Reberger v R

[2011] NSWCCA 132

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

REBERGER v R [2011] NSWCCA 132

Hearing dates:

11 April 2011

Decision date:

10 June 2011

Before:

Campbell JA at [1]; RS Hulme J at [97]; Hoeben J at [98]

Decision:

1. Grant leave to appeal.

2. Appeal allowed.

3. Set aside the sentence in the court below.

4. In lieu thereof, sentence the Applicant to imprisonment for a non-parole period commencing on 31 May 2010 and expiring on 30 August 2012, with a balance of term expiring on 28 February 2014.

Catchwords:

CRIMINAL LAW - sentencing- trial judge sentencing on incorrect factual basis - trial judge rejecting witness' evidence in the absence of cross-examination - significance of mental impairment to general deterrence - significance of mental impairment to specific deterrence - assessment of the objective seriousness of an offence - considerations beyond seriousness of injury to victim - nature of task required by ss 54A and 54B Crimes (Sentencing Procedure) Act 1999

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:

Caldwell v J A Neilson Investments Pty Ltd [2007] NSWCA 3; (2007) 14 ANZ Insurance Cases 61-724
Chapman v Hearse (1961) 106 CLR 112
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382
Minehan v R [2010] NSWCCA 140
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
R v Baxter [2007] NSWCCA 237; (2007) 173 A Crim R 284
R v Douar [2005] NSWCCA 455; (2005) 159 A Crim R 154
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Letteri (NSWCCA, 18 March 1992, unreported)
R v Mooney (Supreme Court of Victoria Full Court, 21 June 1978, unreported)
R v Scognamiglio (1991) 56 A Crim R 81
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Sayin v R [2008] NSWCCA 307
Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13

Category:

Principal judgment

Parties:

Ryan Michael Reberger (Appellant)
The Crown (Respondent)

Representation:

Counsel
B Rigg (Appellant)
PG Ingram SC (Respondent)
Solicitors
Legal Aid Commission (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2009/125154

Publication restriction:

Nil

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-05-31 00:00:00

Before:

English DCJ

File Number(s):

2009/125154

Judgment

1. CAMPBELL JA: The Applicant was sentenced in the District Court on 31 May 2010 concerning a single offence to which he had pleaded guilty. That offence was a contravention of s 35(2) Crimes Act1900 , consisting of recklessly causing grievous bodily harm to Timothy Uren on 23 May 2009. The Applicant was born in June 1985, and so was aged 23, nearly 24, at the time of the offence.

1. The offence carries a maximum penalty of 10 years imprisonment. Pursuant to s 54A Crimes (Sentencing Procedure) Act 1999 and the Table immediately following s 54D of that Act, it also has a standard non-parole period of 4 years.

1. The sentence the judge imposed was imprisonment for a non-parole period of 2 years 11 months and 2 days commencing on 31 May 2010 and expiring on 2 May 2013. The total term of imprisonment imposed was 4 years 10 months and 15 days commencing on 31 May 2010 and expiring on 14 April 2015. The Applicant seeks leave to appeal against the sentence.

The Incident

1. The most significant factual material before the judge concerning the circumstances of the incident that resulted in the charge was a Statement of Agreed Facts. It records that on Friday, 22 May 2009 Mr Uren, then aged 20, went first with family and friends to a hotel in Wagga Wagga to celebrate his father's birthday. There Mr Uren consumed about five or six glasses of beer. Mr Uren later went with friends to a different hotel in Wagga Wagga, where they consumed more alcoholic beverages.

1. At about 1:50 am the following morning Mr Uren left that hotel with a friend, Michael Hotston, and walked across the street, intending to go to a service station to ring a taxi to go home. He saw a heated verbal argument between two males of Aboriginal appearance and two males of Caucasian appearance outside a third hotel. The two Caucasian males were the Applicant and a friend of his, Matthew Hobson. The argument ended and the two males of Aboriginal appearance walked off in a northerly direction. The Applicant and Mr Hobson then walked in a southerly direction towards Mr Uren and Mr Hotston.

1. The Statement of Agreed Facts then described the incident:

"Mr Uren and the Offender did not know each other, never having met before. A bystander, who knew both Mr Uren and the Offender, noticed that the Offender had a schooner (beer) glass in his hand, and that there was about an inch of beer in the bottom of the glass. That bystander had a short conversation with Mr Uren. He noticed that Mr Uren appeared fairly drunk, but in a good mood.

As the Offender and his friend neared Mr Uren and his friend, Mr Uren said to the Offender something like, 'What's going on down there?' At that time the Offender was holding the schooner glass in his hand. Without any provocation, and whilst still holding the schooner glass, the Offender punched the right-hand side of Mr Uren's face with his hand. The schooner glass shattered on impact with the side of Mr Uren's face. Mr Uren fell to the footpath, having suffered serious wounds to his face, and right eye. The Offender and his associate ran south on Fitzmaurice Street and out of sight."

Alcohol Consumption

1. In an interview with a Probation and Parole Officer for the purpose of a pre-sentence report, the Applicant said that his recollection of the offence:

"... was not clear due to his state of intoxication, which followed a bout of drinking with friends at a hotel where he consumed a large quantity of alcohol."

1. The Applicant's mother gave evidence at the hearing, in which she accepted that the Applicant had been drinking prior to the incident, and that she had "heard about the fact that he was intoxicated" . She said that that took her by surprise, because only very rarely had she seen the Applicant drinking alcohol. She was not cross-examined.

