R v Doolan
[2017] SASCFC 80
•11 July 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DOOLAN
[2017] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
11 July 2017
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 - INTELLECTUALLY HANDICAPPED OFFENDER
Appeal against sentence. The appellant was found guilty of 11 offences: five counts of aggravated robbery, two counts of attempted aggravated robbery and single counts of aggravated assault causing harm, aggravated recklessly causing serious harm, aggravated serious criminal trespass in a place of residence and theft. The offences were committed during a single 12 hour period. A psychological report indicated that the appellant had an intellectual disability of mild severity.
The sentencing Judge imposed a single sentence of sixteen years and eight months imprisonment, and a non-parole period of eight years and two months.
On appeal, the appellant contended that the sentence imposed was manifestly excessive.
Held per Nicholson J (Kourakis CJ and Parker J agreeing), allowing the appeal:
1. Given the circumstances of the appellant’s intellectual disability and the period of time during which the offending took place, the appellant’s moral culpability should be regarded as less than would be the case had he a better capacity to reason logically and act rationally.
2. The retributive and punishment aspects which inform the sentence must be moderated in light of the appellant’s reduced moral culpability as must the role of general deterrence.
3. The starting points for the head sentence and the non-parole period were unreasonable and manifestly excessive.
4. Sentence set aside and the appellant resentenced to imprisonment for 13 years and eight months with a non-parole period of six years and six months.
Criminal Law (Sentencing) Act 1988 (SA) s 9C, s 18A; Criminal Law Consolidation Act 1935 (SA) s 20, s 23, s 134, s 137, s 270A, referred to.
R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398; R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39; R v Roberts [2016] SASCFC 41, (2016) 125 SASR 40; House v The King [1936] HCA 40, (1936) 155 CLR 499; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; The Queen v Morse (1979) 23 SASR 98; R v Symonds [1999] SASC 217; R v Major (1998) 70 SASR 488; R v Donald, Pitt and Whitaker [2016] SASCFC 117, (2016) 126 SASR 276; Muldrock v The Queen [2011] HCA 39, (2011) 244 CLR 120, considered.
R v DOOLAN
[2017] SASCFC 80Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ.
I agree with the reasons of Nicholson J and the orders that his Honour proposes.
NICHOLSON J.
On 27 June 2016, Pauly Dion Doolan (the appellant) was sentenced in the District Court to imprisonment for 16 years and eight months, reduced from 17 years on account of time served. A non-parole period of eight years and two months was fixed. The sentence was backdated to commence 8 December 2015 to allow for further time served.
The sentence was imposed, following a trial by judge sitting alone, by way of a single penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 with respect to 11 offences committed within 12 hours on 15 March 2014. The offences comprised: counts 1, 2, 3, 4 and 9 being five counts of aggravated robbery;[1] count 5 being the offence of aggravated assault causing harm;[2] counts 6 and 7 being two counts of attempted aggravated robbery;[3] count 8 being the offence of aggravated recklessly causing serious harm;[4] count 10 being the offence of aggravated serious criminal trespass in a place of residence;[5] and count 11 being the offence of theft.[6]
[1] Contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for each of which is imprisonment for life.
[2] Contrary to section 20(4) of the Criminal Law Consolidation Act 1935, the maximum penalty for which in the circumstances here where an offensive weapon was used is imprisonment for five years.
[3] Contrary to sections 137(1) and 270A of the Criminal Law Consolidation Act 1935, the maximum penalty for each of which is imprisonment for 12 years.
[4] Contrary to section 23(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for 19 years.
[5] Contrary to section 170(1) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for life.
[6] Contrary to section 134(1) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for 10 years.
As can be seen,[7] the appellant committed six offences, each of which attracted a maximum penalty of imprisonment for life, one offence with a maximum penalty of imprisonment for 19 years, two offences with a maximum penalty of imprisonment for 12 years, one offence with a maximum penalty of imprisonment for 10 years and one offence with a maximum penalty of imprisonment for five years.
[7] See fnn 1-6.
