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Merkel v R [2019] NSWCCA 212 (6 September 2019)

Last Updated: 6 September 2019

Case Name:	Merkel v R
Medium Neutral Citation:	[2019] NSWCCA 212
Hearing Date(s):	29 July 2019
Date of Orders:	6 September 2019
Decision Date:	6 September 2019
Before:	Macfarlan JA at [1] Johnson J at [2] Wright J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Intellectual disability and moral culpability — No error in not taking into account intellectual disability when assessing moral culpability and objective seriousness when no causal connection between the disability and the offending established — Finding of special circumstances discretionary — No error in failing to finding special circumstances — Sentence not manifestly excessive
Legislation Cited:	Crimes (Administration of Sentences) Regulation 2014 Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Aslan v R [2014] NSWCCA 114 AWKO v R [2010] NSWCCA 90 Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Caristo v R [2011] NSWCCA 7 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Jones v R [2012] NSWCCA 262 Kite v Regina [2009] NSWCCA 12 MLP v R [2006] NSWCCA 271 MLP v R [2014] NSWCCA 183 MRW v R [2011] NSWCCA 260 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v AJP [2004] NSWCCA; 150 A Crim R 575 R v Egan [2016] NSWCCA 285 R v Fidow [2004] NSWCCA 172 R v Muldrock; Muldrock v R [2012] NSWCCA 108 R v Ronald King [2009] NSWCCA 117 Roach v R  [2019] NSWCCA 160  RR v R [2011] NSWCCA 235 Stines v R [2019] NSWCCA 115 SW v R [2013] NSWCCA 255 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Yun v R [2017] NSWCCA 317
Category:	Principal judgment
Parties:	John Martin Merkel (Applicant) Regina (Respondent)
Representation:	Counsel: S Kluss (Applicant) D Patch (Respondent) Solicitors: Ross Hill & Associate Solicitors (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2016/196330
Decision under appeal:
Court or Tribunal:	District Court of New South Wales (Sydney)
Jurisdiction:	Criminal
Date of Decision:	10 August 2018
Before:	King SC DCJ
File Number(s):	2016/196330

JUDGMENT

1. MACFARLAN JA: I agree with Wright J.
2. JOHNSON J: I agree with Wright J.
3. WRIGHT J: Mr John Merkel, the applicant, applies for leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed by King SC DCJ in the District Court on 10 August 2018.
4. On 28 June 2016 the applicant was charged with the following counts:
   • (1) sexual intercourse with a person under the age of 10 years, being six years of age;
   • (2) attempted sexual intercourse with a person under 10 years, being six years of age; and
   • (3) aggravated indecent assault.
5. The applicant pleaded not guilty and, after a trial in April 2018, was found guilty by a jury on all three counts on 19 April 2018. Although he had been charged on 28 June 2016 with these offences, he had not been in custody until the conclusion of the trial on 19 April 2018. From that date he has been in custody solely in relation to this matter.
6. On 10 August 2018, King SC DCJ imposed an aggregate sentence of 15 years imprisonment comprising a non-parole period of 11 years and 3 months to commence on 19 April 2018 and expire on 18 July 2029 and a balance of term of 3 years and 9 months. The indicative sentences specified as required by s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) were as follows:

Grounds of appeal

7. The applicant seeks to rely on the following grounds of appeal:

“1. The learned sentencing judge erred in failing to assess the applicant’s moral culpability for the offences taking into account his intellectual disability.
2. The learned sentencing judge erred in holding that there were not any special circumstances which would justify the downward adjustment of the ratio set out in s 44 of the [Sentencing Procedure Act].
3. The sentence imposed is manifestly excessive, and another sentence is warranted at law.”

8. In order to consider these grounds, it is necessary to refer to the learned sentencing judge’s remarks on sentence in some detail.

Remarks on Sentence

9. In the present matter, none of the grounds relied on by the applicant challenges any of the findings of fact made by the sentencing judge in his remarks on sentence delivered on 10 August 2018.
10. King SC DCJ commenced his remarks by identifying the three offences for which the applicant was to be sentenced along with the maximum penalties and standard non-parole periods applicable in respect of those offences. His Honour then made findings as to the circumstances of the offending as follows:

