R v Pitt

[2005] NSWCCA 304

CITATION:	REGINA v. PITT [2005] NSWCCA 304
HEARING DATE(S):	Tuesday 28 June 2005
JUDGMENT DATE:	6 September 2005
JUDGMENT OF:	Grove J at 1; Hoeben J at 6; Hall J at 7
DECISION:	(a) Leave to appeal granted; (b) Appeal allowed and the sentence imposed by the District Court be quashed; (c) In lieu thereof, sentence the applicant to terms of imprisonment as follows: Count 1: On the offence of malicious wounding, the applicant is sentenced to a fixed term of imprisonment of two years, to date from 17 July 2003, to expire on 16 July 2005. In respect of that sentence, a non-parole period is not appropriate, having regard to the structure of the sentences to be involved in respect of the armed robbery offences; Count 2: In respect of the first count of armed robbery with a dangerous weapon, a sentence of three years and six months to date from 17 January 2004, to expire on 16 July 2007. In respect of that sentence, there is a non-parole period of two years to date from 17 January 2004 and to expire on 16 January 2006; Count 3: In respect of the second count of armed robbery with a dangerous weapon, a sentence is imposed of five years to commence on 17 July 2004 and to expire on 16 July 2009. In respect of that sentence, there is a non-parole period of two years to date from 17 July 2004 and to expire on 16 July 2006; Count 4: Possess unauthorised firearm and Count 5: possess unregistered firearm, a sentence of imprisonment for a fixed term of one year, commencing on 17 July 2003 and expiring on 16 July 2004.; In accordance with the orders proposed, the appellant will be eligible to be released on parole upon the expiry of the non-parole period specified on 16 July 2006.

CATCHWORDS:	Criminal law - sentence - mental disorder - knowledge of the gravity of actions - insufficient regard to applicant's history of mental illness - less weight given to general deterrence - altered mental state - impairment of both judgment and volitional control - drug abuse - mental disorder is causally related to commission of offences - diminution of sentence having regard to applicant's mental condition - mental condition may increase importance of deterrence of offender - alcohol, valium and other medications consumed prior to offences - applicant did not possess a full understanding of the authority and requirements of the law
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Veen (No. 2) (1988) 164 CLR 465 Engert (1995) 84 A. Crim. R. 67 Champion (1992) 64 A. Crim. R. 244 Wright (1997) 93 A. Crim. R. 48 Smith (1958) 75 WN(NSW) 198 Scognamiglio (1991) 56 A. Crim. R. 81 Anderson (1981) VR 155 Letteri (CCA, unreported 18 March 1992) Henry (1999) 46 NSWLR 346 Israil (2002) NSWCCA 255 Fahda (1999) NSWCCA 255 Harb (2001) NSWCCA 249 Lauritsen (2000) 114 A. Crim. R. 366 Tsiaras (1996) 1 VR 398
PARTIES:	REGINA v. PITT, Lorraine
FILE NUMBER(S):	CCA No. 2005/483
COUNSEL:	Crown: G. Rowling App: A. Francis
SOLICITORS:	Crown: S. Kavanagh App: S. O'Connor

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0202
LOWER COURT JUDICIAL OFFICER:	Latham, DCJ.

2005/483

GROVE, J.
HOEBEN, J.
HALL, J.

TUESDAY 6 SEPTEMBER 2005

REGINA v. LORRAINE PITT

Judgment

1 GROVE J: I have had the advantage of reading the judgment of Hall J in draft form.

2 As his Honour has observed, a key finding by the learned trial judge expressed in her remarks on sentence was:

“I do not accept that the prisoner’s disorders such as it might be, or such as they might be, are such that she acted without knowledge of the gravity of her actions or, to put it another way, that the prisoner’s intellectual function is insufficient to allow her a full understanding of the authority and requirements of the law”.

The emphasis is added.

3 In their terms, which I understand to reject the notion that the appellant had any knowledge of the gravity of her actions, I consider that the findings were open to her Honour. I am, however, of opinion that the intervention of this Court is provoked by a requirement to consider the collateral possibility of whether the appellant’s knowledge of the gravity of her actions was in any way impaired or reduced by mental disorder. The issue, as I see it, is not whether she acted without any knowledge or with a full understanding but whether her appreciation was diminished.

