Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: ADZIOSKI v R [2013] NSWCCA 69 Hearing dates: 13 March 2013 Decision date: 05 April 2013 Before: Hoeben CJ at CL [1] Slattery J at [77] Bellew J at [78] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - attempted sexual intercourse, victim with a cognitive impairment - offender suffering from mental illness - whether sentencing judge assessed offender's moral culpability - need to adjust competing considerations in sentencing exercise - whether appropriate weight given to offender's mental illness - whether sentencing judge treated victim's vulnerability arising from her cognitive impairment as an aggravating feature - whether sentence manifestly excessive. Legislation Cited: Crimes Act 1900 - s61H(1A), s61J(1), s61O(1A) Cases Cited: Attorney-General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Benitez v R [2006] NSWCCA 21; 160 A Crim R 166 Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Cole v R [2010] NSWCCA 227 Courtney v R [2007] NSWCCA 195 Devaney v R [2012] NSWCCA 285 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 Everett v R [1994] HCA 49; 181 CLR 295 Graham v R [2009] NSWCCA 212 Lowndes v R [1999] HCA 29; 195 CLR 665 Markarian v R [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 240 CLR 120 Papworth v R [2011] NSWCCA 253 R v Allpass [1993] 72 A Crim R 561 R v Burnett [2011] NSWCCA 276 R v Engert (1995) 84 A Crim R 67 R v Wickham [2004] NSWCCA 193 R v Wright (1997) 93 A Crim R 48 Taylor v Regina [2006] NSWCCA 7 Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Yang v R [2012] NSWCCA 49 Category: Principal judgment Parties: Steven Adzioski - Applicant Regina - Respondent Crown Representation: Counsel: Mr G Brady - Applicant Ms S Dowling - Respondent Crown Solicitors: Nyman Gibson Stewart - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2009/279776 Decision under appeal Date of Decision: 2012-04-05 00:00:00 Before: Zahra DCJ File Number(s): 2010/352037 Judgment 1HOEBEN CJ at CL: Offence and sentence On 5 April 2012 the applicant was sentenced by Judge Zahra SC in respect of the following count: That he on 22 October 2010 between Wolli Creek and Riverwood did attempt to have sexual intercourse with RC, without the consent of RC, knowing she was not consenting and she being a person with a cognitive impairment, contrary to s 61J(1) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years. 2His Honour was also asked to take into account on a Form 1, an offence of "aggravated act of indecency" (person with cognitive impairment) contrary to s 61O(1A) Crimes Act 1900 for which the maximum penalty is imprisonment for 3 years. 3His Honour sentenced the applicant to imprisonment with a non-parole period of 4 years, commencing 22 October 2010, and expiring 21 October 2014, with a balance of term of 2 years, expiring 21 October 2016. The applicant will be eligible for release to parole on 21 October 2014. 4The applicant seeks leave to appeal from this sentence on the following grounds: Ground 1: The learned sentencing judge erred in that he failed to give any or any adequate weight to the applicant's mental illness as it affected (a) the moral culpability of the applicant; (b) the significance of general deterrence; and (c) the significance of specific deterrence. Ground 2: The learned sentencing judge erred in treating the vulnerability arising from the victim's cognitive impairment as an aggravating feature. Ground 3: The sentence imposed was manifestly excessive. Factual Background 5The victim, RC, was a 24 year old female who suffered from a mild intellectual disability. As a result, she satisfied the criteria for a "cognitive impairment" as defined in s 61H(1A) of the Crimes Act 1900. The victim resided with her parents and was unemployed. Her father suffered from a learning disability. Count 1 6At about 7.45pm on Friday 22 October 2010 the victim and her father boarded a train at Wolli Creek train station to travel to Riverwood. The applicant boarded the train at the same time. The victim sat on a seat on the entrance level adjacent to the door. Her father stood nearby. 7A short time after boarding the train, the applicant sat next to the victim, put his arm around her and spoke to her. The victim told the offender to go away, stood up and walked to the lower level of the train carriage. The applicant followed the victim to the lower level, sat next to her and again put his arm around her. The applicant asked the victim whether she had a boyfriend and the victim told the applicant to leave her alone. The applicant then reached over and lifted the victim's skirt. The victim told the applicant to leave her alone. The applicant ignored the victim and pulled down her underpants with both his hands. The applicant then attempted to insert one of his fingers into her vagina. The victim called out "ouch it hurts, go away". By this time the victim observed that there were several people in the carriage looking towards her, however, none of the passengers came to her aid. While the applicant was still trying to insert his finger into the victim's vagina, he said to her "do you want some money for drink?" The victim ignored him and after a while the applicant removed his hand. Form 1 matter 8The applicant then pulled down his trousers, exposing his penis which was erect. The victim stood up to leave but the applicant put his arm across her preventing her from doing so. The victim sat back down and told the applicant she had to get off the train at Riverwood. The victim, who was crying, again stood up and rushed to her father, hugged him and told him that the applicant had pulled her pants down and exposed his penis. 