Reported Decision : 145 A Crim R 445 New South Wales Court of Criminal Appeal CITATION : Regina v Matthews [2004] NSWCCA 112 HEARING DATE(S) : 13/4/04 JUDGMENT DATE : 23 April 2004 JUDGMENT OF : Wood CJ at CL at 1; Sperling J at 32; Hislop J at 39 DECISION : 1. Leave to appeal granted; 2. Appeal against sentence allowed; 3. Sentence imposed quashed, and in lieu thereof the applicant be sentenced to imprisonment for 9 years to date from 27 June 2002; 4. A non-parole period of 5 years and 6 months be set, to date from 27 June 2002 and to expire on 26 December 2007; 5. Specify 26 December 2007 as the earliest date on which the applicant is entitled to be released on parole. CATCHWORDS : CRIMINAL LAW - appeal against severity of sentence - plea of guilty - break enter and steal - special aggravation (wounding) - whether sentence manifestly excessive - whether sufficient weight given to subjective factors. LEGISLATION CITED : Crimes Act 1900 - s 110, 112(3) Regina v Bus NSWCCA 3 November 1995 Regina v Champion (1992) 64 A Crim R 244 Regina v Elchami NSWCCA 15 December 1995 R v Engert (1995) 84 A Crim R 67 Regina v Henry (1999) 46 NSWLR 346 Regina v Israil [2002] NSWCCA 255 CASES CITED : R v Jiminez [1999] NSWCCA 7 Regina v Kilmartin (1989) 41 A Crim R 22 Lauritsen v R (2000) 114 A Crim R 333 R v Letteri NSWCCA 18 March 1993 Regina v Scognamiglio (1991) 56 A Crim R 81 R v Tsiaras [1996] 1 VR 398 at 400 Regina v Wright (1997) 93 A Crim R 48 PARTIES : Regina Rhonda Christine Matthews FILE NUMBER(S) : CCA 60512/03 COUNSEL : D C Frearson (Crown) C Craigie SC SOLICITORS : S Kavanagh (Crown) S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0292 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER : - 10 - IN THE COURT OF CRIMINAL APPEAL 60512/03 WOOD CJ at CL SPERLING J HISLOP J Friday 23 April 2004 Regina v Rhonda Christine Matthews Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against the sentence imposed by his Honour Judge Coolahan, on 21 May 2003, at the Newcastle District Court. The applicant pleaded guilty on 7 November 2002, to one count under s 112(3) Crimes Act 1900, namely break enter and steal in circumstances of special aggravation (wounding). That offence attracts a maximum sentence of 25 years imprisonment. His Honour sentenced the applicant to imprisonment for 11 years with a non-parole period of 7 years (taking into account an offence of possessing a prohibited drug (4.96 gms of cannabis leaf) on a Form 1. 2 A co offender, John Andrew Hawkins was sentenced in respect of an offence under s 110 Crimes Act 1900, namely break and enter and inflict grievous bodily harm. That offence also attracts a maximum of 25 years. His Honour imposed a sentence upon that offender of 10 years imprisonment with a non-parole period of 7 years. 3 The applicant now seeks leave to appeal against the sentence, upon the grounds that it was manifestly excessive, and upon the further ground that insufficient weight was given to a number of subjective factors, including her borderline intellectual functioning. The Facts 4 This was not a case where there was any agreement as to the facts upon which the applicant was to be sentenced. In these circumstances, evidence was called from the victim and from the co offender Hawkins. Although the applicant was not called, her electronically recorded interview was tendered. 5 His Honour found that neither the victim, nor the co offender, were truthful witnesses, concluding that, if anything, Hawkin's evidence was even more unsatisfactory and unreliable than that of Lovett. 6 His Honour did not formulate, in any discrete way, a comprehensive set of factual findings. However, in circumstances where there were a number of objectively established circumstances, and where specific findings were made on individual issues, it is possible to identify, for the purposes of the application, a set of facts against which the objective and subjective criminality of the applicant were assessed. 7 Objectively, it is the case that: (a) Police were called to the residence of Peter Lovett, who was 55 years of age, at 16 Awaba Street Fassifern, about midnight on 27 June 2002. Lovett was in a critical condition suffering from stab wounds and major blood loss. His injuries were life threatening, and required extensive surgery. (b) Lovett and the applicant had been in a relationship about twenty years previously. (c) On the morning of the offence, Lovett assisted the applicant and Hawkins to pawn some electrical equipment. Hawkins gave Lovett $50, of which he was to refund $20 to the applicant. (d) A number of abusive phone calls were received by Lovett later in the day. After he had retired to bed that night, the applicant and Hawkins broke into his house. Lovett was clubbed on the head with an iron bar. Blood on the double bed in the main bedroom was consistent with that room being the venue of the initial attack. (e) Lovett was found to have been stabbed seven times, including once to the scalp, three times to the right lower chest, twice to the right upper quadrant, and once to the right iliac fossa. (f) Various items of property including some jewellery, an NRMA card, a credit card, and a sum of money, the property of Lovett were stolen. 