R v Hronopoulos - [2017] SASCFC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HRONOPOULOS
[2017] SASCFC 143
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Hinton)
30 October 2017
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence for one count of aggravated threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). The offending was aggravated by virtue of the threatened use of a firearm. The applicant was sentenced to imprisonment for eight weeks after a reduction of two weeks to take account of time spent in custody. The sentence was suspended upon the applicant entering into a bond to be of good behaviour for three years.
At issue on appeal was, inter alia, the contention that the sentencing judge had insufficient regard for the mental disorder which the applicant was suffering, namely bipolar disorder, and that the sentence was, in all the circumstances, manifestly excessive.
Held per Stanley J (with Blue and Hinton JJ agreeing): Permission to appeal refused on all grounds.
1. The judge clearly had regard to whether there was an alternative to the imposition of a sentence of imprisonment (at [39]).
2. The judge considered that the applicant’s mental illness diminished his responsibility for the offending which he plainly took into account. It is however important to recognise that the applicant’s psychiatric condition diminished his moral culpability only to the limited extent that his lack of empathy resulted in him not appreciating the extent of the fear the threat he made might arouse. None of that detracts from the fact that the applicant was aware of the nature and gravity of the act charged and knew that what he was doing was wrong (at [45]).
3. No irrelevant matters were taken into account (at [53]).
4. The evidence supported the Judge’s findings (at [57]).
5. The sentence is not manifestly excessive. There is much to be said for the imposition of a bond subject to conditions that would encourage the applicant to seek assistance for his psychiatric issues and to deter him from similar conduct in the future (at [64]-[65]).
Per Hinton J: Within the bounds of proportionality, a sentence is to be fashioned having regard to the protection of the community and the purposes of punishment that fits the offending and the offender. Within that framework the question of how a particular mental illness influences the sentencing outcome will be a product of its symptoms and consequences for the defendant and the bearing that such symptoms and consequences have on achieving the purposes of the sentencing task. Critical to the task will be the exposure of a link grounded in the evidence before the sentencing court between the illness and any of the purposes of punishment or the mode of punishment under consideration (at [72]) .
Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(b), s 19(2); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(l), s 10(2)(e), s 11(1), referred to.
Muldrock v The Queen (2011) 244 CLR 120; R v Mooney (Unreported), Court of Criminal Appeal (Vic) 21 June 1978; R v Tsiaras (1996) 1 VR 398; R v Verdins (2007) 169 A Crim R 581; R v Yaldiz [1998] 2 VR 376; R v Engert (1995) 84 A Crim R 67; Veen v The Queen (No 2) (1988) 164 CLR 465; R v Wiskich (2000) 207 LSJS 431; R v Sully (2012) 112 SASR 157; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; Bugmy v The Queen (2013) 249 CLR 571; Munda v Western Australia (2013) 249 CLR 600; DPP (Vic) v O'Neill (2015) 256 A Crim R 469, considered.

R v HRONOPOULOS
[2017] SASCFC 143
Court of Criminal Appeal: Blue, Stanley and Hinton JJ

BLUE J: I agree with Stanley J and the additional observations by Hinton J.
STANLEY J:
Introduction
This is an application for permission to appeal against sentence.
At his trial by judge alone, the applicant faced two charges. He was found guilty of aggravated threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). That offence occurred on 6 August 2013. It was aggravated as it involved the threatened use of a firearm. The applicant was found not guilty of the offence of assault which was alleged to have been committed on 2 August 2013.
The applicant spent eight days in custody following his arrest and three and a half years on supervised bail.
The judge imposed a sentence of eight weeks imprisonment after a reduction of two weeks to take account of time spent in custody. The sentence was suspended upon the applicant entering into a bond to be of good behaviour for three years.
A significant aspect of this application is the judge’s finding that at the time the applicant was suffering bipolar disorder.