“1) The victim ... was at the time of the offences six years of age.
2) The offender was born on 23 November 1983. At the time of the offence he was in a relationship with the victim's mother.... The victim lived ... in the care of her grandmother.... Also living at that residence were her siblings, being three brothers.
3) On Wednesday 28 July 2004, the victim was at home ... with her grandmother and her brother. It had been arranged that she and her siblings would stay with their mother that night at the offender's parent’s residence .... The offender attended the ... address on an electric scooter and had the victim sit around his feet on the scooter as he then drove to his residential address .... He parked the scooter and they both went inside. This was to be a stop on the way to the victim eventually spending the night with her mother and the offender and the offender's mother ....
4) The victim was standing in the kitchen bench area of the unit when something happened, causing her to run away from the offender. She ran into a bedroom, closing the door and sitting against it. The offender pushed the door open and pushed the victim onto a single mattress in the room. He knelt over the top of her, holding her down on her back. The victim struggled. The offender said "If you keep moving, I'm going to hurt you and your mum."
5) The offender placed a pillow over the victim's face. She turned her head to the side, the offender held the pillow down while he undid and pulled her jeans and underpants down.
6) The offender used his finger to rub her genitalia before partially inserting one finger into her genitals for a period of time. The offender stopped using his finger and attempted to put his penis inside the victim's genitals, but it did not fit. Not being able to put his penis into the victim, he started to masturbate next to her. The victim indicated that it did not take long before he ejaculated onto her leg. At the time of the offence, the victim was too young to know what this was and believed that he was urinating on her. The offender then used a towel to wipe the victim's leg before he allowed her to pull her jeans up.
7) The victim still attended at the offender's mother's address and stayed the night as she was scared that he would hurt her or her mother if she did not.
8) The following day, the victim returned to her grandmother's premises, her grandmother observed that she was not acting normally and asked her what had happened. The victim disclosed to the grandmother that the offender had hurt her. The matter was reported to the police. Officers from the ... Child Abuse Squad obtained the victim's jeans as an exhibit. Two attempts were made to interview the victim but no disclosure was made by her despite extensive effort. A medical examination was performed on the victim.
9) On 19 August 2005 the victim's clothing was examined and semen was found on the inside front of the jeans.
10) On 17 August 2007, the semen detected was matched to the DNA profile of the offender. The profile is expected to occur in approximately one in 1.4 billion individuals.
11) On 2 August 2007, the offender was interviewed regarding the allegation. The offender denied having sexually assaulted the victim. When asked about the semen on the jeans, he stated that her jeans could have been amongst his clothing and her mother's clothing and that the jeans could have been picked up and used to wipe up semen after he had had sex with the victim's mother.
12) On 3 March 2016, the victim attended the ... Child Abuse Squad and provided a statement in relation to this matter. All the victim's clothing was kept at her residence ... and her washing was done by the victim's grandmother as revealed by evidence of the trial.
13) At about 10.40am on 28 June 2016, police attended the offender's address. The offender was arrested and cautioned in the presence of a support person. The offender was transported to the ... Police Station and introduced to the custody manager.
14) At about 1.20pm, the offender received legal advice through the Intellectual Disability Rights Service. The offender declined a further interview as was his right.”

11. The sentencing judge then considered the circumstances of the offending. His Honour noted that the three offences occurred on the one occasion, at the applicant’s residence. The applicant, who was permitted to take the victim from her grandmother’s to the applicant’s mother’s premises where she was to spend the night, did not take her there directly but went to his residence where there would be no-one present apart from the victim and the applicant. The applicant forced his way into the bedroom where the victim was attempting to bar his entry, used force to push her onto the mattress, and placed a pillow over her head as she struggled. The applicant had access to the victim only because he was in a de facto relationship with the victim’s mother and was trusted to take the victim from her grandmother’s to the applicant’s mother’s premises.
12. The sentencing judge accepted that, before picking the victim up, the applicant intended to commit sexual offences against her. He also observed that:
    • (1) the offences took place over a short time;
    • (2) the victim was a child substantially under the age of 10;
    • (3) the applicant had used force;
    • (4) the applicant had threatened to hurt both the victim and her mother if she did not cease moving and in order to obtain compliance.

Objective seriousness

13. The sentencing judge assessed the offending in counts 1 and 2 as falling within the mid-range of objective seriousness. As to count 3, this was found to be marginally below the mid-range of objective seriousness. There was no specific challenge to these assessments in any of the grounds of appeal.

Aggravating factors

14. King SC DCJ found that the applicant was in a position of authority over the victim at the time of the offending and that he breached the trust inherent in his being permitted to take the victim from her grandmother’s to his mother’s premises. It can be noted that these are both aggravating factors within s 21A(2)(k) of the Sentencing Procedure Act. Although being in a position of authority and breach of trust are distinct concepts, it has been observed that they often arise out of the same facts: MRW v R [2011] NSWCCA 260 at [77].
15. A Victim Impact Statement was provided to the Court and detailed the effects of the offending on the victim including: personality changes; negative effects on education; difficulty trusting males, including relatives; nightmares and difficulty sleeping which had to be addressed through medication; and, near the commencement of the trial, weight increase and depression. The sentencing judge accepted that the consequences for the victim were significant and would continue for a prolonged period, if not her entire life. Nonetheless, his Honour noted that the consequences of such offending as in the present case had been taken into account in determining the maximum penalties. The sequelae for the victim did not go beyond what could reasonably be expected from conduct of this nature and thus they did not further aggravate the offending.

