deterrence, and the weight afforded to general deterrence should have been reduced accordingly. It was submitted that the sentencing judge failed to address this issue either directly nor indirectly.

52. The applicant submitted that there was no consideration, nor mention, of how his intellectual disability (nor his mental conditions) affected the weight afforded to general deterrence in the sentencing exercise. It was submitted that this was an unduly restrictive approach which should be avoided, in accordance with the principles in Luque v R [2017] NSWCCA 226.

Ground 3: Manifest excess

53. The applicant submitted that his moral culpability, reduced by his mental condition at the time, was low. He had no criminal record. There was extremely little planning of the offence. In those circumstances, it was submitted, the sentence imposed was manifestly excessive.

54. The applicant relied upon the sentences imposed in the Crown appeals of R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64 and R v Hetherington [2016] NSWCCA 165 as well as the matters of Gardiner v R [2018] NSWCCA 27, Moore v R [2005] NSWCCA 407 and Faleafga v R [2016] NSWCCA 178 as indicating that the present sentence is manifestly excessive. The applicant also relied on Judicial Commission statistics.

Consideration

Grounds 1 and 2

55. Grounds 1 and 2 can be considered together as they both contend error in the manner in which the sentencing judge took the applicant’s intellectual disability into account. Ground 1 asserts that it should have resulted in a finding of reduced moral culpability whereas Ground 2 contends that it meant that the applicant was not a good vehicle for general deterrence.

56. It is not alleged that her Honour failed to consider the question of whether the applicant’s intellectual disability was such as to reduce his moral culpability; her Honour squarely addressed this issue. Rather, the specific error alleged is that her Honour failed to appreciate the extent of that intellectual disability by describing it as “mild.” It was contended that had this error not been made her Honour would inevitably have arrived at a finding that the applicant’s moral culpability was reduced.

57. The evidence before her Honour about the extent of the applicant’s intellectual disability included evidence that he had been continuously fully employed since leaving school and had been employed as an air conditioning technician for the six years leading up to the offence. Although he had struggled at school he received the benefit of one on one tutoring and was able to complete school to year 10. When the applicant’s mother moved to Mullumbimby to live, the applicant remained in Sydney because of his employment. Shortly before the offence he had been in a three year relationship earning over $1600 a fortnight. After the offence, when he moved up to live with his mother, he obtained new employment within a couple of days.

58. Significantly, her Honour had the opportunity to observe the applicant during lengthy cross-examination. The transcript reveals that he was able to follow the cross-examiner’s questions. The only question he sought clarification on was that extracted above at [31] which, on any view, was a long confusing question. At the sentencing proceedings before her Honour, counsel conceded that with the exception of that question the applicant was able to follow the questioning. It was further accepted at the hearing of this application that her Honour was entitled to have regard to the fact that the applicant had always been employed and was able to articulate himself clearly in the evidence before her.

59. Despite the evidence as to his employment and ability to follow questions, the applicant submitted that these aspects of his subjective case were not sufficient to detract from the severity of his intellectual disability and his “profound deficiencies” in functioning.

60. The applicant contends error in her Honour’s description of him having a “mild intellectual disability” because that is not the way Ms Bergman described his disability. The applicant has an IQ of 68. Ms Bergman’s evidence is that such an IQ, being between 50-55 to 70, used to be described as “Mild Retardation” in the DSM-IV and DSM-IV TR. Since the DSM-5 (2013), the diagnostic term is now “intellectual disability” and the levels of severity are based on adaptive functioning rather than IQ scores with adaptive functioning determined by the level of support the individual requires to live independently. There was no evidence before the court that the applicant needed any supports to live independently. Nor was any evidence put before the court that the applicant’s intellectual disability had ever lead to a loss of self-control in the past.

61. Ms Bergman’s report does not go so far as to point out any causal link between the robbery and the applicant’s intellectual disability. Instead, she identified the general characteristics of persons who have an intellectual disability. For example she noted:

“Premature school leaving, negative or unrealistic expectations for the future, psychiatric symptoms leading to instability and personality traits such as impulsivity and lack of self-control are also found amongst those living with intellectual difficulties.”