9The applicant followed the victim up the stairs and the victim's father told him to go away. When the train stopped at Riverwood, the victim and her father left the train and informed the guard of the assault. The train left the Riverwood train station with the applicant still aboard. 10The victim and her father walked to the Riverwood Police Station and reported the assault to police. Staff at the Riverwood train station alerted transit police who met the train at Holsworthy train station. Transit police detained the applicant and he was soon after taken into custody by NSW Police. Due to the applicant's level of intoxication, he was unable to be interviewed and he was allowed time to recover. Upon recovery, the applicant engaged in an electronically recorded interview. 11The applicant admitted that he had raised the victim's skirt, pulling down her underpants and placing his hands around her vagina and buttocks. He also admitted trying to put his finger inside the victim's vagina and grabbing her as she tried to leave. He admitted to removing his pants and exposing his erect penis to the victim. 12The applicant told police that he had consumed an unknown quantity of beer since lunchtime on 22 October 2010. He said that he suffered from schizophrenia. The applicant appeared coherent during the interview and was able to recall details of the evening. He said that he knew that what he had done was unlawful. 13Inquiries revealed that at the time of offending, the applicant was in breach of bail conditions. He had been granted conditional bail at Kogarah Local Court on 22 April 2010 in relation to a number of charges. The bail conditions included that he not consume alcohol. Proceedings in District Court 14The applicant gave evidence in the sentence proceedings. 15There was available to his Honour a report from Dr Elliott, who was a psychiatrist employed by JusticeHealth. His report was requested by the court. Dr Elliott conducted a psychiatric assessment of the applicant on 6 March 2012 at the Metropolitan Reception and Remand Centre. After 30 minutes the interview was cut short, because Dr Elliott formed the opinion that the applicant's answers were not to be relied upon and the applicant had become hostile. 16His Honour also had before him, reports from another psychiatrist, Dr Adams, who had been retained by the applicant's solicitor. The applicant saw Dr Adams on 26 January, 9 March, 7 September 2011 and 11 January 2012. Dr Adams prepared reports dated 15 March and 14 September 2011 and 17 January 2012. 17His Honour based his assessment of the applicant's mental health on the contents of those reports and on his assessment of the applicant. 18By reference to the report of Dr Elliott, his Honour noted that the applicant had been suffering from mental health problems since the age of 20 and that he had two involuntary admissions to psychiatric units. He had been diagnosed with schizophrenia and had been prescribed anti-psychotic medication. His compliance with that medication was irregular and Dr Elliott recorded that he had been non-compliant with his medication for approximately six months before this offence. After his arrest and while on remand, the applicant was taking medication which included an anti-depressant, a mood stabiliser and anti-psychotic medication. 19By reference to the applicant's medical records, Dr Elliott confirmed that the applicant had been consistently assessed as suffering from schizophrenia since the age of 20. There was also a record of co-morbid problems with drug abuse, in particular amphetamines, cannabis and binge drinking. Upon clinical presentation, the applicant exhibited a number of symptoms typical of schizophrenia. Dr Elliott also concluded that the applicant "had a co-morbid diagnosis of alcohol, cannabis, amphetamine/methamphetamine abuse or dependence and a possible previous opiate dependence". The applicant told Dr Elliott that he could not recall the circumstances of the offence and that his only memories were of boarding the train with the intention of attending his brother's residence, commencing drinking beer in a rapid manner at approximately midday and being in trouble with the state transit police. 20Dr Adams recorded that the applicant had been treated by a Mental Health Team in the months leading up to the offence which had reviewed him fortnightly. Before the offending, he had not taken his prescribed medication as he felt he did not need to. However, he told Dr Adams that during the period leading up to the offence, he was not feeling well. Dr Adams recorded that the applicant described his mood as changing abruptly and frequently during the two week period before the offence. He did not experience any features consistent with psychosis in the form of delusions or hallucinations during that period. The applicant told Dr Adams that during that period "I just wasn't feeling right ... I was out of it ... I was really fast ... I wasn't on my medication". He said that his thinking was "all over the place". 