Regina v Peter James Krempin

[2003] NSWCCA 263

Reported Decision: 142 A Crim R 56

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Peter James Krempin [2003] NSWCCA 263 revised - 17/09/2003
HEARING DATE(S):	9 September 2003
JUDGMENT DATE:	9 September 2003
JUDGMENT OF:	Hidden J at 49; Greg James J at 50; Bergin J at 1
DECISION:	Leave to appeal granted. In lieu of non-parole period of 21 months fixed by the sentencing judge, the Court fixed a non-parole period of 18 months.
CATCHWORDS:	Criminal Law - Application for leave to appeal in respect of sentence - whether the sentencing judge properly took into account the Applicant's mental disorder.
LEGISLATION CITED:	Crimes Act 1900 (NSW)
CASES CITED:	R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48
PARTIES :	Peter James Krempin (Applicant) Crown (Respondent)
FILE NUMBER(S):	CCA 60202/03
COUNSEL:	Mr H Dhanji (Applicant) Ms E Wilkins (Respondent)
SOLICITORS:	Brian J. Sandland / Legal Aid Commission of New South Wales (Applicant) Director of Public Prosecutions (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0331
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

- 19 -

60202/03

HIDDEN J
GREG JAMES J
BERGIN J

9 September 2003

REGINA v PETER JAMES KREMPIN

Judgment

1 BERGIN J: The applicant, Peter James Krempin, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Coolahan at Newcastle District Court on 5 December 2002. The applicant pleaded guilty to one count of armed robbery with an offensive weapon and one count of assault with intent to rob armed with an offensive weapon under s97(1) of the Crimes Act 1900 (the Act). The maximum penalty under the Act is twenty years imprisonment.

2 The applicant was sentenced to concurrent sentences of four years imprisonment on each offence to commence on 19 November 2002 and expire on 18 November 2006. The sentencing Judge fixed a non-parole period of twenty-one months to expire on 18 August 2004.

3 The two offences for which the applicant was sentenced occurred on the night of 18 June 2002. At 6.30pm the applicant went into the shop area of the Ampol service station in Hamilton, a suburb of Newcastle, walked behind the counter and held a Swiss army knife close to the attendant’s right side at his rib area. He directed the attendant to open the drawer and to get the money out pointing the knife towards the cash register and then once again holding it at the attendant’s waist.

4 The attendant opened the drawer and gave the applicant $150 in bank notes. The applicant then directed the attendant to get down onto the floor and remain there for thirty seconds. He then left the service station area.

5 At about 9.40pm that night the applicant went into the shop at the Mobil service station in Newcastle West where there were two attendants present. The applicant held the knife in his right hand and pushed it towards one of the attendants so that it “just touched” the left side of his stomach. That attendant could smell alcohol on the applicant’s breath and noticed that he was swaying around. The applicant commenced talking to the attendant and was mumbling and slurring his words. The same attendant asked the applicant what was wrong and he replied, “I’ve had a bad night”. The attendant asked: “What would you like?” to which the applicant responded: “Cigarettes”. The attendant then “patted” the applicant on the shoulders and asked the applicant to go around to the other side of the counter, which he did. The applicant then left the premises without any cigarettes and it was noticed that he was staggering as he walked away.

6 The applicant was arrested that evening at 10.45pm and had in his possession a red-handled Swiss army knife, found in his jacket pocket. This had been a gift from his sister which he kept on his key ring. The knife had a number of implements on it and the blade of the knife itself appears to have been approximately 8 centimetres in length. Whilst committing these offences the applicant was dressed in a jacket with a hood over his head but with nothing covering his face.

7 The applicant was born on 13 April 1972 and was 30 years of age at the time of these offences. The applicant’s parents divorced when he was 3 years of age and he was raised by his mother. It is apparent that he was sexually abused by an older step-brother when he was approximately 9 or 10 years of age. He completed high school to Year 11 but had during that period, at about the age of 12 or 13, started drinking alcohol. By the time he left school, he was drinking to excess most weekends.

