R v Carey[2024] QCA 69

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Cooper J.
2. [2]
   DALTON JA:  I agree with the order proposed by Cooper J and with his reasons.
3. [3]
   COOPER J:  The applicant pleaded guilty on 19 April 2023 to burglary, by breaking, with property damage (count 1) and grievous bodily harm (count 2).  On 15 November 2023, he was sentenced to 18 months’ imprisonment on count 1 and to 3 years’ imprisonment on count 2, to be served concurrently.  His parole release date was fixed at 15 November 2024, after serving 12 months’ imprisonment.
4. [4]
   The applicant seeks leave to appeal against the sentence on the following grounds:

   1. the sentencing judge erred in finding the applicant’s post-traumatic stress disorder (PTSD) was of less significance in the sentencing discretion because of the violence inflicted by the applicant and that the offence was not an impulsive response to an act he mistakenly believed had been perpetrated on his partner by the complainant;
   2. the sentencing judge erred in failing to acknowledge that the applicant’s diagnosis of alcohol abuse disorder was a symptom of his PTSD, causally connected to the commission of the offence and relevant to any assessment of the applicant’s culpability and prospects for rehabilitation; and
   3. the imposition of 12 months’ actual custody was manifestly excessive because it gave insufficient weight to the applicant’s reduced culpability because of his PTSD and associated alcohol use disorder.

Circumstances of the offending

5. [5]
   The sentencing proceeded on an agreed statement of facts.  The applicant and the complainant were friends.  They met approximately 1 year before the offending which occurred on 29 November 2020.
6. [6]
   At around midday, the applicant invited the complainant to his home to watch a boxing match.  When the complainant arrived, the applicant and his partner were intoxicated.  The applicant attempted to purchase access to the fight on pay-per-view television but was unsuccessful and the complainant left.
7. [7]
   At around 10.00 pm, the complainant was alone in the caravan where he lived.  The door to the caravan, which was closed but unlocked, flew open.  The applicant entered the caravan and sat down on the bed.  He appeared angry and sweaty.  When the complainant turned to talk to him, the applicant used “martial arts moves” and hit the complainant in the head.  The applicant pinned the complainant to the ground and continued to hit him in the head, saying, “I told you not to ever touch my missus”.  The applicant was smiling throughout the attack.  The applicant felt the complainant’s neck for a pulse before he kicked the caravan door off and left.  The complainant passed out before he was able to call 000 at about 10.30 pm.
8. [8]
   The complainant was taken to hospital where the treating doctor noted extensive facial fractures and loose teeth, significant facial swelling, bruising and bleeding, and a laceration above the right eye.  A CT scan identified that the complainant had complex facial fractures.  He underwent surgery on 16 December 2020 which included internal fixation of the facial fractures using an arch bar, plates and screws which were left in-situ after the surgery.  Without that treatment, the complainant would have been left with permanent malunion or non-union of the fracture sites resulting in malocclusion, inability to chew adequately, reduced mouth opening, speech disturbances and a cosmetic deformity.
9. [9]
   As a consequence of the offending, the complainant suffered chronic headaches and an exacerbation of his pre-existing mental health conditions, particularly his PTSD.  He could no longer live in his caravan because of the impact of the offending.  This led to the complainant becoming homeless.
10. [10]
    The applicant made relevant statements about the offending.  The first statement, in a text message sent to the complainant the day after the attack, was to the effect that the complainant had put his hands on the applicant’s partner.  That should be understood as an explanation by the applicant for his conduct.  The second statement was made to Mr Roy, a mutual acquaintance of the applicant and complainant, about six weeks after the attack.  Mr Roy asked the applicant what he did to the complainant.  The applicant responded that he had fought with the complainant and used “aikido” – a form of martial arts.  The applicant said: “You should have seen it, it was great”.  He explained that the complainant had made the applicant’s partner feel uncomfortable earlier on the day of the offending by putting his hands on her shoulders.
11. [11]
    After the statement of facts was tendered, the sentencing hearing was adjourned when the sentencing judge identified a factual discrepancy between the applicant’s explanation of his offending conduct in the two statements just referred to and the explanation which he subsequently provided to Dr Kovacevic, the consulting psychiatrist who prepared a report tendered by counsel for the applicant.  The applicant had informed Dr Kovacevic that his partner told him the complainant had attempted to choke her with a towel in front of their children.  Ultimately, the sentence proceeded on the basis that, when the applicant attended the complainant’s caravan, he was acting under an honest and reasonable but mistaken belief^[1] that the complainant had assaulted his partner in front of their children.^[2]