8 When interviewed by police, the applicant said that: (a) She had taken drugs on the night of the offence; (b) Hawkins had the iron bar in his pants to be used if the victim "played up"; (c) Hawkins gave her two knives; (d) Hawkins struck the victim with an iron bar; (e) She stabbed the victim after she was pushed down the stairs at a time when she "went nuts", and was thinking about "all the shit he did to me over the years"; (f) she took the "dope" after the stabbing, together with the jewellery; (g) the initial purpose of the visit was to recover $50.00 in respect of the pawned property. 9 His Honour found, in relation to the applicant's objective criminality, that: (a) the assaults were unprovoked; (b) the motive was robbery rather than the recovery of any money which had been withheld from the morning visit to the pawn shop; (c) the applicant had been a reluctant participant; (d) it was she who had stabbed Lovett, while it was Hawkins who had struck him heavily with the iron bar; (e) the stabbing was not premeditated, "in all probability it was somewhat impulsive and spontaneous"; (f) the injuries inflicted were life threatening and had also left Lovett with a condition of post traumatic stress disorder; (g) the offenders acted in concert, and had broken into the premises in company, with the contemplation that some violence, although not necessarily a stabbing, would be inflicted on Lovett. 10 The offences committed by each of the offenders were appropriately regarded by his Honour as falling at a very high level of objective criminality, and as calling for significant full-time custodial sentences. 11 Subjectively, his Honour recorded that: (a) the applicant, who was aged 47 years at the time that she appeared for sentence, had a criminal history which, while it extended over a number of years, was one that was at the "lower end of the spectrum for criminal behaviour"; (b) her plea was offered at an early opportunity and she did not distance herself from the stabbing even though there was evidence from the victim that would have passed the responsibility for it to Hawkins; (c) her life had been hard, it being the case that she had found it necessary to prostitute herself in her early teens, and had thereafter turned to the use of alcohol and illicit substances; (d) she had suffered physically and emotionally at the hands of the victim during the early years of her relationship with him; (e) she had significant deficits in her intellectual functioning, her IQ having been assessed as falling well below the average range. (f) she had a long-standing history of substance abuse, as well as a history of psychiatric admissions in her earlier years, generally for suicide attempts and self-mutilation, and also for drug-related problems; (g) this would be her first time in custody; (h) she had a special vulnerability due to her compromised level of functioning, which would make the serving of a sentence harder than usual; (i) she had expressed genuine remorse. 12 For the utilitarian value of her plea she was given a discount of 20 percent. The starting point for the sentence before the plea would, accordingly, have been one of imprisonment for 13 years and 9 months. The matter on the Form 1 was appropriately considered to have been of little significance for the sentencing exercise. 13 Special circumstances were found, relating to the applicant's vulnerability, her psychological state and intellectual functioning, and also relating to the fact that this would be her first time in custody. As a consequence the non parole period was fixed at 64% of the head sentence. Impaired Intellectual Functioning and Mental State 14 It is convenient first to deal with the submissions that were directed to the applicant's intellectual functioning and mental state. 15 Reports were tendered, in this context, from various mental health professionals including a psychologist Anna Robilliard, a clinical neuropsychologist Dr Wayne Reid and a general and forensic psychologist Dr Rosalind Wilcox. 16 Ms Robilliard offered the following opinion in relation to the applicant's mental state and personality; "this lady has a long history of involvement in abusive relationships and she evidences the physical, emotional and psychological hallmarks. She lacks all self-esteem and has perpetuated the abuse upon herself with alcohol and, to a lesser extent, drugs. Consistent with such a history, she has been seriously physically abused and sustained head injuries. The combined effect of physical injuries and long-term substance abuse is now demonstrated in below average intelligence and well below average memory capacity. Since being imprisoned on this occasion Rhonda has stabilised and is drug and alcohol free. Her behaviour is somewhat erratic and unpredictable and she is currently accommodated in the Mum Shirl Wing which is more supervised and supported than other areas of the prison. Rhondda is hoping to be transferred to Emu Plains, as she believes that environment