Kentwell v R (No 2)

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgment of Rothman J in draft. In these circumstances, I can state my reasons and conclusion relatively briefly.

2. [2]

   Rothman J has set out the charges on which the applicant was sentenced, the sentences imposed and the summary of the facts surrounding the offences, contained in the judgment of Bellew J in Kentwell v R [2013] NSWCCA 266 (first appeal) at [11]-[31], Hoeben CJ at CL and Johnson J agreeing.

3. [3]

   Although this Court in the first appeal found that each ground of appeal was made out, an extension of time to seek leave to appeal was refused as, in the Court’s opinion, the errors in sentencing did not result in substantial injustice.

4. [4]

   On appeal, the High Court held that the approach taken by the Court of Criminal Appeal was erroneous: Kentwell v The Queen [2014] HCA 37; 313 ALR 451 (High Court judgment). The Court stated that the discretion to extend time was to be exercised by consideration of what the interests of justice required in a particular case. The plurality held that in an application for an extension of time based on an asserted “Muldrock error”, it was an error to introduce a consideration of whether refusal of the application would occasion substantial injustice. Further, it was emphasised that the principle of finality had no part to play in considering whether the discretion to grant an extension of time should be exercised: High Court judgment at [30]-[32].

5. [5]

   The plurality stated that courts should refrain from formulating guidelines for the exercise of the discretion to extend the time for seeking leave to appeal: High Court judgment at [30]. However, the High Court also held that the applicant’s prospect of success, should the application be granted, was relevant to the determination of the interests of justice in such an application: High Court judgment at [32].

6. [6]

   The High Court emphasised that upon the error being identified, the task of this Court under s 6(3) of the Criminal Appeal Act 1912 (NSW), in considering whether some other sentence was warranted in law, was to exercise the sentencing discretion afresh. The plurality accepted the remarks of Spigelman CJ in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at [19], that the task of the Court was to re-exercise the sentencing discretion, “taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides”: High Court judgment at [40]-[42]. The conclusion of the plurality on this question was in the following terms:

Should an extension of time be granted

1. [7]

   In my opinion, an extension of time to seek leave to appeal should be granted. I agree with the conclusions and reasons of Bellew J in the first appeal that each of the grounds of appeal were made out. However, I do not consider it necessary for the purpose of considering this issue to determine whether the errors the subjects of Grounds 2 and 3 were or were not immaterial: first appeal at [45], [51]. In particular, I agree with the conclusion of Bellew J that the mental illness suffered by the applicant rendered him “an inappropriate vehicle through which to deter others from similar offending”: first appeal at [65].

2. [8]

   Further, as was made clear in the High Court judgment, the delay in bringing the application for leave to appeal was through no fault of the applicant: at [14]-[16]. Indeed, the circumstances in which the application comes to be determined, some six years after the applicant was sentenced, tends to weigh in favour of granting leave rather than against it.

3. [9]

   Finally, as pointed out by Rothman J, the applicant has taken substantial steps towards rehabilitation during the period of his imprisonment: below pars [94]-[95].

4. [10]

   In these circumstances, it is appropriate in my opinion that leave be granted.

5. [11]

   As Rothman J has pointed out, the application for an extension of time was not opposed by the Crown.

Disposal

1. [12]

   As I have indicated, I agree, for the reasons stated by Bellew J in the first appeal, that the grounds of appeal have been made out. It is thus necessary to re-exercise the sentencing discretion.

2. [13]

   Rothman J has dealt with the objective seriousness of the offences, the applicant’s subjective circumstances and his rehabilitation since his imprisonment in pars [64]-[81] and [94]-[96] below. I agree with his Honour’s remarks. Further, I am prepared to accept that the removal of the applicant from his natural parents and his consequent difficulty in adjusting to a “white fella’s world” (see the Pre-Sentence Report of Probation and Parole Officer Bryson dated 6 September 2006) is evidence of a deprived background and social disadvantage which may mitigate the sentence, consistent with the principles in Kennedy v R [2010] NSWCCA 260 at [53]; Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [37]-[44]; Neal v The Queen [1982] HCA 55; 149 CLR 305 at 326 per Brennan J.

