Stanley v R

1. [1]

   SIMPSON AJA: I agree with Harrison J.

2. [2]

   JOHNSON J: The reasons of Harrison J reflect my reasons for joining in the making of orders on 9 May 2018 allowing the appeal and resentencing the applicant.

3. [3]

   HARRISON J: The applicant is a 32 year old Aboriginal man with an intellectual disability who was sentenced by McLennan DCJ on 7 September 2017 to a period of 3 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months, on a charge of robbery in company. The applicant had pleaded guilty at the earliest opportunity and was given a 25 percent discount for doing so. It follows that the starting point for the sentence imposed by his Honour for the robbery count was 4 years and 8 months. The applicant was also sentenced to a fixed term of 6 months imprisonment for resisting police. Both sentences commenced on 15 August 2016. The fixed term sentence has now expired. The applicant will become eligible for release on parole on 15 February next year.

4. [4]

   The applicant sought leave to appeal against the severity of his sentence on a number of grounds as follows:

5. [5]

   At the conclusion of the hearing, the Court made the following orders:

6. [6]

   These are my reasons for joining in those orders.

Background

1. [7]

   At 11.10am on 15 August 2016, David Lysaght, a man in his early twenties, left his house in Moree and commenced to walk to work. He was approached by two Aboriginal men who threatened him by saying, among other things, that they were going to knock him out and take his belongings. Shortly thereafter Mr Lysaght was approached by the same men, who had by this time been joined by the applicant. One of the first two men said, “Give us all your shit or we’ll bash you, we’ll knock you out.” Mr Lysaght thereupon gave the men two twenty dollar notes from his wallet. One of the men said, “That better be all of it.” Mr Lysaght then noticed an off-duty policeman driving past. He flagged him down. The officer drove Mr Lysaght to the police station where he gave a statement.

2. [8]

   Later the same day the applicant was located and approached by police. As he was being cautioned he attempted to run away. The officer managed to restrain the applicant and forced him to the ground. A short struggle ensued, after which the applicant was handcuffed and taken into custody.

3. [9]

   The applicant took part in an electronically recorded interview. He said that after he had been given cigarettes by Mr Lysaght, he left. He said, however, that he heard someone say that they took forty dollars and that the other two men ran off when the off-duty policeman arrived.

Remarks on sentence

1. [10]

   The following extracts from his Honour’s remarks on sentence appear to be relevant to the present appeal.

2. [11]

   With respect to the applicant’s involvement in the subject offences, his Honour said this:

3. [12]

   His Honour detailed the applicant’s background as follows:

4. [13]

   On the issue of the applicant’s moral culpability his Honour stated:

5. [14]

   His Honour found that the applicant showed no remorse in relation to the commission of the subject offences and, in the report of Ms Hübner, “sought to minimise, and indeed completely avoid, criminal responsibility.” He found that the offence was related to his “drug seeking behaviour” and that the offence was “relatively spontaneous”. He concluded that general deterrence should be reduced because of the applicant’s background and intellectual disability but that there was a need for specific deterrence having regard to his history of offending.

6. [15]

   On the issue of general and specific deterrence his Honour said:

7. [16]

   His Honour then went on to detail the applicant’s criminal antecedents in both New South Wales and Queensland. When referring to the applicant’s Queensland criminal antecedents he stated:

8. [17]

   His Honour then referred to the pre-sentence report (exhibit A on sentence) and to the applicant’s prospects of rehabilitation and re-offending. He concluded:

9. [18]

   His Honour rejected the submission that he should find special circumstances so as to vary the ratio of the non-parole period to the total sentence to be imposed on the basis that the applicant “has very poor prospects of being rehabilitated,” but if wrong in that regard he stated:

Ground 1(a)

1. [19]

   According to his psychologist, Ms Hübner, the applicant’s overall IQ composite score fell within the lower extreme range (that is, well below 70) with his overall performance being weaker than 99 percent of the population. On examination he appeared to have limited receptive and expressive language skills, and provided concrete answers to questions. That is to be compared with his Honour’s reference in his remarks on sentence to the applicant’s score being merely “below 70 percent”. The applicant maintained that this difference was significant and that it amounted to an error inasmuch as his Honour, if only inadvertently, has understated the applicant’s mental or intellectual difficulties with a corresponding impact upon his sentencing discretion and upon the ultimate sentence that he imposed.

2. [20]

   The applicant re-emphasised what the High Court said in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [50]–[54] in the following terms:

3. [21]

   His Honour also had the benefit not only of Ms Hübner’s IQ test assessment but also her opinion as to the way in which his mental capacities would appear to have affected his ability to function in society. For example, Ms Hübner said this:

4. [22]

   The applicant also drew attention to what was said by this Court in Yun v R [2017] NSWCCA 317 at [47] as follows:

5. [23]

   It seems to me that it is presently unnecessary to consider the relationship between mental retardation and either moral culpability or objective seriousness in the context of sentencing this applicant in order to dispose of this ground of appeal. It is not in dispute that the applicant suffers from a significant intellectual deficit. As the High Court has made clear in Muldrock, somewhat different considerations apply to the calculation of a proper sentence in the case of an intellectually disabled offender. It is evident, or at least arguable, that his Honour misconceived or misapprehended the extent of the applicant’s mental problems. While it must be emphasised that this is understandable in the context of a very busy District Court criminal list in Moree, or any similarly congested regional or metropolitan sittings, the difference between “below 70 percent” and “well below 70 percent” is potentially quite significant. I consider that his Honour fell into error in apparently not recognising or not giving prominence to the difference.