8 A further complicating feature to the applicant’s emotional development was that his mother was a lesbian. He reported to a treating psychologist that he was teased at school about this aspect of his home life and that he felt awful and angry but kept it all inside.

9 After leaving school, the applicant enlisted in the RAAF and completed his basic training. During this time he would drink daily and by the time he was discharged from the RAAF in 1993 he was an alcoholic. After his discharge from the RAAF the applicant travelled and worked as a casual mechanical fitter for a number of companies in one of which he was promoted to Manager. However he left that company on very bad terms, apparently because of his drinking. He also had a number of relationships, the last of which was apparently volatile and was terminated in April 2002. It is also clear that the applicant gambled heavily and saw himself as being addicted not only to alcohol but also to gambling.

10 The applicant had sought medical assistance for his alcohol addiction from his general practitioner, Dr Peter McGeogh who reported that he became aware of the applicant’s excessive alcohol use from at least early 2000. He referred the applicant to a psychiatrist, Dr Kevin Helme, who saw him on 27 November 2000. At that time the applicant had symptoms of anxiety, panic attacks and depression. He also had difficulties in sleeping. He was prescribed Aropax. In 2001 the applicant was apparently prescribed a drug, Campral, designed to reduce his desire to drink. In early 2002 he was prescribed another drug, Antabuse. During this period the applicant was keen to stop drinking without the aid of outside agencies, however on 18 April 2002 he resigned from his then employment and entered a detox program at Lowrie Lodge.

11 On 14 May 2002 he applied for and was accepted into the William Booth Institute, Bridge Program for alcohol rehabilitation, run by the Salvation Army in Sydney. At the Institute he was diagnosed by a Dr Chong as suffering from “severe depression and a generalized anxiety disorder”, for which he was prescribed medication, probably Benzodiazepines. The applicant completed Stage I of the Bridge Program and on 4 June 2002 was transferred to Bridge House at Newcastle to participate in Stage II of the Program. However the applicant was refused admission because he declined to supply a urine sample. He apparently became anxious about providing a sample whilst being observed.

12 Three days later, on 7 June 2002, the applicant returned to the William Booth Institute to seek re-entry into the Program. Although he was admitted, the applicant’s stay lasted only 5 days and he was asked to leave apparently as a result of his depressive problem. He was given advice that another facility in Sydney could provide him with more intensive, appropriate therapy. Rather than attending Sydney, the applicant decided to stay in Newcastle apparently in the hope that he would be admitted to the James Fletcher Psychiatric Hospital in Newcastle.

13 On 13 June 2002 the applicant met with his mother in Newcastle and she took him to the James Fletcher Hospital where he was assessed. The notes of that assessment indicated that he was having chronic thoughts of self-harm and was also suffering from alcohol abuse. It was also noted that he had reported suffering auditory and visual hallucinations with high intakes of tobacco (in excess of 30 a day), caffeine (in excess of 6 coffees a day) and alcohol (in excess of 20 standard drinks a day of spirits). The notes also referred to the fact that the applicant had been prescribed Mogadon and Ducene. These drugs were described as benzodiazepines with a high habit forming potential, resulting in clouded consciousness and depressed mental function when taken with alcohol. The side effects were noted to range from poor concentration and impaired memory to disorientation and bizarre or uninhibited behaviour.

14 James Fletcher Hospital did not admit the applicant and between 13 and 16 June 2002 he lived with his mother and remained mostly sober. However on 16 June 2002 he began to drink again and his mother refused to keep him at home in a drunken state. On 18 June his mother took the applicant to Newcastle and he subsequently obtained accommodation at the Cambridge Hotel. The last memory the applicant has of 18 June 2002 was his drinking bout at the Cambridge Hotel for most of that afternoon. It is clear that the applicant does not have any recollection of the offences that he committed.

15 On 6 August 2002 the applicant was admitted to James Fletcher Hospital after a suicide attempt. He was diagnosed with chronic dysthymia and alcohol induced depression with narcissistic behavioural traits.

