Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v R [2015] NSWCCA 6 Hearing dates: 24 November 2014 Decision date: 10 February 2015 Before: Hidden J at [1] Price J at [2] Schmidt J at [63] Decision: 1. The extension of time to seek leave to appeal is granted. 2. Leave to appeal granted. 3. Appeal dismissed. Catchwords: CRIMINAL LAW – sentencing – mental illness – whether principles applicable to an offender suffering mental illness correctly applied – whether error in not assessing moral culpability – whether sentence imposed by the judge was appropriate Legislation Cited: Crimes Act 1900 (NSW) ss 95(1), 61J(1) Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A Criminal Appeal Act 1912 (NSW) s 6(3) Cases Cited: Veen v The Queen (No 2) [1988] HCA 14; (1998) 164 CLR 465 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324 R v Hemsley [2004] NSWCCA 228 Ayshow v R [2011] NSWCCA 240 Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 MDZ v Regina [2011] NSWCCA 243 Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451 Dawson v R [2013] NSWCCA 61 Category: Principal judgment Parties: Trevor Leonard Martin (Applicant) Crown (Respondent) Representation: Counsel: G Turnbull SC with S Pararajasingham (Applicant) P G Ingram SC (Crown) Solicitors: T.J. Heenan (Applicant) J. Pheils (Solicitor for Public Prosecutions) File Number(s): 2011/263626 Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 24 May 2013 Before: Hock DCJ File Number(s): 2011/00263626006 Judgment 1. HIDDEN J: I agree with Price J. 2. PRICE J: Trevor Leonard Martin, the applicant seeks leave to appeal against the sentence imposed on him in the Sydney District Court on 24 May 2013. He applies for an extension of time for leave to appeal, which the Crown does not oppose. 3. On 1 March 2012, the applicant was committed to stand trial in the Sydney District Court. However, before a trial date was set, the applicant offered to plead guilty to the following offences which the Crown accepted in full satisfaction of the indictment: Count 1: On 29 April 2009 at Darlinghurst in the State of New South Wales did rob [the complainant] of a handbag, a purse, a sum of cash, a mobile phone and a mobile phone charger, and at the time of the robbery used corporal violence on [the complainant]. This was an offence of aggravated robbery (using corporal violence) contrary to s 95(1) Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years imprisonment. Count 2: On 29 April 2009 at Darlinghurst in the State of New South Wales did have sexual intercourse [with the complainant] without her consent in circumstances of aggravation, namely that at the time of, or immediately before or after the commission of the offence, [the applicant] intentionally inflicted actual bodily harm on [the complainant]. This was an offence of aggravated sexual assault (inflicting actual bodily harm on the complainant) contrary to s 61J(1) Crimes Act. The maximum penalty for this offence is 20 years imprisonment with a standard non-parole period of 10 years. 1. After allowing a 25 per cent discount for the utilitarian value of the pleas of guilty, the judge sentenced the applicant as follows: 1. Count 1: Imprisonment for a fixed term of 18 months commencing on 27 October 2011 and expiring on 26 April 2013. 2. Count 2: Imprisonment for 10 years 6 months, consisting of a non-parole period of 7 years commencing on 27 April 2012 and expiring on 26 April 2019 with a balance of term of 3 years 6 months expiring on 26 October 2022. 1. The total effective sentence was 11 years consisting of a non-parole period of 7 years 6 months with a balance of term of 3 years 6 months. The earliest date that the applicant is eligible to be released on parole is 26 August 2019. 2. The judge had found special circumstances being the partial accumulation of the sentences and the benefit to the community and the applicant "from him having a longer period of supervision while on parole" (ROS 10). Accordingly, the ratio of the total non-parole period to the total sentence was 72.7%. The Grounds of Appeal 1. The applicant relies on the following grounds of appeal: (i) That her Honour erred in law in stating that the protection of the community is of increased importance when sentencing offenders suffering from mental disorders. (ii) That her Honour erroneously applied the principles in Veen v R (No 2) (1988) 164 CLR 465 ("Veen (No 2)"). (iii) That her Honour erred in failing to take into account and apply principles relevant to sentencing a mentally ill offender. (iv) The sentence imposed for count 2 was manifestly excessive. FACTS 1. An agreed statement of facts was tendered which her Honour recounted in her sentencing remarks. Shortly stated, the complainant was working as a prostitute in East Sydney when the applicant approached her and negotiated to pay her $70 in exchange for oral sex on him. In a nearby park, the applicant pulled down his pants and exposed his erect penis before handing $70 in cash to the complainant. The complainant put a condom on the applicant's penis, which he put into her mouth whilst he kissed her right breast. 