The applicant’s antecedents

12. [12]
    The applicant was 33 years old at the time of the offence and 36 years old when he was sentenced.  He had no criminal history.  He completed school to grade 12, before joining the Australian Defence Force (ADF) as a 17-year-old in January 2005.  He was initially posted to Darwin as an infantryman before being deployed to Iraq for seven months in 2006 and 2007.
13. [13]
    Dr Kovacevic stated in his report that the applicant experienced several traumatic events while he was deployed in Iraq.  He spent a night sheltering in a mass grave and woke up with bones and children’s skulls around him.  He witnessed his friends and fellow soldiers being injured and killed.  One incident with a young Iraqi girl who approached him asking for food and water was particularly prominent in his mind.  A group of men turned up in a pickup truck and dragged her away.  He was prevented from intervening by his superiors and a couple of days later the girl was found dead.  It was obvious she had been raped and street dogs were feeding on her.  The applicant reported to Dr Kovacevic that he found it difficult to erase that image from his mind.
14. [14]
    The applicant self-discharged from the ADF in 2009 but re-enlisted in 2011 as a fitter and turner apprentice.  In 2016, he was diagnosed with PTSD.  In September 2017, he was medically discharged from the ADF.  In the context of his PTSD, the applicant also experienced chronic symptoms of depression and anxiety.  The applicant’s PTSD symptoms impacted his family life and eventually led to his wife leaving him on ANZAC Day in 2017.
15. [15]
    Following his diagnosis in 2016, the applicant was under the regular care of psychologists and psychiatrists coordinated and funded by the Department of Veterans’ Affairs.  At the time of Dr Kovacevic’s examination, he was taking 300 mg of an anti-depressant medication in addition to medicinal cannabis which had replaced his pain medications.  The applicant reported two in-patient psychiatric admissions at Caloundra Private Hospital.  The first occurred after his wife left.  The second, in 2019, followed a serious suicide attempt.
16. [16]
    Dr Kovacevic’s report recorded that the applicant started binge drinking shortly after he joined the ADF at the age of 17 and this binge drinking continued during his military service.  After he left the ADF, the applicant’s drinking escalated and, by his own account, he became alcohol dependent.  Dr Kovacevic also considered that the disinhibiting effects of alcohol likely contributed to the applicant’s inability to control his impulses and behaviour when he offended.
17. [17]
    Dr Kovacevic observed that, at the time he examined the applicant, his mental state was reasonably stable and he was making plans to reduce or eliminate his binge drinking.  In those circumstances, Dr Kovacevic described the risk of the applicant re-offending as being relatively low.
18. [18]
    The material tendered on the applicant’s behalf at the sentence hearing also included a letter from Dr Peter Clark, who took over his psychiatric care in September 2023.  That letter confirmed that the applicant’s previous treating psychiatrist had diagnosed him with PTSD, major depressive disorder and alcohol use disorder.  Dr Clark reported that the applicant had considerably decreased his alcohol intake since his first consultation and had been accepted for admission to Ramsay Clinic in Caloundra for detoxification, psychoeducation, review of his medication, and outpatient psychological therapy.

