New South Wales Court of Criminal Appeal CITATION: Malcolm v R [2006] NSWCCA 323 HEARING DATE(S): 11/8/06 JUDGMENT DATE: 10 October 2006 JUDGMENT OF: Tobias JA at 1; Howie J at 2; Rothman J at 3 DECISION: a. leave to appeal granted;; b. appeal dismissed. CATCHWORDS: CRIMINAL LAW - CRIMINAL APPEAL - sentence appeal - balance between general deterrrence and rehabilitation where applicant suffers from intellectual disability - no manifest excess in sentence LEGISLATION CITED: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) R v Engert (1995) 84 A Crim R 67 CASES CITED: R v Veen (No. 2) (1988) 164 CLR 476 R v Wright (1997) 93 A Crim R 48 PARTIES: Ricky Malcolm Regina FILE NUMBER(S): CCA 2006/863 COUNSEL: J Manuell Virginia Lydiard SOLICITORS: J Witmer S Kavanagh (Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0975 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 9/12/05 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/863 TOBIAS JA HOWIE J ROTHMAN J 10 October 2006 RICKY MALCOLM v REGINA Judgment 1 TOBIAS JA: I agree with Rothman J. 2 HOWIE J: I agree with Rothman J. 3 ROTHMAN J: Ricky Malcolm applies for leave to appeal the sentence imposed by his Honour Judge Blackmore of the District Court on 9 December 2005. The applicant had pleaded guilty to the offence of aggravated robbery contrary to s.95(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years' imprisonment. He was sentenced by Blackmore DCJ to a non-parole period of 2 years' imprisonment, to date from 22 January 2005 to 21 January 2007, and thereafter a parole period of 1 year and 4 months, expiring on 21 May 2008; the total sentence is 3 years, 4 months. 4 The grounds of the appeal, and application for leave to appeal, raise manifest excess in the sentence, and the balance between general deterrence and rehabilitation in circumstances where the applicant, as in this case, suffers from an intellectual disability. 5 The details of the facts are irrelevant but there needs to be some understanding of the nature of the offence. Essentially the offence arose when the applicant, leading two friends, assaulted the victim on a Saturday evening outside Central railway station. The applicant stole the victim's mobile phone. The offence occurred on 22 January 2005 and it would not yet have been dark. The assault was motivated by a desire to obtain money and was totally unprovoked. It involved stalking, threatening, terrifying and assaulting the victim before robbing him. 6 Shortly afterwards the applicant was arrested and had in his possession the mobile phone. After initially denying that he had committed the offence, the applicant pleaded guilty. 7 The applicant was described in a psychologist's report as being "probably in the borderline range" of intelligence. The Psychologist's Report 8 Ms Katie Seidler complied a psychologist's report on the applicant. Because of the nature of the argument put, the psychologist's report takes on a significance it might not otherwise. Ms Seidler says: "[The applicant's] affect was inappropriate in the sense that he impressed as being immature and he often laughed or chuckled inappropriately. He … presented as a simple person who was not particularly psychologically minded. He was both oriented and alert and did not demonstrate any overt evidence of mood or thought disorder. … [The applicant] was generally restless during testing and readily tried to give up on tasks that were clearly difficult for him. At times, he needed a great deal of encouragement and direction to stay focused on the tasks required of him. [The applicant's] intelligence was assessed. … Verbal measures are generally more affected by education, cultural experiences and language familiarity than non-verbal tests. [The applicant's] verbal intelligence was assessed as falling in the range of a mild intellectual disability, with his scores being superior to only 2% of similar aged peers. His non-verbal or performance intelligence was determined to be in the below average range at the 21st percentile. There was a 20 point difference in [the applicant's] verbal and non-verbal IQ scores and a difference of this magnitude is statistically significant, such that making an estimate of his overall intelligence quotient is inappropriate. It is suggested that [the applicant's] non-verbal intelligence levels are probably a more sound estimate of his optimal intellectual functioning, however, functionally he is suggested to be performing at a level below this, probably in the borderline range. [The applicant's] lower verbal intelligence is probably further compromised by his learning difficulties and only limited formal educational experience. [The applicant's] reading ability was assessed. … His score on this measure was commensurate with that of an 11 year old child. This is barely above the minimum standard of survival literacy skills, which is generally accepted to be equivalent to the age of 10 years. [The applicant] then completed … a measure of short term memory or attention skills which requires the testee to hold and manipulate numerical information in