2. After a few seconds, the applicant placed his right hand onto the left side of the complainant's throat, with the thumb near her windpipe. The complainant continued performing oral sex. He then placed his left hand down onto the right side of the complainant's throat with his thumb near her windpipe. The complainant became concerned and stopped performing oral sex. The applicant then squeezed both his hands tightly around the complainant's throat cutting off the airway. She tried to fight back without success. The applicant pushed her backwards onto her back and maintained his hold on her throat. The complainant then lost consciousness. 3. The applicant pulled up the complainant's dress and pulled off her underwear. He moved her legs apart, got on top of her and penetrated her vagina with his penis. The applicant ejaculated into the condom he was still wearing. 4. A short time later, the complainant regained consciousness. The applicant still had his hands around her throat and was on top of her. She felt his flaccid penis against her leg. After removing his hands from the complainant's throat and the condom from his penis, the applicant pulled his pants up and said to the complainant: "Cover your face, I don't want you to see me. Don't look at me. If you scream I'll kill you. If you yell out, I'll come back and I'll kill you" (ROS 3). 1. The applicant picked up the complainant's handbag and the used condom and subsequently ran away. He dropped the used condom on the roadway. 2. The complainant got up and ran east. She reported the matter to patrolling police who were in a car. The police discovered the condom, which was subsequently analysed to have DNA on it, which was identical to that of the applicant. The applicant could also not be excluded as a contributor to the DNA that was taken on a swab from the complainant's right breast. 3. On 14 May 2008, Dr Haselton, the applicant's psychologist, advised police that he had concerns about the applicant's behaviour. Dr Haselton stated that the applicant had admitted to him that he had recently had sexual intercourse with a prostitute and while doing it, he had squeezed her around the neck to an extent that it became dangerous. The applicant said that he had concerns that he might go too far in that he may kill someone. He also said that he had obtained an adrenalin charge from carrying out the choking. 4. When interviewed by police on 11 June 2009, the applicant denied any assault but admitted to thinking about following people and assaulting them and that he had a strong desire to hurt people by hitting them over the head and wanting to do a "Charles Manson." Subjective Circumstances 1. The applicant did not give evidence during the proceedings on sentence but reports from Professor David Greenberg and Dr Jonathon Adams, both forensic psychiatrists were tendered. Dr Mridula Kayal, a psychiatrist, gave evidence, as did Dr Adams. 2. In her sentencing remarks, the judge recounted that the applicant's childhood was marred by the death of his mother when he was eight and his subsequent removal from his family. He has four siblings with whom he has had no contact since then. 3. The judge observed that the applicant's criminal history as an adult was "fairly limited" (ROS 6), but her Honour noted he was convicted of manslaughter in 1972, indecent assault in 1993 and possession of prohibited drugs in 2009. 4. Her Honour said (ROS 6): "Given the [applicant's] longstanding mental health issues… his contact with the criminal justice system is not extensive which is to his credit." 1. The applicant was born on 26 November 1955 and was 57 years old when sentenced. 2. The material before the judge included the following: 1. A report of Dr M Kayal dated 10 June 2009 (ex B). 2. A report of Professor D Greenberg dated 7 June 2012 (ex C). 3. A further report of Professor D Greenberg dated 6 May 2013 (ex D). 4. A report of Dr J Adams dated 28 June 2012 (ex 1). 5. A further report of Dr J Adams dated 1 February 2013 (ex 2). 6. An addendum report of Dr J Adams dated 18 March 2013 (ex 3). 7. 35 pages of St Vincent's Hospital clinical notes (ex 4). The Psychiatric Evidence 1. In her sentencing remarks, the judge reviewed the psychiatric evidence noting that that applicant had a well-documented and longstanding history of psychiatric problems. Her Honour observed that "the medical evidence diverges to some extent in identifying his precise diagnosis" (ROS 6-7). 2. Her Honour mentioned that both Dr Adams (retained by the applicant) and Professor Greenberg (retained by the Crown) were of the opinion that the applicant's problems were complex. Her Honour recounted Dr Adams' summary of the applicant's diagnostic formulation which appears in his second report (ex 2) (ROS 7): i. "a borderline and antisocial personality structure that developed in the context of his early traumatic and disrupted environment, ii. a substance use disorder fluctuating between abstinence, abuse and dependence that has compounded his mental state, iii. a probably recurrent depressive disorder with intermittent periods of dysthymia (persistent low mood not to the severity of depression) and iv. a probable paraphiliac disorder." 