District Court New South Wales Medium Neutral Citation: R v Moore [2023] NSWDC 137 Hearing dates: 14 April 2023 Date of orders: 4 May 2023 Decision date: 04 May 2023 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced – see [83]-[87] Catchwords: CRIME – property offences – take and drive vehicle CRIME – sexual offences – sexual intercourse without consent – circumstances of aggravation – deprivation of liberty CRIME – criminal responsibility – mental illness – intoxication – causal connection SENTENCING - relevant factors – plea of guilty – remorse – Bugmy factors – general principles Legislation Cited: Crimes Act, 1900 Crimes (Sentencing Procedure) Act Criminal Procedure Act, 1986 Cases Cited: Aslan v R [2014] NSWCCA 114 Bugmy v The Queen [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Greaves v R [2020] NSWCCA 140 Jolly v R [2013] NSWCCA 76 Park v The Queen [2021] HCA 37 R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 R v Barker & Gibson [2006] NSWCCA 20 R v Gavel [2014] NSWCCA 56 R v Tuala [2015] NSWCCA 8 The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146. Category: Sentence Parties: Rex Joshua Samuel MOORE Representation: Counsel: Ms C Mendes, for the offender Solicitors: Ms G Knight, for the Director of Public Prosecutions File Number(s): 2021/311570 Publication restriction: There must be no publication of the name of the victim or anything that might tend to identify her. remarks on sentence 1. The offender appeared before the Local Court at Wagga Wagga on 6 July 2022 and pleaded guilty to two substantive charges, namely that he: 1. (H84936442 Sequence 3): On 2 November 2021 at Narrandera in the State of New South Wales without having the consent of KB, the person in lawful possession of a motor vehicle, namely CB[..]BY, took and drove it when KB was in the said vehicle, contrary to s 154C(1)(b) of the Crimes Act, 1900 and further that 2. (H84936442 Sequence 10): On 2 November 2021 at Narrandera in the State of New South Wales, did have sexual intercourse with KB without her consent and knowing that she was not consenting in circumstances of aggravation, namely deprived KB of her liberty for a period before the commission of the offence, contrary to s 61J of the Crimes Act. 1. The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 14 April 2023 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. 2. The offence contrary to s 154C(1)(b) is commonly or shortly known as "carjacking". That is the description I will use within these reasons. The maximum penalty for that offence is 10 years imprisonment. Parliament has specified a standard non-parole period of 3 years in respect of that offence. The maximum penalty for the Aggravated Sexual Intercourse Without Consent offence is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years in respect of that offence. 3. In addition, the offender pleaded guilty to two counts of Assault Police Officer in the Execution of Duty, contrary to s 58 of the Crimes Act, which offences attach to a Certificate pursuant to s 166 of the Criminal Procedure Act, 1986. The maximum penalty for those two offences if dealt with on indictment is 5 years imprisonment. However, as the matters attach to a s 166 Certificate, the jurisdictional limit of the Local Court of 2 years applies. In respect of the issue of the jurisdictional limit I note the authorities of Park v The Queen [2021] HCA 37 especially at [19] and Greaves v R [2020] NSWCCA 140 at [66] per Cavanagh J. 4. Further, there are two offences on a Form 1 document the offender asks be taken into account when sentencing for the carjacking offence. Those offences are Demand Property with Menaces, contrary to s 99(1) of the Crimes Act which relates to an incident at the Medical Centre at Narrandera before the substantive offences were committed and a charge of Damage to Property contrary to s 195(a) of the Crimes Act. I observe the maximum penalties for those offences if dealt with on indictment are 10 years and 5 years imprisonment respectively. Given the nature of the offending with the Demand Property with Menaces offence there must be some impact on the ultimate sentence to be imposed. 5. In passing sentence, taking the Form 1 matters into account, I will need to properly apply and give effect to the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (otherwise known as the Guideline Judgment on Form 1 matters) (2002) 56 NSWLR 146. Facts 1. The facts recite that at the time of the offending the offender was 26 years of age and the victim KB was 52 years of age. The victim at the relevant time was employed as a courier by a Pathology company. I will refer to the victim either as the victim or by her initials. That is not to depersonalise the lady but rather to maintain her anonymity. 2. Initially the facts go to the Demand Property with Menaces offence which attaches to the Form 1 document. At about 3pm on Tuesday, 2 November 2021 the offender walked into the Narrandera Medical Centre and approached one of the staff. The offender began to raise his voice and became aggressive. The offender demanded, "I want methamphetamine". Another member of staff left the main reception area and went to the nurse's station to obtain help before returning to the front reception area and saw the offender holding a brick in each hand. The offender again demanded methamphetamine and swung one brick towards the member of staff who he had initially approached. The brick did not connect. Another member of staff pressed the duress alarm and called triple-0. The facts recite witnesses formed the view the offender was highly affected by drugs and alcohol. 