There are six grounds of appeal which can effectively be reduced to the following five:
1.The sentencing judge failed to consider other sentencing options before imposing a sentence of imprisonment;
2.The sentencing judge failed to take into account the applicant’s mental illness, and that the role of general deterrence is diminished given the mental health of the applicant;
3.The sentencing judge took into account irrelevant considerations;
4.The sentencing judge mischaracterised the circumstances of the offending; and
5.The sentence is manifestly excessive.
Circumstances of the offending
Both charges arose as a result of an informal agreement the applicant had with the Department of Planning, Transport and Infrastructure (the Department) whereby he permitted the Department to use his premises for storage while road work was undertaken on the Barrier Highway. As part of that agreement, the applicant had been promised an amount of gravel for use on his property when the roadworks were complete.
The applicant formed the mistaken belief that the victim of his offending, a Mr Bowden, a contractor with the Department, was taking gravel for his own purposes that belonged to the Department and had been promised to the applicant.
On 2 August 2013 the applicant went to Mr Bowden’s residence. Mr Bowden gave evidence that a confrontation ensued in which the applicant behaved aggressively and chest butted him. Mr Bowden directed the applicant to leave his house or he would call the police. The applicant tackled Mr Bowden and began scratching and gouging his face. The attack was witnessed by Mr Bowden’s daughter and de facto partner.
The trial judge found the applicant not guilty of this offence on the basis he considered it reasonably possible, given the applicant was suffering symptoms of bipolar disorder, that the applicant was acting in self-defence due to a genuine belief held by him that his conduct was necessary and reasonable for a defensive purpose. Nonetheless, the judge was satisfied beyond reasonable doubt that the events Mr Bowden described had occurred.
Subsequently on 6 August 2013 Mr Bowden and other Departmental contactors were working at a stockpile on the side of the Barrier Highway when he was again approached by the applicant. The applicant was angry and shouting. He called Mr Bowden a “fucking liar”, a “thief” and a “paedophile” and said he was going to shoot him. One of the other contractors heard the applicant say “I’ve got a gun”, or “I’m going to get a gun”. These things were said while the applicant was very close to Mr Bowden. At one point the applicant was poking Mr Bowden in the chest.
Circumstances of the offender
At the time of sentencing the applicant was 63 years of age. He had no relevant prior convictions. At the time of his offending he was suffering from a psychiatric illness, which the judge found was bipolar disorder. He has a history of cardiac problems.
The applicant lived on a relatively remote rural property near Hallett. He is single and lives alone. His is a reclusive, solitary existence. He has no family in South Australia. He is retired from the workforce.
The judge found that the applicant is not a danger to Mr Bowden as is demonstrated by the fact that he has been on bail for three and a half years residing in the same community as the victim without crossing paths with him and while conducting himself appropriately.
The applicant’s psychiatric condition
The applicant was examined by a consultant psychiatrist, Dr Begg. Dr Begg gave evidence at the trial. He was of the opinion the applicant suffers from bipolar disorder. The judge found that due to this condition and the applicant’s personality he is quick to anger and has a tendency to see things out of all proportion to their seriousness. He gave evidence that if the applicant said “I’m going to get a gun and shoot you” he would understand that such words would cause fear or have an effect on the person to whom such remarks were directed but he did not think the applicant would appreciate the extent of the fear that would be aroused. Nonetheless, Dr Begg considered the applicant would understand that the words conveyed a threat. Generally, he considered the applicant understands right from wrong and has the capacity to control his behaviour.
The judge received a report from a consultant psychiatrist, Dr Ian Jennings, who assessed the applicant on 6 January 2017. Based on his assessment he does not believe the applicant poses any significant long-term risk to Mr Bowden or anyone else in the community. He thinks it possible that the applicant could again become angry with others if there are particular stresses or cause for confrontation in the future. He considered the best treatment for the applicant would be longer term cognitive behavioural therapy to assist with his tendency to mistrust and suspect others and his sensitivity to perceive wrongdoing against himself. However, this treatment requires cooperation and active participation in order to be successful. Dr Jennings did not believe the applicant would be interested in such ongoing treatment.
