SUPREME COURT OF QUEENSLAND

[1]  HOLMES JA: I agree with the reasons of Mackenzie AJA and the order he proposes.

[2]  MUIR JA: I agree with the reasons of Mackenzie AJA and with the order he proposes.

[3]  MACKENZIE AJA: On 19 October 2006 the applicant was sentenced to 10 and a half years imprisonment for grievous bodily harm with intent to do grievous bodily harm, for which the maximum sentence is life.  He had originally been charged with attempted murder but his plea was accepted in full satisfaction of the indictment.  The application for leave to appeal against sentence was not filed until 19 December 2007.  It is therefore about 13 months out of time and an extension of time is required.  The length of delay is one factor that needs to be addressed in such cases (R v Tait (1999) 2 Qd R 667 at 668).

Extension of Time

[4] The applicant states in his application for an extension of time that the grounds of his application are that he has cerebral palsy and had not been able to act on his own in bringing an appeal against the severity of his sentence.  He invited attention to an affidavit by his father, sworn on 6 December 2007.  The applicant’s father refers to emotional and financial stress suffered by him and his wife arising from the applicant’s situation.  Payment for the defence was not finalised until June 2007.  He frankly deposes that the applicant’s legal team had considered the result a good one.  He says that, while he reluctantly accepted the sentence, he was relieved over the verdict and did not put his mind to appealing against the perceived severity of the sentence immediately.  He also had a belief that accepting the applicant’s fate was necessary to help the family cope emotionally and he immersed himself in his business to help in that regard.  He sought legal advice from a different firm of solicitors in mid-November 2007 which led to the application for leave to extend time being made. 

[5] Lengthy delay is not necessarily fatal.  The current test is whether, overall, it is in the interests of justice to grant an extension.  If it is possible to assess whether or not the proposed appeal is viable, such assessment will ordinarily be a factor taken into account (Tait, 668).  The present matter is quite complex because of the nature of the information before the sentencing judge.  Accordingly, since the submissions necessarily canvassed all issues likely to influence the outcome of an appeal, the hearing was conducted, by agreement, on the basis that it was convenient to hear full argument and resolve both the application for an extension of time and the application for leave to appeal together.

Issues if Leave Granted

[6] The applicant’s argument that the sentence was manifestly excessive was focused on three issues.  The first was that the sentence was manifestly excessive by comparison with the sentence imposed on Schipper in R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94.

[7] The second was that the applicant was suffering from a psychological condition that was inadequately taken into account at the time the offence occurred.  The coincidence of the applicant espousing an odd idea of doing harm to his flat mate for no apparent reason to a principal offender who was receptive to the idea of doing harm to him led to the tragic consequences.  Thirdly, the applicant’s disabilities due to cerebral palsy, which meant that he would find prison more onerous than a person not suffering from a disability, had been inadequately allowed for. 

[8] While defence counsel at sentence (who was not counsel in this application) had suggested a nine to 11 year range, the range contended for before this Court on the applicant’s behalf was seven to eight and a half years imprisonment, with a final submission being made for eight years imprisonment.  The Crown Prosecutor had contended for 12 years imprisonment at sentence.  The Crown maintained that the sentence was not manifestly excessive before this Court. 

The Facts

[9] The complainant, who was aged 25 years at the time of the incident, is afflicted with cerebral palsy to such an extent that he was confined to a wheelchair and needed assistance to do day to day domestic and personal tasks.  However, he was capable of living a fulfilling life. He went out in his wheelchair.  He was a volunteer at the Royal Children’s Hospital, presenting on the internal entertainment network and engaging in other activities of a charitable kind there.  He had taken flying lessons.  As a result of the offence he can no longer engage in these activities. His voice remains affected and he suffers residual pain from the wounds. He has become wary of people and no longer goes out on his own.

[10] The applicant, who was 19 at the time of the offence, is also afflicted with cerebral palsy, but to a lesser degree than the complainant. His condition was said to be non-progressive. He does, however, have significant deficits. According to a neurologist’s report by Dr Reid, his left arm has fixed spastic posturing and he walks with a walking stick because of his unsteady diplegic gait.  His right arm has significant function, although not completely normal. Dr Reid thought he was of normal intellect.