The Applicant's Police Statement

1. After a call from the police to the Applicant's mother, the Applicant attended the Wagga Wagga police station soon after 6:00pm on 23 May 2009. In the presence of his father, and against the advice of his solicitor, he participated in a recorded interview with police officers. The Statement of Agreed Facts says:

"During the interview the Offender stated that he had been with friends at the 'older pub' with the Chinese restaurant (Home Tavern Hotel). He had drunk some beers earlier in the night; and after arriving at the hotel drank some Vodka Red Bull (a vodka mixed-drink). He said that he was not 'pissed' (intoxicated) at the time. He said that he and his friend left the hotel, and walked across Kincaid Street, to the footpath opposite the hotel, where they had an argument with two Aboriginal men. The Offender and his friend then walked south along the western footpath of Fitzmaurice Street to the front of Embellish Hair and Beauty, 130 Fitzmaurice Street, opposite the Duke of Kent Hotel.

The Offender stated that a male person then ran at him, and punched him to the left side of his face. The Offender said that he took two or three steps back, and punched this male person three or four times to the head. He stated that he did not have a beer glass in his hand when he punched the male person. The Offender and his mate ran along Fitzmaurice Street to the Victory Memorial Gardens. A short while a woman arrived and drove them away. That woman was the female partner of the Offender's mate.

During the morning, the Offender and his partner received a number of text messages asking the Offender if he had 'bottled' someone down-town. The Offender denied doing this, but admitting to being involved in a fight."

The Statement of Facts records that the Applicant was co-operative during the time he was in police custody.

Effect on the Victim

1. After the incident Mr Uren was taken by ambulance to the Wagga Wagga Base Hospital, and later to the Sydney Eye Hospital.

1. Dr Ross Benger is an occuplastic surgeon. He had had over 40 years experience as a surgeon in May 2009. At about 8:00 am on 23 May 2009 he was telephoned by the ophthalmology registrar at the Wagga Wagga Base Hospital, who told him that Mr Uren had received a glassing injury to his right eye region, and had no vision in his right eye. A CT scan of the head/orbits had been performed and showed large pieces of glass within his right orbit. Dr Benger agreed to have Mr Uren transferred to his care at the Sydney Eye Hospital. He first saw Mr Uren around 6:00 pm on 23 May 2009. He described his treatment of Mr Uren on that day and successive days:

"6. When I removed Timothy's right eye dressing, it was evident that he had sustained horrific injuries. His right eyeball was collapsed, and a large piece of glass could be seen in/above it. A further piece of glass could be seen in the lacerated right upper eyelid. Timothy not surprisingly had no vision at all in his right eye. His left eye was normal.

7. Timothy's injuries were repaired at Sydney Eye Hospital on Sunday 24 th May 2009 in a four hour operation with him having a general anaesthetic administered ... . The two fragments of glass were so large that they extended to the posterior limit of Timothy's right orbit. He was fortunate that the glass had not penetrated the superior orbital fissure, into his brain. His right eye was cut in half, and the intraocular lens was missing. The pieces of glass were removed, and given to the Operating Theatre Sister in Charge to be kept in the refrigerator so that they could be given subsequently to the Wagga Wagga Police team. ... Timothy's extensive right upper and lower eyelid, cheek and eyebrow injuries were meticulously closed in layers. The lacerated tissues in Timothy's right lower eyelid and cheek were like pieces of a jigsaw puzzle, but all were retained and remained viable over the course of his hospital stay. A plastic porous polyethylene (Medpor) ball was placed within Timothy's right eyeball sclera (white layer), in the hope that he would get an optimal result when eventually fitted with a prosthetic ('glass') acrylic eye. Timothy was discharged from the hospital on Wednesday 27 th May 2009."

1. Dr Benger's expert report gave his opinion about the injury:

"8. Timothy will need to have his prosthetic eye re-manufactured in about two years, and thereafter every four years or so. It is yet to be determined whether Timothy will have inflammatory changes with eye socket discharge in response to wearing his ocular prosthesis.

9. Timothy has no hope for recovery of any vision in his right eye. All the vision in his right eye was lost at the moment of being struck. This has very significant implications for him in terms of depth perception/stereopsis, and this is particularly relevant given his occupation of builder. It remains to be seen whether Timothy will be able to continue in his employment, given the need for climbing ladders and working on scaffolding and roofing.

10. The injury is classed as both serious and permanent. In fact, it is probably the worst eye region injury in terms of outcome that I have ever seen in my years of dealing with trauma cases at hospitals."

1. At the sentencing hearing it was common ground that after Mr Uren fell to the ground a good Samaritan came by and applied pressure to the eye region to stem the flow of blood, and that it was a possibility that the glass that was found in Mr Uren's eye was further driven into the eye by the compression.

1. Forensic evidence later established an identity between the glass removed from Mr Uren's eye and glass found at the scene of the incident.

1. In a follow-up report of 4 March 2010 Dr Benger summarised the original injuries as including:

"Penetrating injury of the right eye, resulting in loss of the eye. A prosthetic implant is now in situ.

Extreme laceration of the right upper and lower eyelids and right mid face."

1. He identified problems that may be encountered in the long term as including:

"Loss of depth perception due to loss of the eye.

Exuberant scarring of the repaired skin laceration.

Drooping of the right upper or lower eyelid requiring surgical repair,

Sinking back of the prosthetic implant requiring surgical rescission."

