Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v BUGMY [2012] NSWCCA 223
• Hearing dates: 8 October 2012
• Decision date: 18 October 2012
• Before: Hoeben JA: at [1]; Johnson J: at [57]; Schmidt J: at [58]

Decision

(1) Crown appeal allowed.

(2) Confirm the sentence imposed in the District Court on 16 February 2012 in respect of counts 1 and 2.

(3) Quash the sentence imposed in the District Court on 16 February 2012 in respect of count 3.

(4) In substitution for the sentence imposed in respect of count 3, sentence the respondent as follows:

Count 3 - Imprisonment with a non-parole period of 5 years to commence 8 April 2011 and to expire 7 April 2016 with a balance of term of 2 years and 6 months to commence 8 April 2016 and to expire 7 October 2018.

• Catchwords: CRIMINAL LAW - sentence appeal - causing grievous bodily harm with intent to cause grievous bodily harm - prison officer struck in eye with pool ball losing sight of that eye - failure to have adequate regard to category of victim when assessing objective seriousness of offence - error in treatment of respondent's mental illness - whether Court should continue to have regard to respondent's background of social deprivation - need to re-sentence - sentence should be increased.
• Legislation Cited: Crimes Act 1900 - s33(1)(b), s60A(1); Criminal Appeal Act 1912 - s5D; Crimes (Sentencing Procedure) Act 1999 - s21A(2)(a), s21A(2)(c), s21A(2)(d), s21A(2)(g)
• Cases Cited: Beldon v R [2012] NSWCCA 194; Butters v R [2010] NSWCCA 1; Ciaron McCullough v R [2009] NSWCCA 94; Director of Public Prosecutions (DPP) Cth v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; Kennedy v R [2010] NSWCCA 260; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Peter Schneidas (No 1) (1980) 4 A Crim R 96 at 100; R v Ah-See [2004] NSWCCA 202; R v Engert (1995) 84 A Crim R 67; R v Fernando (1992) 76 A Crim R 58; R v Hemsley [2004] NSWCCA 228; R v McNaughton [2006] NSWCCA 55; 66 NSWLR 48; Regina v Davis (NSW CCA, unreported, 4.2.1994); Regina v Fernando [2002] NSWCCA 28
• Category: Principal judgment
• Parties: Regina - Appellant Crown; William Bugmy - Respondent
• Representation: Counsel: Mr R Herps - Appellant Crown; Ms D Yehia SC - Respondent; Solicitors: S Kavanagh, Solicitor for Public Prosecutions - Appellant Crown; SE O'Connor, Legal Aid Commission - Respondent
• File Number(s): 2011/16041

Decision under appeal

• Date of Decision: 2012-02-16 00:00:00
• Before: Lerve ADCJ
• File Number(s): 2011/16041

Judgment

1 HOEBEN JA:

Offences and sentence

On 17 May 2011 the respondent pleaded guilty to the following charges:

(i) That on 8 January 2011 at Broken Hill did assault Steven Pitt, a Corrective Services Officer, while in the execution of his duty, contrary to s60A(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years.

(ii) That on 8 January 2011 at Broken Hill did assault John Donnelly, a Corrective Services Officer, while in the execution of his duty, contrary to s60A(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 5 years.

(iii) That on 8 January 2011 at Broken Hill did cause grievous bodily harm to Jason Gould with intent to cause grievous bodily harm, contrary to s33(1)(b) Crimes Act 1900 for which the maximum penalty is imprisonment for 25 years and which has a standard non-parole period of 7 years.

2 On 16 February 2012 the respondent was sentenced by Lerve ADCJ as follows:

Counts 1 and 2 - Imprisonment for a fixed term of 8 months to commence on 8 January 2011 and expire on 7 September 2011.

Count 3 - Imprisonment for a non-parole period of 4 years to commence on 8 April 2011 and expire 7 April 2015 with a balance of term of 2 years to expire on 7 April 2017.

The effect of the sentence was a non-parole period of 4 years and 3 months with a balance of term of 2 years.