62. A further example of the generality of many of Ms Bergman’s observations is as follows where she stated that:

“There are extensive clinical pathophysiological commonalities between pathological gambling and substance use disorders. Low self-control has indeed been found to be associated with both substance use/abuse and pathological gambling. While self-control is strongly led by genetic factors, past research has identified parenting practices such as socialisation and discipline as being significant in instilling self-control in a child. This knowledge is paramount when seeking to understand the lead between low self-control and variations in delinquent behaviour. Furthermore, many of the characteristics associated with problem gambling and substance abuse can be observed in individuals with lower general cognitive ability, and indicates that individuals with lower intellectual functioning are in fact at higher risk of problem gambling and substance abuse disorders.”

63. During the hearing of this application, the applicant’s counsel accepted that a person may have a deficit in social skills, problem solving and self-control and yet not have an intellectual disability. Despite this, it was submitted that the fact that these features are, in some respects, more prevalent amongst those who have intellectual disability was relevant to the question of the applicant’s moral culpability. It was further submitted that intellectual disabilities are complex and can inform other aspects of an offender’s life that may, in turn, lead to offending behaviour.

64. The relevant principles concerning the relevance of an intellectual disability such as the applicant’s were summarised by McClellan CJ in DPP v De la Rosa, at [177] (citations omitted):

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

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

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

• It may reduce or eliminate the significance of specific deterrence: …

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

65. In Aslan v R [2014] NSWCCA 114 Simpson J (as her Honour then was) observed the following in relation to these five principles in DPP v De La Rosa (at [34]):

“It will be observed that none of these principles 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.”

66. An example of the application of these principles can be found in R v Alkanaan [2017] NSWCCA 56. The applicant in that matter had been found to have an IQ of between 69 and 75 described by Dr Nielssen as a “mild intellectual disability” (at [71]). It was contended that the sentencing judge erred in rejecting a contention that the applicant’s moral culpability was reduced. The sentencing judge had observed:

“Even if his formal IQ assessment suggests a mild intellectual disability, I am not satisfied that such disability has any real or significant impact on his life, and any of his ordinary daily activities. It does not significantly affect his functioning. It does not impact in any significant way on an assessment of his moral culpability for these offences. Nor, in my assessment, is it such as to make Mr Alkanaan an inappropriate medium for general deterrence.”

67. On appeal to this court Harrison J (with whom Payne JA and Schmidt J agreed) rejected this ground of appeal. In doing so his Honour referred to the decisions in DPP v De laRosa and R v Aslan and then stated at [108]:

“These propositions are not in doubt. However, Simpson J’s comments in Aslan also need to be considered and applied to the circumstances of each particular case. The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ at CL in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is 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.”

68. His Honour went on to state at [109]:

“… it is apparent that even though Mr Alkanaan suffered from some mental impairment or disability, his Honour did not consider that his moral culpability was thereby reduced. A lack of capacity to reason, as an ordinary person might, as to the wrongfulness of his or her conduct “will, in most cases, substantially lessen the offender’s moral culpability for the offence”: Muldrock v The Queen (2011) 244 CLR 120;[2011] HCA 39 at [54]. His Honour did not consider this to be such a case. His Honour considered that, even despite his low intelligence and mental illness, Mr Alkanaan had demonstrated an ability to live a relatively normal life. That finding was open on the evidence.”

69. Although the applicant accepted that the principles contained in DPP v De La Rosa are not absolute, it was submitted that the Court should “exercise caution” in accepting an approach that is too restrictive. In this regard reliance was placed on the decision in Luque v R. In that matter the sentencing judge had not accepted the evidence of the applicant’s mental illness insofar as it was based on the applicant’s untested accounts. But there was a wealth of other material about her condition and its relevance to her offending. It was in this context that Button J (with whom Macfarlan JA and Hamill J agreed) observed at [84] (the passage relied upon by the applicant):

“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.”

70. This passage was relied upon by the applicant to support the proposition that a restrictive approach should not be taken in relation to the relevance of evidence of an intellectual disability. When [84] of Luque v R is read in the context of the preceding passages (commencing at [74]) it is clear that the restrictive approach his Honour is referring to is that stated in R v Qutami [2001] NSWCCA 353 (and many times since) that caution should be exercised when assessing untested assertions made in reports tendered on sentencing proceedings. That decision does not assist in the determination of the present application.

