Twaddell v The Queen

[2019] NSWCCA 116

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Twaddell v R [2019] NSWCCA 116
Hearing dates:	3 April 2019
Date of orders:	05 June 2019
Decision date:	05 June 2019
Before:	Leeming JA; Ierace J; Hidden AJ
Decision:	(1)   Leave to appeal is granted and the appeal is allowed. (2)   The sentence passed in the District Court is quashed. In lieu, the applicant is sentenced to an aggregate term of imprisonment of 4 years and 6 months, commencing on 21 August 2016 and expiring on 20 February 2021, with a non-parole period of 2 years and 9 months, expiring on 20 May 2019. (3)   The applicant is eligible for release on parole immediately.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – offence of break, enter and steal, aggravated break, enter and steal – Form 1 matters – whether sentencing judge failed to assess the objective seriousness of the offences – new evidence, including evidence of applicant’s intellectual disability, received on re-sentence
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Gal v R [2015] NSWCCA 242 Muldrock v The Queen (2011) 244 CLR 120, [2011] HCA 39 R v Van Ryn [2016] NSWCCA 1
Category:	Principal judgment
Parties:	Joshua Twaddell (Applicant) Regina (Crown)
Representation:	Counsel: T Quilter, Public Defender (Applicant) G Newton, Crown Prosecutor (Crown)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2016/220736; 2016/220738; 2016/220742
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 17 March 2017 Before: Bennett DCJ File Number(s): 2016/220736; 2016/220738; 2016/220742

Judgment

1. THE COURT: The applicant was sentenced in the District Court for two charges of breaking, entering and stealing and one charge of aggravated breaking, entering and stealing, to which he had pleaded guilty in the Local Court. In passing sentence on each of those charges the sentencing judge took into account a further offence on a Form 1. The offences of breaking, entering and stealing, pursuant to s 112(1)(a) of the Crimes Act 1900 (NSW), carry a maximum sentence of imprisonment for 14 years. The offence of aggravated breaking, entering and stealing, pursuant to s 112(2) of the Crimes Act, carries a maximum sentence of imprisonment for 20 years and a standard non-parole period of 5 years.

2. In relation to the first charge, breaking, entering and stealing at the premises of St Vincent de Paul at Cowra on 20 April 2016, there was taken into account on a Form 1 a charge of stealing a motor vehicle (s 154F of the Crimes Act, with a maximum sentence of 10 years imprisonment). On the second charge of breaking, entering and stealing, committed at the same premises on 30 June 2016, an offence of receiving stolen property (s189 of the Crimes Act with a maximum sentence of 3 years imprisonment) was taken into account. On the aggravated breaking, entering and stealing, committed at a wine bar in Cowra on 19 July 2016, a further offence of breaking, entering and stealing at the same premises was taken into account.

3. The applicant was sentenced to an aggregate term of imprisonment for 5 years and 6 months, with a non-parole period of 3 years, commencing on 21 August 2016. For each of the offences of break, enter and steal (with the Form 1 matters taken into account) the indicative sentence was imprisonment for 3 years. For the offence of aggravated break, enter and steal (with the Form 1 matter) the indicative sentence was imprisonment for 4 years with a non-parole period of 2 years and 6 months. In arriving at those sentences the sentencing judge had allowed a 25 per cent reduction for the utilitarian benefit of the applicant’s early pleas of guilty.

Facts

4. The applicant was familiar with the premises of St Vincent de Paul at Cowra, having been a volunteer there for about 12 months until about February 2016, and a visitor from time to time thereafter. On 19 April 2016, his mother was a volunteer there. There was a safe in the premises in a room which was not accessible to the public. The safe could be opened with a key and the applicant knew where that key was kept.

5. In the afternoon of that day the applicant’s mother, who was working there with another volunteer, placed the money from the till, totalling about $700, into the safe. They closed the premises at about 4:00pm. That night, the applicant broke into the premises, using a hammer to break the locks on the back doors. He took the key to the safe from the office, and used the hammer to break the lock on the door to the room in which the safe was located. He opened the safe and took the money. In the office he also took the keys to a Toyota utility. He drove that vehicle to a street in Cowra, where he abandoned it.

