Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kerwin v R [2018] NSWCCA 23 Hearing dates: 9 February 2018 Date of orders: 26 February 2018 Decision date: 26 February 2018 Before: Macfarlan JA at [1] Hoeben CJ at CL at [2] Garling J at [3] Decision: (1) Leave to appeal granted. (2) Appeal upheld. (3) Quash the sentence imposed by Charteris A‑DCJ on 14 December 2016. (4) In lieu thereof, impose a sentence on the applicant of 2 years and 6 months non-parole commencing from 19 January 2016 with a balance of term of 2 years, expiring on 18 July 2020. (5) Note that the applicant will not be eligible for parole prior to the expiration of his non-parole period on 18 July 2018. Catchwords: CRIME – appeal against sentence – break and enter into dwelling in company - whether sentencing judge erred in assessment of moral culpability – whether sentencing judge erred in failing to make a finding as to effect of mental condition on weight given to general deterrence – appeal allowed Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 71 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Laspina v R [2016] NSWCCA 181 Texts Cited: Not Applicable Category: Principal judgment Parties: Christopher Kerwin (Applicant) Regina (Respondent) Representation: Counsel: S Bouveng (Applicant) B Baker (Crown) Solicitors: R Funston – Legal Aid NSW (Applicant) C Hyland – Solicitor for Public Prosecutions (Crown) File Number(s): 2016/19233 Publication restriction: Not Applicable Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 04 December 2016 Before: Charteris A-DCJ File Number(s): 2016/19233 Judgment 1. MACFARLAN JA: I agree with Garling J. 2. HOEBEN CJ at CL: I agree with Garling J and the orders which he proposes. 3. GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by Charteris A‑DCJ on 14 December 2016 at Broken Hill. 4. The applicant, Christopher Kerwin, pleaded guilty before Charteris A-DCJ to one offence contrary to s 112(2) of the Crimes Act 1900. The offence was constituted by the applicant, whilst in company, breaking and entering into residential premises, there to commit a robbery in company. The offence occurred on 11 December 2015. 5. The maximum penalty for the offence is imprisonment for 20 years. A standard non-parole period of 5 years applies. 6. The sentencing Judge imposed an overall sentence of 5 years and 3 months imprisonment with a non-parole period of 3 years and 6 months, commencing on 19 January 2016, which was the date upon which the applicant was arrested. Facts 1. A Statement of Agreed Facts was tendered to the sentencing Judge. A brief summary of those facts is set out below. 2. At the time of the offence, the offender was 32 years old. At about 1am on Friday 11 December 2015, the applicant and two others ("co-offenders") attended at an address in Broken Hill. Two victims, a 21 year old male ("ED") and a 17 year old female ("CP") were present watching television in the lounge room. 3. The applicant knocked on the back door and informed ED that he was "looking for weed". ED informed him that there was none present and told him to leave. 4. The wooden door through which that conversation took place was secured by an internal chain locked to the timber architrave. 5. One of the three offenders, it is not known which, kicked the back door of the premises causing the primary lock to break. The door swung open to the extent of the internal chain. As the victims attempted to hold the door closed, ED telephoned a friend for help and then assisted CP in attempting to keep the door closed. One of the three offenders stuck a silver knife through the gap in the door, which pierced the left upper triceps of ED. As a direct consequence of this, the victims were unable to keep the door closed and retreated inside the house. 6. The three offenders broke in through the back door, using considerable force. The applicant took a mobile phone out of CP's hand as she attempted to dial 000. The applicant and his co-offenders rummaged through the victims' belongings and ransacked the house, apparently searching for drugs. The three offenders then took white garbage bags from the kitchen and filled them with various items from the house and left. 7. The police attended shortly afterwards but did not immediately locate the three offenders. 8. On 19 January 2016, the police found and arrested the applicant. The applicant denied ever attending the home of the victims. 9. DNA recovered by swab from outside the back door of the victims' house matched that of the applicant. Although it was not particularly clear what was stolen, it does appear that at least some electronic equipment, including two mobile telephones, was stolen from the premises. 10. ED attended hospital where the laceration to his left upper triceps was cleaned and dressed before he left. There was no evidence that he required any further treatment. Proceedings on Sentence 1. The Crown tendered a bundle of documents including the applicant's past criminal history, some photographs of the scene and the Agreed Facts. That material noted, amongst other things, that the applicant had entered a plea of guilty in the Broken Hill Local Court and had been committed for sentence to the District Court on 23 August 2016. 2. The applicant's criminal record is extensive. He has a number of matters against his name in the Children's Court. His offences as an adult include violent offences of malicious wounding, assault occasioning actual bodily harm (2003 and 2005), robbery in company, steal from the person and assault an officer in the execution of duty (2008), common assault (2012), stalking or intimidating (2012), being armed with intent to commit an indictable offence (2012) and escaping police custody (2014). The applicant's sentence of terms of imprisonment for each of these offences has meant that he has spent the majority of his adult life in custody or on conditional bail. 3. At the time of his arrest for these offences, the applicant was on conditional bail with respect to a series of traffic charges, including a low-range PCA and a charge of possessing equipment for administering drugs. He was dealt with for those offences after his arrest in the Local Court on 19 February 2016. 