R v Skinner

[2018] NSWCCA 185

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Skinner [2018] NSWCCA 185
Hearing dates:	25 June 2018
Decision date:	29 August 2018
Before:	Simpson AJA at [1] Wilson J at [2] Lonergan J at [87]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW – Crown appeal against asserted inadequacy of sentence – aggregate sentence - intellectually disabled offender - offences involving imitation firearm – possess pistol – specially aggravated break enter and commit serious indictable offence whilst armed with a dangerous weapon – kidnapping - question of assessment of objective gravity - question of adequacy of accumulation of sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Ali v R [2010] NSWCCA 35 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Palijan v R [2010] NSWCCA 142 R v Mooney (unreported, Victorian Court of Criminal Appeal, 21 June 1978, Young CJ) Veen v R (No 2) [1988] HCA 14; 164 CLR 465
Category:	Principal judgment
Parties:	Crown – Applicant Todd Skinner – Respondent
Representation:	Counsel: M. England - Applicant S. Kluss – Respondent   Solicitors: Solicitor for Public Prosecutions – Applicant R. Hill – Respondent
File Number(s):	2016/25627
Publication restriction:	None
Decision under appeal	Court or tribunal: Sydney District Court Jurisdiction: Criminal Date of Decision: 9 March 2018 Before: Sweeney DCJ File Number(s): 2016/25627

Judgment

1. SIMPSON AJA: I agree with Wilson J.

2. WILSON J: This is an appeal brought by the Crown pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the inadequacy of sentence imposed upon Todd Skinner in the District Court.

3. The respondent appeared for sentence before her Honour Judge Sweeney in the District Court on 9 March 2018, having pleaded guilty on 9 August 2017 to five offences committed in January 2016. Counts 1 and 4 were offences of possess pistol (an imitation revolver) without permit or licence, contrary to s 7(1) of the Firearms Act 1996. Count 2 was an offence of common assault, contrary to s 61 of the Crimes Act 1900 (NSW). Count 3 was an offence of specially aggravated break, enter and commit serious indictable offence (intimidation) armed with a dangerous weapon (imitation pistol), in breach of s 112(3) of the Crimes Act 1900 (NSW). Count 5 was an offence of detain with intent to obtain an advantage, namely, to avoid apprehension, contrary to s 86(1)(b) of the Crimes Act.

4. The respondent had also acknowledged his guilt of a further count on a Form 1 document, that being an offence of armed with a weapon (imitation firearm) with intent to commit an indictable offence (intimidation). Also before the sentencing court were two further offences of common assault and larceny, listed on a Section 166 Certificate, to which the respondent had pleaded guilty.

5. The sentencing judge imposed an aggregate sentence pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 5 years imprisonment, to date from 26 May 2016 and expire on 25 May 2021, with a non-parole period of 3 years imprisonment, expiring on 25 May 2019. The sentences indicated for each offence, together with the relevant maximum penalty, and non-parole or standard non-parole period (“NPP or SNPP”) are as follows:

Offence	Maximum Penalty	Indicated Sentence
Count 1: Possession of unauthorised pistol (19/01/16) s7(1) Firearms Act (taking into account the Form 1)	14 years imprisonment SNPP 4 years	3 years imprisonment NPP 18 months imprisonment
Count 2: Common assault s61 Crimes Act	2 years imprisonment	18 months imprisonment
Count 3: Specially aggravated break, enter and commit a serious indictable offence s112(3) Crimes Act	25 years imprisonment SNPP 7 years	4 years imprisonment NPP 2 years imprisonment
Count 4: Possession of unauthorised pistol (26/01/16) s7(1) Firearms Act	14 years imprisonment SNPP 4 years	3 years imprisonment NPP 18 months
Count 5: Detain for advantage s86(1)(b) Crimes Act	14 years imprisonment	3 years imprisonment
s166 Certificate: 1. Common Assault s61 Crimes Act 2. Larceny s117 Crimes Act	2 years imprisonment 5 years imprisonment	9 months imprisonment 4 months imprisonment

6. On 18 April 2018, a day after receiving the necessary transcript, the Crown filed a Notice of Appeal against the sentence pronounced, on the ground that it was manifestly inadequate. On 23 April 2018, a copy of the Notice of Appeal was served on the respondent.

The Circumstances of the Offending

7. The Crown tendered a statement of agreed facts to the sentencing court. The sentencing judge found the facts as agreed between the parties, from which the following summary is drawn.