4 In this case the expert evidence of compromise was effectively unanimous and of particular significance was the frank demonstration of frontal lobe atrophy by CT scan upon which was based the unchallenged opinion that such a condition would affect judgment and volitional control.

5 Although my approach differs slightly from that taken by Hall J, I agree that the appeal should be allowed and the appellant resentenced, and I further agree with the orders which he has proposed.

6 HOEBEN, J: I agree with Hall, J.

7 HALL, J: On 16 March 2005, the applicant sought leave to appeal against the severity of a sentence imposed in the District Court of New South Wales (Latham, DCJ., as her Honour then was) on 20 August 2004 following pleas of guilty entered in the Local Court in respect of one count of malicious wounding contrary to s.33 of the Crimes Act 1900 (s.35(1)(a)) (maximum penalty: seven years imprisonment), and two counts of robbery whilst armed with a dangerous weapon, contrary to s.97(2) of the Crimes Act 1900 (maximum penalty: 25 years imprisonment).

8 The applicant relies upon the following grounds:-

1. The sentencing judge erred by having insufficient regard to the applicant’s history of mental illness.
2. The sentencing judge erred in finding that the offences were committed in breach of a suspended sentence.

9 An effective overall term of seven years imprisonment was imposed with respect to the offences charged with a non-parole period of four years.

10 Particulars of the sentences imposed in respect of the charges are as follows:-

Count 1: Malicious wounding: imprisonment for a fixed term of three years commencing on 17 July 2003 and expiring on 16 July 2006.
Count 2: Robbery armed with a dangerous weapon: imprisonment for four years and six months commencing on 17 January 2004 and expiring on 16 July 2008.

Non-parole period of three years expiring on 16 January 2007.

Count 3: Robbery armed with a dangerous weapon: imprisonment for six years commencing on 17 July 2004 and expiring on 16 July 2010.
Non-parole period of three years expiring on 16 July 2007.
Counts 4: Possess unauthorised firearm and Count 5: Possess unregistered firearm: imprisonment for a fixed term of two years commencing on 17 July 2003 and expiring on 16 July 2005.

11 The aggregate sentence was a term of imprisonment for seven years commencing on 17 July 2003 and expiring on 16 July 2010 with a non-parole period of four years expiring on 16 July 2007.

(i) The malicious wounding offence

12 In her reasons for sentence dated 20 August 2004, the sentencing judge observed that the wounding offence was preceded by an episode of a drinking binge by the applicant and her estranged husband at their premises at Engadine. On 27 March 2003, after about four days of consuming beer and cask wine, the offender obtained a kitchen knife and cut her own wrist by making superficial cuts and then cutting her husband’s throat. An ambulance was called to the premises and he was subsequently treated requiring 15 stiches to the left side of his neck.

(ii) The first armed robbery

13 At about 9.15 pm on Thursday 17 July 2003, the applicant entered the BP Service Station situated at 963 Old Princes Highway, Engadine. After an initial discussion with the service station attendant, the applicant pointed a gun (said to have been a .357 calibre Magnum handgun which was loaded) at him and said, the money, give me all the money”. At this time, the attendant saw that the applicant had her finger on the trigger. She said something to the effect that she was feeling nervous and the service station attendant moved away as the applicant had the gun pointed at his face. He commenced to take the money from the cash register which was then grabbed by the applicant who said, “give me more”. The attendant said, “that’s all there is” and lifted the tray to the cash register to demonstrate the fact. She placed the money in her handbag. Soon after, she left the premises saying, “don’t call the police, ‘cause I’ll come back for you”. She walked out of the shop and then out of sight. The attendant thought that approximately $350 to $400 was taken in the incident.