3. The facts then go to sequence 3, that is the carjacking offence. It is not stated but it seems to be a clear inference that the victim was in her motor vehicle either at or very close to the medical centre. The facts go on to recite that the victim entered the driver's seat of her vehicle and turned on the radio. At this time she heard the passenger door opening. The offender entered the passenger seat, sat down, grabbed the victim's seatbelt and pulled it tight into her stomach. As he did this he said, "Fucking drive". The victim reversed out of the car space in which the vehicle was parked. The offender repeated the words, "Fucking drive", in an angry tone. The victim complied and began to shake from fear. 4. The victim drove towards Victoria Square and stopped to give way to another vehicle. The offender directed the victim to keep going. When the victim replied, "There's a car" the offender said, "Don't fucking worry about it." The victim continued to drive on to Victoria Avenue. The offender yelled words to the effect of, "Keep driving, go faster and just keep driving straight". The victim was driving at approximately 80 km/h in a residential area at this point in time. The facts recite that the victim felt that she could not escape. 5. The victim continued along Old Wagga Road and once out of the township of Narrandera the offender calmed down. He made comments about "Wiradjuri land" and "his land". He pointed out different flowers on the side of the road and commented on them. He also said that he had a five-year-old child. The victim replied to each of these comments. After a minute or two the offender became angry again. The offender grabbed the victim's hair, which was tied in a ponytail, and pulled her head back. 6. The offender noticed the victim's phone that was in the centre console was ringing. He picked up the phone and held it in front of him. He did not let the victim answer the phone. 7. The offender yelled at the victim to drive faster and grabbed the steering wheel. The victim pushed back against the offender's hand fearing they were going to crash. The offender said, "I don't care if I die today". The car had veered to the incorrect side of the road and the victim returned the vehicle to the correct side of the road. 8. The offender again grabbed the steering wheel and pushed it to make the car enter the right-hand lane. The offender said to the victim, "This is fun isn't it?" The victim again managed to regain control of the vehicle and returned to the correct side of the roadway. 9. The victim briefly looked at the offender and he yelled, "Don't fucking look at me. Don't think about trying to get out of this car." The offender calmed down and said to the victim, "I'm Josh". Not long after that he again became aggressive, grabbed the victim's hair and said, "I will bash your skull in. I'll kill you and your family." 10. The offender then directed the victim to turn into a rest area and drive towards the water. The victim drove down a dirt track towards the water. She saw a white vehicle in the area however the offender directed her to drive in a different direction to the vehicle and towards a boat ramp. The offender told the complainant to stop close to the boat ramp. The facts do not say but it would seem given the reference to boat ramp, bushland and water, the body of water to which the facts refer is the Murrumbidgee River. 11. The victim parked the car facing bushland about two or three car lengths away from the boat ramp. The victim put the car in park and turned off the ignition at the offender's request to do so. The offender directed the victim put the windows down and she complied. The keys were left in the ignition. 12. The facts then go to the charge of Aggravated Sexual Assault. The offender while slumped in the passenger seat of the vehicle pulled up his shirt, unbuttoned the top of his pants and undid the zipper. He pulled his pants and underwear halfway down his thighs. The victim saw that the offender's penis was erect. The offender grabbed the back of the victim's head and pushed her head towards his penis and said, "Suck my black dick". 13. The victim complied with that direction of the offender and she also touched his testes when directed to do so. The victim said this incident lasted for about 30 seconds. 14. The offender let go of the victim's head and she was able to move away from the offender's penis. The offender complained about the heat and opened the passenger side door and told the complainant to open her door. As she did the offender said, "Don't try anything". The victim looked in the rear vision mirror and noticed a ute parked at picnic tables. That ute had not been there when they first arrived. 15. The offender again grabbed the victim's head and pushed it towards his penis and forced her to fellate him. Paragraph 22 of the agreed facts indicates that this is the act to which the charge relates. The facts go on to recite that the offender pushed the victim's head further onto his penis causing the victim to struggle to breathe and start to panic. The complainant pulled her head back while the offender's hand was still on the back of her head and she took a deep breath. This incident lasted for about one minute. 