8. On 19 January 2016, at about 5.40pm, the respondent and a companion were walking south on Anzac Parade in Maroubra. Walking in the opposite direction on the same side of the street, was Ms Nioka Timbery. As they passed each other, Ms Timbery heard the respondent call her a “fuckin’ slut”. When Ms Timbery confronted the respondent, he produced an imitation firearm from the top of his shorts which he pointed at her, asking “Do you want me to shoot you with this?” The respondent’s companion told him to leave Ms Timbery alone, and they continued walking. Ms Timbery went immediately to Maroubra Police Station and reported the incident.

9. Surveillance footage obtained from the area shows the respondent, his companion, and Ms Timbery in close proximity to where the incident occurred.

10. On 22 April 2016, Ms Timbery identified the respondent in a photographic identification process as the person who had threatened her with a firearm.

11. One week later, at about 9am on 26 January 2016, the respondent knocked at the front door of the premises where a cousin of Nioka Timbery, Ms Amy Timbery, lived. Upon answering the door, Amy Timbery saw the respondent, who was known to her, holding a pocket knife with the blade folded within the handle. The respondent said, “You have to help me out. You have to talk to your family and tell her that I didn’t mean to hold the gun to her head. You have to sort it out for me.”

12. Amy Timbery told the respondent to leave and closed the door. When the respondent failed to leave the premises, she woke David Mitchell, who was asleep in a spare bedroom of the unit and who knew the respondent, and asked him to tell the respondent to leave. Mr Mitchell went to the front door and left the premises with the respondent. He returned about 10 minutes later, alone.

13. Minutes after Mr Mitchell returned to the unit, the respondent again knocked on the front door. Mr Mitchell answered the door and said to him, “Amy said she doesn’t want you here, you held a gun to her little cousin’s head. She doesn’t want you anywhere near here.”

14. A short time later, the respondent returned to the unit and again knocked on the front door. Amy Timbery answered the door and, as she did, the respondent forced his way into the premises by pushing past her with his shoulder, causing her to stumble backwards.

15. The respondent raised a pocket knife with the blade extended. Fearing the respondent, Amy Timbery ran to her bedroom and grabbed a kitchen knife. She walked back into the lounge room with the knife held aloft, and confronted the respondent.

16. The respondent jumped back, producing an imitation firearm from the top of his pants. He pointed the gun at Amy Timbery, from about 6 metres away, and said: “I will shoot you and your brother and all of the Timberys. The Timberys’ days are coming”. While he was talking, the respondent moved nearer to Amy Timbery, such that he was positioned approximately one metre away from her, with the gun pointed at her head.

17. Mr Mitchell, who armed himself with a curtain rod, intervened, placing himself between the respondent and Amy Timbery. The respondent lunged toward Amy Timbery, who fled the premises and phoned the Triple 0 operator.

18. Police arrived at the premises just before 11am and began negotiating with the respondent. Mr Mitchell told police that the respondent would not allow him to leave. During the negotiations, the respondent shouted from the window: “If you come up here I’ll hurt this cunt and I’ll hurt you”.

19. Mr Mitchell wanted to leave but did not do so, being in fear of the respondent who was still armed with the knife. The respondent had told Mr Mitchell in an aggressive manner: “No mate, you’re not leaving, not going nowhere”.

20. At around 12.15pm, one of the windows was opened, and police heard the offender shout: “You don’t want another Martin Bryant massacre”, before closing the window.

21. Police heard the respondent and Mr Mitchell arguing at 3.19pm. At 3.27pm, Mr Mitchell again told police that the respondent would not let him leave the premises. Police also heard the respondent yell at Mr Mitchell that he was not to leave.

22. The respondent and Mr Mitchell exited the unit at around 4pm, some five hours after police had first arrived at the scene. The offender struggled violently when police attempted to place him in handcuffs, but was eventually restrained and arrested. Following his arrest, the respondent was searched and a large amount of jewellery belonging to Amy Timbery, valued at around $400, was found in his underwear.

23. Later that day police searched the Timbery unit and seized an imitation firearm (pistol), a pocket knife, and various other items of clothing which were later forensically examined. Forensic testing of the imitation firearm for DNA was unsuccessful. The respondent could not be excluded as a contributor to a mixed DNA profile recovered from the pocket knife.