(iii) The second armed robbery

14 At about 9.30 pm on 17 July 2003, the applicant entered an Engadine pizza premises. She was obviously intoxicated and pointed a gun towards the assistant manager. It was approximately a metre away from him. As she pointed the gun, she was moving in a haphazard manner. According to the assistant manager, she said, “I’m here to rob you. Hand over your money”. She moved closer to the till still pointing the gun and again said, “hand over your money”. The assistant manager took notes from the counter and placed it in front of the applicant. After saying that the gun was “a magnum” and that it could “cut you in half”, she picked up the notes from the counter and put them into her bag. The applicant was agitated and in relation to some coins, told him to hurry up. She reached into the till and grabbed a handful of coins and placed them in her bag. She then said, “where’s the other till?”. The assistant manager said that they did not have one, but she didn’t believe him and told him that they would go out to the back and have a look. The safe door was open and he took out a bank bag which contains notes and change and placed it in her bag. There was a plastic bag containing $680 in cash from the previous nights’ takings, which he also placed in her bag. After warning him not to call the police, she backed out towards the front door still with the gun in her hand.

Reasons on sentence

15 The sentencing judge noted that the robberies were not premeditated to any significant extent and observed that she was considerably intoxicated before and at the time of the offence. In dealing with the objective seriousness of the offences, her Honour observed that brandishing a loaded gun at vulnerable employees engaged in retail premises was towards the upper range of criminality for the type of offence in question. The sentencing judge also observed that the applicant had the presence of mind to force the attendant at the pizza shop to open the safe at the rear of the premises after expressing dissatisfaction with the contents of the till. The sentencing judge then stated:-

“However, there is a body of evidence before me that supports the conclusion that the prisoner’s cognitive faculties and judgment were, at the relevant time, impaired by long standing alcohol and substance abuse and mental health sequelae.” (p.3)

16 The applicant was aged 42 years at the time of the commission of the offences and was the mother of seven children with a history of debilitating mental health problems and alcohol and abuse of medications. She had had a large number of admissions to the Sutherland Hospital between 1996 and October 2002. In the written submissions made on behalf of the applicant, it is stated that the applicant’s criminal record did not disclose a history of, nor tend towards a finding of, dangerousness in accordance with established principle: Veen v. The Queen (No. 2) (1988) 164 CLR 465. Her criminal record included alcohol related driving offences. It contained one entry for violence, namely, a common assault in 1990.

17 The reasons for sentence then refer to medical reports including, in particular, those of Dr. Chris McDowell, consultant psychiatrist, dated 20 August 2003 and Dr. Allnutt dated 27 April 2004. The reasons contain an extensive reference to the history and opinion of Dr. McDowell. Dr. McDowell commenced seeing the applicant on 9 January 2003. His report refers to the extensive history of alcohol abuse and aggressive behaviour, disruptive relationships and the reported use of Valium which had exacerbated unpredictable behaviour. In particular, reference is made to his opinion that it was possible that some of the medication taken by the applicant, particularly Valium, had exacerbated her tendency to act out violently. Additionally, frontal lobe damage evident from a cerebral CT scan could explain the applicant’s poor judgment and the development of some psychotic symptoms. He considered the most likely diagnosis was one of a borderline personality disorder with typical hallmark features and associated substance abuse, particularly alcohol abuse and dependence. These diagnoses, Dr. McDowell considered, would explain her erratic behaviour.

18 The sentencing judge extracted relevant extracts from Dr. Allnutt’s report of 27 April 2004 including that which refers to the effects of the combination of alcohol with Valium and other medications on the applicant’s judgment, suggesting impairment “to the extent that her capacity to evaluate the reality of these beliefs becomes severely impaired”. He considered that she manifested symptoms “consistent with a psychiatric disorder” and that “there is evidence that at least in April 2003 that she was experiencing unusual beliefs consistent with symptoms of psychosis as described by Dr. McDowell …”. Dr. Allnutt expressed the opinion that the long term presence of the symptoms described by him, supported differential diagnosis which included chronic low-grade schizophrenia, schizoaffective disorder and drug induced psychosis.

