Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Turner v R [2011] NSWCCA 189
• Hearing dates: 27 July 2011
• Decision date: 22 August 2011
• Before: Basten JA at 1, Simpson J at 7, Garling J at 68

Decision

(i) leave to appeal granted;

(ii) appeal allowed, sentence imposed in the District Court quashed; and

(iii) the applicant be sentenced to imprisonment for 3 years and 6 months commencing on 15 March 2010 and expiring on 14 September 2013, with a non-parole period of 1 year and 9 months, expiring on 14 December 2011.

• Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence -robbery whilst armed with offensive weapon - offence committed in hospital emergency department - applicant armed with a syringe - quantity of narcotics taken - Form 1 offence of stealing - plea of guilty - opioid dependence following serious physical injury - pain disorder - depression and suicidal ideation - voluntary admissions to psychiatric facility - attempts to undertake rehabilitation - relevance of general and specific deterrence - error in failing to take applicant's mental state into account in assessment of objective gravity - error in characterising applicant's addiction as a matter of 'personal choice' - sentence manifestly excessive - leave granted - appeal allowed - applicant re-sentenced
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Bichar v R [2006] NSWCCA 1; R v CJP [2004] NSWCCA 118; R v de la Rosa [2010] NSWCCA 194; R v Engert (1995) 84 A Crim R 67.; R v Fahda [1999] NSWCCA 267; R v Georgopolous [2010] NSWCCA 246; R v Henry [1999] NSWCCA 111; 46 NSWLR 346; R v Israil [2002] NSWCCA 255; R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338; R v Lauritsen [2000] WASCA 203; 114 A Crim R 333; R v Letteri, unreported, NSWCCA, 18 March 1993; R v McEvoy [2010] NSWCCA 110.; R v SY [2003] NSWCCA 291,; R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383; R v Way [2004] NSWCCA 131; 60 NSWLR 168
• Category: Principal judgment
• Parties: Mark Turner (Applicant); Regina (Respondent)
• Representation: Counsel; G Bashir (Applicant); D Arnott with him S Bowers (Crown); Solicitors; Legal Aid Commission (Applicant); Director of Public Prosecutions (Crown)
• File Number(s): 10/66481

Decision under appeal

• Citation: Not applicable
• Date of Decision: 2010-10-28 00:00:00
• Before: Payne DCJ
• File Number(s): 10/66481

Judgment

1 BASTEN JA : When a court sentences a person to imprisonment it exercises an important, but invasive, governmental power to deprive the person of his or her liberty. Because it is a judicial act, reasons must be given. The reasons, together with the sentence, constitute a judgment: the practice of referring to the reasons as "remarks on sentence" undermines their constitutional significance. The historical usage, which arose in different circumstances but remains commonplace, may need to be reconsidered. To the extent that a sentence involves an element of retribution and public deterrence of future criminal behaviour, the reasons given in the judgment are of central importance to the exercise of power.

2 As appears from the extracts from the judgment of the sentencing judge, Payne DCJ, set out by Simpson J below, her Honour placed significant weight on the fact that the offender acted "deliberately and with purpose". She referred to the submission that the conduct was "not a matter of personal choice, the addiction arising from an event clearly that the prisoner was not responsible for and which ended his life or the way he could lead his life as he had previously done": Judgment, p 10. The submission also noted that the medication to which he had become addicted was prescribed for him. Her Honour expressed difficulty with the submission because "at certain points he must have had a choice". She also relied upon the reasoning in Bichar v Regina [2006] NSWCCA 1 for the proposition that "in any event self medication by the use of prohibited drugs to overcome psychological or physical trauma is not a mitigating factor".