6. This led to the first charge of break, enter and steal and the charge of stealing a motor vehicle on a Form 1. The total loss suffered by St Vincent de Paul, including damage to the premises, was $3,000.

7. The second offence of break, enter and steal occurred at the same premises on the night of 30 June 2016. On this occasion the applicant broke into the premises by using a sledgehammer to make a hole in the wall of the building. Inside the premises he used the sledgehammer to make a hole in the wall of the room in which the safe was kept. He then used a hacksaw, which he located in that room, to cut the top corner of the safe and peel back one of its sides. He removed the cash in the safe, totalling $550. This offence led to a loss of $3,500.

8. The offence of receiving stolen property, taken into account in respect of this charge, related to a watch found in the applicant’s possession by police on 15 July 2016.

9. The offence of aggravated break, enter and steal was committed in the small hours of 19 July 2016 at the Oxley Wine Bar in Cowra. On this occasion the applicant was in the company of an unknown person, this being the aggravating circumstance. Access to the wine bar could be gained by opening a door of steel bars and then a wooden door behind it. The applicant used a jemmy to winch open the steel door and kicked in the wooden door. The two men entered the bar area, where they saw the keys to the till. They opened the till and took $500 in cash. They also took a 700ml bottle of bourbon and partly consumed a similar bottle. There was substantial damage to the rear doors.

10. Taken into account on this charge was a further offence of break, enter and steal at the same premises in the early hours of the following morning. On this occasion the applicant was alone. He used a brick to smash a glass panel in the front door and crawl through it. He stole $75 in cash from the tip jar, together with a bottle of bourbon, a bottle of rum, two bottles of beer, a bottle of whiskey and two cans of soft drink. The bottle of rum was later found smashed outside the wine bar and the cans of soft drink were left on the floor of the premises.

11. The loss suffered by the wine bar from these offences was $2,000.

12. The applicant was arrested on 21 July 2016. In an electronically recorded interview with police he made full admissions in relation to all of these offences.

Subjective case

13. The applicant was 26 years old at the time of the offences, and is now 29. He has a bad criminal record, commencing in the Children’s Court and continuing in the Local Court and the District Court. There are entries for a number of offences of breaking, entering and stealing, and an offence of armed robbery, leading to several terms of imprisonment, as well as possession of drugs. He has also been dealt with on a number of occasions for misconduct offences whilst in custody. At the time of the present offences he was on a bond for driving with the prescribed concentration of alcohol. His Honour dealt with that offence by revoking the bond but imposing no penalty.

14. His background was set out in a psychological report of Ms Katie Martens, supplemented by his own brief evidence.

15. His parents separated when he was 7 years old, and he has not seen or spoken to his father since. He was raised by his mother, who later formed another relationship which has endured. He is close to his mother and has a positive relationship with his stepfather. He has seven half siblings. He has a continuing association with four of them, but no relationship with the others.

16. The family frequently moved house, so that he attended a number of schools. He was in special education classes because of his lack of achievement, and he found it difficult to develop relationships with teachers and other pupils. He was often suspended for disruptive behaviour of various kinds, and he frequently truanted during high school. He left school at the end of year 9. Thereafter he had occasional unskilled jobs, but was mostly unemployed.

17. From a relationship which has not endured he has a daughter, who was 8 years old at the time he was sentenced. As to friendships, he described what Ms Martens summarised as “seemingly persistent social isolation.”

18. He reported sexual interference by his grandfather, although he was unsure how often it had occurred and what age he had been at the time. To Ms Martens he expressed the view that this experience had not resulted in significant harm, saying that he “doesn’t think about it.”

19. He was significantly injured on two occasions. At the age of 19 he was seriously injured in a car accident, and at the age of 20 he was seriously assaulted in prison, apparently losing consciousness. He told Ms Martens that he did not have medical treatment for any ongoing effects of these events, but acknowledged experiencing difficulty with memory. Ms Martens noted that he appeared to have difficulty recalling details of past events during her interview with him. She expressed the view that this “may suggest some neurological impairment.”