The Crown’s Case on Sentence

24. Other than the statement of facts, the Crown tendered a Pre-sentence Report (“PSR”) dated 7 March 2018. The author canvassed the respondent’s past interactions with Community Corrections, commencing in December 2005 when he was sentenced to a supervised six month bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act for the offences of common assault and contravening an apprehended domestic violence order. Breach action was instigated in May 2006 due to the respondent’s failure to comply with intervention programmes as directed.

25. Since that time, the respondent has been made subject to multiple supervised, community-based sentences and parole orders, and has failed to successfully complete any of them. The respondent’s overall response to community supervision was regarded as “poor”.

26. Corrective Services records indicated that, when in custody, the respondent has frequently been dealt with for prison offences. Accompanying case notes suggest that he is “generally defiant and argumentative and overall challenging to manage”. As recently as 28 January 2018, the respondent was confined to his cell for five days for a serious assault on a fellow inmate.

27. The respondent told the author of the PSR that he commenced using cannabis on a daily basis at the age of 12, and claimed to have been affected by methylamphetamine (“ice”) at the time of the offences. The respondent claimed that he used ice on a daily basis, as well as prescription medication which he was accessing illegally. His substance abuse was considered to be largely unaddressed, with a single unsuccessful attempt at rehabilitation in 2007 that lasted for five days. The respondent admitted to reduced, but continued, illicit drug use while in custody. His admission was confirmed by sanctions for such offences.

28. The respondent claimed to have no memory of his offending conduct because of his drug use at the time, but was able to recount to the author of the PSR a number of circumstances relating to it. He “made negative comments about the victims”, and considered them to be “bad people” – a fact which he thought justified his conduct. The respondent demonstrated neither remorse, nor insight concerning the offences.

29. An assessment categorised the recidivism risk posed by the respondent as medium/high. The Community Corrections officer who spoke with the respondent considered him to demonstrate an “escalating pattern of offending involving violence, including Domestic Violence.”

30. The respondent’s intellectual disability meant that he was unlikely to maintain schedules and appointments. He was unsuitable for a community based sentencing order [even if that was within an available range of sentence], due to unresolved drug dependency, and the impact of his intellectual disability on his organisational capabilities.

The Respondent’s Case on Sentence

31. The respondent tendered a report of Mr John Machlin, a clinical psychologist, dated 5 March 2018, that had been prepared for the purpose of the sentence proceedings. In compiling his report, Mr Machlin conducted an interview via audio-visual link with the respondent on 27 February 2018, and had regard to other documentary material supplied to him. He also spoke to the respondent’s mother.

32. Mr Machlin obtained a history from the respondent setting out his family circumstances and upbringing in Campbelltown. The respondent is now 31 years of age. He was born of the second marriage of both his parents, and has three half-siblings, and one younger sister.

33. When the respondent was aged 8, his father suffered a fatal fall from a roof while at work. His mother subsequently relocated the family to South Coogee, where the respondent grew up in a housing commission area. The respondent described having a satisfactory relationship with his mother, although he considered that she was depressed much of the time and had developed a gambling habit. He related that he “fought a bit” with his elder half-brothers, and recalled missing his father, particularly during his adolescence.

34. At age 17, the respondent was involved in a two-year relationship which produced one daughter. The respondent has had almost no contact with his daughter since she was 5 months old; she is now aged 12.

35. Prior to his incarceration, the respondent was living independently in State housing accommodation in Bondi. His mother is supportive, having provided him with assistance in the past in finding accommodation and managing his finances.

36. The respondent described difficulties during his schooling due to his intellectual disability and poor literacy skills. He attended several high schools, before giving up education altogether in Year 9. The respondent’s mother recalled that the respondent had attended school only sporadically after Year 6. He has never held paid employment, and has received a Disability Support Pension due to his intellectual disability.

37. The respondent has a longstanding substance abuse habit and has, at various times in his life, used cannabis and ice on a daily basis. Just prior to his current incarceration he became dependent on Xanax, taking 2 or 3 tablets daily. He described them as having a “zombie”-like effect. He is susceptible to binge drinking – a habit which has often led to disinhibition and criminal behaviour.

38. The respondent has an extensive criminal history, dating from 2001, when he first appeared before the Children’s Court for an offence of shoplifting. He has since been before the criminal courts for offences including common assault, contravening an Apprehended Domestic Violence Order, shoplifting, assault occasioning actual bodily harm, stalking or intimidation, affray, and aggravated break and enter in company. He estimated to Mr Machlin that he had been gaoled “about 10 times”, for a combined total of about seven years.