21The applicant told Dr Adams that before the offence, he had been intoxicated with alcohol every couple of days, but had not used illicit substances. On the day of the offence, he had consumed approximately ten cans of beer, commencing at about 1pm. At the time of the offence, he felt "excited ... drunk ..." and that his thought processes were "really fast". He said that he was attracted to the victim and that he had experienced "sexual thoughts" but denied any planning of sexual assault before getting on the train. 22Dr Adams thought that the applicant's description of his mental state at the time of the offence was in keeping with "disintegrated thought processes". He did not think that the applicant's account suggested that he was experiencing specific delusions or hallucinations at the time of the offence. Dr Adams concluded: "In my opinion on balance there are reasonable grounds to conclude that the offender was experiencing continuing features of thought disorder at the material time of the offence, which was probably compounded by his use of alcohol. I believe it is likely that this presentation resulted in his impaired decision-making capacity and contributed to his disinhibited sexual behaviour." 23In evidence during the proceedings on sentence, the applicant said that the reason that he stopped taking his medication a few months before the offence was on the advice of his general practitioner who wanted to trial him without medication. 24His Honour had regard to the following subjective matters. The applicant was aged 33 with no dependants. At the time of the offending, he was living with both parents and working casually as a labourer. He left school in year 10 and thereafter his employment was only intermittent. He had not been involved in any long-term relationships. 25The applicant had a history of alcohol abuse, having commenced drinking at the age of 17 and thereafter regularly binge drinking. There was a history of cannabis and amphetamine/methamphetamine use, also commencing at the age of 17 and escalating at times to daily use. The applicant had experimented with other substances, such as cocaine, heroin and LSD. He continued to drink to intoxication every couple of days. 26The applicant had a poor criminal record and had been convicted of a number of offences as a juvenile. In May 2001 the applicant was sentenced to imprisonment for 4 years and 6 months with a non-parole period of 2 years for an offence of aggravated assault with intent to rob. At the time of this offence, the applicant was on bail which his Honour regarded as a significant aggravating factor. 27In relation to the objective gravity of the offence, his Honour had regard to the maximum penalty of imprisonment for 20 years as an indication of how seriously the community viewed such offences. 28On this issue, his Honour said: "An important step in determining the appropriate sentence is the assessment of where this particular aggravated sexual assault offence lies on the spectrum or scale of seriousness: Ibbs v The Queen (1987) 163 CLR 447. It must be kept in mind in the assessment of the objective gravity of the offence that the Court is concerned here with the range of objective seriousness for the aggravated form of the offence. There is little utility, in the assessment of the objective seriousness of the offending here, to first attempt to place the aggravating circumstances in s 61J into some kind of hierarchy. As the circumstances in each case will be different, the individual case is best assessed by understanding what it is the offender did. Here the objective seriousness of the offence lies substantially in the vulnerability of the victim, taking into account her impairment and her vulnerability in the situation she found herself in. Further, the nature of the attempted sexual assault was of a most serious kind. The victim did not know the offender." (ROS 11.6 - 12.1) 29His Honour noted that the victim attempted to get away from the applicant and that there was a level of persistence in his conduct. Although the conduct caused the victim some pain, his Honour noted that the period of time involved was relatively short. His Honour noted that even after the applicant had removed his hand, he continued to intimidate the victim causing her distress and causing her to cry. His Honour accepted that while the applicant's actions were not accompanied by verbal threats, his conduct would have placed the victim in considerable fear. Because his actions were in public, they were not only violent but also degrading and humiliating. 