Stines v R

1. [1]

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

2. [2]

   Leave is sought to rely upon two grounds of appeal:

The offending conduct

1. [3]

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

The reasons of the primary judge

1. [4]

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

2. [5]

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

3. [6]

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

4. [7]

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

5. [8]

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

6. [9]

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

7. [10]

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

8. [11]

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

9. [12]

   Her Honour then said:

10. [13]

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

11. [14]

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

12. [15]

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

13. [16]

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

14. [17]

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

Ground 1 – Failure to give sufficient weight to intellectual disability

1. [18]

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

2. [19]

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

3. [20]

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

4. [21]

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

5. [22]

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

6. [23]

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

7. [24]

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

8. [25]

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

9. [26]

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

10. [27]

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

11. [28]

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

12. [29]

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

13. [30]

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

14. [31]

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

15. [32]

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

16. [33]

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

Ground 2 – manifest excess

1. [34]

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

2. [35]

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

3. [36]

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

4. [37]

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

5. [38]

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

6. [39]

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

7. [40]

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

8. [41]

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

9. [42]

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

10. [43]

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

Orders and resentencing

1. [44]

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

2. [45]

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

3. [46]

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

4. [47]

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

5. [48]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

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

6. [49]

   HAMILL J: I agree with Leeming JA.

7. [50]

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