R v Perry
[2022] SASCA 127
•1 December 2022
Supreme Court of South Australia
(Court of Appeal: undefined)
R v PERRY
[2022] SASCA 127
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice David)
1 December 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
This is an application by the Director of Public Prosecutions (SA) for permission to appeal against sentence on the ground that the sentence is manifestly inadequate.
On 8 February 2022, the respondent was sentenced, by a judge of the District Court, for the offence of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
The judge sentenced the respondent to a term of imprisonment of two years, six months and 19 days, after reducing the notional term of three years by 15 per cent for the respondent’s guilty plea. The judge fixed a non-parole period of one year, seven months and 28 days. The sentence and non-parole period were backdated to commence on 7 November 2020.
Prior to sentencing the respondent, the judge held a sentencing conference pursuant to s 22 of the Sentencing Act 2017 (SA). In fixing the sentence the judge had regard to, inter alia, discussions had, and materials provided, during the sentencing conference and the respondent’s diagnosed mental health conditions, including schizophrenia and substance abuse disorder.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. The sentence imposed was manifestly inadequate.
2. The sentence imposed by the District Court is set aside.
Held (Livesey P and David JA):
3. The need to protect the community and to deter the respondent and others from similar offending called for a sentence well in excess of that which was imposed in this case.
4. The respondent is resentenced to a term of imprisonment of four years and three months with a non-parole period of two years and three months.
Held (Kourakis CJ):
5. The sentence imposed by the sentencing judge fails to properly reflect the minimum demands of the community for punishment, protection and deterrence. Moreover, the period of non-parole fixed by the sentencing judge deprives the respondent, and the community, of the benefit of sufficient time on parole to stabilise the respondent’s medication and living circumstances. Both considerations combine to require the grant of permission to appeal and an order allowing the appeal.
6. If the object of s 22 of the Sentencing Act 2017 is to be achieved, it is important that appeal courts allow an appropriate margin of deference to a sentencing judge who has had the benefit of direct participation in the process.
7. General deterrence has a reduced part to play in a sentence in circumstances where the offence is committed by reason of a complex interaction of a psychotic condition, lack of insight, poor treatment compliance and self-induced intoxication.
8. Applying a reduction of 15 per cent for the respondent’s guilty plea, a head sentence of imprisonment for a term of three years, two months and one week with a non-parole period of one year and 10 months should be imposed.
Sentencing Act 2017 (SA) ss 11(1)(f); 22, referred to.
Bugmy v The Queen (2013) 249 CLR 571398; Dinsdale v The Queen (2000) 202 CLR 321; Everett v The Queen (1984) 181 CLR 295; Green v The Queen [2011] VSCA 311; Kuchar v The Queen (2019) 135 SASR 185; Munda v Western Australia (2013) 249 CLR 600; Nasrallah v R (2021) 105 NSWLR 451; Payne v The Queen (2002) 131 A Crim R 432; Perkins v The Queen [2018] NSWCCA 62; Peterson v The State of Western Australia [2019] WASCA 207; R v Betts [2011] SASCFC 27; R v Fernando (1992) 76 A Crim R 58; R v Gannon (2009) 103 SASR 398; R v Guode (2020) 267 CLR 141; R v Harradine [2012] SASCFC 103; R v Howell (2007) 16 VR 349; R v Hughes [2016] SASCFC 126; R v Hronopoulos (2017) 269 A Crim R 551; R v Irwin [2019] NSWCCA 133; R v KU; Ex parte Attorney-General (Qld) [No 2] [2011] 1 Qd R 439; R v Monks (2019) 133 SASR 182; R v Newton (2002) 128 A Crim R 185; R v Osenkowski (1982) 30 SASR 212; R v Pennington [2015] SASCFC 98; R v Place (2002) 81 SASR 395; R v Tsiaras [1996] 1 VR 398; R v Verdins (2007) 16 VR 269; Veen v The Queen (No 2) (1988) 164 CLR 465; Yardley v Betts (1979) 22 SASR 108, considered.
R v PERRY
[2022] SASCA 127Court of Appeal – Criminal: Kourakis CJ, Livesey P and David JA
KOURAKIS CJ.
Introduction
This is an application by the Director of Public Prosecutions (SA) (the Director) for permission to appeal against a sentence imposed on the respondent, Mr Perry, for the offence of aggravated robbery. The Judge sentenced Mr Perry to imprisonment for two years, six months and 19 days, after reducing a notional term of three years by 15 per cent for his guilty plea. The Judge imposed a non-parole period of one year, seven months and 28 days (about two thirds of the head sentence). The sentence was ordered to commence on 7 November 2020 when Mr Perry was taken into custody for the offence. It follows that if Mr Perry were released on or soon after the expiration of his non-parole period, he would be subject to supervision under parole for less than 11 months.
The sentence is substantially less than the range applicable to the generality of aggravated robbery offences. However, the commission of the offence was a function, in large part, of the chaotic existence into which Mr Perry was thrown by schizophrenia, the psychotic illness from which he suffers. Moreover, the sentencing Judge conducted a conference pursuant to s 22 of the Sentencing Act 2017 (SA) (the Sentencing Act) through which his Honour had the advantage of engaging with Mr Perry, his father Phil Perry (Phil) and others.
The extent to which a Judge may depart from the applicable range when a particular offence, and the offender, does not fall within the generality of cases to which the range applies is not susceptible to a simple statement of principle of universal application. Everything depends on the facts and circumstances of the particular case. Sentencing judges must be allowed an appropriate discretion to tailor a sentence to the particular circumstances of a case. Nowhere is that more important than in the case of an offender who suffers from a major psychiatric illness. Those considerations and the great benefit the Judge derived from the s 22 conference are weighty reasons to refuse the Director’s application for permission to appeal against the sentence.
On the other hand, I accept that the head sentence imposed is very low. I accept the Director’s contention that it fails to meet the community focused objectives of sentencing.
With some hesitation, I would grant permission to appeal but I would do so not on the ground alone that the head sentence is egregiously inadequate but, also, because the very low head sentence substantially deprives Mr Perry, and the community, of the benefit of sufficient time on parole to stabilise his medication and living circumstances.
I would grant permission to appeal and set aside the sentence imposed in the District Court. I would impose instead a head sentence of three years, two months and one week. I would fix a non-parole period of one year and 10 months. The sentence is to commence on 7 November 2020.
The offending
In the early hours of the morning of 7 November 2020, Mr Perry and three others hired a taxi from the city and asked to be taken to Mawson Lakes. Mr Perry sat in the front seat. As the taxi approached the Windmill Hotel on the corner of Ballville Street and Main North Road, Mr Perry asked the driver to stop. The taxi turned into Ballville Street where it pulled over. The back seat passengers left. When the driver asked Mr Perry how he would pay for the fare, Mr Perry brandished a pink and white kitchen knife and with his other hand grabbed the driver’s collar. He demanded that the driver hand over his cash. The driver handed over some coins and Mr Perry also took his iPhone. Mr Perry walked from the taxi into the Windmill Hotel, ignoring the driver’s requests to return the iPhone. In the short time Mr Perry was in the hotel an employee asked him whether he was lost. Mr Perry replied ‘I am a mental health patient. I just got off the bus. That taxi keeps following me. I have a knife and I will use it’. Mr Perry then left the hotel and ran down a lane towards Gloucester Street.
Police were called. They located Mr Perry and used capsicum spray to restrain him. He only threw down the knife after he was threatened with an active taser. The police recovered the iPhone and the coins.
Mr Perry reported to Dr Raeside, a forensic psychiatrist, that he committed the robbery to obtain money to buy amphetamines. He said that he carried a knife because of a paranoid fear that someone may try to stab him. He informed Dr Raeside that he had not been taking his oral medication. He attributed his offending to being ‘fuelled up with ice and alcohol’. Mr Perry also told Dr Raeside that he was ‘really affected by alcohol and I had a lot of ice in me’. He reported having taken about 20 pipes of methylamphetamine (with six to seven points in each pipe) that night. Dr Raeside commented that that was a very large amount of methylamphetamine.
Mr Perry’s life circumstances
Mr Perry was born on 29 December 1993. He is 28 years of age.
Mr Perry’s mother was a member of the Stolen Generation who was raised by a Caucasian family. ‘Stolen Generation’ is now a commonly used sociological term to refer to the social policy of removing Aboriginal children from their families. Care should be taken not to allow that term to gloss over the emotional anguish and psychosocial trauma of each child who was taken and the intergenerational consequences of the ensuing familial distress. Mr Perry’s mother became estranged from Aboriginal community groups in South Australia. She also suffers from schizophrenia.
Mr Perry’s parents separated due in part to his mother’s separation from family and community. Mr Perry and his siblings were raised by his father Phil as a single parent. Mr Perry attended many primary schools because his father moved to Victoria and around in search of work. Mr Perry eventually returned to South Australia. His academic performance declined in his later years at school when he associated with a negative peer group and his drug and alcohol consumption increased. He left school halfway through Year 12.