3 The Director of Public Prosecutions has appealed against that sentence, pursuant to s5D of the Criminal Appeal Act 1912 on the following grounds:

(1) His Honour failed to properly determine the objective seriousness of the offence.

(2) His Honour failed to properly acknowledge the category of the victim as a serving Prison Officer in the lawful performance of his duties.

(3) The weight his Honour afforded the respondent's subjective case impermissibly ameliorated the appropriate sentence.

(4) The total sentence imposed was manifestly inadequate.

Factual Background

4 A Statement of Agreed Facts was tendered by the Crown and became part of exhibit A. The following is taken from that Statement of Facts.

5 The victim in relation to count 3, Officer Gould, was aged 43 and was a Senior Correctional Officer at the Broken Hill Correctional Centre at the time of the offence. He had worked there for 11 years. At that time, the respondent was an inmate of the Correctional Centre, having been remanded in custody on 2 November 2010 with respect to three charges of assault police, two of resisting an officer in the execution of his duty, escape from police custody, intimidate police and causing malicious damage by fire. He was aged 29.

6 Officer Gould's attention was drawn to the respondent when he heard him abusing Officer Caldwell. When Officer Gould asked the respondent what the problem was, he demanded that gaol visiting hours be extended because his visitors would not arrive before 1pm, after which time visitors were not allowed entry. Officer Gould undertook to make an inquiry of a senior officer to see whether the hours could be extended.

7 Shortly thereafter, the respondent entered the wing office where Officers Gould and Caldwell were standing. The respondent's presence in that office was prohibited. The respondent offered to fight Officer Gould and made various threats to him including "I'll split you open you cunt". Officer Gould, fearing a security incident, advised Assistant Superintendent Pitt who was his superior, that the Emergency Team might be required to attend his location. The respondent then left the office and walked into the exercise yard.

8 Some minutes later, A/S Pitt, the victim in respect of count 1, attended the wing. He and Officer Donnelly, the victim in respect of count 2, went into the yard to speak to the respondent, who was speaking on a telephone. That telephone call was recorded and in it the respondent told his girlfriend that he would "split Gould open".

9 After the respondent had finished his call, A/S Pitt asked "How did you go?" to which the respondent replied "That cocksucker, I'll get him". A/S Pitt said "No, I'm talking about your phone call, how did it go?" The respondent replied "Come on, you want a piece of me I'll split you cunts". The respondent ran to a nearby pool table and took a number of pool balls in his hands.

10 He then threw two pool balls at A/S Pitt and Officer Donnelly, one of which narrowly missed A/S Pitt. The respondent yelled "Come on cunts, I'll split youse". (These were the facts which gave rise to Counts 1 and 2.)

11 A/S Pitt and Officer Donnelly called for assistance on the radio. Officer Gould went into the yard and saw thrown pool balls coming from the direction of a gateway. The respondent came into view and began throwing pool balls towards Officer Gould. The respondent said "Gould you cunt, I told you I'm going to split you open". He then threw two balls at Officer Gould, both of which struck him on the back. The respondent ran some metres into the yard.

12 Officer Gould retreated into the wing office with other officers. As he attempted to secure the office door, the respondent threw two pool balls at him, one of which struck him in the left eye causing serious injuries to his eye. (These were the facts which gave rise to count 3.)

13 The respondent continued to throw pool balls towards the correctional officers, before climbing onto the gymnasium roof carrying a number of pool balls. Although he continued to throw balls towards the officers, none of them struck anyone. Following negotiations, he came down from the roof and surrendered. After doing so, the respondent expressed "some joy" that Officer Gould was injured. The respondent said that he "had not finished with Gould".

14 Officer Gould sustained a serious eye injury, including retinal detachment and orbital (eye socket) fractures. Officer Gould underwent a number of significant operative procedures. Although the bony structures around the eye were repaired by the use of bone grafts and a metal plate, the doctors were unable to save the sight in his left eye. Officer Gould lost the sight in that eye. It was accepted that not only did Officer Gould suffer significant physical harm, but he also suffered psychological damage, developed post traumatic stress disorder and lost his career.