3. [14]

   In the circumstances, I agree with Rothman J that a lesser sentence is warranted in law. Taking into account the matters to which I have referred to above in par [13], I am of the opinion that the following orders should be made.

4. [15]

   The orders I would make are as follows:

   1. (1)

      Extend the time for bringing an application for leave to appeal up to and including 28 June 2013.

   2. (2)

      Grant the applicant leave to appeal against the sentence imposed on him on 20 February 2009.

   3. (3)

      Allow the appeal.

   4. (4)

      The sentences imposed by the District Court on 20 February 2009 on the applicant be quashed and the following sentences be passed in substitution therefor:

   5. (5)

      The overall sentence is imprisonment of 11 years and 4 months consisting of an overall non-parole period of 7 years and 4 months, commencing 6 April 2008 and concluding 5 August 2015, with a remainder of term of a further 4 years concluding 5 August 2019.

   6. (6)

      The applicant is first eligible for parole on 6 August 2015.

5. [16]

   ROTHMAN J: Philip Charles Kentwell, hereinafter the appellant, seeks an extension of time to appeal sentences imposed on him. If the extension of time were granted, the appellant seeks leave to appeal and to appeal the sentence. The extension of time, the leave to appeal and the appeal were heard concurrently.

6. [17]

   It is necessary to set out the unfortunate litigious history of this matter. On 20 February 2009, the appellant was sentenced by Johnstone DCJ in the District Court at Parramatta for a number of offences. The sentence for each offence occurred after a guilty verdict by a jury. For one offence with which the appellant was charged (Count 6), the jury returned a verdict of not guilty.

7. [18]

   The charges and sentence imposed were as follows:

8. [19]

   Initially, there was no appeal against sentence. It is appropriate to note, at this juncture, that the sentencing remarks relied upon the approach to standard non-parole period arising from the judgment of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. No application for leave to appeal was filed within time, although a Notice of Intention to Appeal against Conviction and Sentence was filed and not pursued. The circumstances of that situation are set out in Kentwell v R [2013] NSWCCA 266 at [7] (the first appeal judgment).

9. [20]

   Following the judgment of the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, the appellant sought leave to appeal out of time for “Muldrock error”, namely the sentencing judge’s application of the judgment of the New South Wales Court of Criminal Appeal in R v Way, which approach was disapproved in Muldrock. It should be borne in mind that the sentencing judge was, at the time of sentence, bound by the judgment in R v Way. The High Court had earlier refused leave to appeal in R v Way.

10. [21]

    The application for extension of time came before the Court and was dealt with by judgment dated 14 November 2013: the first appeal judgment. The extension of time was refused. From that judgment the appellant successfully appealed to the High Court of Australia. The order of the High Court of Australia set aside the first appeal judgment and remitted the application for extension of time to the Court for determination.

11. [22]

    The first appeal judgment summarised the facts relating to the matter, which summary is taken from the Remarks on Sentence. No issue is taken with the summary, which is in the following terms:

12. [23]

    The Grounds of Appeal remain as they were when initially filed on 26 June 2013. They are in the following terms:

13. [24]

    Leaving aside the debate that has occurred as to whether a fixed term represents the non-parole period or the entire sentence, the Court has long held that the combination of s 44(1) and s 45(1) of the Crimes (Sentencing Procedure) Act 1999 requires the setting of a non-parole period, in the case of those prescribed offences for which there exists a standard non-parole period. It must be said that, after the judgment of the High Court in Muldrock, there seems a philosophical inconsistency in the exercise of the Court’s sentencing discretion between the approach to be taken to setting a non-parole period for standard non-parole period offences and the prohibition on imposing a fixed sentence for such offences. Nevertheless, the statute prevails over any perceived philosophical inconsistency.

14. [25]

    Abundant authority is to the effect that a non-parole period must be set for standard non-parole period offences. The construction of the statute to that effect depends upon the express discretion to impose fixed sentences for other offences. The exercise of the sentencing discretion must be “consonant with consistency of approach and as accords with the statutory regime that applies”; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at 624 [26]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 371 [27].