Mr Perry reported that he first used marijuana at age 14, alcohol from age 15 and amphetamines from age 19. He initially smoked amphetamine and was smoking it daily before turning to intravenous injections of the drug.
His criminal history includes two assault convictions, the last of which was committed in January 2015. He was sentenced to imprisonment for two months and two weeks, however, the report of Dr Raeside suggests that he was in custody, perhaps on remand, for a period of 12 months in 2015. His other offending is minor, the most recent being a failure to validate a bus ticket and using a concessional ticket without a concession card in April 2018.
In the period before this offending Mr Perry was homeless.
Psychosis
In 2013 (at age 19) Mr Perry was hospitalised for bilateral jaw fractures following an assault of which he was a victim. He was intoxicated at the time. There followed subsequent recurrent admissions to hospital. At about this time it was thought that he might suffer from bipolar major mood disorder.
Mr Perry was diagnosed with schizophrenia during a period of incarceration at Mobilong prison between 2015 and 2016 because although he was (presumably) drug-free, his paranoia persisted.
In 2019 on an admission to the Queen Elizabeth Hospital, he was also diagnosed with generalised anxiety disorder.
Mr Perry received a depot injection of the antipsychotic paliperidone early in 2020 but failed to voluntarily attend for further injections. COVID related lockdowns may have played some part.
Mr Perry was admitted to the Royal Adelaide Hospital in May 2020 to treat a stab wound to his buttocks.
Dr Raeside noted that Mr Perry’s family reported increasing paranoia about demons in the months before the offence. Mr Perry had also acted aggressively towards his family.
He was admitted to the Royal Adelaide Hospital in July 2020 for surgery to drain his left hand which was infected secondary to intravenous drug use. Urine drug screening was positive for methylamphetamine and cannabis. He appeared disorganised and was preoccupied with an ‘evil demon choking him at night, taking over his mind and body’. He believed that he had become a ‘host’ for demons.
Depot paliperidone was again administered and his behaviour settled. He was transferred to an open ward. When he was discharged on 29 July 2020 there had been a complete resolution of his psychotic symptoms. The diagnosis on discharge was chronic partially-treated schizophrenia, exacerbated due to recent illicit drug use and poor medication compliance in the background of a generalised anxiety disorder.
Mr Perry was admitted to hospital again on 1 August 2020 after presenting following conflict with his mother and brother. He was difficult to manage, aggressive and often volatile. He again described auditory hallucinations and expressed psychotic thoughts that he was possessed by demons. He was discharged on 5 August 2020. It was noted that he displayed only limited insight into his psychotic condition.
Mr Perry was admitted to the Queen Elizabeth Hospital in September 2020. Shortly before that admission he had cut his hand with a knife. He said that he had bought the knife with the intention to hurt his ‘enemies’, whose names he did not disclose, and that he had cut his left forearm twice to feel better. He reported heavy use of ice and experimentation with GHB and admitted that he had failed to take his antipsychotic medication. He also reported chronic auditory and visual hallucinations of demons telling him to hurt others. On that admission he was diagnosed with drug-induced exacerbation of his schizophrenia. He settled during the admission.
The picture painted by Mr Perry’s frequent admissions, altercations, self-inflicted wounds and illicit drug taking is of ineffective attempts to deal with the mental pain of his condition.
When Mr Perry was interviewed by Dr Raeside, he said that he was subject to a treatment order under the Mental Health Act and was managed by the Western Mental Health Service. He had been detained in the past for failing to take his prescribed medication. He expressed concern about the side effects, like eye tremors, of the medication he was prescribed.
Dr Raeside concluded from Mr Perry’s history that:
There is a complex interplay between his anger, impulsivity, anxiety symptoms, and intermittent paranoia as well as posttraumatic stress symptoms and trauma issues from past assaults and behaviours of borderline, antisocial, and dependent personality traits.
Dr Raeside noted that Mr Perry appeared to have been relatively stable during his last year in custody whilst on remand awaiting sentence on this offence. In prison his condition has been managed by anti-depressant and anti-psychotic medication together with mood stabilisers. Dr Raeside observed that the medication paliperidone had caused side effects like eye tremors and his eyes to roll back in his head. Dr Raeside noted that, paradoxically, Mr Perry’s mental health appears to be optimised by being in custody due to enforced abstinence from illicit drugs, and regular medication.
Dr Raeside’s diagnosis was that Mr Perry suffered from schizophrenia and substance use disorder. Mr Perry also displayed borderline antisocial and dependent personality traits. It was Dr Raeside’s opinion that Mr Perry’s psychotic relapses were secondary to non-compliance with medication regimes and/or illicit drug use.
Rehabilitation on remand
In June 2021 whilst in custody Mr Perry enrolled in the ‘Walking Strong’ program. The program is a culturally adapted cognitive behavioural therapy program which is designed to support Aboriginal people to lead more fulfilling lives. He completed the program in August 2021. Significant improvements were noted by the program provider. He has continued with ongoing one‑on‑one support and engagement through another program, Mukamuka Purruna. That program supports Aboriginal people who suffer from depression, anxiety and trauma. The program is provided by the Flinders Wellbeing Centre. A report from that centre described Mr Perry as motivated and enthusiastic.
Section 22 conference
The Judge held a sentencing conference pursuant to s 22 of the Sentencing Act which provides:
22—Sentencing of Aboriginal and Torres Strait Islander defendants
(1)Before sentencing an Aboriginal or Torres Strait Islander defendant, the court may, with the defendant's consent, and with the assistance of an Aboriginal and Torres Strait Islander Justice Officer—
(a) convene a sentencing conference; and
(b) take into consideration views expressed at the conference.
(2)Nothing in subsection (1) is to be taken to require the court to convene a sentencing conference if the court, after taking into account all relevant sentencing purposes, principles and factors, determines not to convene a sentencing conference.
(3)A sentencing conference must comprise—
(a) the defendant and, if the defendant is a child, the defendant's parent or guardian; and
(b) the defendant's legal representative (if any); and
(c) the prosecutor; and
(d) if the victim chooses to be present at the conference—the victim and, if the victim so desires, a person of the victim's choice to provide assistance and support; and
(e) if the victim is a child—the victim's parent or guardian.
(4)A sentencing conference may also include (if the court thinks the person may contribute usefully to the sentencing process) 1 or more of the following:
(a) a person regarded by the defendant, and accepted within the defendant's Aboriginal or Torres Strait Islander community, as an Aboriginal or Torres Strait Islander elder;
(b) a person accepted by the defendant's Aboriginal or Torres Strait Islander community as a person qualified to provide cultural advice relevant to sentencing of the defendant;
(c) a member of the defendant's family;
(d) a person who has provided support or counselling to the defendant;
(e) any other person.
(5)A person will be taken to be an Aboriginal or Torres Strait Islander person for the purposes of this section if—
(a) the person is descended from an Aboriginal or Torres Strait Islander; and
(b) the person regards themself as an Aboriginal or Torres Strait Islander or, if the person is a young child, at least 1 of the parents regards the child as an Aboriginal or Torres Strait Islander; and
(c) the person is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Islander community.
(6)In this section—
Aboriginal and Torres Strait Islander Justice Officer means a person employed by the South Australian Courts Administration Authority whose duties include—
(a) assisting the court in sentencing Aboriginal or Torres Strait Islander persons by providing advice on Aboriginal or Torres Strait Islander society and culture; and
(b) assisting the court to convene sentencing conferences under this section; and
(c) assisting Aboriginal or Torres Strait Islander persons to understand court procedures and sentencing options and to comply with court orders;
family includes—
(a) the defendant's spouse or domestic partner; and
(b) any person to whom the defendant is related by blood; and
(c) any person who is, or has been, a member of the defendant's household; and
(d) any person held to be related to the defendant according to Aboriginal or Torres Strait Islander kinship rules and observances.
Section 22 of the Sentencing Act is an integral procedural element in the sentencing of Aboriginal and Torres Strait Islander defendants. So much appears from sub-s (2) which, whilst making it clear that the word ‘may’ in sub-s (1) is not to be taken to mean must, is nonetheless premised on a sentencing court not exercising its discretion against holding a sentencing conference before ‘taking into account all relevant sentencing purposes, principles and factors’.
The purpose of sub-s (3) is simply to ensure the presence of those persons who, in the ordinary course, must be present, or are entitled to participate in one way or another, in any sentencing proceeding.
The fundamental purpose of a sentencing conference, and the rationale for the enactment of s 22 of the Sentencing Act, is found in sub-s (4). That section expressly empowers sentencing courts to admit, as participants in the conference, the particular persons identified in subparagraphs (a) to (d), and any other person who may contribute usefully to the sentencing process. Section 22 was enacted to allow the Supreme and District Courts of this State to replicate some of the practices of the Aboriginal sentencing courts which were first established in the Magistrates Court albeit without any express statutory foundation. From the practice of those courts, the following appears to be the nature of the anticipated contribution from the persons identified.