3 The language of free choice invokes the fundamental principle that, so far as the individual is concerned, punishment is a function of moral responsibility. To the extent that freedom of choice is restricted, other considerations being equal, a lesser penalty is indicated: see cases referred to by Simpson J, together with R v Tsiaras [1996] 1 VR 398 and Courtney v Regina [2007] NSWCCA 195 at [14]. However, that is not the only basis upon which severity of punishment should be tempered in such a case. The public expectation of retribution, as discussed by McHugh in Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [46], and general deterrence may also be satisfied by a lesser sentence in respect of a person suffering a mental illness or disability relevant to the offending.

4 As the sentencing judge recognised, the offender suffered from an addiction to opioid drugs which limited his degree of moral responsibility. Her Honour appears to have accepted the psychiatric evidence of Dr Ellis that his condition significantly impaired his "ability to control impulses and marshal his emotional response to situations". However, she failed to give proper weight to the mitigating effect of his addiction, which was not in any sense related to use of illicit drugs.

5 At some stage, it may be necessary to give closer attention to the basis on which it is said that addiction to illegal drugs is not generally a "mitigating" factor in relation to offending. For example, to recognise the medical explanations of addiction is not to condone the use of illegal drugs. However, that question does not arise in this case: there can be no doubt that addiction to prescription drugs, albeit that they may properly be described as "illicit" in circumstances in which they are not appropriately prescribed, falls into a different category. While there is usually an assumption that addiction to illegal drugs commenced with unlawful activity resulting from personal choice, the same cannot be said of the offender's addiction in the present case. His circumstances should evoke a degree of sympathy which, while not excusing serious criminal misconduct, diminishes the level of his moral responsibility to an extent and the need for a response involving retribution or a significant level of general deterrence.

For these reasons, as well as those provided by Simpson J, I agree with the orders proposed by Simpson J.

6 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court at Tamworth on 28 October 2010 following his plea of guilty to a single count of robbery whilst armed with an offensive weapon (committed on 15 March 2010) which, pursuant to s 97(1) of the Crimes Act 1900, carries a maximum penalty for imprisonment for 20 years. Also taken into account, on a Form 1 pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), was an offence of stealing (committed on 12 March 2010), which (if charged separately) carries a maximum penalty of imprisonment for 5 years.

7 Payne DCJ sentenced the applicant to imprisonment for 4 years and 6 months, commencing on 15 March 2010 (the date of the applicant's arrest) and expiring on 14 September 2014, with a non-parole period of 2 years and 9 months, expiring on 14 December 2012.

The facts

8 The armed robbery offence is a very serious one. In order to put it in context, it is necessary to set out some chronology.

9 The applicant (in circumstances that will be more fully recounted when I come to deal with his personal circumstances) was, in early 2010, somewhat itinerant. He arrived in the town of Gunnedah and, early in March of that year, took up residence in a local hotel. He was still suffering from the effects of a very serious injury he had sustained in an accident in the Northern Territory in 2003. He had had prescribed for him pain relief medication called a "Durodesic Patch". In Gunnedah he obtained (whether from a doctor or a nurse practitioner is not clear) a prescription for a single patch. On 8 March 2010 (a Monday), he presented the prescription to the local pharmacist. The pharmacist was reluctant to fill a prescription for a single patch, because the medication came in packs of five and, he said, he could not sell the remaining patches. After some discussion, he gave the applicant the single patch, and accepted the applicant's assurance that he would obtain a prescription for the remaining four patches on the following Wednesday (10 March).

10 By 10 March the applicant had not returned to the pharmacy with the promised prescription. The pharmacist called on the applicant at the hotel where he was resident. He had with him the box containing the remaining four patches, and the prescription. The applicant told him that he had not returned to the doctor for a prescription. The pharmacist told the applicant that he had to have a prescription, and be paid for the remaining four patches, or he would go to the police. The applicant snatched the box and the prescription from the pharmacist, and ran off, saying that he would take them to the police himself. This constituted the Form 1 offence of stealing.