1. Kerri Wilson, who specialises in ocular prosthetics, has been involved in providing a prosthetic eye for Mr Uren. In a report dated 22 February 2010 she stated that the prosthesis requires constant care and cleaning. She also stated:

"Conjunctivitis occurs more commonly with artificial eye wearers and requires prompt medical treatment.

In particular allergic GPC (Giant capillary conjunctivitis) can be difficult to treat. It can cause the eye wearer great discomfort.

The prosthesis will be due for a replacement in approximately one year's time; this is because expected changes occur to the shape of the socket during the first year after enucleation.

...

Depth perception can be a problem for some people. Walking up and down steps and/or pouring drinks are instances which require extra care and negotiation. Distances, can be difficult to judge also. For most people these problems improve over time but for some it remains a constant struggle."

Supplementary Evidence

1. After judgment had been reserved in this matter the Court received notification from the solicitor for the DPP that the Crown wished to rely upon additional evidence. The Court gave directions for the filing of that evidence and submissions relating to it.

1. The evidence in question is a further report from Dr Benger. The relevant portion is:

"Timothy Uren attended my outpatient clinic at Sydney Eye Hospital on 18 th April 2011. He had developed another ulcer/erosion in his right eye socket. This exposed the porous polyethylene Medpor sphere which was implanted in his right eye socket on Sunday 24 th May 2009 as part of the original injury repair. Timothy will need to have the area patched again with a graft of tissue taken from his abdominal wall.

The severity of Timothy's injuries, and the disruption to his normal expected lifestyle, should not be underestimated. The multiple lacerations of his right eye/eye socket tissues resulted in more scarring and therefore a decrease in blood supply than when a person's eyeball is removed because of eg cancer. This means that Timothy is prone to developing more tissue ulcers with implant exposure. It is not possible to predict how many more surgical interventions Timothy will need in his lifetime to address the direct results of him being injured on 23 rd May 2009."

1. Supplementary submissions from the Crown submitted that the evidence should be received as evidence of post-sentence events that can be taken into account for the purpose of re-sentencing, or alternatively on the basis that the evidence demonstrates the true significance or provides the basis for a full appreciation of facts that were in evidence at the time of sentencing before the sentencing judge: R v Douar[2005] NSWCCA 455; (2005) 159 A Crim R 154 at [121]-[124]; R v Baxter[2007] NSWCCA 237; (2007) 173 A Crim R 284 at [1]-[19], [62]; Springer v R [2007] NSWCCA 289; (2007) 177 A Crim R 13 at [2]-[3].

1. As will later appear, it is necessary for the Applicant to be re-sentenced. The Applicant accepts that the evidence can properly be taken into account for the purpose of re-sentencing. In those circumstances it is not necessary to consider whether any other basis upon which the evidence might have been received would also apply.

1. Though Dr Benger's earlier report had identified that Mr Uren's future treatment might involve surgical intervention, it did not specifically identify a risk that ulceration or erosion of the tissue of the eye might occur, and possibly recur, or that the method of treatment was to graft tissue taken from another part of the body.

Applicant's Prior Offences

1. The Applicant's criminal history, prior to the incident the subject of the present charge, showed him as having come before a Local Court in substance on two occasions, each time for driving offences. He was convicted on each offence charged, and received penalties that did not involve imprisonment. His record also shows an appearance in the Wagga Wagga District Court, but that appearance related to some severity appeals from some of the convictions I have just mentioned. Alcohol was not involved in any of the offences.

Applicant's Prior Medical History

1. From the time he was at least eight years old, the Applicant has periodically seen a variety of medical practitioners, other health professionals and school counsellors, whose reports were available to the sentencing judge. He came under attention because he was showing significant learning difficulties associated with Attention Deficit Disorder.

1. IQ tests that he completed as a child showed him achieving low scores, but the extent to which the scores were low differed. A test administered in February 1996 showed him falling in percentile 16.2 of the population for verbal IQ, percentile 6.0 for performance IQ, and percentile 6.0 for full scale IQ. A test administered in June 1998 showed him falling within percentile 0.1 for the verbal dimension, percentile 0.4 for the performance dimension, and percentile 0.1 for the full scale test.

1. Some years before 1998 the Applicant had a chromosome analysis which indicated that he had a condition known as 47, XYY, also known as Jacob's Syndrome.

1. An IQ assessment carried out in the middle of 2002 using an adult IQ test put him in the third percentile of his age group, a score described as placing him "on the cusp of the Borderline/Mild Intellectual Disability categories" . A counsellor's report at the time said:

"Generally speaking, individuals operating at this level in the workplace require a greater degree of supervision, would be slower at learning new skills - typically requiring greater explanations and needing more repetitions before achieving competence. Even then many tasks may be beyond them, and some tasks may never be completed at what would be called normal speed."

1. While he struggled at school, the Applicant has maintained himself in employment since he left school. Initially he worked for his father in the building industry, and did a bricklaying apprenticeship. This involved him completing some courses at Albury TAFE, for which he stayed with a family who spoke very well of him. At the time of the trial he was working as a scaffolder. He has formed a relationship with a young woman, with whom he had been living for some time before the trial, and was planning to marry. Throughout his life, he has received ongoing and extensive support and encouragement from his parents and two siblings. He tendered a large number of favourable character references.