16. The victim sat back in her seat and was terrified. The offender told the victim to take her cardigan off and as she did he got out of the front passenger seat of the vehicle with his pants still down and his penis exposed. He walked around to the back of the car and towards the driver's door with his pants down. The offender stood at the driver's door and said, "I want more". With that he lent down and untied the shoelace on the victim's right shoe he asked the victim if she had any children and she answered that she had an adult son and grandchildren. The offender then appeared to panic and said, "Slide over I'm driving" to which the victim replied, "No you're not driving". The offender said, "Yes I am I have a licence". 17. The victim moved over to the passenger seat climbing over the centre console. As the passenger door was still open the victim took the opportunity to get out of the car and run away. She grabbed her work mobile phone from the passenger seat as she was getting out of the car and started running towards the ute parked near the picnic tables. The victim was yelling, "help,". As she got to the ute she ran to the passenger side of the vehicle and continued to scream for help and briefly explained what had happened. The male in the ute told the victim to get in, she quickly got in the back passenger side. 18. The victim saw the Pathology vehicle start to drive towards the ute. The offender stopped the vehicle about 5 m from the ute. The driver of the ute reversed the vehicle and drove away from location. The offender got out of the vehicle by the driver's side door, staring at the victim and the occupants of the ute. The victim told the occupants of the ute what had occurred as they drove back towards Narrandera. 19. Once in the township of Narrandera, the victim saw police at the medical centre. She told police what had occurred. The victim was taken to the local District Hospital at the request of police, where she was examined by Dr Ho. Dr Ho observed no physical injuries to the neck and head of the victim. 20. The facts then go to the remaining matter on the Form 1 document, that is the charge of Damage Property. Sgt Quiring and Constable O'Keefe were patrolling the area around the Five Mile campsite. Police received a screenshot of the location of the tracking device on the Pathology vehicle and went to that location. The vehicle was sighted under the tree line and the police saw that the front end of the vehicle had been damaged. The offender had driven the vehicle through a gate to gain access to the property. This caused the gate to come from the posts holding it up. The offender was arrested at gunpoint. 21. The charges of Assault Police attaching to the s 166 certificate relate to the conduct of the offender when they arrived at the Narrandera police station. The offender was uncooperative and said, "I'll resist all you mother-fuckers" and spat on Constable O'Keefe and Constable Drew. 22. The offender, as was his right, declined to be interviewed. Assessment 1. As the two substantive matters carry standard non-parole periods, it will be necessary to make some assessment of the objective seriousness of the matters. In the Crown appeal of R v Barker & Gibson [2006] NSWCCA 20 Howie J (Basten JA, Hall J agreeing) at [63] said on the issue of assessing the objective seriousness of a matter contrary to s 154C(2) of the Crimes Act: "It seems to me that for an aggravated offence involving the offender being in company the following factors may be relevant to an assessment of the objective seriousness of the offence: whether the offence was planned; the number of persons involved in committing the offence and their conduct; the type of threats made; the degree of violence displayed; the number of persons in the vehicle at the time of the offence; the degree of fear instilled in the victim; the period over which the vehicle is used; damage to the vehicle (if not giving rise to a separate charge); the place and time the offence is committed (for example whether at night or in an isolated area); the special vulnerability of the victim; and the motive for the commission of the offence. The list is not intended to be exhaustive. Although counsel referred to the value of the vehicle, I doubt that is a relevant consideration where there is no intention to permanently deprive the owner of the vehicle." 1. In the matter presently under consideration the offending was not planned; indeed, it was quite opportunistic and spontaneous. There was only one person involved in committing the offence, that is the offender. The threats made were serious involving as they did threats to kill the victim and her family. There was actual violence on two occasions when the offender grabbed the victim's hair and pulled back. The offender grabbed the steering wheel of the vehicle and indeed on one occasion directed to the incorrect side of the roadway. The offender took the victim to an isolated part of the countryside. It would seem the motive of the offender was to make good his escape after the offending at the medical centre. The victim was not especially vulnerable however she was alone in a motor vehicle driving that vehicle in the course of her employment. The offence was committed in daylight. 2. Doubtless the incident would have been absolutely terrifying for the victim. However, taking all of the above factors into account I am of the opinion that matter sits at the lower end of the mid-range of seriousness. 