Stines v R

[2019] NSWCCA 115

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Stines v R [2019] NSWCCA 115
Hearing dates:	13 May 2019
Decision date:	07 June 2019
Before:	Leeming JA at [1]; Hamill J at [49]; N Adams J at [50]
Decision:	1. Grant leave to appeal.  2. Allow the appeal and set aside the sentence imposed on 24 August 2018, and in lieu thereof, sentence the applicant to imprisonment for a period of 5 years and 3 months, commencing on 24 August 2018 and expiring on 23 November 2023, with a non-parole period of 3 years and 6 months commencing on 24 August 2018 and expiring on 23 February 2022. The earliest day on which the applicant will be eligible for release on parole is 24 February 2022.
Catchwords:	CRIME – appeal against sentence – applicant pleaded guilty to aggravated robbery with wounding – whether insufficient weight given to applicant’s mild intellectual disability – whether sentence manifestly excessive – appeal allowed and applicant resentenced
Legislation Cited:	Crimes Act 1900 (NSW), ss 96, 112 Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases Cited:	Aslan v R [2014] NSWCCA 114 Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Kandemir v R [2018] NSWCCA 154 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Israil [2007] NSWCCA 255 R v Matthews [2004] NSWCCA 112; 145 A Crim R 445 R v Wright (1997) 93 A Crim R 48 Ryan v Regina [2017] NSWCCA 209 Yun v R [2017] NSWCCA 317 Viausu v R [2017] NSWCCA 71 Zhao v R [2016] NSWCCA 179
Category:	Principal judgment
Parties:	Robert Stines (Applicant) Crown (Respondent)
Representation:	Counsel: S Kluss (Applicant) K Ratcliffe (Respondent)   Solicitors: Ross Hill & Associate Solicitors (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2018/30785
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: None Date of Decision: 24 August 2018 Before: O’Rourke SC DCJ File Number(s): 2018/00030785

Judgment

1. LEEMING JA: The applicant, Mr Robert Stines, seeks leave to appeal from the sentence imposed for his offence of aggravated robbery with wounding, contrary to s 96 of the Crimes Act 1900 (NSW), to which he pleaded guilty. The sentence was imprisonment for 6 years and 9 months, with a non-parole period of 4 years and 6 months. When allowance is made for the utilitarian discount of 25% applied by the sentencing judge by reason of his early plea, the notional “starting point” was 9 years.

2. Leave is sought to rely upon two grounds of appeal:

“1. The sentencing judge erred in failing to give sufficient weight to the finding that the applicant’s intellectual disability to reduce the objective seriousness of the applicant’s offending.

2. The sentencing imposed is manifestly excessive.”

The offending conduct

3. The applicant did not give evidence before the primary judge. The sentencing hearing proceeded by way of statement of agreed facts, which is best reproduced verbatim insofar as it describes the offending conduct:

“At about 2:52am on Sunday, 28 January 2018, the accused Robert STINES was observed on CCTV footage riding a bicycle travelling west on Waldron Road, Chester Hill. The accused was then captured on CCTV at 2:57am travelling east on Frost Lane, Chester Hill. The accused appeared to circling the Chester Hill CBD.

At 3:17am, the accused rode his bicycle on Chester Hill Train Station, located on Chester Hill Road. The accused got off his bicycle and walked down the stairs onto the platform area of the station. The accused wheeled his bicycle beside him and kept his helmet on.

The accused was captured on the station’s CCTV system. The accused is observed to be male, tall, average build, Caucasian, with a receding airline. He was wearing a black and red bicycle helmet, a red coloured t-shirt, dark coloured shorts and while sneakers. The accused’s bicycle was a black mountain bike model.

Once he reached the platform area, the accused walked to the western side of the platform and around the office building of the platform. He circled back around and approached the victim, Huu Tao NGUYEN. The victim, aged 56, was the only person present at the train station and was sitting on a bench in the middle of the platform.

The accused placed his bicycle on the ground and retrieved a metal pole that he was carrying on the handle bars of the bicycle. The metal pole had a 90 degree serrated edge at the end of it. At this point, the accused was a couple of steps away from the victim.

The accused suddenly lunged at the victim and struck him over the head with the serrated side of the metal pole. The victim immediately felt pain and became extremely frightened. The victim stood up from the bench and the accused again struck him over the head with the serrated side of the metal pole.