The purpose of including a person regarded by the defendant as an elder is twofold. First, that elder brings both cultural and broader community context to the sentencing process. Secondly, and as importantly, that elder adds an authoritative community voice which may denounce the offence and/or encourage the defendant to turn his or her life away from offending.
In the book ‘Specialist Courts for Sentencing Aboriginal Offenders’ the author, Magistrate Paul Bennett who has substantial experience as the Manager of the Nunga Courts in Adelaide and Murray Bridge describes the roles of Elders as follows:[1]
The Elders’ role is significant for three reasons. First, the Elders are a crucial source of personal, community and cultural information or advice. The Elders bring experience and knowledge to the sentencing discussion from a perspective which is neither that of a professional participant, nor the defendant’s advocate. Secondly, they are the critical link between the court, the local Aboriginal community and the defendant. The link is direct, with the Elders coming from the same community as the defendant.
Finally, the Elders occupy a unique position in the decision-making process. While in some other specialist courts (Drug, Family Violence and Mental Health courts) case workers provide information concerning eligibility or continuing participation in the court’s rehabilitative program, in no other criminal court do laypersons directly advise on or influence the sentencing decision.
[1] Paul Bennett, Specialist Courts for Sentencing Aboriginal Offenders (Federation Press, 2016) at [38].
The person falling within subparagraph (b) need not be regarded by the defendant as an elder but must be qualified to provide cultural advice. Culture is of course neither historic nor static. It refers to the evolved contemporary community practices, values and relationships of a community.
Aboriginal Court Officers may also play an important role:[2]
The Aboriginal Court Officer has a formal role in court as part of the sentencing circle or conference. As well as general engagement in the sentencing discussion, they may be asked for information relating to their role as the hearing organiser (concerning parties who could not, or declined to, attend), their knowledge of the defendant and, sometimes, cultural advice.
[2] Paul Bennett, Specialist Courts for Sentencing Aboriginal Offenders (Federation Press, 2016) at [39].
Similarly, the word family in subparagraph (c) has sufficient contextual flexibility to encompass the wider conceptions of family of the defendant’s Aboriginal Community. The words ‘support’ or ‘counselling’ appearing in subparagraph (d) should not be given any narrow meaning.
Magistrate Bennett explains the important role of family members in this way:[3]
The role of the defendant’s family is, like that of the Elders, a distinctive feature of the Aboriginal Court. The significance of the defendant’s family is recognised in the Aboriginal Court by their physical presence at, or close to, the bar table, with one or two family members seated near the defendant.
The defendant’s family are encouraged to participate in the sentencing discussion. Some speak freely, while others are prompted by questions from the Elders or the magistrate. The defendant’s family, particularly older or more senior relations will frequently provide useful information about the defendant and extended family which can help the court to assess the degree of family support available and the defendant’s prospects for rehabilitation.
The significance of family involvement in the Aboriginal Court sentencing process and its potential impact on penalty was recognised in a review of the Queensland Murri Courts. The study observed:
The presence of family members provides the Magistrate and Elders with an insight into the offender’s living circumstances and home life they might not otherwise had and can provide valuable information regarding the suitability of a non-custodial sentence (or conversely, other people who might be affected if the accused received a custodial penalty).
As well as being a practical benefit to the sentencing process, the recognition of family in the Aboriginal Court is a crucial aspect in providing a culturally relevant court and, in a symbolic sense, is reflective of the importance of kinship in Aboriginal society.
[3] Paul Bennett, Specialist Courts for Sentencing Aboriginal Offenders (Federation Press, 2016) at [44].
Having regard to the contributions which can be expected to be made by those participants, it is plain enough that the purpose of their inclusion is to more fully and effectively inform sentencing courts of the personal and social circumstances of Aboriginal defendants.
Over and above the bare information the participants will convey, the particular process the legislature has chosen for that purpose is, in itself, significant. A conference allows for more than the provision of written reports, or the making of statements or the giving of evidence. Participation in a conference necessarily involves interactions, mediated by the judge, between the participants. At best some of those interactions may, in themselves, be psychologically therapeutic.
The higher order legislative object of this special provision for the sentencing of Aboriginal defendants is also plain enough. First, it is a notorious fact that Aboriginal and Torres Strait Islanders are massively overrepresented in the criminal justice system.
Secondly, much of the offending is a product of the entrenched social disadvantage of many Aboriginal people which is secondary to the dispossession of their ancient lands, the disruption of their communities, the separations of their families, and the suppression of their language and culture. It is generally accepted that the taking of Aboriginal children away from their families has resulted in intergenerational trauma which has flowed, from the first parent and child, through to ensuing generations. It can be traced in Mr Perry’s familial and personal circumstances.
Thirdly, very few judicial officers have a theoretical understanding of those matters and even fewer have an empirical appreciation of the lives of Aboriginal people. There are no Aboriginal judicial officers in South Australia.
Fourthly, the family and community lives of judges, and the cultural contexts in which they live their lives, differ markedly from those of most of the Aboriginal defendants they sentence.
The selection of a conference as the medium through which a sentencing judge may be informed of the circumstances of Aboriginal defendants is therefore important. The evaluation of the considerations at the very core of sentencing may be affected by the cultural lens through which they are viewed. The evaluation of culpability for offending, and the prospects of rehabilitation, may vary depending on the perceived ‘likeness’ or ‘otherness’ of the defendant. The independence of mind, studied impartiality and objectivity of judges provide strong safeguards against that risk. The dynamic nature of the conference process adds to those safeguards because it gives the sentencing judge an opportunity to view the defendant and his or her family, community and cultural supports through a different cultural lens.
The power of the conference process to reveal personal and community strengths which would otherwise go unseen, and the effect of the close participation in the judicial process by elders, family and the defendant, should not be underestimated. The full effect of the conference will rarely be captured by the ink on a page of transcript. If the process which is legislatively encouraged by s 22 of the Sentencing Act is ever to achieve its ultimate objective of better outcomes for the community and Aboriginal offenders, it is important that appeal courts allow an appropriate margin of deference to a sentencing judge who has had the advantage of direct participation in the process. That consideration is, of course, not determinative but must always be weighed heavily.
In addition to Mr Perry and Phil, the other persons present at the conference were counsel for Mr Perry and the Director, Mr Perry’s brother Ashley, an elder (Aunty Everly Varcoe), an Aboriginal Justice Officer, and Mr Hill and Ms Sejdiu both of whom were workers with the Aboriginal Sobriety Group.
Mr Perry addressed the conference after the facts of the offending were read out by the prosecutor. He informed the Judge that his father was an Aranda man and that his mother was Kokatha. He told the Judge:
My story is sort of for the past six years I’ve been under mental health under a treatment order, being put on different medications and this type of thing and getting well, as I’ve been unwell.
My passion is sharing my culture with others, dancing, Indigenous dancing and sharing that through culture. That’s what I wish to return to. In future I have future goals to get employment and, yeah, get employment.
Mr Perry told the Judge that his employment was limited to several different forms of retail work. He admitted to having difficulties in staying on medication. He spoke of the side effects caused by his medication.
Mr Perry spoke of his struggle with alcohol.
During the time of my offending I had been drinking a lot of alcohol and I hadn’t been taking my medication during the time of the offending. I was under the influence of ice and that really clouded my judgment and I am very remorseful for my mistake and I take full responsibility for my actions.
Dad has tried to raise us the best he can, but alcohol is something I’ve had a problem with for a while. On getting out and that kind of stuff, I’ll be willing to do any counselling or anything to address these problems, yeah, drinking and using ice and that type of thing, yeah, so I can get back to the person I used to be, dancing and full of life and working and living a life and all that kind of stuff.
The Judge was informed that Mr Perry’s father would provide accommodation for him on his release from prison.
Phil commenced by acknowledging the Country and elders of the land on which the conference was held. He explained that he brought his son up as a single parent. He made it clear that he condemned the offending. He explained that he took Mr Perry and his siblings away from their own Country to Victoria where he found work after separating from their mother. He worked as a public servant. Phil explained that being ‘taken away from Country’ and then adapting back to the lifestyle of their home Country was culturally difficult for his children. Phil spoke of the hardship of Mr Perry’s poor mental health and the blinding effects of Mr Perry’s eye tremors. He told the conference that his son’s early work history was good and that he was well regarded by his employers before his mental health deteriorated. Phil acknowledged that his son was not always compliant with medication.
There is much to be gained from setting out at some length how Phil saw his sons’ predicament:
But later on when his medical condition was becoming more frequent, times it may have been his own fault that he hadn't been taking his medication and that kind of stuff, which obviously reacted to situations in a workplace that might become an occupational health and safety issue, not only to himself but to other workers around and that kind of thing. So I think that played on his mind a lot, and he thought to himself ‘Is this kind of medical situation really working?’.
