Citation: Regina v Clarke [2003] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 1 July 2003
Judge(s): Grove J; Shaw J
Background
The applicant had pleaded guilty in the Wollongong District Court to two counts of breaking, entering and stealing, with nine additional offences taken into account at sentencing. Those additional offences included further break-and-enter charges, and multiple counts of making and using false instruments, the latter arising from stolen cheque forms deposited into his mother's bank account. Bell DCJ sentenced the applicant to a principal term of three years imprisonment with a two-year non-parole period.
At the original sentencing, the court received a psychological report from Ms Katherine Barrier, who assessed the applicant using the Ravens Standard Progressive Matrices. Her testing placed his non-verbal cognitive functioning in the low average range, within the lowest twelve percent of the population. The sentencing judge expressly considered that report and also accepted submissions about the applicant's background, including childhood sexual abuse and social disadvantage linked to alcohol.
After sentence was imposed, the applicant obtained further expert reports from a psychiatrist and a psychologist, both of whom assessed his intellectual functioning as lower than Ms Barrier had found. He then sought leave to appeal against the severity of his sentence, relying on that fresh material as the sole ground of appeal.
Legal Issues
- Whether fresh psychiatric and psychological evidence obtained after sentencing should be admitted on appeal
- Whether the new expert material, if admitted, established that a lesser sentence was warranted in law
- Whether the sentencing judge's failure to explicitly address general deterrence in light of the applicant's intellectual disability constituted an error
Decision
Grove J assessed the fresh evidence against the foundation already laid at sentencing. The new reports placed the applicant at a lower point on the intellectual disability continuum than Ms Barrier had identified, with Professor Hayes assessing him as functioning below 98 percent of the population. However, the Court found the difference in degree was not significant enough to conclude that the original sentence was manifestly excessive or that the new material would alter the outcome.
Crucially, neither the psychiatrist's nor the psychologist's report identified any previously undisclosed link between the applicant's intellectual disability and the commission of his offences. The Court acknowledged the established principle that persons with intellectual disability may not serve as suitable vehicles for general deterrence, but concluded that the sentencing judge had not visibly applied general deterrence in any way that inflated the sentence. On the contrary, Grove J described the sentences as lenient, given the applicant's significant criminal history including prior terms of full-time imprisonment.
Grove J confirmed that new evidence may be admitted on a sentence appeal where it has real significance to the sentencing proceedings, particularly where its significance was unknown at the time of sentencing. However, in this case the Court found it unnecessary to formally resolve the admissibility question. Whether the fresh material was admitted or rejected, it would not move the Court to intervene and impose a lesser sentence.
Shaw J agreed, adding that the case relied upon by the applicant, R v Chambers, was distinguishable. That decision turned on a procedural injustice at first instance, where the sentencing judge had refused an adjournment to obtain medical evidence. No such procedural defect was present here, and the Court had in any event examined the new material on its merits.
Orders Made
- Leave to appeal refused
Key Takeaways
- Fresh expert evidence obtained after sentence may be received on appeal where it has real significance to the sentencing proceedings and its significance was not known at the time of sentencing, following R v Goodwin (1990) 51 A Crim R 328.
- A post-sentence report showing a lower degree of intellectual disability does not automatically warrant resentencing; the court must assess whether the new material would, in practical terms, produce a different outcome.
- Where new expert evidence does not disclose any previously unknown link between an offender's intellectual disability and the offending conduct, its weight in undermining an existing sentence is diminished.
- In dismissing the appeal, the Court treated the absence of any explicit reference to general deterrence in the sentencing remarks, combined with the overall leniency of the sentence, as strong indicators that general deterrence had not contributed to the imprisonment term.
- R v Chambers (1992) 64 A Crim R 224, which involved intellectual disability as a sentencing consideration, was distinguished on the basis that it arose from a procedural injustice at first instance rather than from new substantive material produced after sentence.
Legislation and Cases Referenced
Cases Cited:
- R v Chambers (1992) 64 A Crim R 224
- R v Goodwin (1990) 51 A Crim R 328
- R v Letteri, unreported, CCA, 18 March 1992
- R v Scognamiglio (1991) 56 A Crim R 81
Legislation: No specific legislation was cited in the judgment.