20. He has a long standing history of polysubstance abuse, using a variety of illicit drugs and drinking alcohol, commencing at the age of 10–11. He told Ms Martens that he had attended the “Getting SMART” program while in gaol in 2011. There was also a failed attempt at residential rehabilitation in 2014. Ms Martens noted that he was “unable to verbalise any strategies” gained from those programs, suggesting to her “limited retention of information”. She saw his history as consistent with substance use disorders relating to alcohol and drugs. He has also had a problem with gambling on poker machines.

21. He told Ms Martens that the present offences were impulsive and driven by the need to finance his drug use. He said that all his offending had occurred during periods of illicit drug use, and expressed the opinion that his criminal conduct was linked to his substance abuse. This his Honour accepted.

22. He has a history of self-harm in response to distressing emotions. He told Ms Martens that for the past 6 years he had experienced persistent low mood and emotional lability arising from minor stressors. He said that he had his family and his daughter, but that otherwise “life sucks”. He twice attempted suicide. He regularly visited mental health services while in custody, and had been taking Zoloft to stabilise his mood during the present period of custody. However, he had no significant engagement with treatment services in the community.

23. By way of psychometric assessment, Ms Martens administered an instrument designed to provide information on psychopathology, including specific mental health disorders. She administered this verbally because of his “self-reported literacy level”. Not surprisingly, it highlighted his persistent alcohol and polysubstance abuse, indicating “a likelihood of recurrent substance abuse problems and tendencies towards having difficulties managing impulsive behaviour.” His responses also suggested that he “distances himself from activities that involve intimate personal relationships, and whilst seeking acceptance, is unlikely to become involved out of fear of being shamed or humiliated.”

24. Ms Martens reported that his description of his low mood and irritability “indicates a low tolerance to distressing emotions, which he manages through ongoing self-injury, suicidal ideation, substance use and thrill seeking behaviours.” She referred also to his reported deficits in memory, adding that “whilst it is uncertain as to whether this predates his experience of head injury, he would benefit from neurological assessment to fully explore his neurological functioning.”

25. Ms Martens noted that the applicant expressed “a level of comfort when incarcerated”, saying that he does not have to worry about anything there. She reported that this suggests that he is “somewhat institutionalised, craving the routine and predictability that custody provides”. She also noted that he reflected upon the effect of his criminal conduct on his mother because of her voluntary work at St Vincent de Paul, saying that he felt “really bad about it” and expressing the fear that it might have impacted on her at work. Ms Martens reported that he demonstrated some insight into his risk of future offending, understanding that continued substance abuse would likely lead to further criminal conduct and that he needed to find secure work and housing. He also expressed a willingness to engage with mental health providers and residential rehabilitation “to address his complex needs”.

26. Ms Martens emphasised the need for the applicant to address his substance abuse, which would be likely to require long term intervention to support the cessation of that abuse and the maintenance of abstinence. She added that any intervention in that respect needed to be complimented by mental health supports designed to provide him with the capacity to tolerate and regulate distressing emotions. Further, given his stated difficulty with memory, efforts in intervention should be responsive to his learning needs. In her report she recommended various treatment and support programs within the correctional system and, upon his release, in the community.

27. In his evidence in the sentence proceedings the applicant attested to the truth of the history he provided to Ms Martens. This also his Honour accepted. He expressed his remorse for the offence generally, saying that he “felt terrible” about them. He again referred to the embarrassment he caused his mother. His Honour was satisfied that he had “demonstrated appropriate contrition and remorse by reason of his evidence, by reason of the representations made to the psychologist and, significantly, by reason of the complete admissions he had made in respect of the full range” of his offending.

28. His Honour referred at some length to Ms Marten’s report. He noted the applicant’s evidence that he wanted to undertake a TAFE course and to attempt to re-establish contact with his daughter. He had the continued support of his mother, with whom he had remained in contact by phone. His Honour noted that he had spent “a good deal of his adult life” in custody, and saw the risk of his becoming institutionalised. His Honour said:

“It would seem to the Court that this is the one opportunity that he will have to pay the price for his misconduct, take appropriate steps to redirect his life and hopefully come back out into the community with a changed attitude, with a structure that will facilitate and assimilate him into society without engaging upon the criminality which he has pursued in the past.”