A Judge of this Court granted permission to appeal on the ground that the single sentence imposed is, in all the circumstances, manifestly excessive. Permission to appeal on a number of other grounds was refused. However, the argument on appeal was conducted on the basis that these other contentions formed particulars of the single ground of manifest excess. The matters now relied on by the appellant as particulars are as follows.
(i)the Judge failed to give adequate weight to the appellant’s level of intellectual functioning in the evaluation of the appellant’s moral culpability for the offending;
(ii)the Judge erred in having regard to irrelevant facts in assessing the consequences of the appellant’s intellectual disability;
(iii)the Judge erred in failing to have regard or sufficient regard to principles of concurrency in imposing the head sentence;
(iv)the Judge failed to have adequate regard to the appellant’s youth;
(v)the Judge failed to have adequate regard to the disadvantaged background of the appellant; and
(vi)the Judge erred in placing inappropriate weight on the appellant’s conduct during the section 9C conference.[8]
During the hearing of the appeal, the appellant’s counsel indicated that the particular in (vi) was no longer pressed.
[8] An Aboriginal sentencing conference was conducted by the Judge preparatory to and as an aide to sentencing in accordance with section 9C of the Criminal Law (Sentencing) Act 1988.
For the reasons that follow, I would allow the appeal and resentence the appellant.
Circumstances of the offending
As indicated, all of the offences were committed during a single 12 hour period. It is convenient to set out the circumstances as found by the Judge. What follows is a modified version of the summary of the Judge’s findings in his sentencing remarks set out in the prosecution outline of argument.
The [appellant with at least two others – “the group”] attacked a 16-year-old boy walking home alone from the railway station around midnight. They got to the scene of the crime in [W’s] car. The boy was punched in the head. One of the group had a tyre iron. The boy had his mobile phone, his watch, his wallet and a necklace stolen. The mobile phone was found in [W’s] possession when he was arrested (Count 1).
The group then committed another aggravated robbery only a few minutes later and only a few hundred yards away in a park in West Croydon. The group got out of the same car and attacked a young couple. They chased the man away. One of the group had a pole with which the victim, Ms Elliott, was threatened. The others hit the male companion as he was being chased away. Ms Elliott’s attacker demanded her necklace. She refused to hand it over because it contained some of her late partner’s ashes. The attacker ripped it off her. A witness came driving around the corner. Three of the group went and hit her car, one with a metal pole (Count 2).
The group then drove on from West Croydon and stopped at an On The Run service station on Port Road in Welland. Closed-circuit television footage shows [W] getting out of the car and going to the service station to make a purchase. He then gets back into the car. The car drives off around the nearby Coles supermarket where three women were finishing their night shift. The car first drove past the women where they were gathered around talking. The car went around and out of sight and stopped. Three of the group got out and ran at the women. One of them had what one of the women thought was a golf iron. That same woman was hit with it. Her attacker demanded her bag and grabbed it (Count 3). Another got hit and had her bag taken (Count 4). The third tried to prevent the attack on one of her colleagues. One of the group hit her over the head with a pole or a machete. As a result she suffered an injury to her head which required stapling (Count 5). ...
The next offending occurred at Norwood. Three friends were walking along Sydenham Road, Norwood. They were attacked with weapons. Demands were made for their property. The first victim, Ms Watzdorf, said that a man jumped on her while holding a fire stoker. He demanded her property. She had a necklace torn off but it was not actually taken (Count 6). The second victim, Mr Verlingieri, said that a man ran at him with a knife, a machete or a pole, he could not tell which. He demanded money but Mr Verlingieri said he did not have any money. His attacker threw him into a fence. ... Mr Verlingieri got up from the fence and started backing away. His attacker told him to run (Count 7).
The third victim, Mr Prohoroff, was hit in the jaw with a metal rod. He suffered a complex fracture of his jaw and several teeth were displaced (Count 8). Mr Prohoroff now has three metal plates in his upper jaw. He has a surgery scar on his chin. He has had to have a lot of dental work done. He is going to need ongoing treatment. He has already had to undergo a lot of medical treatment. He has lost the feeling in his lower jaw. He had to take unpaid leave from work and has become more cautious, particularly at night. His parents had to take off time from work to help him.
