Smith v The Queen
[2020] VSCA 165
•19 June 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0101
| COREY SMITH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 June 2020 |
| DATE OF JUDGMENT: | 19 June 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 165 |
| JUDGMENT APPEALED FROM: | DPP v Smith [2020] VCC 480 (Judge Tinney) |
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CRIMINAL LAW – Appeal – Sentence – Home invasion, aggravated recklessly exposing an emergency worker to risk by driving and other offences – Total effective sentence three years, two months and 21 days’ imprisonment with non-parole period of 18 months – Impaired mental functioning – Whether judge erred when assessing applicant’s moral culpability – Category 2 offences – Leave to appeal refused – Sentencing Act 1991 s 5(2H) – Muldrock v The Queen (2011) 244 CLR 120; R v Verdins (2007) 16 VR 269.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connolly | Patrick W Dwyer |
| For the Respondent | Ms E H Ruddle | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
Introduction
On 2 April 2020, the applicant, aged 27 years,[1] pleaded guilty before a judge in the County Court to a number of charges, two of which — home invasion[2] (charge 4) and aggravated recklessly exposing an emergency worker to risk by driving[3] (charge 7) — were a category 2 offence for the purposes of the Sentencing Act 1991 (‘the Act’).[4]
[1]His date of birth is 4 August 1992.
[2]Crimes Act 1958, s 77A. The maximum penalty is 25 years’ imprisonment.
[3]Crimes Act 1958, s 317AF(1)(a). The maximum penalty is 10 years’ imprisonment.
[4]If an offence is a category 2 offence, the provisions of s 5(2H) of the Act are engaged.
The other charges on the indictment were attempted theft[5] (charge 1); theft[6] (three charges – charges 2, 3 and 6); burglary[7] (charge 5); and handling stolen goods[8] (charge 8). The applicant also pleaded guilty to summary charges of failing to stop a vehicle on police request[9] and unlicensed driving.[10]
[5]Crimes Act 1958, ss 74 and 321M. The maximum penalty is five years’ imprisonment.
[6]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[7]Crimes Act 1958, s 76. The maximum penalty is 10 years’ imprisonment.
[8]Crimes Act 1958, s 88. The maximum penalty is 15 years’ imprisonment.
[9]Road Safety Act 1986, s 64A. The maximum penalty is 60 penalty units or 6 months’ imprisonment.
[10]Road Safety Act 1986, s 18(1)(a). The maximum penalty is 60 penalty units or 6 months’ imprisonment.
Following a plea, on 24 April 2020 the judge sentenced the applicant to a total effective sentence of three years, two months and 21 days’ imprisonment, and fixed a non-parole period of 18 months, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Attempted theft 6 months 2 months 2 Theft 8 months 2 months 3 Theft 10 months 3 months 4 Home invasion 2 years Base 5 Burglary 10 months 3 months 6 Theft 5 months 2 months 7 Aggravated recklessly exposing an emergency worker to risk by driving 2 months 14 days 8 Handling stolen goods 6 months 2 months Summary Failing to stop vehicle on police request 14 days — Summary Unlicensed driving 21 days 7 days Total effective sentence 3 years, 2 months and 21 days’ imprisonment Non-parole period 18 months Pre-sentence detention 424 days Section 6AAA statement 5 years’ imprisonment with 3 years and 6 months non-parole Other orders Licence disqualification 2 years (charge 7), and 6 months (charges 1, 2 and 3); disposal order
The applicant seeks leave to appeal against his sentence on a single ground which contends that the sentencing judge ‘erred in his approach to assessing the extent of the reduction to the applicant’s culpability flowing from the applicant’s intellectual disability’.
For the reasons that follow, we would refuse leave to appeal.
The offending
It is necessary to summarise the applicant’s offending.
In the evening of 8 February 2019, the applicant and co-offender Rian Filiti entered an undercover carpark in a set of units in Ascot Vale. They opened the front doors of a Nissan 200SX, lifted the bonnet and removed the ignition barrel in an unsuccessful attempt to start the car (charge 1 – attempted theft).
The next day, 9 February, at about 7.30 am, Frank Spiteri parked his Ford Mondeo on the street outside a house in Ascot Vale. He was taking items from the house to the car and had left the car unlocked with the keys in the boot lock. While Mr Spiteri was in the house, the applicant took the key and drove away (charge 2 – theft). The car was recovered on 13 February 2019.