He sought to foster that prospect of rehabilitation by an “ample” finding of special circumstances.

The application

29. Counsel for the applicant, Mr Quilter, argued the application on two grounds:

1. The sentencing judge failed to assess the objective seriousness of the offences or, alternatively, failed to give reasons for those assessments.

2. A miscarriage of justice occurred because his Honour did not know, and therefore did not take into account, the fact that the applicant suffered from an intellectual disability.

(1)    Objective gravity

30. In final submissions in the sentence proceedings, counsel for the applicant focused on his subjective case and, apart from observing that his Honour was faced with “a number of serious offences”, did not address the issue of the objective gravity of the offences. The Crown’s representative did. He submitted that the offences were “at about mid-range”, having regard to the fact that the premises broken into were business premises and not residences, that there was a degree of damage to the premises as a result of the method of entry, and that the property taken could not be considered as insubstantial. He then went on to deal with the applicant’s subjective case.

31. In his reasons his Honour recited the facts of the offences without commenting upon any aspect of them which might bear upon objective gravity. Later in his reasons he summarised the submissions for the Crown and the applicant. In so doing, all he said on the issue of objective gravity was the following:

“The Crown submits that the offences fall within midrange and I understood submissions to include the aggravated break, enter and steal. In my view, as I have indicated, the objective gravity of the offence falls a little below midrange.”

32. Earlier in his reasons, when setting out the principles relating to the standard non-parole period, his Honour had anticipated a finding that the objective gravity of the aggravated break, enter and steal fell “below the middle range.” For present purposes nothing turns on the slight difference of expression.

33. Mr Quilter observed that an assessment of the seriousness of an offence is a critical part of the sentencing process, relying upon R v Van Ryn [2016] NSWCCA 1. In that case R A Hulme J, with whom Leeming JA and Johnson J agreed, dealt with the issue, with reference to authority, at [133] – [140]. For present purposes it is sufficient to set out the first four of those paragraphs:

“[133] In the summary of the sentencing judgment set out above it is clear that apart from reciting the facts of the offences the judge made no assessment of their objective seriousness or, if he did, he said nothing about it. Latham J observed in R v Cage [2006] NSWCCA 304 at [17] that:

"A bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing."

[134] In R v Campbell [2014] NSWCCA 102 at [27] Simpson J (as her Honour then was) (with whom Hall J agreed) stated:

“In my opinion, the assessment of objective seriousness is, and has always been, a critical component of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[72]. These cases were all decided before judgment was given in Muldrock v The Queen [2011] HCA 39; 240 CLR 120. There is nothing in that judgment that cuts across the principle stated. Muldrock exposed error in this Court in over emphasising the assessment of objective gravity in offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, of notional offences in the mid-range of objective seriousness. It does not preclude proper attention being paid to the objective seriousness of the particular offence under consideration: see, for example, R v Koloamatangi [2011] NSWCCA 288 per Basten JA.”

[135] One reason that it is important for there to be some assessment of the seriousness of an offence is because one of the purposes of sentencing is to ensure that the offender is adequately punished for the offence: s 3A(a) Crimes (Sentencing Procedure) Act. Another reason is the requirement that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15] (Spigelman CJ). Further, it enables use of the legislative guideposts of the maximum penalty and any prescribed standard non-parole period: R v West [2014] NSWCCA 250 at [27] (Adamson J).

[136] In Delaney v R; R v Delaney [2013] NSWCCA 150 the Crown raised a ground asserting that the sentencing judge had failed to determine the objective criminality of the offences. Hoeben CJ at CL (with whom the other members of the Court agreed) responded (at [56]):

“While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.”