I went to many of Liam's visits to the mental health worker that was down at Woodville and he had been on the same medication for some three or four years. His mother and I expressed extreme sort of situation to the doctor that we didn't think that this was getting anywhere. You know. If you can see that you are getting some place you can continue to go on that path, but that doctor just seemed to me that he was set in his ways and he thought that things would eventually work around, but I didn't see that progress, and if I didn’t see it, well then as a person who is actually under that medication you imagine that their thinking is, ‘Is this all worthwhile?’.
Away from his medical situation, Liam is very active to his culture. He was a member of the Adelaide dancing troupe. He was one, I’d say, I know I'm biased again, I’d say, he was one of the main dancers with that particular troupe and I know that situations have arisen where he has missed that kind of cultural background and he has missed that kind of thing. I can genuinely say that that is one of his true aspirations, you can say, to be able to get back into that kind of thing. Liam, I brought him up as a young child, his endeavours were always as a proud Aboriginal person, he has always wanted to be involved in that kind of thing.
To get to this situation here, you know, he acknowledges that he made some wrong choices in life and wrong choices are about if you are making the wrong choices, it is whether he is going to be able to change that process in your particular way of going forward.
Loves his family, we love him too, and it’s a process of drugs and alcohol affect not only people within my family, but right across our culture and across indigenous and non‑indigenous. They are the things that we as elders, and I’m an elder myself also, we need to be able to put this in a process where our young generations are on the right place, get us back to culture, get us back to country, get us back to the proper healing and proper things that we as elders were shown when we were younger, to be able to, you know, put our best step forward. I appreciate the work that the sobriety group are doing, being able to sit down and do that.
Liam, he is more adapted to being full of life and energy and that kind of thing, rather than it’s not really his, how can I say, it’s not really his normal way of going down this path of drugs and alcohol and that kind of thing. He is more about going to the footy and getting into sport. He has missed out on so many things across this period since he has been incarcerated. The death of his brother, who he was very, very close to, and being able to be close enough with the family and that kind of thing when that situation happened.
Phil stated that he had never himself used drugs other than drinking some alcohol and expressed concern that ‘drug and alcohol is a blight on our culture and it’s a blight on people who use it’.
At the conclusion of the conference a sheriff’s officer informed the Judge that he had information from the Department of Correctional Services concerning Mr Perry’s status in prison. Mr Perry’s counsel spoke to the sheriff’s officer and Mr Perry before disclosing in the conference that Mr Perry was kept on suicide watch in the prison.
The Applicable Sentencing Range
The decision of the Court of Criminal Appeal in R v Place[4] provides guidance as to the appropriate sentencing range for offences of armed robberies:
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasized that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment.
(emphasis added)
[4] [2002] SASC 101, (2002) 81 SASR 395 at [100].
The vulnerability of the victim in this matter was particularly relevant. In R v Betts,[5] White J stated:
Taxi drivers carry out an important function in the community. They are especially vulnerable to attacks of this kind. They are entitled to look to the law for protection. Considerations of personal and general deterrence should play a large part in sentences imposed for this kind of offending.
[5] [2011] SASCFC 27 at [19]. Also see R v Gannon (2009) 103 SASR 398 at [23].
Taking into account an offender’s mental condition
Section 11(1)(f) of the Sentencing Act requires the Court to take into account ‘the defendant’s age and physical and mental condition (including any cognitive impairment)’. Mental condition is not further defined. Given the ordinary meaning of those words and the context in which they appear in s 11(1)(f) of the Sentencing Act, they bear a wide meaning.
In R v Guode,[6] the High Court approved the following summary of the principles governing the weight to be accorded to a person’s mental condition by the Victorian Court of Appeal in R v Verdins:[7]
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
(footnote omitted)
[6] R v Guode (2020) 267 CLR 141 at 148-9 [8] (Kiefel CJ, Gageler and Nettle JJ).
[7] R v Verdins (2007) 16 VR 269 at 276 [32].
The succinctly stated propositions in R v Verdins[8] were subjected to a close, and with respect insightful, elucidation by Doyle J in R v Monks.[9]I need do little more than emphasise some of the matters addressed by his Honour which are of particular relevance to the circumstances of Mr Perry.
[8] (2007) 16 VR 269.
[9] (2019) 133 SASR 182 at [32]-[59].
As Doyle J observed, the mental condition ‘need not be attributable to a recognised psychiatric condition’, nor need it be ‘permanent or long-standing’.[10] Doyle J correctly emphasised that the importance in any case is not the label given to the condition ‘but whether and to what extent the condition can be shown to have impaired the offender’s mental functioning at the time of the offending’.[11]
[10] R v Monks (2019) 133 SASR 182 at [34].
[11] R v Monks (2019) 133 SASR 182 at [34].
Section 11(1)(f) of the Sentencing Act does not limit the Court’s consideration to those mental conditions which are ‘connected’ to the offending. However, the weight accorded to a mental condition will be greater if the mental condition and its effect on the defendant’s mental function, as Doyle J observed, ‘can be said to have influenced or caused the offender to commit the offence and/or to have affected the offender’s capacity to appreciate the wrongfulness and gravity of the offending’ (italics added).[12] Doyle J distinguished between a mental condition arising from self-induced intoxication and a mental condition which arises from an underlying mental illness. However, Doyle J recognised the position is often a complex one and a mental condition may arise from a combination of factors, including both an underlying mental condition such as a major psychosis and self-induced intoxication. In particular, taking illicit drugs may be a form of self-medication because it takes the pain of the mental anguish away. Mr Perry was diagnosed with schizophrenia about two years after he started to use amphetamines but had an earlier diagnosis of bipolar disorder. Non-compliance with prescription medication and the abuse of illicit drugs is commonly associated with major psychotic illnesses.
[12] R v Monks (2019) 133 SASR 182 at [35].
There is a close connection between Mr Perry’s schizophrenia and the offence. First, Mr Perry was homeless and his life was in turmoil in the period before the offence because of his psychosis and associated drug use. Making rational and morally right decisions is difficult in those circumstances.
Secondly, it is accepted that the moral culpability of an offender for an offence may be lessened by a mental condition which impairs the offender’s ability to exercise appropriate judgment or to think and reason clearly and to make calm and rational choices.[13] In this case it is clear that Mr Perry had suffered a major debilitating psychosis for a number of years before the offending and that his condition was on a steep downward spiral in the months before the offence. The frequency of his admissions to hospital and his florid psychotic symptoms in the several months before the offence are indicative that his psychotic condition was out of control.
[13] R v Monks (2019) 133 SASR 182 at [37].
That deterioration was marked by florid auditory hallucinations, a pre‑occupation with pursuit by demons, self-harm and risk taking behaviour.
Thirdly, it is likely that Mr Perry’s decision to commit the robbery was made spontaneously. True it is that the plan to travel to Salisbury was changed, but there is no indication that it was a ruse. Rather, it speaks of a random decision to stop at the hotel. The possession of the knife can be linked to his fear of demons and enemies noted at the Queen Elizabeth Hospital a month before the robbery. Mr Perry’s behaviour immediately after the robbery is probably more associated with his mental condition than with a rational plan to escape. His statement to the employee is also suggestive of an active psychosis of the kind of which he spoke on his earlier admission at hospital.
Self-induced intoxication will often be an aggravating factor. As Doyle J observed in R v Monks,[14] the moral culpability of the offender may be reduced but that may be offset if the offender had reason to foresee a risk that he or she would engage in inappropriate or criminal conduct whilst intoxicated. That is not the case here. Despite Mr Perry’s schizophrenic symptoms and increasing abuse of amphetamines, he had not been convicted of a criminal offence in the preceding five years.
[14] (2019) 133 SASR 182 at [40].
More importantly, the commission of offences, whilst under the influence of self-induced intoxication, will often require a sentence which heavily reflects general deterrence if offences of that kind are commonly committed by persons whilst intoxicated or addicted to certain drugs. However, general deterrence has a much reduced part to play in a sentence in circumstances like those of Mr Perry, where the offence is committed by reason of a complex interaction of a psychotic condition, lack of insight, poor treatment compliance and self-induced intoxication. In a case of such a knotted complex of interactions, it is inappropriate and ineffective to attempt to fix a sentence which will deter others who do not have a like underlying psychotic condition. Cases like Mr Perry’s are inappropriate vehicles to attempt to generally deter those persons who take drugs for hedonistic reasons, or in circumstances in which they can foresee the likelihood of their offending.