[11] The complainant and the applicant had met a few months before the offence and developed a friendship.  A month or two before the incident the applicant had moved into the complainant’s unit.  During the period when they were both living in the unit, there were minor disagreements but none of a kind that can give any insight into what happened in the days before and on the day of the offence. 

[12] The applicant had a friend named T who had attended the same school as him. (T was 17 at the time of the offence. He pleaded guilty to attempted murder and was sentenced to 18 years imprisonment. His appeal against that sentence was unsuccessful). T had been introduced to the complainant about a month prior to the offence.  About a week prior to the attack, the applicant had a conversation with T in which he told him that the complainant was frustrating him.  T asked:

“Do you want me to take care of him?” 

The applicant replied:

“Yeah.”

He told T that he wanted the complainant to be hurt any way he could do it.  He envisaged that serious life threatening injury could be inflicted on the complainant by T.

[13] On the day of the offence, 12 May 2004, he met T at Inala.  T told him:

“I’m going to deal with (the complainant) this evening.” 

The applicant said:

“Okay.” 

They then set off together to go to the applicant’s unit.  He said it was his idea that T should go there with him. He knew that T was going there to seriously hurt the complainant. He knew that T was armed with a knife. Since it was common ground that the applicant and T had been sentenced on different versions of events, it is convenient at this point to record that T’s version of the facts included an allegation by him that the applicant had given him the knife. However, the Crown’s position on the applicant’s sentence, in answer to a direct question by the sentencing judge, was stated to be that it did not know where the knife had come from. The sentencing judge sentenced, correctly, only on the basis that the applicant knew that T was armed with a knife.  The complainant had gone out and when they arrived at the unit he was not there.  The applicant telephoned him at around 2.00 to 2.30 pm and asked him when he was coming home.  He told the complainant that he was with T.  The complainant later called a taxi and arrived home about 4.30 pm. 

[14] When he arrived home he found the applicant and T inside.  After the taxi driver had brought some boxes of food up to the unit, the complainant went into his bedroom to use his computer.  Shortly afterwards, the applicant and T came into his room and told him that they were going to buy some alcohol.  About 10 minutes later, the complainant heard the door of the unit open and saw T.

[15] T then came into the bedroom and asked the complainant if he wanted anything before he went home.  After obtaining a device that the complainant used to open the door for him, T left the room.  The complainant heard the sound of the front door opening and assumed it was T leaving.  The next thing he noticed was the sound of someone running into his room.  He saw it was T.  The complainant saw a hand come across his face and pull his head backwards.  He felt something go across his neck from left to right and heard, as he described it, a noise in his neck like a breathing noise.  He then saw blood spraying from his neck. 

[16] What had happened was that T had cut his throat from ear to ear.  T let him go and after walking towards the bedroom, turned around and stabbed him three times in the back.  Then he ran from the premises and met the applicant who was waiting for him on a nearby railway station platform.  Their presence together was captured on a surveillance camera at the station.  After that meeting there, they both left the area.

[17] The complainant managed to dial 000 from his unit.  However, because of his throat injuries he could not speak.  He then went in his wheelchair out of the unit, where a neighbour saw him and called for assistance.  The complainant lost a copious amount of blood and was taken, in a bad condition, to hospital where it was found that the wound to his throat was 15 cm across.  The knife that had inflicted the wound had cut through the skin, the subcutaneous tissues including the muscle and cartilage, and the trachea.  The vocal chords had been partly severed and the right external jugular vein had been divided but fortunately the carotid artery had not been severed. He spent almost four weeks in hospital recuperating.

[18] The applicant returned to the unit about 8.40 pm.  By that stage the police were there.  He asked the police what was going on and was told about the attack on the complainant.  He gave a statement that included an account of going to Inala where he had met two friends, one called Peter and the other T.  He said that he and T had decided to come back to the unit to say hello to the complainant.  When they got there the complainant was not there and he rang him on his mobile phone asking where he was.  They waited for the complainant to arrive home.  He said that T had stayed for about 10 minutes after the complainant came home and had then left.  He said that he stayed home for a few more minutes and then left, telling the complainant that he was going to the city.  He said that he had gone to the railway station.  He said that T was not there.  He caught a train into town and returned a little after 8.00 pm.  That was plainly an account with false elements, having regard to the railway surveillance footage. 