The victim attempted to protect himself by placing his arms over his head. The accused struck the victim at least six times to the head with the serrated side of the metal pole. On the third or fourth strike, the victim felt a large amount of blood pouring from his head onto his face and clothing. The victim lost his balance and fell to the ground, cutting his knees and legs in the process.

Once the victim was on the ground, the accused wrestled the victim’s wallet from his back right pants pocket. The accused also grabbed the victim’s black backpack which the victim had placed on the bench next to him. The accused picked up his bicycle and left the platform area with the victim’s property. The accused walked up the stairs onto Chester Hill Road, turned right and rode away in a southerly direction.

The victim used his mobile phone to contact triple 0. An ambulance attended a short time later and conveyed the victim to Liverpool Hospital where he was treated for six wounds to his head, with numerous staples used to seal the wounds. The lacerations on the scalp were full thickness with underlying haematomas. Police attended the scene and established a crime scene. The metal pole was located on the platform and Police observed multiple blood stains on the platform.

The victim’s wallet contained three Westpac bank cards, a concession card, a diabetes card and a Medicare card. The victim’s backpack contained his Australian Passport, two sets of reading glasses, medication prescriptions and food and drinks.

At about 8:15pm on Monday, 29 January 2018, the accused was observed by Police to be riding a bicycle east of the Hume Highway, Villawood. The accused appeared to be riding the same bicycle and wearing the same helmet as depicted in the CCTV footage the previous evening. The accused was stopped, arrested and cautioned. He was conveyed to Bankstown Police Station where he was introduced to the custody manager and read and explained his rights in accordance of Part 9 of Law Enforcement (Powers and Responsibilities) Act 2002.

The accused informed Police that he was residing in room 13 of the Banksia Hotel located at 966 Hume Highway, Bass Hill. Police conducted a search of the room and located the black backpack belonging to the victim.

The accused participated in an electronically recorded interview in which he made full admissions. The accused said that he was riding his bicycle and ‘bashed a guy at a train station’. When asked if he was carrying any items with him, the accused replied ‘A pole … I lost the plot and hit someone with it’. The accused further said ‘I fucked up, I shouldn’t have done it … I hoped he had some money on him but he didn’t’.

The accused informed Police that he had disposed of the victim’s property sometime after the incited but was unable to specify where.

When the accused was shown still photographs taken from the CCTV footage from Chester Hill Train Station the accused acknowledged that he was the person depicted on the photographs.

The accused consented to a buccal swab which was later analysed at FASS against a tape lift from the victim’s back right pants pocket. The results indicated a mixture of DNA from the victim and the accused. A trace swab from the metal pole was also analysed where the results indicated the DNA recovered was the same profile as the accused.”

The reasons of the primary judge

4. The sentencing judge delivered an ex tempore judgment imposing sentence immediately after the hearing. After summarising the agreed facts, her Honour assessed the objective gravity of the offence as falling “at the mid-range, if not slightly above, of seriousness for an offence of its type”, and then turned to the applicant’s personal circumstances. She referred to his severely disabled elderly brother, who lived in full-time care, and the difficulties in his early life as a child. His biological father was abusive towards his mother, and, when he was 8, his father set fire to their home, and the applicant assisted his mother in escaping the fire. He suffered difficulties throughout his schooling, which was characterised by short attention span and disruptive behaviour. He left school when he was 11, unable to read and write. Although he had enrolled in a school specialising in educating adolescents with emotional and behavioural issues and mild intellectual disabilities, he did not finish at that school either.

5. The applicant had never been employed and had been in receipt of a disability support pension since 2005. Her Honour noted that:

“during the assessment for the pension the offender was found to have a mild intellectual disability. The level of intellectual disability from which the offender suffers is also often associated with cognitive deficits, including poor problem-solving and decision-making abilities, as well as poor consequential thinking and memory deficits.”

6. Her Honour noted that during his incarceration, the applicant had been employed in various occupations within custody and had obtained two certificates (forklift and warehousing).

7. By reference to the report of a forensic psychologist, the sentencing judge again referred to the applicant’s “mild intellectual disability, which is linked to his history of impulsivity, poor emotional regulation, drug use and subsequent offending behaviour”, and that he had reported “fluctuating moods whilst in custody, including sadness, anger and agitation” and that he experienced “general anxiety and feels nervous and scared around other inmates when in the yard”.

