Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Primmer v Regina [2015] NSWCCA 155 Hearing dates: 5 June 2015 Date of orders: 25 June 2015 Decision date: 25 June 2015 Before: Basten JA at [1]; Garling J at [12]; Hamill J at [13] Decision: (1)Application for leave to appeal granted. (2)Appeal allowed. (3)The sentence imposed for the offence under s 52A [CAN H 52971217/1 (58912004)] is quashed and in lieu thereof the applicant is sentenced to a non-parole period of 1 year 7 months commencing on 6 December 2013 and expiring on 5 July 2015. There will be an additional term of 1 year 5 months commencing 6 July 2015 and expiring on 5 December 2016. (4)The disqualification period of 10 years is confirmed. (5)All other sentences imposed in the District Court on 25 June 2014 are confirmed. (6)Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 direct that the applicant to be released at the expiration of the non-parole period. Catchwords: Criminal law – sentencing – dangerous driving causing grievous bodily harm – horrendous injury to young victim – offender with intellectual disability – whether sentencing Judge erred in disregarding psychologist's opinion – evidence not disputed – error established – Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Baxter v R [2007] NSWCCA 237;173 A Crim R 284 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Cramp [2004] NSWCCA 264 R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255 R v Latouf (CCA (NSW), Mahoney ACJ, 12 December 1996, unrep) R v Tuala [2015] NSWCCA 8 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 RL v R [2015] NSWCCA 106 Stanyard v R [2013] NSWCCA 134 WW v R [2012] NSWCCA 165 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Category: Principal judgment Parties: Shaun Michael Primmer (applicant) Regina (respondent) Representation: Counsel: A. Cook (applicant) N. Williams (respondent) Solicitors: Legal Aid NSW (applicant) Solicitor for Public Prosecutions (respondent) File Number(s): 2013/368556 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 25 June 2014 Before: Conlon DCJ File Number(s): 2013/00368556 Judgment 1. BASTEN JA: The applicant seeks leave to appeal against a sentence of imprisonment for 3 years 6 months imposed by Conlon DCJ in the District Court at Wollongong. The offence was dangerous driving occasioning grievous bodily harm, for which a maximum penalty of 7 years imprisonment is specified, pursuant to s 52A(3) of the Crimes Act 1900 (NSW). 2. The circumstances of the offending and the offender are recounted in the judgment of Hamill J. The young female victim suffered horrendous injuries, including serious and permanent brain damage. But for one matter, I would not have considered the sentence to be outside an appropriate range. There are a number of features of the applicant's behaviour which render the guidelines provided by the judgment of this Court more than a decade ago in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 of limited assistance. 3. I agree with Hamill J that the first ground of appeal should be upheld. Nevertheless, the Judge's impatience with the psychologist's report is understandable. The report identified several elements relevant to the offending, identified within par 54, set out by Hamill J at [29] below. First, Ms Durkin accepted the applicant's report (to her) that he had been "distracted by his passengers around the time of the collision". The judge was entitled to reject the suggestion of distraction as unfounded in the evidence. 4. Secondly, Ms Durkin considered that his cognitive difficulties would affect his ability to "moderate his conduct while driving" and "effectively manage any issue that arose". Once distraction is rejected, the issues that arose were entirely of the applicant's own making. Nevertheless, a reduced ability to moderate and regulate his own conduct was clearly part of Ms Durkin's analysis which was not contradicted by any other evidence and is by no means inherently implausible. To the extent that it provided some explanation for the dangerous driving, it was not legitimate to dismiss the explanation on the basis that it was in some way inconsistent with or discredited by the conduct it sought to explain. 5. Thirdly, Ms Durkin considered that the applicant's cognitive capacity would have been further impaired by the effects of the drug "ice". The trial judge did not avert to that factor, although it would have been open to him to treat the diminution in intellectual functioning as partly explained by the effect of the drug and for that reason not excusable. 6. In this respect there was a lacuna in the evidence. Commenting on the results from the blood and urine samples, Dr Perl, a clinical forensic pharmacologist, said there would have been "some impairment" of the offender's driving ability. Ms Durkin had that material available to her but did not specifically comment on precisely how it interrelated with his intellectual disability. 