15. [26]

    In remitting the application for extension of time to this Court, the High Court held that the discretion to extend time is to be exercised by consideration of what the interests of justice require in the particular case: at [30]. The Court acknowledged that those interests will often pull in different directions. The prospect of success of the appeal should the extension be granted is a relevant factor but the assessment of that prospect does not end with the establishment of error. It also entails consideration of the determination required to be made under s 6(3) of the Criminal Appeal Act 1912 as to whether, having regard to the material placed before this Court, some other (less severe) sentence is warranted in law and should have been passed.

16. [27]

    The material relied upon by the applicant has persuaded me that the interests of justice require that the extension of time be granted in the present case. Although the delay is lengthy, the reasons for the delay are adequately explained. The sentence imposed entailed specific error, with the result that this Court’s discretion to re-sentence is enlivened. The evidence and submissions relied upon in support of the contention that some other (less serious) sentence is warranted in law are, in my view, such as warrant the grant of an extension of time.

17. [28]

    In coming to that view, I have taken into account the initial Notice of Intention to Appeal, the unfortunate situation in which the Aboriginal Legal Service considered they were in a conflict of interest and could no longer act, and the refusal of the Legal Aid Commission to grant Legal Aid, which, together, in these circumstances, were the fundamental reasons an appeal was not lodged at an earlier time.

18. [29]

    Further, there are manifest or identifiable errors in the principles applied on sentence. The foregoing comment is not a criticism of the sentencing judge, who, at least in relation to the alleged Muldrock error, applied the law as it then existed. It is recognition that the High Court in Muldrock restored the appropriate level of flexibility in the sentencing process that, hitherto, may have been confined by the principles applicable under this Court’s construction of the statute in R v Way.

19. [30]

    As was required at the time that the sentencing exercise was undertaken, the sentencing judge applied R v Way.

20. [31]

    The importance of the principle established by the High Court in Muldrock should not be underestimated. Error has occurred of the kind identified in Muldrock. The sentencing judge used the standard non-parole period for offences, for which a standard non-parole period was prescribed, as the starting point for the sentence to be imposed and added or subtracted for various factors. That approach was, in hindsight, an error. The ground of appeal is made out.

21. [32]

    The sentencing judge decided that, in relation to the offence in Count 7, special circumstances existed on the basis of the appellant’s psychiatric condition and drug and alcohol abuse. His Honour then determined that the offence itself was mid-range in culpability and set the standard non-parole period of 7 years with a remainder of term that was longer than would have been imposed if the prescribed statutory ratio were applied.

22. [33]

    As a consequence, counsel for the appellant submits that the finding of special circumstances led to an extension of the balance of term of imprisonment, rather than a reduction in the non-parole period, in order to afford a longer potential parole period.

23. [34]

    It is an error to use the finding of special circumstances to lengthen the head sentence in order to provide for the potential of an extended period on parole. Special circumstances have greater relevance in circumstances where one is mandated to fix a standard non-parole period, or to fix the statutory ratio for non-parole period to remainder of term, and gives reason for the amelioration of such a restriction. The effect of the finding of special circumstances may, if it be appropriate to give effect to that finding, be used to reduce the non-parole period that would otherwise have been determined. Special circumstances may not be used to lengthen the head sentence, beyond that otherwise considered appropriate.

24. [35]

    There were a number of aggravating and ameliorating factors associated with this offence and with the other offences, which his Honour outlined. His Honour’s finding that the two offences of sexual intercourse without consent were in “the middle range of objective seriousness” was a finding made prior to the adumbration of the aggravating and mitigating factors that his Honour recited by obvious reference to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999.

25. [36]

    Nevertheless, the sentencing judge thereafter (see [35] of the Remarks on Sentence) remarked that there was nothing in the mitigating and aggravating factors that warranted a variation in the standard non-parole period. As a matter of the proper interpretation of his Honour’s Remarks and of that which his Honour intended, his Honour’s sentence on Court 7 was infected by the error described above, namely, using special circumstances to lengthen the head sentence, rather than reduce the non-parole period. This ground of appeal is also made out.