On 13 February 2019, the applicant was seen by a maintenance worker, James Daniels, to be acting suspiciously in the carpark of Kilmore International School in Kilmore. Mr Daniels confronted the applicant, who entered a Toyota Camry and started it via a push-start ignition. (The car’s owner, Zecheng Dai, had taken his car keys with him, but had left a spare key in the car.) Mr Daniels stood in front of the car, but moved out of the way when the applicant began nudging the car forward. The applicant drove the car down a dead-end street. Mr Daniels saw that the applicant would need to return towards him, and parked his own car on the road to block the applicant’s path. The applicant rammed Mr Daniels’ car, mounted the nature strip and drove away (charge 3 – theft).
Two days later, on 15 February 2019, at approximately 3.45 pm, the applicant, Filiti and an unknown female went to a house in Roxburgh Park. Filiti removed a flywire screen on the front window and the applicant and the female entered the house through it. The occupier of the house, Alex Tyson, was upstairs in his ensuite shower. When he left the shower, he saw the applicant and the female searching his bedroom and putting items into a laundry basket on the floor. They were holding some valuable personal items in their hands. The applicant ran from the room. Mr Tyson grabbed the female, telling her to drop the items. The applicant then returned and tried to pull the female away. He tried to punch Mr Tyson, forcing Mr Tyson to release the female to block the punches. The applicant and the female then ran downstairs, pursued by Mr Tyson, who grabbed the female by the arm. The applicant shouted for him to let her go. A glass jar was then smashed over Mr Tyson’s head, which caused cuts and bleeding to his head and chest, together with dizziness. The female left through the front door of the house, and the applicant tried to leave through the rear door, but it was locked. Mr Tyson attempted to prevent his escape and another scuffle ensued. The applicant broke free and ran out through the front door. He was caught again by Mr Tyson near the letterbox. The applicant pushed free, however, and got into the front passenger seat of a waiting car, which drove away (charge 4 – home invasion).
Between 6.00 am and 7.00 am on 23 February 2019, the applicant drove the Toyota Camry stolen on 13 February to a house in Essendon. He entered an unlocked car parked in the driveway and activated a remote control to open the garage door. He then entered the garage intending to steal items, but left without taking anything (charge 5 – burglary).
Later that morning, the applicant went to the carpark in Highpoint Shopping Centre and smashed the rear passenger side window of a 2016 Mercedes belonging to Ana Sybenga. He stole two handbags, a clutch, a laptop, personal documents, a watch, a pair of sunglasses, a bottle of perfume, jewellery, a pair of headphones, cosmetics and garage remote controls (charge 6 – theft).
At around this time, police located the stolen Toyota Camry in the carpark. They saw Filiti and an unknown female in the front seat, and a child in the back seat. When the car left, police followed it with the assistance of the Police Air Wing to a house in Burnside Heights. Filiti, the female and the child left the car. The applicant then entered the driver’s seat and drove away, driving past police. They attempted to intercept the applicant by activating their lights and siren, but he did not stop, instead increasing his speed to flee (summary charge – failing to stop on police request).
The applicant eventually drove into a dead-end street, stopping on a nature strip next to two parking spaces. As police drove into one of those spaces, the applicant reversed the Toyota Camry at a fast speed and collided with the passenger side of the police vehicle, pushing it sideways into a parked car next to it. Two officers were in the vehicle (charge 7 – aggravated reckless exposure of an emergency worker to risk by driving). The applicant then drove away, and the Police Air Wing lost track of him.
At about 5.00 pm that day, the Toyota Camry was found in the front yard of a house in Kingsbury. Inside the car police found several bags containing stolen goods, including various identification cards, hand tools, a wallet containing 20 different driver’s licences and cards, garage remote controls and a pair of Nike shoes (charge 8 – handling stolen goods). Police also found Ms Sybenga’s handbags, her documents and a number of her personal items in the handbags, which were returned to her.
The applicant drove on the occasions referred to despite never having held a driver’s licence (summary charge – unlicensed driving).