7. Accepting that the applicant suffers from an intellectual disability, it becomes necessary to identify whether, and if so to what extent, the disability affected his moral culpability for the offence and the extent to which his condition will affect the circumstances of any period of imprisonment. There was evidence which warranted a reduction in an otherwise appropriate sentence for both reasons. However, a degree of caution is required in equating intellectual disability with mental illness, let alone an unspecified mental illness. The passages from R v Israil [2002] NSWCCA 255 set out below at [49], illustrate the point. One particular matter noted in Israil at [23] was that mental illness may affect the ability of an offender to understand or appreciate "the wrongfulness of the act". Such a feature of particular circumstances may be significant in more than one respect. It may, for example, limit the assessment of moral culpability; it may also explain a possible absence of remorse. There was no evidence of such a characteristic in the present case: reference to such matters may distract attention from the real issues. 8. Given the seriousness of the offending and the tragic consequences, the sentencing judge acted quite appropriately in considering a sentence which was in the upper range of the available sentencing options. A significant period of imprisonment was required as an appropriate means of denouncing the conduct involved in the offending: Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(f). A significant sentence was also appropriate in the expectation that it would act as a serious deterrent to the offender, and encourage him to abandon his repeated activities of driving without a licence, as well as in an irresponsible and dangerous manner, posing risks of serious harm not merely to strangers but to those closest to him. 9. Nevertheless, the intellectual disability identified by the psychologists should have been accepted as significantly lowering the level of his moral culpability. I agree with Hamill J that an appropriate sentence would have been imprisonment for 4 years. Given the early plea, he is entitled to a discount of 25%, reducing the sentence to one of 3 years. 10. The sentencing judge accepted that the statutory ratio between the non-parole period and balance of term should be varied and made a finding of "special circumstances" for the purposes of s 44 of the Sentencing Procedure Act. The judge did so on the basis that the applicant does suffer from an intellectual disability, that this will be his first time in custody and that gaol will be "a difficult place for him". Further, there may be advantages in extending the norm for the period of supervised release in the community. 11. I would have imposed a non-parole period of 2 years with a balance of term of 1 year, giving a total sentence of 3 years imprisonment. The non-parole period would date from 6 December 2013 and expire on 5 December 2015, when he would be entitled to release on parole: Sentencing Procedure Act, s 50. However, that is a minority view. In other respects I agree with the orders proposed by Hamill J. 12. GARLING J: I agree with Hamill J. 13. HAMILL J: Shaun Primmer (the applicant) seeks leave to appeal against a sentence imposed in the District Court sitting at Wollongong on 25 June 2014 by his Honour Judge Conlon. The applicant was sentenced on his plea of guilty to one charge of dangerous driving occasioning grievous bodily harm, an offence contrary to s 52A(3)(c) Crimes Act 1900 carrying a maximum penalty of seven years imprisonment. The applicant was arrested on the day of the offence (6 December 2013) and remained in custody until sentence was imposed. The plea of guilty was entered in the Local Court on 7 May 2014 and the primary Judge reduced the sentence by 25% to acknowledge the utilitarian value of the plea. 14. The sentencing proceedings took place on 20 June 2014 and Conlon DCJ reserved his decision. On 25 June 2014 his Honour imposed a sentence comprising a non-parole period of two years and six months commencing on 6 December 2013 and expiring on 5 June 2016. There was an additional term of 12 months expiring 5 June 2017. The total sentence was three and half years. The applicant was disqualified from driving for a period of 10 years. 15. At the same time the applicant was dealt with in relation to a number of other offences. These were offences in relation to which the applicant had been dealt with in the Local Court by the imposition of bonds under s 9 or s 10 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act"). The various bonds were revoked and a series of fixed term sentences were imposed. Those sentences were concurrent with, and subsumed by, the sentence subject to this appeal. All of the other sentences have expired. 16. The applicant does not complain about the disqualification period or the concurrent sentences imposed on revocation of the bonds. The application is directed toward the sentence imposed for the offence under s 52A. The grounds of appeal are as follows: 1. The learned sentencing judge erred in rejecting the evidence that the applicant's intellectual disability contributed to the commission of the offence. 2. The learned sentencing judge erred in his application of the finding of special circumstances. 3. The sentence in all the circumstances is manifestly excessive. 