26. [37]

    I have already remarked on a possible philosophical inconsistency between continuing a restriction in a sentencing judge’s capacity to impose a fixed term of imprisonment for an offence that carries a standard non-parole period and the flexibility that is required in the sentencing process, as emphasised by the High Court in Muldrock and Markarian.

27. [38]

    Nevertheless, the discretion reposed in a sentencing judge must be exercised in accordance with the statutory regime, regardless of the judge’s view of the appropriateness of the regime.

28. [39]

    On the basis of authority of this Court, it was inconsistent with the combined effect of the provisions of s 44(1) and s 45(1) of the Crimes (Sentencing Procedure) Act to impose a fixed sentence for an offence for which a standard non-parole period has been prescribed. As a consequence, there is error in the process of fixing that sentence and this ground of appeal has been made out.

29. [40]

    His Honour below analysed the evidence before him.

30. [41]

    In particular his Honour referred to the two reports of Dr Allnutt of 11 September 2008 and 19 February 2009. He quoted, at some length, from each report.

31. [42]

    As is correct, his Honour noted that the opinion of the psychiatrist was entirely dependent on the psychiatrist’s acceptance of that which the offender had told him. His Honour expressed a degree of scepticism as to the truth of those statements.

32. [43]

    Having done so, his Honour, nevertheless, took Dr Allnutt’s reports and opinion “at face value”, because of Dr Allnutt’s renowned reputation as a respected forensic psychologist. However, his Honour took the view that the offender’s medical condition did not justify his behaviour and did not have any connection with the sexual offences. His Honour was entitled to come to that view.

33. [44]

    I note that for mental illness to be an ameliorating factor in sentence, the illness need not be causative or connected to the commission of the offences; it need only be relevant to moral culpability or such as to diminish the appropriateness of the offender as a vehicle for general deterrence or denunciation. In the first appeal, the Court upheld this ground. I am not so convinced that the ground is made out, but in the circumstances of the other errors, this ground could have no effect on the result of the appeal. Whether the ground is made out depends on the manner in which the sentencing judge utilised the lack of connection and his Honour’s comments seem to disclose some ambivalence in that regard. It is unnecessary to deal with the ground further.

34. [45]

    There is identifiable error in the sentencing process, based upon that which is stated in the Remarks on Sentence. Those errors include at least the application of the principles in R v Way, as distinct from the principles later established in Muldrock; an increase in the length of the head sentence on account of special circumstances, resulting in a lengthier term of imprisonment being imposed for one offence; and the setting of a fixed term of imprisonment for an offence which carried a standard non-parole period.

35. [46]

    The grounds of appeal do not suggest that there is manifest excess. Nor do the grounds of appeal criticise the sentencing judge’s application of the principles of totality or suggest manifest error in the application of those principles. Nevertheless, there is identifiable error conceded by the Crown and, subject to the grant of leave to appeal and the effect of s 6(3) of the Criminal Appeal Act, re-sentencing should occur.

36. [47]

    The appellant is entitled to be sentenced in accordance with law and a person who is serving a current period of imprisonment is entitled to know that the period of imprisonment is authorised by law.

37. [48]

    While I do not suggest that the foregoing would always determine an application for an extension of time in which to appeal a sentence, given the disclosed errors and the interests of justice, it is sufficient to warrant the grant of an extension of time to appeal against the sentence imposed on the appellant in this case and I would propose that the Court grant the extension of time for which the appellant applies. The Crown, in this appeal, does not oppose the extension of time.

38. [49]

    As stated, subject to the operation of s 6(3) of the Criminal Appeal Act 1912 and the grant of leave to appeal, given that the extension of time is to be granted, re-sentencing must occur. In that context, the operation of s 6(3) of the Criminal Appeal Act needs to be reiterated.

39. [50]

    In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284, Spigelman CJ, with whom Latham J expressly concurred and with whom Kirby J, at least implicitly, concurred, discussed the operation of s 6(3) of the Criminal Appeal Act. The Chief Justice said:

40. [51]

    I, respectfully, agree with the conclusion of Spigelman CJ. The pluperfect subjunctive phrase “should have been determined” denotes an act completed prior to the point in the past to which reference is given or implicit. The subjunctive mood denotes the hypothetical nature of the action. The use of the present tense in the phrases “is of opinion” and “is warranted” renders the pluperfect subjunctive phrase subsidiary, as Spigelman CJ noted.