memory. He performed at below the first percentile which is very poor and consistent with his lower verbal intelligence and reported history of attention deficit symptomatology. … [The applicant's] visual organisation skills are considered to be impaired, over and above his assessed level of intelligence. … Overall, [the applicant] is a man who is functioning at a low level intellectually. In particular, he has a verbal intellectual deficit, which includes limited literacy and verbal comprehension skills. His functioning ability is considered to be partly reflective of his learning difficulties and very limited educational experience, in addition to genetic vulnerabilities. Verbal intelligence is known to be associated with the ability to self regulate through the mechanism of internal speech. Therefore [the applicant] would likely find it very difficult to reflect on experience and monitor his behaviour accordingly. He would have limited insight and would have poor perspective taking skills. In addition, his ability to reason in abstract or conceptual terms would be limited by his executive functioning difficulties. Specifically, [the applicant] could be expected to have greater difficulty utilising what cognitive resources he possess when compromised by stress, distress or increased demand. In summary, [the applicant] is a person with severely compromised cognitive and psychological maturity." 9 Further, the pre-sentence report from the Probation and Parole Service confirms the views expressed by Ms Seidler and refers to his history of substance abuse. The applicant is a person who knows that what he did, in committing the offence, was wrong. But his intellectual disability prevents him from understanding why it is wrong. Persons who suffer from an intellectual or mental disorder do not serve as an appropriate medium for making an example to others: R v Wright (1997) 93 A Crim R 48 at 50, per Hunt CJ at CL. However, his Honour went on to say: "Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities can not be expected of a person whose intellectual function is insufficient to have that understanding." Principles 10 As have been pointed out on a number of occasions, it is not unusual for persons suffering from mental disorders to come before the courts. The sentencing of such a person, a not uncommon experience for judicial officers, requires the exercise of a discretion involving balancing general deterrence, specific deterrence and the prospects of rehabilitation. The difference is that society cannot require of a person who is suffering a mental disorder that they be used as an example to the general public, because a person with a mental disorder may not understand fully the distinction between right and wrong or the gravity of their actions. But the goals of sentencing remain the same. They are the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform: R v Veen (No. 2) (1988) 164 CLR 476. 11 As was pointed out in R v Engert (1995) 84 A Crim R 67, the principles of sentencing do not require automatic consequences. In particular, the fact of a mental disorder does not require, automatically, a lesser sentence than might otherwise be the case. 12 The sentence that was imposed by his Honour for a violent, wholly unprovoked attack on a person walking in the street was a sentence which is at the low end of the range available for a crime of this seriousness. 13 It is clear from the remarks on sentence that his Honour was mindful of the particular problems suffered by the applicant and took them into account in the exercise of his discretion. It is true, as is submitted, that, on the evidence before this Court and the sentencing judge, the applicant did not fully understand the gravity of his actions. It is also true that he understood that his actions were wrong. As earlier stated, what is clear from the psychological profile of this applicant is that personal deterrence has a great impact than might rehabilitation. 14 His Honour described the balance as favouring general deterrence in this case. Persons suffering this kind of disability ought rarely be used as the example by which others can be deterred from similar offences. But the overwhelming impression is that his Honour was, in fact, referring to personal or specific deterrence. Perhaps his Honour was mindful that usually specific deterrence, as a predominant consideration, is confined to recalcitrant offenders. The comments of his Honour show a concern for impressing on the applicant that conduct of this kind is unacceptable and will be punished. 15 In any event, it cannot be said that a lesser sentence is warranted in law on account of such an error: s.6(3) Criminal Appeal Act 1912. Conclusion 16 The sentence imposed by his Honour displays no substantial identifiable error. Nor is it manifestly excessive. The sentencing judge has approached an extremely difficult sentencing task with the proper regard to the sensitivities involved. 17 I propose that leave to appeal be granted and the appeal be dismissed. ********** 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.