1. The facts of the offence were not in dispute. A document styled "Agreed Facts" was tendered and Conlon DCJ accepted those facts which were as follows: "1. At about 8.29pm on 6 December 2013, the offender was the driver of a white Ford Falcon sedan bearing registration UYL-434. Accompanying the offender in the front passenger seat was [a] 14 year old [female victim]. Timothy Lukian occupied the driver's side back seat. 2. The offender drove the car in a nominal southerly direction on Graham Street, Unanderra. Graham Street is a residential street and provides for one traffic lane in each direction and is unmarked. The speed limit in this area is 50km/hr. A witness Stephen Page heard the engine of a car revving loudly as it travelled down Graham Street then saw the Ford driving with its tyres screeching and turned right into Waples Road. This intersection is posted with a stop sign. As the car made the turn, Page observed that the car accelerated further and veered onto the wrong side of the road. 3. Whilst attempting to make this turn the offender lost control of the car. The car began rotating in a clockwise direction before leaving the roadway. At this point the car has gone up the curb and collided heavily with a wooden power pole outside 24 Waples Road. 4. The offender and Lukian were able to free themselves from the car. Mr Page was the first to attend the scene and provide assistance. He saw the offender get out of the car and heard him say "I've got to go, I've got no licence." Mr Page told the offender to stay where he was as Page attended the victim. [The victim] was trapped in the car unresponsive and suffering from critical injuries. She was released by rescue personnel within one hour and was airlifted to Westmead Hospital for emergency treatment. 5. The victim is currently being treated by Dr Heather Burnett at The Children's Hospital at Westmead. Dr Burnett states that [the victim] sustained multiple serious injuries including severe traumatic brain injury, left hemiplegia (arm and leg weakness and stiffness), pelvic fractures and contusions of her lungs, spleen, pancreas and left, kidney. She required medical and neurosurgical management in the Paediatric Intensive Care Unit which included: i) intubation and ventilation ii) medical management of increased intracranial pressure iii) management of abnormal muscle tone with medication, splinting and botulinum toxin injections iv) acute and chronic pain management v) medical management for behavioural disturbance vi) gastrostomy placement for management of feeding difficulty. vii) Intensive rehabilitation which included physiotherapy, occupational therapy, speech pathology and social work support as an inpatient. 6. Since the date of admission, [the victim's] condition has improved however the victim remains significantly impaired with regard to her motor function, cognition, and continues to experience significant behavioural disturbance and chronic pain. As a result of this severe brain injury, the victim has irreversible brain damage that will continue to affect her motor function, cognition, memory and behaviour on a permanent basis. She will require long-term rehabilitation and a supported living arrangement due to her injuries. She remains an inpatient of the hospital to this day. 7. The offender and Lukian suffered minor injury. A breath test of the offender at the scene returned a negative reading. Blood and urine samples taken from the offender after the collision returned positive results as follows: Amphetamine 0.05mg/L Methylamphetamine 0.12mg/L Delta-9-tetrahydrocannabinol <0.005mg/L Delta-9-THC acid 0.028mg/L 8. Upon review of the matter Dr Perl Clinical Forensic Pharmacologist opined there would have been some impairment of the offender's driving ability under the influence of the illicit drugs. 9. Analysis of the crash site was conducted by Senior Constable Jimmy Hayward on the night of the collision. The weather and conditions at the time of the crash were fine, cool and dry. The crash occurred approximately 36 minutes after the sun had set. The road surface was in good condition. S/C Hayward identified two scuff marks which followed a diverging radial trajectory across the roadway. The outer scuff mark (scuff mark A) measured a radius of 67.17 metres, whilst the inner scuff mark measured a radius of 68.32 (scuff mark B). Scuff mark A was approximately 44m in length and concluded at the concrete guttering of the eastbound lane. Scuff mark B was approximately 40m in length concluding on the guttering of the eastbound lane. 10. The trajectory and characteristics of the scuff marks conclusively determine that the car had lost lateral stability and commenced to rotate (yaw) in a clockwise direction prior to its departure from the roadway and subsequent collision with the pole. It was noted that striations within the scuff marks were clearly visible. The appearance and orientation of the striations within the scuff marks confirm that no braking or acceleration had been applied during the car's loss of control. 11. An analysis of speed determined that at the time the car began to lose control it was travelling between 82.27km/h and 95.12km/h. 12. The car was examined by Senior Constable Ben Wilson who found there was no mechanical defect or failure with the vehicle that may have contributed towards the collision occurring. 