Dr Rowe's Report

1. Dr Donald Rowe is a consultant neuropsychologist, neurophysiologist and clinical psychologist. He administered a battery of tests to the Applicant, was provided with the police Statement of Agreed Facts and reports of previous medical practitioners, medical health professionals and counsellors who had previously assessed the Applicant, and saw the Applicant over a period of about four hours. Dr Rowe produced a report dated 20 May 2010. In it he recounted, under the heading "Background" a prcis of the agreed facts relating to the circumstances of the offence and the Applicant's statement to the police.

1. Dr Rowe did not have any official record relating to the Applicant's criminal history, but was told about it by the Applicant's father, in a detail that a formal history of charges, convictions and penalties cannot adequately capture:

"Ryan's first offence was at sixteen years of age involving driving an unregistered vehicle on a reserve, he then lost his licence under the points system for speeding whilst on a provisional licence. He then drove again whilst disqualified from driving. Once again he was caught driving unregistered and unlicensed where on that occasion he drove off, abandoned the vehicle and was chased and apprehended on foot."

1. Dr Rowe's comment on the history was:

"Ryan does not have an extensive criminal history suggesting an absence of any antisocial type personality disorder. However, he does show a tendency for impulsive mannerisms and poor consequential thinking. Given his young age, he does have a relatively extensive traffic history that indicates a disregard for the law and a failure to learn from consequences.

In particular, the inability to inhibit behavioural responses relating to executive function impairments in ADD, as discussed further below, leads to risk taking behaviour such as drug and alcohol abuse, tobacco smoking, criminal behaviours, driving anger, traffic offences and accident proneness."

1. Dr Rowe recounted some matters of the Applicant's general background. These included a statement that he had had intellectual difficulties since the age of three, and that his parents said that even today "his intellectual ability is very limited and he cannot read or write. They said that he is open to persuasion and has limited understanding about what is going on with respect to his legal issues." Dr Rowe also gave a prcis of the previous medical and other related reports.

1. On the basis of tests that he had administered, Dr Rowe reported that the Applicant had both Mild to Moderate Mental Retardation (MMR) and Attention Deficit Disorder (ADD) as defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) published by the American Psychiatric Association.

1. While the Applicant's results considered overall were low, he scored considerably higher on some of the attributes that were measured than on others. Dr Rowe reported that he had:

"27. ... a broad range of cognitive disabilities with the majority of measures in the significantly impaired range and below the 1 st percentile, consistent with his previous intellectual assessments and his history of mild to moderate mental retardation (developmental disability).

28. Ryan's strengths were measured on relatively simple tests of short term and working memory with scores in the 3 rd to 14 th percentile for forwards and reverse digits memory, and 30 th to 32 nd percentile for visual spatial memory. He was also measured as showing reasonable reaction time measurements in the low average range and a category fluency score in the 22 nd percentile. Otherwise he was significantly impaired on the remainder of measures.

29. Ryan's neuropsychological test findings were consistent with the pattern of deficits that are often measured in cases of severe adult ADD and Mild to Moderate Mental Retardation.

30. Ryan's cognitive difficulties would have been expected to be of greater magnitude under the intoxicating effects of alcohol."

1. Dr Rowe's report included the following conclusions:

"3. Ryan's abnormal XYY genotype, particularly where mental retardation is present, in some cases is a known precipitator of aggressive behaviours and criminality. In my opinion, Ryan's good parenting and professional care and remediation has largely suppressed such antisocial tendencies, with the exception of during novel circumstances such as the situation which arose on 22 May 2009.

4. In my opinion, at the time of Ryan's offence on 22 May 2009 he was affected by the cognitive impairments that result from MMR and ADD, and the intoxicating effects of alcohol ... The cognitive impairments that result from Ryan's MMR and ADD are greater than that which is caused by either disorder alone. It follows that individuals such as Ryan who are afflicted with MMR, ADD and the XYY karotype are vulnerable to poor judgement, impulsivity and poor consequential thinking together with potentially thoughtless acts that can lead to aggressive behaviours and legal predicaments. In my opinion, the combined effects of Ryan's MMR, ADD and a genetic abnormality led to his offence on 22 May 2009 and that of prior traffic related offences ." (emphasis added)

1. Dr Rowe expressed his opinion about the effect of the ADD from which the Applicant suffered:

"Core symptoms of ADD include impulsivity, executive function difficulties (poor planning, organisation), poor consequential thinking, difficulties with concentration, and becoming irritable and upset by minor annoyances. Many individuals with ADD also suffer from alcohol and drug problems. One of the most significant features of ADD is an inability to learn from prior mistakes despite repeated punishment. These cognitive deficits are further exacerbated in patients with mental retardation due to their existing low cognitive reserve."

1. Dr Rowe also reported:

"Individuals, such as Ryan who are afflicted with MMR and ADD and are users of alcohol will suffer from greater cognitive impairments, than those afflicted by either disorder alone.

It follows that such individuals afflicted with MMR and ADD can be prone to rash or impulsive and aggressive behaviours with little or no thought of the consequences of those behaviours, particularly when they are under the influence of the intoxicating effects of alcohol. They can also be very easily externally regulated by vices in their environment such as alcohol, drugs or other behaviours such as driving when they should not, which they will often participate in out of impulsivity and as a form of self-medication to make themselves feel better.

As a result individuals such as Ryan can show severe lapses in judgement and engage in impulsive behaviours that can create social and/or legal problems for them, particularly when they are not fully treated and when they suffering from the intoxicating effects of alcohol. This is despite being given prior punishment and instruction, particularly whilst remaining untreated and suffering from mental retardation.

...