11 At 12.20 pm on Monday, 15 March 2010, the applicant went to the Emergency Department of the Gunnedah Hospital. After completing some paperwork, he was seen by a triage nurse. He told the nurse that he had "Staph in the throat" and other ailments. The triage nurse invited the applicant to have a seat and said that the doctor would see him shortly. The applicant was somewhat agitated, and moved around in the waiting room. He told the nurse that he had chest pain. The nurse approached him, intending to take him into a resuscitation room. The applicant took hold of her arm and forced her into a treatment room that was occupied by a doctor. The applicant produced a needle. He pointed the needle towards the doctor. He said:

"I have a needle and AIDS. Now I want what's in that cupboard",

indicating a cupboard that contained certain drugs. He pushed the nurse towards the cupboard. She told him that she needed a key to open it. The applicant let the nurse go, but stood nearby as she opened the cupboard. The applicant said:

"I just want to die."

12 The nurse opened the cupboard and she and the doctor left the treatment room. The applicant removed a quantity of drugs from the cupboard and left the hospital. He had in his possession 230 mg of morphine sulphate, and 2900 mcg of a drug called Fentanyl. This was the armed robbery offence. The "offensive weapon" was the syringe.

13 The applicant drove away. At about 5.00 pm his vehicle was stopped by police about three kilometres from Gunnedah. In the vehicle were a number of unopened boxes of morphine and Fentanyl, and a syringe. Also in the vehicle was a length of rope that the applicant had earlier fashioned into a noose. The applicant was arrested and interviewed, and the interview electronically recorded. He indicated that his intention in creating the noose had been to use it to commit suicide. He said:

"I just thought well, this is the time I came into the world, it may as well be the fucken time I go out ... I don't want to do this any more." (A 92)

[15 March was the applicant's birthday.] He said that his intention in taking the syringe into the hospital had been, not to use it as a weapon, but to show the doctor "how bad it's getting", and that he had been injecting. He was referring to the aftermath of the accident to which I have already referred, and to which I will return.

The applicant has remained in custody since the date of his arrest.

14 Also before the sentencing judge was a Victim Impact Statement made by the triage nurse. She wrote of her anxiety working in the Emergency Department, particularly when a patient became angry or frustrated. She spoke of her loss of trust in patients presenting to the Emergency Department and her loss of compassion and empathy.

15 The facts recounted confirm, as indicated above, that, in objective terms, this was a particularly serious instance of a s 97(1) offence.

The applicant's personal circumstances

16 Evidence of the applicant's personal circumstances was put before the sentencing judge by means of a pre-sentence report, a psychiatric report prepared by Dr Andrew Ellis, and oral evidence of the applicant. A letter written by a woman who lived at the hotel where the applicant had stayed was partly read onto the record. As there is some factual dispute about some aspects of the applicant's personal history, I will deal in some detail with that evidence.

17 The applicant was born in March 1973, and grew up in southeast Queensland. He was therefore 37 years of age at the time of the offences. His childhood appears to have been unremarkable. He had a close bond with his stepfather, but the stepfather left when the applicant was about 21, after separating from the applicant's mother. It was said that his mother's drug consumption was the reason for the separation.

18 The applicant claimed that this event had a significant emotional impact on him, and left him with a strong "anti-drug attitude". He thereafter steered away from close relationships, although he did live for about five years (from age 22 to 27) in a de facto relationship. For some years he worked as a carpenter and a heavy machine operator in Brisbane. In Brisbane he incurred his only criminal record which is relatively minor, but does include two entries for possession of dangerous drugs, and one for possession of utensils or pipes (used in drug consumption), and one of stealing. Neither of the drug offences resulted in the recording of a conviction.

19 At about the time of the cessation of the de facto relationship the applicant left Brisbane and travelled to the Northern Territory where he obtained employment on cattle stations. He has lost contact with his family.

20 It was in the Northern Territory, in 2003, that the applicant suffered the serious accident I have mentioned. He was kicked in the face by a bull, and trampled. He suffered a variety of very serious injuries to his face and body, requiring extensive facial reconstruction and other surgery. His injuries included various broken bones.