30His Honour concluded: "The circumstances highlight the importance of deterrence, both general and specific, as a means of protecting vulnerable victims as they go about their day to day lives. ... There is also a substantial impact upon the community generally. The ability of members of the public to go freely about the streets without fear of violence is severely challenged by such attacks. The community needs to be protected from such violent acts." (ROS 12.9 - 13.1) 31His Honour then analysed the effect of the applicant's mental illness on the sentencing process. 32His Honour said: " It is a well accepted principle that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In some instances an offender may have limited appreciation of the wrongfulness of the act, or the moral culpability which although falling short of avoiding criminal responsibility, would justify a particular consideration upon sentencing. The offender may not fully appreciate or understand, the nature of his or her offending, or the message that the sentence is expected to convey. Whether general or specific deterrence should be moderated in an individual case depends upon the degree of impairment, the extent of its contribution to the offence, the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both - whether or not the sentence can be seen to have a deterrent value, either specifically or generally." (ROS 13.3 - 8) 33His Honour was aware of the tension between the proposition that mental illness may reduce a person's culpability and the need for greater weight to be given to the protection of the community where such offending might place the welfare of the community at risk. This meant that the fact of mental illness might not result in a lesser sentence. 34His Honour took into account that the fact of a mental illness might mean that a particular sentence would weigh more heavily on an offender than it would on a person of normal health. He also noted that there may, in some cases, be a serious risk that imprisonment would have a significantly adverse effect on an offender's mental health. His Honour accepted that the applicant was in protective custody. Those considerations would be factors tending to mitigate punishment. 35When seeking to reconcile such considerations with others which might tend towards a different result, his Honour took into account that the conduct constituting the offence had elements of irrationality in that it occurred in a railway carriage in the presence of members of the public. His Honour took into account that there was no level of prior planning associated with the offence. While the level of the applicant's intoxication might provide a complete answer to the offending, his Honour regarded such a result as overly simplistic in that it might artificially deny the presence of the underlying mental health condition. His Honour concluded that the answer was likely to involve a synthesis of all of those factors. 36His Honour accepted that the symptoms of the applicant's mental illness were present in the days leading up to the offence. These symptoms were aggravated by the consumption of significant amounts of alcohol. On the other hand, his Honour took into account that the applicant was aware of what he was doing. Despite his high level of intoxication, he was able to give an account of his offending when later interviewed and to acknowledge the wrongfulness of his conduct. 37His Honour's conclusion was: "Ultimately I am of the view that while the offending occurred in the context of an underlying mental condition and impaired decision making capacity that the nature of the offending requires a sentence to reflect the need for deterrence including a strong measure of specific deterrence." (ROS 14.9 - 15.1) 38His Honour accepted that the applicant was genuinely remorseful and had pleaded guilty at an early point in time. By reference to the significant improvement which had occurred in the applicant's health while he was in custody and receiving treatment, his Honour accepted that upon his release it was important to link the applicant to an appropriate Community Mental Health Team to allow for a continued "assertive follow-up". This would reduce the applicant's risk of future relapse of mental illness and therefore the likelihood of future offending behaviour. 39In the end, however, his Honour was unable to predict the applicant's prospects of rehabilitation. "It is difficult to make any precise finding as to the offender's prospects of rehabilitation. He has a significant inherent mental health condition which requires him to comply with treatment and a medication regime. He has a poor compliance record. The offending here involved significant sexual violence and he has a criminal history involving violence." (ROS 18.3) Nevertheless, his Honour was prepared to find special circumstances. 