Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: LB v R [2011] NSWCCA 220 Hearing dates: 22 September 2011 Decision date: 07 October 2011 Before: WHEALY JA at 1 JAMES J at 2 HOEBEN J at 3 Decision: Grant leave to appeal. Allow the appeal. Quash the sentences imposed by his Honour Sorby DCJ on 13 August 2010. In lieu thereof, the applicant is sentenced as follows: Count 2 - A sentence of imprisonment for a fixed term of 2 years to commence on 20 June 2010 and to conclude on 19 June 2012. Count 1 - A term of imprisonment with a non-parole period of 2 years to date from 20 June 2011 and to conclude on 19 June 2013 with a balance of term of 18 months to date from 20 June 2013 and to conclude on 19 December 2014. Catchwords: CRIMINAL LAW - sentence appeal - aggravated indecent assault on a child and sexual intercourse with a child - impact of mental disability on sentence - findings of fact not open on the evidence - effect on sentence of s61M offence being able to be dealt with in the Local Court - need to resentence Legislation Cited: Crimes Act 1900 Mental Health Act 1990 Cases Cited: Bonwick v R [2010] NSWCCA 177 R v Hemsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 255 R v Palmer [2005] NSWCCA 349 Stewart v R [2009] NSWCCA 152 The Queen v Oldbrich (1999) 199 CLR 270 Vuni v R [2006] NSWCCA 171 Waters v R [2007] NSWCCA 219 Texts Cited: --- Category: Principal judgment Parties: LB - Applicant Regina - Respondent Crown Representation: M Ramage QC - Applicant S Bowers - Respondent Crown Jeffreys lawyers - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/142364 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2010-08-13 00:00:00 Before: Sorby DCJ File Number(s): 2009/142364 Judgment 1WHEALY JA : I agree with the orders proposed by Hoeben J. 2JAMES J : I agree with Hoeben J. 3HOEBEN J : Offences and sentence The applicant pleaded guilty before Syme DCJ on 19 April 2010, which was the day fixed for the commencement of his trial. He came before Sorby DCJ for sentence on 13 August 2010 in respect of the following offences: Count 1: Aggravated indecent assault of a child under 16 years contrary to s61M(2) Crimes Act 1900, for which the maximum penalty is imprisonment for 10 years with a standard non-parole period of 8 years. Count 2: Sexual intercourse with a child aged between 10 and 14 years, contrary to s66C(1) Crimes Act 1900, for which the maximum penalty is imprisonment for 16 years. The Court was asked to take into account on a Form 1 two offences of aggravated indecent assault on a child under 16 years, contrary to s61M(2) of the Crimes Act 1900. 4His Honour sentenced the applicant as follows: Count 2 - A fixed term of imprisonment for 2 years commencing 20 June 2010 and concluding 19 June 2012. Count 1 - Imprisonment with a non-parole period of 3 years to commence on 20 June 2011 and conclude on 19 June 2014 with a balance of term of 1 year and 6 months to conclude on 19 December 2015. The effect of the sentence was imprisonment with a non-parole period of 4 years with a balance of term of 1 year and 6 months. 5The applicant seeks leave to appeal from the severity of the sentence. Background to offences 6On the evening of Friday 9 January 2009 the victim M, who was then aged 12, travelled to the applicant's home in Guildford with his stepfather. The stepfather was staying with the applicant because it was closer to his place of work. That night M slept on a lounge in the kitchen area while his stepfather slept on the floor next to him. 7By 5am M's stepfather had already left for work leaving M asleep on the lounge. Other occupants of the house were also asleep. The applicant had been consuming alcohol for much of the night up to and beyond 3am. 8Shortly after 5am, the applicant approached M while he was still on the lounge and began rubbing his legs with his hands. M was wearing shorts at the time. The applicant then sat on a chair opposite M and pushed or kicked one leg towards M's penis and touched M's penis on the outside of his shorts with his shoe. These were the facts relating to the first offence on the Form 1. 9The applicant then placed his hands on M's shorts and placed his finger in the area of M's anus, which M said hurt. These were the circumstances relating to count 1 on the indictment. 10The applicant also licked M's face and put his tongue in M's mouth. These facts constituted the second offence on the Form 1. 11The applicant then produced his penis from his trousers and asked M to suck it. M sucked the applicant's penis approximately two or three times because he was scared. Those were the circumstances relating to count 2 on the indictment. 12M then told the applicant that he had to go home. He left the applicant's unit, went home and reported straight away to his mother what had happened. His mother called the police. 