Alcohol being a depressant leads to further impairment in executive function and subsequent irrational judgement and risk taking behaviours. The immediate effects of alcohol has a further effect that alone alcohol can led to a disinhibited state where an individual can show increased aggression, socially hyperactive behaviour and/or impulsivity. The majority of people can still resist participation in illegal activities under the influence of high blood concentrations of alcohol. However, Ryan's MMD and ADD illnesses result in a greater susceptibility to the effects [of] alcohol and associated susceptibility to impulsive and aggressive behaviours.

In my opinion, Ryan's behaviour on 22 May 2009 was characteristic of an impulsive and unconsidered thought process brought about by the effects of his affliction with underlying developmental disability MMR and mental illness ADD, together with the intoxicating effects of alcohol. His behaviour is consistent with his previously reported impulsive and 'panic' like, behaviours without careful evaluation of the situation or consideration of the consequences."

1. In his view:

"... Ryan impulsively struck the victim without appropriately considering the potential damage he could inflict on that victim or the fact that he was carrying a glass at the time. In my opinion, his reasoning was limited to that of an aggressive and reactive child."

1. Dr Rowe was of the view that a treatment regime involving significant reduction or elimination of alcohol consumption, regular consultations with a psychologist to administer cognitive behavioural therapy, consultation with a medical practitioner concerning prescription of a mood stabiliser or antipsychotic, and certain other drugs, would be more likely to lead to the Applicant's successful rehabilitation than would imprisonment. He urged the court to consider a suspended sentence and bond, on condition that the Applicant participate in the recommended treatment programme.

Ground 1

1. The first ground of appeal is that in rejecting Dr Rowe's opinion as to a causal connection between the Applicant's cognitive impairments and the commission of the offence, her Honour took into account an irrelevant consideration.

1. In her remarks on sentence, the judge recorded that Dr Rowe had found a causal connection between the Applicant's mental impairment and the offence. The judge said that:

"One of the difficulties in accepting unequivocally the opinion of Dr Rowe is that his opinion is based, in part, on the version given to police by the offender, that is, that he was run at and punched to the left side of his face."

1. She noted that that version was not corroborated by eyewitnesses. She also referred to the offender's statement to the police, that he was not holding a schooner glass, as being contradicted by the evidence of the eyewitnesses and ultimately the forensic evidence. She found that the Applicant's version given to the police was unreliable, and that Dr Rowe's basing his opinion on it in part impacted upon the opinion of the doctor as to the causal relationship between the mental impairment of the Applicant and the commission of the offence and the degree of intoxication.

1. In my view, the sentencing judge erred in regarding Dr Rowe's opinion about the causal connection between the Applicant's mental condition and the incident the subject of the charge as being based in part on the incorrect version that the Applicant gave to the police. Rather, Dr Rowe's opinion was based upon his diagnosis of the Applicant as suffering from MMR, severe adult ADD and a genetic abnormality, and the known tendency for those conditions when accompanied by consumption of alcohol to result in impulsive and aggressive behaviour.

1. The Crown accepts that the Court might grant leave concerning this ground.

1. Leave should be granted concerning the first ground of appeal, and it should be upheld. The judge's view about the basis of Dr Rowe's opinion has the result that the judge sentenced the Applicant on an incorrect factual basis.

Ground 2

1. The second ground of appeal is that it was not open to her Honour to reject Dr Rowe's opinion as to the causal connection between the Applicant's cognitive impairment and the commission of the offence.

1. The manner in which the Crown submitted the sentencing judge should deal with the Applicant's mental shortcomings was:

"... other than on this night when he had consumed a large amount of alcohol, he has not had any difficulty as a result of those particular conditions. His mother gave evidence here today that she had never seen him behave in a violent way and particularly not with any degree of weapon. There is nothing on his criminal history to indicate such.

So it's submitted your Honour that his mental conditions had no or little impact on his offending. What it was was his consumption of alcohol."

1. Dr Rowe was not required for cross-examination. A court can sometimes reject evidence that has not been cross-examined on, if, for example, it was inconsistent with other evidence that the court accepted, or was inherently incredible ( Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 507; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-588; Caldwell v J A Neilson Investments Pty Ltd [2007] NSWCA 3; (2007) 14 ANZ Insurance Cases 61-724 at [96]; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 at [105]). However this is not such a case. In the absence of cross-examination it was not open to the judge to reject Dr Rowe's opinion that the incident was a consequence of the combined operation of the Applicant's mental disabilities and consumption of alcohol. Leave to appeal should be granted concerning this ground, and the ground should be upheld.

Grounds 3 and 4

1. Ground 3 is

"It was not open to Her Honour to treat the need for general deterrence the same as for an offender without the applicant's cognitive impairment."

1. Ground 4 is:

"Her Honour erred in not discernibly moderating the need for the sentence to promote general deterrence."

1. These two grounds can conveniently be discussed together.

1. The judge noted a submission on behalf of the Applicant that he was an inappropriate medium for general deterrence. She said:

"I am not persuaded that that is so. He is someone who had difficulty with his schooling and clearly had behavioural problems, but, with parental guidance and remedial assistance, he was able to leave school, obtain employment and earn the respect of his employers. He has been able to form a relationship and he has plans to marry.

But he is clearly not the mild-mannered young man his counsel is seeking to portray on sentence. Dr Rowe's reports contains histories from the offender's partner and family that he can be 'hot-headed', he does have a 'bad temper', he gets angry and he gets frustrated. They all stop short of giving a history of any displays of violence as an adult, contrary to the history given by his mother to Dr Rowe that as a youngster he was at times physically violent.

