R v Swan

[2006] NSWCCA 47

CITATION:	Regina v Rick Barry Swan [2006] NSWCCA 47
HEARING DATE(S):	20 February 2006
JUDGMENT DATE:	6 March 2006
JUDGMENT OF:	Spigelman CJ at 1; Barr J at 69; Howie J at 69
DECISION:	1 Leave to appeal granted.; 2 Appeal against sentence allowed.
CATCHWORDS:	CRIMINAL LAW – SENTENCE APPEAL– Application for leave to appeal against severity of sentence. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – General Deterrence & Intellectual Disability – The principle that individuals should not be allowed to take the law into their own hands is accorded less weight where the offender has an intellectual disability. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – Personal Deterrence & Sexual Abuse of Defendant by Victim – Where the motivation is retaliation for prior sexual abuse the need for personal deterrence and protection of the community is considerably lessened, unless prior offences indicate the behaviour is not isolated. - CRIMINAL LAW – SENTENCE APPEAL– Fresh Evidence – New evidence rejected as too narrow too contribute to sentencing exercise - CRIMINAL LAW – SENTENCE APPEAL– Where judges sentence two offenders at the same time, with detailed reasons regarding their respective criminality, appellate courts should be cautious between accepting one defendant had a justifiable sense of grievance.
LEGISLATION CITED:	Crimes Act 1900 (NSW): s95(1), s98 Criminal Appeal Act 1912 (NSW), s6(3) Crimes (Sentencing Procedure Act) 1999 (NSW): s12, s21A
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 356 R v Camilleri NSWCCA, unreported, 8 February 1990 R v Craddock [2004] VSC 397 R v Engert (1995) 84 A Crim R 67 GAS v The Queen (2004) 217 CLR 198 R v Hemsely [2004] NSWCCA 228 R v Olbrich (1999) 199 CLR 270 R v Thomson & Houlton (2000) 49 NSWLR 383
PARTIES:	Rick Barry Swan (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2005/2254
COUNSEL:	R. Burgess (Applicant) D. Arrnott (Respondent)
SOLICITORS:	Steve O’Connor (Applicant) NSW Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	Coolahan DCJ
LOWER COURT JUDICIAL OFFICER:	04/31/0270

- 22 -

2005/2254

SPIGELMAN CJ
BARR J
HOWIE J

Monday 6 March 2006

REGINA v Rick Barry SWAN

Judgment

1 SPIGELMAN CJ: The Applicant pleaded guilty to one count of assault with intent to rob in circumstances of aggravation (using corporal violence) contrary to s95(1) of the Crimes Act 1900 and one count of being armed with intent to rob with wounding pursuant to s98 of that Act. His Honour Judge Coolahan DCJ sentenced him in relation to the s95(1) offence to a twelve month fixed term to date from 4 April 2004. That term has been served. On the s98 offence his Honour sentenced him to a non-parole period of two years and a total sentence of seven years to date from 5 October 2004. By reason of the accumulation the effective sentence is seven and half years imprisonment with a non-parole period of two and half years.

2 A co-accused in the s98 offence, Joshua Roddom, was sentenced by his Honour, at the same time, to a non-parole period of eight months with a total term of two years, suspended under s12 of the Crimes (Sentencing Procedure) Act 1999. The Court was informed that another co-accused pleaded guilty to an offence of assault with intent to rob in relation to the same matter. He was subsequently sentenced in the Children’s Court for this and another offence to 80 hours of community service.