Sentencing remarks
In sentencing the judge set out the particulars of the circumstances of the offender and his offending. He found the offence was constituted by a serious threat to a person who was at a lonely location without a weapon to defend himself. The offending was aggravated as it involved the threatened use of a firearm. He found that on account of the applicant’s bipolar disorder and his personality, he is quick to anger and has a tendency to see things out of all proportion to their seriousness. He considered it appropriate that the applicant be placed on a bond subject to conditions that would encourage him to seek assistance for his mental issues. While finding he was not a danger to Mr Bowden, he expressed concern, however, that implied threats to the victim had been made by people said to be friends of the applicant.
The judge addressed the question of whether to impose a sentence of imprisonment as follows:
In assessing whether I can deal with him without imposing a further sentence of imprisonment I am mindful of the fact that the threat was to use a firearm. A threat which, as I said, introduces a nasty aspect to the altercation.
His mental condition is such that he may be regarded as of diminished responsibility at the time of the offence.
I am required to have regard to the matters referred to in s.10 of the Criminal Law (Sentencing) Act 1988. One of the factors is the circumstances of the offence. I have already noted that it occurred in the country, in lonely circumstances, where the victim had nowhere to flee to and little to call on for help.
I am required to consider any injury, loss or damage resulting from the offence. The victim in his victim impact statement gives details of his injury and what he claims is his loss and damage. As it has been pointed out, most of it appears to relate to the initial allegation of assault on the 2nd in respect of which I have found the offender not guilty. Nevertheless it was an ongoing altercation and I have no doubt that some of the mental injury to the victim would have been exacerbated by or increased by or aggravated by the circumstances which occurred on the 6th.
I am required to take into account the degree to which the defendant has shown contrition for the offence. He has shown none. He continues to dispute the question of his guilt. I am required to take into account the deterrent effect of any sentence and the need to ensure the offender is adequately punished. I am required to consider the need to protect the safety of the community, i.e. specifically in the case of an offence involving a firearm in which this offence did. I am required to consider the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence.
On this basis the judge concluded that the only appropriate penalty was a sentence of imprisonment.
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 [2005] HCA 25; (2005) 228 CLR 357 at [25]:
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 (1936) 55 CLR 499 at 504-505, 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".
[1] [2009] SASC 346, (2009) 266 LSJS 283.
[2] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
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. As was said in R v Kreutzer by Kourakis CJ,[4] 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.
[3] (1936) 55 CLR 499.
[4] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
Effect of psychiatric illness on sentencing
Section 10(1)(l) of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) requires a sentencing court to have regard to the mental condition of an offender in determining both the head sentence and the non-parole period. This reflects the position at common law which has long recognised that the mental condition of an offender is always a relevant factor in the sentencing process. 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.[5]
[5] R v Wiskich [2000] SASC 64 at [22], (2000) 207 LSJS 431 at 438.
In Muldrock v The Queen[6] the High Court cited with approval the reasons of the Victorian Court of Appeal in R v Mooney[7] where Young CJ said:[8]
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.
[6] [2011] HCA 39, (2011) 244 CLR 120.
[7] Unreported, Court of Criminal Appeal (Vic) 21 June 1978.
[8] Unreported, Court of Criminal Appeal (Vic) 21 June 1978 at 5.
The High Court approved the explanation given for the principle by Lush J as follows:[9]
[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.
[Citation omitted.]
[9] [2011] HCA 39 at [53], (2011) 244 CLR 120 at 138-139.
The High Court went on to observe in Muldrock that this principle applies in sentencing offenders suffering from mental illness but that a question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence.[10]
[10] [2011] HCA 39 at [54], (2011) 244 CLR 120 at 139.
In R v Tsiaras[11] the Victorian Court of Appeal said:[12]
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 responsibility. 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 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 given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[11] (1996) 1 VR 398.
[12] (1996) 1 VR 398 at 400.
In R v Verdins[13] the Victorian Court of Appeal referred to Tsiaras and said:[14]
Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead up to it – or is likely to affect him / her in the future.