His ability to lead a relatively normal life, despite his mild intellectual impairment, demonstrates someone who functions at a level in society more normal than not. It has not impacted on is ability to obtain a driver's licence, nor licences to operate machinery."

1. The judge went on to note the evidence of the Applicant's mother that he had never shown signs of aggression and was not to her knowledge a drinker. The judge said that she did not accept the evidence as to never showing signs of aggression, nor as to his not being a drinker. The judge expressed the view that the Applicant's mother was unconsciously colouring her evidence. She concluded, on this topic:

"There remains a requirement for a sentence to reflect the need for general deterrence, even if not in full measure, as well as specific deterrence. Inquiries made by the Probation Service resulted in a disclosure of a consumption of alcohol in the company of his partner and friends but not considered by others to be excessive or problematic. Perhaps that is something which those others may now need to re-think."

1. In R v Hemsley [2004] NSWCCA 228 at [33]-[36] Sperling J identified mental illness as being relevant in sentencing in the following 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 (1999) 46 NSWLR 346 at [254]; 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].

Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSWCCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSWCCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]."

1. That passage was quoted with apparent approval by RA Hulme J (Macfarlan JA and Johnson J agreeing) in Minehan v R [2010] NSWCCA 140 at [48]. While the Applicant in the present case suffers from a mental impairment, rather than a mental illness, those remarks are applicable to his sentencing.

1. Concerning the reduced significance of general deterrence when sentencing an offender who had a degree of mental impairment at the time of commission of the offence, Grove J in Hemsley , (Dowd J agreeing) said at [5]:

"... It is not the case that persons afflicted by an underlying mental incapacity are exempt from any inclusion of an element of general deterrence in sentence assessment but it was requisite for consideration to be given to whether, in the circumstances of this appellant, that element should be included, excluded or ameliorated."

1. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ (Allen J agreeing) at 71 quoted with approval the statement of the Chief Justice of Victoria in R v Mooney (Supreme Court of Victoria Full Court, 21 June 1978, unreported) (reproduced with approval in R v Scognamiglio (1991) 56 A Crim R 81 at 86) that:

" ... General deterrence should often be given 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."

1. Gleeson CJ also quoted at 71 the statement of Badgery-Parker J in R v Letteri (NSWCCA, 18 March 1992, unreported) that:

"Whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produced the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise."

1. Gleeson J said, at 71, that he emphasised the concluding sentence in that passage.

1. In R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [254] Wood CJ at CL explained further:

"The reason for this approach lies in the circumstance that 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 facilities 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. Moreover, such a condition is inherent and its presence does not depend upon any element of choice."

1. It can be in accord with principle for a judge to sentence a person with a mental condition on a basis that includes an element of general deterrence: Sayin v R [2008] NSWCCA 307 at [25]-[28].

1. That is what the sentencing judge has done in the present case - she has taken into account the need for general deterrence, but not to the same extent as would be appropriate for a person who did not suffer from the mental impairment that the Applicant has. I would not uphold ground 3, because it mischaracterises the judge's process of reasoning.

1. In circumstances where the judge has to some extent moderated the need for the sentence to promote general deterrence, all that can remain of ground 4 is a contention that the judge attributed an incorrect weight to general deterrence, and ought to have accorded it less weight than she did. That is a difficult ground on which to succeed on an appeal against a discretionary judgment, such as a sentence.

1. In Minehan v R , RA Hulme J (Macfarlan JA and Johnson J agreeing), said at [59]-[60], concerning a submission that a particular factor had not been given appropriate weight by the sentencing judge:

"... as Johnson J recently observed in Majid v R [2010] NSWCCA 121:

[40] Circumstances in which matters of weight will justify intervention by this court are narrowly confined, whether the proceeding is a Crown appeal or an offender's application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [ 2010] NSWCCA 109 at [57].

The weight that a sentencing judge gave, or did not give, to a specific issue is impossible to determine with any precision. The only real measure is the sentence ultimately imposed."

1. It is not necessary to decide whether ground 4 is one that would have been upheld, if it were the only ground. The errors that have been established concerning grounds 1 and 2 have the consequence that, in performing the task that s 6(3) Criminal Appeal Act 1912 requires the court to perform, it will be necessary for the court to decide whether some other sentence should have been passed, other than the one that the judge passed. In so deciding, the court will take into account the extent to which general deterrence should have been treated as a relevant factor in sentencing the Applicant.

1. I say now that in my view, there is force in Ms Riggs' submission that the judge took every positive achievement of the Applicant, made in the face of great difficulty and only with enormous parental assistance, and turned these into reasons for not reducing the sentence (or, as is more appropriate when her Honour did not give general deterrence its full measure in the present case, for not reducing the sentence very much).

1. I will return to this topic below.

Grounds 5, 6, 7 and 8

1. Ground 5 is:

"Her Honour erred in her assessment of the objective gravity of the offence".

1. Ground 6 is:

"Her Honour erred in the use to which she put the favourable subjective circumstances found."

1. Ground 7 is:

"Her Honour erred in failing to state reasons for departing from the standard non-parole period."

1. Ground 8 was not pressed.

1. Ms Belinda Riggs appeared for the Applicant. Her submissions dealt with these grounds together. I shall do likewise.

1. The objective seriousness of the offence has a particular statutory role to play in the present case because the offence in question is one in relation to which a standard non-parole period has been set. Section 54A(2) Crimes (Sentencing Procedure) Act says:

"For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division."