3 His Honour summarised the facts in the following passage:

“About 9.15pm on Sunday 4 April 2004 the offenders attended 7 Cygnet Street, Marks Point, in company with Dylan Swan and Joel French. David Boddy lived in a self-contained flat on these premises. The offenders and their companions were known to Mr Boddy.
On arriving at the premises, Swan attempted to go through the rear yard by opening the side gate. The other three persons stayed at the front of the house to keep watch. The victim heard Swan at the side of the house and let him in the gate. Swan took out a small red handled knife and placed it against the throat of the victim. He demanded that the victim give him money. The victim declined to do so and Swan further demanded the victim hand over his wallet. The victim refused again and Swan then kicked the victim to the buttocks area before decamping from the yard. Swan and the others then walked along the lake front at Marks Point, where Swan threw the knife into the water from a private jetty.
Those facts relate to the first matter to which Swan pleaded.
At about 11.00pm that evening, the offenders returned to 7 Cygnet Street, Marks Point, with Dylan Swan and Adam Highfields. At this time the victim was in his granny flat, playing the organ. Swan knocked on the door and was allowed to enter the granny flat by the victim. Dylan Swan and Roddom remained outside the gate at the side of the yard. On entering the premises, Swan removed a black handled carving knife with an 18 centimetre blade and placed it against the victim’s throat. He demanded money from the victim, who refused to give it to him. Swan then demanded the victim’s wallet. The victim again refused to hand it over. Highfields then searched the victim’s premises for his wallet, however was unable to locate it.
When unable to locate the wallet or money, Swan kicked the victim to the buttocks region a number of times. The victim managed to push past Swan and run out of the granny flat towards the main house. Swan followed the victim with the knife in his hand. As the victim reached the back door of the premises, the offender stabbed the victim to the rear right shoulder area with the knife. Approximately 12 centimetres of the blade penetrated the victim and it remained lodged in his body.
Roddom, Highfields and Dylan Swan decamped from the premises and attended a nearby address. The victim attended his mother’s main residence and informed her that he had been stabbed. The victim contacted ambulance, who in turn contacted police. Police arrived and rendered assistance to the victim until the ambulance arrived. The victim was then transported to the John Hunter Hospital where he underwent surgery to remove the knife. Crime Scene and fingerprints experts attended and examined the scene. Witnesses were spoken to by attending police.
At about 2.15am Swan attended the Belmont Police Station and handed himself in to police. He made admissions to station police in relation to the stabbing. He was arrested and cautioned. Swan again admitted stabbing the victim, indicating it was payback for sexual abuse committed upon him by the victim. Swan’s mother was contacted and attended the Belmont Police Station, due to Swan’s mild intellectual disability. Swan was interviewed electronically in relation to the matter where he made open and frank admissions as to the offence. In relation to stabbing the victim Swan stated that he had attended the residence with the intention of harming the victim. By ‘harm’ he said that he did not wish to kill the victim but wanted to hurt him so he could not commit further sexual assaults upon his intellectually disabled friends. The offender further stated that it was the intention of him and his co-offenders to rob the victim of his wallet and car so as to buy smokes.
At about 1.20pm on 6 April 2004 police attended 29 Arthur Street Belmont South and arrested and cautioned Roddom in the presence of his father and stepmother. He was taken to Charlestown Police Station and was interviewed in the company of his stepfather. During the course of that interview he made full admissions as to the offence. Roddom stated that he had previously been sexually abused by the victim but did not wish to elaborate on the matter. He stated further that he attended the premises knowing that the victim was to be assaulted, and knowing that they were going to steal the victim’s wallet and money to purchase cigarettes and alcohol for themselves. He admitted to acting as a lookout whilst the offence was occurring.”

4 The Applicant had a short, but relevant, criminal history which his Honour set out. It included offences in the nature of intimidation, administering a prohibited drug, assault occasioning actual bodily harm and, of particular significance, assault with intent to rob whilst armed with an offensive weapon.

5 His Honour gave particular weight in the sentencing exercise to the medical history and the mental condition of the accused. His Honour set out and summarised the experts’ reports. His Honour quoted from the report of Dr Chenoweth, a consultant psychiatrist with Hunter Health:

“‘Ricky Swan’s difficulties may be grouped into a number of categories. Firstly, there is the cerebral palsy which has caused him to have difficulty moving, clumsiness and lack of coordination, difficulty finding appropriate words and intellectual deficits. In addition, these intellectual deficits have caused him to be somewhat fatuous and easily led. He has very little capacity for empathic relationships with others and rapidly falls into aggression and violence when frustrated. Secondly, his schizophrenia has become increasingly apparent and may well be responsible for some of the above symptoms. His auditory hallucinosis is now well established and medication is somewhat helpful in dealing with this but not entirely so. In addition he seems to have some formal thought disorder but this assessment is complicated by his intellectual impairment. Formal testing showed that he was universally impaired across all cognitive functions. There was impairment in visual and verbal memory, attention and concentration, maintenance of cognitive set, cognitive productivity and planning and generally demonstrated a decrease in his global assessment of functioning in recent years. It is noteworthy that his capacity as determined by the pre-morbid IQ test, ie the National Adult Reading Test, was just below normal, indicating that he had functioned at a much higher level previously. Schizophrenia does cause quite a profound drop-off in cognitive capacity’.
Under the heading ‘opinion’ Dr Chenoweth said ‘Ricky Swan has mild left-sided cerebral palsy, mild intellectual disability, symptoms of schizophrenia, including audio hallucinosis, paranoid ideation and is currently on medication. He has a history of abuse, deprivation and neglect, poor integration into school and society and a forensic history. He has a lack of empathy with a very unstable home situation. He is very easily led with very little in the way of critical faculty to weigh up the consequences of his actions. He has always been very vulnerable to relapses of offending behaviour and unfortunately has not been compliant generally with management nor medication regimes. Many agencies have been involved along the way, from child psychiatry as an infant through to the current early psychosis program. He is a frequent attendee at James Fletcher Hospital with episodic dyscontrol or emotionality. Whilst he has an IQ level that reflects a capacity for understanding of the consequences of his actions he has mental illness and a predisposition to be encouraged by others into criminality’.”

6 Coolahan DCJ also referred to the report of Professor Susan Hayes, a clinical psychologist. Her report outlined the background, personal and family history of the Applicant. She concluded that the offender was mildly intellectually disabled and had moderate intellectual disability in the area of adaptive behaviour. His Honour quoted the following extract from Professor Hayes’ report:

“‘At the time of the assessment Mr Swan was suffering from an intellectual disability, although he functioned slightly better in verbal reasoning than in non-verbal reasoning and the ability to solve new problems. However his communication skills were impaired, as were all of his other adaptive behaviours. On the basis of both the Korfmann Brief Intelligence Test and the Vineland Adaptive Behaviour Composit Scores he falls into the category of intellectual disability in the mild to moderate range, as a result of his intellectual disability as well as his other problems, including disruptive behaviour, psychosis, either drug-induced psychosis or schizophrenia, low self-esteem, depression, suicidal ideation and panic anxiety. In my opinion it is difficult for Mr Swan to reason adequately and to foresee the consequences of his actions. Mr Swan indicated that he needed help in order to avoid further offending once he is released. In particular he mentioned anger management, stress management and general support from a consistent case manager who is available to him when he feels stressed. In addition to this I would add that he needs regular psychiatric review and support from a Mental Health team, treatment to address his panic anxiety and drug counselling. Mr Swan would benefit from a residential drug rehabilitation program such as Citycare in Newcastle, which I am told offers a 12 month program and work preparation. Mr Swan’s behaviour clearly becomes more manageable, both for him and others, when he is taking appropriate medication for his psychiatric disorders and abstaining from illicit substances. Therefore it is vital that he receive appropriate support and supervision at a level suitable for a person with mild to moderate intellectual disability once he is released from prison’.

7 His Honour referred to the submissions made on sentence by counsel for the accused and by the Crown and also referred to the considerations set out in s21A of the Crimes (Sentencing Procedure) Act 1989, with respect to which his Honour said:

“… aggravating factors not present in the charges themselves include his short but significant record for previous convictions, that the offences were committed in company, the victim was older than these offenders and was in a somewhat vulnerable position and some degree of planning was obviously involved. The evidence is silent as to the physical or emotional sequelae so far as the victim is concerned but it would be difficult to imagine that someone in the position of the victim, subjected to such a violent attack, would not have long-standing emotional issues to some degree.
Mitigating factors include the offender’s expression of remorse and his pleas of guilty. I am satisfied that the offender was probably not fully aware of the consequences of his actions because of the disabilities identified, in particular by Professor Hayes. In this regard I accept the submission of Mr Booth that his capacity for rational thought, which includes realising the consequences of his action, was and is impaired. I cannot say that the offender has good prospects for rehabilitation but at his age, and with his disabilities, one could not give up hope. He certainly, on the evidence, has a need for a longer than normal period of supervision upon his release from custody.
Swan now has the benefit of a thorough psychological assessment from Professor Hayes and psychiatric treatment from Dr Chenoweth and one hopes that in the future, with appropriate therapy and assistance, he can go on to lead a crime free life and to deal with the disabilities which have been identified. For these reasons, and because of his age and the fact that this will be his first period in custody, and because I agree with the submission of Mr Booth that in the light of his disabilities he will probably find that period of custody more onerous than most, I am of the view that there should be a finding of special circumstances.
As to the question of what role general deterrence should play in the sentencing process I have found this to be a difficult issue. It is impossible to accept that someone who functions intellectually at a lower level than 99 percent of the general population and adaptively at a level lower than 99 percent of the population could think and reason as rationally and clearly about their actions and the consequences thereof as persons who function normally. Indeed, as I understand it, this is what Professor Hayes was saying. In these circumstances therefore, generally, the aspect of general deterrence would not feature so highly in the sentencing process. In some cases it would not feature at all. On the other hand it has also been recognised that even in such cases a sentencing consideration such as the protection of the community assume a more significant role in the sentencing process. Here there is no doubt that the offender knew that what he was doing was wrong. As against that he was operating under the disability to which I have referred and I am sure that he was unable to fully realise the consequences of his actions.
As I say this has been a difficult issue to resolve. However in my view some discount on sentence should be made because of the fact of the offender’s disability, although perhaps not to the full extent that might otherwise be warranted, but more significantly I think that a substantial adjustment should be made to the ratio between the non-parole period and the parole period to allow for the offender to have a very long period of supervised rehabilitation, during which of course he will become his own gaoler, but hopefully which will lead him to dealing with his problems and developing strategies to assist him in dealing with issues such as the one which confronted him on this occasion. This, it seems to me, is not only in his interest but in the interest of the community.”

8 The first ground of appeal is that his Honour placed too much weight on general deterrence.

9 His Honour’s consideration of the issue of general deterrence, which he described as “difficult”, quoted above, followed an earlier reference where his Honour had referred to the seriousness of the offence and indicated that a custodial sentence was required. At that earlier point of his reasons his Honour had said:

“General deterrence and the protection of the community must loom large in sentencing considerations for such an offence. Here of course, I am referring to the offence under section 98 of the Act.”

10 The Applicant suggested that his Honour’s reference to “general deterrence … must loom large” represented a failure to accept that this sentencing principle operates with less force in the case of an offender with an intellectual disability. The submission should be rejected. The passage referred to occurs early in the judgment where his Honour was identifying the usual approach with respect to “such an offence”. The balance of his Honour’s reasons indicates that his Honour was fully aware of, and applied, the principle applicable to a case of intellectual disability.

11 It is also clear to me that his Honour gave full weight to the principle when determining the non-parole period for this offender. That period of two years is a very short sentence for an offence of this objective gravity. The position with respect to the head sentence is more difficult.

12 Ms R Burgess, who appeared for the Applicant on this application, submitted that his Honour’s analysis indicated that he had taken these matters into account only with respect to the non-parole period and not the overall sentence. She submitted that these considerations were equally relevant to the overall sentence. Furthermore, she submitted that his Honour did not state why, as his Honour put it, these considerations did not lead to a discount on sentence “to the extent that might be otherwise warranted”.