13. The offender had never held a licence and had been disqualified from obtaining a licence for 3 years after being sentenced at Wollongong Local Court on 26 November 2013 for being unlicensed and following a police pursuit. The car was unregistered (expired 1/7/2013) and uninsured at the time of the collision." 1. The primary Judge assessed the moral culpability of the applicant as high. His Honour found that the offender abandoned responsibility in the sense discussed by Spigelman CJ in the guideline judgment for offences under s 52A: see R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at [223]. 2. The sentencing court received into evidence a victim impact statement prepared by the victim's mother. His Honour described the injury to the victim as catastrophic and the "impact on the victim and her family" as heartbreaking. These descriptions were apt although questions arise of the kind discussed by the Court (Basten JA, Simpson and Adamson JJ) in RL v R [2015] NSWCCA 106 at [51]-[57] and by Simpson J in R v Tuala [2015] NSWCCA 8. As no ground of appeal is addressed to this aspect of his Honour's judgment no more need be said about the matter. Conlon DCJ determined that the "extent of injury and emotional harm clearly amounts to an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act". 3. Another aggravating feature was the fact that the applicant had never held a driver's licence and was a disqualified driver at the time of the offence. On 3 September 2013 he was a driver involved in a police pursuit and charged with an offence under s 51B(1) of the Crimes Act. Mitigating features and matters personal to the offender 1. The offender pleaded guilty at an early opportunity and was entitled to the 25% discount provided by the sentencing Judge. 2. As his Honour said, the plea was also relevant to the question of remorse. There was a strong body of evidence establishing that the applicant was remorseful. This came in the form of references, a pre-sentence report and in two psychological reports. His mother wrote a letter in which she said that the applicant wished that he had been injured rather than the victim whom he "loved like a little sister, as she was virtually living with us for the last year or so before the accident". The applicant had difficulties sleeping. He was taking sleeping pills and having nightmares every night. Conlon DCJ was satisfied that the applicant's expressions of contrition were genuine. 3. His Honour held that the applicant's driving record did not entitle him to leniency. He had never held a licence. In January 2011 he was convicted of driving at a speed and in a manner dangerous and police pursuit. In November 2013 he was charged with being an unlicensed driver, driving whilst disqualified, police pursuit and larceny. He had also been dealt with in the Children's Court for criminal offences committed in 2010. 4. The applicant was born on 5 August 1994. He was 19 years old at the time of the offence and almost 20 when he stood to be sentenced. He had an intellectual disability as a result of which he was bullied at school. His mother said that he was "getting a hard time in [gaol]" because he was a "big boy but a gentle giant who doesn't stand up for himself so they try to stand over him". A referee (Ms Beljan) said that the applicant had a "troubled life" but was "doing good until his parents got evicted". She said that he "does not think things through as he hasn't got the capacity as the majority of us do". 5. The pre-sentence report referred to his behavioural and social problems at school. It said that he was subject to bullying and harassment at school because of his height and learning difficulties. He told the author of the report that he received insufficient support and was treated differently to others. Under the heading "FACTORS RELATING TO OFFENDING" the report quoted an earlier psychological report that "indicates that Mr Primmer presents with a mild to moderate level of intellectual impairment and requires assistance with many areas of everyday living, compared with same age peers." 6. The reference to the earlier psychological report was a reference to a report of a psychologist, Liz Kramer, dated 31 August 2012. Based on the results of intelligence testing, Ms Kramer had reported "with 95% confidence" that the offender's IQ was within the "lower extreme range". There was a discrepancy between his verbal and non-verbal abilities making assessment difficult. In relation to the "non-verbal composite" he scored in the "lower extreme" range with 99.9% of same age peers outscoring him. He scored "extremely low" on a measure of adaptive functioning. Taken together, he presented with "a Mild to Moderate level of intellectual impairment." He requires assistance with many areas of everyday life. 7. Laura Durkin, psychologist, provided a report for the purpose of the sentencing hearing. The opinions stated in that report are central to the first ground of appeal. Ms Durkin was not required for cross-examination and the Crown did not challenge the opinions stated in her report. Her report set out her qualifications and she agreed to be bound by the Expert Witness Code of Conduct (Schedule 7, Uniform Civil Procedure Rules 2005). Ms Durkin interviewed the offender and administered some tests. Her interview was cut a little short due to a lock down at the gaol and "gaol imposed time restrictions". She had read the facts sheet, the criminal history and earlier psychological reports including that of Ms Kramer. 