1. Section 54B of that Act constrains the manner in which a court may go about fixing a non-parole period for an offence in relation to which a standard non-parole period has been set:

"(2) When determining the sentence for the offence (not being an aggregate sentence), the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.

...

(5) The failure of a court to comply with this section does not invalidate the sentence."

1. The judge described the objective characteristics of the injury that Mr Uren had sustained, and repeated Dr Benger's description of them as "horrific" . She referred to a victim impact statement from Mr Uren, in which he described the shock and anxiety he had sustained at being told he was to lose his right eye, the trauma associated with the surgery and the aftermath, and the impact the loss of his eye has had upon his ability to lead a normal life. Mr Uren works as a carpenter, and thus his lack of stereoscopic vision interferes with his work. The scarring of his face, which required about 100 stitches, cannot be hidden and distresses him. The judge said that the offence "falls at the upper end of the range of injuries sustained".

1. Her Honour recognised that some injuries that are even more serious than those of Mr Uren fell within the scope of the offence. She then went on to say "... this is an offence, the consequences of which do fall, as I have found, at the upper end of the range, if not at the top."

1. Let me say clearly that this "it is A if not B" form of words is not a desirable one to use in sentencing. Considered by itself, it has two possible meanings. One is that the objective seriousness is in the upper end of the range, but is not at the top of the range. The other is that it is at the upper end of the range, and might also possibly be at the top. In the overall context of the judge's sentencing remarks, however, it is fairly clear that she intended the first of these possible meanings.

1. One respect in which the judge erred in her assessment of objective seriousness concerns the identity of the "range" that the judge was considering. The task that application of ss 54A and 54B requires to be performed is to assess the objective seriousness of the offence . While evaluating the seriousness of any injury that the victim has sustained is part of that task, it is not the whole of the task. I accept Ms Riggs' submissions that the absence of premeditation and the fact that the offence comprised one blow only are relevant to its objective seriousness, and that the judge has shown no sign of having taken them into account.

1. Further, assessment of the objective seriousness of an offence should be carried out bearing in mind the remarks of this Court (Spigelman CJ, Wood CJ at CL and Simpson J) in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [85]-[88]:

"It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender (see for example R Fox and A Freiberg, Sentencing , 2nd ed (1999) South Melbourne, Oxford University Press, at pars 3.506 to 3.510).

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 (for example duress, provocation, robbery to feed a drug addiction), 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, in so far 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: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.

Questions of degree and remoteness arise which will need to be developed in the case law. There are potential areas of overlap. For example, impaired mental or intellectual functioning can go to either, or both, the seriousness of the offence and punishment, so far as deterrence is concerned.

In an assessment of the objective seriousness of the subject offence it seems to us that attention must accordingly be given to the factors mentioned above. Some of these relevant factors will be elements of the offence itself. Others will fall within the list of aggravating and mitigating factors referred to in s 21A(2) and (3) of the Act, so far as they relate to purely objective considerations."

1. Though the judge did not specifically refer to the aggravating and mitigating factors listed in s 21A Crimes (Sentencing Procedure) Act , she fairly clearly had them in mind, as she listed various of them in language closely approximating that of s 21A. She found, echoing s 21A(2)(g), that "the ongoing emotional and physical harm suffered to be substantial" . She found, echoing s 21A(2)(c), that "the use of the glass constitutes the use of a weapon" .

1. The first mitigating factor her Honour recognised was that the Applicant had pleaded guilty, and done so at the first opportunity. She said she allowed him a 25% discount for his plea. She also found, as mitigating factors, that the Applicant was truly remorseful and contrite, that he had shown empathy for the victim (echoing s 21A(3)(i)), that he was highly unlikely to re-offend (s 21A(3)(g)), and that he had good prospects of rehabilitation if he undertook the treatment regime recommended by Dr Rowe (s 21A(3)(h)). She found that he was of otherwise good character apart from his traffic matters (s 21A(3)(f)).

1. However her Honour did not use the aggravating and mitigating factors in the way the statute requires. Her Honour referred to the 10 year maximum penalty for the offence. Her conclusion was that, " having regard to the objective seriousness of the offence and the subjective circumstances of the offender, it falls above the mid-range ... even taking into account the plea of guilty." This is the only passage in which the judge referred to the seriousness of the offence. However, it is not the assessment of objective seriousness of the offence that is called for by ss 54A and 54B, but rather an overall assessment of the seriousness of both objective and subjective matters relevant to the offence.

1. Further, the judge has failed to carry out the task that s 54B(3) and (4) requires, of identifying reasons, of a type set out in s 21A, for setting a non-parole period shorter than the standard non-parole period. The use to which she put the various factors in s 21 was to arrive at a conceptual amalgam of the objective seriousness of the offence and the subjective circumstances of the offender. She then compared this conceptual amalgam with a supposed " mid-range " . Whatever that " mid-range" might be of, it is not the mid-range of objective seriousness of offences that s 54A identifies as the relevant concept for imposition of a parole period that takes into account the standard non-parole period.

1. For these reasons, I would uphold grounds 5, 6 and 7.

1. Her Honour said that had the matter gone to trial, she would have imposed a head sentence of 6 years and 6 months imprisonment. She concluded that, of the sentencing options available, only a sentence of full-time imprisonment would satisfy the requirements of general and specific deterrence. She made a finding of special circumstances by reason that his "mild intellectual impairment ... will make his time in custody more onerous" , that it would be his first time in custody, and "there is a need for a lengthy period of supervised parole to ensure that when he is released he is provided with the assistance he will need to minimise the risk of re-offending and enhance his prospects for rehabilitation."