40Because of his early plea of guilty, his Honour allowed the applicant a discount of 25 percent because of the utilitarian value of that plea. 41His Honour took into account the offence on the Form 1 and the guidance provided by Attorney-General's Application under section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146. In that regard, his Honour noted that where there was a matter to be taken into account on a Form 1, in an appropriate case greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. In this case his Honour thought that the offending in the matter on the Form 1 was part of a continuous sequence of events, which included the conduct in the primary count, for which the applicant was being sentenced. The appeal Ground 1: The learned sentencing judge erred in that he failed to give any or any adequate weight to the applicant's mental illness as it affected (a) the moral culpability of the applicant; (b) the significance of general deterrence; and (c) the significance of specific deterrence. 42The applicant submitted that the evidence was that at the time of the offending, he was suffering from a mental illness in the nature of schizophrenia, complicated by co-morbid substance abuse, in particular alcohol. The psychiatric evidence was unanimous that the applicant's mental illness contributed to the commission of the offence in that his thoughts were disordered and "disintegrated". The applicant accepted his Honour's finding that it was a combination of his mental illness and his intoxication which contributed to the offending. 43In the light of that evidence, the applicant challenged the conclusion arrived at by his Honour: "Ultimately I am of the view that whilst the offending occurred in the context of an underlying mental condition and impaired decision making capacity, that the nature of the offending requires the sentence to reflect the need for deterrence, including a strong measure of specific deterrence." (ROS 14.09) 44The applicant submitted that his Honour erred in his approach to moral culpability. The applicant submitted that although his Honour referred to the fact that mental illness might reduce a person's moral culpability, he did not make any finding as to whether in his case his moral culpability was in fact reduced. The applicant submitted that although he acknowledged the wrongfulness of his conduct, that did not detract from the fact that his thought processes were disordered and that his mental illness contributed to his disinhibited sexual behaviour. 45The applicant submitted that his Honour's failure to make a finding as to whether or not his moral culpability was reduced was an error that affected the whole of the reasoning and in particular, the sentence ultimately imposed. The applicant submitted that when all the evidence was taken into account, the inevitable conclusion should have been that his moral culpability was reduced. The applicant submitted that a finding to that effect was relevant to most aspects of punishment, i.e. deterrence, retribution and denunciation. 46Alternatively, the applicant submitted that if his Honour had made an assessment of moral culpability, his Honour had not properly taken that finding into account in that the sentence which he imposed was based substantially on considerations of deterrence and retribution. The applicant submitted that his Honour's focus upon deterrence in the sentencing process in effect disregarded the evidence as to mental illness and the findings which his Honour had made as to the relationship between that mental illness and the offending. The applicant submitted that in relation to general deterrence, there was no consideration by his Honour as to the appropriateness of using him as a "medium by which to deter others from offending" (Muldrock v The Queen [2011] HCA 39; 240 CLR 120 at [55]). 47The Crown responded by submitting that sentencing a mentally ill offender for a serious crime required the exercise of a "sensitive discretionary decision" because of the need to resolve what were often competing considerations (Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 476, R v Engert (1995) 84 A Crim R 67). The Crown submitted that even where the psychiatric condition was relevant or even central to the commission of the offence, it did not necessarily follow that significant leniency should be extended to the offender (Devaney v R [2012] NSWCCA 285 at [74] ff). It submitted that in some cases there was a commensurate increase in the need to protect the public (Courtney v R [2007] NSWCCA 195 at [83]). The Crown submitted that even where mental illness made a contribution to the offending, considerations of both general and personal deterrence remained relevant although their significance might be reduced. This was particularly so when the offender acted with knowledge of what he or she was doing and with knowledge of the gravity of the offending. 48The Crown referred specifically to R v Wright (1997) 93 A Crim R 48 at 51. There the offender's psychotic state was self-induced as a result of his failure to take his medication and his deliberate taking of drugs. Hunt CJ at CL stated at 52: "... By his recklessness in bringing on the psychotic episodes [the applicant] is a continuing danger to the community, a matter which would in any event reduce - if not eradicate - the mitigation which would otherwise be given for the respondent's mental condition." The Crown referred also to Benitez v R [2006] NSWCCA 21; 160 A Crim R 166 at [41] - [42], Cole v R [2010] NSWCCA 227 at [71] - [73] and R v Burnett [2011] NSWCCA 276. The Crown relied on Taylor v Regina [2006] NSWCCA 7 where McClellan CJ at CL (with whom Howie and Latham JJ agreed) said: "30 ... [Because the appellant was] aware of the state he was in and the effect upon him of sleep deprivation, together with the effect of beer and marijuana, but nevertheless elected to drive, his impaired psychological state could not play a significant part in determining the ultimate sentence." 