13At about 10.30am on 10 January the police attended the applicant's unit, arrested him and conveyed him to Merrylands Police Station where he indicated he wished to be interviewed with an interpreter. During the interview he denied the allegations that M had made, although he did agree that he had massaged M's leg because M had complained of a cramp. 14The applicant's clothes were taken and subjected to a DNA analysis. The DNA analysis supported the complaints made by M. Applicant's subjective case 15The applicant did not give evidence in the sentence proceedings. His personal information was contained in reports from Dr Richard Furst, psychiatrist, dated 26 July 2010 and from Dr Susan Pulman, neuropsychologist, dated 27 July 2010. 16The applicant was born in December 1957 and was aged 52 at the time of sentence. He had not previously been in trouble with the police and this was his first time in prison. He had been on a disability support pension since 1998. 17The applicant was born in Nicaragua. During his teenage years, the eight-year civil war in Nicaragua was taking place and he saw a number of people killed. He apparently had some mental breakdown at the age of 19 and was hospitalised in Nicaragua for about 12 months. He said that he continued to have intrusive memories of what happened in Nicaragua. He came to Australia with his then de facto partner in 1987. That relationship broke up and at the time of these offences, he was living on his own in a Department of Housing unit at Guildford. He was hospitalised in Australia at Westmead Hospital under the Mental Health Act 1990 in 2005. 18At the time of the offences, the applicant was a very heavy drinker and would binge drink on weekends. He used cannabis on a regular basis. He had been drinking heavily on the night of the offences. 19The applicant told Dr Furst that he could not remember the offences. He was shocked when the police told him what had occurred. He said that he had never done anything like that before. He said that he was not attracted to young boys and girls and had not had any previous intention to do anything sexual to the victim. He said that he was completely "devastated" after his arrest, had become depressed and stopped eating. He said that he was seen by psychologists and psychiatrists at the Mental Health Screening Unit at the MRRC after his arrest. 20Dr Furst examined the medical records from Justice Health which confirmed the history given to him by the applicant. Those records indicated that the applicant was depressed and suicidal after his reception into custody. His presentation at that time was described as "flat in effect, depressed in mood, sleeping poorly and seeing no reason to live". Post-traumatic stress disorder (PTSD) symptoms relating to his conflict experiences in Nicaragua were also noted. 21The Mental Health Screening Unit noted alcohol and cannabis abuse. There was evidence of auditory hallucinations. He was diagnosed with a psychotic depression that was thought to be related to his alcohol and substance abuse. He was commenced on anti-psychotic medication. 22Dr Furst diagnosed the applicant as suffering from post-traumatic stress disorder. He found that he was suffering from a major depressive disorder with psychotic features at the time of the offence. He found that he was alcohol dependent and was abusing cannabis. In relation to the relationship between the applicant's mental condition and the offence, Dr Furst said: "The applicant claimed to be amnesic for the events in question when first arrested and remains at a loss to explain his actions. The lack of memory for the events in which he sexually assaulted his friend's son raises the possibility that he was so intoxicated as to have suffered some type of alcoholic blackout. However, there is also a possibility that his depression and/or his PTSD led him to disassociate in some manner. There is a further possibility that he is simply denying any knowledge of what happened however he seemed frank in his account of other events when interviewed." 23When Dr Pulman examined the applicant her findings were consistent with those of Dr Furst. She found that the applicant's overall level of intellectual functioning fell within the extremely low range, with his results being at the first percentile. She concluded: "As LB's level of intellectual functioning falls within the extremely low range (equating with a scale score below 70), he meets criteria for having an intellectual disability. His particular score fell between 50 and 69, indicating a mild level of intellectual disability." Remarks on sentence 24In relation to objective seriousness, his Honour said: "These facts reveal an objectively very serious offence. Both specific as well as general deterrence are important elements in this sentencing exercise. This offence involved grooming of the victim, or repetition of the acts. The acts were spontaneous and not planned. In my view whilst objectively serious, both offences fall below the mid-range objective seriousness for this type of offences but above the bottom of the range for such offences." 