8. Her Honour summarised the applicant’s drug use, which commenced at the age of 18 with cannabis and amphetamines, leading to the use of methamphetamine when he was around 30, for which he had attended two rehabilitation programs. The psychologist expressed the view that he satisfied the criteria for stimulant use disorder according to DSM-5. The sentencing judge noted that the psychologist was not in a position to make such a diagnosis, given her area of expertise.

9. The sentencing judge summarised an assault suffered by the applicant while in custody, to which prominence was given when the appeal was heard, as follows:

“The offender was the victim of an assault by a correctional officer whilst in custody in around December 2013. As a result of the attack, the offender suffered a broken jaw, which required surgery, and he had a metal plate inserted. He reports ongoing pain in relation to the injury and also reported concern as to whether he suffered a brain injury as a result of the attack.

Ms Naismith of Legal Aid outlined the ways in which this attack has affected the offender throughout his time in custody. She stated that the offender is transferred between prisons more often than is usual due to medical appointments and for being at the risk of harm. As a result of being a Crown witness against his attacker he has been called a ‘dog’ or a ‘Crown witness’ in custody. He is also not able to engage in services and programs to the same extent as those inmates who are not transferred as regularly. The offender has also not been able to engage in buy-ups as he has been transferred so often that he cannot take advantage of the buy-up system.”

10. Later in her remarks, the sentencing judge referred to the fact that the applicant had been removed from Parklea Correctional Facility after he had been placed there while giving evidence in the trial against his attacker, and that he was being called “a dog” by the guards for giving evidence against one of the correctional officers. Her Honour referred to his reports that he had suffered from flashbacks and that the plate in his face permanently reminded him of the attack, and that he experienced pain, mostly when he was cold.

11. Her Honour noted the applicant’s considerable criminal history, including convictions for theft-related offences, driving offences and drug offences, but none, until the offence for which he was being sentenced, involved violent offending (apart from resisting arrest). Her Honour regarded the fact that he carried with him a metal pole with a serrated edge, which he had retrieved specifically for the purpose of robbing the victim, as an aggravating feature. Her Honour then returned to the diagnosis of mild intellectual disability and addressed the issue in some detail. Her Honour had been taken (by counsel for the applicant) to the qualifications stated by Simpson J in Aslan v R [2014] NSWCCA 114 at [34], and repeated that passage:

“It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.”

12. Her Honour then said:

“In the matter at bar, it is submitted that the offender’s impulsivity, associated with mild intellectual disability, did play a part in the offending and, when combined with drug use, was likely to have impaired his judgment further and increase his proclivity towards impulsiveness and aggression. In considering this submission I note the offender had been using prohibited drugs for many years, indeed since he was 18, and not only recently. His intellectual disability has also been longstanding and yet his prior history indicates no violence of this significance. I am prepared, however, to find that his mental state played some very limited role in the offending and reduces his moral culpability slightly”.

13. Her Honour made brief reference to a submission that “a custodial sentence will weigh more heavily on the offender, not only due to his intellectual disability but due to being a victim of a violent assault whilst previously in custody committed upon him by correctional officers”. Her Honour stated that she had read the sentencing remarks following the conviction of that officer and was satisfied that “the assault was vicious and profound” (the offender was sentenced to 5 years and 9 months imprisonment, with a non-parole period of 3 years 9 months). Her Honour briefly set out the facts of the offending by the correctional officer and concluded:

“To my mind, the combination of the assault, the abuse endured by this offender for giving evidence against a correctional officer and his intellectual disability would clearly make any custodial sentence imposed on the offender weigh more heavily upon him and I have taken that into account.”

14. Her Honour referred to the applicant’s use of methamphetamine and cannabis at the time of the offending, and, in accordance with authority, stated that that was not of itself a mitigating factor. Her Honour expressed the view that the applicant’s prospects of rehabilitation were “guarded”, having regard to his lengthy criminal history, continuing abuse of unlawful drugs, but that he also had the support of his family and was prepared to undergo courses or treatments that might become available to him. Her Honour accepted his expressions of remorse when originally arrested as genuine.