Subjective circumstances

16. Drawing on the Pre-Sentence Report, the applicant’s criminal history in New South Wales and Victoria, a Corrective Services Report, the medical and psychological reports and other documentation provided by the applicant, the sentencing judge made findings as to the applicant’s subjective circumstances. It was noted that the applicant was 34 years of age at the time of sentencing and 20 years of age at the time of offending.
17. His Honour recorded the applicant’s early family circumstances and difficulty with schooling, being teased and bullied as a result of learning difficulties and ultimately being expelled at about the age of 16. The report of the school counsellor, Gail Yates, indicated that the applicant exhibited extreme displays of anger and frustration resulting in removal from the class and suspensions. He received warnings from police. At 17 years of age he had difficulties in the small town where he then lived due to a sexual offence charge which was said to have been dismissed but was apparently widely known. The applicant had begun to use drugs when he was about 11 and left home at the age of 13 because he had started to resent authority. Not able to afford a unit he lived in briefly he "jumped from place to place". The applicant worked after leaving school in various occupations but was frequently in trouble often for driving offences. He last worked at the age of 22.
18. The applicant has one son who at the time of sentencing was 15 and whom the applicant had not seen since the child was two until a supervised access in 2018.
19. The sentencing judge considered the applicant’s medical conditions including paraganglioma which resulted from a rare genetic mutation which predisposed him to forming endocrine tumours, digestive problems and a heart condition which makes it difficult for the applicant to undertake everyday tasks. As a result, he has received drop-in support five days a week from The House with No Steps Community Justice Program. The applicant had previously undergone radiation therapy for his paraganglioma and medical reports indicated that he has an excellent prognosis with stable paraganglioma and limited symptoms. Regarding his heart condition, a report from the Glebe Medical Centre indicated that it appeared to be causing him fatigue and required monitoring on an ongoing basis. A letter from Ms Vangelovski also indicated that the Community Justice Program supported the applicant with budgeting, medication management, and managing his health-related needs.
20. The sentencing judge considered the applicant’s intellectual disability noting that on the Kaufman Brief intelligence test, second edition, he scored lower than 99.8 per cent of his age peers and was found to have a mild intellectual disability. It was noted that his non-verbal reasoning may have been adversely affected by a lengthy history of substance abuse from early teens as well as by prescription medications associated with his medical conditions.
21. The sentencing judge accepted that the applicant’s conditions are life-long and will require treatment for the foreseeable future. His Honour also accepted that the applicant was in protective custody due to the nature of his offending and that it was highly likely that during the course of his sentence he would remain there for the same reason.
22. The sentencing judge considered the applicant’s earlier offending including sexual intercourse with a person over 10 years but under 14 in respect of which he was placed on probation for 18 months. His driving related offending was held not to have any significance in determining the sentence in this matter.
23. His Honour noted other relevant previous offences. In 2008, the applicant was dealt with at the Port Macquarie District Court for the offence of assault with intent to have sexual intercourse with a person under 10, committed on 3 June 2008. For that offending, the applicant received a sentence of imprisonment of nine years with a six year non-parole period. The applicant was released on parole on 30 September 2015. It was noted later in the remarks on sentence that this offending involved a six year old victim and occurred four years after the offences for which the applicant was being sentenced by King SC DCJ.
24. In November 2010, the applicant was sentenced in Victoria for convictions in relation to two offences of committing an indecent act with a child under 16. The applicant was sentenced to 18 months imprisonment for each offence, to be served concurrently and suspended for a period of three years. These offences occurred on 14 January 2004 and the victim was 10 years old at the time. His Honour set out details of these offences and noted that they occurred six months prior to the offending which is the subject of the current proceedings.
25. While on parole after 30 November 2015, there were two breaches for non-compliance when the applicant had contact with a 13 year old on his social media account and failed to follow a direction to delete contact with that person.
26. It was also recorded that on 10 July 2017, the Supreme Court made a three year Extended Supervision Order (ESO) in respect of the applicant, under the Crimes (High Risk Offenders) Act 2006 (NSW). The sentencing judge also noted that apart from one incident, the applicant’s overall compliance with the ESO had been satisfactory.
27. It was noted that the applicant’s family was based nearby and the applicant had regular telephone contact with his father with whom he had what appeared to be a supportive and caring relationship.
28. Because of his custodial history, the applicant had not had the opportunity to hold employment for more than a few months at a time. In the community, he was supported by a Disability Support Pension.
29. The Pre-Sentence Report also disclosed that the applicant “continues to maintain his innocence” and that he had been assessed as a T3 high risk of reoffending.
30. The sentencing judge also referred to other offending when a juvenile and as an adult, in addition to the matters previously referred to. His Honour considered it seriously concerning that his prior and subsequent offending was against children variously aged six and 10. While the sentencing judge accepted that he was not being re-sentenced in relation to those matters, they were relevant to the assessment as to the prospects of rehabilitation and the risk of re-offending. The applicant was assessed as being at high risk of re-offending and that the prospects of rehabilitation, in light of his maintaining his innocence after the trial, appeared to be low.