1. Though she did not spell out the mathematics, it seems as though her Honour arrived at the head sentence by calculating 75% of the 6 years and 6 months imprisonment that she said she would have imposed had the matter gone to trial, and then arrived at the non-parole period as being approximately 60% of the head sentence thus arrived at.

1. The errors in the manner by which the judge arrived at the sentence require this court to carry out the task prescribed by s 6(3) Criminal Appeal Act and decide whether some other sentence is warranted in law and should have been passed.

1. Dr Rowe's recommendation about sentence (para [39] above) would have a lot to recommend it if the only relevant matter in sentencing was what would be most likely to rehabilitate the Applicant. But sentencing must take into account numerous objectives (s 3A Sentencing Procedure Act ), not all of which tend in the same direction, and of which rehabilitation is only one.

1. It is undoubtedly serious to glass a person and cause them to lose an eye and have their face scarred. The use of a weapon, and the ongoing emotional and physical harm suffered by Mr Uren, including the complications that Dr Benger's latest report describe, must also enter into assessment of the objective seriousness of the offence. However the objective seriousness of the present offence is reduced because of the impulsiveness of the action, being more a spur of the moment reaction than in any way planned; it consisting in a single blow; and its cause lying in the mental deficiencies of the Applicant. Further, it is not as though those mental deficiencies manifested themselves in violence on the night of the incident because the Applicant deliberately engaged in a course of conduct that he knew had a real risk of precipitating violence. There had not previously been an incident where consumption of alcohol had been part of the reason why he had been violent, nor is there any reason to believe that he had been warned that he was at risk of being violent if he consumed alcohol. His situation is not like that of the mentally disturbed person who ignores medical advice and ceases to take prescribed medication. The possibility (it can be put no higher) that some of the damage to Mr Uren's eye arose from the intervention of the good Samaritan does not lessen the objective seriousness of the offence, because intervention by a bystander is part of the ordinary and predictable range of consequences that might follow when someone is injured (cf Chapman v Hearse (1961) 106 CLR 112 ). Overall, I would assess the objective seriousness of the offence as lying about the midrange.

1. The table of standard non-parole periods applies directly only to sentences imposed after a trial: R v Way at [68]-[69]. However, s 54B(2) has the effect that, even for offences concerning which there is a plea, the court can depart from the standard non-parole period only if the court gives reasons were so doing. That does not mean that the standard non-parole period must be the starting point of the court's reasoning on sentence, just that, by the end of the court's reasoning on sentencing, it must be clear why the judge has departed from the standard non-parole period, if he or she has done so. The permissible reasons, under s 54B(3), are only those referred to in s 21A, but the list of mitigating factors in s 21A(3) includes, in (k), that the offender has pleaded guilty. Thus the fact that there has been a plea can itself be a reason for imposing a non-parole period that is less than the standard non-parole period.

1. In the present case, if a 25% discount for the Applicant's plea is allowed from the standard non-parole period, and no other adjustment is made, a non-parole period of 3 years results. That in itself is ground for believing that the non-parole period that the judge imposed (less than a month short of 3 years) is too long.

1. I would agree with all of the mitigating factors that the judge found ([81] above), and with all the reasons why she found special circumstances ([85] above]). For the purposes of re-sentencing, an affidavit of the Applicant and an affidavit of his solicitor were read. The judge's prediction that the Applicant's intellectual impairment will make his time in custody more onerous has proved correct. On 24 September 2010 he asked a fellow inmate how to spell something, and that encounter turned into a fight where the other inmate threatened to stab him. The Applicant has been in protective custody since then, avoids all contact with other inmates, and stays in his cell all the time except when he goes to courses. He does not even talk to people in his courses as he is scared. He has no charges or punishments for inappropriate behaviour.

1. The Applicant's mental condition is such that general deterrence has a significantly reduced role by comparison to that which it would have for a person without the Applicant's disabilities. While there were some reports of violent or aggressive outbursts from the Applicant when he was a child, he has no history of violence as an adult. The only significant role for specific deterrence seems to be as encouragement for him to avoid alcohol. The judge's description of him as functioning "at a level in society more normal than not" seems to me to underplay the extent of his disability. His disability is more than the "mild intellectual impairment" to which the judge referred in the passage quoted at [52] above. Rather, his mental retardation has been put by Dr Rowe as being mild to moderate, and in addition he has ADD.

1. If it were not for the Applicant's plea, the appropriate sentence, in my view, was a non-parole period of three years, with a balance of term of two years. After giving a full 25% allowance for the plea, the resulting sentences are a non-parole period of 27 months, and the balance of term of 18 months. The appropriate course is to quash the sentences, and re-sentence the Applicant accordingly.

1. In these circumstances there is no occasion to consider the ninth ground of appeal, which contended that the sentence was manifestly excessive.

1. I propose the following orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Set aside the sentence in the court below.

4. In lieu thereof, sentence the Applicant to imprisonment for a non-parole period commencing on 31 May 2010 and expiring on 30 August 2012, with a balance of term expiring on 28 February 2014.

1. RS HULME J: I agree with Campbell JA.

1. HOEBEN J: I agree with Campbell JA.

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Decision last updated: 10 June 2011