8. Ms Durkin referred to the offender's poor social functioning and the fact that he was bullied because he was considered to be a "dope". He was taken advantage of by friends and fell in with a group of delinquent peers. In spite of his attempts to gain acceptance, he was mistreated and even assaulted. He described symptoms of depression and outbursts of anger but "struggled to recall his mental health historically". He described his feelings for the victim and symptoms consistent with a "post-traumatic stress response". Ms Durkin provided a thorough review of the documentation. She noted that a report in 2011 under the hand of Ms Esme Nasser, clinical psychologist, described the applicant as being in the "intellectually deficient range" and that his "impairments were global". Another report from 2011 by Mr Matthew Lampen, clinical nurse consultant, said that there was a "developmental disability". This was based on interviews and document review rather than psychometric testing. Ms Durkin analysed the report of Ms Kramer in some detail. 9. Ms Durkin referred to the influence of his antisocial peer group and his "emotion dysregulation" as having a significant impact on his offending behaviour. She then provided the following opinion: "54. In addition to the aforementioned, there are other factors that appear to have influenced Mr Primmer's offending. Although this assessment cannot confirm Mr Primmer's exact level of functioning or the presence of intellectual disability, all information available to me would suggested that Mr Primmer is deficient intellectually and that his adaptive functioning is poor, indicating that he would meet diagnosis for intellectual disability. Three other clinicians have confirmed this impairment and I would expect their conclusions to remain accurate given the life long nature of such disability. Given this, Mr Primmer is likely to struggle with attention, comprehension, perception, memory and thinking generally. This can affect his problem solving, consequential thinking, capacity for self-regulation, and self-moderation. Indeed, there are examples of his weaknesses in these domains, as outlined in this report. However, specifically related to the offending, it is likely that Mr Primmer's cognitive difficulties affected his ability to attend appropriately while driving, concentrate on the task at hand, moderate his conduct while driving, effectively manage any issues that arose and understand or implement the best course of action in a timely manner if a problem arose. Further to this, Mr Primmer reported being distracted by his passengers around the time of the collision. For an individual with already compromised intellectual ability, distraction is only likely to exacerbate his weaknesses. Added to these factors, Mr Primmer reported being intoxicated on 'ice' and, thus combined, his cognitive capacity would have been notably impaired." GROUNDS OF APPEAL Ground 1:"The learned sentencing judge erred in rejecting the evidence that the applicant's intellectual disability contributed to the commission of the offence." 1. The sentencing judge set out various passages from Ms Durkin's report. His Honour quoted paragraph 54 of the report (set out above at [29]). His Honour then said: "In respect of those last mentioned observations I am unable to accept that his "intellectual functioning" contributed to the commission of the offence in a material way. Courts are regularly provided with reports from psychologists who no doubt do their best to ameliorate the conduct of the persons that they are interviewing. As earlier observed, his driving complete with revving engine, screeching tyres and speed was typical of many like-minded, young, irresponsible drivers who believe that they are impressing their friends. In other words, showing off or aggressive driving that all too often ends in tragedy. That driving as observed by the witness simply had nothing to do with any passenger distracting him. Indeed, the dangerous driving was simply inconsistent with such a suggestion and I reject it. I have already referred to the facts in respect of the police pursuit in September 10 days before this particular offence. He was not distracted then, he showed complete ability to be able to observe police and manage by his aggressive driving on that occasion to escape them." 1. A sentencing Judge is not bound to act on the opinions of expert witnesses even where there is no challenge to those opinions. However, the basis of the rejection of Ms Durkin's opinion demonstrated error of a significant kind. It was based on two inappropriate generalisations. 2. First, it was suggested that Ms Durkin was a witness of a kind who "no doubt do their best to ameliorate the conduct of the person's they are interviewing." There was no evidence to support this suggestion. The report was thoughtful and balanced. Ms Durkin agreed to be bound by the Expert Code of Conduct. The responded submitted that this comment might be seen as merely "infelicitous". It is certainly that and brings to mind the "unholy trinity" observation that was subject to criticism in Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572-573. 