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Court of Criminal Appeal 10 October 2006

Malcolm v R

[2006] NSWCCA 323

Assault & violenceTheft & property
CRIMINAL LAW CRIMINAL APPEAL SENTENCE APPEAL NO MANIFEST EXCESS IN SENTENCE

Citation: Malcolm v R [2006] NSWCCA 323
Court: NSW Court of Criminal Appeal
Date: 10 October 2006
Judge(s): Tobias JA, Howie J, Rothman J

Background

The applicant pleaded guilty in the District Court to aggravated robbery under s 95(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment. The offence involved the applicant leading two associates in stalking, threatening, and assaulting a victim outside Central railway station on a Saturday evening before stealing his mobile phone. The attack was entirely unprovoked.

The sentencing judge, Blackmore DCJ, imposed a total sentence of 3 years and 4 months: a non-parole period of 2 years commencing 22 January 2005, followed by a parole period of 1 year and 4 months. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

A psychologist's report before the sentencing court found that the applicant functioned at a low intellectual level. His verbal intelligence fell within the range of a mild intellectual disability, he had the reading ability of an 11-year-old, and his short-term memory performance fell below the first percentile. The report described him as a person with "severely compromised cognitive and psychological maturity."

  • Whether the sentence was manifestly excessive.
  • Whether the sentencing judge struck the correct balance between general deterrence and rehabilitation in circumstances where the offender suffers from an intellectual disability.

Decision

Rothman J, with whom Tobias JA and Howie J agreed, dismissed the appeal. The Court held that the sentence imposed was at the low end of the available range for an offence of this seriousness and disclosed no substantial identifiable error.

On the deterrence question, the Court affirmed the established principle that persons suffering from a mental disorder or intellectual disability should not ordinarily be used as an example to deter others, because such persons may not fully understand the gravity of their actions or the distinction between right and wrong. The applicant understood that his conduct was wrong, but could not fully appreciate why it was wrong. The Court noted that general deterrence accordingly carried reduced weight in his case.

The Court acknowledged that the sentencing judge had described the balance as favouring "general deterrence," which, taken literally, would be a questionable characterisation given the applicant's disability. However, the Court read the remarks on sentence as a whole and concluded that the judge was in substance referring to personal or specific deterrence, specifically the need to impress upon the applicant that such conduct is unacceptable and will be punished. Even if there was a technical error in that description, the Court found that no lesser sentence was warranted in law as a result, by operation of s 6(3) of the Criminal Appeal Act 1912 (NSW).

The Court also confirmed that an intellectual disability does not automatically produce a lesser sentence. The goals of sentencing remain the same across all offenders: protection of society, deterrence, retribution, and reform. What changes is the weight given to each consideration in light of the individual's particular circumstances.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An offender's intellectual disability reduces the weight to be given to general deterrence in sentencing, because persons with such a disability may not fully understand the gravity of their actions and are not an appropriate vehicle for making an example to others.
  • A finding of intellectual disability does not automatically result in a lesser sentence. The sentencing court must weigh all sentencing objectives, including protection of society, retribution, and specific deterrence, in light of the individual's particular circumstances.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that even where a sentencing judge mislabels a consideration (here, describing specific deterrence as "general deterrence"), no lesser sentence is warranted in law if the overall exercise of discretion discloses no substantial error, pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW).
  • The principles established in R v Veen (No. 2) (1988) 164 CLR 476 governing sentencing objectives remain applicable to offenders with mental disorders or intellectual disabilities, subject to appropriate adjustment in the weight accorded to each objective.
  • No manifest excess was established where the sentence sat at the low end of the available range for a violent, wholly unprovoked robbery.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 95(1) (aggravated robbery)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Engert (1995) 84 A Crim R 67
- R v Veen (No. 2) (1988) 164 CLR 476
- R v Wright (1997) 93 A Crim R 48