15 The matters for which the respondent was being held on remand were dealt with by the Dubbo Local Court on 12 March 2012. The respondent was sentenced to imprisonment for 4 years, with a non-parole period of 2 years, commencing 2 November 2010. As can been seen, except for the period 2 November 2010 - 7 January 2011, that sentence was concurrent with that imposed by Lerve ADCJ, which is the subject of this appeal. a.

Remarks on sentence

16 Having reviewed the factual background, his Honour took into account as an aggravating factor pursuant to s21A(2)(a) Crimes (Sentencing Procedure) Act 1999, that Officer Gould was a Correctional Services Officer. His Honour also took into account as a matter of aggravation, pursuant to s21A(2)(g), that Officer Gould had suffered significant psychological injury. His Honour took into account that the use of a pool ball as a weapon was a matter of aggravation pursuant to s21A(2)(c). His Honour saw no difference in principle between the use of a pool ball as a weapon and a firearm or a knife.

17 In considering the objective seriousness of the offence, his Honour took into account that an offence contrary to s33(1)(b) Crimes Act 1900 was a "result offence". His Honour was mindful of what Howie J (with whom McClellan CJ at CL and Simpson J agreed) said in Ciaron McCullough v R [2009] NSWCCA 94 at [37]:

"37 Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]."

18 In addition to the serious consequences of the offence, his Honour took into account that there was no provocation by Officer Gould. His Honour noted that although there was no evidence that the respondent intended to blind Officer Gould, it was an element of the offence to which he had pleaded guilty, that he intended to cause grievous bodily harm.

19 His Honour accepted that there was no planning of the offence and that the respondent had committed it on the spur of the moment in a fit of anger, when he did not get what he wanted. His Honour assessed the matter as "being slightly less serious than the mid-range of objective seriousness for offences of this kind".

20 His Honour summarised the respondent's criminal record which was a very poor one. He had first come to the notice of the courts in February 1994 when he was aged 13. Between that date and 26 June 2001 when he came before the courts as an adult, he had been convicted of numerous break, enter and steal offences; assaults; resisting police and damage to property for which he had been sentenced to control orders on a number of occasions.

21 From 26 June 2001 his offending had continued in an almost unbroken sequence until the occurrence of these offences. The offences for which he was convicted included numerous assaults; break, enter and steal; destroy and damage property and resist police. He received terms of imprisonment for those offences. He had spent much of the time between 26 June 2001 and the date of these offences in custody. His Honour took his criminal record into account as an aggravating factor, pursuant to s21A(2)(d) Crimes (Sentencing Procedure) Act 1999, as that term was used in R v McNaughton [2006] NSWCCA 55; 66 NSWLR 48.

22 The respondent did not give evidence. In relation to his subjective case, his Honour had before him a pre-sentence report. It showed that he was of Aboriginal background and had been exposed to violence and alcohol abuse as a child. He was educated to year 7 and had poor literacy and numeracy skills. The respondent commenced using cannabis and alcohol at the age of 12 and developed a high degree of dependency on those substances. The respondent had not done well when attending community-based drug and alcohol counselling. He had never attended a long-term residential rehabilitation program.

23 There were two reports by Dr Bruce Westmore, forensic psychiatrist, of 1 August and 11 November 2011 before his Honour. In the report of August 2011 Dr Westmore concluded:

"Mr Bugmy is a 29 year old man who was born into a large family. He said as a boy he was frequently in trouble and he told me that he had threatened teachers with knives. He said he had contact with the police and was placed in boys' homes and Juvenile Justice facilities. He witnessed domestic violence and said that his father had stabbed his mother.

Mr Bugmy has a history of alcohol abuse and substance abuse. There was a history of head injuries as well. He said that he was transferred from a Juvenile Justice facility to an adult prison and since the age of 18 he has not spent one birthday in the community. He reports that he went downhill following the death of his mother six years ago, although the history would suggest that he has had very serious problems for most of his life.

...

Mr Bugmy frequently indicated that he believes his principal problem is that of alcohol abuse. He said that he had asked for assistance on numerous occasions without success. He said he had never attended a detoxification or rehabilitation facility. He has very negative attitudes towards authority figures, particularly police and I suspect also prison officers. There may be some family "cultural issues" which are also relevant to his negative views.