Sentences imposed

31. Considering the purposes of sentences referred to in s 3A of the Sentencing Procedure Act, the sentencing judge accepted that in relation to the applicant both specific and general deterrence were important matters to take into account.
32. His Honour then expressly stated that he took into account “the matters relating to his intellectual limits and his personal physical difficulties” noting, however, that:

“there is nothing contained in the reports which would indicate that Corrective Services are not fully capable of dealing with any ongoing problems and of course arranging for appropriate investigation and supervision to ensure that his conditions do not deteriorate or return.”

33. The applicant’s previous criminal history was said not to assist him. As was conceded by his counsel, the sentencing judge considered the s 5 threshold had been crossed. Since the matter was defended, his Honour accepted that there could be no utilitarian discount.
34. His Honour noted there was no evidence of contrition or remorse and repeated that the prospect of rehabilitation was “at best poor” and the prospect of reoffending was high.
35. The sentencing judge finally took into account that, while the protection of the community was a purpose of sentencing, as expressed in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465, that consideration could not lead the Court to impose a sentence greater than the sentence appropriate to the actual offending.
36. The aggregate sentence imposed and the indicative sentences have been set out above.
37. The sentencing judge then observed that he had not found special circumstances. This was said to be because the effect of the aggregate sentence was to impose a non-parole period of 11 years and 3 months with a balance of term of 3 years and 9 months. Such a balance was said to provide for 3 years and 9 months of supervision, which was longer than the three year period of supervision “noting of course that the Legislation provides in most cases for a period of supervision on parole of only three years”. In this regard, his Honour was apparently referring to the period of supervision of up to three years under cl 214A(2)(a) of the Crimes (Administration of Sentences) Regulation 2014. It was then concluded “[s]o the period on parole is already longer than he is likely to be supervised”.

Ground 1

38. The first ground of appeal involved the contention that there was an error by the learned sentencing judge by failing to assess the applicant’s moral culpability for the offences taking into account his intellectual disability.

Submissions

39. The applicant’s primary submissions were that the remarks on sentence indicated that the sentencing judge had considered the applicant’s intellectual disability “as a subjective feature with little impact upon the objective criminality”. In the present case, it was said that the objective criminality of the offending was moderated by the fact that there was minimal planning and the uncontested evidence of the intellectual disability of the applicant. It was contended that, when his Honour dealt with his disability, his attention was focused upon the ability of Corrective Services to deal with the issues.
40. The applicant relied upon the principle referred to by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (Muldrock) particularly at [54]:

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.” (footnotes omitted)

41. The applicant also relied upon the statement of this Court in Yun v R [2017] NSWCCA 317 at [47]:

“It is apparent that this Court has invariably determined since Muldrock (with the possible exception of Badans and Subramaniam) that an offender’s mental condition at the time of the commission of the offence is a critical component of “moral culpability” which in turn affects the assessment of “objective seriousness”. ...”

42. The applicant then submitted that the sentencing judge’s error was not recognising or giving prominence to the applicant’s intellectual disability in the assessment of objective seriousness and “thus [his Honour] began from a sentence consideration that was inappropriately high”. It was also said that it was erroneous to conclude that a high level of specific deterrence was required having regard to the applicant’s circumstances and disabilities. Similarly, the applicant contended that the sentencing judge erred in not specifically acknowledging that it was appropriate to reduce the significance of general deterrence in the case of an intellectually disadvantaged offender.
43. The Crown submitted that ground 1 should be rejected because:
    • (1) in so far as the applicant relied upon the sentencing judge’s not giving prominence to the applicant’s intellectual disability, this was not a sufficient ground for intervention on appeal: Stines v R [2019] NSWCCA 115 at [22]- [25] and other authorities to a similar effect;
    • (2) an offender’s intellectual capacity may be relevant to assessing culpability if it is shown that it contributed to the commission of the offence but no causal link was established in the present case;
    • (3) the principle in Muldrock did not require the conclusion that the applicant was not, in the circumstances of the present case, a suitable vehicle for general deterrence or that the significance of specific deterrence was reduced or completely eliminated;
    • (4) the applicant’s case on sentence did not involve an assertion that there was a connection between his intellectual disability and the offending nor that any drug use as a teenager and young adult was associated with his intellectual disability such as to have an impact on his moral culpability. Consequently, the sentencing judge did not err as contended by the applicant.

Consideration

44. It was clear from the remarks on sentence (at p 10) that the learned sentencing judge accepted that the applicant had a mild intellectual disability. He also noted:

“that there was a significant difference between his verbal and non-verbal cognitive reasoning, with his verbal reasoning being in the range of borderline intellectual disability, whilst his non-verbal skills are in the range of moderate intellectual disability.”