3. Turning to the assessment of the aggravated sexual assault, I will initially go to some matters of general principle. There is no hierarchy of the various sorts of sexual intercourse. The facts and circumstances of each case will inform the objective seriousness. See for e.g. R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 per Bellew J (Hoeben CJ at CL, Slattery J agreeing) at [72] and R v Gavel [2014] NSWCCA 56. The absence of an aggravating factor does not lessen the seriousness of a matter. Some regard can be had to the length of time over which the offence was committed and whether it was an isolated incident. Many of the authorities to which I have referred specifically relate to child victims but it seems to me that the matters of general principle as stated have a more general application. 4. In the matter presently under consideration the intercourse involved was fellatio but the specific act which the charge relates was not an isolated act. There was some degree of force used by the offender pushing the victim's head towards his penis. The offending occurred in an isolated area. There is no suggestion in the facts that the accused ejaculated. The incident to which the charge relates lasted for about one minute. However, the victim was deprived of liberty for a period longer than that. The general circumstances of the offending also relevant. In the circumstances I also assess this matter to be at the lower end of the mid-range of seriousness. Criminal History 1. The offender was born on 2 November 1995 and accordingly is now 27 years of age and was 26 the time of offending. The offender has some history in the Children's Court, which I ignore. However, he has convictions as an adult for damage to property and domestic violence offending including contravention of an apprehended violence order. The record as an adult is relatively limited and accordingly the offender is entitled to some degree of leniency given his age and that limited record. 2. However, the offender was subject to a Community Corrections Order at the time of the offending and accordingly the statutory factor of aggravation provided for by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act is enlivened. Victim Impact Statement 1. In this matter the court has the benefit of a comprehensive victim impact statement. That statement was read in open court by the victim's counsellor. 2. The victim impact statement, as those statements often do, eloquently speaks of the physical but moreover the emotional harm occasioned by serious offending such as committed by this offender. One can only hope that the offender was listening carefully as that statement was read to the court. 3. However, the Crown does not rely on the victim impact statement is grounding any factor of aggravation. I note and have regard to the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8 as to the manner in which such statements can be taken into account. 4. Nevertheless, as best as I am able, the effect on the victim is something that is taken into account in an instinctive synthesis process by virtue of giving proper regard to s 3A(g) of the Crimes (Sentencing Procedure) Act. Subjective Case 1. There was no oral evidence called by or on behalf of the offender, however Exhibit 5 on sentence is an affidavit of the offender read by counsel. The offender was not required for cross-examination and accordingly the court can treat the contents of the affidavit as unchallenged. 2. The offender was born in Bourke in far western New South Wales. Both his mother and father are presently in custody. At paragraph 29 of the affidavit the offender recounts, "Dad was always in and out of prison". When the offender was about four, he fell into a fire of burning coals and burned his hands. The offender is very close to his maternal grandmother. The family also lived in Cobar and Broken Hill. 3. The offender is one of five children. When the offender was about six or seven years of age the family moved to Leeton. Clearly the offender suffered significant deprivation in his childhood. When he was about eight the offender's mother went into custody. His mother has bipolar disorder and the offender obviously still has some affection for his mother. 4. Initially when moving to Leeton the offender began school at St Joseph's Primary School but left that school when he was in year 5 and went to the local public school. The offender preferred the public school. Not surprisingly the offender felt he was the odd one out at St Joseph's as there were no other Aboriginal children at the school. The offender left school in year 9 when he was about 14 or 15. He says that his reading and writing is "okay". After leaving school the offender "took off" from home and couch surfed at friends' places and he also went to a refuge for some months. 5. The offender began using cannabis and alcohol in his teenage years. He says he has always smoked cannabis as it helps block memories. He does not normally drink alcohol. At 18 years of age he moved to Sydney to work as an apprentice chef. 6. While working as an apprentice chef the offender worked in a well-known fine dining restaurant in Sydney. Indeed, the extracts from the Sydney Morning Herald (exhibit 4 on sentence) indicate while the offender was working at that establishment he was invited to travel to Ireland, where they showcased indigenous ingredients while working with that restaurant. The offender had his brother stay with him for some time when he was working however that did not work out as the offender was working very long hours and did not have time to look after his brother. The offender's mother visited the offender at his workplace however she was drug affected and the offender was embarrassed by his mother's visit. The offender agreed to have his mother stay with him for some short period of time. 7. The offender worked at other restaurants, but this continued for only about three months after which the offender got burnt out and returned to Bourke and Leeton. Later he obtained work in Queensland for some months, but he began to struggle with his mental health. The offender also began to feel anxious about the Covid-19 pandemic. The offender left work three months before his apprenticeship as a chef was complete. 