4. As well, at the time of his arrest the applicant was subject to a bond pursuant to s 9 of the Criminal Procedure Act 1986 which was first imposed on 19 August 2014 and was due to expire on 18 August 2016. His breach of that bond was also dealt with by the Broken Hill Local Court on 19 February 2016. 5. The applicant gave evidence to the sentencing Judge, and there was tendered on his behalf a number of expert reports and medical records. 6. In his evidence, the applicant told the Court that he had no memory of the events surrounding the offence to which he had pleaded guilty. He said that he had consumed a considerable amount of alcohol. He described his state as being "full maggoty drunk". 7. A report from Ms Anna Robilliard, forensic psychologist, was tendered. Ms Robilliard recorded a disadvantaged upbringing for the applicant. His parents were very young when he was born. His mother was 15 years old and his father 17 years old. The applicant described growing up in a household characterised by excessive drinking and drug use together with domestic violence. 8. Although he attended primary school in Broken Hill and also a high school in Wilcannia, the applicant was not diligent about that attendance. He cannot read or write and regularly avoided attending school. The applicant has had no vocational training to date and has never held paid employment. 9. His drug use commenced at the age of 8. In his mid-teenage years he sniffed petrol every day for months at a time and, at about the same time, used to drink alcohol daily. When he was 25 years old, the applicant commenced using crystal methylamphetamine and other illicit drugs. He has never attended drug or alcohol rehabilitation and, according to Ms Robilliard, had no viable plan or insight into the severity of his substance dependency. 10. The applicant gave no history of mental illness or mood disorders. Ms Robilliard however concluded that, having regard to the account he gave of his childhood and adolescent circumstances, together with his behaviour and adult history, it was likely that he had been depressed most of his life. 11. Ms Robilliard tested the applicant's intelligence. She concluded that his full‑scale IQ score placed him in the extremely low range. His particular score was equal to a percentile rank of one, meaning that 99% of the general population achieved higher scores. 12. The applicant's verbal comprehension was in the extremely low range, and his perceptual reasoning was between the extremely low and borderline range. Ms Robilliard classified him in the mild range of intellectual disability, both by reference to his test results and to his history of adaptive functioning. 13. Ms Robilliard said that people with mild intellectual disability "generally need support to meet age-related expectations". She said that: "In adults, planning, strategizing, priority setting … short term memory as well as functional use of academic skills such as reading, money management … are impaired and there is a concrete approach to problem solving." 1. Ms Robilliard further said that individuals with a mild intellectual disability: "need some support with more complex daily living tasks such as grocery shopping, transportation, home and child care, organising nutritious food preparation, banking and money management [and] employment". 1. Ms Robilliard then said this: "With regard to any causal connection between his mild intellectual disability and offending behaviour, the two are linked as he is innately less able to perceive the motives of others making him vulnerable to pressure and less able to predict outcomes of behaviour or formulate alternative solutions to problem situations readily or independently. His capacity for rational thinking was further diminished by his apparent intoxication at the time, his underlying antisocial pre-disposition and substance dependence." 1. A further psychosocial assessment report was tendered to the Court from Mr Brian Bembrick, a social worker. Mr Bembrick noted a strong correlation between the applicant's substance abuse and his criminality. He also referred to the applicant's upbringing as being one of significant early disadvantage and deprivation. He expressed his conclusion in this way: "This 33 year old Aboriginal man was referred by his solicitor for evaluation. By any measure, Mr Kerwin has had a most disadvantaged background. His entire life has been spent in Wilcannia in conditions of poverty, sub‑standard housing and exclusion. Substance abuse permeated his life from a very young age with significant role models, particularly his young and vulnerable parents abusing drugs in his presence, despite his grandmother being his primary carer. Violence was also present, both in the home and community, throughout his childhood and adolescence. From a very young age he has been using substances and his recent offending appears to have occurred while he was heavily alcohol and drug affected. He is illiterate and has no real work history. Literacy and job training will therefore be critical to any successful community reintegration." Remarks on Sentence 1. The sentencing Judge noted the offence, including the maximum penalty, which he used as a reference point or guidepost. He also noted that the applicant had pleaded guilty at an early stage and that it was appropriate to discount any sentence he might otherwise have received by 25%. 