34. In that case the sentencing judge “simply recited the facts by reference to the statement of agreed facts”: [137].

35. The Crown prosecutor in this Court referred to Gal v R [2015] NSWCCA 242, a case in which the sentencing judge (in ex tempore reasons) had barely dealt with the facts at all. Beech-Jones J, with whom Bathurst CJ and Price J agreed, referred to Campbell and Delaney but added at [39]:

“Nothing in this judgment is meant to suggest that a sentencing judgment must dwell upon either the facts of an offence or their objective seriousness at any length. Instead, at a minimum such reasons should state or refer to the essential facts upon which an offender is sentenced and provide at least some assessment of, or reflection upon, the seriousness of the offending conduct.”

36. In the present case the Crown prosecutor noted that what his Honour said about objective gravity was in the course of summarising the submissions of the parties, and it should be inferred from the passage quoted above that his Honour was adopting the submission of the Crown’s representative on objective gravity with the exception of the offence of aggravated break, enter and steal, which he found to fall just below the mid-range. He submitted that what his Honour said indicates that he must have given consideration to the factors bearing upon objective seriousness in accordance with the submissions made.

37. That submission invites the Court to draw an inference about his Honour’s approach to this issue which is not fairly available from the little he said about it. The Crown prosecutor did not suggest that there was any express assessment of the objective seriousness of either count 1 or count 2. His argument was that it should be inferred that, save where his Honour indicated otherwise, the submissions of the Crown’s representative were adopted. That would result in the unlikely consequence that the objective seriousness of counts 1 and 2 was in the middle of the range (as the Crown’s representative had submitted), higher than the objective seriousness of count 3, as to which his Honour twice rejected this aspect of the Crown’s submissions. This is not intended to detract from the fact that it is sufficient for a sentencing judge to indicate very briefly the objective seriousness of an offender’s conduct. Here - and the reason why this is a clear case - the sentencing judge appears merely to have reproduced, in substance verbatim, the agreed facts and wholly neglected to enunciate any independent evaluation of the objective seriousness of the offences.

38. It is understandable that his Honour placed emphasis on the applicant’s subjective case, particularly as he saw him standing at a point in his life where rehabilitation might be achieved. Clearly, he approached the matter with compassion and extended leniency to foster that prospect of reform. Nevertheless, an adequate assessment of the gravity of the offences needed to be made, and his Honour’s reasons fall short of meeting that requirement.

39. This ground is made out. That being so, it is unnecessary to determine the second ground, which relies upon additional evidence which was not before his Honour. The court’s discretion to resentence the applicant has been enlivened, and that material will be taken into account on that issue.

Re-sentence

40. Mr Quilter read an affidavit of his instructing solicitor, Ms Carlie Rothman, to which was annexed a report of Dr Sally McSwiggan, neuropsychologist, and a further report of Ms Martens. In the course of preparing the application for leave to appeal, Dr McSwiggan was engaged to conduct a neuropsychological assessment of the applicant. She provided that assessment in her report of 12 August 2018. She interviewed the applicant and his mother, who provided additional information about his intellectual functioning in his earlier years.

41. She told Dr McSwiggan that when the applicant was in year 1 at school she observed him to be “always very slow”, unlike his half siblings. He was always at the bottom of the class and did not progress intellectually at the same rate as his peers. She noted that he did not make friends and did not seek social contact, preferring to play alone. He was slow to learn how to tie his shoes and how to ride a bike. She described him as “clumsy.”

42. On the advice of the school, when he was 8 years old she took him to see a “specialist”, although she could not recall if this was a paediatrician. He was diagnosed with Attention Deficit Disorder and prescribed medication, but this did not assist him academically. She could not recall him every undergoing an IQ assessment. He never learnt the basics of reading or writing, despite her attempts to assist him. She observed a lack of progression in all aspects of the primary school curriculum.

43. He was in year 7 when he was placed into a special education unit within Cowra High School. There he remained for the rest of his schooling.

44. The applicant told Dr McSwiggan that he attended TAFE for a few weeks, attempting a literacy course, but he discontinued because of his substance abuse. Such employment as he had was gained with assistance from his mother or his stepfather. He received Centrelink benefits, but had difficulty complying with reporting requirements because he could not read correspondence from Centrelink.

45. The history provided to Dr McSwiggan in other respects was consistent with that in Ms Martens’ report.

46. Dr McSwiggan administered a number of tests bearing upon the applicant’s intellectual functioning. Ms Martens had not administered tests of this kind. The nature of each of those tests and the results obtained need not be set out. It is sufficient to refer to her conclusions based upon the tests and the history.