41. [52]

    It is this Court’s current opinion as to whether a lesser sentence is warranted that is operative and required. That opinion must be based on the evidence before the Court at the time the opinion is formed. The use of the word “is” in each operative phrase emphasises that approach, particularly because the word “if” ordinarily occasions the use of the subjunctive mood. The legislature’s deliberate use of “is”, instead of the subjunctive “were”, or somewhat awkwardly “be”, emphasises that present tense, non-hypothetical aspect.

42. [53]

    In other words, once the Court has granted leave to appeal and found error by the court below, the concluding words of s 6(3) of the Criminal Appeal Act require the Court to determine whether, on the correct application of the law and on the facts as we now know them to be (including any additional facts tendered for sentencing purposes), a lesser sentence “is warranted”, in which circumstance that lesser sentence “should have been determined” and should now be imposed.

43. [54]

    In Baxter, Spigelman CJ discussed some conflicting authority, or arguably conflicting authority, and made it clear (as have a number of other judgments of this Court) that the test in relation to s 6(3) of the Criminal Appeal Act is not “manifest excess” and the discretion that is exercised under the provision requires a consideration of “the full range of matters that inform the sentencing discretion”: Baxter at [15].

44. [55]

    In concurring with the reasons of Spigelman CJ, Latham J referred to comments of the Court in some cases as to the necessity to have “material error”. Her Honour made it clear that a proper analysis of the authorities clarified that “materiality” in that sense meant an error that could possibly affect the result: Baxter at [83].

45. [56]

    In doing so, her Honour referred to the passage from R v Burke [2002] NSWCCA 353 in which Sperling J (with whom Giles JA and Levine J agreed) referred to an error “which cannot have made any material difference to the result”. In that sense, Latham J referred to a “material error” being one that “has the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the sentencing outcome”: Baxter at [83].

46. [57]

    Once error of the kind to which the High Court referred in House v The King [1936] HCA 40; (1936) 55 CLR 499 is identified (or manifest), the only question is whether the error is “formal or trivial or immaterial”: R v Price [2005] NSWCCA 285 at [56] (Simpson J with whom Johnson and Rothman JJ agreed).

47. [58]

    In the submissions before the Court in these proceedings, the appellant referred to “technical error”, a term which, in my view, imports even greater uncertainty and ambiguity. The operation of the provisions of s 6(3) of the Criminal Appeal Act is an exception to the orders that would otherwise be required and is part of the “resentencing” process, by allowing the Court, in presently exercising its sentencing discretion, not to alter the sentence already imposed.

48. [59]

    Nevertheless, there will be cases in which error is identified which could not possibly affect the result. I decline to call them “technical” errors and I prefer, given the comments in Baxter and the comments of the High Court in Kentwell, not to call them “immaterial”. In my view, where error is disclosed, it is only when an effect on the outcome is impossible that error can be disregarded and, on that ground, leave refused.

49. [60]

    In my view, if error were identified, the effect of which could not possibly have affected the result, then the proper course is to deny leave to appeal. Once leave is granted, then the provisions of s 6(3) of the Criminal Appeal Act, would require the quashing of the sentence and the passing of another sentence in substitution therefor, unless, in the re-sentencing exercise, the Court were to come to the view that no less severe sentence is warranted in law. In so doing, the Court has regard to the present circumstances, rather than those before the sentencing judge at the time that error occurred.

50. [61]

    As a consequence of the foregoing, and the quality and nature of the errors that have occurred in the sentencing process, it could not be said that these errors are immaterial (as that term was used by Latham J above) or technical (as the term was used by the appellant in his submissions). Leave should be granted and re-sentencing is required.