8. Things began to deteriorate for the offender after that. There was an incident with his ex-partner. He was charged with breaching an apprehended violence order. The offender began using methamphetamine (ice). The offender was smoking ice daily for a week before his birthday. 9. Clearly the offender's indigenous culture and heritage is very important to him. 10. At paragraphs 105 - 111 inclusive of the affidavit the offender sets out his feelings of remorse. He says that he thinks about what he did every day, he feels terribly ashamed and that he was "off my head, I was so out of it". As this is not challenged the offender is entitled to a finding that he is remorseful. 11. The offender also speaks in the affidavit of the effects of the Covid-19 pandemic. The pandemic has affected all persons in custody. Lockdowns are more frequent and of longer duration, face-to-face visits are severely restricted, there are periods of isolation upon being transferred from one institution to another and outside agencies have difficulty accessing the centres. All of these issues go to custody being more onerous which is something that goes to a finding of special circumstances. Specifically relating to the offender, there was an incident involving other inmates when they found out about the offending. 12. The offender was working whilst at the Junee Correctional Centre, but there is no work available at the Bathurst Correctional Centre. He has been abstinent from substances while in custody and maintains he is going to remain abstinent upon his release. 13. Further, going to the offender's future, the offender wishes to obtain employment and would like to go back to being a chef even though the hours in that occupation are very long. An alternative area of employment is as a National Parks Ranger. The offender wishes to engage with his son. 14. The offender is still a relatively young man. He has accepted responsibility for his offending. He is remorseful. He has a limited criminal history and good employment history. The drug use is relatively recent, and it seems that he is now abstinent. In all of those circumstances I am prepared to find on balance that the offender has good prospects of rehabilitation. Essentially for those same reasons I am prepared to find on balance that the offender is unlikely to reoffend. 15. Ms Mendes tendered as part of the offender's case on sentence a report from Ms Vanessa Edwige, Psychologist dated 21 September 2022 and a report from Dr Sathish Dayalan, Forensic Psychiatrist. Ms Edwige's report is excessively and needlessly lengthy. It contains extracts from the "Bugmy Bench Book", which with respect is unnecessary in a report such as this. There are also many references to research into various issues and generalisations as to the effect of various issues often without any conclusion as to the specific effect on this offender. 16. I will go initially to Ms Edwige's report. She goes into the offender's background in more detail than that contained in the offender's affidavit. As I have already observed the offender was subject to significant deprivation is in his formative years. Those deprivations include being exposed to significant domestic violence. Clearly the factors enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened to a significant extent, reducing the moral culpability of the offender to that extent. The author goes into considerable detail as to the impact of the disadvantage, which is something this court is very well aware. 17. The offender reported to Ms Edwige that he feels depressed every day and ruminates about what he has done wrong. The offender also reported that he stays in his cell as he feels so ashamed of what he did. This fortifies me in the finding that the offender is remorseful. 18. Further the offender reported to Ms Edwige that he was on drugs at the time of the offending and that he had been drinking all day. Further, due to that level of intoxication he was experiencing "blackouts". 19. At page 11 of her report Ms Edwige sets out that, "it is my professional opinion that at the time of the offences Mr Moore was suffering from a significant mental health impairment. It is my opinion, that Mr Moore's mental health at the time of the offences and his level of substance intoxication impacted on his ability to make appropriate and informed decisions". 20. Later, at p 17 Ms Edwige sets out: "It is my clinical opinion that at the time of the offences on 2 November 2021, Mr Moore had a mental health impairment that was clinically significant and arose from post traumatic stress disorder and substance misuse disorder (stimulant use disorder and cannabis use disorder) and meets the diagnostic criteria in the DSM 5 for these disorders. It is my further opinion that Mr Moore's disadvantaged childhood and his ongoing exposure to traumatic events throughout his life was the antecedent for his substance misuse. In combination with his complex developmental trauma, presenting mental health and substance misuse it is my opinion that these factors significantly contributed to Mr Moore's offending behaviour." 1. However, she immediately goes on to say that it is her further opinion that the offender's crystal methylamphetamine use impacted on his ability to make clear decisions and exercise good judgement. 