Sentencing remarks

19. [19]
    The sentencing judge set out the circumstances of the offending and then indicated that he would take the applicant’s guilty plea into account in the applicant’s favour.  Although the plea was made not long before a trial was to commence, it was the result of an agreement upon changes in the facts upon which the sentencing hearing proceeded and the sentencing judge considered that it reflected the applicant’s cooperation in the administration of justice.
20. [20]
    The sentencing judge then addressed the applicant’s antecedents, including his PTSD and the cause of that condition.  His Honour referred to the fact that the applicant was abusing drugs and alcohol at the time of the offending and observed that this contributed to his offending behaviour.  His Honour accepted that, to some extent, the applicant’s PTSD also contributed to his offending and then stated as follows:

“They are relevant matters and provide some explanation for what you did, but they are of less significance in the sentence exercise because of the violence that you inflicted and, in my view, the aspect that this is not simply an impulsive response to something that you perceived yourself, but rather a decision that you made to go around to this man’s home to enter it and to inflict significant violence upon him.”

21. [21]
    His Honour further accepted that the applicant’s mental health condition would mean that time in custody would be more difficult for the applicant than for others and stated that he took this matter into account.
22. [22]
    The aggravating features of the applicant’s offending were summarised in the sentencing remarks as follows:

    1. the offences were committed in the complainant’s home;
    2. the applicant inflicted considerable violence upon the complainant which resulted in serious injury;
    3. the effect of the injuries upon the complainant was significant; and
    4. there was an element of retribution in the applicant’s conduct which is to be discouraged because the courts cannot countenance people taking the law into their own hands.
23. [23]
    The mitigating factors were summarised as follows:

    1. the applicant had no criminal history;
    2. the applicant suffered from a serious mental illness developed in the course of military service;
    3. the applicant’s mental illness would mean that jail would be harder for the applicant than for other offenders; and
    4. although initially the applicant was seemed unrepentant for his conduct, he had acknowledged his crimes through his more recent cooperation and plea of guilty.
24. [24]
    The sentencing judge noted that the comparable cases to which he had been referred suggested that the starting point for the offences was a head sentence of imprisonment for four years.  His Honour reduced that notional sentence by a quarter, to three years, to reflect the mitigating factors in the applicant’s favour stating that, in doing so, he intended to reduce the overall period that the applicant might have to serve in actual custody.  His Honour did not accept the applicant’s submission that the sentence should be wholly suspended or that he should be granted immediate release on parole, stating that to structure the sentence in that way would not meet the need, at least, to properly denounce the applicant’s conduct.

Ground 1 – the significance of the applicant’s PTSD

25. [25]
    In arguing ground 1, the applicant does not dispute that a head sentence of imprisonment for four years was an appropriate starting point.  Further, the applicant accepts that the reduction of the head sentence by a quarter, and the corresponding release to parole after 12 months, demonstrates that the sentencing judge recognised both the relevance of the applicant’s PTSD and one aspect of the guiding principles which describe how impaired mental functioning can be relevant to sentencing: namely, that the applicant’s PTSD would mean that his time in custody would weigh more heavily on him.
26. [26]
    The guiding principles to which the applicant refers were laid down in R v Tsiaras^[3] and restated in a revised form in R v Verdins.^[4]  Those principles also recognise that a condition which impairs an offender’s mental functioning may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility.  This requires consideration of the extent to which the condition contributed to the offending conduct.^[5]  Where the condition is found to reduce the moral culpability of the offending conduct, denunciation is less likely to be a relevant sentencing objective.  The effect of the condition on the mental capacity of the offender at the time of the offending may also mean that general deterrence should be moderated or eliminated as a sentencing consideration.  That is because an offender who suffers from such a condition may be much less able than others not so afflicted to make sound judgments about their conduct.^[6]
27. [27]
    The applicant submits that the sentencing judge erred in concluding that the applicant’s psychiatric illness was of less significance in the sentencing exercise because of the violence that the applicant inflicted and the fact that this infliction of violence was not an impulsive response.  On the applicant’s argument, this error led to “a failure to give sufficient weight”^[7] to the guiding principles in R v Tsiaras and meant that the sentencing discretion miscarried because the sentencing judge “failed to sufficiently take into account the applicant’s significant mental health issues and their correlation with his offending, in circumstances where the applicant was not an appropriate vehicle for general deterrence or denunciation.”^[8]
28. [28]
    This Court has recently confirmed^[9] that a contention that a sentencing judge placed “insufficient weight” on a relevant sentencing consideration does not constitute an allegation of error in the exercise of discretion in the sense referred to in House v The King.^[10]  Where a sentencing judge takes a relevant consideration into account, the weight to be given to each consideration in the circumstances of the particular case is a matter for the sentencing judge in the exercise of the sentencing discretion.  As Fraser JA observed in R v Coutts:^[11]