39. The respondent told Mr Machlin that he had only a partial memory of the circumstances of the offences. He recalled that at the time of the first offence against Nioka Timbery he had taken five Xanax tablets and was “off my head”. He could not account for his possession of the imitation firearm except to suggest that, “I thought it was cool or something”. At the time of the second series of offences, the respondent reported that he had had several sleepless nights after using ice, and that he “was freaking out the whole time…I was pacing…I don’t remember half of it.”

40. Mr Machlin reported that the respondent had expressed embarrassment for his conduct, particularly as he had considered the victims to be his friends, and that he had “accepted responsibility for his actions without deflecting blame”. The respondent reportedly acknowledged that his actions would have caused significant fear in his victims, and acknowledged a need to control his substance use to prevent reoffending.

41. Mr Machlin considered that the respondent met the diagnostic criteria for an Intellectual Disability (Mild), according to the Diagnostic and Statistical Manual of the American Psychiatric Association, Edition 5 (“DSM-5”) and that his substantial history of alcohol and drug abuse was consistent with a Substance Use Disorder, according to the DSM-5.

42. Mr Machlin concluded that the respondent’s “intellectual disadvantage was a significant factor in the offences”. In relation to the first incident involving Nioka Timbery, Mr Machlin concluded that the respondent’s intellectual disability contributed to his “poor judgment and decision-making”. He further considered that the second series of offences on 26 January 2016 were derived from a combination of the respondent’s “longstanding intellectual problems, social and emotional immaturity, and drug use”.

43. According to Mr Machlin, the respondent expressed contrition in relation to his offence, and “appear[ed] genuinely motivated toward change”.

44. The respondent gave evidence before the sentencing court. In his evidence, he said that he was “sorry” for his conduct, and that he was “off his head on drugs that day”. He acknowledged that he had “embarrassed [him]self” and “ruined the friendship” with Ms Timbery and Mr Mitchell.

45. He agreed with the proposition put to him by his lawyer in evidence in chief that, even though he was affected by drugs, his conduct was wrong, answering, “Yes, it was wrong, yep”.

46. When asked about the reference in the PSR to his negative comments about the victims and his attribution of blame to them for his conduct, the respondent denied that he had called them “bad people”, but rather had described the area as a “bad area”, meaning “it’s a Housing Commission area. Like it’s a bit rough around there, you know”.

47. The respondent rejected the conclusion recorded in the PSR that he had demonstrated no remorse for his offences, stating that he had told the author that, “I’m sorry and embarrassed about what I’ve done. Like I was friends with the people.”

48. The respondent gave evidence that he had not seen his family since being held at Wellington Correctional Centre from February 2017, because of the distance from Sydney. He said that he has telephone contact with his mother and sister approximately three to four times per week.

49. The respondent told the court that he is currently completing a “Positive Lifestyle” course in custody, and was “learning what not to do and what to do, you know. How to control my anger better and that.” He expressed an intention to continue with the Positive Lifestyle course, and upon release, to attend a rehabilitation facility to address his drug and alcohol issues.

50. He admitted during cross-examination that his only past experience in a rehabilitation facility had occurred more than ten years ago, when he discharged himself after one week and “never went back”. However, he maintained that this attempt would be different, as a considerable time had passed since his last engagement with rehabilitation and that, “[his] family has had enough. I’ve had enough,” of his cycle of offending behaviour and substance abuse.

51. The respondent rejected the assertion put to him during cross-examination that he had shown no remorse for the victims of his offences, and denied that his assertions of remorse to Mr Machlin and in oral evidence were opportunistic and “self-serving”.

Remarks on Sentence

52. In imposing sentence on 9 March 2018, the sentencing judge concluded that the offence of assault against Nioka Timbery was “spontaneous”, but objectively serious in nature, as it involved pointing a firearm at the victim in circumstances where she was unaware that it was, in fact, an imitation. Her Honour considered the offence of possessing the firearm as below the midrange of seriousness for offences of that kind.

53. In assessing the seriousness of the second set of offences, her Honour accepted the view of Mr Machlin that the events represented the respondent’s misguided attempt to fix his earlier error, by attempting to convince Amy Timbery to dissuade her cousin from taking action against him. It was also accepted that, at the time, the respondent’s intellectual disability and drug use affected his cognition and contributed to his lack of judgment.

54. Her Honour considered that the offence comprising count 3 on the indictment fell in the midrange of seriousness, having regard to the presence of the victim in her own home (consistent with the decision of this court in Palijan v R [2010] NSWCCA 142), the nature of the serious indictable offence (intimidation), and the use of two weapons.