16 The applicant attended Dr Anthony Nicholas, a clinical and forensic psychologist on a number of occasions between September 2002 and the date upon which he was sentenced, 5 December 2002. Dr Nicholas’ report of 4 November 2002 was in evidence before the sentencing judge. Dr Nicholas reported that the applicant’s symptoms on presentation were indicative of depression and anxiety and that “Psychopathology is suspected by the level of chronic alcohol use/abuse and comorbid conditions of depression, generalised anxiety and gambling” (3.2.2). Dr Nicholas conducted the Personality Assessment Inventory (PAI) test which provided the diagnostic elements to the applicant’s psychological state of alcohol dependence, post-traumatic stress disorder, major depressive episode and psychoactive substance dependence (4.2.2).

17 On 4 November 2002 Dr Nicholas considered the applicant to be “at risk of decompensating, precipitating severe psychotic illness” and under the heading “Diagnosis” reported:

5.2.1 Sessions which Peter Krempin has attended to date
evidenced a man who is amenable to support counselling and psychotherapy.

5.2.2 Peter Krempin’s need to abstain from alcohol is a
mandatory requirement rather than a recommended option. Also, there should be a review of the medication which is currently being prescribed for his states of anxiety and depression. It is evident that the interplay of Peter Krempin’s alcohol dependence, depression and psychoactive substance dependence aggravate elements of trauma which echo his childhood abuse and other experiences.

5.2.3 With respect to the relevance of these findings to the offences for which Peter Krempin has accepted responsibility, the following needs to be taken into account:

· Peter Krempin has no history of violent behaviour. The propensity for such is not identified in the signs and symptoms with which he presented in the sessions, or the psychometric data evidenced in the formal assessments undertaken of him.

· The mix of alcohol and psychoactive substances needs to be a consideration as to whether at the time of his offences, Peter Krempin was in a temporary state of psychosis. This is by reason of his immediate history to the robbery as chronologically delineated in section 2.5.3.3 of this report.

5.2.4 It is unlikely that Peter Krempin will reoffend in a similar manner. Indeed, it is unlikely that, in a sober state, he would reoffend at all. The course of Peter Krempin, from a psychological point of view, is very clear:

· Complete absence from alcohol and maintenance in an alcohol rehabilitation programme, such as Alcoholics Anonymous.

· Continuing attendance in therapy to address childhood trauma, chronic depression and anxiety. This should be done through Cognitive Behavioural Therapy (CBT) which would need to address symptom reduction and improved function.

· Input with respect to pharmacological management of his chronic states of depression and anxiety.

18 The conclusion to Dr Nicholas’ report was as follows:

6.1 Given the evidence, as outlined in this report, based on
signs and symptoms in the sessions attended, as well as the psychological conditions found on formal examination, it is considered that Peter Krempin’s substantive personality is prosocial and proactive. He has a family which he considers is informed and very supportive, but to whom “I have been unable to express my emotions and feelings”.
6.2 Such potential has been subsumed in the chronicity of his
alcohol abuse, which more than likely is predicated on unresolved childhood trauma. None of this history excuses the offences with which he has been charged, but does provide explanation for his actions for which is ashamed and contrite.
6.3 Peter Krempin accepts that he requires long term therapy, probably over a period of 18 to 24 months, at least on a monthly basis, underpinned by alcohol rehabilitation and pharmacological management. That therapy would provide him with opportunity to resolve his substantively traumatised and repressed state. It would remove a significant input into his chronic alcoholism, as well as his comorbid conditions of depression and generalised anxiety.

19 Between the time of his release from James Fletcher Hospital after his suicide attempt and the date of his sentence the applicant attended daily Alcoholics Anonymous meetings as well as attending weekly alcohol counselling sessions at Lorna House and subsequently the Toronto Poly Clinic.

20 The sentencing Judge recited the facts of the offences as taken from the document entitled “Facts” apparently prepared by the Police. Those facts do not differ from what is recounted earlier in this judgment save in two respects relating to the second offence at 9.40pm, assault being armed with intent to rob.