“This Court has decided that, in a sentence appeal of this kind, a ground of appeal which contends that a sentencing judge placed insufficient weight upon a factor which the sentencing judge took into account does not justify the Court in setting aside the sentence.”

29. [29]
    That statement applies to ground 1 in this appeal.  It is clear from the statement which the applicant submits demonstrates error that the sentencing judge took the applicant’s PTSD into account in the exercise of the sentencing discretion.  The applicant’s submission that the sentencing judge failed to give sufficient weight to this factor does not justify the Court in setting aside the sentence.  However, such a submission may still form part of a contention that the sentence is manifestly excessive.^[12]
30. [30]
    In any event, the applicant has not established that the sentencing judge erred in the manner contended for in ground 1.
31. [31]
    None of the guiding principles, which the applicant contends the sentencing judge failed to sufficiently take into account, are stated as absolutes.  Those principles recognise the potential effect that a condition which impairs an offender’s mental functioning may have in a given case.  They direct attention to considerations that experience has shown commonly arise in such cases, but they do not create any presumption in favour of mitigation of a sentence.  The sentencing court must examine the relevant facts to determine whether, in the specific case, the mental condition has the consequence contended for.^[13]
32. [32]
    In arguing that his PTSD reduced his moral culpability, the applicant relies upon Dr Kovacevic’s opinion that because of his PTSD and mood disorder, he experienced difficulties controlling his impulses and anger, and that this likely influenced his behaviour at the time of the offending.^[14]
33. [33]
    Dr Kovacevic’s opinion was based on the applicant’s account of the alleged offending set out in the report.^[15]  On that account, the applicant’s partner told the applicant about the complainant’s attempt to choke her in front of the children before the complainant had left the applicant’s house.  Upon being informed of that, the applicant told the complainant to leave.  Having then gone to speak to the complainant at his caravan, the applicant asked the complainant about the incident with his partner.  The complainant then became aggressive and the altercation which led to the applicant injuring the complainant occurred.  The applicant described trying to push the complainant away because he wanted to avoid a fight.  It was in that context that the applicant described to Dr Kovacevic that he recalled “losing control” and striking the complainant in the face.  He expressed regret at having “lost control and retaliated aggressively”.
34. [34]
    That account differs substantially from the agreed statement of facts.  There was no reference in the statement of facts to the complainant having become aggressive, to the applicant having sought to avoid a fight by pushing the complainant away, or to the applicant having lost control in the heat of the altercation and having retaliated against the complainant’s aggression.
35. [35]
    The applicant’s account to Dr Kovacevic is difficult to reconcile with the agreed facts that, during his attack on the complainant, the applicant was smiling and said to the complainant: “I told you not to ever touch my missus”.^[16]
36. [36]
    On the agreed facts, it was open to the sentencing judge to conclude that the applicant’s offending behaviour was not an impulsive response to being informed about the complainant’s conduct towards his partner, but was instead the result of a decision which involved an element of retribution for that conduct.  Dr Kovacevic’s opinion, based as it was on the applicant’s account of the circumstances of the attack, did not compel a conclusion that the applicant’s PTSD contributed to the offending, in the sense of impairing the applicant’s ability to exercise appropriate judgment and fully appreciate the wrongfulness of his conduct, to the extent that it reduced the moral culpability of the offending behaviour.  While the sentencing judge recognised that the applicant’s PTSD contributed to some extent to his behaviour, the question raised by the guiding principles discussed above is the extent of that contribution and its impact on the assessment of the moral culpability of the applicant’s behaviour.
37. [37]
    Although the sentencing judge did not refer to the issue in express terms, the statement which the applicant contends shows error should be understood as expressing his Honour’s conclusion that the applicant’s PTSD did not reduce the moral culpability of his offending behaviour to such an extent that the relevance of denunciation or general deterrence as sentencing considerations was significantly reduced.  In Egan v The Queen,^[17] McCallum J (with whom Bathurst CJ and Bellew J agreed) observed that weighing the measure of an offender’s moral culpability for an offence is the essence of the sentencing task but often not explicitly so.  A failure to attach the label “moral culpability” to any specific finding or give it a precise value in reaching an appropriate sentence does not reveal error.
38. [38]
    In this case, the sentencing judge assessed the applicant’s moral culpability by reference to the role that his PTSD played in the offending but balanced the objective seriousness of the offences against that factor.  His Honour concluded that the features of the offending he identified (the violence which the applicant inflicted and the fact that the offending was not an impulsive reaction to something the applicant had perceived but the result of a decision on the applicant’s part to go to the complainant’s caravan to inflict violence upon him) weighed more heavily in the assessment of the applicant’s moral culpability than the applicant’s PTSD.  There was no error in that approach where, as already noted, the sentencing judge’s conclusion as to the character of the offences was open on the agreed facts.  Ground 1 has not been made out.