19 Dr. Allnutt concluded:-

“I believe there are reasonable grounds to conclude that at the time, both in relation to the assault on her husband and in relation to the robberies, your client … experienced an altered mental state due to a number of underlying conditions as described above, which caused cognitive impairment, impaired judgment and poor volitional control.” (p.11)

Ground 1: the impact of mental health issues

20 The sentencing judge referred to the relevant authorities and quoted extensively from the judgment of Gleeson, CJ. in Regina v. Engert (1995) 84 A. Crim. R. 67. The reasons on sentence then contained the following:-

(a) A key finding

“I do not accept that the prisoner’s disorders, such as it might be, or such as they might be, are such that she acted without knowledge of the gravity of her actions or, to put it another way, that the prisoner’s intellectual function is insufficient to allow her a full understanding of the authority and requirements of the law.”

21 This latter expression appears to be a reference to Regina v. Champion (1992) 64 A. Crim. R. 244 at 254-255 and Regina v. Wright (1997) 93 A. Crim. R. 48 per Hunt, CJ. at CL. at 51.

(b) Mental disability: relevant principles

22 It is appropriate at this point to record relevant propositions established by authorities on the question of mental disability or capacity in relation to the question of deterrence:-

• Mental handicap, short of providing a defence on the ground of mental illness, is a basis for reduction of sentence that has been long recognised: eg. Regina v. Smith (1958) 75 WN (NSW) 198; Regina v. Scognamiglio (1991) 56 A. Crim. R. 81, 85 per Grove, J.

• The full understanding of the authority and requirements of the law which may be attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person of extremely limited intellectual capacity: Champion (supra, at 254, per Kirby, P.)

• Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case: Champion (supra, at 255).

• In such cases, less weight should therefore be given to general deterrence. The sentencing judge is required to assess what diminution, if any, should be applied to the sentence which the crimes objectively merited by reason of the offender’s reduced responsibility on account of a relevant mental condition.

• In the case where an offender is suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given very little weight because such an offender is not an appropriate medium for making an example to others: Regina v. Anderson (1981) VR 155; (1980) 2 A. Crim. R. 379 per Young, CJ.

• Sentencing persons who suffer from mental disorders confronts the judicial officers with the need to make a sensitive discretionary decision: Regina v. Engert (supra) at 68 per Gleeson, CJ.

• A number of complex considerations may need to be taken into account. In a case where deterrence of others is of lesser importance, at the same time it may mean that protection of society is of greater importance or might at the same time increase the importance of deterrence of the offender him or herself: Engert (supra) at 68, per Gleeson, CJ.

Application of the principles

23 The sentencing judge, having referred to the relevant aspects in the medical reports in evidence and to the case law principles, turned to deal with the application of the principles to the facts of the case. The consideration given by the sentencing judge is essentially confined to one paragraph on p.9 of the reasons on sentence which is quoted in paragraph [20] of this judgment

24 In the next paragraph, the sentencing judge appears to have accepted that the applicant had mental health problems but that this was relevant to rehabilitation “rather than on the issue of general deterrence”. Her Honour then stated that she would find special circumstances given the applicant’s need for ongoing treatment and the community’s interest in the renewal of her efforts to rid herself of her substance abuse problems.

25 In relation to the passage quoted in paragraph [20] above, it is apparent that it is a statement by way of conclusion but not one which identifies or articulates the reasons for or analysis of the material upon which the conclusion is said to be based. Whilst the applicant, no doubt, had some appreciation as to what she was doing at the time of the armed robberies on 17 July 2003, I consider that a proper analysis of the opinions expressed by both Dr. Allnutt and the treating psychiatrist, Dr. McDowell, preclude a conclusion that the applicant appreciated the gravity of her actions. A level of understanding sufficient for her to have carried out the associated actions in this case is not consistent with an appreciation of the authority and requirements of the law. With respect to the sentencing judge, there is a necessary distinction to be made between a mentally disabled offender who acts with knowledge of what he or she is doing, on the one hand, and possessing knowledge of the gravity of his or her actions, on the other: see Wright (supra) per Hunt, CJ. at CL. at 51.

26 When both are borne in mind, the import and significance of the medical evidence in the present case may be fully appreciated.