49The Crown submitted that his Honour was conscious of these competing considerations and referred to all of them in his judgment. The Crown submitted that the ultimate resolution of these issues by his Honour involved an exercise of discretion in relation to which error had not been demonstrated. The Crown disputed the applicant's primary proposition that his Honour had failed to make a finding as to his moral culpability and that this failure had led to error in the sentencing process in that his Honour should have found that the applicant's moral culpability was significantly reduced because of his mental illness. The Crown submitted that one only had to look at his Honour's specific findings as to mental illness, and as to the applicant's conduct leading up to the offending, for it to be clear that his Honour was well aware of this principle and took it into account. Consideration 50It is not correct to say that his Honour did not take into account the applicant's moral culpability. When discussing relevant principles (at ROS 13.4), his Honour specifically referred to it. Later, in the context of sentencing principles pointing in different directions, his Honour said: "Even though mental illness may reduce a person's culpability, it does not necessarily follow that the fact of mental illness results in a lesser sentence." 51His Honour's reference to "culpability" is clearly a reference to "moral culpability". It is also clear from his Honour's review of the facts that he was well aware, not only of the fact of the applicant's mental illness, but also that it reduced the applicant's moral culpability. In reaching his conclusions, his Honour set that off against the countervailing consideration that the applicant "was aware of the nature of his conduct ... was able to give an account of his offending when later interviewed and acknowledged the wrongfulness of his conduct". 52A matter which his Honour did not analyse but which was important in oral submissions was that some months before the offending, the applicant had ceased taking his anti-psychotic medication. When cross-examined as to this issue, the evidence was: "Q. In fact you told your psychiatrist, Dr Adams, in relation to taking your medication, you were given medication but you weren't taking them and you told Dr Adams "I felt like I didn't need them, I felt like I was going all right". Do you recall saying that to Dr Adams? A. I think so, yeah, I think - I can't really remember if I did but I think I did at the time I was like I said before, I was taking my medication and I got better and I think there's no need for me to take it no more. Q. You weren't taking your medication at the time of these offences were you? A. Yes that's right. Q. In fact you self-medicate don't you? A. No I don't, no. Q. Do your doctors tell you to stop taking the medication, or do you make the decision to stop taking the medication? A. The doctors, I'd speak to doctors before I'd stop taking the medication. Q. So you stop taking medication on the advice of your doctors, is that the case? A. On advice of a doctor I stopped taking it. Q. At the time of these offences when you weren't on your medication - A. Yes, yes. Q. Had a doctor told you to stop taking your medication? A. Yes. Q. Which doctor was that? A. Dr Pokovic or something, yeah it was only doctor I seen. Q. Is that a GP or psychiatrist? A. Psychiatrist. Q. So a psychiatrist told you to stop taking your medication? A. Yeah. ... Q. Did he tell you why you should stop taking your medication? A. Not necessarily he just said that I reckon, yeah, if you want to try to stop your medication we'll give you a go, you're not taking medication, we'll give a trial of you not taking any medication." (T.11.1 - .49) 53In chief, the applicant had referred to a GP and psychologist having told him to go off his medication. 54Given the applicant's history, as comprehensively set out by Doctors Elliott and Adams, including his four volumes of JusticeHealth medical files described by Dr Elliott, the likelihood of a psychiatrist advising him to cease taking his anti-psychotic medication is highly improbable. The explanation initially proffered by the applicant to the effect that he felt better and thought that there was no longer any need for him to take his medication is more likely. It is not appropriate to develop that issue any further since his Honour did not make any specific finding in relation to it. However, for the reasons indicated, I am not prepared to accept the applicant's submission that he bore no responsibility for ceasing his medication because he did so on medical advice. That was an issue in the sentencing proceedings and it was challenged by the Crown. It is unfortunate that his Honour made no specific finding in relation to it. 55What does seem clear from the applicant's evidence is that he was well aware, even with his disordered state of mind, that when he consumed alcohol he did so to excess and that unfortunate consequences often resulted. In that regard, his Honour made a specific finding, not only that the applicant's mental illness played a role in his offending, but also that his intoxication was equally relevant. That was a finding well open to his Honour on the evidence. 