Prior convictions
Commencing with a sentence of probation imposed in the Children’s Court in April 2010 for recklessly causing injury, the applicant has a moderately extensive criminal history. Thereafter, he has amassed many convictions and findings of guilt for a range of offences of varying degrees of seriousness, and has been sentenced multiple times for attempted burglary, burglary, theft and attempted theft from motor vehicles. His history also includes weapons offences, bail offences, criminal damage, further offences of recklessly causing injury and driving offences. Significantly, the applicant on a number of occasions has contravened community based orders, community correction orders and suspended sentences of imprisonment. He has also been sentenced to imprisonment a number of times.
The plea
On the plea, when addressing charge 7, aggravated reckless exposure of an emergency worker to risk by driving — which, as we have said, is a category 2 offence under the Act[11] — counsel for the applicant submitted that, at the time of the commission of the offence, the applicant ‘had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces [his] culpability’;[12] and ‘impaired mental functioning that would result in the [applicant] being subject to substantially and materially greater than the ordinary burden or risks of imprisonment’.[13] There were, counsel submitted, ‘substantial and compelling circumstances that are exceptional and rare and that justify not making an order’ for imprisonment.[14] These submissions were based on the proposition that the applicant has a demonstrated pattern of global and significant intellectual impairment.
[11]After the plea hearing, but prior to sentencing, counsel drew the judge’s attention to the fact that home invasion, charge 4, was also a category 2 offence.
[12]See s 5(2H)(c)(i) of the Act.
[13]See s 5(2H)(c)(ii) of the Act.
[14]See s 5(2H)(e) of the Act. See also s 16(3D), which requires every term of imprisonment imposed on a person for an offence against s 317AF of the Crimes Act 1958 to be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on the offender (whether before or at the same time as that term) unless otherwise directed by the court.
At age 27 years, counsel submitted, the applicant has virtually no work history. He was raised by his mother, with whom he has a close relationship, but has no relationship with his father. The applicant’s upbringing was disruptive, his mother being alcoholic. He struggled at school, and his literacy is that of a ten-year old. Since leaving school, the applicant has received either unemployment benefits or been on a disability support pension. He started using cannabis and methamphetamines in his teens, and used heroin non-intravenously. The applicant offended both under the influence of drugs and for the purpose of supporting a drug addiction.
Counsel for the applicant submitted that the plea of guilty was early; had utilitarian benefit; and showed remorse (albeit limited by the applicant’s impairment). Importantly, the applicant has significant global cognitive impairments, which he has had since childhood and throughout his development. His full scale IQ is 63, which means 99 per cent of adults of a similar age would perform better. The applicant’s cognitive impairment, counsel submitted, reduces his moral culpability; significantly lessens the need for general deterrence; moderates the role for specific deterrence; and informs the appropriate sentence to support rehabilitation. Further, invoking Verdins[15] it was submitted that there was a causal link to the offending, and that any sentence will weigh more heavily on the applicant than a person without his cognitive impairment.
[15]R v Verdins (2007) 16 VR 269 (‘Verdins’).
In a report dated 3 January 2020 (Exhibit 2), Jane Lofthouse, neuropsychologist, expressed the following views:
Mr Smith demonstrates a pattern of global and significant intellectual impairment. In particular, Mr Smith demonstrates a marked level of executive dysfunction which will impinge on his capacity for abstract reasoning which is required to make reasoned, informed and flexible decisions. Executive dysfunction will also impinge on Mr Smith’s ability to control and have insight into his behaviour. In light of the above Mr Smith will be reliant on concrete thinking leading to poorly considered problem solving that will be dependent on over-learnt and often inappropriate and impulsive responses.
The level of Mr Smith’s executive dysfunction will impinge negatively on his ability to make reasoned and informed decisions and control his behaviour.
Mr Smith’s test scores at my assessment and past assessments indicate that he has a significant level of global intellectual impairment first documented in childhood. As such Mr Smith’s intellectual impairment would have been present at the time of the criminal offending that led to his current charges. Mr Smith’s intellectual impairment impinges on his ability to make rational choices and also restricts his capacity to control his behavioural responses. Mr Smith’s drug use further impacts on his intellectual function in a negative manner and accentuates the difficulty he experiences in controlling his behaviour.
Intellectual impairment and drug use would have been two contributing factors in his criminal offending that led to his current charges.
By way of mitigation the applicant’s counsel also relied on the COVID-19 pandemic, and the risk of prison lockdown.