21 Firstly, the document and the ROS refer to the applicant as having “held the knife against” the attendant’s “stomach”. The attendant’s evidence was that the applicant pushed the knife towards him and “it has just touched the left side of my stomach”. Secondly there is no evidence in the “Facts” document or the ROS of the attendant having “patted” the applicant on the shoulders.

22 The sentencing Judge referred to and accepted the applicant’s lack of recollection of the offences as having been affected by the applicant’s serious alcoholism. His Honour said:

The fact that he is an alcoholic and that this may have influenced the commission of the offences is, of course, not a mitigating factor but it may well explain conduct on his part which seems otherwise out of character.

(ROS: 5.5)

23 After referring to the vulnerability of the petrol station attendants and the experience of the courts that the victims of armed robberies frequently suffer long term consequences the sentencing Judge said:

It is abundantly clear that offences of armed robbery and attempted armed robbery, endemic as they are, are to be regarded most seriously. That this is so is evidenced by the maximum penalty provided by the Legislature and by numerous decisions of the Court of Criminal Appeal over the years including, of course, the guideline decision in Henry v Ors. It goes without saying, that unless most exceptional circumstances can be demonstrated, sentences for this type of offence must involve significant terms of full time custody. Aspects of general deterrence and the protection of the community must always feature highly in the sentencing process.

(ROS: 6.3)

24 After referring to the subjective matters, including the contents of the reports from Dr McGeogh and Dr Nicholas, the sentencing Judge, in referring to part of Dr Nicholas’ report said:

As to the connection between the offender’s psychiatric or psychological conditions and the offences, Dr Nicholas said that account should be taken of the fact that the offender had no history of violent behaviour and that the propensity for such was not identified in the signs and the symptoms with which he presented in sessions or in psychometric data evidenced in the formal assessments undertaken.”

(ROS: 15.5)

25 Of Dr Nicholas’ question as to whether the applicant was in a temporary state of psychosis at the time of the offences (5.2.3), the sentencing judge said:

… no medical evidence has been placed before the court which would enable a conclusion to be drawn that the offender was psychotic at the time of the offences.

(ROS: 15.9-16.1)

26 After carefully reviewing the balance of Dr Nicholas’ report the sentencing judge said:

Perhaps most importantly, the findings expressed by Dr Nicholas seem to me to be the logical conclusions to be drawn, even from a lay point of view, from all the circumstances in the case. There is no doubt that the offender is an intelligent person who has managed, albeit with an alcohol problem of some significance, to remain in regular employment until comparatively recently. I accept that his excessive use of alcohol started at a very early age and there obviously has to be some reason for this. That reason, I think, lies in his assertions that he was sexually abused when he was young and in the isolation that he imposed upon himself as a result.

(ROS: 17.5)

27 The sentencing judge concluded his remarks as follows:

Having heard evidence and submissions, I stood the matter over for sentence and remanded the offender in custody. I accept the submissions made by Mr Austin with the exception that the sentences should be less than the guideline sentence set in Henry v Ors . This, in many ways, is a sad case. The offender is a person who, despite obvious difficulties and an addiction to alcohol, has led a relatively blameless and worthwhile life until he turned 30 years of age after which he committed these two particularly serious offences, neither of which he can recall. There can be no doubt that the offences were entirely out of character. As I say, I accept the fact that he has no recollection of them.
There is no doubt that at the time of the commission of the offences he was heavily under the influence of alcohol. This is even obvious from the statements of the victims of the second offence who describe him as mumbling and staggering. He did not even wait around to receive the cigarettes that he apparently sought to obtain from the commission of that offence. As I said earlier, I have no doubt that there was some significant underlying factors which led to the offender becoming a chronic alcoholic apparently at a very early age.
I am also satisfied that there are good prospects for the offender’s rehabilitation with a consequent likelihood that he will not re-offend. However, the fact remains that objectively, these offences are very serious. His state of intoxication, in my view, cannot be used in mitigation as Mr Austin fairly and properly conceded. There are no most exceptional circumstances here which would justify the imposition of other than full time custodial sentences. Further, the fact is that in both offences, the knife was held very close to the victims. In my view, this is an aggravating factor.
However, for all the reasons advanced by Mr Austin and also because of the fact that this will be the offender’s first custodial sentence, I am of the view that findings of special circumstances are appropriate.
Taking into account all of the above matters including those which I am required to take into account pursuant to section 21A of the Crime Sentencing Procedure Act, it seems to me that in each case the appropriate sentence is one of four years imprisonment.