25His Honour noted the assessments of Drs Pulman and Furst, and in particular the applicant's long history of mental problems. He also noted the applicant's alcohol dependence problems. In that regard, his Honour said: "Alcohol consumption might assist in explaining the offender's offending behaviour, but it cannot excuse it." 26In relation to remorse, his Honour said: "The offender did not give evidence before me and express any remorse for his offending. From the reports tendered he appears to be in a state of denial and at a loss as to how he could have acted in such a manner." 27His Honour noted that the applicant had no criminal antecedents and that this would be his first time in prison, other than a short period in 2009 before he was granted bail for these offences. Because of the applicant's plea of guilty, his Honour allowed a 12 percent discount. His Honour noted that the standard non-parole period in respect of count 1 did not apply because of the plea of guilty. 28His Honour took account of the applicant's mental condition as follows: "Both offences as I have said are objectively serious although falling towards the bottom of the range for such offences. Specific deterrence is important. General deterrence is important but because of the mental illness, as defined by Dr Furst, of long standing post-traumatic stress disorder and depression, it is not so important, although it does have some weight. There are subjective factors in the offender's favour that must be also weighed up. In particular, his traumatic experiences in his country of Nicaragua in his youth ... Weighing up the objective seriousness of the offending with the subjective factors and the need for deterrence to the extent that I have found and taking into account the two matters on the Form 1, I consider a period of non-parole of 4 years to be appropriate with a further period of 18 months on parole." APPEAL The sentences imposed both individually and in total were unduly harsh and severe 29The applicant submitted that despite his Honour finding that the offence under s61M(2) fell below the mid-range of objective seriousness, the sentence imposed by reference to sentencing statistics showed that the sentence was towards the top of the range for offences of this kind. The applicant submitted that the sentence was inconsistent with his Honour's finding that the level of criminality was below the mid-range of objective seriousness. 30In respect of the s66C(1) offence, by reference to sentencing statistics he made the same submission. 31As this Court has said on a number of occasions, sentencing statistics can provide general information in relation to the range of sentences imposed for a particular offence but their use is limited. The sentencing statistics here do not of themselves demonstrate that the sentences imposed, both individually and in total, were unduly harsh and severe. What the applicant had to demonstrate was that the sentences were "unreasonably or plainly unjust" ( Vuni v R [2006] NSWCCA 171 at [33] which was endorsed in Stewart v R [2009] NSWCCA 152 at [16 - 17]). The question for this Court is not whether different or lesser sentences could have been imposed, but whether the sentences imposed fell within the proper exercise of his Honour's discretion. 32I am not persuaded on the basis of the applicant's reliance upon statistics that ground 1 of the appeal has been made out. Ground 2 - The sentencing judge erred in failing to take into account or sufficiently take into account the mental condition of the applicant Ground 3 - The sentencing judge erred in his appreciation of how mental disability impacted on sentence 33The applicant submitted that it was clear from the report of Dr Furst that he was suffering from a mental disorder or disability at the time of the commission of the offences. He submitted that in assessing his culpability and the importance of general and specific deterrence his Honour did not have due regard to that consideration. The applicant submitted that his low level of intellectual functioning and poor impulse control were also relevant to assessing the objective seriousness of the offences and should have been taken into account. 34I have concluded that his honour did not sufficiently take into account the mental condition of the applicant when imposing sentence. It is true that his Honour found that general deterrence was to be given less weight but otherwise his Honour made no further allowance for what was a twofold problem, i.e. a mental disability and significantly reduced intellectual functioning. 35The extent to which mental disability can affect the sentencing process was discussed by Spigelman CJ, with whom Simpson J and Blanch AJ agreed, in R v Israil [2002] NSWCCA 255 where his Honour said: "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. As Wood CJ at CL put it in Henry , supra, at [254]: "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 judgment. 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." 