[13] [2007] VSCA 102, (2007) 169 A Crim R 581.
[14] [2007] VSCA 102 at [13], (2007) 169 A Crim R 581 at 586.

The Court emphasised that the Tsiaras principles were enunciated by reference to serious psychiatric illness not amounting to insanity but an erroneous view developed that what was said in Tsiaras was intended to and did “cover the field” in relation to mental illness and sentencing. In R v Yaldiz[15] Batt JA said that general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder.[16] Winneke ACJ said that whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.[17]
[15] [1998] 2 VR 376.
[16] [1998] 2 VR 376 at 381.
[17] [1998] 2 VR 376 at 383.
In R v Engert[18] Gleeson CJ, with whom the other members of the New South Wales Court of Criminal Appeal agreed, said:[19]
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No. 2) as follows:
“… protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.”
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No. 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in light of the purposes to be served by the sentencing exercise.
[Citation omitted.]
[18] (1995) 84 A Crim R 67.
[19] (1995) 84 A Crim R 67 at 68.
In Veen v The Queen (No. 2)[20] Mason CJ, Brennan, Dawson and Toohey JJ said:[21]
[A] mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.
[20] (1988) 164 CLR 465.
[21] (1988) 164 CLR 465 at 476-477.
In R v Wiskich[22] Martin J, as he then was, with whom Prior and Williams JJ agreed, said:[23]
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.
[22] [2000] SASC 64, (2000) 207 LSJS 431.
[23] [2000] SASC 64 at [62], (2000) 207 LSJS 431 at 457-458.
It can be seen that the mental state of an offender at the time of his or her offending is 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. Because of this variation, a close analysis of the evidence must be conducted to reveal the full extent and impact of the condition.[24]
[24] R v Flentjar [2013] SASCFC 11 at [42].
Grounds 1 and 2
It is convenient to consider grounds 1 and 2 together as this was the way the applicant addressed us.
The applicant submits that the judge erroneously fettered his discretion by assuming that a sentence of imprisonment was the starting point for any penalty to be imposed.
During sentencing submissions the judge intimated that he thought a suspended sentence with supervision and an order for treatment was appropriate. He invited any submission to the contrary. Counsel for the applicant submitted that no term of imprisonment should be imposed. Subsequently she filed written submissions directing the judge to s 11 of the Sentencing Act.
Section 11(1) of the Sentencing Act provides:
(1) A sentence of imprisonment may only be imposed—
(a) if, in the opinion of the court—
(i) the defendant has shown a tendency to violence towards other persons; or
(ii) the defendant is likely to commit a serious offence if allowed to go at large; or
(iii) the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
In his sentencing remarks the judge did not expressly refer to s 11. However, the judge did say that he thought the only appropriate penalty was a sentence of imprisonment after having regard to the matters he was required to take into account.
In the circumstances, I consider that the applicant has no reasonable prospects of making out this ground. In his sentencing remarks the judge referred to the applicant’s submission that a sentence of imprisonment not be imposed. I am satisfied that the judge did consider whether there was an alternative to the imposition of a sentence of imprisonment. Clearly the judge was heavily influenced by the threat to use a firearm. He said so. It is not necessary for him to refer specifically to s 11. It is clear that it was open to the judge to impose a sentence of imprisonment in accordance with the terms of s 11(1)(a)(iv) and (b). Contrary to the submission of the applicant, this was a case to which s 10(2)(e) of the Sentencing Act applied. For reasons I will explain shortly it was an offence involving a firearm. Accordingly there was a need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence. The judge’s reference to the terms of s 10(2)(e) indicate that this was the approach adopted by him to the imposition of a sentence of imprisonment.
This was an offence involving a firearm. Although a firearm was not physically present at the commission of the offence, the court found the applicant guilty of the aggravated offence of threatening harm. The circumstances of aggravation was the threat to use a firearm when committing the offence.[25]
[25] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(b).
The verb “to involve” is relevantly defined as:
“To cause to be inextricably associated or concerned, as in something embarrassing or unfavourable.