71. I am not satisfied that the applicant has established that the sentencing judge erred in the exercise of her discretion. The evidence does not support a finding that her Honour misapprehended the extent of the applicant’s disability. Furthermore, it was open to her Honour to decline to make a finding that the applicant’s moral culpability was mitigated by his intellectual disability.

72. In circumstances where I am not satisfied that any error has been established under Ground 1, it seems to me that Ground 2 cannot succeed either. Ground 3 was premised on a submission that her Honour had misapprehended the extent of the applicant’s intellectual disability. In circumstances where I do not accept that proposition, no error has otherwise been established under this Ground either. Consistent with the determination of this court in R v Alkanaan at [112], it was open to her Honour to conclude that the applicant’s intellectual disability did not reduce the need for general deterrence.

Ground 3

73. In order to establish that the sentence imposed on the applicant was manifestly excessive it is necessary for him to establish that it was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357 at [25]. It is not a question of whether this court would have exercised its sentencing discretion differently: Markarian v The Queen at [28]. As the High Court observed in Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15] (footnote omitted):

“Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.”

74. The maximum penalty for armed robbery is 20 years imprisonment. Although there is no standard non-parole period specified in the table following s 54D of the Crimes (Sentencing Procedure) Act, the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 applies. Her Honour was satisfied that the applicant’s case was close to being “on all fours” with R v Henry. It was common ground that the applicant was a young offender, (although at 24 years of age he was towards the top of the age group that could be considered young). He had no criminal history. He wielded a knife at the victim, there was limited actual violence but a real threat of violence by his use of the knife, there was limited planning and only a small amount of money was taken and there was a plea of guilty.

75. The sentencing range in R v Henry was four to five years imprisonment before the consideration of aggravating and mitigating factors. The applicant was afforded a 25% discount for his early plea whereas the R v Henry guideline is based on a late plea of guilty allowing a discount of 10%. As against this guideline the applicant received a total sentence of four years. The non-parole period was reduced to 56% of the head sentence following her Honour’s finding of special circumstances.

76. The applicant relied upon other decisions of this court to establish, by way of comparison, that his sentence is excessive: R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64; Gardiner v R [2018] NSWCCA 27; Faleafga v R [2016] NSWCCA 178, Moore v R [2005] NSWCCA 407 and R v Hetherington [2016] NSWCCA 165. Two of these matters were Crown appeals. All of them differed when compared to each other and differ when compared to the applicant’s case. Just because the particular facts and subjective features of those cases resulted in lower sentences does not mean that the sentence imposed on the applicant was unreasonable and plainly unjust.

77. As French CJ, Hayne, Kiefel and Bell JJ observed in Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 at [40] (footnotes omitted) “[c]onsistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence”. Their Honours further stated at [42]:

“.., in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect."

78. Nor do the statistics demonstrate that the sentence imposed was manifestly excessive. The samples are relatively small and, as always, there is no information concerning the objective and subjecting findings of the cases contained in those samples.

79. The applicant has not established that the sentence imposed on him was unreasonable or plainly unjust. In arriving at this conclusion I have had regard to the fact that the offence occurred in the early hours of the morning, in darkness and was committed against a vulnerable, isolated victim. The CCTV stills depict the applicant holding the knife towards the back of the victim's head and neck whilst the victim crouches down with one hand up in a protective gesture. The applicant accepted that he thrust the knife towards the victim. As Bellew J (with whom Hoeben CJ at CL and Campbell J agreed) observed in Kocyigit v R [2018] NSWCCA 279 at [36]:

“The fundamental right of a member of the public to go about his or her business without fear of being attacked has been repeatedly reinforced by this Court: see for example Vaeila v R [2010] NSWCCA 113 at [22]; R v Woods [1990] NSWCCA (9 October 1990 unreported); R v Tuuta [2014] NSWCCA 40 at [52]; Mansour v R; Hughes v R [2013] NSWCCA 35 at [43].”

80. Although the victim in Kocyigit v R was physically assaulted, the principle remains apposite to this case.

Orders

81. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

**********

Amendments

22 August 2019 - Quotation marks removed in [1] and [2]

Decision last updated: 22 August 2019