would be less confrontational and she would be able to work on the farm." 17 Dr Reid reported: "Ms Matthews is a forty-eight year old lady with a long history of psychosocial problems, limited intellectual capacity, drug and alcohol abuse, and multiple minor head injuries. The neuropsychological assessment revealed that her intellectual abilities are in the borderline range and at the 5th percentile for the general population. She displays limited verbal comprehension and reason skills, poor memory and deficits in high-level cognitive functioning. It seems, however, that her current level of intellectual and cognitive functioning is not different from her premorbid estimates and that she has always been vulnerable and has lacked the capacity to avoid being exploited and abused by others. Furthermore, it appears that her poor verbal skills combined with intoxicants have made her more inclined to be physically impulsive and make her express her anger physically rather than verbally. I am of the opinion that she remains vulnerable to further neurological insult if she continues to abuse alcohol or suffers further head trauma. It is recommended that she undergo a rehabilitation program and work skills training in a supportive work environment, such as process work, to provide her with stimulation, self-esteem and reduce the likelihood of her returning to drug and alcohol abuse." 18 Dr Wilcox reported that she believed that the applicant had been "suffering from a chronic low-grade depression or dysthymia". She continued: "it is also probable that she has a degree of brain damage as a result of her lengthy history of drug and alcohol abuse in combination with various head injuries, and that may be contributing to her fluctuating persecutory ideations. In addition she has a marked disturbance in her personality with prominent dependant, borderline and anti-social personality traits. As a result, she has a very reduced tolerance to frustration and poor impulse control." 19 She concluded by noting that: "Ms Matthews is very remorseful for her actions. However in order to minimise the risk of further violence she needs to strive for abstinence from all drugs and alcohol. She would also benefit from anger management. As she has now developed a degree of paranoia she will require psychiatric review and when necessary she will need to take appropriate medication." 20 It is the case that the presence of a mental disorder, or abnormality, including a significant defect in intellectual functioning, is of relevance, both for an assessment of the extent of an offender's objective criminality, and for a determination as to whether or not the case is one that calls for a particular measure of general or specific deterrence. The principles are well known. 21 For example in Regina v Israil [2002] NSWCCA 255 Spigelman CJ said: "21. The significance of mental illness of an offender in the sentencing exercised has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294. 22. In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion. 23. To the extent that mental illness explains the offence – as her Honour found to be the position in the present case – then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law." 22 As I explained in Regina v Henry (1999) 46 NSWLR 346 (para 254) the reason for the adoption of the principle which was stated in R v Letteri NSWCCA 18 March 1993, and adopted in R v Engert (1995) 84 A Crim R 67, to the effect that less weight should be given to general deterrence in the case of an offender suffering from a mental disorder or abnormality: "lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice." 23 Similar considerations apply in relation to personal deterrence where the disability or limited intellectual functioning is such that the offender may not fully appreciate, or understand, the nature of his or her offending, or of the message, which the sentence is expected to convey. 24 Additional reference may be made in these respects to Regina v Scognamiglio (1991) 56 A Crim R 81, Regina v Anderson [1981] VR 155 at 160/161, Regina v Champion (1992) 64 A Crim R 244, and Regina v Kilmartin (1989) 41 A Crim R 22. 25 However, as was made clear in Regina v Elchami NSWCCA 15 December 1995, and also in Regina v Wright (1997) 93 A Crim R 48, and in Regina v Bus NSWCCA 3 November 1995, these principles have a lesser relevance for an offender with a low level of intellectual functioning, or a developmental disorder, where, notwithstanding that incapacity or disorder, he or she has a clear knowledge of what is being done, an awareness of its wrongness, and a capacity for impulse control. 26 Accordingly, each case will depend upon the nature and degree of the impairment, the extent of its contribution to the offence, and whether or not the sentence can be seen, in the particular circumstances, of that case to have a deterrent value, either specifica 27 .ly or generally. An individual assessment is necessary, and a bare invocation of the presence, in an offender, of a low level of intellectual functioning or mental disorder, as a circumstance requiring moderation in sentence, is likely to be both misleading and unhelpful. 