The nature of the applicant’s mental condition as established by the medical evidence

27 The medical evidence on the question of the applicant’s mental disability relevant to the first ground of appeal may be summarised in the following points:-

• the applicant’s history of alcohol abuse indicated poor judgment when intoxicated;

• at the time of the offences, the applicant was taking a combination of medications including Valium which is reported in the literature to cause paradoxical reactions in some people and can be aggravated by alcohol intoxication;

• when intoxicated with alcohol or in combination with Valium and other medications, the applicant’s judgment was impaired to the extent and in the sense that her capacity to evaluate the reality of what were termed her “beliefs” becomes severely impaired. At those times she would experience episodes of psychosis;

• the CT evidence of frontal lobe atrophy is the area of the brain that is particularly involved in judgment and volitional control;

• the applicant described her behaviour at the time of the alleged offences in “a robot-like fashion, feeling disconnected from her behaviours” ;

• there are reasonable grounds to conclude that at the time, both in relation to the assault on the applicant’s husband and in relation to the robberies, that the applicant was experiencing an altered mental state due to a number of underlying conditions which caused “cognitive impairment, impaired judgment and poor volitional control” .

28 The following points, in particular, emerge from the report of Dr. Chris McDowell of 20 August 2003, one of her treating doctors:-

• the applicant’s history was one of exacerbation of unpredictable behaviour when using Valium. Valium can certainly act as a disinhibiting medication which can exacerbate aggression;

• the applicant had been attempting to cut down the Valium prescribed by her local doctor and when last seen on 10 July 2003 (seven days before the offences), the applicant was taking 7.5 milligrams daily of Valium;

• the applicant exhibited symptoms with borderline personality disorder with marked substance abuse;

• the diagnosis explained the applicant’s erratic behaviour, mood swings, self-destructive behaviour and problems with anger and depression;

• it was possible that some of the medications, particularly Valium, had exacerbated her tendency to act out violently;

• there is a suggestion that some frontal lobe damage demonstrated on the CT scan showed frontal lobe atrophy which can also affect judgment and may be related to the development of psychotic symptoms as well.

Observations on the medical evidence

29 The effect of this evidence is that the applicant, at the time of the offences, suffered impairment of both judgment and volitional control. This is against a lengthy history of psychiatric problems, hospital admissions and treatment.

30 Given the precipitating history of drug abuse, in particular, alcohol, Valium and other medications being consumed prior to the offences, it is hard to avoid the conclusion on the evidence, but that the applicant did have a form of altered mental state which impacted upon her cognitive capacity, judgment and volitional control. The evidence of two eminent and experienced psychiatrists is entirely consistent, one with the other, and attests and supports such a conclusion.

31 This is a case where the evidence does establish that the mental disorder is causally related to the commission of the malicious wounding and armed robbery offences.

The applicant’s submissions

Ground one: the sentencing judge erred by having insufficient regard to the applicant’s history of mental illness

32 The primary contention in relation to ground one was that the plaintiff had a history of mental illness for which she had been treated before the first offence and that that history, together with her behaviour at the time of the commission of the offences suggested that she was afflicted by a mental illness falling short of insanity.

33 Reliance was placed upon the sentencing principle in Anderson (supra) at 160. There, the court, inter alia, stated that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.

34 The court further stated that the mental condition of the offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, “… the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender’s responsibility for the offence should be regarded as having been reduced”.

35 The central issue arising from ground one is whether the sentencing judge failed to assess the diminution that should have been applied to the sentence having regard to the effect of the applicant’s mental condition on her ability to appreciate the gravity of her actions and her impaired volition. The subset to this submission is that general deterrence was not a factor that ought to have been accorded the weight given to it by the sentencing judge.

36 There is a need for caution to be exercised before resolving such an issue. So much is clear from the judgment of Gleeson, CJ. in Engert (supra) especially at 68. A mental condition, as the Chief Justice there observed, may lessen whatever might otherwise be the importance of general deterrence but, at the same time, increase the importance of deterrence of the offender (p.68).

37 It is important to examine the approach taken by the sentencing judge in allowing for the applicant’s mental condition and, secondly, to determine the effect of that approach upon the level of sentence imposed giving due allowance for the discretionary nature of the sentencing decision.

38 Whether there should be diminution in sentence for the reduced importance of general deterrence or an allowance for that factor may depend upon whether there should be a counter-balancing in the sentence for the importance of specific deterrence or of the need to protect the public.

