R v Lange - [2007] SASC 359

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LANGE
[2007] SASC 359
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Nyland)
12 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - guilty plea on charges of aggravated serious criminal trespass in place of residence, unlawful wounding, aggravated robbery, attempted murder - sentence imposed 17 years 6 months - non-parole period 12 years 6 months - whether sentence manifestly excessive - whether Judge made insufficient allowance for appellant's mental condition - whether Judge gave undue weight to general deterrence.
Held: Appellant's compromised mental functioning did not call for significant reduction in weight given to principle of general deterrence - sentence at upper end of appropriate range - non-parole period not excessive - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 11, s 23, s 137, s 170, s 269G, s 269G.B, s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Mason-Stuart v The Queen (1993) 61 SASR 204; R v Wiskich (2000) 207 LSJS 431, discussed.
R v Lange [2007] SASC 243, considered.

R v LANGE
[2007] SASC 359
Court of Criminal Appeal: Doyle CJ, Debelle and Nyland JJ

DOYLE CJ: Mr Lange pleaded guilty to four charges. They are aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”); unlawful wounding, contrary to s 23 of the Act; aggravated robbery, contrary to s 137(2) of the Act, and attempted murder, contrary to s 11 and s 270A of the Act. The offences were committed on 2 May 2005. The Judge applied the law in force at that date.
The maximum penalty for the offence of unlawful wounding was imprisonment for five years. The maximum penalty for the other three offences was imprisonment for life.
Exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Judge imposed a single sentence. He sentenced Mr Lange to imprisonment for 17 years and 6 months. But for the pleas of guilty he would have sentenced him to imprisonment for 19 years. The Judge fixed a non-parole period of 12 years and 6 months.
Permission to appeal against sentence was granted by a single Judge.
On appeal Ms David, counsel for Mr Lange, submits that the sentence is manifestly excessive. She submits that the Judge made insufficient allowance for Mr Lange’s mental condition at the time of the offences, and that the Judge gave undue weight to general deterrence in arriving at the sentence.
The plea of guilty
Initially Mr Lange pleaded not guilty to all offences, and elected for trial by judge alone. His mental competence to commit the offences was questioned. The Judge first tried the objective elements of the offence: s 269G of the Act. The Judge found that the objective elements were established. The Judge then tried Mr Lange’s mental competence: s 269G.B of the Act. The Judge found that Mr Lange was mentally competent to commit the offences: R v Lange [2007] SASC 243. Mr Lange then pleaded guilty to the offences.
The Judge made findings that are relevant to the fixing of the sentence under appeal.
The Judge found that Mr Lange was suffering from post traumatic stress disorder (PTSD) with associated depression. This condition was attributable to Mr Lange’s military service and also, possibly, to a motor car accident in which he had been involved. For sentencing purposes the origin of the condition was not material. Symptoms of this condition included flashbacks, mood swings, insomnia, nightmares and some irritability. The condition was amenable to treatment.
The Judge also found that Mr Lange was suffering from alcoholism. He had been an alcoholic for many years. He was drinking heavily in early 2005, but there was no suggestion that he was intoxicated at the time of the offences.
The Judge also accepted that Mr Lange had impaired cognitive functioning. He suffered from some organic brain damage. This was probably attributable to his alcoholism, but might also have been attributable to the motor car accident. Once again, it was not necessary for sentencing purposes to be specific as to the cause of the impairment of cognitive functioning.
The Judge found that Mr Lange’s cognitive functioning had been at above average level. I will return to this aspect in due course. But at the time of the offending he was operating at an average level of cognitive functioning, as a result of the mental conditions from which he was suffering.
The effect of Mr Lange’s mental condition was to impair his “executive functioning”, that is his capacity “to engage in independent, purposeful, self serving behaviour”: R v Lange at [34]. A consequence of this condition was a degree of impulsivity in Mr Lange’s behaviour. The Judge also accepted that at the time of the offences Mr Lange “was in a period of disinhibition”, due to the organic brain damage: R v Lange at [66].
The Judge accepted that in the period of two or three months prior to the offending, there had been some deterioration in Mr Lange’s condition. It is not necessary to go into the details. The Judge accepted that it was due to difficulties that Mr Lange was facing in the course of a claim for compensation that he was making as a result of his involvement in a motor vehicle accident on 6 September 2000. A particular consequence of the circumstances of Mr Lange’s claim for compensation was that Mr Lange was unable to pay for appropriate medication, because statutory compensation payments had been discontinued. A complicating factor was that the psychiatrist who was treating him was on holidays in the period preceding the commission of the offences.
There was evidence from Mr Lange’s general practitioner that his condition was deteriorating in the month or two prior to the offences.
These findings that the Judge made were significant matters when the Judge came to consider the appropriate sentence.