13 The objective gravity of the offence was of a high order. The assault and attempted robbery earlier in the evening was an important piece of background to indicate the deliberation and planning with which the Applicant returned on the second occasion. He came armed with a dangerous weapon and pursued and attacked the offender with a level of violence that, on any view, indicated a very serious offence to which the considerations of general deterrence would normally have suggested a substantial custodial sentence.

14 On the other hand, the Applicant’s intellectual disability had the effect that the Applicant did not fully realise the consequences of his conduct, as his Honour expressly found. His Honour’s careful review of the reports of the psychiatrist and psychologist, a significant proportion of which I have set out above, indicates that his Honour was very well aware of the significance of this consideration.

15 His Honour emphasised the difficulty he faced in resolving the conflict of the countervailing considerations which had arisen in the particular circumstances of this case. His Honour appeared to adopt, correctly in my opinion, the kind of flexible approach outlined by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 71.

16 The ways in which mental illness or intellectual handicap may affect the exercise of the sentencing discretion were summarised by Sperling J in R v Hemsley [2004] NSWCCA 228 as follows:

“[33] Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254] [ R v Henry (1999) 46 NSWLR 346]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ: Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
[35] Thirdly, a custodial sentence may weight more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].”

17 These considerations apply equally to the head sentence as to the non-parole period.

18 As noted above, his Honour expressly stated that “some discount on sentence should be made because of the fact of the offender’s disability”. This was entirely appropriate and in accordance with the authorities. His Honour’s qualification of these observations by the words not “to the extent that might be otherwise warranted” is plainly a reference to the countervailing considerations to which he referred, including the prior conviction for a similar offence and his refusal to find that the Applicant had good prospects of rehabilitation and was unlikely to re-offend. In this latter respect his finding was supported by the expert evidence.

19 I am not satisfied that his Honour took the Applicant’s intellectual disability into account when determining the head sentence, as distinct from the non-parole period. I have quoted the relevant passage above. Immediately after his Honour’s reference to “some discount on sentence … not to the full extent that might otherwise be warranted”, his Honour immediately referred to the “ratio between the non-parole period and the parole period”, as quoted above. This is a consideration which arises in the course of making a finding of special circumstances, directed to determining the non-parole period. The sequence of this passage of his Honour’s reasons took the relevant sentencing principle into account when determining the non-parole period and not the head sentence. The result of a head sentence of more than double the non-parole period also suggests this conclusion. The correct sequence is to first take the consideration into account when considering the appropriate overall sentence because that will be automatically reflected in the non-parole period. I do not mean to suggest that there is a rigid sequence of steps. However, the task requires caution because of the statutory requirement to express the non-parole period first when imposing a sentence. Nevertheless, for the reasons I have advanced, in my opinion his Honour, in the event failed to take this into account on the head sentence.

20 In that respect I would uphold this ground of appeal.

21 Pursuant to this ground of appeal, the Applicant made submissions concerning the weight to be given to the fact that, on the Applicant’s case, the offences had been committed in retaliation for prior sexual abuse perpetrated by the victim upon the Applicant and other intellectually disabled boys. The Crown made no objection to this course even though this matter raises issues going beyond general deterrence.

22 In this regard, his Honour’s first reference to the history of sexual abuse occurred after his reference to general deterrence usually ‘looming large’:

“Even allowing for the fact that the offender Swan may have had some grievance with the victim, justified or not, this would not entitle him in any way to take the law into his own hands and people who are inclined to do so must be discouraged by appropriate sentences.”

23 Subsequently, in the context of setting out the evidence by the Applicant’s mother with reference to the Applicant’s “allegation of sexual abuse”, his Honour noted:

“Despite this allegation it appears that the victim was not charged. As I understand it this was apparently because of the offender’s disabilities and consequent problems relating to proof. [She] spoke of difficulty in explaining this fact to the offender and his concern regarding the conduct of the victim with other children.”

24 His Honour also said, with reference to a submission made by the then counsel for the Applicant:

“He said that the victim has since been charged with some offences of a sexual nature arising out of events allegedly occurring in 2002. However in my view this has little, if any, relevance to present considerations. Mr Booth submitted that it was important to take into account the offender’s motive for committing the offences and that because of that motive there could be no suggestion that the circumstances were such as those contemplated by the High Court in Veen Number 2 . He said that preventative detention was not required. He submitted that because of the specific nature of the purpose of the offence this was not a case where the community in general needed to be protected from the offender.”

25 His Honour did not make a finding as to whether or not the allegation made by the Applicant that he and others had been sexually abused by the victim was or was not made out.

26 The Applicant seeks to adduce fresh evidence in this Court with respect to the charges that have been lain against the victim. It appears that the charges referred to by counsel in the course of the proceedings before Coolahan DCJ, as quoted above, related to three counts of indecent assault and one count of attempted sexual intercourse which had been lain two days before the Applicant’s sentence proceedings. These involved offences against the Appellant, as his Honour was informed. Subsequently, further investigation into the victim’s relationship with other intellectually disabled boys who attended the Applicant’s school, led to the discovery of additional complaints made by male children over a 30 year period. The proposed new evidence indicates the victim has now been charged with a total of 119 offences relating to 18 complainants.