For the reasons advanced by Mr Austin, I am of the view that those sentences should be served concurrently. They should commence on 19 November 2002 to take into account all the offender’s pre-sentence custody. Having found that there are special circumstances I would, in each case, fix a non-parole period of 21 months.
Accordingly, on each offence the offender is convicted and sentenced to four years imprisonment. Those sentences are to commence on 19 November 2002 and expire on 18 November 2006. In each case I fix a non-parole period of 21 months to expire on 18 August 2004. I direct that the offender be eligible for parole on 18 August 2004. The parole period exceeds one-third of the non-parole period as I have found that there are special circumstances as outlined in my remarks on sentence.
MATTERS INTERPOSED.
I need to make a sentence addition to the matter of Krempin that I missed out and I will simply put it on record now that in that matter I allowed 25 per cent for the total value of the pleas and I will let Mr Austin know.

(ROS 20.5-22)

28 The ground relied upon by the applicant is that the sentencing judge erred in failing to properly take into account the applicant’s mental disorder.

29 The applicant submitted that Dr Nicholas found that the applicant was suffering from related conditions of depression, anxiety, alcohol dependence, and trauma stemming from childhood abuse. It is submitted that although the sentencing judge was clearly aware of the evidence relating to the applicant’s mental disorder, he failed to properly take it into account in determining the sentence.

30 The applicant submitted that the history of events between April 2002 and 18 June 2002 demonstrates that the applicant’s mental condition and alcoholism impacted upon each other. It was said that at the very least, his mental condition interfered with his attempts at rehabilitation prior to the offence. Additionally, it was submitted that it may also have had a more direct input to the offences. In this regard, the applicant referred to the question posed by Dr Nicholas as to whether at the time of his offences, the applicant was in a temporary state of psychosis.

31 The applicant relied upon R v Israil [2002] NSWCCA 255 in which Spigelman CJ, with whom Simpson and Blanch JJ agreed, discussed the impact of mental disorders on sentencing and said at par [23]:

To the extent that mental illness explains the offence – as her Honour found to be the position in the present case – then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments or to control his or her faculties and emotions, will impact upon the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put in Henry , supra, at [254]:
“ … the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive faculties or emotional restraints and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon questioning.”

32 The applicant could not remember anything about the offences because his mind was befuddled with alcohol and probably prescription medication. There is no doubt that the applicant has expressed shame and contrition and concern for any emotional harm he may have caused to the petrol station employees. It was submitted that the sentencing judge erred in failing to properly asses the appellant’s culpability in the light of his disability and that he failed to properly take into account the relationship between the applicant’s alcoholism and mental disorder in determining whether that alcoholism could be regarded as a mitigating factor.

33 The applicant relied upon a portion of what Wood CJ at CL said in R v Henry (1999) 46 NSWLR 346 at par [273]. In that case, the Court rejected the general proposition that addiction to drugs should operate in mitigation of sentence. However Wood CJ at CL said:

… It may also be relevant as a subjective circumstance, insofar as the origin or extent of the addiction, and any attempts to overcome it, might:
(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword (e.g. Lewis Court of Criminal Appeal, New South Wales, 1 July 1992);
(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as a result of the medical prescription of potentially addictive drugs following injury, illness or surgery (cf Hodge Court of Criminal Appeal, New South Wales, 2 November 1993; and Talbot ); or where it occurred at a very young age or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;
(iii) justify special consideration in the case of offenders judged to be at the “cross-roads”: Osenkowski (1982) 5 A Crim R 394.