15. Her Honour observed the significance of general deterrence in discouraging gratuitous violence committed upon a member of the community and the need for specific deterrence in light of the applicant’s criminal history to sheet home the seriousness of the offence. After referring to the principles in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and statistics produced by the Judicial Commission on this offence, her Honour found special circumstances, based on his need for rehabilitation, structure and supervision and imposed a sentence of 6 years 9 months, with a 4 year 6 months non-parole period, commencing that day. Although the applicant had been arrested on 29 January 2018, and had been in custody thereafter, her Honour was at the same time hearing a severity appeal from a conviction of a separate offence contrary to s 112 of the Crimes Act imposed by the Local Court, for which a 9 month non-parole period (with balance of term of 3 months) would be backdated to 29 January 2018.

The affidavit evidence concerning the attack upon the applicant in prison

16. Perhaps the most remarkable aspect of the evidence before the sentencing judge was the uncontested evidence, in an affidavit prepared by a solicitor employed by Legal Aid NSW, concerning the serious assault suffered by the applicant on 26 December 2013 while in custody. Her evidence was uncontroversial. It contains many details omitted from the summary given by the sentencing judge, and for that reason is best reproduced verbatim:

“Robert was punched to the left side of the face several times by Simon Waterfall. The assault left him with a shattered jaw requiring surgery. Surgery was performed at Westmead Hospital and was described in the records as an ‘open reduction internal fixation of the fractured left angle mandible and wisdom teeth removed.’

Robert now has a permanent plate with screws in his face holding his jaw together. Robert was not taken to hospital until 27 December 2013. He had originally not told the truth about what happened to him. He told me words to the effect of:

I buzzed about 20 times that night, I was in a lot of pain. Officers said ‘just say you slipped over in the shower’. The nurse said ‘don’t lie to us, tell me the truth’ so I did.

Simon Waterfall was charged with ‘Causing grievous bodily harm with intent’, ‘reckless grievous bodily harm’ and ‘assault occasioning actual bodily harm’.

On 7 April 2017 Simon Waterfall was found guilty by a jury of Reckless Grievous Bodily Harm.

On 6 July 2017 Simon Waterfall was sentenced to 5 years and 9 months imprisonment with a non parole period of 3 years and 9 months.

Mr Waterfall was not the only person charged after the assault. By letter dated 29 April 2014, I received notification from GEO that four officers had been summarily dismissed and three out of four officers had been charged with offences relating to either assault or accessories to the incident. In addition they were all challenging their dismissals in the Fair Work Commission. In February 2015 Robert was summonsed at the request of GEO to give evidence at the Fair Work Commission, although the matter did not end up proceeding at that time.

After the assault Robert encountered a few more problems in prison that he would have if the assault had not occurred. For example:

a. Being transferred from different prisons more than usual, such as for medical appointments, to be available for Court in the Waterfall prosecution or because he was at risk of harm;

b. As a result of transfers, not being able to engage in services and programs to the same extent as if he was not transferred;

c. As a result of transfers, not being able to engage in buy ups because he was never in one place long enough to use the buy up system;

d. Being called “crown witness” and a “dog”

e. Being placed on SMAP (Special Management Area – Placement) because of his vulnerability and high risk that other inmates would assault him.

f. Being placed back at Parklea several times, including when the trial of Simon Waterfall was listed but not reached in May 2015.

Robert also told me, in a face to face interview in February 2015, words to the effect of:

I had to be moved from Parklea again because I was copping it every day, guards called me a dog for ‘charging our officers’.

I had my appendix removed while at Parklea. I kept asking for help and they kept denying it and saying I was lying and only had a headache. I collapsed on the floor vomiting.

Robert also reported to me that:

I have flashbacks and dreams a lot

the plate being there permanently reminds me

it’s hard to sleep I think about what happened.

I have pain mostly when it’s cold”

17. There was no challenge to any of that evidence. The references to “GEO” are to GEO Australia Group Pty Ltd, which is the private company which operates the Parklea Correctional Centre.

Ground 1 – Failure to give sufficient weight to intellectual disability

18. The gravamen of the applicant’s submission in relation to this ground is that the sentencing judge gave insufficient weight to the applicant’s mild intellectual disability in the assessment of objective criminality of the offence which led to her Honour imposing a notional sentence that was manifestly excessive.