21 The extent of the applicant's injuries, and the sequelae, are central to the case in mitigation made on behalf of the applicant. Regrettably, the evidence concerning the accident, and the injuries and their aftermath was confined to the applicant's own accounts, to the author of the pre-sentence report, to Dr Ellis, and to the court in his own evidence. No independent medical evidence was provided to the sentencing judge. What follows is therefore to be read as an account of what the applicant himself has reported on various occasions, unconfirmed by objective evidence. It was not challenged.

22 After the completion of surgery, the applicant continued to suffer significant pain, and severe migraines. He continued to be prescribed medication. He was assessed as having 49% loss of overall physical mobility. He has been treated at a Melbourne pain clinic. The applicant told Dr Ellis that, at the time, he became a heavy consumer of alcohol (having previously been an infrequent social drinker). He ceased this use of his own accord.

23 He experienced intrusive recollections of the accident, and severe insomnia; when he slept, he had recurring dreams and would wake in a "cold sweat".

24 The applicant reported to Dr Ellis that he became addicted to opioid painkillers. These were drugs that had been prescribed to him. He was unable to withdraw from the drugs, and began to suffer depression. He experienced difficulties finding "an understanding source of treatment" for his opiate dependency and emotional pain. He lived for a time in Orange, where he embarked on a relationship, but that failed. In his evidence he said that he had undertaken rehabilitation at a facility in Canowindra, funded by the insurance company responsible for compensation for his injuries. This was "to get me off all the medications". He developed a frame of mind in which he blamed the medical profession for his situation. On two occasions during 2009 he admitted himself, as a voluntary patient, to a psychiatric facility. It was while he was living in Orange that the patches were prescribed.

25 In early 2010 he moved to Gunnedah, sometimes living in his car. He became suicidal. He obtained the prescription for the single patch, the effect of which ought to have lasted three days. When he obtained (by stealing) the remaining four patches, he used them on the same day. This was an attempted overdose. It was after that that he went to the hospital to seek help. He reiterated in his evidence that he had taken the syringe to the hospital in order to demonstrate the depths of his emotional agony.

26 Dr Ellis reported that the applicant denied using illicit drugs, and said that he had never entered into formal substance abuse treatment. Both these statements are inconsistent with other evidence before the court. The applicant's Queensland criminal record includes two offences for possession of a dangerous drug, in 1995 and 2000, one accompanied by an offence of possession of relevant utensils. The denial of formal substance abuse treatment may be seen as inconsistent with the evidence he gave in the sentencing proceedings.

27 To the extent that it is necessary to resolve these factual inconsistencies, it is, perhaps, of some significance that neither of the Queensland offences resulted in a recorded conviction. In each case a fine was imposed. However, the present significance of this is that Dr Ellis recorded a denial of the use of illicit drugs. The applicant said in his evidence that the drugs were amphetamine and "pot" (marijuana). He said that, in a discussion with Dr Ellis, he (the applicant) had said that he "did not get into the drugs scene", and that he did not like "the drug industry" (AB 108).

28 Importantly, Dr Ellis reported:

"At the time of the offence there is significant evidence to suggest that he was suffering from severe symptoms of a major depressive disorder, pain disorder and opioid dependence.

He describes a pervasively depressed mood with three months of suicidal ideation, and distorted cognitive processes such as attributing blame for his situation on the health profession and a wish to die in a symbolic manner by overdosing on the medication he was addicted to. In addition he was experiencing insomnia, weight loss, poor concentration and apparent intoxication and withdrawal from pain killing opiates, accompanied by intermittent control of his pain. It is likely that his ability to control impulses and marshal his emotional response to situations was significantly, but not totally impaired. It is likely that he was able to determine that his actions were wrong, however his mood state was such that he was not considering the consequences of his actions at the time. This described motive for the behaviour was to obtain sufficient medication in order to complete a suicide.