After the group left Norwood they drove quickly to the Windsor Hotel on Lower North East Road. The reason for doing that was to try to provide an alibi because they knew the CCTV footage would be taken of the gaming section of the hotel. The appellant [and others] appeared in that footage. Someone, stashed some of the stolen property in a stormwater drain near the hotel.
The next offending was not until four hours later. At about 6 a.m. two young Asian women were walking to their car on Victoria Drive in the city after being at the Casino. One was a tourist visiting Adelaide from overseas. One of the the group got out of the car and attacked the women. Whoever it was grabbed the tourist’s handbag. He produced a knife. He gathered together the contents of the bag which had fallen onto the lawn and he ran back to the car (Count 9).
The final offending occurred about five hours later, just shortly before midday. The group broke into a house at Ridgehaven. They stole belongings from the house. The owner, an elderly lady, was being brought home from voting by her son. They arrived as some of the group were coming out of the house. Neighbours ran after the group and were threatened as they did so. The group’s car was parked in the driveway and was driven away quickly. Some of the owner’s jewellery was later located in the car (Counts 10 and 11).
The Judge described the offending as ‘one appalling course of conduct’ and further observed:
All up the property [stolen] was of limited monetary value, but the physical and emotional harm ... caused was considerable.
. . . .
The violence that was perpetrated on people was really gratuitous. It looks as though some of [the offenders] were just showing what big criminals [they] could be ... A lot of harm has been done to a lot of people
The Judge found that it was not possible to determine the role of each perpetrator. The appellant was sentenced on the basis of his involvement in all of the group’s actions by way of a joint criminal enterprise. The offending was undoubtedly extremely serious. It involved 10 victims over six criminal incidents.
Personal circumstances of the appellant
The appellant is a 26 year old Aboriginal man. He was 23 or so at the time of the offending. He has two daughters to his partner of 11 years. She is raising their young family with limited support given that the appellant is in custody and their family is in Queensland.
The appellant had an unsettled and very difficult upbringing that ultimately was very damaging to his psycho-social and personality development. His parents separated during his infancy. They had a relationship characterised by his father’s abuse of drugs and alcohol and extreme violence as a result of which, at one point, the mother was hospitalised. The appellant frequently observed violent bashings and on occasions himself experienced physical violence from his father. He resided with his mother until he was 10 years of age at which time his behavioural issues were such as to cause him to be sent to live with his father. However, his father was in prison at the time and he began living with his father’s then partner in Port Augusta who in time left the appellant’s father because of his violence. Thereafter, the appellant resided with different family members at different addresses. His upbringing was one of uncertainty and instability. He was not always provided with food. The lack of stability as to where and with whom the appellant would live from time to time contributed to him leaving school when he was 14 or 15. However, his intellectual disability, discussed further below, cannot be discounted in this respect. The appellant has been unable to obtain employment ever since and is functionally illiterate.
Notwithstanding his father’s tendency to violence, the appellant said that he adopted antisocial behaviour patterns from a large group of cousins. From about the age of 14 he would leave wherever he was living for up to six weeks at a time to be with these cousins. He survived by couch surfing.
From about the age of 17, the appellant became a heavy user of cigarettes, cannabis and alcohol. He has said that he used ice (a derivative of methylamphetamine) approximately 20-30 times over recent years although he maintains that he is not addicted. The appellant had consumed ice on the day of the offending.
Notwithstanding this troubled past, the appellant had managed, from about the age of 18 to live in stable rental accommodation with his partner and now their children. He continues to have his partner’s support together with that of his mother, sister and maternal grandmother.
The appellant’s criminal record is of concern. He has various prior convictions including for theft, basic assault, unlawful possession, being on premises unlawfully, various driving offences including driving dangerously to escape police pursuit, and multiple failures to comply with the terms of a bail agreement. Nevertheless, given the appellant’s background and the fact that, in effect, he has had to take care of himself from an early age and live on his wits, it is surprising that his criminal record is not worse.