27 The additional evidence proposed to be tendered as fresh evidence covers three elements: first, the fact that the victim was charged with offences relating to the Applicant, secondly that he has been charged with a significant number of other such offences against other complainants and thirdly some further details of the Applicant’s prior offences.

28 The first and third matters were the subject of submissions to the sentencing judge and he referred to both of them in his remarks on sentence. The charges against the victim with respect to the Applicant were filed two days before the sentence hearing but were known to and mentioned by the sentencing judge. The other similar offences against other complainants was the only matter capable of answering the description of fresh evidence. It is in a narrow compass and adds little if anything to the sentencing task before this Court. There are charges in significant number, but nothing is known about the strength of the Crown case.

29 In my opinion, the new evidence should be rejected. This rejection would not apply to the evidence if this Court comes to exercise the sentencing discretion afresh.

30 The Applicant’s reliance on the evidence relating to the history of sexual abuses, being evidence that was before the sentence judge, was based on the suggestion that his Honour failed to give it appropriate weight, whether by way of giving general deterrence too much weight, or otherwise. I would not intervene on this basis. His Honour was fully aware of the issue. There is no indication in anything he said which suggests he did not treat it appropriately. As is often the case, these matters are to be considered, if at all, under the “manifestly excessive” ground of appeal.

31 The second ground of appeal is that his Honour erred in the manner in which he took into account the Applicant’s previous record. As noted above his Honour had said that the Applicant had a “short but significant record”. It was submitted that all of the offences were committed within a relevantly short period of time in 2002, soon after he alleged he was sexually abused by the victim.

32 I have outlined above the relevant convictions. His Honour was entitled to give them weight. In particular there was an offence of assault with intent to rob whilst armed with an offensive weapon. There was also an offence of intimidation. I do not see that his Honour referred to the previous convictions in a way which impermissibly led to their use as matters aggravating the seriousness of the offence. Rather, it appears to me, his Honour referred to them for the permissible purpose of indicating that, in the circumstances of the case, considerations of personal deterrence and the protection of society were entitled to weight in the overall sentencing exercise by reason, inter alia, of this background.

33 Where the stated motive for the offence was retaliation for prior sexual abuse and to prevent the abuse of others, it would be relevant if this was the only such offence committed by the Applicant. Then it could be said that the need for personal deterrence and protection of the community was considerably lessened, because the act of retaliation was unlikely to be repeated against the particular victim and also because of the fact that it was the crime now under consideration that led to the victim eventually being charged in the manner set out above. The prior offences were of significance in the sentencing exercise because they indicated that the need for personal deterrence and protection of the community was a factor entitled to more weight than may have otherwise been the case. They constituted a proper basis for his Honour’s refusal to draw the inference that the Applicant was unlikely to re-offend and that his prospects of rehabilitation were good. His Honour’s conclusion was supported by Dr Chenoweth’s opinion that the Applicant could re-offend.

34 This ground of appeal should be rejected.

35 The third ground of appeal is that his Honour erred by failing to adequately take into account the plea of guilty and assistance to police.

36 His Honour referred to the plea of guilty and listed it amongst the mitigating factors. His Honour did not identify what discount he had allowed for the utilitarian value of the plea. This Court encourages sentencing judges to specify the degree of discount given, but has emphasised that it is not an error to fail to do so. (R v Thomson & Houlton (2000) 49 NSWLR 383 at [113], [159], [160].)

37 His Honour set out at length the Applicant’s conduct in giving himself up to police within hours of the offences having been committed and making full admissions. He also outlined the way in which he had named his co-offenders. Nothing appears from the sentence that suggest that his Honour did not fully take this consideration into account. As is frequently the case, this matter arises, if at all, as one of the considerations which could explain why, if it be the case, that the sentence is manifestly excessive. This is a matter which falls to be determined under the final ground of appeal and is not a separate ground.

38 The next ground of appeal is that the Applicant has a justifiable sense of grievance when considering the sentence imposed on his co-accused Joshua Roddom.

39 The co-accused pleaded guilty to the same serious offence under s98. He was sentenced to two years imprisonment with a non-parole period of eight months, which sentence was suspended. He was granted bail after his arrest and served no time in custody. On the facts Roddom carried the carving knife to the victim’s premises and handed it to the Applicant. He did not further participate in the burglary and assault. He remained as a lookout at the front of the premises at the request of the Applicant. He gave evidence that he had also been sexually assaulted by the victim.

40 There is a substantial disparity in the sentences, especially in the context that Roddom pleaded guilty to a charge involving wounding and, by his plea, accepted criminal responsibility for the actions of the Applicant, including the wounding. The plea indicates that he had to be sentenced on the basis that the joint criminal enterprise contemplated a violent attack with the knife in which the victim could be wounded.

41 I have read the joint judgment of Barr and Howie JJ on this issue. I agree with their Honours’ reasons. This ground of appeal should be dismissed

42 The final ground of appeal is that the sentences imposed are manifestly excessive in the light of the Applicant’s plea of guilty and his subjective case, in particular his intellectual disability and his motive for committing the offences.

43 The Applicant submitted that the sentence of seven years for the s98 offence does not reflect an appropriate discount for his plea, his remorse, the assistance he gave in naming his co-accused, his motive for committing the offences, his intellectual disabilities, the hardship he would suffer in custody because of those disabilities and the significant reduced role of general deterrence.