1. The judge quoted Dr Adams' belief (ROS 7): "… that [the applicant's] account of experiencing violent mental imagery is most likely linked to his underlying personality structure as opposed to psychotic origins, but this phenomenological basis requires ongoing assessment." 1. Dr Adams' opinion was that there were reasonable grounds to conclude that at the time of the offending, the applicant was suffering from a mental illness, namely an underlying schizophrenic illness. The judge quoted what was said by Professor Greenberg in his second report (ex D, 5): "I am therefore of the view that while [the applicant] may possibly have an underlying schizophrenic illness his psychiatric presentation is complex and a conglomeration of all his psychiatric problems/disorders." 1. Her Honour noted that Professor Greenberg considered that there was a reasonable possibility that the applicant did not have a schizophrenic illness but rather some other form of psychosis. Her Honour said (ROS 8): "It certainly now appears that there is broad agreement among all experts, including Dr Kayal, that the offender has a mental illness although descriptions of the precise diagnosis do vary." 1. In oral evidence before the judge, Dr Kayal said that there was likely an underlying schizophrenic illness. He also agreed that the applicant probably had a recurring depressive disorder and a probable paraphiliac disorder. After further quoting various passages from the reports of Dr Adams and Professor Greenberg, her Honour said (ROS 8): "I am satisfied on the balance of probabilities that the [applicant] was suffering from a mental disorder or disorders at the time of the offences and has continued to do so. In those circumstances general deterrence has less weight. However, protection of the community is of increased importance in the sentencing exercise" (Italics added). Some further findings by the judge 1. The judge considered that the robbery (count 1) was an opportunistic taking of the complainant's handbag and assessed the objective gravity of the offence as being "at a low level" (ROS 5). As to count 2, her Honour said (ROS 5-6): "Count 2, however, is a very serious example of an offence under… s 61J(1).The sexual intercourse was full penile-vaginal intercourse. However, the [applicant] did continue to use the condom the complainant had provided which is often not the case in such offences." 1. As to the applicant's prospects of rehabilitation, her Honour observed that the applicant's mental health had stabilised since his remand in custody. She recounted that Dr Adams stated that the applicant's prognosis depended on the applicant's management in custody and outside the prison system. He would need ongoing psychiatric and psychological treatment and the input of other support services. Her Honour concluded that if all the recommendations of Dr Adams were put in place, both in custody and upon release, the applicant's prospects for rehabilitation were reasonable and his risk of re-offending would be significantly reduced. Ground 1: That her Honour erred in law in stating that the protection of the community is of increased importance when sentencing offenders suffering from mental disorders. Ground 2: That her Honour erroneously applied the principles in Veen v R (No 2) (1988) 164 CLR 465 ("Veen (No 2)"). 1. These Grounds of Appeal may be conveniently dealt with together. Argument 1. Mr Turnbull SC, for the applicant submitted that the entirety of the remarks on sentence made by her Honour on the principles applicable to the role of mental illness in the applicant's sentencing are stated in the quotation at [26] above. He contended that a fair reading of her Honour's remarks supports the conclusion that her Honour was articulating a general principle of mandatory application. Mr Turnbull submitted that there is no support for such a principle in the authorities. He argued that the protection of the community is not a mandatory and aggravating consideration when sentencing an offender with a mental disorder; it is a factor, which is to be balanced against other factors. 2. Another submission was that the majority in the decision Veen v The Queen (No 2) ("Veen (No 2)") [1988] HCA 14; (1998) 164 CLR 465 (Mason CJ, Brennan, Dawson and Toohey JJ) articulated a nuanced approach which has been repeatedly affirmed by the court as the guiding principles in assessing the relationship between mental health and the protection of society. Mr Turnbull submitted that "the protection of the community is a discretionary matter and one which would intuitively and in practice apply in limited circumstances" (AWS 30). 3. Mr Turnbull pointed out that her Honour did not refer to the test articulated in Veen (No 2) anywhere in her judgment, and in the course of her sentencing hearing, expressly disavowed its application. He submitted that her Honour appears to have erred in law in applying a wrong principle. 4. Mr Ingram SC, for the Crown contended that the applicant's submissions ignore her Honour's consideration of the psychiatric evidence. He submitted that it could be seen from the material that was tendered during the proceedings on sentence, that the proceedings were dominated by the issue of the of the applicant's mental illness. 