2. Whilst I do not doubt the diagnosis of post-traumatic stress disorder and the other disorders, the complicating factor in this matter is the significant level of affectation by the offender's voluntary consumption of methamphetamine. 3. Nevertheless, given the significant mental health issues and the need for those issues to be effectively and appropriately treated upon his release there should be a reasonably generous finding of special circumstances in this case. In particular it seems that there will be a need for intensive and extensive supervision to address the issue of developmental trauma. The sentence to be imposed will be substantial and the offender will require assistance in reintegration into the community. This too goes to a finding of special circumstances. 4. I now go to the report of Dr Dayalan. This report also notes the exposure of the offender to extensive domestic violence in the home environment. The offender's parents were violent to him. The offender revealed persecutory beliefs to the doctor including that big corporations were interfering with the natural order of things, and that human beings were controlled through food bought at fast food outlets. The offender also told the doctor the police work for big corporations and artificial intelligence. The offender initially denied having a history of auditory hallucinations however later in the interview he reported hearing a good voice and a bad voice that fought against each other. 5. Towards the bottom of page 3 of the report of Dr Dayalan is the heading "Account of mental state around the time of the offences". The offender admitted to smoking cannabis daily at the time of the offences and was drinking alcohol three or four times a week he also gave the doctor the history of smoking crystal methamphetamine daily for a week prior to the offence. The offender claimed he had been experiencing auditory hallucinations at the time of the offending. The offender indicated that he felt confused and disoriented from the use of substances and lack of sleep. He admitted to ongoing persecutory beliefs about big corporations and the police. 6. At page 4 of the report the following appears: "When asked what contributed to his offending behaviour, Mr Moore initially said that he could not explain his actions. He later remarked 'I thought I was in an alternate reality, and I could get away with anything… Like invincible. I wasn't thinking about the repercussions. I'm very remorseful and I have to live with this for the rest of my life". He added 'it is out of character for me. I blame it all on the drugs.'" 1. Under the heading "psychiatric opinion" at page 6 of the report the doctor sets out that the offender probably has a genetic vulnerability to psychosis. At p 7 of the report the doctor sets out that the history provided by the offender and his presentation during the assessment were consistent with the offender suffering from a psychotic illness such as schizophrenia though that diagnosis could not be confirmed based on information currently available. However the doctor opines that the offender probably suffers from a psychotic illness that is chronic in nature. 2. Dr Dayalan also sets out at p 7 that, "It is quite evident that he [the offender] suffers from functional impairment but this could be attributed to a multitude of factors such as substance use, pre-existing cognitive defects and personality vulnerabilities from early life experiences in addition to a psychotic illness". 3. Ms Edwige does not appear to address the issue of functional impairment per se, nor does she express any opinion as to the total IQ of the offender. At p 5 of the report under the heading "Education" she says that the offender reported having learning problems at school. At p 13 she says that "exposure to repeated traumatic events impacts on a child's brain development. There is no reason to doubt the conclusion of Dr Dayalan. However, there is no evidence as to the extent of the functional impairment. 4. Significantly, the next paragraph of Dr Dayalan's report is: "His behaviour at the time of the offences appears to have been erratic and indicative of recklessness and poor judgement. His comments and behaviour at the time as noted in the agreed facts did not indicate the presence of any overt psychotic symptoms such as delusions or hallucinations. Any nexus between his offending behaviour and psychotic illness cannot be established. In my opinion his intoxication with substances, presumably crystal methamphetamine, was the primary contributory factor to his offending behaviour by impacting upon his ability to consider the various consequences of his behaviour. If the court were to accept the presence of a chronic psychotic illness this condition would have further contributed to the impaired judgement exhibited at the time. It should be noted that he was not on any psychotic medication at that time and was using drugs that exacerbate the condition." 1. Not surprisingly Dr Dayalan recommends further treatment for the offender's substance use disorder. He also recommends the offender would benefit from culturally informed rehabilitation programs. 2. It occurs to me that there is very real tension between the conclusions of the reports of Ms Edwige and Dr Dayalan. The former draws a causal nexus between the mental health impairment that she diagnoses and the offending, whereas Dr Dayalan opines that it was the self-induced intoxication that was the primary contributory factor to the offending. 