44 I would not have been minded to uphold this ground of appeal. It is unnecessary to elaborate as this Court must itself re-sentence the Applicant after upholding the two other grounds.

45 The objective gravity of the wounding in the present case is such that the sentences imposed by the trial judge, particularly the non-parole period, would, but for two considerations, be manifestly inadequate as distinct from excessive, let alone manifestly so. The two considerations are the intellectual disability and medical condition of the Applicant and the allegation by him that his action was motivated by sexual assaults committed upon him and upon others by the victim.

46 The first matter to determine is the factual basis upon which the allegations of prior sexual assault should be taken into account. As with other matters of mitigation the onus upon the Applicant to establish relevant facts is an onus that is to be discharged on the balance of probabilities. (See R v Olbrich (1999) 199 CLR 270.) Where what is involved is an allegation of serious criminal conduct the discharge of the onus on the civil basis must take into account the gravity of the allegations. See Briginshaw v Briginshaw (1938) 60 CLR 356.

47 In the present case, in my opinion, the Applicant has not discharged his onus to establish that he or any other person was in fact the subject of sexual abuse. He has, however, in my opinion, discharged the onus of establishing that he believed that he had been the subject of sexual abuse and further believed that other persons with intellectual disability had also been subject to sexual abuse on the part of the victim.

48 The Applicant gave no evidence on sentence at all. The material before the Court is in a narrow compass. The material entitled to the most weight is the clear and express assertion of the fact of abuse and belief that others had been abused in the police interview, shortly after the events, in which the Applicant admitted to the offence. Not only were these statements not tested, but they contain little detail about the events of a character which could support their veracity. They barely rise above the level of assertion. There is no detail of any character about the alleged sexual abuse of other young men. The Applicant’s statements in this latter respect never rise above the level of a statement of belief, based on hearsay.

49 These assertions are recited in the reports of the expert psychiatrist and psychologist. Based, as they must be, on the Applicant’s assertions, these reports are only statements of his belief. They do not constitute proof of the fact that sexual abuse occurred. Psychiatrists and psychologists generally accept the assertions of fact made by an individual as true. It is not part of their function, in the usual case, to test the veracity of such allegations. Generally such experts are concerned with a person’s state of belief, rather than with the truth of the events underlying the expressions of belief, which they so often record as fact in their reports.

50 The application of the Briginshaw v Briginshaw test is of particular significance in the present case. The victim has been accused of a range of sexual offences, including offences against the Applicant. The victim has been convicted of nothing. The evidence against him is unknown to the Court. That the police believe there is sufficient evidence to lay charges does not carry the matter far. The evidence has not been tested.

51 Nevertheless, the statements made by the accused in the record of interview are of a sufficiently clear and forthright character to justify this Court proceeding on the basis that, at the time of the offence, the Applicant had the belief that he had been sexually abused and that other young men who were intellectually disabled had also been sexually abused by the Applicant.

52 A revenge attack in a context of prior sexual trauma was considered by this Court in R v Camilleri NSWCCA, unreported, 8 February 1990. In that case the Court also proceeded on the basis that the prior sexual trauma had not been established, but that the accused believed that it had occurred and that the belief was a motivating factor relating to the mental condition of the accused at the time of the offence. In that case the accused shot the victim and was convicted on a charge of malicious wounding. It appears from the judgment of Allen J, with whom Gleeson CJ and Finlay J agreed, that the “highly charged emotional state … in large measure accounted for the applicant’s behaviour on that night. It provided the motive and was in its own right a disturbance of her normal emotional state.”

53 As in this case, the accused in Camilleri had made complaint, including to the police, of the sexual assault upon her. As Allen J noted, in the same way as occurred in the present case:

“The police eventually had decided not to bring proceedings against the victim on that complaint made by the applicant, and it may be accepted that that in a significant degree was a trigger for her subsequent criminal behaviour.”

54 Allen J upheld the sentence of the sentencing judge. In doing so he indicated that the sentencing judge had taken into account the sexual background of the offence and the extent to which it motivated the attack. He indicated that on the facts of that case his Honour was entitled to proceed on the basis that the prior sexual assault had not been established as a fact, albeit accepting that the accused acted on the basis of a belief that it had occurred. The judgment accepted the relevance of the motive, without needing to elaborate on how it was to be taken into account.

55 A similar issue arose in a first instance judgment of Smith J in the Supreme Court of Victoria in R v Craddock [2004] VSC 397. This involved a plea of guilty to a charge of murder. The accused said that the murder was retaliation for a course of sexual abuse by the deceased, which had commenced when the accused was 12 years of age.

56 Smith J carefully reviewed the evidence and determined that he could proceed on the basis of a finding of fact that sexual abuse had in fact occurred, not merely on the basis that the accused believed that it had occurred. His Honour then said:

“[22] In my view, the evidence overwhelmingly points to the motive for the killing being revenge for sexual abuse. As a result, a major issue in determining the sentence in this case is the way in which the revenge aspect of the killing should be treated.
[223] Plainly the pre-meditated murder with which we are concerned in this case is a crime of the gravest kind and normally warrants condign punishment. It has devastated the deceased’s family. Further, the courts cannot condone and cannot be seen to condone people taking the law into their own hands and should, through the sentence imposed, denounce such behaviour. But the sexual abuse and its consequences which lie behind and explain the decision to kill raise issues relevant in other ways to the purposes to be addressed in the sentencing process. Alternatively, they would, in my view, warrant and require the exercise of the ultimate discretionary power to extend mercy to the prisoner.”