The fact that there was an overdose immediately subsequent to the threatening behaviour and theft of the medication, and the finding of a noose in the rear of his car are more objective measures of his depressed mental state at the time." (AB 57)

29 In this respect the statement of the hotel employee is of significance. She said that, on the Friday prior to the armed robbery, the applicant had approached her and asked if he could talk to her. She told him she was very busy and subsequently forgot about it. She said that, on the following Monday morning, she knocked on the door of his room and asked if he still wanted to speak to her but he told her that he did not. She said that the applicant followed her to the kitchen, and told her that he was taking a lot of the drug called Oxycontin but did not wish to take it any more because it was addictive. She advised against suddenly ceasing the medication without medical supervision, that he should reduce the dose gradually, and discuss it with a doctor. He told her that he could not obtain an appointment to see a doctor and she suggested that he go to the hospital. She then said:

"[The applicant] went on talking about his medication and then he said, 'I should just get in the car and drive into a brick wall or get a gun and just shoot myself'. He walked out of the room."

She described him as "agitated".

30 Other than in the passage I have extracted above, Dr Ellis did not make a specific diagnosis. However, under the heading "Future Recommendations" he suggested investigation of possible post-traumatic stress disorder symptoms and examination of the applicant's medical records "which are located across the country" to determine whether he had suffered any brain injury or cognitive impairment in the accident.

31 The applicant gave evidence of his remorse. When asked how he viewed what he had done on the day of the offence he said:

"Horrifying. I hate it ... I hate it, the fact it happened. There's not a day goes by I don't think of ... the nurse. There's not a day goes by I don't think of the doctor. I've never hurt anybody in my life, ever. On the station I used to do a lot of work with kids who had drug problems and that, and they'd come up to the station and stick to get away from all that stuff you know; teach them everything from shoeing horses to peg testing cattle ...". (AB 105)

32 The applicant also gave evidence that, while he had been in custody on remand, he had been assigned positions of responsibility in the prison. He has been provided with medication, which has substantially alleviated his insomnia.

The remarks on sentence

33 Payne DCJ began by recording the facts of the stealing offence. She concluded, correctly, that it was itself a serious offence to which weight must be given in the ultimate sentence for the armed robbery offence. Of the latter offence, she said that it "displayed a significant degree of objective seriousness" and referred to "the very real terror characteristic of armed robbery". She referred to the Victim Impact Statement. Her Honour dealt with all relevant factors, both aggravating and mitigating, itemised in s 21A of the Sentencing Procedure Act, in a way which is not the subject of criticism.

34 She noted that the plea of guilty had been entered at the earliest opportunity and allowed, in accordance with the principles stated in R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383, a reduction of 25% in the sentence she otherwise would have imposed. She accepted the applicant's expressed contrition and remorse as genuine.

35 An important aspect of the sentencing remarks concerns the manner in which her Honour dealt with the evidence of the applicant's psychiatric condition. She quoted extensively from the report of Dr Ellis. She accepted that, at the time of the offences, he was suffering from a mental disorder, but added:

'It is the position though that this mental state did not prevent him from acting deliberately and with purpose. He went to the hospital, in particular into the treatment room, knowing exactly what he wanted to do what he wanted to achieve. As it turned out, despite the significant amount of opioids or narcotics that he took, he was still able to drive a vehicle at 5.00 pm that afternoon."

She followed this with:

"In my view there should be some limited modification of the requirement for general deterrence in this case: R v Fahda [1999] NSWCCA 267."

36 She considered a submission that the applicant's addiction was, in the circumstances of the case, a mitigating factor. She quoted a passage from the judgment of Wood CJ at CL in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, at [273], and then said:

"The difficulty is that at certain points he must have had a choice. He had an option to gain treatment, which he in fact did, for his addiction, but despite this found himself leaving a location where he had access to the opiates that he required and in a position where he was in country town in respect of which he had no ties or connection and suffering severe withdrawal.