In his sentencing remarks the Judge referred to the findings. It followed from his finding, that Mr Lange was mentally competent to commit the offences. The Judge did not accept that Mr Lange was unable to control his conduct. But he accepted and acted upon evidence that Mr Lange’s “executive functioning” was impaired, and that this could manifest itself in impulsivity and in an impairment of Mr Lange’s ability to plan effectively and to anticipate the consequences of his actions. He accepted that there had been some deterioration in Mr Lange’s condition in the months prior to the offences. He accepted that Mr Lange had “some difficulty in controlling” his mental state. He said that Mr Lange’s impaired cognitive functioning and impulsivity would have impaired “to some extent”, Mr Lange’s ability to think carefully and rationally about the consequences of his behaviour.
The offences and Mr Lange’s circumstances at the time of the offences
On 2 May 2005 Mr Lange entered the house where Mrs J M was living, I assume through an unlocked door. He was carrying a kitchen bread knife. He confronted Mrs J M, who was alone in the house. He threatened her with the knife. She caught hold of the knife blade. He prevented her from escaping. He demanded money, and took the money that she produced to him. He told Mrs J M that because she had seen her face, he had to kill her. Mr Lange then began trying to stab Mrs J M. She resisted, showing great courage. She grabbed at the knife blade and at Mr Lange’s arm. After a short time she managed to escape, and ran from the house.
The material before the Judge indicates that Mr Lange walked away from the house, returning to his own home which was not far away. It appears that he committed these crimes to get money to buy alcohol. I gather that he went to a hotel, and was arrested near his own home later that day.
The crimes have had a serious emotional impact on Mrs J M and on her family. She suffered serious hand injuries when struggling with Mr Lange and when trying to stop him using the knife. It must have been a terrifying experience for her. Mrs J M has not been able to live in her house since then. She and her husband have had to sell the house. She has been unable to return to the occupation she followed before the crimes.
In short, these are very serious crimes with grave consequences for Mrs J M and her family.
Mr Lange was 55 years of age at the time. He was of previous good character. No prior offences are alleged against him. He had served in the Australian Army, and later obtained the degree of Bachelor of Arts and ultimately, in 1982, a Doctorate in Psychology. He had held a number of responsible positions, some of which involved working for Aboriginal organisations. He had done a lot of work for Aboriginal communities in remote areas. On the material before the Judge there is no doubt that he had been a good and productive member of the community over many years.
It appears that Mr Lange had been a heavy drinker of alcohol for many years, but had been able to maintain employment. However, he had not worked since being injured in a motor car accident in September 2000. Disputes over his entitlement to compensation had been a source of stress, in particular in the period leading up to the offending. The accident had aggravated his pre-existing condition of PTSD.
In the period leading up to the offences, Mr Lange was drinking heavily. The drinking had increased after the motor vehicle accident. His consumption of alcohol had brought him to the stage of suffering brain damage, and as I have earlier noted, by the time of the offending conduct he was functioning only at an average level, whereas previously he had functioned at well above average level.
At the time of the offences, as I have already outlined, his mental state was marked by an impaired ability to plan and to anticipate consequences. As the Judge said, Mr Lange had difficulty in controlling his mental state. His craving for alcohol was a factor, the Judge accepting that this was why he committed the offences.
The Judge accepted that Mr Lange’s mental condition contributed to the offending conduct. However, as the Judge noted, the circumstances of the offending indicated a degree of planning. On the other hand, Mr Lange did not conceal his face, committed the offences near his home, and after committing the offences went to a hotel and began to spend money that he had obtained. It seems inevitable that he was going to be detected. These aspects of his behaviour are consistent with impaired functioning.
But Mr Lange remained responsible for his conduct. He knew what he was doing. He showed some determination and some persistence, despite Mrs J M’s efforts. And it is important to bear in mind that but for the courage and determination of Mrs J M, it is likely that he would have killed her. It was Mrs J M’s resistance that brought an end to the incident, not any decision by Mr Lange to desist.
Mr Lange’s conduct was inconsistent with his previous good character, and the good life that he had led for many years. The Judge accepted that he had demonstrated remorse and contrition. Since the offending conduct, with better attention to his treatment, there had been no sign of further aberrant conduct.
The Judge said that there were “some prospects for a successful rehabilitation”. But the Judge added that rehabilitation was “far from certain”. As the Judge said, the prospects of a successful rehabilitation would depend upon Mr Lange’s strength of character and his ability to abstain from alcohol. As the events in question demonstrate, a failure to follow an appropriate course of treatment, or additional sources of stress, would give rise to a risk of further misconduct.
The sentence
The Judge took account of the background that I have outlined above.
He gave “some credit” for Mr Lange’s plea of guilty, following the Judge’s decision that he was competent to commit the offences. However the Judge noted that the plea of guilty was a recognition of the inevitable, the prosecution case being a very strong one, almost unanswerable. For that reason the Judge said that the reduction on account of the plea could not be “very large”. It was open to the Judge to take that view.
The Judge said that general deterrence must be a factor in the sentence. As he said, deterrence was as important for those who may be inclined to give way to their impulses as it was to others.
It is to be noted that in these remarks the Judge did not put any special emphasis on general deterrence, merely making the point that it was to be taken into account.