19. The applicant relied on Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54] in which the High Court said:

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. 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.” (Citations omitted)

20. The applicant also relied on the decision of Yun v R [2017] NSWCCA 317 in which Latham and Bellew JJ (Campbell J agreeing) said at [47]:

“It is apparent that this Court has invariably determined since Muldrock (with the possible exception of Badans and Subramaniam) that an offender’s mental condition at the time of the commission of the offence is a critical component of ‘moral culpability’ which in turn affects the assessment of ‘objective seriousness’. For these reasons, and in the absence of clear guidance from the High Court, the appellant’s contention that an assessment of objective seriousness of a standard non-parole period offence, post Muldrock, precludes consideration of the offender’s mental state, duress, provocation, and mental illness (where causally related to the commission of the offence) must be rejected.”

21. The applicant submitted in writing that the sentencing judge erred in finding that a high level of specific deterrence was necessary and by not reducing the significance of general deterrence. In oral argument, Ms Kluss submitted that the sentencing judge had minimised the effect of the applicant’s lifelong intellectual disability in the sentencing exercise when there was incontrovertible evidence before her Honour that the applicant’s intellectual disability had significantly impacted his life. When it was put to Ms Kluss that the sentencing judge had in fact considered the applicant’s intellectual disability and appeared to have concluded that it was the applicant’s drug use rather than his intellectual disability that led to the violent attack, Ms Kluss said:

“[T]here’s a sequence in the logic. His mild intellectual disability is something that causes him to make poor decisions, and the poor decision in this situation is taking the drugs which ultimately led to the offending.”

22. There are two difficulties with this proposed ground. First, a ground in a sentencing appeal of failure to give sufficient weight, without more, is inherently problematic. Most recently, Bathurst CJ and I said in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 at [16] that:

“In sentencing appeals, it is well established that merely claiming that insufficient weight, or excessive weight, was given to one factor is normally not a proper ground. As Spigelman CJ said in R v Baker [2000] NSWCCA 85 at [11], the circumstances in which matters of ‘weight’ will justify intervention by an appellate court are narrowly confined. That was a Crown appeal, but the same principle has regularly been applied in other appeals against sentence: see for example Vaiusu v R [2017] NSWCCA 71 at [29] and the cases there cited.”

23. In Viausu v R [2017] NSWCCA 71 at [29], Hulme J (Bathurst CJ and Beech-Jones J agreeing) said:

“To the extent that the applicant complains of insufficient weight having been given to the applicant’s subjective case it must be borne in mind that matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25].”

24. In Zhao v R [2016] NSWCCA 179 at [59], N Adams J (Hoeben CJ at CL and Button J agreeing) said:

“It is not sufficient, in order to establish a basis for the intervention of this Court, for an applicant to assert that a sentencing judge gave insufficient weight to one factor or another: Bullock v R [2016] NSWCCA 131 at [65]; Bland v R [2014] NSWCCA 82; 241 A Crim R 51 at 66 [112]-[113]; R v Kennedy [2016] NSWCCA 123. To impugn the exercise of the sentencing discretion, the applicant is required to demonstrate error of the type in House v The King.”

25. Thus an essential aspect of the sentencing process is that matters of weight are very much for the sentencing judge. Appellate intervention on the ground of insufficient weight is clearly “narrowly confined”. Further, as will be made apparent below, the sentencing judge clearly did give weight to the applicant’s intellectual disability in assessing his moral culpability.

26. Secondly, it is not sufficient merely to point without more to an offender’s intellectual disability. As Wood CJ at CL said in R v Matthews [2004] NSWCCA 112; 145 A Crim R 445 at [27]:

“each case will depend upon the nature and degree of the impairment, the extent of its contribution to the offence, and whether or not the sentence can be seen, in the particular circumstances, of that case to have a deterrent value, either specifically or generally. An individual assessment is necessary, and a bare invocation of the presence, in an offender, of a low level of intellectual functioning or mental disorder, as a circumstance requiring moderation in sentence, is likely to be both misleading and unhelpful.”