3. Second, it was based on a generalisation of the behaviour of "like-minded, young irresponsible drivers who believe they are impressing their friends". The comment appeared to disregard the individual circumstances and difficulties of the applicant: contra R v Latouf (NSWCCA, Mahoney ACJ, 12 December 1996, unrep). 4. The fact that the applicant had committed an earlier offence involving a police pursuit did not logically discredit the opinion of Ms Durkin. His conduct on the earlier occasion was equally likely to have been influenced by his "difficulties in problem solving, consequential thinking, capacity for self-regulation and self moderation." 5. Ms Durkin's opinion as to the causal connexion between the applicant's intellectual disability and his offending behaviour was significant in a proper assessment of the applicant's moral culpability for the offence for which he was to be sentenced: R v Israil at [24] (Spigelman CJ). 6. In Kentwell v The Queen [2014] HCA 37; 313 ALR 451 the High Court considered the proper approach to be taken under s 6(3) of Criminal Appeal Act 1912 (NSW) once error is established in an appeal against sentence. At [40]-[42] French CJ, Hayne, Bell and Keane JJ approved of the approach suggested by Spigelman CJ in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284. Their Honours went on at [42]: "42. … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. 43. After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. [Footnotes omitted]" 1. On my independent assessment of all of the evidence, including an affidavit read in the event of re-sentencing, I have concluded that a less severe sentence is warranted. I will return to articulate the reasons for that conclusion. 2. Ground 1 has been established. The appeal should be allowed, the sentence quashed and the applicant re-sentenced. Ground 2:"The learned sentencing judge erred in his application of the findings of special circumstances." 1. The sentencing Judge found that there were special circumstances pursuant to s 44 of the Sentencing Act. The non-parole period was adjusted downwards by a small degree. The applicant contends that the adjustment was insufficient. Ms Cook acknowledges the difficulties in interfering with a matter that lies firmly within the discretion of the sentencing Judge. In R v Cramp [2004] NSWCCA 264 it was held at [31] that the extent of an adjustment to the non-parole period upon a finding of special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene". 2. In view of the necessity to re-sentence arising from the upholding of Ground 1, it is unnecessary to determine whether there was independent error in the application of the finding of special circumstances. I will form my own assessment in determining the appropriate sentence and non-parole period. Ground 3:"The sentence in all the circumstances is manifestly excessive." 1. Because I have concluded that the applicant must be re-sentenced, it is strictly unnecessary to consider this ground at length. However, in my view the sentence imposed was manifestly excessive. 2. In coming to that conclusion, I am mindful that sentencing is a discretionary exercise, that there is no single correct sentence and that this Court is not permitted to substitute its own opinion as to an appropriate sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]-[28]. The applicant must establish that the sentence imposed by the sentencing judge was "unreasonable", "plainly unjust", or "manifestly wrong": see, for example, Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gaudron and Gummow JJ at [22]. 3. As Ms Cook pointed out, the starting point, before the 25% reduction based on the plea of guilty, was a total sentence of four years and eight months. That is against a maximum penalty of seven years and the guideline judgment in R v Whyte where Spigelman CJ spoke of a sentence (non-parole period and additional term) of at least two years where there was an abandonment of responsibility and a plea of limited utilitarian value. In view of the applicant's subjective case, and giving full account to the seriousness of the offending and the devastating nature of the injuries suffered by the fourteen year old victim, the starting point of four years and eight months is indicative of error. 4. It may be that the manifest excess was a direct result of the error identified under Ground 1 and his Honour's treatment of the applicant's intellectual disability. His Honour rejected a submission that the applicant's disability was such that he was not an appropriate vehicle for general deterrence. While accepting that general deterrence remained an important consideration, I would give it far less weight than it would receive in the case of an offender who did not suffer from the applicant's intellectual disability. 5. I would also uphold Ground 3. A LESS SEVERE SENTENCE IS WARRANTED 1. In re-exercising the sentencing discretion, I pay careful attention to the maximum penalty of seven years: cf Markarian at [30]-[31]. 