He describes auditory hallucinations, these are of uncertain origin but may be related to alcohol abuse, although that may also be less likely if he continues to have these experiences many months after he last took alcohol. ... From a psychiatric perspective Mr Bugmy does require extended counselling for his drug and alcohol abuse problems and he needs regular psychiatric review in view of his reported "voices"."

24 A supplementary report of November 2011 recorded psychotic symptoms which occurred in 2009, as a result of which the respondent was admitted to a psychiatric institution. Dr Westmore set out his conclusions in the supplementary report as follows:

"He was identified in 2009 as having auditory hallucinations. Clinical notes do not consistently refer to a definitive diagnosis but a schizophreniform illness was considered at one stage. This refers to an illness of a schizophrenic type and, on the assumption that he has not used illicit drugs or alcohol now for an extended period, it would seem likely that his reported psychotic symptoms are of a primary psychotic origin, rather than those symptoms arising from secondary factors such as drugs or alcohol. It is also possible that his reported psychotic symptoms occur in the context of a Depressive Disorder."

25 His Honour accepted that neither report of Dr Westmore established a link between the mental disorders and the respondent's offending behaviour. His Honour referred to R v Engert (1995) 84 A Crim R 67, R v Hemsley [2004] NSWCCA 228 at [33] - [36]; and Muldrock v The Queen [2011] HCA 39; 244 CLR 120. His Honour took note of what those cases said in relation to reducing the effect of general deterrence when an offender suffers from a mental illness.

26 His Honour also had regard to the remarks of Wood J in R v Fernando NSWCCA (unreported, 14 March 1992) 76 A Crim R 58 and Kennedy v R [2010] NSWCCA 260 where this Court stated that sentencing decisions should recognise social disadvantage that precedes the commission of a crime.

27 His Honour reached the following conclusions in relation to those matters:

"47 Mr Lawrence on behalf of the offender submits that "significant moderation to the weight to be given to general deterrence is warranted on account of the totality of the psycho-social evidence". I am certainly prepared to allow some moderation to the weight to be given to general deterrence because of those issues.

...

52 Clearly the Fernando/Kennedy type issues are present in this matter, and accordingly, I will need to take them into account when considering the subjective case for the offender.

...

59 Clearly enough, in the circumstances, there is that issue of general deterrence to be considered. However, there is also the issue of the mental health issues suffered by the offender in this matter to be considered.

...

62 Mr Lawrence submits and I agree that there should be a finding of special circumstances in this matter. The offender is in danger of being institutionalised and there is on the medical evidence a very great need for intensive residential fulltime rehabilitation. These factors clearly operate very much in favour of a finding of special circumstances despite the substantial criminal history of the offender. The offender is going to require ongoing intensive and extensive supervision if he is going to rehabilitate himself from alcohol and substance abuse and remain offence free."

28 His Honour allowed a 25 percent discount for the respondent's early plea of guilty and used as his start point, imprisonment for 8 years for the offence contrary to s33(1)(b) of the Crimes Act 1900.

The Crown Appeal

Ground 1 - His Honour failed to properly determine the objective seriousness of the offence.

Ground 2 - His Honour failed to properly acknowledge the category of the victim as a serving prison officer in the lawful performance of his duties.

29 These grounds of appeal raise the same issue and can conveniently be dealt with together. Like the other grounds of appeal, their focus is on count 3.

30 When assessing the objective seriousness of the offence, his Honour expressed himself as follows:

"29 In oral submissions Mr Lawrence put that I would find that the matter is "well below" the mid-range of seriousness. The Crown prosecutor in his oral submissions reminded me of the permanent nature of the injury sustained by Mr Gould and the use of the weapon, namely the pool ball. As I understand the submissions by the Crown, it was submitted by the Crown that the matter was at or about the mid-range of seriousness for matters of this type.

30 In all the circumstances, I am of the opinion that the matter falls within the range of being slightly less serious than the nominal mid-range of objective seriousness of these types of matters that come before this Court."