56The relevant principles are set out in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 where McClellan CJ at CL (with whom Simpson J and Barr AJ agreed) said: "177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14] - [18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● 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: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● 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: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● 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: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● 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: Israil at [24]; Henry at [28]. 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: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]." 57All of those considerations were specifically adverted to by the sentencing judge as were the relevant facts (except the cessation of medication). Having done so, his Honour expressed the conclusion set out at [38] hereof. While other judges may have reached a different conclusion, or have given a different emphasis to the particular pieces of evidence in this case, that is not the relevant test. 58In Lowndes v R [1999] HCA 29; 195 CLR 665 at 671 - 672 the Court said: "15 The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke (1996) 2 VR 520. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic House v The King (1936) HCA 40; 55 CLR 499. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." 59In Everett v R [1994] HCA 49; 181 CLR 295 at 306 McHugh J said: "Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence." 60This Court (Gleeson CJ, Hunt CJ at CL and McInerney J) in R v Allpass [1993] 72 A Crim R 561 said: "An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance." 61While those statements of principle were given in cases involving Crown appeals, they are not restricted to appeals of that kind but are of general application. One needs to approach the sentencing task by reference to the facts found by the sentencing judge and his application of principle. The only error identified was that his Honour had not made a finding as to moral culpability in circumstances where such a finding should have been made, and if it had been made, would have significantly favoured the applicant. For the reasons set out above, the basis for that submission by the applicant has not been made out. Accordingly, the application of the relevant principles and the evaluation of all of the evidence was a matter for the sentencing judge. Error has not otherwise been identified. 62It follows that this ground of appeal has not been made out. Ground 2: The learned sentencing judge erred in treating the vulnerability arising from the victim's cognitive impairment as an aggravating feature. 63The applicant submitted that his Honour erred in taking into account as an aggravating factor an element of the offence. The applicant relied on his Honour's observation that "here the objective seriousness of the offence lies substantially in the vulnerability of the victim, taking into account her impairment and her vulnerability in the situation she found herself in". The applicant submitted that by approaching the matter in that way, his Honour was treating an element of the offence, i.e. that the victim was a person with a cognitive impairment, as a matter of aggravation. 64The applicant relied upon R v Wickham [2004] NSWCCA 193 at [32] where Howie J (with whom Bell and Hislop JJ agreed) said: "32 It seems to me patently obvious that his Honour considered that the vulnerability of the victim was an aggravating factor within the terms of s 21A: why else would his Honour mention it when considering whether aggravating or mitigating factors within s 21A were present? In that his Honour took that factor into account as an aggravating feature, he was clearly in breach of the section, because it was an element of the offence charged. Such an error would normally indicate that the sentencing exercise miscarried. But, as I have already indicated, the sentence verged on the inadequate and there was in fact no miscarriage as no lesser sentence is warranted." 