[19] The police were advised by the complainant that T was his attacker.  On 17 May 2004, the police executed a search warrant at the applicant’s house and he agreed to be interviewed.  In the initial part of the interview he maintained that he had no connection with the attack and that he had not seen T after T had left the unit.  When he was then confronted with the prospect of viewing the video surveillance footage from the railway station and a video statement from the complainant, he then told the investigating officer that he did not wish to be further interviewed.  He was then arrested and, as he was about to be taken to the City Watchhouse, he said to the investigating officer:

“All this evidence you’ve got on me, I might as well plead guilty.”

[20] He declined to be further interviewed. On 21 July 2004, after he was released on bail, he telephoned 000 and told the operator that he wanted someone to come and arrest him before he breached bail or did something stupid.  He admitted that he was responsible for the attack on the complainant.  That call was recorded.  Later he was interviewed again by the police.  In that interview he said that he was fully aware of the incident and took responsibility for it.  He gave the account previously mentioned about his conversations with T expressing his desire to have the complainant seriously hurt. 

[21] Reports placed before the sentencing judge included information that for a period prior to the offence, possibly commencing in about 2002, the applicant had told a variety of people extravagant lies, of such a kind that those to whom he told them did not take them seriously. They included that he had been asked to act as an undercover agent for the police, and that he had extensive connections to various criminal organisations.  After the offence, he was seen by two psychiatrists, Dr Fama and Dr Kingswell.  Both concluded that he was of normal intellect.

[22] Dr Kingswell, who saw him several times, expressed the view that the untrue stories arose from the applicant’s difficulty with self image and the need to enhance that image in the eyes of others. As he put it in another report, he was doing so to bolster his sense of self importance. He noted a condition called pseudologia fantastica which, he observed, was little discussed and was not a diagnosis but a symptom seen in a number of conditions, most commonly severe personality disorder and the so-called dissociative disorders.  However, the applicant displayed no clinical features of mental illness such as schizophrenia or bipolar mood disorder.

[23] Dr Kingswell observed that the offending was clearly very odd and without any rational motive. But he was of the view that psychiatry could not bring any special understanding to the offence greater than that available to the lay public.  In his last report in mid-October 2006, he said that the oddness of personality apparently arose from the intersection of his intellect, temperament and physical disability with his life experiences of family, others and environment. In his view, it was more likely than not that he would be odd throughout life and would remain needy of reassurance regarding his self-image. However, as he matured, it was likely that his extravagant lying would diminish over time.

[24] Dr Fama reported that the applicant had, when he saw him on 26 September 2006, no clinical features to suggest mental illness. Nor were there any such indications in the videotaped interviews with the police. His intelligence was within average range. Dr Fama said that the strange behaviour described in 2003 and early 2004 meant that the degree of disturbance went beyond mere fantasising and included apparent dissociative and fugue states. However, while such behaviour could have been consistent with a pre-psychotic state, no signs of schizophrenia emerged, and, in the controlled environment of prison, his mental health had improved. He said, concluding that part of his report, that there was no ready explanation for the applicant’s peculiar actions in simple family conflict or in his neurological disorder. All that could be said on the information available was that it represented a neurotic regressive disorder of uncertain origin. He said that there was no current diagnosis according to the ICD-10 classificatory and diagnostic manual, but the extravagant and untruthful storytelling was consistent with pseudologia fantastica, a rare condition not listed in the manual and little discussed in texts, the basis of which was assumedly a poor self-esteem with perhaps jealousy of others’ achievements.

[25] Although he referred to the applicant’s degree of disturbance, as documented by his parents as having gone beyond mere fantasising and including “apparently brief dissociative and fugue states”, he observed that there were no indicators in the videotaped police interviews that he may have suffered from psychotic or significant depressive illness. The conversations were coherent, though at times containing unusual content about his fantasies. In the final part of his report, he said there was nothing to suggest that the applicant would have been unable to understand the consequences of his suggestions or instructions to T. There was a submission that that opinion was given in the context of T’s version of events of the nature of the applicant’s involvement, not relied on by the Crown. It does not seem to me to be limited in that way on a proper reading of the report.