Ultimately, counsel sought to bring the applicant within the exceptions in s 5(2H) of the Act. It was submitted that the applicant should be assessed for a community correction order (‘CCO’) and a justice plan.[16] The conditions of the CCO would be informed by the CCO assessment and justice plan, but could include assessment and treatment for drug abuse; assessment and treatment for mental health; judicial monitoring; supervision; and community work.
[16]See s 80(3)(c) of the Act.
The applicant’s submissions in this Court
In oral submissions in this Court, counsel for the applicant contended — notwithstanding the manner in which the ground of appeal was formulated — that the judge erred in his treatment of s 5(2H) of the Act.
Counsel submitted that the following remarks in the judge’s reasons for sentence betray error:
… the first five principles from the case of Verdins can be given some weight in this case. The issue, as it always is, is what weight? That would always depend on the nature and the effect of the condition. I believe there can be some reduction in your moral culpability. However, your condition in no way deprives you of the ability to understand what you are doing. You know for instance that burglary is quite wrong, not just wrong, but seriously illegal. You are not acting under any delusion or truly clouded judgment in that respect. I am not satisfied on the balance of probabilities that your intellectual disability was greatly contributing to the decision to burgle houses or steal cars or from cars, or to handle stolen goods. These offences make perfect sense. They are perfectly rational crimes, the sorts of crimes committed by people who have no intellectual disability. You were a drug addict. You were committing some property offences to fund your drug habit. You did so with an understanding of what you were doing and why, as well as how wrong it was. You knew that it involved serious criminal behaviour. Of that I have no doubt at all.
You were also doing many of these acts whilst disinhibited by drugs. So whilst there is talk of impulsiveness in the report of Ms Lofthouse, these were on the whole, not impulsive offences. The exception might be Charge 7, but that impulsiveness was derived from the actual situation you were in and the perfectly understandable and rational panic in such a setting and the desire to escape the scene. The other offences though were not spontaneous in any shape or form. The realistic connection then required to even attract the first limb of Verdins is pretty sketchy and thin in this case, in my view, given that Ms Lofthouse … describes joint contributing factors being your impairment and your drug use. It is impossible to disentangle the two.
And also:
I am satisfied on the materials, that it had some casual connection and that the drugs were not the sole cause and hence s 5(2HA) does not apply. However, I am not satisfied that it substantially reduced your culpability. I am not satisfied of that on the balance of probabilities. As I said, you were committing rational planned offences. They were not spontaneous. You knew exactly what you were doing and knew it was both seriously wrong and criminal. I am not satisfied that there was any substantial reduction of your culpability owing to your impaired mental functioning, so I am not satisfied that you have discharged your burden under that provision. That is s 5(2H)(c)(i).
The judge’s error in approach, so it was submitted, is exemplified by the comment: ‘your condition in no way deprives you of the ability to understand what you are doing’. That finding, counsel submitted, is contrary to the expert evidence and the authorities. In particular, counsel relied on the following passage from Muldrock:[17]
A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence.[18] Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
[17]Muldrock v The Queen (2011) 244 CLR 120, 139 [54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Muldrock’).
[18]See R v Engert (1995) 84 A Crim R 67 at 71.
Counsel for the applicant contended that the sentencing judge erred by focusing on the general rather than how the applicant’s intellectual disability affected the applicant at the relevant times. This is borne out by the judge’s observations: ‘these offences make perfect sense. They are perfectly rational crimes, the sorts of crimes committed by people who have no intellectual disability’. Counsel argued that it is largely immaterial to the assessment of the applicant’s moral culpability that people without an intellectual disability commit similar crimes. Indeed, it necessarily follows from Verdins and Muldrock that both people with and without intellectual disabilities commit similar crimes, but it is the existence of the intellectual disability that distinguishes their respective culpability.
Further, it was submitted that the judge erred when he said, ‘Well what I have to do is have regard to the perfectly rational aspects of the offending’, insofar as that led to the conclusion that there was no basis to allow for substantial or significant reduction to the applicant’s moral culpability. This focus on the purported rationality of the offending sidesteps the issue that was before the judge: how the applicant’s intellectual disability affected him at the time of the offending. Moreover, by saying that, ‘I am not satisfied on the balance of probabilities that your intellectual disability was greatly contributing to the decision to burgle houses or steal cars or from cars, or to handle stolen goods’, the sentencing judge applied the wrong test. Counsel submitted that neither s 5(2H)(2)(c)(i) of the Act nor Verdins required the applicant to demonstrate that the intellectual disability ‘greatly contributed’ to his decision to offend. Section 5(2H)(2)(c)(i) only requires that intellectual disability be ‘causally linked’, and the first limb of Verdins requires a lower threshold.