Ground 2 – the significance of the applicant’s alcohol abuse disorder

39. [39]
    The applicant submits this Court should infer that, in the assessment of his culpability and prospects of rehabilitation, the sentencing judge failed to take into account the impact of his alcohol abuse disorder as a symptom causally related to his PTSD and the commission of the offences.^[18]  That inference is said to arise because: the sentencing judge did not expressly advert to alcohol abuse disorder being a symptom of the applicant’s PTSD, that being relevant to the moral culpability of the offending behaviour; to the applicant’s steps to reduce or eliminate his binge drinking; or to Dr Kovacevic’s opinion that in the circumstances existing at the time of his examination of the applicant, including the applicant’s efforts to address his binge drinking, the risk that the applicant would reoffend was relatively low.
40. [40]
    The applicant relies on R v Rix^[19] as an example of a case where the sentencing discretion was found to have miscarried because the sentencing judge failed to identify the offender’s drunkenness at the time of offending as an emanation of alcohol abuse linked to undiagnosed PTSD, and made no reference to the relevance of the drunkenness to that offender’s culpability or the need for general or personal deterrence in that case.
41. [41]
    At the sentencing hearing in this case, the sentencing judge discussed the application of s 9(9A) of the Penalties and Sentences Act 1992, which provides that voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor in sentencing the offender.  Defence counsel who appeared at the sentencing hearing accepted that the provision applied in this case to preclude the sentencing judge from having regard to the applicant’s voluntary intoxication by alcohol as a mitigating factor.^[20]
42. [42]
    Cases such as Rix establish that s 9(9A) will not preclude a voluntarily drunk offender receiving mitigation of their sentence if the offending was not solely the consequence of the voluntary intoxication because of a causal connection between the intoxication and an underlying mental disorder.  However, the causal connection must be established by evidence.^[21]
43. [43]
    In Rix, there was medical evidence that established that the offender’s alcohol abuse was a secondary development to his PTSD.^[22]  I am not satisfied that the evidence in this case is sufficient to draw a similar conclusion.  Although the applicant’s counsel on the sentencing hearing submitted that the applicant’s binge drinking arose out of his PTSD,^[23] he did not identify any basis for that submission.  In my view there is insufficient support for that submission in the medical evidence tendered at the sentencing hearing.
44. [44]
    Dr Clark’s letter^[24] identifies the alcohol use disorder as one of three disorders with which the applicant had been diagnosed by his previous treating psychiatrist, including his PTSD, but there is no suggestion that any of the three conditions are causally connected.
45. [45]
    The applicant has identified two statements in Dr Kovacevic’s report which he submits support a finding that his alcohol use disorder is a secondary symptom of his PTSD.
46. [46]
    First, in setting out the applicant’s psychiatric history,^[25] Dr Kovacevic recorded that soon after the applicant’s return from Iraq:

“… he started to suffer posttraumatic symptoms that he attempted to hide from others.  He developed anger problems and started drinking heavily.  He had no tolerance for stress and exhibited aggressive outbursts …”

47. [47]
    Secondly, in addressing the applicant’s social history,^[26] Dr Kovacevic recorded that after returning from Iraq the applicant:

“… did his best to hide his distress that manifested through anger and escalating drinking.”

48. [48]
    These statements do not amount to an expression of Dr Kovacevic’s opinion.  Read in the context of the full report, they are properly understood as Dr Kovacevic’s record of matters reported by the applicant during his assessment.  Dr Kovacevic does not express the opinion that the applicant’s alcohol use disorder emanates from his PTSD.
49. [49]
    Dr Kovacevic’s report records^[27] that he was instructed to address the following relevant issues:

    1. the applicant’s relationship with intoxicating substances and history of abuse of such substances;
    2. the effect of alcohol on the applicant’s ability to rationalise and control his behaviour;
    3. the effect which the applicant’s time in active service had upon his mental wellbeing and the effect it may have had on his offending.
50. [50]
    As to the applicant’s history of substance use, Dr Kovacevic recorded:^[28]

“Ms [sic] Carey started binge drinking shortly after he had joined the military at the age of 17.  His binge drinking continued during his military service.  After he had left the Army, he began smoking cigarettes heavily.  His drinking escalated and became daily.  By his own account, Ms [sic] Carey became alcohol dependent, although he had never undergone detoxification or attended any alcohol or drug rehabilitation program.

At the time of the examination, Mr Carey was drinking on average four beers daily.  On the weekends, he would usually binge on a bottle of vodka.  The current drinking patterns have persisted over the past six months or so.  Mr Carey reported he was trying to give up drinking entirely.”

51. [51]
    Dr Kovacevic commenced the part of his report which contained his opinions as follows:^[29]

“Mr Carey is a 36 years old homeless father of two boys.  He is a military veteran, and in 2016 was diagnosed with post-traumatic stress disorder (PTSD) in relation to his overseas deployment to Iraq in 2006, during which he experienced significant traumatic events that left a profound psychological impact.  Unfortunately, his condition was not diagnosed until about ten years later.  It was only then that Mr Carey begun having psychiatric and psychologic treatments.

In addition to his post-traumatic stress disorder, Mr Carey has also been diagnosed with a major depressive disorder, anxiety disorder and chronic pain.  He has a history of anger control issues and aggressive outbursts, which are not uncommon manifestation of post-traumatic stress disorder.  In this context, his marriage deteriorated, and eventually Mr Carey separated from his wife.

In addition to several psychiatric conditions, Mr Carey also has a history of alcohol dependence.  He has never attended any substance rehabilitation program.  At the time of the examination, he was binge drinking, and was attempting to curtail his alcohol abuse. …”

In expressing those opinions, Dr Kovacevic addressed the applicant’s alcohol use disorder separately from his PTSD and its associated symptoms or manifestations.

52. [52]
    Dr Kovacevic then addressed the relevant issues raised by his instructions as follows:^[30]

“2. Mr Carey has a history of poly-substance abuse and alcohol abuse.  The history of this alcohol and substance consumption has been outlined in the body of the report.