Maxwell P in Green v The Queen[15] observed that the rationale of personal deterrence ‘assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment’. No such assumption can be made in the case of someone whose capacity to think rationally and make calm and reasoned judgments is severely compromised by a psychotic illness. In a case in which the self-induced intoxication is related to that psychotic illness, it is a vain hope to think that the psychotic defendant has a capacity to rationally reason against self-intoxication.
[15] Green v The Queen [2011] VSCA 311 at [28], quoting Payne v The Queen (2002) 131 A Crim R at [43].
On the other hand, the most effective prophylactic against future offending for a sufferer of a major psychotic illness is to bring that illness under control. The most effective protection for the community is to stabilise the condition and provide solid prophylactic community supports. Modern psychiatry can achieve those objects.
Finally, Doyle J emphasised the ‘complex, multi-factorial and ultimately intuitive and individualised nature of the sentencing process’.[16] Similarly, Nettle JA in R v Howell[17] observed that the ‘reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique’.
[16] R v Monks (2019) SASR 182 at [52].
[17] R v Howell (2007) 16 VR 349 at 357 [24].
In R v Hronopoulos,[18] Hinton J observed that ‘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 influence a particular mental condition has on the sentencing outcome will depend on its particular symptoms, effects on the defendant, and the bearing of those matters on the objects of the sentencing function.
[18] R v Hronopoulos (2017) 269 A Crim R at [72].
Of course as much as an offender’s mental condition may operate to mitigate a sentence that would otherwise be imposed on an offender with no such condition, the sentence fixed must nonetheless achieve those objects of the sentencing process, deterrence, denunciation and punishment, on which the welfare of community depends.
Conclusion
In the circumstances of this case, the Judge correctly focussed on the significance of Mr Perry’s psychotic illness and the prospect of rehabilitation through his medical treatment. However, in reducing the sentence to three years, the Judge has failed to properly reflect the minimum demands of the community for punishment, protection and deterrence. Moreover, the non-parole period fixed by the Judge allowed only one year on parole in which to supervise Mr Perry’s return to the community. Both considerations combine to require the grant of permission to appeal and an order allowing the appeal. I would set aside the Judge’s sentence.
In this case, no lesser head sentence than three years and nine months could properly be imposed. Applying a reduction of 15 per cent for Mr Perry’s guilty plea, I would impose a head sentence of three years, two months and one week. I would impose a non-parole period calculated to allow time for his reintegration into supported residential and therapeutic environments whilst under close parole supervision. I would fix a non-parole period of one year and 10 months. That would allow Mr Perry, and the community, the benefit of a period of about 16 months on parole, if the Parole Board is minded to order his release soon after the expiration of the non‑parole period.
LIVESEY P and DAVID JA:
Introduction
This is a Crown appeal against sentence. On 8 February 2022, the respondent was sentenced for an aggravated robbery committed on 7 November 2020, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
The sentencing judge commenced with a head sentence of three years which was then reduced by 15 per cent for the respondent’s guilty plea, to two years, six months and 19 days. A non-parole period of one year, seven months and 28 days was fixed. The sentence was backdated to 7 November 2020, when the respondent was taken into custody. The respondent remains in custody though he became eligible for parole during July 2022.
The Director of Public Prosecutions for the State of South Australia (the Director) contends that the head sentence is manifestly inadequate: the offending involved the use of a knife and threats made to a taxi driver who was described as a “vulnerable target”. The Director contends that the sentence fails to adequately punish the respondent and fails to adequately address the need to protect the community.
These contentions should be accepted. The sentence which was imposed is manifestly inadequate and, for the reasons that follow, permission to appeal should be granted and the appellant resentenced.
The circumstances of the offending
At about 1.17 am in the early morning of 7 November 2020, a taxi driver was sitting in his taxi on the taxi rank at the corner of Leigh Street and Currie Street in Adelaide. Four people, including the respondent, entered the vehicle. The respondent sat in the front passenger seat. The other three sat in the rear. The respondent asked that they be driven to Mawson Lakes, around half an hour from the City.
At around 1.26 am, nearly 10 minutes later, the taxi was approaching the Windmill Hotel on Main North Road, Prospect. The respondent asked the driver to stop the taxi. The driver turned into Ballville Street and stopped. The three rear passengers got out.
The respondent remained in the front seat. The taxi driver asked the respondent how he wanted to pay. In response, the respondent pulled a knife and held it towards the taxi driver. The respondent grabbed the taxi driver’s collar and said “give me your cash”. The taxi driver said that he only had coins. The respondent took the taxi driver’s iPhone and the coins from the centre console. He got out and began to walk toward the nearby Windmill Hotel. The taxi driver wound down the window and asked for his phone. The respondent ignored him.
The respondent then entered the Windmill Hotel and spoke to staff.
During the course of his subsequent interviews with Dr Craig Raeside, forensic psychiatrist, on 20 November 2020 and 10 November 2021, the respondent admitted that he was that night “really affected by alcohol and I had a lot of ice in me”. The respondent told Dr Raeside he had used around 20 pipes of methylamphetamine that night, with about six to seven points in each pipe. The respondent told Dr Raeside that his motive for the armed robbery was to “get money to get more ice”. The respondent admitted that he normally carried a knife.
According to one of the employees of the Windmill Hotel, the respondent entered the hotel and went into the toilet. When he was asked whether he was lost, the respondent replied that he was a “mental health patient. I just got off the bus”. The respondent then told staff that the “taxi keeps following me. I have a knife and I will use it”. The respondent was then pointing to a taxi outside the hotel. Staff yelled at the driver of the taxi, telling him to keep driving. One employee noted that the respondent appeared scared before leaving the hotel. The taxi driver then approached staff and told them about the robbery of his phone and the respondent’s use of a knife.
The circumstances of the offender
The respondent is a 28-year-old single man who has never married and who has no children. His last paid employment was with a supermarket four years before the subject offending.
The respondent was born and raised in Ballarat and later in Sale, Victoria. His mother has been described as a member of the ‘Stolen Generation’. He was raised with his two older sisters, three older brothers and a younger brother, the product of his parents’ different relationships. The respondent’s parents separated when he was young, following which the respondent settled in South Australia with his mother and three of his brothers. During this time the respondent’s father resided in Victoria where he was employed in the public service. The respondent told Dr Raeside that he was “treated well” within his family.
When the respondent was seven or eight years of age he was twice raped by a stranger. The respondent described to Dr Raeside the significant impact that this traumatic experience had on his childhood, which led him to being a “troubled kid”, smoking cannabis and engaging in risky behaviours. The respondent subsequently left school halfway through year 12 in the context of ongoing drug use. He did not return to complete his studies.
Although the respondent has enjoyed reasonable physical health, his mother has suffered from Schizophrenia. The respondent’s own mental health problems commenced around seven years ago with a diagnosis of “Schizophrenia, Bipolar II and Generalised Anxiety Disorder”. This illness commenced with what the respondent described as excessive worry and anxiety, together with paranoia. The respondent was hospitalised on a number of occasions before and during 2020. These admissions were usually associated with the respondent stopping his psychiatric medication. At these times he commenced to feel unwell and became more paranoid.
The respondent commenced long-acting injectable antipsychotic medication (Paliperidone) in 2020 but he stopped that medication and only resumed it after being taken into custody. The respondent told Dr Raeside that this medication kept him stable. He also told Dr Raeside that his last hospital admission was a couple of months before his arrest and that his last injection was a couple of days before his arrest.
Dr Raeside set out in his report dated 10 November 2021 that the respondent was affected by problematic gambling as well as by incidents of past trauma, including a stab wound to the buttock during May 2020.
In July 2020, the respondent was admitted to hospital after treatment for a left hand wound, secondary to intravenous drug use. This was associated with a failure to comply with medication and the continued use of illicit drugs.
The respondent’s family then provided a history concerning the respondent’s paranoia regarding demons which had been chronic but, more recently, had become associated with aggression towards his family. A drug screen was positive for methylamphetamine and cannabis. The respondent was recorded as being disorganised and preoccupied with an “evil demon choking him at night, taking over his mind and body”, together with the belief that marks on his skin were a sign that he had become a “host”. There were intermittent auditory hallucinations. There were also homicidal ideas reported towards the respondent’s mother. The respondent reported overt psychotic symptoms and increasing agitation and irritability when his needs were not met. The respondent was noted to have “Cluster B” personality traits, including antisocial and narcissistic traits.
There was a further hospital admission during August 2020 following conflict between the respondent and his mother and brother, resulting in a physical altercation. He was told to leave his mother’s home. Further reports were made of homicidal ideas towards the respondent’s mother, together with suicidal ideas. The respondent displayed limited insight into his mental illness. The respondent remained aggressive and often volatile, requiring numerous “code blacks”. The respondent threatened staff with plastic weapons and, on one occasion, there was an altercation and the assault of a member of the nursing staff.