39 The essential questions in this case are whether the sentencing judge failed to moderate the consideration of general deterrence and, if so, whether that failure was offset by making an appropriate reduction in the sentence by adopting another approach. Was the approach adopted based upon an erroneous finding that the applicant acted with knowledge of what she was doing and with knowledge of the gravity of her actions?

40 It is clear from the quoted passage in [20] above that the sentencing judge did not reduce the sentence on account of lack of the need for general deterrence arising from the applicant’s mental condition. This arose from the finding which I have earlier concluded was contrary to the medical evidence. However, the finding of special circumstances in relation to an effective head sentence of seven years and an effective non-parole period of four years meant that the statutory ratio of 75% was varied to 50%. That, however, still leaves unanswered the question as to whether the effective head sentence was appropriate, given the sentencing judges’ conclusion that she did not accept, contrary to the evidence, that the applicant acted without knowledge of the gravity of her actions.

41 In Engert (supra), Gleeson, CJ. emphasised the observation of Badgery-Parker, J. in Regina v. Letteri (CCA, unreported 18 March 1992), namely:-

“… in every case it is a matter of balancing the relevant factors in a manner no different from what is involved in every sentencing exercise.”

42 By reason of what I consider to be an erroneous conclusion of the sentencing judge as to the impact or effect of the applicant’s mental disorder on her ability to appreciate the gravity of her actions and the effect of Valium as a contributor to the applicant acting violently, I consider such error calls for the intervention of this Court.

43 A head sentence of seven years represents a starting point, allowing for the discount for the utilitarian value of the pleas of guilty, of almost 10 years. This was in respect of the admittedly serious offence of malicious wounding (Crimes Act, s.35, maximum penalty, imprisonment for seven years) and the two offences of robbery whilst armed with a dangerous weapon (Crimes Act, s.92(2), maximum penalty of 25 years). As to the latter offences, whilst I accept the Crown’s submission that those offences (as indeed the offence under s.35) were grave indeed, the applicant, a middle aged, mentally ill mother, does not entirely come within the category of case, the subject of the guideline judgment in Regina v. Henry (1999) 46 NSWLR 346. The offence of the character described by the Chief Justice at 380 (armed robbery) was generally said to fall within four and five years for the full term. I do not lose sight of the fact that the applicant committed not one but two offences under s.97(2) of the Crimes Act within 15 minutes of each other on 17 July 2003.

44 In Regina v. Israil [2002] NSWCCA 255, the Crown appealed against the alleged inadequacy of a sentence imposed by the District Court in respect of one count of robbery armed with an offensive weapon, namely a blood-filled syringe, contrary to s.97(1) of the Crimes Act 1900 and a second count of attempted robbery with an offensive weapon, namely a mock rifle, contrary to s.344A of the Crimes Act 1900. Two additional charges were taken into account on a Form 1, namely, demanding of money with menaces and another armed robbery.

45 The respondent in that case had had a history of delusional conduct from a young age which had been later exacerbated by the taking of a range of drugs. At the time of the offences, he had been using heroin and cocaine.

46 The trial judge accepted that the respondent had suffered from a mental illness, namely, substance induced psychosis and a mood disorder as well as an underlying psychotic disorder, either schizophrenia or bi-polar mood disorder. On the evidence, the respondent’s prospects of rehabilitation were good provided his treatment remained in place.

47 The court in Israil (supra) had used the Henry (supra) guideline of four to five years as a starting point. The respondent had the benefit of 25% discount for an early plea which reduced the tentative sentence of three years by six months. He had already served almost seven months in custody and the court determined a term of imprisonment of two years, taking into account the time actually served in custody. The sentence was imposed in respect of two offences. It was suspended upon the respondent entering a bond. His good prospects of rehabilitation were a major consideration.

48 Spigelman, CJ., in Israil (supra), reviewed the authorities noting that the requirement of general deterrence is a significant consideration in sentencing for the offence of armed robbery. The Chief Justice recorded the following propositions:-

• The significance of mental illness of an offender in the sentencing exercise has long been accepted. The relevant authorities have been reviewed in the New South Wales Court of Criminal Appeal, the Victorian Court of Appeal and the Western Australian Full Court: Regina v. Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson, J.; Regina v. Harb [2001] NSWCCA 249 at [35]-[45] per Smart, AJ.; Regina v. Lauritsen (2000) 114 A. Crim. R. 366, especially [43]-[51] per Malcolm, CJ. and Regina v. Tsiaras (1996) 1 VR 398 at 400.