2. I have considered the guideline judgment in R v Whyte, noting that the two year guideline was what was considered the minimum appropriate sentence when there was an abandonment of responsibility. The present case has many features of the "frequently recurring case" referred to at [204]. There were present a number of the aggravating features referred to in paragraph [216]. As other members of this Court have pointed out, the guideline judgment was not "unduly prescriptive in setting out a range of sentences for a typical case" and that the court "made no reference to the upper limits of such a sentence but endeavoured to indicate a lower limit for a typical case": see WW v R [2012] NSWCCA 165 per Hoeben CJ at CL at [74]-[76]; see also Stanyard v R [2013] NSWCCA 134 per Fullerton J at [40]. 3. An important feature of the present case was the evidence concerning the applicant's intellectual disability. The relevance of such evidence to the proper exercise of the sentencing discretion was considered by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 and Bugmy v The Queen [2013] HCA 37; 249 CLR 571. As Ms Cook pointed out in oral submissions the evidence and description of the applicant's disability was similar to that considered by the High Court in Muldrock. The Court said at [50] that "[t]he assessment that the appellant suffers from a 'mild intellectual disability' should not obscure the fact that he is mentally retarded." 4. It is well established that an offender's intellectual capacity may impact upon sentencing in a variety of ways, not all of which are dependent upon a causal link being established between the condition and the offending. In R v Israil Spigelman CJ said at [21]-[26]: "21. The significance of mental illness of an offender in the sentencing exercised has long been accepted. The relevant authorities have been reviewed in this Court, the Victorian Court of Appeal and the Western Australian Full Court. See R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J; R v Harb [2001] NSWCCA 249 at [35]-[45] per Smart AJ; see also R v Lauritsen (2000) 114 A Crim R 333, esp [43]-[51] per Malcolm CJ; R v Tsiaras [1996] 1 VR 398 at 400; see also Potas, Sentencing Manual: Law Principles and Practice in New South Wales 2001 at 285-286; Fox and Freiberg, Sentencing State and Federal Law in Victoria (2nd ed), 1999 at 293-294. 22. In the present case, the Crown was prepared to concede that some mitigation was appropriate, on the basis of giving less weight to the issue of general deterrence. However, that is not the only way in which mental illness impinges on the exercise of the sentencing discretion. 23. To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. 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 judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.' 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. Furthermore, 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.' (Tsiaras, supra, at 400) 26. Finally, a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras, supra, at 400). However in Lauritsen at [51], Malcolm CJ noted that this factor, identified by the Victorian Court of Appeal in Tsiaras, may not represent the law in Western Australia. It is unnecessary to determine whether this is the law in New South Wales. It appears to have been regarded as material in this Court in R v Jiminez [1999] NSWCCA 7 at [25]. I see no reason why this would not be so, but the matter was not fully argued." 1. Israil was an offender with a mental illness (schizophrenia). The same principles apply to an offender with an intellectual disability although the weight to be afforded to matters of deterrence will vary from case to case depending on the circumstances and severity of the disability. In this case, the evidence suggests his disability is a serious one. I accept the evidence of Ms Durkin as to the link between the offender's intellectual disability and his offending behaviour. I accept that his moral culpability is reduced to some degree. I accept the submission made before the primary Judge that the applicant's condition makes him an inappropriate vehicle for general deterrence. However, the prevalence and nature of the offence means that general deterrence still has some role to play. Nevertheless, the offender's intellectual disability means that it should be given less weight than it would in many cases of this nature. On the other hand, while noting the observations in Israil and the Victorian case of Tsiaris, I accept the respondent's submission that the applicant's traffic record heightens the need for specific deterrence and that his intellectual disability is not such that specific deterrence should be ignored. Like the primary Judge, I accept that his experience of gaol will be (and has been) more difficult as a result of his intellectual functioning. 2. No "automatic consequences follow" as a result of these findings and the existence of a causal relationship between the applicant's condition and his offending "does not automatically produce the result that [he] will receive a lesser sentence": see R v Engert (1995) 84 A Crim R 67 at 68, 71 (Gleeson CJ). However, my assessment is that it is a particularly important consideration in a principled assessment of the proper sentence to be imposed on this applicant. 