The Judge said that the attempted murder was the most serious of the offences, and that is clearly correct. The Judge noted as a relevant matter that it was only Mrs J M’s courage and persistence that brought the incident to an end. Mr Lange showing no signs of desisting. The Judge said that the offending was aggravated by the fact that Mr Lange came into her home, and attacked her there.
But for the plea of guilty the Judge would have imposed a single sentence of imprisonment for 19 years, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). Having regard to the plea of guilty, the Judge fixed a head sentence of 17 years 6 months.
The Judge said that he was not satisfied that a shorter non-parole period was appropriate, and fixed a non-parole period of 12 years 6 months.
Submissions on appeal
Ms David rightly emphasised Mr Lange’s deteriorating mental condition at the time of the offences, and the link between that condition and the offences. She emphasised the impairment of Mr Lange’s reasoning ability, and the impulsivity that was an aspect of his condition. She submitted that it was unlikely that Mr Lange foresaw the consequences of the course of conduct on which he embarked, having regard to his mental condition. She emphasised that before the day in question he had committed no offences, and had led a good life, and that since the day of the offences, there were no indications of uncontrolled behaviour.
Her submission on appeal is that having regard to the matters that I have just identified, and to all Mr Lange’s circumstances, the Judge put too much emphasis on general deterrence and too little emphasis on the mitigating circumstances, being the circumstances personal to Mr Lange.
Mr Lange is not a person whose responsibility is so diminished that general deterrence cannot play a significant part in the sentencing process. In Mason-Stuart v The Queen (1993) 61 SASR 204, King CJ considered the approach to be taken to the sentencing of a person whose subjective moral responsibility is low. He said at 205-206:
It is a problem of reconciling the mercy which ought to be shown to a person whose subjective moral responsibility is low, with the need to protect the public from this sort of act of which the appellant was guilty. The importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a deterrent to other members of the public, is considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.
A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender's offending. The problem is to find a solution which will enable the public to be protected, without imposing a harsh punishment upon a person whose subjective moral responsibility is seriously diminished.
That approach has been followed consistently in this Court. The matter was considered by Martin J (with whom the others members of the Court agreed) in R v Wiskich [2000] SASC 64; (2000) 207 LSJS 431. In the course of his reasons at 457-458, Martin J said:
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.
A little later he said at 460:
The mitigating effect of the respondent’s mental condition was far outweighed by the gravity of the crime and the importance in the particular circumstances of the element of general deterrence. It follows in my view, that the learned sentencing judge erred in giving full force and effect to the principle enunciated in Mason-Stuart and Mooney.
In that case the Court concluded that the sentencing Judge had erred in the manner in which the Judge treated the offender’s mental condition as a mitigating circumstance.
The present case is one in which general deterrence was a factor in the sentencing process. As I understand her, Ms David did not argue to the contrary. Her submission was that, having regard to Mr Lange’s mental condition, general deterrence should have been given less weight than it was.
There is nothing in the sentencing remarks to indicate that the Judge allowed considerations of deterrence to dominate his approach. It cannot be said that his reasons disclose error. Nor, in my opinion, is this a case in which Mr Lange’s mental condition called for considerations of general deterrence to be given significantly less weight than they usually would be given. His compromised mental functioning did not detract from the conclusion that he knew what he was doing and was able, had he wished, to control his behaviour.
Nor is there anything in the Judge’s sentencing remarks to indicate an error of approach in relation to mitigating circumstances generally. The Judge referred to them, and evidently took them into account.
In short, there is nothing in the Judge’s reasons to support Ms David’s argument that the Judge erred in any respect.
It remains necessary to consider whether, having regard to all the circumstances, the head sentence is so high as to indicate an error of approach. The sentence is a lengthy one. But in my respectful opinion, while it might be said to be at the upper end of the range, it cannot be said that it is not within an appropriate range. Some Judges might have imposed a slightly lesser term, but that illustrates nothing more than that the appropriate sentence for this course of conduct fell within a range, and that it was for the sentencing Judge to decide where within that range the sentence should fall.

Is the non-parole period excessive in the circumstances? The Judge was cautious about the prospects of rehabilitation. I cannot say he was wrong in that respect. There were factors that supported a shorter non-parole period. These were emphasised by Ms David. They are in particular Mr Lange’s previous good character, the reasonably good prospects that he would not offend again, and the impact of his mental condition on his behaviour. But there were factors that argued the other way, including the fact that he remained responsible for his conduct, and the factor that there was a risk of a relapse into offending conduct, if an appropriate regime of treatment was not followed, or if Mr Lange was subjected to additional stress.
I have given the question of the non-parole period careful consideration, but I am not able to say that the Judge was wrong to take the approach that he did.
Conclusion
In my opinion the appeal must be dismissed. The Judge’s reasons do not disclose any error of approach. I am not persuaded that the head sentence or the non-parole period can be said to be manifestly excessive
DEBELLE J:I agree with the substance of the reasons of Doyle CJ. I agree this appeal should be dismissed.
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Doyle CJ.