51. [62]

    The principles to be applied on sentencing are well-established and the purposes well-known. The provisions of s 3A of the Crimes (Sentencing Procedure) Act reflect the common law principles as to the objectives of sentencing. Those objectives include: ensuring that an offender is adequately punished for the offence committed; general deterrence, being the imposition of an appropriate sentence on this offender in order to discourage others from engaging in such criminal conduct; specific deterrence, being the prevention of this and other crimes by this offender; protection of the community from the offender; promotion of the rehabilitation of the offender; the rendering of the offender accountable for his actions; denunciation of the conduct giving rise to the offence; and recognition of the harm done to the victim of the crime, the victim’s family and the community: see s 3A of the Crimes (Sentencing Procedure) Act; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. The foregoing are guideposts to the appropriate sentence, which often point in different directions.

52. [63]

    As is clear from the statements of principle above, the Court at this stage is required to determine for itself the objective and subjective circumstances that apply to the offence and the appellant and determine an appropriate sentence. Because the exercise of discretion below is vitiated by error, the sentence under appeal carries no significance in that re-sentencing process. The objective circumstances of the offending have already been summarised. Most of the subjective circumstances were set out in the Remarks on Sentence and summarised in the first appeal judgment.

53. [64]

    Before embarking upon an analysis of the subjective circumstances, it should be stressed that the offending was extremely serious, involving as it did serious sexual offences committed in a domestic situation, together with additional acts of violence. Each of the contraventions of s 61I of the Crimes Act 1900 (sexual intercourse without consent knowing that she was not consenting) is a serious offence committed in circumstances of recklessly causing grievous bodily harm by the breaking of the complainant’s ribs. However, that circumstance is the subject of a separate charge and care must be exercised not to “double-count” that effect.

54. [65]

    The s 61I offences were each mid-range, the malicious destruction of property was a low range offence and the assault (count 5) was also a low-range offence. I also accept that the offence under s 35(2) of the Crimes Act (count 1), being the reckless causing of grievous bodily harm by breaking the complainant’s ribs, was mid-range for that offence. Taken together, the criminal conduct was serious and required full-time custodial sentences to be imposed.

55. [66]

    Moreover, these offences were committed while the appellant was on conditional liberty, which increases the weight that ordinarily would be given to specific deterrence. The appellant has a lengthy criminal record and has been imprisoned on prior occasions.

56. [67]

    As a consequence of that last mentioned factor, the appellant is not entitled to the leniency that might otherwise be shown to a first offender. Otherwise, the criminal history does not reflect offences of the kind with which the appellant was here charged and is to be sentenced. The criminal history does not point starkly to a need for specific deterrence of this kind of criminal activity. Ultimately, the criminal history cannot lead to the imposition of a sentence which does not proportionately reflect the gravity of the offence in question: Veen v The Queen (No 2) at 477.

57. [68]

    Since the original sentence proceedings, the subjective circumstances of the appellant have altered. By affidavit of 18 February 2015, the appellant refers to his undertaking of the Violent Offenders Therapeutic Programme (VOTP), which he has been successfully completed. Further, the applicant has not been charged with any breaches of prison discipline and has been treated, medically, for the schizophrenia, of which psychosis there was previous evidence.

58. [69]

    While in prison, the appellant has undergone employment training and also works on artwork and paintings, which he has taken up since his incarceration.

59. [70]

    In the course of the affidavit, the appellant said:

60. [71]

    He has been described by prison officers, in their regular reports, as fully engaged in the rehabilitation process, having also undergone the Violent Offenders Maintenance Programme and developed insight into his own previous and current behaviour, which current behaviour is described as “excellent”.

61. [72]

    Apart from the developments in the subjective factors applying to the appellant, there is little or no challenge to the findings of fact by the sentencing judge, which, to the extent that there is no challenge to those findings, I adopt. It is appropriate to repeat some of the more salient features.

62. [73]

    The sentencing judge summarised the applicant’s personal circumstances as having been born in Broken Hill to Aboriginal parents and adopted out to a non-Aboriginal family at 12 months of age. The applicant described himself as “a black fella in a white fella’s world” and had trouble in school due to his Aboriginality: (Pre-Sentence Report, Exhibit 4 on Sentence).

63. [74]

    The Appellant grew up ignorant of his Aboriginal cultural heritage, drank alcohol because he felt out of place at school and has suffered from a drinking problem from the age of 15. He was asked to leave home (being the home of his adoptive parents) when he was 17 years of age due to his drinking and fighting.