31 In reaching that conclusion, his Honour appears to have misunderstood the submissions of the parties. It was conceded in oral submissions by the respondent that the injuries suffered by Officer Gould were "somewhere between mid-range and somewhere above mid-range" (Transcript, 15.12.11, p8). In the respondent's written submissions, the following was said:

"52 Balancing these factors it is submitted that the Court would come to the view that the offence is properly characterised as mid-range."

The Crown made no specific submission on this issue, other than to say in general terms that it was a serious offence.

32 His Honour, of course, was not bound by the submissions of the parties and was required to make his own assessment of objective seriousness. It is, however, somewhat disquieting that his Honour comprehensively misstated the submissions of the parties. In view of the concession made by the respondent as to the objective seriousness of the offence in Count 3, one would have expected his Honour to provide some reasons for why he was not prepared to accept it.

33 In the circumstances of this matter, the concession by the respondent was correctly made. The offence was a serious example of offences of this kind. Being a "result offence", the consequences for Officer Gould were relevant. He suffered a significant injury to the structures surrounding his left eye, which resulted in a number of painful operations. In addition, he developed significant post traumatic stress and psychological difficulties, lost the sight in his left eye and lost his employment.

34 The surrounding circumstances did not assist the respondent. There was no provocation and the respondent's motivation appears to have been no more than a fit of anger brought about by a disruption of his visitation rights. Finally, the use of a pool ball as a weapon is a significant matter of aggravation. The lack of planning and "spur of the moment" nature of the offence does not greatly mitigate those factors.

35 The Crown's second ground of appeal focused upon one of the aggravating features of the offence. It has, in my opinion, considerable force. Whilst his Honour acknowledged the application of s21A(2)(a) of the Crimes (Sentencing Procedure) Act 1999 in that Officer Gould was a Correctional Services Officer, thereafter that aggravating feature appears to have played no part in his reasoning. As the authorities make clear, this was a very important matter of aggravation.

36 In Peter Schneidas (No 1) (1980) 4 A Crim R 96 at 100, Lee J (with whom Street CJ and Maxwell J agreed) said:

"The safety of prison officers lawfully carrying out their duties in a prison is a matter of prime importance to the proper administration of the prison system, and this Court cannot but view as a serious crime an unprovoked attack with a metal bar upon a prison officer. The assault having taken place within the prison required a sentence in which the deterrent element not only in regard to the appellant but in regard to other prisoners was made manifest ..."

37 In Regina v Davis (NSWCCA, unreported, 4.2.1994) Wood J (with whom Gleeson CJ and Meagher JA agreed) said:

"The maintenance of discipline within corrective institutions is a matter of very great importance. The potential for substantial damage to public property and for serious physical harm, both to prison officers and other inmates, as a result of breaches of gaol discipline, is considerable, particularly in circumstances of unrest or dissatisfaction over matters of policy. It is a consequence of that fact that sentences for offenders involving attacks on prison officers in the execution of their duty must involve, as a significant component, both personal and general deterrence. Save in special circumstances, such sentences, in my view, should be accumulated upon any sentence already being served otherwise the sentences loses any sting of personal deterrence."

38 In his sentencing remarks, his Honour at no time made reference to the element of personal deterrence. In this case, that was an important matter which required consideration. Similarly, his Honour does not appear to have adequately appreciated the importance of general deterrence in the particular circumstances of this offence.

39 Accordingly, despite the essentially discretionary nature of an assessment of the objective seriousness of an offence, I am satisfied that his Honour erred in his assessment of the offence in count 3. These grounds of appeal have been made out.

Ground 3 - The weight his Honour afforded the respondent's subjective case impermissibly ameliorated the appropriate sentence.

40 The Crown submitted that the respondent's subjective case had few positive features. It submitted that his Honour failed to take into account the absence of any contrition and remorse on the part of the respondent. The Crown submitted that nowhere in the reports tendered on his behalf did the respondent accept responsibility for his actions, or acknowledge the injury, loss and damage which he had caused (Butters v R [2010] NSWCCA 1 at [17] (Fullerton J with whom McClellan CJ at CL and McCallum J agreed)). I agree with this submission. Nowhere did his Honour refer to this.