[26] There was other evidence that the applicant had been treated for depression, but it is not suggested that that condition, as such, played any part in the offence.

R v Bird and Schipper

[27] In support of the submission that the sentence was manifestly excessive, the applicant relies on R v Bird and Schipper (2000) 110 A Crim R 394; [2000] QCA 94.  The focus of the submission is the sentence imposed on Schipper, since she pleaded guilty to grievous bodily harm with intent to cause grievous bodily harm; Bird had pleaded guilty to attempted murder and was sentenced to 20 years imprisonment, reduced on appeal to 16 years.  Schipper was initially sentenced to 11 years imprisonment which was reduced to nine years on appeal. 

[28] The offences occurred during a robbery which they had earlier agreed to commit in Noosa National Park.  In the lead-up to their respective offences, they taunted the vulnerable victim for some time and revelled in the knowledge that she was frightened of them.  Bird committed the initial attack, during the course of which she slashed the victim’s throat and inflicted several other knife wounds to her body and face.  After that, Schipper joined in and hit the victim about 20 times with nunchakus. 

[29] It was submitted that, like the present case, that case contained elements of youth, lack of prior convictions, prior good character, co-operation with authorities and an early plea of guilty.  It was also submitted that the nature of the attack upon the vulnerable victim in that case was comparable to the present case.  However, it was submitted that other factors led to the conclusion that the applicant’s sentence ought to be less than that imposed upon Schipper.  They were:

(a) That Schipper was an active participant in the attack;

(b) That there was no evidence of any psychological disturbance in respect to Schipper. Schipper was involved in Satanism which demonstrated itself in anti-social beliefs, which explained her involvement in the offence and was relevant when considering protection of the public;

(c) That Schipper did not suffer from a debilitating physical condition which would make her stay in prison more onerous and have the potential to be detrimental to her health; and

(d) That there was not, in the case of Schipper, a tangible expression of remorse comparable to a letter addressed to the sentencing judge and tendered on the applicant’s behalf at sentence.

It was submitted by the applicant that on the basis of Schipper’s sentence, a sentence of eight years imprisonment without a serious violent offence declaration was appropriate. 

[30] The Crown submitted that the involvement and criminality of the applicant could not be regarded as less serious than Schipper’s.  Although he had no direct involvement in the physical commission of the offence, he was the instigator of it and had the power to stop or call it off at any stage.  He used an accomplice two years younger than he was, who was regarded as less intelligent during his sentencing proceedings.  The attack was apparently motiveless and it was an attack on a man whom the applicant knew was physically vulnerable and defenceless.  The offence involved a deliberate intention to inflict serious bodily injury.  It involved a degree of planning and was carried out by taking advantage of some degree of trust between the applicant and the complainant.  It had a devastating impact, previously referred to, on the quality of life of the complainant who despite his physical disabilities had been engaging in activities of value to the community. 

[31] The Crown submitted that the degree of planning, the attack on a complainant whom the offenders knew to be defenceless and the impact on the quality of the complainant’s lifestyle were matters that made the case worse than Schipper’s. 

[32] As was pointed out in argument by a member of the court, in Bird and Schipper the only fully reasoned judgment that expressly concluded that nine years imprisonment was objectively appropriate was the President’s.  While Pincus JA expressed “general agreement” with the President’s reasons and agreed in the orders, his primary focus was that Schipper’s sentence:

“...must be reduced for the reason that, apart from any other consideration, it is necessary to preserve relativity with Bird’s.” 

[33] Thomas JA dissented, concluding that despite the youth of the offenders, the sentences were not manifestly excessive.  Thomas JA also observed (at [47]) that there are occasional cases where the conduct of the criminal is such that comparison with other decisions is virtually impossible, with the result that attempts at reconciliation are likely to lead to error or to an inappropriate result. 