2. The sentencing Judge went on to consider the agreed facts and set out the significant features of them. He noted the applicant's criminal record, which he described as being "a matter of concern". 3. The sentencing Judge then described the offence in this way: "One only needs to state the facts in this matter to understand this was extremely serious criminal conduct. It must have been a very frightening if not terrifying event for the young victims." 1. The sentencing Judge then discussed the applicant's subjective circumstances by reference to the applicant's evidence and the expert reports which were served. 2. The sentencing Judge was not inclined to accept the applicant's evidence that he had no memory of the offence. His Honour did not accept that the applicant did not know the identity of his two co-offenders. 3. When dealing with the subjective case, the sentencing Judge said this: "I cannot conclude that the offender has good prospects of rehabilitation, having regard to how he has lived his life in the last 15 years with his abuse of alcohol and other drugs. He seems unmotivated in changing his life around; that does not mean he will always be so unmotivated. I have taken into account the plea of guilty. I have taken into account what are described as the Bugmy matters, referring to the High Court decision regarding those who have been significantly deprived and also exposed to alcohol, drugs and violence throughout their upbringing. This offender would qualify, on his background, to have those matters taken into account. I also accept that he has a mild intellectual disability. How that is contributed to by his alcohol and drug abuse from a very young age, I am not able to say. He does not appear at this stage to be motivated to stop the abuse of those substances, in my opinion." 1. The sentencing Judge found special circumstances and then said this: "Of course I am sentencing him on the basis of the facts agreed between the parties. I have concluded that, after allowance for his plea of guilty and for what are described as the Bugmy factors, referring to that High Court case, there should be a head sentence of 5 years and 3 months. I find special circumstances and impose a minimum period of 3 years and 6 months which is 2/3 of the head sentence." 1. Because this sentence was reduced by 25% for an early guilty plea, the sentencing Judge must have thought that, before that discount was applied, the appropriate sentence was one of 7 years in total, with a non-parole period of 4 years and 8 months. Notice of Appeal 1. The applicant sought leave to appeal, indicating that he relied on two grounds, namely: 1. The sentencing Judge erred in failing to form an assessment of the moral culpability of the offender. 2. The sentencing Judge erred in failing to make a finding as to whether the mental condition of the offender operated to reduce the weight required to be given to general deterrence. Submissions of the Applicant 1. The applicant dealt with both grounds of appeal together. It is convenient in this judgment to approach the matter in the same way. 2. The sentencing Judge was invited by the applicant's submissions to him to find that the applicant's mild intellectual disability had a causal connection to his offending and so would operate to reduce his moral culpability and to reduce the importance of general deterrence. 3. In support of that submission, the applicant relied upon the conclusion of Ms Robilliard, the forensic psychologist to whom I have referred at [23] above. 4. During the proceedings on sentence, the Crown did not contest that particular submission, and did not suggest that the applicant's mild intellectual disability should not be treated in that way. 5. The applicant submitted in this Court that although the sentencing Judge had concluded that the applicant suffered from a mild intellectual disability, he did not pay any attention to the submission with respect to the reduction in moral culpability and in a reduction in the weight to be given to general deterrence. The applicant submitted that a reading of the Remarks on Sentence of the sentencing Judge indicates that no examination or consideration of the applicant's disability was undertaken by the sentencing Judge. 6. The applicant submitted that such failure amounts to an error of law. 7. In support of that submission, the applicant pointed to the decision of this Court in Laspina v R [2016] NSWCCA 181 at [41]-[43] where a sentencing Judge failed to articulate the effect on sentence of a causal connection which was found between the offending behaviour and the applicant's mental condition. There the Court found that the error was such that "it vitiates the exercise of the sentencer's discretion". In that case, the Court proceeded to re-sentence the applicant in accordance with the principles in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42]. Submissions from the Crown 1. The Crown argued that the specific reference on two occasions by the sentencing Judge to taking "… into account what are described as the 'Bugmy matters' ", and "… what are described as the 'Bugmy factors' …" indicated that the sentencing Judge was aware of the applicant's intellectual disability and was taking it into account when exercising his discretion, and that the sentence imposed indicated that the sentencing Judge accepted that the applicant's moral culpability was reduced. 2. The Crown noted from the Remarks on Sentence that the sentencing Judge was well aware of the applicant's dysfunctional background and his intellectual disability. The Crown pointed to the fact that the sentencing Judge specifically accepted, and said so, that the applicant had a mild intellectual disability. 