5. Another submission was that the protection of the community is but one of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and that the purposes of sentencing overlap and should not be considered in isolation. 6. Mr Ingram submitted that her Honour correctly concluded that, notwithstanding the applicant's mental illness, his criminal record did not of itself bear upon her sentencing discretion in the way that it had in Veen (No 2). Consideration 1. It is evident from the entirety of the judge's sentencing remarks that her Honour was not articulating as a matter of general principle that the protection of the community is of increased importance when sentencing offenders suffering from mental disorders. Her Honour's conclusion that protection of the community was of increased importance in the sentencing exercise was tailored to the circumstances of the applicant. 2. In Director of Public Prosecutions (Cth) v De La Rosa ("De La Rosa") [2010] NSWCCA 194; (2010) 273 ALR 324 at [177] (McClellan CJ at CL) summarised the principles that apply when an offender is suffering from a mental illness: "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]." 1. During cross-examination, Dr Adams' evidence included the following (T7 46-50; T8 1-14): Q. So if he was released from custody and then became non-compliant with medication would you see the psychosis of which you indicated returning? A. I think that is quite likely. Q. And that being the case that he would be likely to commit further offences of this type or of a similar violent nature? A. I would view that as a possibility. I think it from a psychiatric perspective it might be a bit of an over simplification to say purely medication non-compliance equals offending. I would see it certainly Mr Martin's case is a bit more complex than that but certainly if he were to become non-compliant with medication I would view that there was an increase in likelihood of the risk of re-offending, Yes. Q. The other factors such as the supported accommodation and the drug and alcohol services and so on if you became non-compliant and didn't have those supports either would that also increase the risk of him committing further offences? A. Absolutely." 1. The applicant's complex psychiatric problems, the circumstances of the offence and the possibility of non-compliance with medication justified the weight placed by the judge on the protection of the community. 2. There is no merit in the applicant's complaint that the principles in Veen (No 2) were erroneously applied. 3. In Veen (No 2), the majority said at 477 (Mason CJ, Brennan, Dawson and Toohey JJ) that a prior criminal record was relevant: "…The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality… There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties." 1. During the proceedings on sentence, in oral discussion with the applicant's counsel, the following exchange occurred (T15 23-39): "Carroll: The issue is that the Veen concepts apply pragmatically well to a person who has committed two offences of murder and the court has the ability at that stage to impose essentially a life sentence in the Veen situation. Her Honour: This isn't a Veen. I agree with you, this isn't a Veen situation. I wouldn't anticipate the Crown would say it is or perhaps I'm wrong. Given the record – the offence of manslaughter was when the offender on my calculations which are usually wrong, was about 17 years of age. Carroll: Sporadic. Her Honour: …well there is only 1981 all driving offences, then 1993 incident assault, 2009 possess prohibited drug, that's it until this." 1. The judge's observation that "[t]his isn't a Veen" was not a disavowal of the relevance of the applicant's mental illness but merely an acknowledgement that his prior criminal history did not warrant increased weight being given to retribution, deterrence and protection of the community. 2. I would dismiss Grounds 1 and 2 of the appeal. Ground 3: That her Honour erred in failing to take into account and apply principles relevant to sentencing a mentally ill offender. Argument 1. Mr Turnbull pointed out, that although no reference was made to any authority, her Honour correctly identified that "general deterrence has less weight" (ROS 8) when sentencing offenders with a mental illness. However, apart from this, he contended that no further mention was made to any of the principles relevant to the applicant's mental health. Mr Turnbull submitted that her Honour failed to have regard to how this affected an assessment of the objective seriousness of the offences and the applicant's moral culpability. Mr Turnbull relied on the relevant principles from the decisions of R v Hemsley [2004] NSWCCA 228; MDZ v Regina [2011] NSWCCA 243 and Ayshow v R [2011] NSWCCA 240. 