[34] While the outcome in Schipper’s case is instructive, there are substantial differences between her case and the applicant’s. Further, the intrusion of the relativity issue in the way in which it occurred in Pincus JA’s judgment raises some possible ambiguity about its utility.  The issue of parity is not directly relevant to the present case because T was sentenced on the basis of his version of facts which included his version of the applicant’s degree of involvement.  It was common ground in the Trial Division and before this Court that the applicant was sentenced on a different factual basis from T. But he was, on any view of it, the person who engineered the commission of the offence; Schipper was, at worst, an equal participant in her crime.

[35] In the present case, the suggestion that T inflict serious injuries on the complainant had been asserted by the applicant a week before the offence occurred.  When T said that he intended to proceed with the offence, the applicant not only did not attempt to stop him, but took him to the complainant’s residence.  When it was found that he was not there, the applicant took steps designed to ensure that he was coming home so that the attack on him might be carried out.  That is in my view a significant factor in assessing the seriousness of the offence.  While the applicant did not actually commit any violent act on the complainant, he used his position as a person the victim trusted in ensuring that the opportunity for the attack on him to occur was created.  In addition, he knew that the victim was wholly incapable of defending himself against the planned attack because of his considerable physical disabilities, and, as his plea of guilty shows, intended that he suffer grievous bodily harm.

The Sentencing Remarks

[36] The sentencing judge gave an extended and carefully reasoned explanation for imposing the sentence of 10 and a half years.  She observed that one of the impacts of the applicant’s cerebral palsy was that it might provide some explanation as to the psychological problems from which the applicant suffered which led him to engage in the “particularly horrific crime”.  She made factual findings about his background, in the first paragraph; and elsewhere in her reasons she showed she was not unmindful that his family was undergoing its own ordeal. She summarised accurately the effect of Dr Kingswell’s evidence in the second and third paragraphs of the following passage:

“What can be said about your background?  You have loving and supportive parents, you have two older brothers, you come from a good family who have endeavoured to support you throughout your life; but no young man likes to need support and it seems that as you moved from your childhood to your adolescence you became more psychologically disturbed, no doubt partly as a result of having to cope with the physical disability from which you suffered and the way other people treated you because of it.

In order to bolster your own self esteem, which must have ebbed as a result of what you had to cope with, you resorted to telling fantastic lies about your involvement with the Mafia or the police, all of which, of course, were quite untrue, and the best diagnosis seems to be that you suffered from a personality disorder not otherwise specified which is referred to in DSM4 TR301.9.

Dr Kingswell said in his report done in October this year that this personality disorder, which he refers to in this paragraph as ‘the oddity of personality’, apparently arises for the intersection of your intellect, temperament and physical disability with your life experiences of family, others and environment.  Your personality is likely to remain and that you will need reassurance regarding your self image.  However, as he says, everyone matures, and it is likely that your personality difficulties may diminish with time.”

[37] She said that Dr Fama’s evidence supported that view.  In that connection she noted the ongoing support given to the appellant by his family, the favourable references, and reports of prison chaplains attesting to the contrast between the violence of the crime and the applicant’s mild mannered, non-violent and insightful conduct in the corrective system.  She also referred his letter to the court expressing his remorse for what had happened to the complainant. 

[38] Prior to these passages in her sentencing reasons, she had discussed in detail the manner in which the crime was conceived and carried out and “the devastating effect” it had had on the complainant and his family.  She referred to the complainant being robbed of the fulfilling independent pre-attack life he had, despite his serious disabilities, by the physical and psychological impact of what had been done to him.  She also referred to the consequence that the complainant’s mother had had to sacrifice her lifestyle to supply the assistance the complainant now required.  She concluded this part of her analysis by saying that it was hard to imagine a more serious example of doing grievous bodily harm with intent to do grievous bodily harm.

[39] She then referred to personal factors in the applicant’s favour.  He was young without previous convictions; he had pleaded guilty which, in addition to assisting in the administration of justice, was, in this case, an indication of remorse and an understanding of the terrible impact of the offence on the complainant; and he had saved the complainant, who was unable to attend the sentencing proceedings because of how much affected he had been by the offences, the additional ordeal of having to give evidence.  She also referred to the applicant undertaking a tertiary preparation course while on remand.