27. An offender’s intellectual capacity may be relevant to assessing culpability, if it is shown to have contributed to the commission of an offence. Likewise, an offender’s intellectual disability may reduce or eliminate the roles of general deterrence and specific deterrence: see R v Israil [2007] NSWCCA 255 at [22]–[25]; Ryan v Regina [2017] NSWCCA 209 at [12]–[15], [18]–[22]. Those principles were summarised in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]:

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

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

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

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

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

28. None of those principles is absolute. In Kandemir v R [2018] NSWCCA 154, Price J observed at [91]:

“However, as Simpson J observed in Aslan v R [2014] NSWCCA 114, none of the principles stated in De La Rosa are absolute. Her Honour said at [34]:

‘It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.’”

29. The applicant did not challenge the finding that the offence was “at least in the mid-range, if not slightly above” of objective seriousness. Indeed, it had been the applicant’s submission that “the objective criminality has to be at the mid-range”. The Crown had submitted that the objective seriousness was “above the mid-range”. The applicant acknowledged the seriousness of the attack, its unprovoked nature, and the fact that the applicant had armed himself in advance with a metal pole with a serrated edge.

30. The primary judge was commendably explicit about the way her Honour treated the applicant’s intellectual disability. She referred to it repeatedly. After referring to the principles (with which no issue was taken), she found that the applicant’s mental state played some very limited role in the offending and reduced his moral culpability slightly. Thus it is unquestionable that her Honour gave weight to the applicant’s intellectual disability. Her Honour did not quantify that weight, but made it plain that she regarded it as being a factor of relatively minor significance to the question of the applicant’s moral culpability.

31. Further, her Honour set out the factors which she had taken into account and gave reasons for her findings. Her Honour observed that it was agreed between the parties that the applicant’s mild intellectual disability played a part in the offending, but that factor was combined with the applicant’s drug use at the time of the offending which further impaired his judgment and increased his proclivity towards impulsiveness and aggression. Her Honour considered the fact that the applicant’s intellectual disability had been long-standing, yet he had never previously been involved in an offence of significant violence. Based on those factors, her Honour concluded that the applicant’s altered pattern of offending evidenced by the instant offence could not be adequately explained by his longstanding mild intellectual disability, accordingly finding that the applicant’s intellectual disability only played a minor role in the offending and only slightly reduced his moral culpability.

32. It was also open to her Honour to find that the need for specific and general deterrence was not reduced by the applicant’s intellectual disability. With respect to the question of general deterrence, there was no suggestion that the applicant, in spite of his intellectual disability, did not have knowledge of what he was doing or understand the gravity of his actions: R v Wright (1997) 93 A Crim R 48 at 50–51. The applicant upon arrest admitted to committing the crime and showed immediate remorse, which the sentencing judge took into consideration. Those matters together with the change in the nature of the applicant’s offending (from non-violent offences to a serious, violent offence) supported a sentence which reflected the need for specific deterrence.

33. I conclude that no proper basis has been made out to interfere with the sentence imposed by reason of the weight given to the applicant’s intellectual disability. Her Honour referred to it repeatedly, dealt with it transparently, and gave reasons for concluding that, as a factor which bore upon the particular sentence to be imposed for this offence, it carried little weight.

Ground 2 – manifest excess

34. It was common ground both before the sentencing judge and in this Court that the objective gravity of the applicant’s offending fell at least in the mid-range of seriousness for an offence of this type. Indeed, the applicant’s counsel at sentencing accepted that this was a “very serious example of the type of offending conduct”.

35. Caution must attend any use of sentencing statistics, especially where the individual circumstances of the particular cases are not disclosed. However, the Judicial Commission statistics show that for matters in which sentence was imposed for a single offence under s 96 of the Crimes Act in the ten years from January 2008 until December 2017 where there was a guilty plea, there were 20 matters, of which 19 involved a sentence of no more than 6 years. The outlier was a sentence of 9 years.

36. Of course, the statistics do not disclose the extent to which a utilitarian discount was given for the plea. However, they do show that the sentence imposed upon the applicant was more severe than any in the last decade involving a single count of aggravated robbery with wounding to which the offender pleaded guilty, save for one.

37. That of itself would not suffice to establish a manifestly excessive sentence. However, I think this is a case where the conclusion must be drawn that the sentence is too severe. I do so because there are extraordinary features in this case – the assault suffered by the applicant while in custody and its consequences – which make the applicant’s subjective case a very powerful one.

38. First, the assault upon the applicant itself should not have occurred. The assault caused severe injuries to the applicant, the physical effects of which are ongoing including from the metal plate in his mouth. There was uncontested evidence that when it was cold, the metal plate in his mouth hurt and he was reminded of the assault which made it hard for him to sleep.