47. Dr McSwiggan noted that the applicant’s “developmental profile in relation to education attainment showed an onset of pervasive cognitive difficulties” before he turned 18. The test results showed an overall general ability of intellectual functioning in the extremely low range, operating at the 2nd percentile compared to the normative sample in his age range. There were no “statistically or clinically significant differences between his intellectual cognitive domains.” His adaptive functioning was generally impaired, operating below 99 per cent of his “age matched peers in conceptual, social and practical life skills.”

48. Taken together, these matters met the criteria under DSM-5 for an “Intellectual Disability, falling at the mild range.” Mild intellectual disability represents around 85 per cent of intellectual disability overall, with much less representation in the moderate and severe range.

49. Consistently with this diagnosis, Dr McSwiggan found him to have impaired literacy skills, operating at a 2nd grade level. Further, he demonstrated “impaired new learning with orally presented information.” She added that his learning ability “was unusually poorer than that expected of a person with his general cognitive abilities.” She considered this “pronounced deficit” to be due partly to “mild to moderate traumatic brain injuries” from the motor vehicle accident and the assault and, perhaps to a lesser extent, prolonged substance abuse.

50. Dr McSwiggan’s report was referred to Ms Martens, who provided a further report of 25 October 2018. She noted that Dr McSwiggan’s neuropsychological profile provided “more clarity” as to the applicant’s intellectual functioning, adaptive behaviour and functional impairments. She found it “unsurprising” that he struggled to recall information from his childhood, and she was of the view that the impact of his “traumatic developmental experiences” were likely to have been “compounded by his neurological impairments.” She noted his failure to engage successfully in employment and to form peer relationships, and his continued addictive behaviour despite intervention.

51. She added that in light of his “intellectual delay, memory impairment and low literacy levels,” it was not surprising that rehabilitation efforts to date had not been successful. She referred to his stated preference for incarceration where he did not have to “worry about anything”, adding that this could be understood by his intellectual disability and lack of adaptive skills, together with his mental health instability.

52. Dr Martens concluded:

“… I maintain that the salient features regarding Mr Twaddell’s criminal conduct include his substance use, lack of finances, impulsivity and thrill seeking. However, it is also likely that his limited available cognitive resources have impacted his decision making, and ability to learn more adaptive methods of solving problems and coping.”

53. As to the recommendations in her original report about intervention and support, she added that it appeared “that his needs are more complex than initially thought and he likely requires support across a number of areas.” Among other things, she recommended referral to a disability support service.

54. Mr Quilter submitted that this evidence establishes that at the time of the offences the applicant had a significant intellectual disability, bearing upon his moral culpability for the offences and the weight to be given to the purposes of sentence, including general deterrence. He referred to Muldrock v The Queen (2011) 244 CLR 120, [2011] HCA 39, in which the High Court considered the principles relating to sentencing mentally retarded offenders. In that case the Court observed at [50] that the assessment of the appellant as suffering from a mild intellectual disability “should not obscure the fact that he is mentally retarded”. The condition of mental retardation is classified “according to its severity as mild, moderate, severe or profound.”

55. At [53] the Court referred to the familiar principle that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. Their Honours continued at [54]:

“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.”

(References to authority omitted.)

56. The Crown prosecutor pointed out that there was no suggestion that the applicant’s intellectual disability impaired his understanding of the wrongfulness of his actions, noting his expressions of remorse and his clear admission in cross-examination that he knew that his behaviour was “wrong when I was doing it but my drug addiction overrode the wrongness I suppose”. So much may be accepted. However, the effect of the applicant’s disability upon his decision making capacity is important. As the Crown prosecutor pointed out, the offences cannot be described as impulsive in the sense of being committed on the spur of the moment. Plainly enough, they were planned to some degree and amounted to a course of conduct of some persistence over a period of three months. That being so, evidence that they may nonetheless have been the product of impaired decision making due to an intellectual disability is of considerable significance.