[40] She then said it was certainly true that the applicant’s cerebral palsy would make imprisonment more difficult for him than for the average young prisoner who did not suffer from any physical disability or mobility impairments.  The specific difficulties had been referred to in submissions and in the report of Dr Reid.  She said that the applicant’s very severe physical impairment would affect all activities of his daily living.  The importance of his mobility being maintained in prison to avoid functional decline and increased risk of falling and injuring himself was reflected in the sentencing judge’s remarks. 

[41] The other main issues regarding the impact of the cerebral palsy referred to by Dr Reid were that, while the condition was non-progressive, he was very likely to display functional decline with the ageing process at a more rapid rate than a normal person.  His major clinical needs centred around ensuring maintenance of function and, in particular, mobility and that, ideally, he should have a supervised regular maintenance program while in prison.  The applicant had reported to her that he had difficulty in walking up stairs and that he tried to walk every day to avoid becoming stiff.  He tended to walk inside the centre because he found it difficult to walk outside because it was very crowded and he was unable to walk comfortably on grass and uneven surfaces.  He also said he was unable to participate in an ordinary prison routine at meal times because of the difficulty of holding a plate and walking stick at the same time.  As a result he was given pre-packed meals which required use of one utensil only to eat.  Being physically disabled, he also suffered some minor physical and verbal harassment from some prisoners.  This caused him to prefer to spend time in his own room rather than socialise, which caused a degree of isolation. 

[42] The framework of the sentencing judge’s reasons for imposing what was undoubtedly a lengthy sentence involved her expressing herself as follows, commencing with the words of the complainant’s father:

“...he has said words that almost anyone could echo, ‘I remain perplexed that anyone could attack a severely disabled young man and inflict such serious injuries on him.’  It might be added, ‘For what?’  For nothing, for no reason.

It is hard to imagine a more serious example of this crime of doing grievous bodily harm with intent to do grievous bodily harm.”

[43] Later she counterbalanced the fact that the applicant’s cerebral palsy, firstly, might provide some explanation as to the psychological problems from which he suffered which led him to engage in a “particularly horrific crime” and, secondly, would make imprisonment more difficult for him by saying:

“But you were, essentially, the instigator of this crime, and you could have stopped it happening at any time before that attack...commenced.

And you well knew how vulnerable (the complainant) was.  He regarded you as a friend.”

[44] After referring to the psychiatric and neurological evidence (summarised in paragraphs [20] to [22] and [38] and [39] above) and the material tendered in mitigation, and saying that she had referred to authorities including R v Bird and Schipper, she concluded with the following remarks:

“The sentence has to reflect the shocking nature of the crime, your role in it, and the very serious impact on the victim.  It also has to reflect all the mitigating factors in your favour – your plea of guilty, your remorse, your personal circumstances, your complete lack of a criminal history, and your youth.

No sentence imposed by this Court could ever compensate the victim for which he has lost.

I am satisfied that the appropriate range within which to sentence in this case, taking into account all the factors, is between 10 and 11 years imprisonment, and I impose upon you 10 years and 6 months imprisonment.”

[45] She added that, although that level of sentence brought with it an automatic declaration that it was a serious violent offence, irrespective of that it ought to be characterised as such an offence.  This reflected a submission, somewhat faintly made below but also raised here, that if the discretion whether to make a declaration or not had to be exercised, it should not be exercised against the applicant. R v Mitchell [2006] QCA 240 was referred to in support of this submission.

Conclusions

[46] The psychiatric, psychological or emotional state of an offender may influence the sentencing process.  What influence it has in an individual case will depend very much on all of the circumstances.  Although what Brennan J said in Channon v R (1978) 33 FLR 433 at 436-7 was said in a different factual context from that arising in this case, the passage illustrates the potential complexity that can be found in some instances, and also in assigning appropriate weight to competing considerations.  The passage is as follows:

“Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct.  The sentencing of an offender in cases of that kind is inevitably difficult.  The difficulty arises in part because the factors which affect the sentence give differing significance to an offender’s psychiatric abnormality.  An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period.  The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to another.  Although the court necessarily adopts a pragmatic approach, the judicial discretion is not at large, without guidance from principle.  That guidance is found in the basic purpose which is to be served by the exercise of the sentencing power.”