45. The sentencing judge’s comment during the sentence proceedings that it was not evident to him from viewing the Police interview that the applicant experienced any difficulty in communicating is consistent with what was said in the passage quoted in the preceding paragraph. The comment does not provide a basis for inferring that the sentencing judge was sceptical of the extent of the applicant’s intellectual disability as the applicant’s written submissions appeared to contend.
46. The applicant’s intellectual disability was taken into account when the sentencing judge considered the applicant’s subjective circumstances and, immediately after referring to the importance of specific and general deterrence, his Honour referred again to the applicant’s intellectual disability (at p 16 of the remarks on sentence).
47. It is true that the applicant’s intellectual disability was not mentioned when the judge made his assessment of the objective seriousness of the offending. This is understandable because there was no finding that the applicant’s intellectual disability was causally related to his offending. The case that was put on the applicant’s behalf before the sentencing judge did not include a contention that there was such a causal relationship. Experienced counsel who appeared for the applicant on that occasion, submitted concerning the applicant’s intellectual disability (at T12.41 ff) as follows:

“HALL: ... So [his intellectual functioning is] at a very low level. It’s certainly not the case that I can draw any clear distinction [? connection] between his intellectual disability and the offending in this particular case, but certainly, in my submission, the fact that he is someone who functions at such a low level does, of necessity, in my respectful submission, mean that he is someone who is less suitable as a vehicle for general deterrence.
I don’t submit that general deterrence has no application. But I say that, bearing in mind the assessment by Professor Hayes – that he does function at a range of mild intellectual disability at a level lower than 99.8 per cent of his age peers – is evidence of a significant intellectual disability and does certainly play a role in terms of his viability as a vehicle for general deterrence.”

48. The question of whether the transcript of the proceedings on sentence was correct in recording “distinction” instead of another word such as “connection” was raised with the parties during the oral hearing of the appeal. Having regard to transcript and the parties’ submissions, it appears clear to me that, whether the word “distinction” was a mistranscription or was actually said at the sentence hearing, what was intended, and what the sentencing judge apparently understood, was that there was no submission that there was a clear connection between the applicant’s intellectual disability and the offending. What was submitted was that his intellectual disability made him “someone who is less suitable as a vehicle for general deterrence”.
49. Muldrock at [54] is authority for the proposition that, where there is a causal relation between an offender's mental condition and the offending as in that case (see [55]), the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct would, in most cases, substantially lessen the offender's moral culpability for the offence. As has already been noted, in the present case, there was no finding that there was a causal relation between the applicant’s intellectual disability and his offending.
50. A comprehensive statement of the principles to be applied when sentencing a person with an intellectual disability or similar condition is found in the judgment of Simpson J (Adams and McCallum JJ agreeing) in Aslan v R [2014] NSWCCA 114 (Aslan) at [33]-[35] as follows:

“33. This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

‘[Principle 1] 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 ...
[Principle 2] 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 ...
[Principle 3] 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 ...
[Principle 4] It may reduce or eliminate the significance of specific deterrence ...
[Principle 5] 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 ... 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 ...’ (internal citations omitted, italics added)

34. It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
35. A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2).”

51. The present was not a case where the applicant’s intellectual disability was found to have contributed to the offending in a material way. Accordingly, this did not provide a basis for concluding that the applicant’s moral culpability may be reduced on that account or that the sentencing judge erred in his assessment of the objective seriousness of the offences because of his failure to mention the applicant’s intellectual disability when making that assessment.
52. Further, applying the reasoning in Aslan at [34], it did not follow that, merely because the applicant suffered from a mild intellectual disability:
    • (1) his moral culpability was reduced;
    • (2) he was an inappropriate vehicle for general deterrence;
    • (3) the significance of specific deterrence was reduced or eliminated; or
    • (4) he was a danger to the community, indicating a need for community protection.
53. It remained necessary for the sentencing judge to examine the relevant facts in order to determine whether, in the specific case, the mental condition had any of the consequences contended for.
54. King SC DCJ examined the relevant facts and the findings he made were not challenged. In the absence of a finding that the intellectual disability had a causative role to play in the commission of the offences, there was no error in not considering that disability in assessing objective seriousness.
55. I also do not accept that there was any error as a result of the remarks on sentencing not specifically acknowledging “the fact that it was appropriate to reduce the significance of general deterrence in the case of the intellectually disadvantaged offender”, as the applicant submitted. As Aslan at [34] made clear, no such general proposition applies. The relevant facts of each case must be considered to determine whether in the particular circumstances the significance of general deterrence was reduced. Further, it was not the case, as the applicant submitted, that the sentencing judge concluded that “a high level of specific deterrence was required”.
56. His Honour’s comments concerning general and specific deterrence were made in the immediate context of his assessment that the applicant posed a high risk of reoffending and the prospects of effective rehabilitation appeared to be low and continued:

“[a]ccordingly, determining a sentence must take into account the purposes of sentencing as referred to in section 3A of the [Sentencing Procedure Act], I accept in relation to this offender that both specific and general deterrence are important matters to take into account. I have also taken into account the matters relating to his intellectual limits and his personal physical difficulties, although I note in that regard that there is nothing contained in the report which would indicate that Corrective Services are not fully capable of dealing with any ongoing problems and of course arranging for appropriate investigation and supervision to ensure that his conditions do not deteriorate or return.”