• To the extent that mental illness explains the offence, then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability to the offender, even where the illness does not amount to an excuse at law.

• In accordance with the observations of Malcolm, CJ. in Lauritsen (supra) at [48], “mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence” .

• Mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing process than it might otherwise have as specific deterrence may be more difficult to achieve and is often not worth pursuing ( Tsiaras (supra) at 400).

• A custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served.

• Difficulties arise where there is an element of congruence of drug addiction and mental illness, in separating the effect of mental illness.

49 Spigelman, CJ. in Israil (supra) cited the following observation by Wood, CJ. at CL. in Henry (supra) at [254]:-

“… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive faculties or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which, although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing.”

50 In Regina v. Way (2005) 60 NSWLR 168 at 187, the Court of Criminal Appeal stated:-

“Some of the relevant circumstances which can be said ‘objectively’ to affect the ‘seriousness’ of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation … mental state (for example intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, insofar as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected … such facts can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment …”

51 The medical evidence tendered at the sentencing hearing confirms the long history of alcohol dependence and, in the past, abuse of prescription-based medication which, in combination with alcohol, had been problematic and frequent. Subsequent to the applicant’s children being taken into the care of the Department of Community Services in 2002, her dependency and abuse of these substances escalated significantly. A central factual matter was the extent to which her mental health and associated problems impaired her capacity to reason or to appreciate the rightness or wrongness of the acts associated with the malicious wounding and the two armed robbery offences. Plainly, the applicant’s capacity was seriously impaired on each of those occasions due to the combination of those problems and their effect upon her. In such circumstances, it cannot, in my opinion, be said that she possessed a full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities: Regina v. Wright (supra) at 51. It is established that the means by which courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case: Champion (supra) at 254-255 and Wright (supra) at 51.

52 The medical and other evidence before the sentencing judge indicated that the applicant’s abuse of alcohol was compounded by the severity of her mental health problems and inability to respond to treatment. It was evident that she required intensive and ongoing therapeutic treatment to address both her alcohol dependence and mental health issues if she is to make a satisfactory transition into the community once released from custody.

53 The very detailed report of Dr. Allnutt dated 27 April 2004 refers to the applicant’s realisation as to the extent of her problem in the past with alcohol and that she was motived to continue to pursue alcohol and drug rehabilitation. Dr. Allnutt expressed the view that if she remained abstinent from substances, the risk of recidivism would be substantially reduced.

Determination

54 In the consideration of ground one, the Court is to be mindful, as Gleeson, CJ. stated in Engert (supra) (paragraph [22] above) that sentencing persons who suffer from mental disorders confronts the judicial officer with the need to make a sensitive discretionary decision. Equally, complex considerations are needed to be taken into account including issues of deterrence and those issues that are necessary to be considered in the interests of the protection of society.

55 Although the sentencing judge did regard the applicant’s mental health as relevant and that significant weight should be attached to that fact, this was in the context of the applicant’s “rehabilitation rather than on the issue of general deterrence”. Her Honour’s only allowance in that respect was contained her statement that special circumstances would be found given the applicant’s need for ongoing treatment and the community’s interest in the renewal of her efforts to rid herself of her substance and abuse problems. The critical question is whether that allowance sufficiently gives effect to relevant sentencing principles on the evidence in these proceedings.

56 As earlier noted, the sentencing judge determined a non-parole period of four years, having determined an overall term of seven years. The non-parole period, accordingly, represents something just in excess of 50% of the overall term of seven years imprisonment.

57 Applying the relevant principles to which I have earlier observed, I do not consider that the variation of the statutory ratio under s.44 of the Crimes (Sentencing Procedure) Act 1999 provides sufficient allowance for the applicant’s reduced culpability due to her mental condition as disclosed by the medical evidence. I am of the opinion, in all the circumstances, that a lesser sentence is warranted in law in relation to the three offences.