41 The Crown submitted that his Honour failed to give adequate weight to the respondent's bad criminal record. It submitted that apart from these offences and the offences for which he was on remand, he had been convicted of more than 43 offences involving violence. It submitted that his Honour should have given greater weight to his criminal record in the sentencing process than by simply referring to s21A(2)(d) Crimes (Sentencing Procedure) Act 1999.

42 I agree. The sheer number of offences of violence and other offences of which the respondent had been convicted before these offences is the very circumstance which attracted the observations of the High Court in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477 where the plurality (Mason CJ, Brennan, Dawson and Toohey JJ) said:

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

43 The Crown submitted that his Honour erred in taking into account the respondent's mental illness so as to reduce the weight to be given to general deterrence. It submitted that it was conceded by the respondent that his mental illness had nothing to do with the count 3 offence. It submitted that this was not a case where the respondent lost control of himself because of a pre-existing condition which might demonstrate a diminished capacity for self-control. The Crown submitted that the other matters identified in R v Hemsley [2004] NSWCCA 228 and more recently in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 to which mental illness may give rise, did not apply here.

44 I agree. In Beldon v R [2012] NSWCCA 194 Johnson J (with whom McClellan CJ at CL and Hammerschlag J agreed) said:

"33 Where it is said that an offender suffers from a mental condition or disorder, this may bear upon the question of sentence in a number of different ways, depending upon the circumstances of the case. As Gleeson CJ observed in R v Engert (1995) 84 A Crim R 67 at 69, it is erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances such as a mental disorder.

34 Court decisions in this area have identified a number of ways in which the presence of a mental condition or disorder may bear upon the question of sentence. A helpful summary of these factors appears in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]:

"Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v R [2000] WASCA 203 ; (2000) 114 A Crim R 333 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

· Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28].

· It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

· It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

· It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

· Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23]-[24].""

45 Although the above principles are relatively familiar and have been referred to and quoted in many decisions of this Court, it is useful to keep in mind the rationale behind them and the qualification by Gleeson CJ in Engert. His Honour seemed to assume that because there was a diagnosis of mental illness, this automatically had the effect that the respondent was to some extent an inappropriate vehicle for general deterrence. That was an erroneous approach.

46 The rationale behind reducing the weight to be given to general and specific deterrence in the case of mental illness is clear. If the mental illness or its symptoms were directly involved in the commission of the offence, then clearly that is a special subjective circumstance particular to the offender which would take him or her outside the general population, so that the principles of general and specific deterrence have little or no application. Alternatively, as the Crown submitted, the nature of the mental illness may be such as to reduce an offender's ability to control his or her actions, thereby indirectly contributing to the commission of the offence.

47 Here, the mental illness identified by Dr Westmore did not give rise to such considerations, nor did it give rise to any of the other matters identified in De La Rosa. It had nothing to do with any aspect of the offending. To the extent that Dr Westmore made any diagnosis, it was expressed in general terms and it would involve speculation, rather than inference, to take it into account when sentencing the respondent in respect of the count 3 offence. Because his Honour did take it into account in that way, he fell into error.

48 The Crown submitted that his Honour erred in taking into account the difficult circumstances of the respondent's youth, in particular the prevalence of alcohol abuse and the lack of parental guidance. The Crown submitted that this consideration lost much of its force when it was raised against a background of numerous previous offences.

49 The Crown relied upon the observations of Hislop J (with whom Bell and Howie JJ agreed) in R v Ah-See [2004] NSWCCA 202 where his Honour said:

"20 In my opinion, the applicant's subjective case is not advanced in reliance upon Fernando's case and the applicant's aboriginality.

21 In any event, it is not every case of deprivation and disadvantage suffered by an offender of aboriginal race or ancestry that calls for the special approach adopted in Fernando (see R v Newman [2004] NSWCCA 102 per Howie J at [61]) and the mitigating effect of being an aboriginal person loses much of its force where the offender has committed similar serious offences in the past (see R v Drew [2000] NSWCCA 384 per Newman J at [21])."