39. Secondly, the consequences of the applicant giving evidence against the prison officer – who was convicted and is himself serving a substantial term of imprisonment – are serious. There is no dispute that the offender has repeatedly been called a “Crown witness” and a “dog”, which is a serious thing for any prisoner, and is the reason he has been placed in segregation. It underlies the false account he originally gave as to the circumstances of the attack. The uncontested evidence that prison officers delayed in providing medical treatment (ultimately an appendectomy was performed) speaks further of the actual additional hardship suffered by the applicant.

40. Thirdly, the consequences are ongoing, in a variety of ways. Movement within the prison system has led to the applicant not being able to participate in services and programs as would ordinarily be the case.

41. When the appeal was heard, it was asserted from the bar table that because the applicant had been on protection and was likely to rely on protection for the whole of his sentence, many rehabilitation aspects within the prison system were not available to him. Conscious of the absence of evidence, and authorities about not making assumptions as to onerous conditions of incarceration, the Court directed the applicant to supply affidavit evidence as to the onerous conditions of his incarceration, and gave right of response to the Crown.

42. In an affidavit made on 15 May 2019, Mr Stines gave evidence that there were limited programs available to SMAP inmates at prisons other than MRRC, and that he, while at Wellington Prison, had been accepted into the education program each Friday from 11:30am to 2pm. He said that he was learning to read and write. He also said that he had been ineligible for addiction and anger management programs at Wellington, and needed to be much closer to his release date in order to be accepted into those courses. He said that aside from the weekly education group sessions, there was nothing else he could do during the time each day he was released from his cell other than spend time in the yard. There was no challenge to that evidence, and the Crown advised (on 27 May 2019) that it did not intend to adduce evidence in response.

43. Having regard to the unusual and exceptionally severe and ongoing consequences of the applicant’s imprisonment, which are mentioned in a somewhat understated way in the sentencing judge’s reasons, I conclude that this ground is made out.

Orders and resentencing

44. It is necessary to resentence. The applicant has served some nine months imprisonment. During that time, he has been reprimanded and cautioned once for fighting. That is not material for present purposes.

45. The applicant’s crime is a very serious one, carrying with it a maximum penalty of 25 years’ imprisonment. I accept the unchallenged finding of the primary judge that the objective seriousness is at least in the mid-range. I too, like the sentencing judge, accept a number of positive elements in the applicant’s subjective case, including his immediate remorse and the possibility of reform (in particular in relation to his use of illicit drugs and the support of his family although I also would go no further than to regard his prospects as uncertain). However, I would attribute greater weight than did the sentencing judge to the serious injury suffered by him in custody at the hands of a corrective services officers, and the ongoing consequences of that injury to him, in part as a consequence of the injury itself, in part as a consequence of his role in the prosecution and dismissal of some of the officers involved.

44. It is clear that no sentence other than imprisonment is appropriate. The seriousness of the offending requires a sentence reflective of general and personal deterrence and the protection of the community. The mild intellectual disability from which the applicant suffers is to be taken into account, but for the reasons given by the primary judge and as elaborated above, the impact is only slight.

45. A sentence of 7 years’ imprisonment is an appropriate notional starting point. That sentence is to be reduced to 5 years and 3 months in light of the guilty plea. The applicant’s intellectual disability, criminal history and exposure to drugs justify a finding of special circumstances. The start date should be 24 August 2018. I would impose a non parole period of 3 years and 6 months commencing 24 August 2018, with a balance of term of a further 1 year and 9 months commencing 24 February 2022 and expiring 23 November 2023.

46. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal and set aside the sentence imposed on 24 August 2018, and in lieu thereof, sentence the applicant to imprisonment for a period of 5 years and 3 months, commencing on 24 August 2018 and expiring on 23 November 2023, with a non-parole period of 3 years and 6 months commencing on 24 August 2018 and expiring on 23 February 2022. The earliest day on which the applicant will be eligible for release on parole is 24 February 2022.

49. HAMILL J: I agree with Leeming JA.

50. N ADAMS J: I agree with the orders Leeming JA proposes and with his reasons for them.

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Amendments

07 June 2019 - Reference to decision under appeal amended in cover sheet.

Decision last updated: 07 June 2019