Counsel for the applicant submitted that the identified errors vitiated the sentencing discretion such that the sentences should be set aside and the applicant should be re-sentenced. The applicant should be assessed for a justice plan, with consideration being given to a sentence that includes a CCO.
The respondent’s submissions in this Court
Counsel for the respondent acknowledged — as the judge accepted unequivocally — that the applicant has an intellectual disability. The key question when assessing culpability, however, is not whether a person suffers from a disability or mental health condition, but ‘what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time’.[19]
[19]Verdins, 271 [8].
It was submitted that the judge gave close consideration to the specific deficits suffered by the applicant and carefully considered how those deficits had an impact on the commission of each offence. The judge appropriately distinguished between the thefts and the potentially more ‘impulsive’ offence of endangering the emergency workers whilst fleeing the scene. Reading the sentencing remarks as a whole, the judge assessed whether there was any reasonable basis to assert that the particular deficits suffered by the applicant could have had a rational connection to or impact on the offending. The judge correctly assessed whether the evidence established that the impairment contributed in a way that made the applicant less blameworthy as a result.
Counsel for the respondent contended that the applicant’s disability primarily manifests itself in difficulty with impulse control and in determining the correct response to situations. There is no clear link between the applicant’s intellectual disability and the home invasion, or thefts of cars and goods. The sentencing judge, accepted ‘rather generously’ that there was some reduction in the applicant’s moral culpability notwithstanding the loose connection between the offending conduct and his identified deficits.
The task of assessing the impact of the applicant’s intellectual disability, counsel submitted, was complicated by the role of his long term drug addiction, but the sentencing judge appropriately dealt with that issue. His findings were underpinned by the evidence before him.
Counsel for the respondent submitted that, even if the Court formed a different view, no different sentence should be imposed. In the circumstances of the offending and the applicant’s criminal history, the sentence is a merciful one. The only explanation for such a lenient sentence must be that the judge did give significant weight to the matters outlined in Verdins.
The offences committed by the applicant, counsel submitted, showed a complete disregard for the rights and safety of others in the community. They primarily were committed for the purpose of feeding his drug addiction and were not ‘spur of the moment’. They took place over a period of two weeks and could properly be described as a ‘spree’. The applicant has a lengthy criminal history spanning 10 years, commencing whilst he was still a child. He is now 27 years old and has been consistently offending over the course of the last decade. The offending took place soon after his release from a period of 12 months’ imprisonment,[20] which renders specific deterrence all the more important. Leave to appeal, it was submitted, should be refused.
[20]On 16 May 2018, the same judge had sentenced the applicant on appeal to 12 months’ imprisonment, with a six month non-parole period, for theft and other offences.
Discussion
Given that the sentencing judge had to sentence the applicant for category 2 offences, s 5(2H) of the Act required him to impose a sentence of imprisonment (other than a sentence of imprisonment imposed in addition to making a CCO), unless the applicant could bring himself within one of the exclusionary provisions of the subsection. On the plea, counsel for the applicant sought to invoke ss 5(2H)(c)(i), 5(2H)(ii) and 5(2H)(e). So far as relevant, s 5(2H) provides:
(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(c) the offender proves on the balance of probabilities that—
(i) subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
…
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
Importantly, s 5(2HA) provides that sub-s (2H)(c)(i) ‘does not apply to impaired mental functioning caused solely by self-induced intoxication’.
It was not (and is not) disputed that the applicant has impaired mental functioning.[21] The principal areas of dispute on the plea were, first, whether the applicant’s impaired mental functioning was causally linked to the commission of the offence and whether it substantially reduced the applicant’s culpability; and, secondly, whether the applicant’s impaired mental functioning was caused solely by self-induced intoxication.
[21]By virtue of s 5(2HB) and s 10A, impaired mental functioning includes an intellectual disability within the meaning of the Disability Act 2006.