A further admission to hospital during September 2020 was associated with a cut caused to the respondent’s hand by a knife. At that stage he was reporting the use of methylamphetamine each day and experimentation with other drugs, including GHB[19] and nitrous oxide. According to Dr Raeside:
On the day of his presentation to The Queen Elizabeth Hospital he had become angry with a woman he met the previous night when they had used drugs together. He went to the shop and bought a knife with the intention to hurt his “enemies”, stating that he had a list of people that he was happy to hurt but not wanting to disclose names. He used the new knife to cut his left forearm twice in order to feel better, but not with an intention to kill himself. He again reported chronic auditory and visual hallucinations of demons telling him to hurt others. He said that when he used drugs the demon became stronger. He admitted to recent use of drugs … and said he had used “heaps of Ice” in recent days that led him to being unable to sleep. He had also missed one of his depot medications and had not taken regular medication for three or four days prior to the emergency department presentation.
[19] Or gamma-hydroxybutyrate.
The respondent was then described as having a drug induced exacerbation of Schizophrenia which settled throughout the admission. The admission was characterised by multiple “code blacks”, including one incident when the respondent attempted to obtain needles from a medical trolley but instead took a pair of scissors with the alleged intention of stabbing a restraint guard.
Dr Raeside described “diagnostic complexity” due to the respondent’s comorbid drug and alcohol use and varied clinical opinions. According to Dr Raeside:
There is a complex interplay between his anger, impulsivity, anxiety symptoms, and intermittent paranoia as well as posttraumatic stress symptoms and trauma issues from past assaults and behaviours of borderline, antisocial, and dependent personality traits. His risks of harm are usually exacerbated by drug and alcohol abuse that have been described as “not typical of Schizophrenia”.
Dr Raeside expressed the opinion that most of the respondent’s admissions related to drug-induced relapses of psychosis, aggravated by non-adherence to medication. These problems appeared to have resolved and the respondent seemed relatively stable during his time in custody in the absence of drugs and whilst taking regular medication.
In the opinion of Dr Raeside, the respondent was clearly under the influence of alcohol and illicit drugs at the time of his offending. Nonetheless, there was a financial motive related to the desire to buy more drugs. Dr Raeside explained that the use of alcohol and illicit drugs increased the respondent’s aggression and disinhibition and adversely affected his judgment. Having said that, Dr Raeside emphasised that the respondent had a history of threatening behaviour with knives and, therefore, the offending behaviour was not out of character.
Dr Raeside did not suggest that the respondent was delusional or psychotic at the time of the subject offending.
Dr Raeside recommended regular ongoing psychiatric review whilst in custody. On release, he predicted the need for assertive community mental health follow-up which, as in the past, would likely be difficult. Intensive drug and alcohol rehabilitation would be required given that there was a very high risk of relapse into substance abuse. Dr Raeside recommended a violence prevention program. As for the respondent’s prognosis:
Overall, Mr Perry’s psychiatric prognosis is guarded given his past history, aggravated by substance abuse and poor adherence to medication and engagement with mental health services. His risk of future aggression also is a concern given his past pattern of such behaviour, tendency to carry weapons, and the disinhibiting and aggravated effects of substance abuse.
The respondent has been before the court for numerous assaults dating back to when he was a youth in 2010. He generally received lenient sentences, including a suspended sentence bond in 2014 for a number of offences which included two counts of assaulting police. In the same year, the respondent received another suspended sentence bond for further offending, including two aggravated assaults against police.
In 2015 the respondent received another suspended sentence bond for an aggravated assault causing harm involving the use of a weapon. Later during 2015, the respondent was sentenced to imprisonment for two months for an assault. In addition to this offending, the respondent has had a history of breaching bonds and failing to comply with bail agreements.
For the purposes of assessing the respondent’s suitability for home detention, a Community Corrections assessment was undertaken and a report prepared on 7 February 2022. This disclosed that the respondent’s offending history commenced in 2012 when he was aged 19 and, since that time, over 29 convictions were recorded for offences ranging from disorderly behaviour to resist police, offensive language, assault, aggravated assault without a weapon, assault police and assault causing harm and being unlawfully on premises. It was observed that the respondent’s offending formed part of an established pattern of offending whilst under the influence.
The respondent told the reporter that he had recently been transferred from Mobilong Prison to Yatala Labour Prison, after stating that he was going to harm himself. However, whilst being assessed on admission to Yatala he reported that he had “just said that” because he needed to get out of Mobilong to avoid a drug debt. The respondent said that he needed to “shiv up” because of his drug debt. This appears to be a reference to the need to become armed for the purposes of self-defence. When questioned, the respondent admitted that he lied about hurting himself and, since transfer to Yatala, he had settled his drug debt. The respondent admitted that he “feels weak” around drugs and would use them again if they were offered to him.
The Director - manifest inadequacy
The Director’s submissions commenced with the standard penalty appropriate for armed robberies of six to eight years imprisonment:[20]
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
[20] R v Place (2002) 81 SASR 395, [101] (Doyle CJ, Prior, Lander and Martin JJ).
These crimes are frequently committed by those addicted to and affected by alcohol or other drugs, and who commit their crimes in order to obtain money to meet their addictions. The application of this sentencing standard is, however, not inflexible and depends upon a range of personal and objective circumstances associated with the offending and the offender.[21]
[21] R v Harradine [2012] SASCFC 103, [22] (Sulan J, with whom White and Nicholson JJ agreed).
An aggravating feature in offending of this kind is the vulnerability of the victim. For example, in R v Newton the defendant robbed a member of the public by threatening her with a syringe after watching her withdraw money from an automatic teller machine.[22] The defendant was a heroin addict desperate for money and the offending was described as not “intrinsically less serious than the broadly described type of offending … [to] which the standard of penalty has been applied by previous decisions of this Court”.[23] The vulnerability of the victim was given particular emphasis by the Court of Criminal Appeal in R v Place.[24]
[22] R v Newton (2002) 128 A Crim R 185.
[23] R v Place (2002) 81 SASR 395, [106] (Doyle CJ, Prior, Lander and Martin JJ).
[24] R v Place (2002) 81 SASR 395, [106] (Doyle CJ, Prior, Lander and Martin JJ).
Similarly, the vulnerability of taxi drivers, especially at night, has also been emphasised in the authorities. For example, in R v Betts White J explained:[25]
Taxi drivers carry out an important function in the community. They are especially vulnerable to attacks of this kind. They are entitled to look to the law for protection. Considerations of personal and general deterrence should play a large part in sentences imposed for this kind of offending.
[25] R v Betts [2011] SASCFC 27, [19] (White J, with whom Doyle CJ and Peek J agreed). See also R v Gannon (2009) 103 SASR 398, [23] (Sulan J, with whom Doyle CJ and Kelly J agreed).
In the submission of the Director, the respondent’s poor antecedent history and guarded prospects of rehabilitation rendered the need for personal and general deterrence of utmost importance. It was submitted that the sentence which was imposed failed to give proper regard to the primary purpose of sentencing, being to protect the safety of the community, as required by s 3 of the Sentencing Act 2017 (SA).
Indeed, it was submitted that, in all these circumstances, the head sentence of just over two years and six months and a non-parole period of just under one year and eight months was so disproportionate to the gravity of the offending that were this Court to allow that sentence to remain it would shock the public conscience. It was submitted that this Court would be justified in intervening so as to ensure that principles of deterrence and community safety were adequately reflected in the sentence.
The respondent - mental impairment and illness
For the respondent, it was submitted that he was an Aboriginal man with complicated mental health and addiction issues, only 28 years at the time of sentence and who had been the victim of rape as a child.
The respondent emphasised that a number of mitigatory features were put before the sentencing court, in particular during a s 22 conference conducted pursuant to the Sentencing Act 2017 (SA).
Whilst it was accepted that the respondent had engaged in serious offending, it was submitted that there was benefit in avoiding the “degrading influence” of a lengthy term of imprisonment in favour of a more rehabilitative approach, even for serious offending such as had occurred in this case.[26] The respondent emphasised that it was open to the experienced sentencing judge in this case to impose a sentence at the lower end of the tolerable range where there was a perceived possibility of “salvaging” the respondent through eventual rehabilitation.[27]
[26] R v Osenkowski (1982) 30 SASR 212.
[27] Yardley v Betts (1979) 22 SASR 108, 112-113 (King CJ, with whom Mitchell and Legoe JJ agreed); see also R v Hughes [2016] SASCFC 126, [7]-[10] (Kourakis CJ, with whom Peek and Lovell JJ agreed).
The respondent submitted that the over-representation of Aboriginal people within the prison system should acknowledge the social complexities of indigenous drug use, together with other criminogenic factors which affect indigenous people, allowing for modification or amelioration on occasion, so as to avoid what may be regarded as harsh policies of deterrence.[28]
[28] R v Pennington [2015] SASCFC 98, [22]-[31] (Gray and Sulan JJ), citing Bugmy v The Queen (2013) 249 CLR 571 and Munda v Western Australia (2013) 249 CLR 600.