50 I agree that with the passage of time, the extent to which social deprivation in a person's youth and background can be taken into account, must diminish. This is particularly so when the passage of time has included substantial offending. Nevertheless, it is still a matter of relevance which can properly be taken into account in the sentencing process. Here, for the reasons set out in Ah-See, the extent to which his Honour could take those matters into account was limited. They were, however, matters which were relevant to sentencing and it was not an error on his Honour's part to have regard to them.

51 The relevant principle was restated in Regina v Fernando [2002] NSWCCA 28 by Spigelman CJ (with whom Wood CJ at CL and Kirby J agreed) as follows:

"64 As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes, by deterring both the particular offender and other possible offenders - referred to as personal and general deterrence respectively. In a case of the character now before the Court, by an offender with this record, the protection of the community requires a substantial period of imprisonment. It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal circumstances which have led an individual into a life of crime.

65 Such considerations are present in the case before the Court. The Respondent has a personal history of deprivation that is, regrettably, far too common amongst young people, particularly Aboriginal youth.

66 The sentencing principles to be applied by a sentencing court apply in every case, irrespective of the membership of the particular offender of an ethnic or other group. Nevertheless, when imposing sentences courts must take into account, pursuant to those very principles of general application, all of the facts relevant to the circumstances of the offence and of the offender, including facts which may exist by reason of the person's membership of a particular group. (See e.g. Neal v The Queen (1982) 149 CLR 305 at 326.)

67 Aborigines who commit crimes of violence are not accorded special treatment by the imposition of lighter sentences than would otherwise be appropriate having regard to all of the relevant considerations, including the subjective features of a particular case. An offender is not entitled to any special leniency by reason of his or her Aboriginality. The principle of equality before the law requires sentencing to occur without differentiation by reason of the offender's membership of any particular racial or ethnic group. Nevertheless, particular mitigating factors may feature more frequently in some such groups than they do in others. (See R v Fernando (1992) 72 A Crim R 58 at 62-63 as further explained in R v Hickey (NSWCCA, 27 September 1994; unreported); R v Stone (1995) 84 A Crim R 218 at 221-223; R v Ceissman [2001] NSWCCA 73 esp at [29]-[33]; R v Pitt [2001] NSWCCA 156 at [19]-[21].)"

52 I am not persuaded that his Honour erred in taking into account what he described as "Fernando considerations" and reducing the weight to be given to general deterrence for that reason. For the reasons already given, however, such a reduction would be modest.

Ground 4 - The total sentence imposed was manifestly inadequate.

53 It is not necessary to deal with this ground of appeal. Error in his Honour's sentencing process has been identified and the errors are of such a kind that it will be necessary to re-sentence the respondent.

Conclusion and re-sentencing

54 Section 5D(1) of the Criminal Appeal Act 1912 provides that this Court, on a Crown appeal against sentence, may in its discretion vary the sentence and impose such sentence as the Court considers proper.

55 It follows from my findings of error in his Honour's approach to the objective seriousness of the offence and to the respondent's subjective case, that a more severe sentence should have been imposed on the respondent in respect of count 3. Taking into account the factors to which I have referred and those referred to by the sentencing judge in his remarks on sentence, I am of the opinion that the respondent should be re-sentenced in respect of count 3 to a term of imprisonment with a non-parole period of 5 years to commence on 8 April 2011 and to expire on 7 April 2016, with a balance of term of 2 years and 6 months to expire on 7 October 2018.

56 The orders which I propose are as follows:

(1) Crown appeal allowed.

(2) Confirm the sentence imposed in the District Court on 16 February

2012 in respect of counts 1 and 2.

(3) Quash the sentence imposed in the District Court on 16 February 2012 in respect of count 3.

(4) In substitution for the sentence imposed in respect of count 3, sentence the respondent as follows:

Count 3 - Imprisonment with a non-parole period of 5 years to commence 8 April 2011 and to expire 7 April 2016 with a balance of term of 2 years and 6 months to commence 8 April 2016 and to expire 7 October 2018.

57 JOHNSON J: I agree with Hoeben JA.

58 SCHMIDT J: I agree with Hoeben JA.

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Decision last updated: 18 October 2012