57. The report of Dr McSwiggan and the second report of Dr Martens establish a significant intellectual disability which casts additional light upon the present offences and the applicant’s troubled background. They show that impaired decision making produced by that disability contributed to the admission of these offences. To that extent, the need for the sentence to reflect considerations of retribution, denunciation and general deterrence is reduced. Personal deterrence, of course, remains important.

58. The evidence also bears upon the issue of rehabilitation, which looms large in this case. As Ms Martens noted, it appears that the applicant’s needs are more complex than they were originally thought to be, and his prospects of rehabilitation fall to be assessed in the light of the programs and support services required to address those needs.

59. Further material was received for the purpose of resentence. An affidavit of the applicant’s mother, Jill Marree Twaddell, was read. Ms Twaddell attests to her close relationship with the applicant and her regular contact with him. She continues to support him, and offers him accommodation upon his release. The affidavit also reveals that in June 2017, one of the applicant’s step sisters, who was 37 years old, died in circumstances leading to an ongoing police investigation. The applicant had been close to her and was deeply distressed by her death. Ms Twaddell has observed some positive changes in the applicant’s attitude while in custody which, she believes, have resulted from his half-sister’s death. She also deposes that he has had phone contact with his daughter, now 10 years old. Before going into custody he had had some contact with the girl, and he wishes to have more contact with her upon his release.

60. The Crown read an affidavit of Emma Pearl Phillips, a solicitor employed at the Office of the Director of Public Prosecutions, to which is annexed material disclosing that while in custody the applicant was dealt with for breaches of discipline in January and February 2018. These were refusing to supply a urine sample (to test for drugs), and possessing a drug (buprenorphine).

61. On the material before his Honour, the sentence he passed was lenient. Nevertheless, particularly in the light of the additional evidence received on resentence, the Court is persuaded that a lesser sentence is warranted.

62. In assessing the objective gravity of the offences, the degree of planning, which would hardly be described as sophisticated, has been referred to. Otherwise, the premises broken into were not residential, and the money and property stolen, while by no means insignificant, were not substantial. The offence under s 112 of the Crimes Act is breaking into premises and committing a serious indictable offence therein. The offence here, of course, was stealing, which is relatively low in the range of gravity of serious indictable offences. On the other hand, there was significant damage to the premises on each occasion, and for the purpose of the offences at the St Vincent de Paul premises the applicant was able to call in aid his knowledge of those premises as a volunteer and as a visitor there.

63. Taking all of these matters into account, the objective gravity of each of the three offences should be assessed at below the mid-range but not markedly so. Of course, for the purpose of sentence, regard must be had to the Form 1 matters. It is appropriate to deal with the offences by an aggregate sentence, which must also give due weight to the applicant’s subjective case and the need to foster his rehabilitation. As his Honour found, there are special circumstances warranting a departure from the statutory proportion between sentence and non-parole period.

64. The sentence the Court imposes will include a non-parole period which will already have expired. The sentence in the District Court was passed on 17 March 2017. There has been significant delay in the appeal coming to hearing for reasons which were not ventilated. The notice of appeal was filed in that last week of term in December 2018. It was listed for call-over in the first week of the new term and allocated a hearing some nine weeks later. By this time, the applicant had served some 2 years and 8 months of a sentence with a non-parole period of 3 years.

65. For each of the offences of breaking, entering and stealing the indicative sentences should be 2 years and 6 months. For the offence of aggravated breaking, entering and stealing the indicative sentence should be 3 years and 6 months with a non-parole period of 2 years. The appropriate aggregate sentence is imprisonment for 4 years and 6 months with a non-parole period of 2 years and 9 months, to date from 21 August 2016.

Orders

66. The Court orders that:

1. Leave to appeal is granted and the appeal is allowed.

2. The sentence passed in the District Court is quashed. In lieu, the applicant is sentenced to an aggregate term of imprisonment of 4 years and 6 months commencing on 21 August 2016 and expiring on 20 February 2021, with a non-parole period of 2 years and 9 months, expiring on 20 May 2019.

3. The applicant is eligible for release on parole immediately.

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Decision last updated: 05 June 2019