To implicate, as in guilt or crime, or in any matter or affair.”[26]
[26] R v Sully [2012] SASCFC 9 at [102], (2012) 112 SASR 157 at 183.
In R v Sully[27] Vanstone J held that in the context of determining whether the driver of a vehicle was “involved in an accident” within the meaning of s 43 of the Road Traffic Act 1961 (SA), the essence of involvement is the connection or association or concern in the accident.[28]
[27] [2012] SASCFC 9, (2012) 112 SASR 157.
[28] [2012] SASCFC 9 at [102], (2012) 112 SASR 157 at 184.
This was a case of an offence involving a firearm for the purpose of s 10(2)(e) of the Sentencing Act. The threat to use a firearm meant the firearm was connected to or associated with the aggravated offence of threatening without lawful excuse to cause harm to another which involved a threat to use a firearm. The threatened use of the firearm aggravated the offence because the threat is rendered more serious as the use of a firearm has the potential to cause more serious harm if the threat is carried out. The threat to use a firearm logically will arouse a greater fear in the person subject to the threat, if that person takes the threat seriously.
The applicant submits that the judge’s approach in concluding that the only appropriate penalty was a sentence of imprisonment failed to have regard first, to the reduced importance of general and personal deterrence by reason of his psychiatric condition and second, the view of Dr Jennings that the applicant no longer posed any significant long-term risk to the complainant or anyone else in the community. He submits that Dr Jennings’ opinion was amply supported by the evidence that over three and a half years during which the applicant had been subject to supervised bail he had not had contact with Mr Bowden or caused any problem.
The applicant’s psychiatric condition was a relevant factor in the exercise of the sentencing discretion. The judge considered that the applicant’s mental illness diminished his responsibility for the offending. Plainly the judge took this matter into account. However, it is important to recognise that the applicant’s psychiatric condition diminished his moral culpability only to the limited extent that his lack of empathy resulted in him not appreciating the extent of the fear the threat he made might arouse. None of that detracts from the fact that the applicant was aware of the nature and gravity of the act charged and knew that what he was doing was wrong. In those circumstances the authorities support the proposition that there is still a role for deterrence in the exercise of the sentencing discretion, if sensibly moderated. The judge was entitled to his view that by threatening the victim with the use of a firearm the nature of the threat increased. Moreover, the threat was made to a person who was in a vulnerable position working in isolated rural areas a long way from police and other emergency services. If general deterrence was a reduced factor in the sentencing process, there still was a need to personally deter the applicant and protect the community. That remained a relevant consideration in the exercise of the sentencing discretion notwithstanding the judge’s finding that the applicant was no longer a danger to Mr Bowden, a finding probably based on the evidence of what had and had not occurred over the preceding three and half years. Even allowing for the possibility that the applicant’s lack of contrition was a symptom of his psychiatric condition, given Dr Jennings’ opinion that the applicant was unlikely to undergo the treatment he needed, the considerations identified in Veen (No. 2) justified the exercise of the judge’s sentencing discretion to impose a suspended sentence of imprisonment. The applicant’s lack of empathy for others in the community, his willingness to resort to violence, his lack of insight, his tendency towards impulsiveness and his unwillingness to accept he had done anything wrong, required a sentence in which personal deterrence played a significant role.
I would refuse permission to appeal on these grounds.
Ground 3
The applicant submits that the judge erred by taking into account irrelevant matters, namely, the contents of Mr Bowden’s victim impact statement which was focussed on the offence for which the applicant was acquitted and threats made to Mr Bowden by people said to be friends of the applicant.
I do not consider there is anything in this ground.
In relation to the former complaint, the judge expressly recognised that the victim impact statement was mostly concerned with the effects of the alleged assault which resulted in the applicant’s acquittal. However, the judge found that the offence for which the applicant was found guilty involved an ongoing altercation which has resulted in some of the mental injury Mr Bowden suffered, as a consequence of the earlier incident, being exacerbated, aggravated or increased, by the latter offending. In my view that was a finding open on the evidence.