[47] In this case, there is no evidence of psychotic disorder or mental illness and the issue is not intractability.  At most there is some form of personality disorder which seems to have abated while in prison.  The offending was variously described as very odd and without any rational motive; of a kind to which psychiatry could not bring any special understanding greater than that available to the lay public; conduct arising from a difficulty with self image and the need to enhance that image in the eyes of others; a condition that is assumedly based on poor self esteem with perhaps jealousy of others’ achievements; and a neurotic regressive disorder of uncertain origin, fortunately of limited duration.  The issue is whether it is of the kind that reduced the moral culpability of the offender.  It must also be borne in mind that there was, in the report by Dr Fama, a statement that there was nothing to suggest that the applicant would not have been able to understand the consequences of the suggestions made to T.

[48] The question also has to be considered in light of the fact that a week elapsed between the first mention of the idea and its execution, the events of the day which displayed considerable deliberateness in the hours leading up to the offence and, after the event, his returning to the unit and giving an apparently rational exculpatory account to the police who were there.  During the hearing before this Court the question was raised whether there was any evidence of the extent to which the applicant’s condition bore on his decision to harm the complainant.  His counsel did not seek to do more than point to the fact that the applicant was given to “espousing weird ideas” to a wide variety of people.  When he did so to someone who was receptive to carrying out the suggested course of action, the fact that he facilitated its happening could only be accounted for by attributing it to the applicant’s psychological issue.  His position was concisely stated in the following way:

“...it was never suggested that this is in any way a defence, psychiatry (sic) or any way, but it is certainly a realistic explanation as to how this came about.”

[49] The approach taken by the sentencing judge is set out in paragraphs [40] to [43].  The combination of the absence of any clear psychological explanation of the offence and her characterisation of the offence as in the worst class of offences of doing grievous bodily harm with intent to do grievous bodily harm indicates that she proceeded on the basis that, in all the circumstances of the case, the evidence of the psychiatrists did not afford significant mitigation to the applicant.  On the evidence, that view was open to her and no reason to disturb her conclusion in that regard has been demonstrated.

[50] With regard to the influence of the applicant’s disability on the sentence, the sentencing judge’s remarks demonstrate that she fully recognised that imprisonment would be more onerous for him.  This was not disputed by the applicant’s counsel but the sufficiency of any allowance for it was questioned by him. 

[51] In R v Pope and A-G (Qld) [1996] QCA 318 the following was said:

“The existence of serious medical conditions are of course not necessarily an answer to the question of imprisonment, and not uncommonly the need for an adequate response calls for a custodial sentence notwithstanding.  It is recognised however that the ill-health of an offender is a factor tending to mitigate punishment when it appears that the imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on his health.”

[52] That is subject to some qualification.  For example, in R v Irlam; ex parte A-G (Qld) [2002] QCA 235, the principle that ill-health is a mitigating factor in circumstances where imprisonment will lead to additional burdens beyond those experienced by others is qualified by the observation that:

“That feature must not be allowed to overwhelm appropriate reflection of the grave nature of offences like these”. 

R v Guthrie [2002] QCA 509, which follows Irlam, also says:

“It must be relevant to the weight to be given to the ill-health of the offender that the offending was committed by the offender while suffering from the same conditions for which he seeks sympathetic treatment on the sentencing.”

[53]  R v B [2000] 11 A Crim R 302; [2000] QCA 2, is not of particular assistance although reference was made to it.  It falls into the second category mentioned in Pope rather than the first.  It also depends on issues peculiar to the case.  However, the lack of specific evidence as opposed to general evidence that the person’s condition would deteriorate as a result of being in prison was thought to have some relevance.  The sentencing judge’s reasons show that she was clearly apprised of the increased difficulties that would be faced by the applicant in prison.  The nature of the difficulties, actual and potential, have been referred to previously. With regard to this, the absence in the report of any evidence of deterioration in his functioning in the period of almost 2 and a half years on remand was noted during the course of argument. I am not persuaded that the sentencing judge misapplied the appropriate principles in relation to this issue. 