57. Given the nature and circumstances of the offences for which the applicant was being sentenced, the high risk of reoffending and the low prospects of rehabilitation, it was entirely open to the sentencing judge to conclude that “both specific and general deterrence [were] important matters to take into account”, even though the applicant had a mild intellectual disability.
58. It could also not be concluded that the judge improperly emphasised specific and general deterrence as a means of protecting the community. When considering the community’s protection, the sentencing judge expressly noted that:

“protection of the community cannot lead the Court to impose a sentence greater than the sentence appropriate to the actual offending, and I have taken that into account.”

59. In his written submissions, at par 39, the applicant also contended that the fact that the offending appeared to have had minimal planning moderated the objective criminality of the offending. In so far as this submission implied that the sentencing judge erred in this regard, it should be rejected. In the remarks on sentence, at p 5, it was accepted that “there [was] no evidence as to any extensive premeditation” but the applicant “clearly intended before picking up the victim to commit sexual offences against her”. Such a finding was open on the material before the sentencing judge. The conclusions as to the objective seriousness of the offending were consistent with these findings, taking into account all the relevant circumstances.
60. The approach and reasoning of the sentencing judge was consistent with the principles in Aslan quoted above. His conclusions were open on the material before the Court and no error, as contended by the applicant under ground 1, has been disclosed.
61. For all of these reasons, if leave to appeal were granted, ground 1 would not be made out.

Ground 2

62. The second ground of appeal was in effect that the sentencing judge erred in not finding special circumstances so as to justify the downward adjustment of the ratio set out in s 44 of the Sentencing Procedure Act.

Submissions

63. Specifically the applicant submitted that a finding of special circumstances was appropriate because:
    • (1) his medical challenges would make any period in custody harsher than would be expected for a prisoner who did not suffer from these conditions and “boded for a shorter non-parole period”;
    • (2) the length of the non-parole period was likely to further institutionalise the applicant who was vulnerable to becoming so because of his disability and would also operate to dislocate him from the services that have been put in place in the community for him; and
    • (3) post-release, the applicant would require ongoing support from Community Offender Services, disability services and advocates and an assembly of medical interventions for an extensive period of time exceeding the current parole period.
64. The Crown submitted:
    • (1) the sentencing judge had taken into account the ability of Corrective Services to manage the applicant’s difficulties, including in particular his physical conditions;
    • (2) the non-parole period in the present case appropriately reflected the objective criminality of the offending and the applicant’s subjective circumstances;
    • (3) the parole period was of sufficient length to provide for an adequate period of supervision and assistance after the applicant’s release from custody; and
    • (4) accordingly, no adjustment of the statutory ratio was appropriate.

Consideration

65. As to the applicant’s medical challenges, the sentencing judge accepted that:

“there is nothing contained in the report which would indicate that Corrective Services are not fully capable of dealing with any ongoing problems and of course arranging for appropriate investigation and supervision to ensure that his conditions do not deteriorate or return.”

66. As a result of this finding, the applicant’s medical conditions would not weigh heavily in favour of a finding of special circumstances.
67. In Caristo v R [2011] NSWCCA 7, R A Hulme J (Giles JA and Adams J agreeing) gave a non-exhaustive statement of the principles applicable to the setting of the non-parole period of a sentence s 44 of the Sentencing Procedure Act and determining whether there were “special circumstances”, at [27]-[31]:

“27. The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v The Queen [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34].
28. A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83].
29. "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive": R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp at [36].
30. Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow , above, at [22].
31. The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp , above, at [31]; Trad v R [2009] NSWCCA 56 at [33].”

68. The aggregate sentence imposed comprised a non-parole period of 11 years and 3 months together with a balance of 3 years and 9 months. It is clear from his Honour’s remarks on sentence that he took into account the need for, and the benefit that the applicant could derive from, supervision while on parole in the community. Having regard to the usual situation that “the period of supervision under a supervision condition imposed on a parole order ... is the lesser of three years or the period that the parole order is in force”,^[1] the sentencing judge was satisfied, in effect, that a non-parole period of three years and nine months would be adequate.
69. While the matters raised in the applicant’s submissions are circumstances which might be capable of constituting “special circumstances” for the purposes of s 44(2) of the Sentencing Procedure Act, the sentencing Court was not required to make a finding of special circumstances: R v Fidow [2004] NSWCCA 172 (Fidow) at [22]. Indeed, for a finding a special circumstances to be made, the circumstances must be sufficiently special to justify a variation downwards from the statutory ratio: Fidow at [22].
70. The judge’s inherent conclusion that a finding of special circumstances was not necessary or appropriate in the present case was open to him on the facts. The applicant did not submit that the parole period of 3 years and 9 months was manifestly inadequate and, in my view, there is no appropriate basis to find that it was so, in the circumstances of the present case. Accordingly, and in the absence of any other error identified in the sentencing judge’s failing to find special circumstances, this Court should not interfere.
71. Accordingly, if leave to appeal were granted, ground 2 would not be made out.