3. At the time of his alleged offending, Mr Carey was under the influence of alcohol, and this likely contributed to his inability to control behaviour and impulses.  Disinhibiting effects of alcohol probably played a part in the incident of the alleged offending.  …
4. The time spent in the military service has had a profound impact on Mr Carey’s mental wellbeing.  As a result of his military service and his overseas deployment to Iraq, he developed post-traumatic stress disorder and a range of other psychological problems that have persisted ever since, including the time surrounding his index offending.  Due to his post-traumatic and mood disorder, Mr Carey experienced difficulties controlling impulses and anger, and this likely influenced his behaviour at the time of his index offending. …”

53. [53]
    There is nothing in the parts of the report which set out Dr Kovacevic’s opinions to suggest that the applicant’s alcohol use disorder arose as a symptom of his PTSD.  That conclusion would be inconsistent with the history the applicant provided to Dr Kovacevic of having started binge drinking shortly after he joined the ADF.  The presenting history recorded in Dr Kovacevic’s report states that the applicant joined the ADF in January 2005.^[31]  He was not deployed to Iraq until 2006.  That history indicates that the applicant commenced binge drinking before he developed PTSD.  This might explain why Dr Kovacevic does not describe the applicant’s alcohol use disorder as a symptom of, or being causally linked to, his PTSD.  Whatever the reasons, if Dr Kovacevic had considered such a causal link existed, it would be expected that he would have said so clearly in his report as it would have been an important part of the applicant’s relationship with alcohol and his history of alcohol abuse which Dr Kovacevic had been instructed to address.
54. [54]
    As the medical evidence does not establish that the applicant’s alcohol abuse disorder was a symptom of his PTSD, he has failed to establish error in the way the sentencing judge took account of his abuse of alcohol at the time of the offences.  Ground 2 has not been made out.

Ground 3 – manifest excess

55. [55]
    The applicant contends, in the alternative, that although the sentencing judge recognised the relevance of the guiding principles referred to above, he gave insufficient weight to those principles in the circumstances of the present case.  Although the applicant accepts that the imposition of a period in actual custody was within the proper exercise of the sentencing discretion, he submits that the requirement that he serve 12 months in actual custody means that the sentence is manifestly excessive because this period of actual custody did not appropriately reflect the applicant’s reduced culpability because of his psychiatric diagnoses or that there was a causal link between his PTSD and alcohol abuse disorder that was relevant to his culpability and his prospects for rehabilitation.
56. [56]
    In addressing ground 1, I have found that the sentencing judge did not err in concluding that the objective seriousness of the offences weighed more heavily in the assessment of the applicant’s moral culpability than the extent to which his PTSD contributed to those offences.  Similarly, in addressing ground 2, I have concluded that the medical evidence tendered at the sentencing hearing is not sufficient to establish a causal link between the applicant’s PTSD and his alcohol abuse disorder.  I am therefore not satisfied that the applicant has established the matters which he relies upon to allege manifest excess.
57. [57]
    Furthermore, as Morrison JA observed in R v MCT,^[32] where manifest excess is raised as a ground of appeal, the question is not whether the particular sentence was severe, or whether a more lenient sentence may have been imposed.  This reflects the principle that, where there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.^[33]
58. [58]
    The sentencing judge reduced the applicant’s head sentence to three years, from a starting point of four years, to reflect the matters in the applicant’s favour.  His Honour identified the fact that the applicant has “a serious mental illness developed in the course of service for this country” as one of those matters.  As the Crown submits, the reduction of the head sentence had the effect of also reducing the time which the applicant is required to spend in actual custody and gave him the added benefit of a fixed parole release date.
59. [59]
    Given my conclusions on grounds 1 and 2, I am not persuaded that, having regard to all of the relevant sentencing factors, there must have been some misapplication of principle by the sentencing judge in the circumstances of this case which would justify appellate intervention on the ground that the sentence is manifestly excessive.^[34]  I do not consider that the sentence is unreasonable or plainly unjust^[35] when regard is had to the aggravating features of the applicant’s offending identified by the sentencing judge (see [22] above).  In these circumstances, ground 3 has not been made out.

Conclusion

60. [60]
    The application for leave to appeal against sentence should be refused.