3. I have taken into account the purposes of punishment in s 3A of the Sentencing Act. The applicant must be adequately punished and made accountable for his actions. His conduct should be denounced. The harm to the victim must be recognised. She has suffered a devastating injury and her quality of life is greatly diminished. The victim impact statement demonstrates this fact in a moving and graphic way. Subject to the observations I have made about deterrence in the context of his intellectual disability, the sentence must deter the applicant and others from committing similar offences. Those purposes of punishment point toward a severe sentence. However, it is also important to promote the applicant's rehabilitation and that objective will, in turn, serve to protect the community. Given his difficulties, I have reached the conclusion that a very lengthy period of supervised parole is the best way to achieve his rehabilitation. For that reason, the sentence I propose includes a significant adjustment to the non-parole period. 4. I have considered the affidavit of Mr Eccleshall tendered in the event of re-sentencing. It details a number of difficulties that the applicant has had while in custody. It also demonstrates that, within the limits of his ability, he is making the most of his time in custody. He continues to have "flashbacks" of the car accident and shows symptoms of depression. As recently as 28 April 2015 he was "dealing with significant shame, guilt and sadness around the effect of his [offence] on the victim". He has "deformed toes" or "clawed feet" and there are concerns that these may be caused by "neurological pathology". There have been a number of problems with other inmates and cell-mates and he has been moved to different cells as a result. He believed he was being punished. Because of his size (he is 7 foot 3 inches – 225 cm – tall) his involvement in a cooking course was difficult because his coordination was hindered because the height of the bench. 5. Synthesising all of these factors and applying the purposes and principles of sentencing, I have reached the conclusion that an appropriate and just sentence will result in the applicant's imminent release from custody. That conclusion requires a substantial adjustment to the non-parole period following upon the finding of special circumstances under s 44. I appreciate that the non-parole period I propose may appear to some to be one at the lower end of the range in view of the seriousness of the offence and the injuries and disabilities suffered by the victim. In reaching the conclusion that the proposed non-parole period is appropriate, in addition to the matters to which I have earlier referred, I have kept in mind the observations concerning individual justice of Mahoney ACJ in R v Latouf: "To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest" "It is to be recognised that imprisonment may convert a person who will not be a persistent criminal into one who is. Particularly is this so where the person to be sentenced is a first offender of a comparatively young age whose family circumstances are such that he may, with assistance, not become a criminal. It would be wrong to the individual and costly to the community not to attempt the rehabilitation of such a person" "There is in what the judge did an element of faith." RE-SENTENCING 1. I would commence with a starting point of four years. I would reduce that by 25% to reflect the utilitarian value of the plea of guilty. That would result in a total sentence of three years. Like the sentencing Judge, I would find special circumstances pursuant to s 44 of the Sentencing Act. The special circumstances include the difficulties that the applicant has experienced while in custody and the need to foster his rehabilitation by providing for a lengthy period of supervision upon his release. For the reasons I have identified, I have made a significant adjustment to the length of the non-parole period. 2. There is no suggestion that the period of disqualification should be reduced and no appeal directed to the concurrent fixed terms imposed for those matters originally dealt with in the Local Court where various bonds were revoked by the sentencing Judge. 3. The orders that I propose are: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed for the offence under s 52A [CAN H 52971217/1 (58912004)] is quashed and in lieu thereof the applicant is sentenced to a non-parole period of 1 year 7 months commencing on 6 December 2013 and expiring on 5 July 2015. There will be an additional term of 1 year 5 months commencing 6 July 2015 and expiring on 5 December 2016. 4. The disqualification period of 10 years is confirmed. 5. All other sentences imposed in the District Court on 25 June 2014 are confirmed. 6. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 direct that the applicant to be released at the expiration of the non-parole period. ********** Amendments 26 June 2015 - paragraph 53 - changed "2.25 cm" to "225 cm" 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: 26 June 2015