As is noted in Bichar [ Bichar v R [2006] NSWCCA 1] in any event self-medication by the use of prohibited drugs to overcome psychological or physical trauma is not a mitigating factor. And further, nor can it be said that the applicant did not make a choice to continue to use the drugs rather than to remain in rehabilitation or seek further rehabilitation. It is the position that he did not start taking this medication as a result of personal choice but over a period of some seven years, or some greater proportion of seven years, he continued to abuse it." (AB 19)

37 She found special circumstances pursuant to s 44 of the Sentencing Procedure Act justifying departure from the statutory proportions between non-parole period and the head sentence and reduced what would otherwise have been a non-parole period of 3 years and 4 months (based on the head sentence) to 2 years and 9 months: approximately 61% of the head sentence.

38 She concluded her remarks by expressing the view that the non-parole period was "the least possible custodial component in this case given the objective seriousness".

The grounds of appeal

39 The grounds of appeal are formulated as follows:

"1. The learned sentencing judge erred in failing to take into account the mental state of the applicant as relevant to an assessment of the objective seriousness of the offence.

2. The learned sentencing judge erred in failing to take into account as a subjective factor that the applicant's addiction to prescription medication was not a matter of 'personal choice'.

3. In the circumstances of this case, the sentence was manifestly excessive."

Ground 1: mental 'state'

40 Although s 21A of the Sentencing Procedure Act provides an extensive catalogue of features, both aggravating (s 21A(2)) and mitigating (s 21A(3)), a psychiatric condition "or mental disorder" does not feature as a mitigating factor. However, in subs (1) it is provided that that catalogue is in addition to any other matters that are required or permitted to be taken into account by the court under any "rule of law".

41 There is a long history of cases in which it has been held that the mental illness or disability for an offender may be a significant factor in sentencing. I discussed some of these in R v Fahda [1999] NSWCCA 267. I do not propose to restate what I there said. I did not then refer to the decision of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, which had been delivered three months earlier. There, Wood CJ at CL stated the general principle as:

"253. ... Whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise."

In this paragraph, Wood CJ at CL was adopting a statement of Badgery-Parker J in R v Letteri , unreported, NSWCCA, 18 March 1993, which had, in turn, been adopted by Gleeson CJ in R v Engert (1995) 84 A Crim R 67.

42 Wood CJ at CL went on to explain why this is so. His Honour said:

"254. The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend on any element of choice".

43 Subsequently, Spigelman CJ also considered the principles, in R v Israil [2002] NSWCCA 255. His Honour said:

"21. The significance of mental illness of an offender in the sentencing exercised [sic] has long been accepted ...

...

23. To the extent that mental illness explains the offence ... then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law."

44 His Honour went on to quote the passage from Henry that I have extracted above, and then expressed his agreement with the observations of Malcolm CJ in R v Lauritsen [2000] WASCA 203; 114 A Crim R, as follows:

48. ... mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assess the level of danger the offender represents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of an imposition of a sentence which exceeds the seriousness of the offence."

45 Spigelman CJ went on to say:

"25. Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise, than it may other have because, as the Victorian Court of Appeal but it:

' ... specific deterrence may be more difficult to achieve and is often not worth pursuing as such.' [R v Tsiaras [1996] 1 VR 398, at 400].

26. Finally, a custodial sentence may weight more heavily on a mentally ill person and that may be a material consideration in determining the length of sentence to be served ..."

46 The principles have most recently been reaffirmed in R v De La Rosa [2010] NSWCCA 194 at 177.

47 The difficulty with reliance upon these decisions is that they predate the enactment of Pt 4 Div 1A of the Sentencing Procedure Act, which took effect from 1 February 2003, and, with respect to the offences to which it applied (of which the present is one) quite radically altered the sentencing process. In a Table to Division 1A are listed a number of offences for which a standard non-parole period is prescribed. Section 54A(2) (part of Division 1A) provides:

"54A(2) For the purposes of sentencing an offender, the standard non-parole represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division."