In long and detailed reasons, the judge expressed the view that the applicant’s intellectual disability — which involves ‘significant global cognitive impairments or deficits’ — could lead to ‘some reduction in [his] moral culpability’, since the first five propositions from Verdins[22] can be given ‘some weight’. The judge was not satisfied on the balance of probabilities, however, that the applicant’s intellectual disability greatly contributed to his decision to steal cars or property from cars, or to commit burglary (including, so it would seem, home invasion) or handle stolen goods. Rather, the judge was of the view that when he committed crimes such as these the applicant understood what he was doing and why — to fund his drug habit. The judge did not doubt that the applicant knew that his was serious criminal behaviour, ‘wrong’ and ‘seriously illegal’. With the exception of charge 7, the judge considered that ‘these were on the whole, not impulsive offences’, although the applicant may have been disinhibited by drugs.
[22]In Verdins, six propositions were set out (at 276 [32]):
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
The judge considered that, although the reduction of the applicant’s moral culpability flowing from his intellectual impairment had to be given ‘some weight’, it could not lead to ‘any substantial or significant reduction in [his] moral culpability’. Moreover, the judge also considered that although the applicant’s intellectual impairment meant that the weight to be given to general deterrence had to be moderated to ‘a degree’, it could not lead to any ‘significant reduction in the weight’ to be given to it. Further, contrary to the prosecution’s position, the judge gave ‘some modest reduction to specific deterrence’ (albeit that the judge thought specific deterrence to be ‘achievable’). Finally, the judge found that there ‘is some pretty modest increased custodial burden’ posed by the applicant’s intellectual disabilities.
On a fair reading of the judge’s reasons for sentence, it is plain that he had the principles to be derived from cases such as Muldrock and Verdins at the forefront of his thinking. He carefully considered the evidence concerning the applicant’s intellectual impairment, and its impact on the applicant’s moral culpability for the offending. He also considered whether either (or both) general and specific deterrence should be moderated or eliminated. And he considered whether the sentence of imprisonment imposed on the applicant would weigh more heavily on him than a person without his impairment. For the purposes of s 5(2H), however, the judge rejected the contentions, first, that there was any substantial causal link between the applicant’s impairment and his offending (so that his culpability was substantially reduced); and, secondly, that his impaired mental functioning would result in the applicant being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
Despite the earnest submissions of the applicant’s counsel, we detect no error in the judge’s approach. Indeed, we consider that it was open to reject the contention that there was any substantial causal link between the applicant’s intellectual impairment and his commission of the home invasion, theft of motor car and other dishonesty offences. As the judge observed, they certainly were not spontaneous offences. The applicant’s manner of committing these offences bespeaks some capacity for planning and organised execution — no matter that his impairment ‘will impinge on his capacity for abstract reasoning which is required to make reasoned, informed and flexible decisions’, and ‘will also impinge on [his] ability to control and have insight into his behaviour’ — and is entirely consistent with the actions of an individual seeking to feed his drug use. And as Ms Lofthouse made clear, the applicant’s drug use has an impact ‘on his intellectual function in a negative manner and accentuates the difficulty he experiences in controlling his behaviour’, and would have been a contributing factor to his offending.
It is significant that the judge drew a distinction between the charge of aggravated recklessly exposing an emergency worker to risk by driving and the other offences. Somewhat generously, the judge remarked that the applicant’s offending was impulsive and was ‘derived from the actual situation [he was] in and the perfectly understandable and rational panic in such a setting and the desire to escape the scene’. So much demonstrates that the judge was astute to determine whether there was a causal connection between the applicant’s impairment and his offending (and if so, the strength of that connection).
Ultimately, we consider that the individual sentences imposed on each charge are lenient, and that the orders for cumulation between sentences are very moderate. Indeed, we regard the total effective sentence thereby produced, and the non-parole period fixed, to be benevolent. In our view, the merciful sentences imposed on charges 4 and 7 are explicable only on the basis that the judge gave appreciable weight to the applicant’s intellectual impairment. But for that factor, it might have been expected that far more severe sentences would have been imposed on those individual charges, and, ultimately, a far more severe total effective sentence. In particular, we consider that, were it not for the applicant’s impairment, the sentence on charge 7 — two months’ imprisonment — and the cumulation ordered — 14 days — would be derisory.
For these reasons, leave to appeal against sentence must be refused.
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