Prior to being imprisoned for the present offending, the appellant had received a number of bonds to be of good behaviour of short duration and a number of relatively short terms of imprisonment some suspended and some to be served. The record discloses that a good deal of leniency has been afforded the appellant in the past. However, the record also shows that the maximum period of any supervision of the appellant, apart from time spent in custody, has been one period of 12 months.
The appellant’s record shows all the hallmarks of yet another young Aboriginal offender who has received no real assistance through his engagement with the criminal justice system to address what has now become decades of serious disadvantage. That the appellant would continue to engage in more serious criminal conduct over time, in the absence of effective intervention, can be seen with hindsight to have been inevitable. What is particularly unfortunate is that he has, by engaging in one 12 hour period of appalling behaviour, ensured that he will spend many more years in custody which will limit significantly the likelihood of any effective intervention aimed at breaking the cycle of his offending.
The opinions of the clinical psychologist, Richard Balfour
In a psychological report dated 21 June 2016 and provided to the Judge, Mr Balfour offered the following opinions.
[The appellant] possesses most of the traditional static (historical) and dynamic (acute) criminogenic risk factors that have been identified by researchers as predisposing an individual towards offender behaviour. He exhibited evidence of conduct disorder during his adolescence. He has socially gravitated towards a predominantly negative peer group. He does not have an antiauthoritarian attitude. He does not suffer from pathological boredom in the community. He has a limited juvenile and adult offending history. He has pervasive anger management problems. He has a history of generalised impulse control problems in the community; and has engaged in reckless, thrill-seeking offending behaviours. I would rate his general criminogenic profile as being in the moderate to high range of risk (i.e., on a risk severity rating scale of low, moderate, and high) for coming into further legal conflict during the next twelve months.
I could not find any clinical evidence to suggest that [the appellant] suffers from a psychotic illness, major mood disorder, acquired brain injury, or neurodevelopmental disorder.
The psychological profile is that of a twenty-four year old Aboriginal man who has an intellectual disability of mild severity (i.e., a level of intelligence in the bottom one percent of the general population for his age group 25-29 years; or a WASI Full-Scale IQ of 66 with a 95% confidence interval in the 63-71 range). He has a history of poor educational and occupational achievements consistent with having an intellectual disability. He is functionally illiterate. He has poor numeracy skills. He academically struggled at school. He has barely attained a Year Nine educational standard. He is motivated to work, but has never had an opportunity to participate in salaried employment. He has poor living skills.
[The appellant] has normal self-esteem and a normal body image. He does not believe that he is prone to feeling depressed or anxious. He has never attempted suicide, or engaged in self-mutilating behaviours during times of personal crisis. His presentation and personal history are consistent with him having an Antisocial Personality Disorder that has been exacerbated by drug and alcohol abuse problems.
[The appellant] has developed a personality disorder in response to being exposed to adverse developmental factors during his psychosocial development when identity formation occurs. His father was a violent criminal recidivist with a history of drug and alcohol abuse problems. He was three years old when his mother left his father to escape being a victim of severe domestic violence. His mother was a good influence upon him, but his father prevented him from maintaining a mother-son relationship with his mother. He had unstable accommodation. His father neglected him. He then began associating with a group of cousins who were negative peers, and they led him astray.
Mr Balfour made a number of other observations. On his understanding of the available research, intellectually disabled persons comprise about 3 per cent of the population but approximately 10 per cent of the prison population. However, the rehabilitation services that specifically cater for the intellectually disabled are only available in the community as coordinated by Disability SA. Further, the general rehabilitation services available in custody such as, for example, the Violence Prevention Program to which one might expect the appellant to be referred, may not be suitable. Mr Balfour expressed concern that the appellant would ‘intellectually struggle with the program’s content and may potentially become disruptive in a group’.
According to Mr Balfour, without the assistance of an appropriate rehabilitation program, the appellant’s prognosis to cease offending in the short term is poor (on a scale of poor, fair, good). Mr Balfour provided a comprehensive list and discussion of numerous lifestyle changes, support mechanisms and interventions which, if put in place, might improve the appellant’s rehabilitation prospects.