64. [75]

    The applicant attempted suicide in about 2004. Due to contact with a cousin in prison he met his birth mother in 1996. She died in 2000. He never met his biological father, who has died.

65. [76]

    Further to the foregoing, and as may be obvious from the reference to medication, there are psychiatric reports, in particular from Dr Allnutt of 11 September 2008 and 19 February 2009. The 2008 report refers to the appellant manifesting ongoing auditory hallucinations and ongoing symptoms of a psychosis. At that time, he had no memory of the alleged offences and was reluctant to discuss his mental state. Continuing medication was recommended.

66. [77]

    By 19 February 2009, little had changed. Dr Allnutt referred to auditory hallucinations, the difficulty in distinguishing between the effects of methamphetamine induced psychosis and schizophrenia and the effect of the drugs giving rise to the persistence of psychotic symptoms.

67. [78]

    Dr Allnutt, in his 19 February 2009 report, expressed the opinion:

68. [79]

    The sentencing judge took the view that the appellant had a history of mental health problems and, although the sentencing judge expressed a degree of scepticism of the symptoms described by the appellant, he accepted Dr Allnutt’s opinion and accepted that a custodial sentence would weigh more heavily on the appellant. The sentencing judge was not prepared to accept that the mental illness was in part causative of the offence. Nor, on one view, was the sentencing judge prepared to give less weight to denunciation and general deterrence on the basis that the appellant was an inappropriate vehicle for each, given his mental illness.

69. [80]

    The events since the sentencing suggest that the scepticism expressed by the sentencing judge, although understandable, was misplaced. Exercising the discretion now, and given the circumstances of the offender as they are, the appellant is not an appropriate vehicle for general deterrence.

70. [81]

    Further, it is my view that the psychiatric issues suffered by the appellant at the time of the offence, particularly the paranoia and hallucinations were, even if not causative of the offences, such as to diminish the appellant’s moral culpability in committing the offences.

71. [82]

    Lastly, I turn to the issue of the sentencing judge’s treatment of the appellant’s personal background. The sentencing judge, in his Remarks at [32] said:

72. [83]

    The reference to R v Fernando is a reference to the judgment of Wood J, as his Honour then was (R v Fernando (1992) 76 A Crim R 58). In the judgment at pp 62-63, Wood J summarises a number of factors, derived from prior cases and learned papers, concerning the principles to be applied arising from a deprived or particular kind of background. The judgment in Fernando and subsequent judgments make it clear that the principles apply to any person “irrespective of the identity of a particular offender or his membership of an ethnic or other group”: Fernando at pp 62 of the report.

73. [84]

    In Kennedy v R [2010] NSWCCA 260, Simpson J (with whom Fullerton and RA Hulme JJ agreed) said:

74. [85]

    The foregoing recitation of principle was expressly approved by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

75. [86]

    There are two aspects to the statement of approach by the sentencing judge that require comment. First, it is not “Aboriginality” that is relevant to sentence as a mitigating factor. That which is relevant is the personal circumstances of the appellant to which his Aboriginal descent may be relevant.

76. [87]

    Secondly, as Wood J in Fernando, Simpson J in Kennedy and the High Court in Bugmy, all make clear the factors adumbrated by Wood J are a non-exclusive set of factors, derived from previous judgments and learned papers. Fundamentally, they describe circumstances of social deprivation, violence and the like that ameliorate the moral culpability of an offender and allow the Court to understand the circumstances that gave rise to the criminal offending. Those circumstances include reasons for an offender’s recourse to violence and anti-social behaviour.

77. [88]

    In Fernando, the circumstance that was stressed was a family environment of alcohol abuse and violence. That is not a circumstance that pertains to the appellant. The appellant was, as has been set out, adopted by non-Aboriginal family and was denied knowledge of his culture and was denied an environment that supported him as Baarkindgi.