55. The offence of detaining Mr Mitchell without his consent (count 5) was considered by her Honour to be “moderately serious” for offences of its kind, having regard to the length of time of the siege, the required presence of police to negotiate with the respondent, his possession of a knife and the imitation firearm, and his threats to Mr Mitchell and to police.

56. The sentencing judge considered the charge of assault against Mr Mitchell on the s 166 Certificate to be “moderately serious”, and the larceny offence to be in the low range of seriousness.

57. Overall, the offences were described as “serious”. Her Honour accepted the view of Mr Machlin that the respondent’s intellectual disability contributed to the commission of the offences and that his “moral culpability is reduced and he is a less suitable vehicle for general deterrence”. She reasoned that “his sentences must therefore be moderated to less than they would be if he did not have an intellectual disability operating on him”.

58. Her Honour found that the fact that the offences were committed whilst the respondent was serving s 9 bonds was, overall, an aggravating factor.

59. Regard was had to the respondent’s subjective case, including his dysfunctional childhood, the unexpected death of his father at a young age, his mother’s subsequent depression and gambling habit, his limited education, his longstanding history of drug and alcohol abuse, his participation in the Positive Lifestyle course whilst in custody, and the distance between the prison where he was housed and his family. Her Honour considered the length and frequency of the respondent’s criminal history to be an aggravating factor of the kind referred to in Veen v R (No 2) [1988] HCA 14; 164 CLR 465, but noted that “in this sentence there are a lot of different factors which pull in different directions”.

60. Notwithstanding the contrary observation in the PSR, the sentencing judge accepted the opinion of Mr Machlin in his report that the respondent was remorseful for his conduct.

61. A 15% discount to the indicative sentences otherwise imposed on the respondent was applied, to reflect the utilitarian value of the pleas of guilty entered two weeks before his trial was due to commence.

62. Her Honour found that there was need for some partial accumulation between the two sets of offences, although she also considered that “a lot of the offences charged are quite closely factually related and that would tend to militate in the opposite direction”.

63. Her Honour made a finding of special circumstances, citing the respondent’s need for supervision to address his drug abuse, his need for assistance in developing job skills, and the risk of institutionalisation. Without assistance, the sentencing judge considered his prospects of rehabilitation to be “guarded”.

64. Her Honour had regard to the fact that the respondent had been in custody since his arrest on 26 January 2016 and in that time had served sentences totalling ten months for separate offences. In applying the principle of totality, her Honour decided to commence the sentence for the current offences on 26 May 2016, and imposed an aggregate sentence of five years imprisonment with a non-parole period of three years imprisonment.

The Crown’s Appeal

65. The Crown appeals on a sole ground, a complaint that the aggregate sentence imposed upon the respondent was manifestly inadequate. The Crown contends that, having regard to the statutory guideposts provided by the maximum penalties specified for each offence, the sentence is so far below the range of sentences that could properly be imposed as to be plainly unjust. It is argued that both the aggregate term and the aggregate NPP are too low.

66. The Crown additionally submits that the error in sentence is compounded by the failure to properly assess the objective gravity of the kidnapping offence, which was higher than the sentencing judge determined; and in allowing an erroneously excessive degree of concurrency.

67. No issue is taken with her Honour’s finding that the respondent’s intellectual disability played a causative or contributory role in the commission of the offences, or that it operated to reduce the applicability of the principle of general deterrence. Neither is any complaint made as to the finding of the sentencing judge that special circumstances existed to justify a variation of the usual statutory ratio of sentence.

Consideration

68. There is no doubt that the aggregate sentence imposed upon the respondent was a very lenient one, and that the NPP of 3 years is equally demonstrative of considerable leniency. However, the adequacy of the sentence falls to be assessed through the prism of the findings of the sentencing judge, findings not challenged by the Crown, that the respondent’s intellectual disability was a contributory feature to the commission of the offences, and had the effect of diminishing or displacing the applicability of some of the principles relevant to the determination of sentence.

69. The evidence before her Honour was that the respondent had been assessed as having a mild intellectual disability, a finding accepted by the sentencing judge. The respondent has never held paid employment and, prior to going in to custody, he was financially supported by a disability pension. He required the assistance of his mother to manage activities such as banking and accommodation. He presented in his evidence to the sentencing court as having a very simplistic understanding of matters connected with his offending conduct. The offences themselves, whilst serious given that the victims could not know that the firearm was a replica, were almost childish in intent and execution.