28 The present is a case where there was evidence to show that the applicant's reduced level of intellectual functioning, her disturbed background, and her personality deficits, had a direct relevance in relation to her offending, so far as she was a person who was easily lead and who had some difficulties with impulse control. Certainly the offence involved a substantial escalation in her pattern of criminal offending. Moreover, as his Honour found, she was something of an unwilling participant in a robbery, which was instigated by her co offender, and which went seriously awry. It is also a case where her mental state was such as to attract some lesser significance in relation to the elements of personal and general deterrence. 29 The starting point, before the discount that was allowed for the plea, placed the sentence at the top, or at least towards the top, of the sentencing pattern for offenders who did not suffer any significant intellectual deficit or personality disorder. 30 While a significant custodial sentence was required, and while his Honour did make reference to the expert evidence, I am left with the conclusion that the sentence which was in fact imposed did fail to sufficiently reflect the contribution which the applicant's dysfunctional background and borderline intellectual functioning had in relation to the commission of the offence, or to reflect an appropriate degree of moderation in relation to deterrence. 31 Having reached the view that the sentence was manifestly excessive, and that a sentence other than that imposed was warranted at law and should have been imposed, I would propose the following orders: 1. Leave to appeal granted; 2. Appeal against sentence allowed; 3. Sentence imposed quashed, and in lieu thereof the applicant be sentenced to imprisonment for 9 years to date from 27 June 2002; 4. A non-parole period of 5 years and 6 months be set, to date from 27 June 2002 and to expire on 26 December 2007; 5. Specify 26 December 2007 as the earliest date on which the applicant is entitled to be released on parole. 32 I would preserve the same general ratio in relation to the nonparole period as that fixed by his Honour, accepting that the reasons which were identified do qualify as special circumstances, justifying a departure from the statutory proportion. 33 SPERLING J: I have read Wood CJ at CL's judgment in draft. I agree with his opinion that the sentence is excessive and should be quashed. However, I find myself in disagreement with the proposed substituted sentence of nine years with a non-parole period of five years and six months. 34 It is unnecessary for me to restate the facts of the case and the considerations bearing on sentence. They are set out by Wood CJ at CL. 35 I would give greater weight than I believe Wood CJ at CL has done to the applicant's intellectual and psychological disabilities, particularly in relation to the degree of culpability which should be attributed to her concerning the offence. 36 According to the expert evidence, the applicant's intellectual function is at the fifth percentile for the general population. Additionally, the applicant has limited reasoning skills and deficits in high-level cognitive functioning. She is subject to fluctuating persecutory ideation. There is a marked disturbance in personality with a prominent dependant trait. She has poor impulse control. 37 A nexus between this profile and the applicant's conduct at the time of the offence is apparent. Hawkins was the initiator and the leader: she is pathologically dependent and easily led. The stabbing was not premeditated: she has, pathologically, poor impulse control. There was a history of earlier mistreatment by the victim: she is subject to persecutory ideation. Her capacity to evaluate and, accordingly, to moderate her own conduct is subject to limited reasoning skills and deficits in high-level cognitive functioning. It is reasonable to conclude that her intellectual and psychological status in these respects contributed to the commission of the offence in a material way. That reduces her moral culpability and so affects the punishment warranted: see Henry (1999) 46 NSWLR 346 at [254], Jiminez [1999] NSWCCA 7 at [23], Tsiaras [1996] 1 VR 398 at 400 and Lauritsen (2000) 114 A Crim R 333 at [51]. 38 Additionally, the applicant's intellectual and psychological status renders her a less than ideal vehicle for general deterrence and moderates that consideration. 39 After allowing approximately 20 per cent for the utilitarian value of the plea and adopting the sentencing judge's finding of special circumstances, I would re-sentence the applicant to imprisonment for seven years commencing on 27 June 2002, with a non-parole period of four years expiring on 26 June 2006, that being the earliest date on which the applicant would be entitled to be released on parole. 40 HISLOP J: I agree with Wood CJ at CL. ********** Last Modified: 04/28/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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