Mr Bowden gave evidence that he was absolutely terrified by the applicant’s threat and felt frightened for his life. He gave evidence he still feels terrified of the applicant.
When assessing the impact on Mr Bowden, the judge was entitled to take into account his finding that the applicant had physically attacked Mr Bowden four days earlier and that the threat, for which he was found guilty, occurred in that context.
In relation to the latter complaint, I accept that it would have been better had the judge not referred to the matter, but a close reading of his sentencing remarks discloses that whatever was the judge’s concern in relation to the allegation of threats being made against Mr Bowden by people said to be friends of the applicant, he has not weighed that matter in the exercise of the sentencing discretion adversely to the applicant. He makes the observation about his concern in the context of a finding that the applicant is not a danger to Mr Bowden. Logically, whatever his concern about the alleged threats, he did not attribute them to the applicant.
I would refuse permission to appeal on ground 3.
Ground 4
Ground 4 is a complaint that the judge mischaracterised the circumstances of the offending.
I did not understand the applicant to pursue this ground on the hearing of the application before us.
In any event, the judge characterised the offending as having occurred in “lonely circumstances, where the victim had nowhere to flee to and little to call on for help” in circumstances where the complainant was in “a lonely location without a weapon to defend himself.”
I am satisfied that the evidence supported the judge’s finding. The location was properly characterised as lonely. It is relatively isolated. The offending occurred at a location where it would have taken some time for police or medical assistance to arrive had the applicant carried out the threat.
I would refuse permission to appeal on ground 4.
Ground 5
Ground 5 complains that sentence is manifestly excessive.
In The Queen v Morse[29] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[30] To interfere with a sentence on the grounds of manifest excess, the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. In Hili v The Queen[31] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[32]
… 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”.
[Citations omitted.]
[29] (1979) 23 SASR 98.
[30] (1979) 23 SASR 98 at 99.
[31] [2010] HCA 45, (2010) 242 CLR 520.
[32] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538-539.
The applicant submits that the suspended sentence of 10 weeks imprisonment on condition of entering into a bond to be of good behaviour for three years is manifestly excessive having regard to the erroneous regard the judge had to the victim impact statement; the time the applicant spent in custody; the time the applicant has spent on supervised bail; the circumstances of the offending, namely, that the applicant’s conduct arose out of a specific grievance and was at least in part attributable to his mental illness; the applicant’s response to supervision while on bail; and the applicant’s age and prior good character.
The maximum sentence for the aggravated offence of threatening harm is seven years imprisonment.
In my view the applicant cannot make out this ground. Insofar as this ground seeks to re-traverse arguments earlier addressed they do not support a conclusion that the judge has fallen into error by imposing a sentence so far outside the permissible range of sentences for this offending and this offender. I have already addressed the appellant’s complaint concerning the victim impact statement. Insofar as the applicant complains that the sentence is manifestly excessive having regard to further factors such as the time spent in custody and on supervised bail, the circumstances of the offending and the role played in that by the applicant’s psychiatric illness, his response to supervision while on bail and his age and prior good character, none of those matters either alone or in combination results in the conclusion that this sentence is manifestly excessive. For reasons explained above, allowing for the matters put in favour of the applicant, this offending, even in the context of his psychiatric illness, called for a sentence that would impress upon the applicant the wrongfulness of his conduct and would deter him from acting on his impulses and anger in the future to threaten and frighten members of the community.

In my view there is much to be said for the imposition of a bond subject to conditions that would encourage the applicant to seek assistance for his psychiatric issues and to deter him from similar conduct in the future. The sentence imposed was appropriate to effect that objective.
A suspended sentence of eight weeks imprisonment, from a starting point of 10 weeks, even allowing for the applicant’s age, prior good character and psychiatric condition, could be considered lenient.
I would refuse permission to appeal on this ground.
Conclusion
I would refuse permission to appeal on all grounds.