3. The Crown accepted that a consideration of the applicant's moral culpability was a central part of the sentencing exercise to be undertaken by his Honour. However, the Crown argued that it was clear from the entirety of the context that the sentencing Judge had found that the applicant's moral culpability was reduced and that that reduction operated to mitigate the sentence to be imposed. 4. Accordingly, the Crown submitted that the application ought be dismissed. 5. In the alternative, the Crown submitted that if there was error, as the applicant sought to argue, that the Court would find that no lesser sentence was warranted in law, and accordingly would dismiss the appeal: s 6(3) of the Criminal Appeal Act 1912; Kentwell at [35] and [42]. 6. It submitted that in the present case, the offence committed was objectively serious, carrying with it the risk of harm including physical and psychological harm to the victims. The Crown pointed to the fact that the robbery occurred in the home of the victims in the early hours of the morning and that, as an incident of the robbery, the victims were deprived of their liberty. The Crown pointed to the fact that the applicant had an extensive criminal history and that the offence, the subject of this application, was committed whilst the applicant was subject to a good behaviour bond and whilst he was on conditional bail for a previous offence. 7. In oral submission the Crown emphasised the fact that, in the particular circumstances of this case, the applicant's significantly and profoundly disadvantaged upbringing was inextricably linked to his intellectual impairment and that, accordingly, when the sentencing Judge referred to the "Bugmy factors", the Court ought accept that the Judge was intending to include the effects of the applicant's intellectual disability. Discernment 1. In Bugmy v The Queen (2013) 249 CLR 571, the plurality, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, said this at [44]: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." 1. It is clear in that paragraph that the plurality was not speaking of any mental illness or intellectual disability. This is also made clear later in that judgment at [47] where the judgment turns to the question of the significance of the applicant's mental disorder in that particular case. 2. I cannot read, in the circumstances of this applicant, the reference by the sentencing Judge to Bugmy factors as including a proper consideration of the impact of the applicant's intellectual disability on his moral culpability and on the weight to be given to general deterrence. 3. Here, there was clear evidence that there was a causal connection between the applicant's intellectual disability and the commission of the offence. That connection lessened the applicant's moral culpability and, to an extent, impacted upon an assessment of how general deterrence should weigh in the instinctive synthesis process involved in this sentence. 4. In my view, error has been demonstrated and the Court is obliged to consider the re-sentencing of the applicant in accordance with Kentwell. Re-sentencing 1. An affidavit of the applicant was read in the event that the Court considered re‑sentencing. The applicant has, since being sentenced, been largely confined at the Wellington Correctional Centre. There he has a job. He works in the bakery from 6.30am to 1.00pm. He is involved in the production of pastry for the inmates to consume. In order to work adequately, the applicant has undertaken and completed successfully, a TAFE course on food handling. He is awaiting a place on education courses to help manage drug and alcohol abuse, and has also expressed an interest in completing an intensive drug and alcohol treatment program. 2. I have set out earlier many of the factors which impact upon the exercise of the sentencing discretion. I will not repeat them. 3. In summary, the applicant has a very poor criminal record. He has a long-term addiction to drugs and alcohol and grew up in circumstances of profound deprivation. 4. The applicant has an established intellectual disability which affects his reasoning and decision-making processes. I accept that this disability was causally connected with the commission of the crime and, as a consequence, the Court should hold that the applicant's moral culpability for the offence was reduced by this factor. 5. Whilst an intellectual disability can impact upon the need for general deterrence, and I have taken that factor into account in exercising this discretion, I am not persuaded that it is a particularly weighty factor in this case. Nevertheless, appropriate consideration will be given to it. I also agree with the sentencing Judge that a finding of special circumstances should be made. 6. The sentencing Judge fixed a ratio where the non-parole period was about ⅔ of the total term of imprisonment. In my view, this ratio did not account sufficiently for the need for the applicant to have a significant period of supervised assistance in order to assist his reintegration into the community. 7. In my view, the appropriate sentence to be imposed on the applicant in all the circumstances, after allowing for a discount of 25% representing his early plea, is a total term of imprisonment of 4 years and 6 months with a non‑parole period of 2 years and 6 months. Orders 1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal upheld. 3. Quash the sentence imposed by Charteris A-DCJ on 14 December 2016. 4. In lieu thereof, impose a sentence on the applicant of 2 years and 6 months non-parole commencing from 19 January 2016 with a balance of term of 2 years, expiring on 18 July 2020. 5. Note that the applicant will not be eligible for parole prior to the expiration of his non-parole period on 18 July 2018. ********** Amendments 27 February 2018 - Minor typographical error [56] 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: 27 February 2018