65The applicant submitted that the sentencing judge, while not specifically describing the vulnerability of the victim arising out of her cognitive impairment as an aggravating factor, clearly took it into account as such when assessing the objective seriousness of the offending. In doing so, the applicant submitted, his Honour fell into error. Consideration 66While there is some ambiguity in the way in which his Honour expressed himself, it is not clear that his Honour erred in the way submitted by the applicant. The impugned observation was part of a larger analysis of the objective seriousness of the offence (see [28] hereof). In particular, his Honour was considering "the range of objective seriousness for the aggravated form of the offence". His Honour went on to say: "... As the circumstances in each case will be different, the individual case is best assessed by understanding what it is the offender did." 67What his Honour was focusing upon was not the fact that the victim was a person with a cognitive impairment, but her vulnerability in the situation in which she found herself, i.e. in a railway carriage being assaulted in public while unsuccessfully trying to escape the attentions of the applicant without anyone coming to her assistance. His Honour's focus was upon the actions of the applicant, not upon the victim's disability. 68It follows that I am not satisfied that his Honour fell into the error identified and accordingly, this ground of appeal has not been made out. Ground 3: The sentence imposed was manifestly excessive. 69The applicant submitted that when one took into account the discount for the plea of guilty of 25 percent, the starting point for the sentence was high, i.e. 8 years. While the offending was obviously serious, the applicant submitted that the nature of the sexual assault was relevant and it was towards the bottom of the range of seriousness for offences of this kind. This was notwithstanding the findings by the sentencing judge that the act was violent, degrading and humiliating. 70The applicant drew the Court's attention to the following factors: (a) Lack of planning. (b) Reduced moral culpability of the applicant. (c) Short duration of the offence. (d) The nature of the act. The applicant submitted that when those matters were taken into account, the sentence was manifestly excessive. Consideration 71The applicant accepted as correct the statement of principle in Papworth v R [2011] NSWCCA 253 at [53] - [55] (Hoeben J with whom Whealy JA and Simpson agreed): "53 The relevant test in relation to "manifest excess" was restated in R v Hayek [2010] NSWCCA 139: "37 ... the task is not for this Court to decide whether it would have exercised its discretion differently. The applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Vuni v R [2006] NSWCCA 171 at [33], citing Dinsdale (2002) 202 CLR 321 at 325; endorsed in Stewart v R [2009] NSWCCA 152 at [16] - [17]." 54 While consistency in sentencing is an important consideration and a desirable goal, this Court has repeatedly endorsed the principle in R v Morgan (1993) 70 A Crim R 368 that the relevant question on appeal is whether the sentences are within a proper range. It is not a question of whether other sentences can be said to be more or less lenient by undertaking a detailed analysis of other decided cases, as these often possess wide and divergent differences in their objective and subjective circumstances to which the sentencing judge may have attached particular weight. 55 In Hili v The Queen [2010] HCA 45 the plurality reiterated at [54] - [55] the limited value of statistics and previously decided cases in the sentencing process. They concluded: "59 As was said in Dinsdale v The Queen , "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"." 72It follows that to make out this ground, the applicant must satisfy the Court that the sentence imposed was unreasonable or plainly unjust (Markarian v R [2005] HCA 25; 228 CLR 357 at 370 - 371, Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8] - [9].) The focus of the applicant's submission is the starting point of the sentence before the 25 percent discount. Such an approach deflects attention from the proper question (Graham v R [2009] NSWCCA 212 at [4], Yang v R [2012] NSWCCA 49). The question for this Court is whether the sentence actually imposed was unreasonable. 73When considering the sentence it also needs to be kept in mind that there was a Form 1 offence. While the offence on the Form 1 was part of the same sequence of events, which included the offence for which the applicant was being sentenced, it remains a matter which would increase the sentence having regard to the purpose of the Form 1 process. 74His Honour set out in detail the actions of the applicant which constituted the offence. They involved the public assault and degradation of the complainant on a train over a period of time, including the restraint of the complainant when she tried to escape. The applicant's mental illness was an important consideration which was extensively analysed by his Honour and taken into account by him. The maximum sentence for the aggravated form of this offence makes it clear how seriously the community regards such an offence. Taking all those matters into account, I am not persuaded that the sentence imposed was manifestly excessive. 75This ground of appeal has not been made out. Conclusion 76The orders which I propose are: (1) Leave to appeal is granted. (2) The appeal is dismissed. 77SLATTERY J: I agree with Hoeben CJ at CL. 78BELLEW J: I agree with Hoeben CJ at CL. ********** 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: 05 April 2013