However, Mr Balfour’s report makes clear the enormity of the task that would be involved in redressing the years of ingrained social disadvantage experienced by the appellant particularly given his intellectual disability. With all the goodwill in the world, given the limited assistance that will be available to the appellant, the prospect of improving the appellant’s prognosis as to future offending, whilst he remains in custody, is low.
Appellant’s submissions
Counsel for the appellant accepted, as he had to, that the offending was extremely serious and called for a lengthy custodial sentence. However, it was contended that a starting point of 17 years was manifestly excessive given that the offending occurred over such a short period of time whilst in the company of others. The appellant’s limited opportunity and capacity for reflection upon the consequences of his actions had to be viewed in the context of the appellant’s difficult personal circumstances and, in particular, his intellectual disability.
The appellant presented with an intellectual disability of mild severity with a level of intelligence in the bottom one per cent of the general population. The appellant also exhibits a personality disorder which, according to Mr Balfour, is largely the result of his continuing social disadvantage and other adverse developmental factors. It was submitted that the retributive and denunciatory components of an appropriate sentence ought to have been moderated for this reason because the appellant’s personal circumstances and, in particular, his intellectual disability reduced his moral culpability. It was also contended that the role of general deterrence when fashioning a sentence also needs to be moderated in the case of an offender with an intellectual disability.
Counsel for the appellant also submitted that the Judge did not adequately take account of relevant principles of concurrency as explained in recent authorities in this Court including R v Copeland (No 2)[9] and R v Bagnato.[10]
[9] [2010] SASCFC 61; (2010) 108 SASR 398.
[10] [2011] SASCFC 161; (2011) 112 SASR 39.
Finally, counsel for the appellant made submissions in support of the contention that the Judge failed to have adequate regard to the appellant’s youth and the appellant’s extremely difficult personal circumstances commencing with his very unstable and disadvantageous upbringing.
Respondent’s submissions
Counsel for the Director for Public Prosecutions contended that the head sentence imposed was not manifestly excessive but well within the discretion available to the sentencing Judge and on that basis the non-parole period of the order of 50 per cent of the head sentence could not be said to be manifestly excessive either. Counsel focussed on the undoubted seriousness of the offending and the standards of sentencing customarily observed when dealing with the various offences committed. Counsel emphasised the important sentencing considerations of general deterrence and protection of the community. Counsel for the Director also submitted that insofar as leniency was called for on account of the appellant’s personal circumstances, such typically is accommodated by the fixing of a lenient non-parole period, as occurred here.[11]
[11] Citing R v Roberts [2016] SASCFC 41; (2016) 125 SASR 40.
Consideration
The law is clear that on an appeal against sentence it is the task of the appellate court to determine whether the sentencing judge made a specific error material to the sentence imposed or whether the sentence can be characterised as unreasonable or plainly unjust, a process error or an outcome error, respectively, as those notions were explained in House v The King.[12] In the absence of either a process error or an outcome error, an appellate court should not intervene. Specifically, it is not sufficient for an appellate court to intervene simply on the basis that it would have sentenced in a different manner. In Markarian v The Queen,[13] Gleeson CJ, Gummow, Hayne and Callinan JJ observed the following.
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”.
[citation omitted]
[12] [1936] HCA 40; (1936) 155 CLR 499.
[13] [2005] HCA 25; (2005) 228 CLR 357 at [25].
The ground of appeal in this case is that of manifest excess but a number of particulars in support (as earlier set out) have been relied on. Each of those particulars complains that the Judge failed to pay sufficient regard to or allow sufficient weight with respect to certain factors relevant to sentencing. The various factors referred to are matters to which the Judge was required to have regard and are matters to which an appeal court will have regard when assessing whether or not the sentence formulated is manifestly excessive. However, the fact that an appeal court might place a different level of weight on one or more of these factors will not itself justify allowing an appeal against sentence. In R v Lutze[14] Vanstone and Parker JJ, said this.
In Kentwell the High Court again examined the nature of the error sufficient to enliven the jurisdiction of the Court of Criminal Appeal to interfere in a sentence. The plurality judgment of French CJ, Hayne, Bell and Kean JJ echoed the analysis of Hayne J in AB v The Queen ... where his Honour posited the distinction between “specific error” of the types identified in House, as against manifest excess or inadequacy. The same dichotomy was referred to by Kourakis J (as he then was) in R v Horstmann, where his Honour compared “process errors” with “outcome error”.