In particular, it was emphasised that the sentencing judge gave full consideration to the sentence standard identified in R v Place but recognised that it was not inviolable.[29]
[29] See, for example, R v Betts [2011] SASCFC 27 and R v Hughes [2016] SASCFC 126, [7]-[10] (Kourakis CJ, with whom Peek and Lovell JJ agreed).
During the course of argument, counsel emphasised the need for this Court to give full effect to the consequences of the respondent’s complex mental illness. This, emphasised the respondent, had been carefully evaluated and brought to account by the sentencing judge. A suggestion was made during argument that the respondent might, in addition, be affected by an intellectual impairment. Despite being given an opportunity to prepare an application to present further evidence, the respondent abandoned that application as he was unable to obtain an appropriate report within an acceptable timeframe.
Instead, the parties made further submissions about the way in which mental illness, and indeed mental impairment generally, should be taken into account by the sentencing court and the appeal court. The parties were given an opportunity to address the relevant authorities. The parties agreed that the relevant principles were discussed in R v Hronopoulos,[30] and Kuchar v The Queen.[31] The applicant also relied on R v Monks.[32] A number of High Court, New South Wales and Victorian authorities were reviewed in these cases. For present purposes, it is sufficient to highlight the approach taken in R vTsiaras:[33]
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.
[30] R v Hronopoulos (2017) 269 A Crim R 551, [23]-[33] (Stanley J) and [69]-[72] (Hinton J).
[31] Kuchar v The Queen (2019) 135 SASR 185, [19]-[41] (Stanley J, with whom Kelly J and David AJ agreed).
[32] R v Monks (2019) 133 SASR 182, [35]-[59] (Doyle J). The respondent did not indicate his position in respect of this authority.
[33] R v Tsiaras [1996] 1 VR 398, 400 (Charles and Callaway JJA, Vincent AJA), (approved in R v Guode).
Later, the Victorian Court of Appeal emphasised six considerations in R v Verdins:[34]
[34] R v Verdins (2007) 16 VR 269, [32] (Maxwell P, Buchanan and Vincent JJA).
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
(footnote omitted).
In the course of his reasons in R v Monks, Doyle J carefully reviewed the different ways in which mental illness had been regarded as relevant to the exercise of the sentencing discretion, addressing issues such as moral culpability, general and personal deterrence and hardship,[35] particularly in the Court of Criminal Appeal.[36] That case, unlike this case, was a case where there was a clear and direct link between the appellant’s psychosis and his offending:[37]
… the appellant was suffering from acute methamphetamine intoxication, or methylamphetamine-induced psychosis, at the time of his offending. This not only impaired the appellant’s mental functioning, but did so in a manner that was directly linked to, and causative of, his offending. He lit the fires in the belief that this would assist him to escape his (imagined) pursuers.
[35] R v Monks (2019) 133 SASR 182, [35]-[55] (Doyle J, with whom Peek and Parker JJ agreed). The respondent did not indicate his position in respect of this authority.
[36] R v Monks (2019) 133 SASR 182, [56]-[59] (Doyle J, with whom Peek and Parker JJ agreed). The respondent did not indicate his position in respect of this authority.
[37] R v Monks (2019) 133 SASR 182, [60] (Doyle J, with whom Peek and Parker JJ agreed). The respondent did not indicate his position in respect of this authority.
In this case, there is no issue about the respondent’s legal responsibility. Indeed, his moral culpability is clear: he had ingested a large amount of methylamphetamine and alcohol and was engaging in armed robbery in order to fund the consumption of further alcohol and methylamphetamine.[38]
[38] See R v Verdins (2007) 16 VR 269, [32] (Maxwell P, Buchanan and Vincent JJA), particularly point 1.
It cannot be said here, as in cases such as R v Monks, that the nature or severity of the respondent’s mental illness symptoms explain or ameliorate his offending. He was not, at the time of the robbery for example, floridly psychotic.[39] In addition, the respondent’s psychiatric condition improved whilst in custody when it would seem that he has not consumed alcohol or illicit substances.
[39] R v Verdins (2007) 16 VR 269, [32] (Maxwell P, Buchanan and Vincent JJA), particularly points 2 and 3.
There is at least some scope to debate the role of specific deterrence given the respondent’s limited insight and capacity for addressing his history of offending and addiction.[40] In addition, though the respondent’s condition has improved whilst in custody, he reports distress at being away from his family and ongoing concern about being kept in custody rather than at a mental health facility such as James Nash House. It is doubtful whether a full array of appropriate treatment can or will be made available to the respondent whilst he remains in custody.[41]
[40] R v Verdins (2007) 16 VR 269, [32] (Maxwell P, Buchanan and Vincent JJA), particularly point 4.
[41] R v Verdins (2007) 16 VR 269, [32] (Maxwell P, Buchanan and Vincent JJA), see points 5 and 6.
Conclusions on manifest inadequacy and permission to appeal
A starting point of three years was very low for an armed robbery of a vulnerable victim involving a knife in the early hours of the morning. Ordinarily, a starting point of a sentence of twice that length would be appropriate.
However, there was clearly scope for the sentencing judge to bring to account the respondent’s complex mental illness and addiction issues, even if these did not entirely explain the offending or uniformly suggest leniency.
The sentencing judge was clearly concerned about the extent to which this respondent would find prison a particular hardship in circumstances where he required every assistance with what was a complex rehabilitation process. Given the conflicting signs apparent on the evidence in this case, in large part the product of the respondent’s complex mental health and addiction profile, it cannot be said that the sentencing judge should not have approached the task of sentencing with the importance of rehabilitation and treatment in mind.
Nonetheless, whilst these were appropriate sentencing considerations, they could not detract from other important sentencing considerations, particularly community protection and deterrence.
Though the sentencing judge was clearly impressed by events at a s 22 sentencing conference, the influence of the respondent’s father and the respondent’s desire to reconnect with his family, country and culture, these mitigatory factors could not be permitted to “lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”.[42]
[42] Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
In Munda v Western Australia the High Court explained, by reference to Brennan J’s decision in Neal v The Queen:[43]
It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour.[44] Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.
[43] Munda v Western Australia (2013) 249 CLR 600, [53] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ), citing Neal v The Queen (1982) 149 CLR 305, 326.
[44] R v KU; Ex parte Attorney-General (Qld) [No 2] [2011] 1 Qd R 439, [133] (de Jersey CJ, McMurdo P, Keane JA).
In R vFernando, Wood J explained:[45]
[I]n sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
[45] R vFernando (1992) 76 A Crim R 58, 63 (Wood J).
Even so, circumstances personal to the respondent may legitimately be taken into account when formulating a sentence which is appropriately proportionate to the offending and the offender:[46]
… the personal disadvantages affecting an individual offender may be, because of the circumstances in which they were engendered, so deep and so broad that they serve to shed light on matters such as, for example, an offender’s recidivism.
[46] Munda v Western Australia (2013) 249 CLR 600, [52] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
As was emphasised in Bugmy: [47]
An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence.
[47] Bugmy v The Queen (2013) 249 CLR 571 (Bugmy), [37] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
The High Court was there addressing “an offender’s background of deprivation in mitigation of sentence”.[48]
[48] Bugmyv The Queen (2013) 249 CLR 571, [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Unlike some cases, this case does not feature profound childhood deprivation. That, however, does not necessarily mean that “full weight” ought not be given to the respondent’s background, including his difficult childhood, history of sexual assault and mental illness. As Bell P recently cautioned in Nasrallah v R:[49]
When the plurality in Bugmy spoke of “deprivation”[50] and “profound childhood deprivation”,[51] their Honours were referring to the deprivation of an environment in which a child was not exposed in a sustained and endemic way to “abuse of alcohol and alcohol-fuelled violence”,[52] noting that such an environment will often be the product of extreme social disadvantage in terms of the absence of education, employment and opportunities.[53]
An environment of “childhood deprivation” in which “abuse of alcohol and alcohol-fuelled violence” are endemic (the circumstances which were addressed in Bugmy) may be conceptually different from an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or psychological abuse. There may also be a significant conceptual distinction between circumstances of sustained sexual or other abuse of a child and a single instance of sexual abuse or attempted sexual abuse.[54] Whether or not a single instance of sexual abuse or some other traumatic event strictly falls within the scope of the principles enunciated in Bugmy may be debated for, as has been observed, “while courts have applied the Bugmy principle in cases where offenders have had a wide range of adverse childhood experiences, in each instance, the circumstances of the offender’s deprivation occurred over a lengthy period of time and generally within the offender’s family”.[55] As Simpson AJA said in R v Irwin, the “Bugmy principles … are concerned with the impact on sentencing of a history of disadvantage and deprivation” (emphasis added).[56] The boundaries of Bugmy have not been clearly or definitively delimited.[57]
[49] Nasrallah v R (2021) 105 NSWLR 451, [10]-[11].