58 Accordingly, the applicant should be re-sentenced to give effect to the evidence in this respect and in accordance with the principles stated by Gleeson, CJ. in Engert (supra) and by Spigelman, CJ. in Israil (supra).

Ground two: the sentencing judge erred in finding that the offences were committed in breach of a suspended sentence

59 The applicant submitted that the sentencing judge erred in that she placed significance, as an aggravating factor, upon the fact that the offences were committed in breach of a suspended sentence imposed for driving related matters. In fact, the order suspending the sentence to which her Honour was referred was stayed on 26 June 2003 when an appeal was lodged to the District Court and orders for stay and dispensing with bail were made.

60 The applicant’s counsel also relies upon the fact that the sentencing remarks disclose error in as much as the sentencing judge stated that all the offences were committed during the currency of the suspended sentence.

61 I am not satisfied that the error relied upon had any influential or significant effect on her Honour’s overall approach on the main issue which is the subject matter of ground one to the present application. I accordingly do not consider that the lesser sentence is warranted in law on the basis of ground two: s.6(3) of the Criminal Appeal Act 1912 (NSW).

62 I consider that the appropriate sentences to be imposed are as follows:-

(a) Count 1: On the offence of malicious wounding, the applicant is sentenced to a fixed term of imprisonment of two years , to date from 17 July 2003, to expire on 16 July 2005. In respect of that sentence, a non-parole period is not appropriate, having regard to the structure of the sentences to be involved in respect of the armed robbery offences.

(b) Count 2: In respect of the first count of armed robbery with a dangerous weapon, a sentence of three years and six months to date from 17 January 2004, to expire on 16 July 2007. In respect of that sentence, there is a non-parole period of two years to date from 17 January 2004 and to expire on 16 January 2006.

(c) Count 3: In respect of the second count of armed robbery with a dangerous weapon, a sentence is imposed of five years to commence on 17 July 2004 and to expire on 16 July 2009. In respect of that sentence, there is a non-parole period of two years to date from 17 July 2004 and to expire on 16 July 2006.

(d) Count 4: Possess unauthorised firearm and Count 5: possess unregistered firearm, a sentence of imprisonment for a fixed term of one year , commencing on 17 July 2003 and expiring on 16 July 2004.

63 The effective head sentence is accordingly six years, with an effective non-parole period of three years expiring on 16 July 2006. The applicant will be eligible for release on parole on 16 July 2006. Plainly, her eligibility for release on parole will be determined by the parole authorities in light of her progress, in particular, the extent to which the applicant has demonstrated an ability to manage her alcohol/drug and mental health issues.

64 I accordingly propose the following orders:-

(a) Leave to appeal granted.

(b) Appeal allowed and the sentence imposed by the District Court be quashed.

(c) In lieu thereof, sentence the applicant to terms of imprisonment as follows:-

(i) Count 1: On the offence of malicious wounding, the applicant is sentenced to a fixed term of imprisonment of two years , to date from 17 July 2003, to expire on 16 July 2005. In respect of that sentence, a non-parole period is not appropriate, having regard to the structure of the sentences to be involved in respect of the armed robbery offences.
(ii) Count 2: In respect of the first count of armed robbery with a dangerous weapon, a sentence of three years and six months to date from 17 January 2004, to expire on 16 July 2007. In respect of that sentence, there is a non-parole period of two years to date from 17 January 2004 and to expire on 16 January 2006.
(iii) Count 3: In respect of the second count of armed robbery with a dangerous weapon, a sentence is imposed of five years to commence on 17 July 2004 and to expire on 16 July 2009. In respect of that sentence, there is a non-parole period of two years to date from 17 July 2004 and to expire on 16 July 2006.
(iv) Count 4: Possess unauthorised firearm and Count 5: possess unregistered firearm, a sentence of imprisonment for a fixed term of one year , commencing on 17 July 2003 and expiring on 16 July 2004.

65 In accordance with the orders proposed, the appellant will be eligible to be released on parole upon the expiry of the non-parole periods specified on 16 July 2006.

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