[54] The remaining question is whether the sentence of 10 and a half years imprisonment is, nonetheless, manifestly excessive, despite the fact that there is no identifiable error in principle in the sentencing process.  The Crown Prosecutor submitted that a sentence in the upper range of grievous bodily harm with intent to do grievous bodily harm was appropriate, with proper regard for the mitigating factors.  He specifically referred to the applicant’s cerebral palsy as one of them.  He submitted that the applicant’s criminality was higher than Schipper’s.  Taking everything into account, a sentence of 12 years imprisonment was the appropriate sentence. 

[55] Counsel for the applicant submitted to the sentencing judge that “taking the Crown’s logic” in regard to the comparison with Schipper’s case, a sentence of nine to 11 years was the appropriate range.  He said that the offence was to some extent unfathomable.  The only explanation lay in the sort of condition that had been identified by the psychiatrists and the applicant’s tendency towards making grandiose and clearly false statements.  The sentencing judge said that there appeared to be no psychiatrist who supported the view that the offence had its origin in a sense of empowerment by inflicting an injury on someone with a worse disability than he had.  The applicant’s counsel agreed.  Counsel suggested that his client was effectively operating in a fantasy world to some extent by making up stories to boost his own self-esteem, particularly in dealing with T.  He also advanced the theory that it was a combination of that characteristic of the applicant and T’s dysfunctional background that led to the offence. 

[56] Defence counsel submitted that nine to 11 years was the appropriate range after the terrible consequences for the complainant had been taken into account.  It was conceded that the offence was beyond the “run of the mill or normal types of cases” where sentences of up to eight years had been imposed.  He also submitted that the matter should not be viewed as a case where someone had acted in a cold-hearted, calculated way and had set out to get someone else to commit the offence.  He said the situation was more subtle because of the applicant’s psychiatric (sic) condition. 

[57] He submitted that the sentence should be at the bottom of the range that he proposed and that in those circumstances the exercise of the discretion whether to declare an offence to be a serious violent offence or not would have to be exercised.  Just before the conclusion of submissions on sentence, the sentencing judge said she was persuaded that the top of the range was 11 years and the bottom of the range nine or 10 years, and proceeded to impose 10 ½ years imprisonment.

[58] On the totality of the evidence, the case is one where a person who had a disabling physical affliction encouraged and facilitated the commission of a serious assault by an able bodied and willing person on a person who had the same kind of affliction as he did, but to a more disabling degree. The victim was his friend and flatmate, whom he knew was unable to resist. The only reason he gave for wanting him attacked was that he was frustrating him. After the initial discussion about committing the offence, a week elapsed before it was committed. There was therefore ample time to reflect on it and to call it off. The applicant admitted that, from the conception of the scheme, he foresaw that a life threatening injury could be inflicted by the person who was to carry out the attack.

[59] On the day, he knew the attacker had a knife. He took him to the unit. When they found the victim was not home, they waited for him. While they waited, the applicant phoned him to establish that he was coming home. When he returned, he was attacked from behind, his throat was cut, and then he was stabbed. He was left to fend for himself, which he did with remarkable resourcefulness. The attack has effectively destroyed the useful and fulfilling life he enjoyed despite his physical limitations.

[60] The sentencing judge seems to have proceeded, correctly in my view, on the basis that the psychiatric evidence does not provide a clear explanation entitling the applicant to a substantial discount of the thought processes involved in his crime. The only possible abnormality identifiable was a rare symptom of personality disorders in which a person seeks to build his self esteem and his image in the eyes of others by exaggerated lying about his associations and achievements. The psychiatric evidence does not suggest that, because of this condition, he was unable to understand the consequences of his conversations with the person who was prepared to do the violence. The pretence engaged in when he returned to the unit that night, that he had nothing to do with the crime, seems consistent with a conscious attempt to avoid known consequences.

[61] Weighing all the circumstances, I am not persuaded that the sentencing judge erred in considering the offence to be a very serious example of doing grievous bodily harm with intent, for which the maximum sentence is life imprisonment. The sentence is a lengthy one. However, I am not persuaded that, even allowing for the matters routinely taken into account as mitigating circumstances, and the applicant’s physical affliction, the sentence imposed is manifestly excessive. I would refuse the application for an extension of time within which to apply for leave to appeal against sentence.