24 I agree with the observations of Malcolm CJ in Lauritsen at [48]: "Mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence." 25 Further, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it: "Specific deterrence may be more difficult to achieve and is often not worth pursuing as such". ( Csiaras, supra, at [400])."" 36Here his Honour made no reference to the relationship between the applicant's mental state and the commission of the offence, i.e. as to whether his mental condition made any contribution to the offence. Moreover, his Honour stressed the importance of specific deterrence without any analysis as to why that was so and if so, how that was to be reconciled with the applicant's mental condition. The finding by Dr Furst that at the time of the offence the applicant was suffering from a major depressive disorder with psychotic features, tended to indicate a clear connection between the applicant's mental condition and the offences. That conclusion makes his Honour's emphasis upon specific deterrence as an important factor in the sentencing process somewhat problematic. This emphasis becomes even more problematic when regard is had to the applicant's age and the fact that he had not committed any similar offence in the past. It is significant that Dr Furst did not find any inclination towards such offending on the part of the applicant. 37Finally, his honour did not turn his mind to the effect which the applicant's mental condition had on the issue of culpability. An inability to make reasoned or ordered judgments was an important consideration when considering what was an appropriate sentence for this applicant. 38For the above reasons, it was appropriate on the facts of this case to sentence the applicant more leniently than would be the case with an offender without his disability. The result has been to produce an overall sentence that is arguably excessive. Ground 4 - The sentencing judge erred in finding that the applicant groomed the victim 39The applicant submitted that it was accepted by the Crown that the offences were unpremeditated, unplanned and opportunistic. No one referred to "grooming". The applicant submitted that there was no evidence to support a finding of "grooming". The applicant submitted that there had been a denial of procedural fairness by his Honour making a finding to that effect without giving him the opportunity of dealing with it. 40The Crown accepted that this ground of appeal had been made out. It agreed that all of the offences had occurred during a single episode, with no evidence of any prior association between the applicant and the victim. The Crown agreed that such a finding was not open to his Honour. Ground 5 - The sentencing judge erred in failing to make any allowance for intoxication on culpability 41The applicant submitted that his Honour should have given more weight to his consumption of alcohol than simply saying "alcohol consumption might assist in explaining the offender's offending behaviour, but it cannot excuse it". The applicant submitted that the heavy consumption of alcohol was relevant in mitigating the objective criminality in that the conduct was impulsive and unplanned, and explained the context of the offences. 42Since it was common ground before his Honour that the offences were unplanned and opportunistic, little additional weight could properly be given to the fact of the applicant's heavy intoxication than that which his Honour allowed. In Waters v R [2007] NSWCCA 219 at [38] James J, with whom Giles JA and Hislop J agreed, said: "38 The fact that an offender was intoxicated at the time of committing an offence is not of itself a reason for mitigating the sentence which should be imposed on the offender. However, the fact that an offender was intoxicated at the time of committing the offence may be taken into account as mitigating the objective criminality of the offence, insofar as it indicates that the offence was impulsive and unplanned and that the offender's capacity to exercise judgment was impaired. See R v Henry (1999) 46 NSWLR 346 per Wood CJ at CL at 397-398 (273). In the present case, it is clear that, by reason of his state of intoxication, the applicant's conduct was impulsive and unplanned and his capacity to exercise judgment was seriously impaired." 43His Honour clearly took those matters into account in his approach to the applicant's intoxication. This ground of appeal has not been made out. Ground 6 - The sentencing judge erred in failing to take into account that because of his mental problems the applicant would find his prison sentence much harsher. 44The applicant submitted that although his counsel had made submissions to that effect, and although the Crown had conceded that such was the case, his Honour made no reference to this consideration in his remarks on sentence. That being so, the applicant submitted that his Honour must have made no allowance for it. 45Such a consideration is clearly relevant when sentencing an offender with a mental illness. In R v Hemsley [2004] NSWCCA 228 Sperling J, with whom Grove and Dowd JJ agreed, when summarizing the ways in which mental illness may be relevant said: "35 Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]." 