70. Although not necessarily suggested by the label “mild intellectual disability” a person with that level of cognitive function is significantly impaired. As the High Court observed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120,

“The assessment that the appellant [here, respondent] suffers from a "mild intellectual disability" should not obscure the fact that he is mentally retarded” (at [50]).

71. Where an offender has an intellectual disability, that person’s moral culpability for the crime may be lessened, often to a substantial extent, in the determination of sentence. This in turn lessens the role of retribution and denunciation. Further, general deterrence is of lesser or no relevance, as was noted by Young CJ in R v Mooney, unreported, Victorian Court of Criminal Appeal, 21 June 1978, at 5:

"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."

72. Since the respondent’s crimes involved the use of a firearm, albeit an imitation, it would ordinarily be very important for sentencing courts to send a clear message to others who might be tempted to use such lethal weapons by the imposition of stern sentences on offenders. That requirement had little or no application in this matter and the mitigating effect on the sentence to be involved might be assumed to be significant.

73. Although her Honour referred to the decision of Veen (No 2), and noted that the respondent’s extensive criminal history heightened the need for any sentence to protect the community, it appears that she considered that necessity to be tempered by the respondent’s intellectual disability.

74. The relevance of an intellectual disability or other mental disorder was set out by McClellan CJ at CL in Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1, at [177] – [178]:

Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].

75. Whilst these principles do not automatically apply to all offenders who have a mental disorder, the sentencing judge accepted that they applied to the sentence to be imposed upon the respondent. She referred to the requirements of sentence pulling in opposite directions. If the components of denunciation and retribution, and deterrence are removed from a sentence, or diminished in application, the sentence is necessarily less than it would otherwise be.

76. Where punishment or retribution were not significant matters because of the respondent’s limited moral culpability for the offences, the role of specific deterrence was muted, and where general deterrence had little or no role to play, the sentence imposed was, properly, much reduced on that which might have been appropriate for an individual who was not intellectually disabled, or whose disability played no role in the commission of the offence.

77. For an offender of ordinary intellectual capacity the sentence imposed on the respondent may well have been a manifestly inadequate one, but the respondent is not a person of ordinary intellectual capacity. He has an intellectual disability which the sentencing court found was a contributory feature to the commission of the offences. That finding dramatically changed the sentencing landscape.

78. As to the specific errors the Crown contends infected the sentence, I am unable to conclude that the sentencing judge was in error, in either assessing the kidnapping offence as one of “moderate seriousness”, or in allowing what must have been a considerable degree of concurrence between the indicated sentences.

79. The features pointed to by the Crown in relation to the detention of Mr Mitchell – the length of the detention, the fact that two weapons were used, that threats were made that could have been taken as threats to kill, and the lengthy police operation to resolve the situation – are all relevant to the assessment of the seriousness of the offence. However, her Honour referred to those features in reaching the conclusion that she did.

80. As has been said in a number of decisions of this Court, including in Ali v R [2010] NSWCCA 35, at [33]-[34]:

This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R at [37], [46]-[47].

81. In my view, the assessment made by the sentencing judge was open on the evidence.

82. The level of accumulation or concurrency between sentences is similarly a discretionary matter for the sentencing judge. Had discrete sentences been imposed for each offence, her Honour’s task would have been to examine to what extent the criminality of each respective offence could be comprehended by the sentences imposed for the other offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [25]-[30]. As the sentencing judge observed, there was a degree of factual overlap between the offences. All involved the use of the imitation pistol; the first offence in time led to and was materially connected with the second set of offences; all bore the hallmark of the respondent’s immature understanding of his conduct.

83. There is no mathematical formula to be applied in determining the level of concurrency to be allowed: it is a matter of assessing all relevant features and determining in the circumstances of the individual case whether the sentence imposed, and the NPP fixed, is the minimum sentence necessary to properly reflect the criminality of the offending conduct.

84. In my view her Honour carried out that assessment, informed as it had to be by her conclusions as to the contributory role of the respondent’s intellectual disability, and allowed a generous degree of concurrency. In the circumstances of this matter, that was not inappropriate.

85. In my conclusion, there is no error in the sentence imposed upon the respondent. I would dismiss the Crown’s appeal.

Proposed Order

86. The appeal brought by the Crown be dismissed.

87. LONERGAN J: I agree with Wilson J.

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Decision last updated: 29 August 2018