3. Ms Mendes, counsel for the offender, submits that I would find that there was a causal connection between the mental health impairment as diagnosed by the psychologist and the offending. It is further submitted on behalf the offender that the principles enunciated by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]-[178] are enlivened in favour of the offender reducing his moral culpability and the impact of general and specific deterrence. The Crown opposes such a finding. 4. One matter that is common to both reports is that the offender was heavily intoxicated with methylamphetamine at the time of the commission of the offences for which he appears for sentence. 5. Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [33]-[35] said: "This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: "[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4] It may reduce or eliminate the significance of specific deterrence ... [Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ..." (internal citations omitted, italics added) [34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. [35] A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)." 1. In all the circumstances - noting the offender's admitted heavy use of methyl- amphetamine in the days prior to the offence, taken with contents of both the reports of the psychologist and a psychiatrist - while I am prepared to find that the offender suffers from mental health conditions I am not prepared to find on all of the circumstances and on the material before me that there is a causal connection between those mental health conditions and the offending. Rather it was the offender's self-induced intoxication that was the principal contributory factor to the offending. I note in particular [34] of the judgment in Aslan v R extracted above and s 21A(5AA) of the Crimes (Sentencing Procedure) Act. Be that as it may, those mental health conditions are a very significant part of the subjective case of the offender in the instinctive synthesis process of determining the appropriate sentence in this matter and also going to the issue of finding a special circumstances. 2. Finally, Exhibit 3 on sentence is a letter from the offender's maternal grandmother. She confirms the difficulties and deprivations experienced by the offender in his formative years. She also says that she is not surprised that the offender has mental health issues. General Remarks 1. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties, the standard non-parole periods prescribed for the offences contrary to sections 154C and 61J of the Crimes Act and the nature of the offending it is inevitable that there must be a sentence of imprisonment imposed. I did not understand counsel for the offender to submit otherwise. 2. This is an appropriate matter for the imposition of an aggregate sentence. It will be necessary to set out what sentences would have been imposed had separate sentences been imposed. If separate sentences were imposed there would need to be some meaningful degree of partial accumulation of sentence for the two substantive matters to recognise the different offending, despite the offending being part of an ongoing episode. 3. In other circumstances and if taken in isolation the offences of Assault Police that attach to the s 166 Certificate might not attract a sentence of full-time custody. It seems that the appropriate course in this matter would be to impose a modest fixed term that would be part of the aggregate sentence. Any partial accumulation would be nominal. 4. The offender has been in custody referable solely to these matters since 2 November 2021 and accordingly that is the date on which the sentence and non-parole period will commence. 5. The sentences that would have been imposed had separate sentences been imposed are: 1. Sequence 3 – Unlawfully Take and Drive Motor Vehicle with Person in that Vehicle, contrary to s 154C(1)(b) of the Crimes Act, taking into account the Form 1 matters, a non-parole period of 19 months with a balance of term of 12 months making a total sentence of 2 years 9 months indicating a starting point of 3 years 9 months; 2. Sequence 10 – Aggravated Sexual Assault contrary to s 61J of the Crimes Act, a non-parole period of 3 years 3 months with a balance of term on parole of 2 years making a total sentence of 5 years 3 months indicating a starting point of 7 years. 3. Sequences 5 and 6 – Assault Police contrary to s 58 of the Crimes Act – on each count a fixed term of 2 months imprisonment. Orders 1. In respect of the offences to which the offender has pleaded guilty he is convicted. 2. The offender is sentenced to an aggregate sentence of 6 years and 4 months with a non-parole period of 4 years. 3. The non-parole period will commence on 2 November 2021 and will expire on 1 November 2025. The balance of term on parole will commence on 2 November 2025 and will expire on 1 March 2028. 4. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. I recommend in the strongest of terms that any release to parole be supervised and conditioned that the offender obey all reasonable directions relating to ongoing treatment and counselling for mental health issues. 5. The sentence indicates a generous finding of special circumstances, the reasons for which have been enunciated earlier in these reasons. The non-parole period is approximately 63% of the total sentence. 6. Copies of the reports of Ms Edwige and Dr Dayalan are to be forwarded to the Department of Corrective Services with the relevant warrants. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 May 2023