HINTON J: I have had the benefit of reading the judgment of Stanley J in draft. I would refuse permission to appeal on all grounds for the reasons his Honour provides. With respect to the second ground, I add the following remarks.
The relevance of mental illness falling short of mental incompetence to the determination of sentence was dealt with comprehensively by Martin J, with whom Prior and Williams JJ agreed, in R v Wiskich.[33] As Martin J shows it is not appropriate to simply fasten on to the fact that the offender suffers a mental illness and then, without regard to the symptoms and consequences of the illness, contend that general deterrence has no part to play in the sentencing process. That at times appeared to be the applicant’s approach on the hearing of this appeal.
[33] (2000) 207 LSJS 431.
Martin J quoted with approval from the judgment of Gleeson CJ in R v Engert (Engert). Gleeson CJ said:[34]
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No 2) as follows:
“...protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.”
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
(citation omitted.)
[34] (1995) 84 A Crim R 67 at 68.
After carefully surveying the relevant authorities Martin J arrived at a conclusion not materially different to that of Gleeson CJ. He said:[35]
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.
[35] (2000) 207 LSJS 431 at 457 to 458.
The passage from the judgment of Gleeson CJ in Engert quoted by Martin J was also quoted with approval by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in Bugmy v The Queen[36] (Bugmy) and by French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia[37] (Munda). Whilst Bugmy and Munda were cases concerning the relevance to sentence of a defendant’s deprived background and not mental illness, the joint reasons suggest that the approach of the sentencing court in considering the relevance and weight to be attached to either factor is the same and is as set out by Gleeson CJ in Engert. That is unsurprising given the High Court’s emphasis particularly in Bugmy[38] and Munda[39] on the determination of an appropriate sentence as being a process resulting in an individualised outcome. Thus, within the bounds of proportionality, a sentence is to be fashioned having regard to the protection of the community and the purposes of punishment that fits the offending and the offender. Within that framework the question of how a particular mental illness influences the sentencing outcome will be a product of its symptoms and consequences for the defendant and the bearing that such symptoms and consequences have on achieving the purposes of the sentencing task. Critical to the task will be the exposure of a link grounded in the evidence before the sentencing court between the illness and any of the purposes of punishment or the mode of punishment under consideration.[40]
[36] (2013) 249 CLR 571 at [45].
[37] (2013) 249 CLR 600 at [58].
[38] (2013) 249 CLR 571 at [24].
[39] (2013) 249 CLR 600 at [55].
[40] R v Verdins (2007) 16 VR 269; DPP (Vic) v O’Neill (2015) 256 A Crim R 469. Note also that the Court in O’Neill said at [71] that whilst in Verdins the Court recognised that the diagnostic label is not determinative, the principles are limited to cases in which the offender suffers from an impairment to his or her mental functioning; they do not apply to personality disorders.
Many of the authorities in this area of discourse concern moderation of the weight to be attributed general deterrence in fashioning the appropriate sentence. Here I would adopt what fell from French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda where their Honours said:[41]
… the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.
[41] (2013) 249 CLR 600 at [54].
The sentencing Judge expressly referred to the applicant’s mental illness and that it rendered the applicant quick to anger and prone to view matters out of all proportion to their seriousness. The sentencing Judge said that such condition meant that the applicant “may be regarded as of diminished responsibility”. Having arrived at such conclusion it follows that the weight to be afforded to general deterrence required moderation from what would otherwise be appropriate.
There is nothing to suggest that the applicant is not deterrable. In fact his success on bail, subject to supervision, whilst continuing to live in the same community as the victim, suggests as much. It also suggests that the protection of the community and the rehabilitation of the applicant can be achieved in the community.
The maximum penalty in this case was seven years imprisonment. The offence was aggravated by the fact that it involved the threatened use of a firearm. But for the applicant’s mental illness, the sentence imposed would be manifestly inadequate. In my view the sentence reflects the fact that the Judge took into account the applicant’s mental illness and did so appropriately. I do not think the opposing view reasonably arguable. For these reasons I would refuse permission to appeal on ground two in addition to those of Stanley J.