46This was a relevant consideration. His Honour's failure to make any reference to it leads me to conclude that the applicant's submission should be upheld and that his Honour failed to take it into account. Ground 7 - The sentencing judge erred in finding that the applicant had no remorse 47The applicant submitted that it was not open to his Honour to find that he "did not express any remorse for his offending" in circumstances where the applicant said that he had no recollection of the acts which constituted the offences. The applicant submitted that such a finding was contrary to the evidence in the report of Dr Furst where the applicant indicated his shock and dismay when told what he had done and where Dr Furst referred to his "expression of remorse about his actions". The applicant submitted that his plea of guilty was indicative of and consistent with remorse. Finally, the applicant submitted that his Honour's finding that "he appears to be in a state of denial and loss as to how he could have acted in such a manner" was not inconsistent with an expression of remorse on his part. 48The onus of establishing remorse as a mitigating factor rests on an applicant on the balance of probabilities ( The Queen v Oldbrich (1999 ) 199 CLR 270. The assessment of whether or not an applicant has satisfied this requirement is a finding of fact with which this court would not lightly interfere. Nevertheless, a finding of the absence of remorse on the facts of this case required a somewhat more detailed examination of the evidence than that which was carried out by his Honour. To simply reject the presence of remorse because the applicant did not give evidence in which he expressed remorse did not adequately deal with the evidence which was before him. Ground 8 - The sentencing judge erred in making no findings in respect of rehabilitation or re-offending 49The applicant submitted that his Honour should have made a positive finding that he was unlikely to re-offend based on his past good behaviour and the opinion of Dr Furst as to his prognosis. 50The evidence concerning rehabilitation was complex and contradictory. The question of the applicant's rehabilitation depended very much upon the treatment of his mental condition. The evidence in relation to that was somewhat equivocal, even though Dr Furst identified what he described as "a number of strengths" which the applicant had which led him to give a positive prognosis in relation to the applicant's mental condition. On that state of the evidence, it is clear why his Honour did not express an opinion one way or the other as to the applicant's rehabilitation prospects. This ground of appeal has not been made out. Ground 9 - The sentencing judge failed to take into account that the s61M offence could have been dealt with in the Local Court 51The applicant put his argument in relation to this ground of appeal as follows. There was no dispute that the s61M(2) offence was a Table 1 offence and was to be dealt with in a Local Court unless an election was made for a trial on indictment. If dealt with summarily, the maximum penalty which could be imposed was 2 years imprisonment. The s66C(1) offence could not be dealt with summarily as the victim was under the age of 14 years ( Criminal Procedure Act, Schedule 1, Table 1, clause 1). 52Since neither party made submissions on this issue, the strong likelihood was that the issue was entirely overlooked by his Honour. In those circumstances, given the comparatively minor nature of the offence (touching the victim's anus outside his shorts in a way which hurt him) his Honour should have taken this into account as a matter favouring a lesser sentence. 53The relevant principles were set out by Hall J in R v Palmer [2005] NSWCCA 349 as follows: "15 The written submissions on behalf of the applicant and those also on behalf of the respondent refer to a number of decisions of this Court. For the purposes of this application, they are stated in short form as a series of propositions or principles as follows:- (a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30]. (b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15]. (c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16]. (d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115. (e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17]. (f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case : El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed)." 