34 The applicant submitted that his depressive illness suggested greater weight could be given to rehabilitation and that any reduction in general deterrence or other factors should not be counterbalanced by a consequent increase in specific deterrence. In all the circumstances, it was submitted that the sentencing discretion miscarried.

35 The Crown referred the Court to the general principle that where there is a causal relationship between mental disorder or abnormality suffered by an offender and the commission of the offence, general deterrence should often be given very little weight because such an offender is not an appropriate medium for making an example to others: R v Scognamiglio (1991) 56 A Crim R 81. Gleeson CJ referred to that principle in R v Engert (1995) 84 A Crim R 67 and to the purpose of criminal punishment, with reference to Veen (No 2) (1988) 164 CLR 465, including protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The Chief Justice said at 68:

Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence might, at the same time, increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case and in the light of the purposes to be served by the sentencing exercise.

36 The Crown submitted that in the case of an offender suffering from a mental disorder, general deterrence may be of lesser importance but at the same time the protection of society and personal deterrence may be of greater importance. It was submitted that these principles only apply in cases where the offender suffers from a “significant” mental illness.

37 The Crown submitted that in the present case, the applicant was not suffering from a significant mental disorder in the relevant sense. He suffered from anxiety and chronic depression and was addicted to alcohol with some dependence on prescription drugs. The sentencing judge accepted the medical evidence that the applicant was suffering from chronic dysthymia, alcohol-induced depression and narcissistic traits.

38 It was submitted that the sentencing judge carefully reviewed the psychological evidence. I agree. The sentencing judge found the offence was committed because the applicant was heavily under the influence of alcohol and that had led him to behave in a way that was entirely out of character. Another matter relied upon by the Crown was that once the applicant realized he was facing a term of imprisonment he was able to dramatically reduce his alcohol intake pending sentence. It was submitted that this was illustrative of the need in the applicant’s case for the sentence to reflect personal deterrence, along with the need to protect the public.

39 The sentencing judge found that the applicant knew that he had a drinking problem and that he set out to get “blotto” on the day in question. The sentencing judge also found that the applicant knew there was a risk he would “grey out” and not know what he was doing while he was drunk. These findings are based on the answers given by the applicant in his ERISP interview. It was submitted that far from failing to make the connection between the applicant’s mental condition and his alcoholism, the sentencing judge carefully reviewed the medical evidence and accepted there was a link between the applicant’s background and his alcoholism. It was submitted that the sentencing judge’s discretion did not miscarry and that his Honour approached the matter as a case of voluntary intoxication.

40 It is true that the sentencing judge carefully reviewed the medical and psychological evidence. However he did not consider or make any finding as to whether the applicant’s depression and anxiety had any impact upon or causal connection with the commission of the offences. That is a quite separate issue from the finding that the sentencing judge did make that he was not satisfied that there was evidence from which he could find that the applicant was in a temporary psychotic state at the time of the commission of the offences.

41 The question posed by Dr Nicholas as to the possible temporary psychotic state was expressed in a rather elliptical fashion as follows:

The mix of alcohol and psychoactive substances needs to be a consideration as to whether at the time of the offences, Peter Krempin was in a temporary state of psychosis. This is by reason of his immediate history to the robbery as chronologically delineated in section 2.5.3.3 of this report.

42 The immediate history in section 2.5.3.3 included reference to the diagnosis on 14 May 2003 of “depression and generalised anxiety disorder”. It is apparent that this disorder was viewed to be serious enough to warrant the prescription of medication, notwithstanding the medical practitioner’s awareness that the applicant also suffered from alcoholism. On 13 June 2002, just five days before the commission of the offences, the hospital notes referred to the applicant as having symptoms including “chronic thoughts of self harm”. The possible side effects of the combination of alcohol and the prescription drugs were noted to include “impaired memory to disorientation and bizarre or uninhibited behaviour” (2.5.3.3).