It is this provision that created the radical change to sentencing with respect to "Table" offences.

48 Essential to the sentencing process in respect of those offences (and those offences only - see R v Georgopolous [2010] NSWCCA 246 at [30] - [32]) is an assessment of where, in the range of objective gravity of offences of its kind, a particular offence under consideration falls: see R v Way [2004] NSWCCA 131; 60 NSWLR 168; R v Knight ; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 at [39]; R v McEvoy [2010] NSWCCA 110.

49 The enactment of Part 4 Div 1A prompted, for the first time, this Court to analyse with some particularity those facts and circumstances that are relevant to the assessment of objective gravity (as distinct from other relevant sentencing considerations): see [84] - [89]. One of these is mental illness: [86]. That is so whether the offence under consideration is or is not a "Table" offence.

50 That an offender's mental illness is relevant to the assessment of objective gravity does not exclude its use also as a relevant subjective circumstance. The principles stated in the pre-2003 cases remain valid in that respect. Since 2003, however, mental illness has, in respect of Table offences, an additional significance.

51 The solicitor who represented the applicant at sentencing appears to have been clearly aware of the principles. In her submissions she said:

" ... there are a number of ways that your Honour can use the evidence of his mental state at the time of the commission of the offence. Your Honour can use that to view the objective seriousness of his act. Your Honour can use that to consider his subjective circumstances as well.

Your Honour can, and there is plenty of case law to say that this man does not need to be used as a vehicle for general deterrence because of the state of his mental health at the time, before and at the time ...

...

And it is there that the Court of Criminal Appeal pronounces the relevance of mental illness in the three ways. The first, of course, it contributes to the commission of the offence in a material way; the offender's moral culpability may be reduced; there may not then be the same call for denunciation; and the punishment warranted may accordingly be reduced, and they refer to Henry as well ... may render he, the offender in this case, an inappropriate vehicle for general deterrence; and moderate that consideration; and a custodial sentence may weigh more heavily on him as a mentally ill person ...". (AB 116)

52 At this point it is appropriate to focus precisely upon what is complained of in ground 1, which has been formulated with some care. The complaint is not that the sentencing judge failed to take into account, in the determination of the sentence, the applicant's "mental state". That she clearly did, allowing "some limited modification of the requirement for general deterrence". The complaint is that she failed to take the applicant's mental state into account when making her assessment of the objective gravity of the offence, and that that omission resulted in an erroneous, and inflated, assessment of objective gravity. In my opinion, that is correct.

53 Indeed, although her Honour (correctly) said: "... this was very serious criminal behaviour", she made no explicit finding of where on the scale of objective gravity the offence fell. Nor, since this was not a "Table" offence, was she obliged to do so (see Georgopoulos , supra; R v Khoury [2011] NSWCCA 118 at [67] and following). Indeed, on the authority in Georgopoulos , it may have been an error had she done so.

54 But it does seem to me that it was erroneous to leave the applicant's mental state out of consideration in the assessment of objective gravity.

55 The error complained of in ground 1 is established. That, of course, does not conclude the application. It is also necessary, pursuant to s 6(3) of the Criminal Appeal Act 1912 that the applicant establish that some other sentence was warranted in law and should have been passed. I will return to this consideration.

Ground 2: drug addiction

56 The complaint made under this ground is that the sentencing judge did not take into account the circumstances of the applicant's drug addiction, in particular that she did not recognise that it came about other than by way of personal choice. Indeed, the passages I have cited indicate that her Honour rejected that proposition and considered that the applicant did act as he did from choice. This notion, too, stems from Henry : see [198], in the judgment of Spigelman CJ and [257] (per Wood CJ at CL).