54More recently, in Bonwick v R [2010] NSWCCA 177, Davies J made observations to similar effect: "43 Whilst it is clear that there is no obligation on the sentencing Judge to regard himself or herself limited by the maximum penalty available in the Local Court, two relevantly important principles emerge from the cases. The first is that the extent of the criminality is an important consideration in having regard to the Local Court penalty: R v Hanslow [2004] NSWCCA 163 at [21]; Regina v Said El Masri [2005] NSWCCA 167 at [29] and McCullough at [26]. Secondly, where it appears that the matter of the Local Court penalty has been entirely overlooked by the sentencing Judge that may properly justify the grant of leave to appeal: R v Crombie [1999] NSWCCA 297 at [16]. 44 In the present case, it is likely that the matter was entirely overlooked by the sentencing Judge because it is accepted that neither counsel drew it to the Judge's attention. Further support for that inference derives from the omission of the sentencing Judge to make any reference to the fact that the offences could have been dealt with by the Local Court and from the length of the sentence imposed for each of the offences. 45 This failure to refer to the Local Court limitation on sentence amounts to an error justifying the intervention of this Court. This is because, as the highlighted passages in Palmer make clear, the fact that the Local Court could have dealt with the matter is a relevant consideration to be taken into account." 55The sentence imposed in relation to the s61M(2) offence substantially exceeded the maximum penalty available in the Local Court. The facts relating to the offence did not make it unsuitable to be dealt with by the Local Court. Accordingly, this was a factor which should have been taken into account by his Honour as a relevant consideration when sentencing for that offence. This ground of appeal has been made out. Ground 10 - The sentencing judge erred in failing to identify and take into account Form 1 matters in respect of a specific offence 56The applicant submitted that the Form 1 matters were taken generally into account in respect of both offences rather than one single offence. 57That is not how I read his Honour's remarks on sentence. While his Honour made a general reference to the Form 1 matters, he did say at the conclusion of his remarks on sentence: "I formally attach the two matters in the Form 1 to the s61M(2) offence." This ground of appeal has not been made out. Ground of appeal 11 - the sentencing judge erred in the actual sentences he pronounced 58The applicant submitted that the sentencing judge declared that his view of the appropriate penalty for the s61M(2) offence was 3 years imprisonment but the sentence which he actually imposed for that offence was imprisonment for 4 years with a non-parole period of 3 years. 59This ground of appeal has not been made out. It is clear from the context and the terms in which his Honour expressed himself, that he was referring to the non-parole period when referring to 3 years imprisonment. Conclusion 60As is apparent from the analysis of grounds of appeal 2, 3, 4, 6 and 9 there were errors in his Honour's approach to the sentencing of the applicant. Most particularly, his Honour failed in a significant way to have due regard to the serious mental disability and intellectual incapacity from which the applicant suffered at the time when the offences occurred. I have concluded that a term of imprisonment of 5 years with a non-parole period of 4 years for a mentally disabled man with no relevant criminal history in respect of this series of offences committed over a short period of time is excessive. This is particularly so in relation to the s61M(2) offence which despite the presence of a standard non-parole period of 8 years as a signpost, constituted an offence well below the mid-range of objective seriousness for offences of that kind although as his Honour correctly concluded, not at the very bottom. 61Once proper regard is had to the contribution of the applicant's mental disability to his offending behaviour and to the effect of the other successful grounds of appeal to which I have referred, it is clear that his Honour's sentencing discretion miscarried. I have concluded that a lesser sentence is warranted in law and should have been passed. 62I propose to reduce the sentence for the s61M(2) offence so as to produce an effective sentence of imprisonment for 4 years with a non-parole period of 3 years. It follows from the orders which I propose that I have not interfered with his Honour's finding of special circumstances. 63The orders which I propose are as follows: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentences imposed by his Honour Sorby DCJ on 13 August 2010. (4) In lieu thereof, the applicant is sentenced as follows: Count 2 - A sentence of imprisonment for a fixed term of 2 years to commence on 20 June 2010 and to conclude on 19 June 2012. Count 1 - A term of imprisonment with a non-parole period of 2 years to date from 20 June 2011 and to conclude on 19 June 2013 with a balance of term of 18 months to date from 20 June 2013 and to conclude on 19 December 2014. ********** 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: 07 October 2011