2. Mr Ingram submitted that this ground implies that because the judge did not expressly enunciate each, and all of the relevant principles when sentencing a mentally-ill offender, her Honour appears to have failed to take into account and apply those principles. Mr Ingram referred to the extensive consideration of the psychiatric evidence that her Honour summarised in her sentencing remarks. Mr Ingram argued that in the circumstances of this case, where the central issue was the applicant's mental illness, and where her Honour spent more than two pages of her judgment discussing that issue and its relevance to the sentence to be imposed, the court would reject the submissions that the judge failed to take into account and apply the relevant legal principles. Consideration: 1. Where an offender suffers from a mental illness which contributes to the commission of an offence in a material way, the offender's moral culpability may be reduced: De La Rosa at [177]; R v Hemsley at [33]. In Ayshow v R at [39] (Johnson J with whom Bathurst CJ and James J agreed) said: "This appeal was heard before the High Court gave judgment on 5 October 2011 in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154. That decision changes the law in several respects where sentence is to be passed for an offence carrying a standard non-parole period. To the extent that a question arises whether the Applicant's mental state at the time of the offence may bear upon objective seriousness (Muldrock at 1162-1163 [27], 1163 [29]), it remains a relevant factor on sentence in an assessment of moral culpability. Accordingly, if there is evidence to support a finding that an offender's moral culpability is reduced by a relevant mental condition, the offender is entitled to have it called in aid on sentence. The present ground of appeal will be considered in this light." 1. In MDZ v Regina [2011] NSWCCA 243 at [67] (Hall J with whom Tobias AJA and Johnson J agreed) said: "In my opinion, in light of the High Court's judgment in Muldrock (supra), it is open to conclude that the mental condition of the applicant at the time of the offence may bear upon the objective seriousness of the offences: Muldrock (supra) at [27] and [29]. Certainly, in the present case, the sentencing judge, on the evidence, was required to expressly determine the moral culpability of the applicant in assessing the seriousness of the offences and in determining the appropriate sentences to be imposed in relation to them. In this case, the evidence required a finding that the applicant's moral culpability was reduced by his mental health issues." 1. The judge made no reference to the applicant's moral culpability in her sentencing remarks nor did counsel who appeared for the applicant specifically submit that she should do so. The evidence however, before her Honour included the following: 2. In his addendum report dated 18 March 2013, Dr Adams wrote (ex 3, 6.3): "From a clinical perspective in my opinion it is not possible to ascertain the precise influence of [the applicant's] underlying schizophrenic illness upon his capacity to deal with his experience of mental imagery, or "visions", because it is problematic to separate his schizophrenic illness from his mood disorder, personality structure, substance use disorder and probable paraphilic disorder, set in the context of psychosocial stressors. In my opinion it is reasonable to conclude that [the applicant's] psychiatric problems taken as a whole would have impacted deleteriously upon his ability to recognise, rationalise, and appropriately manage his violent mental imagery." 1. Professor Greenberg in his report dated 6 May 2013 opined (ex D, 6): "I am of the view that if [the applicant] had any psychotic symptoms at the time period of his offending behaviour, they (sic) psychotic symptoms did not play any significant role in his offending behaviour. I (sic) my view, he does not have a defence of mental illness. His psychotic difficulties may have played a lesser ill defined role in his offending behaviour. I am of the opinion that the offending behaviour was more likely the result of his sexual preferences, the use of alcohol and illicit substances at the time period, prevailing stresses and a long history of low mood, and his underlying personality difficulties such as anger and violent mental imagery or 'visions', rather than flowing from a psychotic condition. I note that Dr Adams also notes that "from a clinical perspective, in my opinion, it is not possible to ascertain the precise influence of [the applicant's] underlying Schizophrenic illness on his capacity to deal with his experience of mental imagery, or 'visions' because it is problematic to separate his schizophrenic illness from his mood disorder, personality structure, substance abuse disorder, and probable paraphilic disorder, set in the context of psycho social stresses." "I therefore concur with Dr Adams that any Schizophrenic Disorder, this disorder likely did not play a significant role in his offending behaviour. Nevertheless the impact of him having a (sic) several co-morbid mental disorders may have played some role although it is difficult to determine the weight of that role." 1. It is evident from these opinions that the applicant's mental disorders may have contributed to his offending. Although a specific submission was not made by the applicant's counsel on this issue, the focus of the applicant's case on sentence was his mental health. In my respectful opinion, the judge was obliged to expressly make some assessment as to whether the applicant's moral culpability for the serious crimes that he committed was reduced by his mental condition. In assessing the objective seriousness of the offences, her Honour did not make any reference to the applicant's mental health and erred in not doing so. 2. I would uphold Ground 3 of the appeal. As specific error has been found, it is the duty of this court to exercise its independent discretion and to consider the appropriate sentence: Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451 at [42]-[43]. 