43 The applicant certainly suffered from impaired memory in respect of the events of the night of these offences. The circumstances of the second offence present as rather bizarre behaviour for an armed person intending to rob others. Not only was the attendant whose stomach the knife “just touched” able to physically interact with the applicant by “patting” him on the shoulders, but he was also able to move the applicant away from him to the other side of the counter. The applicant’s departure from the premises whilst the attendant was reaching up to obtain the cigarettes for which the applicant had asked is also very odd.

44 The Crown suggests that the applicant’s disorder was not significant in the relevant sense. In any event the application of the principle referred to in Scognamiglio is not predicated upon the disorder being “significant” although it appears that in most cases in which the principle is applied the disorder is categorised as significant: Wright (1997) 93 A Crim R 48, per Hunt CJ at CL at 50-51, with whom Gleeson CJ and Hidden J agreed.

45 I find it difficult to agree with the Crown’s submission in the light of the medical and psychological evidence that was before the sentencing judge in this case. The presence of the applicant’s disorder had necessitated medication and had impeded his attempts to obtain appropriate treatment from the relevant institutions for his alcoholism. It is apparent that the applicant required more “intensive” treatment because of the overlay of his depression and anxiety disorder. Although the sentencing judge concluded that there were some “significant underlying factors” which led to the applicant becoming a chronic alcoholic, and although he was not satisfied that there was temporary psychosis at the time of commission of the offences, he did not actually take the applicant’s depression and generalised anxiety disorder into account at all in the sentencing process. I am satisfied that this was an error in the exercise of the sentencing judge’s discretion warranting the grant of leave to appeal.

46 Another matter about which complaint is not made is that the sentencing judge viewed the seriousness of these two offences as equal thus sentencing the applicant to four years imprisonment on each to be served concurrently. It seems to me that although the second offence was serious it was less serious than the first offence. The non parole period fixed by the sentencing judge was less than the statutory ratio, indeed at 21 months it was less than half the fixed sentence of 4 years.

47 The applicant has made quite a deal of progress towards rehabilitation whilst in prison and the further minimum time during which he must stay in prison will enable him to continue that process. In this regard I have taken into account the further evidence from the applicant in an affidavit sworn by him on 4 September 2003 and an affidavit of his solicitor to which the report of Dr Leonard Lambeth of 28 August 2003 is annexed. The applicant’s mental disorder was so intertwined with his chronic alcoholism that all of the steps he took towards extracting himself from the grip of his addiction were frustrated. I am satisfied that the applicant’s depression and generalised anxiety disorder as diagnosed in May 2002, which had also been diagnosed earlier, were in part causative of these offences. In those circumstances I am of the view that there is justification for leave to appeal to be granted and for some adjustment to be made to the minimum term of imprisonment to be served. Putting to one side the remarks I have made in relation to the second offence, the head sentence of four years properly reflects the seriousness of the first offence. The adjustment to the non-parole period will enable the applicant to further his rehabilitation whilst in the community and on parole if he is released after he serves his minimum term of imprisonment.

48 The orders I propose are: (1) Leave to appeal is granted: (2) That in respect of each offence in lieu of the non parole period of 21 months to expire on 18 August 2004 fixed by Coolahan DCJ on 5 December 2002, there is fixed a non parole period of 18 months in respect of each offence to expire on 18 May 2004.

49 HIDDEN J: I agree. I accept that this Court should intervene for the reasons given by Bergin J. What has troubled me in this difficult and unusual case is what course this Court should take having intervened. That said, the head sentence of four years remains an appropriate reflection of the criminality of the applicant on the evening in question embracing the two offences with which we are concerned and it does not appear to me that a non-parole period of anything less than eighteen months would fairly reflect that same criminality. For those reasons I agree with the orders proposed by Bergin J.

50 GREG JAMES J: I, too, agree with the orders proposed by Bergin J and the reasons she has given. I also agree and wish to associate myself with the remarks made by the Presiding Judge.

51 HIDDEN J: The orders of the Court will be the orders proposed by Bergin J.

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Last Modified: 09/19/2003