The sort of error referred to as “specific” or “process error” is not merely a perceived failure to give appropriate weight to a particular factor. It is an identifiable error of fact or law, which in all but the rare case will be express. Indeed, it is no part of the task of a sentencing judge to expressly ascribe weight to the myriad factors which inform the sentencing process, that is, the instinctive synthesis referred to by McHugh J in Markarian v The Queen. It is very often impossible to discern the relative weight given to a particular factor; and the exercise is rarely profitable.
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell ... set out above.
[citations omitted]
[14] [2014] SASCFC 134; (2014) 121 SASR 144 at [45]-[47].
If the Judge had identified an appropriate prison sentence for each offence in isolation, simple accumulation would have resulted in a starting point well in excess of 35 years. Inevitably, a complex exercise involving orders for partial or total concurrency and perhaps totality would have been required. The Judge did not do this. Rather his Honour, in reliance on section 18A of the Criminal Law (Sentencing) Act, addressed the total course of conduct over the 12 hour period and fixed upon what his Honour thought to be an appropriate single sentence of imprisonment for that conduct. In the difficult and peculiar circumstances of this case his Honour was justified in taking this approach.[15]
[15] See the discussions of the merits of the alternative approaches in, for example, R v Symonds [1999] SASC 217, R v Copeland (No 2) (2010) 108 SASR 398, R v Major (1998) 70 SASR 488, R v Donald, Pitt and Whitaker [2016] SASCFC 117; (2016) 126 SASR 276.
In arriving at the one penalty of imprisonment for 17 years, and on a reading of the sentencing remarks as a whole, I am satisfied that the Judge considered each of the relevant factors identified in the appellants particulars (i)-(v) above. There is some force to the criticism that although his Honour paid regard to what he described as the appellant’s ‘intellectual difficulties’ he may have downplayed them. There is force in the contention that the appellant’s intellectual disability, as explained by Mr Balfour, did not influence the Judge in the direction of leniency to the extent it might have with another judge. However, even if so, this of itself is not sufficient to demonstrate error.
In The Queen v Morse,[16] King CJ listed the matters relevant to determining whether a sentence is, in all the circumstances, manifestly excessive. The Court is required to consider the maximum sentence prescribed by law for the offence or offences in question, the standards of sentencing customarily observed for offences of the kind in question, the seriousness of the offending itself and the offender’s personal circumstances.
[16] (1979) 23 SASR 98 at 99.
If consideration were restricted to the nature and seriousness of the offending alone, that is, the first three matters identified by King CJ, there can be no doubt that the sentence imposed was within the available discretion. Further, and notwithstanding the appellant’s deprived and disadvantaged background, the sentence imposed ordinarily would be characterised as lenient. However, to my mind there are three features which deny this characterisation and which go further and support a finding of manifest excess. These three features are the fact that the appalling course of conduct took place over such a short (12 hour) period, the fact that the appellant did not act alone but participated as one of a group and the fact of the appellant’s intellectual disability.
In Muldrock v The Queen, the High Court[17] considered the approach to sentencing an offender with an intellectual disability.[18]
[17] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[18] [2011] HCA 39; (2011) 244 CLR 120 at [50]-[54] (footnotes omitted).
The assessment that the appellant suffers from a “mild intellectual disability” should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. “Significantly subaverage intellectual functioning” is defined as an intelligence quotient (IQ or IQ-equivalent) of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission:
“A person’s intellectual disability can be classified as ‘mild’, ‘moderate’, ‘severe’ or ‘profound’, based upon certain IQ (intelligence quotient) ranges. A further category, ‘borderline’, is also used to indicate people just above the mild range in terms of intellectual functioning. A person with a ‘severe’ or ‘profound’ disability may be unable to learn basic social skills such as speech, walking and personal care, and is likely to require supported accommodation. The majority of people with an intellectual disability have a ‘mild’ level of intellectual disability and ‘can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.’ These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a ‘mild’ intellectual disability is inconsequential.”