Ground 1(b)

1. [24]

   The evidence at the sentencing hearing demonstrated that the applicant came from an economically and socially impoverished or deprived background. This was uncontested below and appears from at least the following passages from Ms Hübner’s report:

2. [25]

   Simpson J referred to the importance of such circumstances for sentencing purposes in R v Millwood [2012] NSWCCA 2 at [69]:

3. [26]

   Subject only to consideration of ground 3, it did not seem to me that his Honour demonstrably erred in failing to find that the applicant’s deprived background reduced his moral culpability. His Honour accurately referred to the facts and I was not prepared to assume that in doing so he did not take all of what he recorded in his remarks on sentence into account.

Ground 2

1. [27]

   His Honour’s remarks on sentence referred to the applicant’s criminal history in Queensland in the following terms:

2. [28]

   The applicant contended that it would be unreasonable to rely upon the fact that he was on bail at the relevant time as a circumstance of aggravation bearing in mind that the bail in question related to offences that occurred over 5 years before the subject offences. I did not consider that the antiquity of the offences for which the applicant was on bail meant that they could not qualify as an aggravating factor. His Honour was entitled to treat them as such. It was reasonably apparent, however, that his Honour did not consider this “aggravating matter” to be particularly significant.

3. [29]

   This ground of appeal was not made out.

Ground 3

1. [30]

   The principles that apply to a consideration of whether or not a sentence is manifestly excessive or unreasonable or plainly unjust are well settled and require no restatement: see, for example, Vale v R [2016] NSWCCA 154 at [37] and [38].

2. [31]

   A sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].

3. [32]

   His Honour concluded that the robbery offence was well below mid-range of objective seriousness and in fact was at the lower end of the range of what he characterised as street robberies. His Honour additionally considered that the offence was relatively spontaneous. Notwithstanding these largely unexceptionable remarks, his Honour selected a starting point, prior to the application of a 25 percent discount for an early plea of guilty, of 4 years and 8 months. In my opinion, having regard to all of the circumstances of this case, his Honour erred in doing so.

4. [33]

   The applicant is a functionally illiterate indigenous man, with an intellectual capacity in the range of the lowest one to three percent of the population, from a deprived background replete with drug and alcohol abuse. The robbery offence involved no planning and no actual violence. The victim of the offence appears to have handed over forty dollars but not to the applicant. As already mentioned, the applicant related to the psychologist, Ms Hübner, a history of exposure to domestic violence, substance use and poverty. He led an unproductive life, having only ever been employed once when in his teens, engaging in hazardous levels of drug taking. Despite these matters, his Honour came to the following conclusion:

5. [34]

   It seemed to me that his Honour, whilst specifically acknowledging the fact that it was appropriate to reduce the significance of general deterrence in the case of an intellectually disadvantaged offender, failed properly or adequately to give effect to that requirement. In my view, full time incarceration of this applicant for a term or 2 years and 6 months imprisonment was manifestly excessive.

Re-sentence

1. [35]

   Ms Hübner’s recommendations serve eloquently to put the applicant’s situation in clear focus:

2. [36]

   When the application was heard, the applicant had already been in custody for a few days short of 1 year and 9 months. Although there can never be only a single correct sentence, and several sentences within a range may nevertheless withstand appellate intervention, I considered that in the present circumstances, it would be unreasonable and plainly unjust if he were required to remain in custody any longer. The sentence imposed upon the applicant was in my opinion disproportionate to the gravity of the crime, having regard to its objective seriousness and the applicant’s intellectual ability.

3. [37]

   I considered that the robbery offence fell at the lowest end of objective seriousness for offences of this type.

4. [38]

   The period already served by the applicant was in my view sufficient to incorporate an appropriate element of specific deterrence. The significance of general deterrence is reduced in the case of an offender with an intellectual disability.

5. [39]

   I note that his Honour was disinclined to find special circumstances for the reasons he clearly expressed. In my view, even though the scope for rehabilitative assistance, monitoring and support within a relatively short parole period may be limited, I nevertheless considered that it was important to optimise that period as far as reasonably practicable.

6. [40]

   His Honour assessed the applicant’s prospects for rehabilitation as poor and he considered that the applicant was not genuinely motivated to change. It may be that his Honour’s predictive assessment was well founded. The difficulty with factoring that prediction into the sentencing equation in this case, however, was that it failed to make sufficient allowance for the fact that the applicant’s endogenous abilities will never improve. It may therefore be potentially unfair to include these considerations in the sentencing of an individual who is inherently incapable of change, as opposed to someone with the intellectual resources to do so. For that reason, I considered that the applicant’s prospects of rehabilitation were a direct function of his success in gaining access when released on parole to appropriate support and assistance of the kind identified by Ms Hübner.