57 His Honour then proceeded to deal with some aspects of that case under the heading of “Just punishment”, which do not appear to me to be applicable in the present case. His Honour then considered other relevant sentencing principles which may have some bearing on the present case as follows:

“(b) General deterrence
General deterrence, must not be overlooked and is a weighty consideration in determining the appropriate sentence. People cannot be allowed to take the law into their own hands as the prisoner did and exact a revenge for wrongs done to them. The prisoner took it upon himself to impose a death sentence on Mr Denham, a sentence far in excess of that available under the law.
(c) Personal deterrence
As to personal deterrence, it has a role to play but less than might normally be the case. There is no evidence of remorse but Dr Walton expresses the opinion that the prisoner’s violent behaviour, as he understands it, was an out-of-character event, which is reassuring in terms of his re-offending aggressively. He also suggests that the circumstances surrounding the killing with a specially targeted victim would suggest there is no other person readily identifiable as being at risk. The crime was a victim specific offence and the prisoner it seems does not have a reputation for violence. Nonetheless, the psychological damage that has been done to him and the seriousness of the crime involved require that the sentence have an impact of specific deterrence so far as he is concerned. To that extent it is relevant to fix a sentence that will deter him and offer protection to the community.
(d) Rehabilitation
Facilitating the rehabilitation of the prisoner is an important consideration having regard to his age. The consequences of the sexual abuse by the deceased make rehabilitation even more significant as a sentencing consideration. The actions of the deceased resulted in the loss of some 11 very important years of the life of the prisoner. He needs help to retrieve his life. To that end, the sentence needs to be structured to give him the opportunity to leave custody at an age where he can rebuild his life.”

58 His Honour concluded his analysis in the following way:

“[29] Whichever approach is taken, a significant sentence of imprisonment must still be imposed but it should be at the lower end of the spectrum of sentences that may be imposed for murder.”

59 The principle that a person is not entitled to take the law into his or her own hands is well known. It arises perhaps most frequently in cases in which there is a provocation defence seeking to reduce a murder charge to manslaughter. It is, of course, pertinent also to the sentencing task.

60 However, the principle is, in large measure, a manifestation of the principle of deterrence, both general and personal. In that respect it is affected by other sentencing principles which impinge upon the weight to which personal and general deterrence is entitled in the circumstances of a particular case. Accordingly, on the medical evidence in this case, particularly that relating to the Applicant’s intellectual disability, the application of the maxim – that a person must not be allowed to take the law into his own hands – is accordingly attenuated.

61 The Crown submitted that the Applicant’s motive did not diminish the ‘seriousness of the offences’. This submission, unless limited to a narrow concept of the objective gravity of the offences, should be rejected. Motive is always a relevant factor. It affects the moral culpability of the offender, the weight to be given to personal deterrence and may affect the weight to be given to general deterrence. This is particularly so where, as here, the level of intellectual disability impinges on the principle that the courts will not accept an offender taking the law into his own hands.

62 The range of considerations which must be taken into account by this Court on re-sentencing are the same as those outlined by the sentencing judge. Save in the two respects I have identified above, I agree with his Honour’s treatment of the various considerations. This Court has received additional evidence about the Applicant’s experience in gaol and the further treatment he has received for his medical condition. This additional material confirms what his Honour expected to happen as outlined in his remarks on sentence.

63 The offence, as I have indicated above was objectively serious, but the appropriate sentence must be mitigated to a substantial degree by the intellectual disability which impeded the Applicant’s ability to understand the consequences of his conduct.

64 This Court faces the same difficulty as his Honour emphasised in his remarks on sentence about how to balance such conflicting considerations. In this respect the issue of personal deterrence is of particular significance.

65 It appears to me, as it did to Coolahan DCJ, that personal deterrence is a matter entitled to some weight, notwithstanding the fact that the offence was committed with a belief about the prior sexual abuse and the Applicant now has the knowledge that this very offence has resulted in the victim being charged with a wide range of offences, including the offences about which he made complaint almost four years ago. Nevertheless, as his Honour indicated, the prior criminal record, particularly with the respect to the offences of intimidation and armed robbery, are such as to leave a doubt about the Applicant’s future offending and prospects of rehabilitation. Nothing in the additional material before this Court suggests that this doubt has been allayed.

66 As indicated above, I am of the view that his Honour failed to take into account the element of intellectual disability when determining the head sentence. He plainly did with respect to the non-parole period and I would not disturb the non-parole period which, in my opinion, is at the bottom of the appropriate range. His Honour’s finding of special circumstances was entirely warranted. I am not satisfied that any lesser sentence is warranted (s6(3) of the Criminal Appeal Act 1912).

67 With respect to the head sentence, in my opinion, the starting point, taking into account both the objective and subjective considerations, should be a sentence of seven years, reduced by 25 percent to five years and three months for the utilitarian value of a plea. I would allow an additional three months for the assistance, leaving a head sentence of five years.