[50] Bugmy v The Queen (2013) 249 CLR 571, [37], [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[51] Bugmy v The Queen (2013) 249 CLR 571, [44], [46] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[52] Bugmy v The Queen (2013) 249 CLR 571, [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), see also at [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[53] See R v Fernando (1992) 76 A Crim R 58,62–63 (Wood J), as quoted by the plurality in Bugmy v The Queen (2013) 249 CLR 571, [38] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[54] Examples of cases where Bugmy has been applied to circumstances of sexual abuse in conjunction with an environment of alcohol abuse include Director of Public Prosecutions v Macarthur [2019] VSCA 71, [33] (Ferguson CJ, Kaye and Weinberg JJA); Director of Public Prosecutions v Hodgson [2019] VSCA 49; and R v Irwin [2019] NSWCCA 133.
[55] See M Bagaric and G Wolf, “An argument for recognising childhood sexual abuse and physical abuse as a mitigating factor in sentencing” (2020) 49(2) Australian Bar Review 227, 235. This article provides a useful survey of decisions applying Bugmy, at 235–236.
[56] R v Irwin [2019] NSWCCA 133, [2] (Simpson AJA).
[57] Bagaric and Wolf correctly observe at 234 that the High Court in Bugmy “left considerable room for other superior courts to interpret and speculate about the scope of this mitigatory principle and its relative importance in the sentencing calculus.”
The effect of an offender’s background must nonetheless be balanced with other sentencing considerations and objectives, including the need for general deterrence and community protection. As Bell P explained in Nasrallah:[58]
… Plainly enough, the nature and degree of an offender’s background of deprivation will vary with the circumstances of each case and is a matter that must be established by evidence.[59]
On the other hand, as Bugmy also makes clear, an environmental factor that may lead to a substantial reduction in moral culpability for a violent offence may correspondingly increase the importance of protecting the community from the offender so that, in the sentencing calculus, the existence of particular profound childhood deprivation may not lead to an overall reduction in sentence.[60] This does not mean that “full weight” has not been given to Bugmy considerations.
[58] Nasrallah v R (2021) 105 NSWLR 451, [8]-[9] (Bell P).
[59] Bugmy v The Queen (2013) 249 CLR 571, [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[60] Bugmy v The Queen (2013) 249 CLR 571, [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). See also Director of Public Prosecutions v Hodgson [2019] VSCA 49, [76] (Kaye, Niall and Weinberg JJA); Perkins v The Queen [2018] NSWCCA 62, [80]-[81] (White JA).
In Peterson v Western Australia, Quinlan CJ observed that though an offender’s background must be given “full weight”, it may not carry the same weight in every case because of the need for each sentencing exercise to have regard to the particular circumstances and relevant factors in the case before the court:[61]
For this reason, in my view, there is no contradiction in saying that, while in every case, an offender's deprived background must be given 'full weight' (in the sense that the effects of that background have not diminished), it will not necessarily have the 'same weight' from one sentencing exercise to another (in the sense that the effects of the deprived background will have the same effect on the overall sentence). In this regard, the weight that is to be given to each of the various, and potentially conflicting, sentencing considerations will always be relative to the weight to be given to the other sentencing considerations. Thus, for example, the 'full weight' of an offender's deprived background, as a mitigatory factor, might be 'outweighed' by the need for community protection in one case, but not in another.
[61] Peterson v The State of Western Australia [2019] WASCA 207, [11] (Quinlan CJ).
The way in which conflicting sentencing principles may be balanced were summarised by Buss P and Mazza JA in Peterson v The State of Western Australia as follows:[62]
1.The effects of an offender’s profound childhood deprivation do not diminish with the passage of time or repeated offending. These effects may impair the offender’s capacity to mature and learn from experience, as well as to reform.
2.The effects of an offender’s profound childhood deprivation are to be given “full weight” in every sentencing decision relating to the offender.
3.However, the effects of an offender’s profound childhood deprivation may point in different directions in relation to relevant sentencing factors; for example, those effects may diminish the offender’s moral culpability for the offending, but may also increase the importance of protecting the community from the offender’s criminal behaviour.
4.Those conflicting purposes of punishment in a sentencing context must be weighed in the balance.
[62] Peterson v The State of Western Australia [2019] WASCA 207, [54]-[55] (Buss P and Mazza JA, with whom Quinlan CJ agreed), referring to Bugmy v The Queen (2013) 249 CLR 571, [42]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Whilst this case does not raise what has been described as “profound childhood deprivation” the respondent’s difficult background and history of mental illness presents a complex sentencing exercise. It may be accepted that the respondent’s background and illness probably help to explain his abuse of drugs. As a consequence there arise, as in the cases of profound childhood deprivation, conflicting sentencing considerations and the need to carefully evaluate the way in which the interests and protection of the community can be addressed without losing sight of the need to ensure that a just sentence is imposed.
This is not a case where any specific error has been identified. Rather, the complaint is that the outcome is said to be plainly unreasonable or unjust.[63]
[63] Dinsdale v The Queen (2000) 202 CLR 321, [3]-[6] (Gleeson CJ and Hayne J) and [58]-[60] (Kirby J).
Despite the respondent’s background and mental illness, it remained necessary that the sentence which was imposed address the sentencing standard for offending of this kind. Both community protection and general deterrence remained important sentencing considerations. The respondent’s abuse of drugs and alcohol, and tendency to fail to keep to his medication for mental illness, meant that community protection was particularly important. This was not a case where issues of deterrence had little role to play, for example, as might be said in a case where mental illness best explained the offending.
Nonetheless, having regard to the particular, complex background circumstances and mental illness of the offender in this case, a starting point below the range identified in R vPlace,[64] and in the order of five years could be justified. That starting point would have reflected the sentencing standard and the respondent’s background, as well as the likely hardship associated with his time in prison with a mental illness and the evident need for an intensive, structured process of treatment and rehabilitation.
[64] R v Place (2002) 81 SASR 395.
In the circumstances of this case, the sentence which was imposed is manifestly inadequate. However, whether the appeal should be allowed depends on whether this is a proper case in which to grant the Director permission to appeal. The authorities demonstrate that permission to appeal will only be granted in a “rare and exceptional case”.[65]
[65] Everett v The Queen (1984) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ).
The question underlying the grant of permission on this appeal is whether the need to reinforce the application of proper sentencing standards is ameliorated by the respondent’s difficult background, post-traumatic stress and complex mental illness and addiction profile. That is, is it in this case appropriate to twice vex a respondent who is eligible for parole and who may experience more pronounced hardship by reason of imprisonment than offenders without these difficulties, and who would likely benefit from the range of treatment and rehabilitation processes that cannot all be offered whilst incarcerated?
Whilst we have wavered on this issue, we have come to the view that intervention is appropriate and that permission to appeal should be granted.
Though the respondent has a complex array of difficulties, produced by a combination of his background, his past sexual abuse and mental illness, these are regrettably not circumstances unique to the respondent. On the evidence adduced in this case, intoxication and drug abuse best explained the respondent’s offending. That is a matter relevant to both community protection and to deterrence. These sentencing considerations are, in cases of this kind, particularly important.
The need to protect the community and to deter the respondent and others from similar offending called for a sentence well in excess of that which was imposed in this case.
Though the respondent lacks some insight, he was both competent to offend and well able to appreciate that his offending was motivated by his addictions. The respondent recognised that his offending was the product of his drug abuse. Indeed, he was capable of manipulating prison authorities by falsely suggesting that he may engage in self-harm so as to address the immediate consequences of a drug debt.
Whilst the respondent will find imprisonment a hardship, that is encountered by many prisoners. Having said that, hardship, and the need to promote rehabilitation, can be reflected in the approach taken to structuring an appropriate sentence in this case.
These are all considerations relevant to the grant of permission and whether the sentence in this case was so low as to warrant the grant of permission and to require intervention by this Court.[66]
[66] R v Nemer (2003) 87 SASR 168, 172 (Doyle CJ, with whom Prior and Vanstone JJ at [60] and [78] relevantly agreed).
Conclusions
Permission to appeal should be granted, the sentence set aside and the respondent re-sentenced.
Having regard to the circumstances of the offending and all of the circumstances of the offender earlier outlined, a starting point of five years is appropriate. Again, a 15 per cent reduction for the respondent’s guilty plea is appropriate, resulting in a head sentence of four years and three months.
It is appropriate, in the particular circumstances of this case, to set a parole period that will assist the respondent’s rehabilitation and facilitate a lengthy period of supervision to encourage a range of treatments. These will need to target the respondent’s various difficulties, including the need to keep to prescribed medication and assisting with his mental illness and addictions. Accordingly, the non-parole period in this case should be fixed at two years and three months.
The head sentence and non-parole period should commence from 7 November 2020, when the respondent was taken into custody.
17