78. [89]

    In R v Lewis [2014] NSWSC 1127, I dealt with the sentencing of a person of Aboriginal descent who had been adopted by Caucasian parents and the social exclusion and discrimination occasioned by that factor or as a result of it. Not every person in that situation will suffer in the same way. Mr Lewis did. The appellant did. During the course of the sentencing of Mr Lewis, I said:

79. [90]

    I proceeded in Lewis to rely upon studies in the United States of America relating to the effect on behaviour of social exclusion and discrimination. It is unnecessary to reiterate those comments or refer in detail again to the studies.

80. [91]

    Those studies disclose, somewhat counter-intuitively, that social exclusion from the prevailing group has a direct impact and causes high levels of aggression, self-defeating behaviours, and reduced pro-social contributions to society as a whole, poor performance in intellectual spheres and impaired self-regulation. While intuitively, for those who have not themselves suffered such extreme social exclusion, the response to exclusion would be greater efforts to secure acceptance, the above studies make clear that the opposite occurs.

81. [92]

    Thus, a person, such as the appellant, who has suffered extreme social exclusion on account of his race, even from the family who had adopted him, is likely to engage in self-defeating behaviours and suffer the effects to which earlier reference has been made. This is how the appellant has been affected.

82. [93]

    Circumstances such as that are akin to a systemic background of deprivation and are a background of a kind that may compromise the person’s capacity to mature and to learn from experience: Bugmy at [41] and [43]. As a consequence, this background of social exclusion will, on the studies to which detailed reference has been made in Lewis, explain an “offender’s recourse to violence…such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced”: Bugmy at [44].

83. [94]

    The studies by Professor Baumeister, reference to which is contained in the judgment in Lewis, make clear that such extreme social exclusion will likely result in anti-social behaviour and most likely result in criminal offending. However, in each case, there must be evidence to suggest the application of these principles and the effect of the exclusion. In this case, the evidence in relation to the appellant of that factor is substantial.

84. [95]

    Moreover, the appellant’s rehabilitation whilst in prison, during a period when those factors were sought to be addressed, as were the effects of his mental illness, discloses a basis for diminishing his moral culpability for the offences and a view that his rehabilitation prospects are strong.

85. [96]

    Since his incarceration, the appellant has undergone anger management programmes (self-referred); completed, as earlier stated, the VOTP and a Maintenance Programme in relation to it; applied to complete the Sex Offender’s Programme; worked in employment in gaol in a manner that has been described by prison officers as constructive and his behaviour “excellent”; had continuing arrangements with Aboriginal welfare; undergone courses on drugs and alcohol; and completely abstained from drugs.

86. [97]

    As a result, it seems his anti-social behaviour has been ameliorated considerably and he has had no disciplinary charges whilst in prison. All of these are factors which stress the capacity of the appellant for rehabilitation and affirm the need for supervision of the appellant over a longer period than the prescribed ratio would allow in order for these steps towards total rehabilitation to be supervised in the community.

87. [98]

    Taking all of these factors into account and, in particular, the subjective factors that have arisen since his incarceration, it is my view that a lesser sentence is warranted.

88. [99]

    Nevertheless, as earlier stated, the offences, particularly the sexual offences, are extremely serious. The subjective circumstances described above indicate that the appellant has good prospects of rehabilitation; is a less appropriate vehicle for general deterrence; and those circumstances lessen the otherwise obvious need for specific deterrence. The seriousness of the offences warrants appropriate punishment and there still exists room for some deterrence, general and specific. A sentence must be imposed, bearing in mind the subjective circumstances, which is appropriate for the seriousness of the offences.

89. [100]

    Since drafting the foregoing, I have had the opportunity to read, in draft, the reasons for judgment of the Chief Justice. Without resiling from any aspect of these reasons, I agree with the Chief Justice and with the order he proposes.

90. [101]

    MCCALLUM J: I have read the judgments of the Chief Justice and Rothman J in draft. I agree that the time within which to appeal should be extended, for the reasons stated by their Honours. I agree that grounds 1, 2 and 3 have been made out. In the circumstances, it is not necessary for me to reach a conclusion as to ground 4. I agree with the remarks of Rothman J on re-sentencing. I agree with the orders proposed by the Chief Justice, for the reasons stated by their Honours.