68 The orders I propose are:

1 Leave to appeal granted.

2 Appeal against sentence allowed.

3 Sentence imposed on the s98 offence quashed and in lieu thereof:

The Appellant is sentenced to a non-parole period of two years commencing on 5 October 2004 and a balance of term of three years. He is to be released on parole on 4 October 2006.

69 BARR J AND HOWIE J: We have read the judgment of the Chief Justice in draft. For the reasons given by his Honour we agree that the head sentence should be reduced and we agree with the sentence proposed in that regard. We agree that otherwise the appeal should be dismissed. However, we wish to address the ground that the sentence should be reduced by reason of disparity with the sentence imposed upon the co-offender, Roddom, as we do not believe that this ground has been made out.

70 It is unnecessary to review the decisions concerned with disparity in this Court or the High Court or to restate the principles that are to be applied by this Court in determining whether to interfere on such a ground of appeal. In our opinion although there was a marked disparity in the sentence imposed between the applicant and Roddom, that disparity was justified, or at least it was within the sentencing judge’s discretion to determine that the sentences should differ to the degree that they do. If the applicant has a sense of grievance with the result, it is not justifiable where it is the result of the proper application of sentencing principles to the facts of the matter as found by the Judge.

71 This was a case where the sentencing of both offenders was by the same judge on the same occasion. Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes.

72 We accept that a principal in the second degree can receive the same sentence as the main offender because the difference in criminality between that offender and the principal in the first degree might be minimal. It is possible to imagine a case where the principal in the second degree is more culpable than the main offender and deserving of more punishment: GAS v The Queen (2004) 217 CLR 198 at [23]. The question of culpability is not simply determined by the charge to which the principal in the second degree pleaded guilty, but what he actually did in assisting or encouraging the principal offender.

73 One of the difficulties in determining such a ground of appeal in the present case is that the Court does not have all of the material that was used by the Judge for the purposes of sentencing Roddom. For example, we do not have Roddom’s ERISP, if there was one. Nor do we have any of the documents tendered on behalf of Roddom including a psychological report. In such a circumstance and in the absence of any material being tendered by the applicant, the Court is left to determine the ground of appeal based upon what the sentencing judge said about the relevant defence cases of each and his findings as to the culpability of each for the offence for which they were being sentenced. The Judge relied upon a statement of facts prepared by the DPP as the basis for sentencing both offenders. The Judge described Roddom’s role in the s 98 offence as being that he remained outside the gate at the side of the yard when the applicant entered the flat. There is no reference in the sentencing remarks to Roddom having any involvement with the knife.

74 True it is that Roddom pleaded guilty to the s 98 offence and, therefore, accepted by that plea that he foresaw the possibility that the victim might be wounded in the course of a robbery. But that is the only basis upon which he pleaded guilty and his actual criminality has to be assessed on that premise and no other. There is nothing in the plea that indicates that he knew or foresaw how the victim might be wounded. Roddom was not to be sentenced on the basis that he foresaw a violent attack upon the victim by the co-offender unless there was evidence to support that finding. The Judge made no such finding. Clearly Roddom could not be sentenced on the basis that he foresaw that the applicant would chase the fleeing victim with a knife and intentionally plunge it into his back. Here the criminality of Roddom was to be found only in the fact that he assisted the applicant by keeping watch outside the house knowing that the victim was to be robbed and foreseeing that he might be wounded in the course of the robbery.

75 Moreover the Judge accepted evidence in a letter from Roddom’s father that his son was easily led. The father stated that Roddom had become more susceptible to being misled in recent times and made a poor choice as to his associates. The Judge also referred to a letter from a family friend who described Roddom as being gullible and stated that “at times he is led into actions he would not do of his own thinking”. The Judge also quoted from a psychological report stating that Roddom said that he went to the victim’s home because of the influence of his co-accused. Roddom had also told police that the victim had sexually assaulted him.

76 On the material accepted by the Judge and referred to in his sentencing remarks, Roddom’s culpability for the wounding of the victim was the very least that could make him criminally responsible for the offence to which he pleaded guilty. The difference in culpability between the two co-offenders was such that the applicant could have no legitimate grievance in the fact that Roddom received a suspended sentence. The Judge held that there was “no real question of parity between the two” and in our opinion, with respect, that finding was correct.

77 The subjective factors relevant to both even widen the disparity between them. Roddom was more intellectually impaired than was the applicant. He had no criminal record for violence but had only one matter on his record, being a shoplifting for which he was placed on a bond. His parents were hoping to send him to a farm at Lismore in order to break his association with persons who they believed were leading him astray.

78 In his sentencing remarks the Judge quoted at length from the psychological report in respect of Roddom including the following:

……….Mr Roddom would be severely at risk if he were given a custodial sentence. Because of his intellectual disability it is likely that he would be “stood over” by other prisoners. He would have to be placed in protection or in a special developmental disability unit, if there was a place in one of the units within the New South Wales Corrective Services. If he were in protection it is unlikely that he would be able to access appropriate counselling and work preparation courses to assist with his rehabilitation.

79 Whereas both general and specific deterrence had a role to play in the sentencing of the applicant, even if at a much limited basis because of his mental disability, deterrence had no role to play in the sentencing of Roddom.

80 We agree in the orders proposed by the Chief Justice.

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