Published by Geoff Harrison | 25 July 2024
In S v R; DM v R, the plurality discussed the principles relating to assessing objective seriousness and the overlap between objective seriousness and moral culpability (see [63]—[96]). The following paragraphs [63] and [96] demonstrate that an offender's mental impairment can inform or impact both the objective seriousness of an offence and the offender's moral culpability.
In Paterson v R [2021] NSWCCA 273 (“Paterson”), Beech-Jones CJ at CL stated as follows (at [29] to [31]):
“.... it is necessary to address how the sentencing judge addressed the submissions of the parties concerning two separate but related concepts of importance to sentencing, namely the “objective seriousness” of an offence and the “moral culpability” of the offender. As its name implies, the former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender’s moral blameworthiness for an offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than the former (see: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 [(“Muldrock”)] at [27] and [54]; Bugmy at [44]; Veen v The Queen (No 2) (1987-1988) 164 CLR 465; [1988] HCA 14 [“Veen (No 2)”]; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 [(“Munda”)] at [57]; Zreika v R [2021] NSWCCA 243 [(“Zreika”)] at [55]).
In Tepania v R [(2018) 275 A Crim R 233; [2018] NSWCCA 247 (“Tepania”)], Johnson J described the matters that can bear upon an assessment of objective seriousness as follows [at [112]]:
‘In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]- [172] (Callinan J).’
An assessment of an offender’s moral culpability includes both a consideration of the objective seriousness of their offence but also extends to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the full wrongfulness of their actions or control their conduct. Commonly, this includes intellectual impairments and mental illness (Muldrock at [54]) as well as a background of social deprivation (Bugmy at [44]) including being raised in an environment where the abuse of alcohol was common (Munda at [57]; Craft v R [2021] NSWCCA 131 at [42]).” (emphasis in original)
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It follows that an offender’s mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment “may” affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is “a” causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstances that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premeditated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing so. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence.
Other Sources:
Cases:
S v R; DM v R [2022] NSWCCA 156 (see [63] - [96].
TM v R [2023] NSWCCA 185 (See [55] moral culpability).
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 (see [177]).
Muldrock v The Queen [2011] HCA 39 (see [27] and [54]).
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