3. Accordingly, it is not necessary to consider in detail Ground 4 of the appeal in which the applicant complains that the sentence for count 2 was manifestly excessive. The principal contention was that the undiscounted starting point of 14 years was outside the legitimate exercise of her Honour's sentencing discretion. Another submission was that consideration of the relevant statistics (AWS, annex A) and like cases, support the contention of manifest excess. The Crown pointed to the objective seriousness of the offence and to the mitigating factors and submitted that the court would not be persuaded of the manifest excess of the sentence. 4. These submissions will be taken into account with all other relevant matters in determining whether a lesser sentence is appropriate for the applicant and the offence. Decision 1. For the purpose of considering whether the sentence imposed by the judge is appropriate or that a lesser sentence is warranted in law, the objective and subjective considerations to be taken into account are disclosed from what I have written to this point. 2. I agree with the judge's assessment that count 2 is a very serious example of an offence contrary to s 61J(1) Crimes Act. The applicant inflicted considerable violence on the complainant before the sexual assault. He squeezed both his hands tightly around her throat cutting off the airway. She tried to fight back without success. The applicant pushed her onto her back and maintained his hold on her throat. The applicant then had penile sexual intercourse with his unconscious victim ejaculating into the condom that he was wearing. When she regained consciousness, the applicant still had his hands around her throat and was on top of her. He threatened to kill her if she screamed. 3. Her Honour appears in the passage quoted at [27] above to have considered that the applicant's use of a condom mitigated the seriousness of the offence. In Dawson v R [2013] NSWCCA 61 at [74] (Schmidt J with whom McCallum J and I agreed) expressed the opinion that the lack of ejaculation in that case could not be considered to reduce the objective seriousness of an offence of sexual intercourse without consent contrary to s 61I Crimes Act. Similarly, I do not consider that the wearing of a condom in the circumstances of the offending in the present case mitigates in any way the gravity of the offence. 4. As to the assessment of the applicant's moral culpability for his offending, Dr Adams was unable to elicit any history from him to clearly suggest that he was experiencing symptoms of psychosis at the time of the offence. Professor Greenberg considered that any Schizophrenic Disorder did not play a significant role in the applicant's offending behaviour. I am satisfied on the balance of probabilities that the applicant's mental disorders slightly reduce his moral culpability for the offences. I otherwise endorse her Honour's findings on sentence. 5. The upper limit of the range of sentence for s 61J(1) offence is neither provided by comparative cases nor Judicial Commission sentencing statistics. The maximum penalty of 20 years imprisonment and standard non-parole of 10 years are to be borne in mind when the court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the applicant: Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154. 6. My conclusion is that the overall sentence imposed by the judge is the appropriate sentence. I am not satisfied that some other sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912 (NSW). Orders 1. Accordingly, I propose the following orders: 1. The extension of time to seek leave to appeal is granted. 2. Leave to appeal granted. 3. Appeal dismissed. 1. SCHMIDT J: I agree with Price J. In re-exercising the sentencing discretion, it must be considered that the applicant choked his victim, who fought back unsuccessfully until she was pushed onto her back and became unconscious. He then had penile sexual intercourse with her and on her regaining consciousness, threatened to kill her if she screamed. The seriousness of that offence was not reduced by the applicant having ejaculated into a condom and but little reduced by the applicant's mental disorders. On the evidence they are of such a nature that the applicant does pose a danger to the community when at large. While, as her Honour accepted, general deterrence must in the result be given less weight in this sentencing exercise, considerations of specific deterrence must feature in the sentence imposed upon him. Despite her Honour's error in not making an assessment as to whether the applicant's moral culpability for his very serious offence was reduced by his mental condition, I have also concluded that no lesser sentence than that which her Honour imposed upon the applicant is warranted in law. ********** 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: 11 February 2015