Ground 3

72. The third ground was that the sentence imposed was manifestly excessive, and another sentence was warranted at law.

Submissions

73. The applicant submitted that the aggregate sentence in the present case was outside the range of penalties for the offences when considered against the relevant maximum penalties and standard non-parole periods. The applicant also drew attention to a number of decisions which was said to point to:

“sentences less than that applied to the applicant given the objective criminality and extreme personal circumstances of the applicant and the Court should resentence the applicant in accordance with the principles in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42]”.

74. These decisions were: R v Egan [2016] NSWCCA 285; MLP v R [2006] NSWCCA 271; [2014] NSWCCA 183; AWKO v R [2010] NSWCCA 90; RR v R [2011] NSWCCA 235; Kite v Regina [2009] NSWCCA 12; SW v R [2013] NSWCCA 255; R v Ronald King [2009] NSWCCA 117; R v AJP [2004] NSWCCA; 150 A Crim R 575; and Jones v R [2012] NSWCCA 262. In addition, the applicant relied upon the sentence imposed when the offender in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 was re-sentenced by the Court of Criminal Appeal after the High Court’s decision.
75. In oral submissions, Ms Kluss of counsel, who appeared for the applicant, also submitted that the sentences were manifestly excessive because of:
    • (1) the failure to balance the role of general deterrence when dealing with a person with an intellectual disability such as the applicant; and
    • (2) the length of sentence imposed would mean that the applicant would struggle against being institutionalised during the term of any sentence and post release.
76. The Crown submitted that the indicative sentences and the aggregate sentence did not stand out as being inconsistent with the unchallenged findings of objective seriousness made by the sentencing judge, especially having regard to the legislative guideposts in the form of the applicable maximum penalties and the standard non-parole periods for the relevant offences. The Crown drew attention, in particular, to the following features of the offending as justifying a stern sentence:
    • (1) the victim being six years of age when the age range for such offences was up to 10 years;
    • (2) the offences were aggravated because the applicant was in a position of trust and authority over the victim;
    • (3) the applicant threatened the victim and her mother with harm in order to gain compliance; and
    • (4) the applicant used force, including in forcing entry to the room, pushing the victim onto a mattress, placing a pillow over her face while she struggled and removing her lower clothing.
77. As to the use of comparative cases, the Crown drew attention to the principles referred to in MLP v R [2014] NSWCCA 183 and made submissions on the particular similarities and differences between the present case and those relied upon by the applicant, which were presented by way of a table.
78. In all the circumstances, the Crown submitted that the applicant had not shown that the aggregate sentence imposed was unreasonable or plainly unjust.

Consideration

79. The applicable principles concerning appellate intervention on the ground that a sentence is manifestly excessive can be summarised as follows:
    • (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;
    • (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;
    • (3) it is not to the point that this Court might have exercised the sentencing discretion differently;
    • (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and
    • (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust:

Roach v R  [2019] NSWCCA 160  at  [174] ; Obeid v R [2017] NSWCCA 221; (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221 at [443] and the authorities there referred to.

80. When, as in the present case, it is submitted that the manifest excessiveness of the sentence imposed is demonstrated by comparing the sentence with the sentences imposed in other cases, it is important to bear in mind the following principles:
    • (1) consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]- [49], MLP at [41];
    • (2) Secondly, in seeking consistency, other cases may establish a range of sentences which have been imposed, but the sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion. They stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41], MLP at [42]; and
    • (3) A careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] Bellew J (McClellan CJ at CL and Johnson J agreeing). This arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another: MLP at [44].
81. In the present case, the applicant was sentenced in respect of three offences for which the findings as to objective seriousness, the statutory guideposts of the maximum sentence and standard non-parole periods and the indicative sentences were as follows:

82. The aggregate sentence imposed was 15 years with a non-parole period of 11 years and 3 months. This was consistent with the findings as to the objective seriousness of the offending and the subjective circumstances of the applicant.
83. The findings as to objective seriousness were unchallenged and were more than adequately supported by the circumstances identified by the sentencing judge including:
    • (1) the young age of the victim, being 6, which was well below the upper limit of 10 years for the offences in question;
    • (2) the applicant used threats to harm the victim and her mother in order to have the victim submit to the offending;
    • (3) force was used to obtain entry to the bedroom where the victim sought to protect herself from the applicant, to push the victim onto the mattress and to remove her lower clothing;
    • (4) the applicant placed a pillow on the victim’s face;
    • (5) the applicant did not take the victim directly to her destination but took her to a place where no-one would be present apart from the victim and the applicant;
    • (6) although there was no evidence of extensive premeditation, the applicant clearly intended to commit sexual offences against the victim before picking her up; and
    • (7) the three offences occurred on the one occasion.
84. The offences were aggravated by the fact that the applicant had authority over the victim and breached his position of trust.
85. The applicant’s subjective circumstances included:
    • (1) the applicant was 20 at the time of the offending;
    • (2) the applicant grew up in a family and had a troubled education but he has regular telephone contact with his father in what appears to be a supportive, caring relationship;
    • (3) the applicant began to use drugs when he was about 11 and left home at about the age of 13 and at some time apparently had no fixed place in which to live;
    • (4) although the applicant has had a number of jobs, he last worked at the age of 22;
    • (5) the applicant has a mild intellectual disability, with his verbal reasoning being in the range of borderline intellectual disability whilst his non-verbal skills were in the range of moderate intellectual disability;
    • (6) he has a rare cancer as a result of which he has had a kidney and renal gland removed and has some difficulty walking and has ongoing pain as well as digestive problems and a heart condition;
    • (7) the applicant, when in the community, has had the assistance of carers some five days per week;
    • (8) the applicant has been in protective custody and is likely to remain in such custody during the course of any sentence imposed;
    • (9) the applicant has a significant criminal history including a number of sexual offences relating to children where two sets of offences occurred before and one after the offences for which the applicant was sentenced by King SC DCJ;
    • (10) the applicant has breached parole conditions by having contact with a person under 16 years of age and failing to follow a direction to delete contact with the 13-year-old from his social media account;
    • (11) the applicant’s compliance with the conditions of his extended supervision order under the Crimes (High Risk Offenders) Act has been satisfactory;
    • (12) his risk of reoffending is high;
    • (13) the applicant’s prospect of effective rehabilitation is low or poor; and
    • (14) there was no evidence of remorse or contrition.
86. At the trial, the applicant pleaded not guilty.
87. The applicant’s counsel at the sentence hearing did not submit that general deterrence had no application in the applicant’s case because of his intellectual disability and King SC DCJ did take the applicant’s disability into account. Nonetheless, the sentencing judge was required to weigh all the factors including not only the applicant’s intellectual disability but also, among others, his likelihood of reoffending, his prospects of rehabilitation and any insight shown by way of expressions of remorse or contrition when considering general deterrence and the protection of the community. These factors pull in different directions. In my view, there was no basis for concluding that the sentencing judge made an error by failing to balance the role of general deterrence when dealing with a person with an intellectual disability such as the applicant. Nor do I accept that an error was made because there was a failure to consider whether the length of sentence imposed would mean that the applicant would struggle against being institutionalised. Consideration of this factor was implicit in the decision concerning the period the applicant could spend on parole.
88. The particular facts and circumstances of the present case which have been identified above must also be taken into account when the considering sentences imposed in other cases and whether they establish that the aggregate sentence in the present case was manifestly excessive. A summary of the sentence outcomes in the comparative cases relied upon by the applicant and of some of the relevant circumstances in those cases is set out in the following table (based upon the table in the Crown’s submissions).

89. The applicant also relied upon this Court’s resentencing of the offender in R v Muldrock; Muldrock v R [2012] NSWCCA 108, after the High Court’s decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. The sentence imposed was a non-parole period of 1 year with a balance of term of 2 years. In that case, there was unchallenged evidence of the causal relation between the offender’s retardation and his offending. In those circumstances, his intellectual disability was considered the most relevant factor in determining his moral culpability. In that case, the acts were of short duration and there was no threat or intimidation. Because the offender had only a superficial understanding of his moral culpability, specific deterrence was held to have only a limited part to play and there was no requirement for general deterrence to play a part in sentencing. Further, it was held that punishment in the sense of retribution and denunciation did not require significant emphasis in that case. Although there had been a previous offence seven years earlier, he had only been sentenced to twelve months imprisonment to be served by way of an intensive correction order. Finally, Allsop P (as his Honour then was) concluded his reasons as follows (at [2012] NSWCCA 108 [14]):

“The matter is an extraordinary one. The public has been protected for over three years. Further imprisonment of a man who is mentally retarded with a limited recognition of moral culpability would be wrong. It would serve no purpose of deterrence. It would be longer than would be a just and appropriate sentence.”

90. The circumstances in Muldrock are not relevantly comparable to those in the present case.
91. When all of the findings relevant to sentencing in the present case are borne in mind together with the purposes of sentencing in s 3A of the Sentencing Procedure Act, the legislative guide posts of the maximum penalties and the standard non-parole periods, and the applicable statutory and common law principles, it does not appear to me that the aggregate sentence imposed in the present case was outside the range of sentences disclosed in the cases relied upon by the applicant as comparable. Nor do I accept that the applicant has shown that there must have been some misapplication of principle by the learned sentencing judge or that the aggregate sentence imposed was so far outside the range of sentences available that there must have been error.
92. In my view, the applicant has failed to establish that the aggregate sentence imposed was unreasonable or plainly unjust.
93. Consequently, if leave to appeal were granted, ground 3 would not be made out.

Conclusion

94. The grounds sought to be relied upon by the applicant were not unarguable, even though all of them should be rejected. Accordingly, I propose that the orders of the Court should be:
    • (1) Leave to appeal granted.
    • (2) Appeal dismissed.

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^[1] See Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 214A(2)(a).