(Footnotes omitted.)
The fact that the appellant had engaged in some paid employment and that he held a driver’s licence does not detract from the assessment of his retardation. The evidence was that he had “enormous difficulty with employment”. He was unemployed at the time Ms Daniels assessed him. She recommended that he would benefit from “a properly supervised sheltered workshop environment”. He was in receipt of a disability support pension in mid-2008 and had been so for some time when he was assessed by Dr Westmore to determine whether he had sufficient capacity to be fit to be tried.
Dr Muir’s assessment that the appellant understood the wrongfulness of his conduct respecting the earlier offence was qualified by the observation that this was “only a superficial awareness”. Dr Muir also said:
“In the interview situation, it is readily apparent that Mr Muldrock is significantly mentally retarded. His speech is very slow and measured and in a monotone.”
Judge Black’s finding, expressed in lay terms, that the appellant’s intellectual disability is “significant”, was apt. It was an error for the Court of Criminal Appeal to reject the finding, if that is what it did. Alternatively, it was an error for the Court to find that Judge Black’s determination, that general deterrence had no place in sentencing the appellant, was not justified by the evidence. One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:
“General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.”
In the same case, Lush J explained the reason for the principle in this way:
“[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.”
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.
The intellectual disability of mild severity afflicting the appellant is to be regarded in the sense explained by the High Court in Muldrock. In particular, the technical use of the qualifier ‘mild’ should not be allowed to distract one’s focus from the true position. The appellant had an IQ that fell within that of the bottom one per cent of the population. He is functionally illiterate, has poor numeracy skills and poor living skills. Notwithstanding motivation to work he has never been able to do so. It is not necessary to look for evidence supporting a causal connection between the disability and the offending for the reasons given by the High Court.[19] The appellant has a more limited capacity than typically is the case to reason as to the wrongfulness of the conduct and as to the consequences for those affected and for himself. In the present case, the notion that this offender had the opportunity to reflect on his behaviour and that of his co-offenders during the 12 hour period and to choose to desist at an early time, has an air of unreality about it.
[19] At [54].
Ordinarily, the fact that offending takes place in company with others will be an aggravating feature. But little, if any, weight should be given to this feature in this case because of the appellant’s intellectual disability. Indeed, the potential for a young man with such an intellectual disability to be swept up in the moment and to follow others in the group and engage in repetitive acts of violence over such a short period ought not be discounted.
In the circumstances as just outlined, the appellant’s moral culpability can be seen as less than would be the case had he a better capacity to reason logically and act rationally. As such, the retributive and punishment aspects which inform any sentence to be imposed are to be moderated. The general deterrence purpose inherent in all sentencing also must be moderated for the reason given by Young CJ and approved of by the High Court in Muldrock.
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 Judge was confronted with a very difficult sentencing exercise in this case. On any analysis personal deterrence and the need to protect the public were important considerations. However, appropriate weight must be given to the appellant’s intellectual disability against the background that the spate of offending was committed as part of a group activity and as one extended course of conduct over only 12 hours. When considered in this light, starting points of 17 years for the head sentence and eight and a half years for the non-parole period are unreasonable and manifestly excessive.
I would allow the appeal and set aside the sentence. In resentencing, and, in particular, in fixing a new non-parole period I have taken into account the concern that this appellant will be particularly amenable to institutionalisation. It is important when fashioning a sentence to limit this risk as far as possible. In the event that the appellant can behave and participate when in custody in a way that warrants a grant of parole he still will require, as part of his re-integration into the community, intensive and regular supervision and assistance for many years.
Like the Judge, I would impose a single penalty for all of the offending. I would start with a head sentence of 14 years. I would start with a non-parole period of six years and 10 months. After allowing a four month reduction for time served, as did the Judge, the sentence I would impose becomes imprisonment for 13 years and eight months with a non-parole period of six years and six months both backdated to commence 8 December 2015.
PARKER J.
I agree with the reasons of Nicholson J and the orders that his Honour proposes.
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