57 Drug addiction does not equate with mental illness, at least where the drugs to which the offender is addicted are illicit drugs: Henry [255] - [259]. In her consideration of the applicant's drug addiction her Honour referred to R v SY [2003] NSWCCA 291, R v CJP [2004] NSWCCA 118 and Bichar v R [2006] NSWCCA 1, and on the basis of her reading of those cases, held that the applicant's addiction was not a mitigating feature. Her Honour quoted extensively from Henry , at [273], and it is worth reproducing those passages. In Henry , Wood CJ at CL stated the relevant principles as follows:

"(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence insofar as it may throw light on matters such as:

(i) the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (VSC Court of Appeal, 2 December 1998, unreported);

(ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c) it may also be relevant as a subjective circumstance, insofar as the origin or extent of the addiction, and any attempts to overcome it, might:

(i) impact upon the prospects of recidivism / rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R Talbot [(1992) 34 FCA 100]); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;

(iii) justify special consideration in the case of offenders judged to be at the 'crossroads': R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 294."

58 The principle stated at (c)(ii) is of particular present significance. The applicant's case fell squarely into that principle. It is a case precisely of the kind in the contemplation of Wood CJ at CL as an exception to the general principle that drug dependence does not operate as a mitigating factor.

59 Two of the other cases to which her Honour referred, and on which she based her conclusion that the applicant's drug addiction was not a relevant circumstance concern addiction to illicit drugs. The offender in SY had initially used heroin when a member of the Iranian Army; he ceased that use, but on migration to Australia he began to use cannabis and then heroin. Whealy J (as his Honour then was), with the concurrence of Ipp JA and Howie J, did not accept that what he described as "the unusual or rare circumstances under discussion" in principle (c)(ii) of [273] of Henry applied "other than in the most general way."

60 In Bichar the drug in question was also heroin. Howie J, with whom Basten JA and Hall J agreed, said:

"25. There was no evidence in the present case that paragraph (c)(ii) [of [273] of Henry ] applied or that in any other way that applicant's use of heroin was not a matter of personal choice notwithstanding that it might have helped him overcome the effects of his personal experiences or the results of the injury he suffered ... in any event self-medication by the use of prohibited drugs to overcome psychological or physical trauma is not a mitigating factor ... nor can it be said that the applicant did not make a choice to continue to use the drug rather than to remain in rehabilitation ... he had been given numerous opportunities and extensive support to overcome his addiction but had failed to take advantage of them." (internal references omitted)

61 In CJP the offender had been "abusing liquor as a form of self-medication for grief and depression".

62 In my opinion, the sentencing judge was in error in considering that the applicant's drug addiction had any parallels with the addictions in SY and Bichar . His addiction was to drugs that had been legitimately prescribed for very serious pain.

63 In these circumstances, I am also satisfied that the findings made by the sentencing judge that "at certain points [the applicant] must have had a choice" and that, over a period of seven years, he continued to abuse the prescribed drug, were unfair. The applicant had sought assistance and had taken what steps were available to him to overcome his addiction, which was not to prohibited drugs but to legal drugs prescribed to enable him to cope with a serious pain condition resulting from injury. There was no evidence that (except on the occasion when he had stolen the patches from the pharmacist, and had taken an overdose) he had "abused" the drug.

64 In my opinion this ground of the application ought to succeed.

Ground 3: manifestly excessive?

65 I am satisfied that, in the circumstances, the sentence imposed was manifestly excessive. I would grant leave to appeal, allow the appeal and re-sentence the applicant to a term of imprisonment of 3 years and 6 months, with a non-parole period of 1 year and 9 months.

66 The orders I propose are:

(i) leave to appeal granted;

(ii) appeal allowed, sentence imposed in the District Court quashed; and

(iii) the applicant be sentenced to imprisonment for 3 years and 6 months commencing on 15 March 2010 and expiring on 14 September 2013, with a non-parole period of 1 year and 9 months, expiring on 14 December 2011.

67 GARLING J: I agree with Simpson J.

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Decision last updated: 22 August 2011