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The primary issue in this case was whether s 9(9A) Penalties and Sentences Act 1992 prohibits consideration of an offender’s mental health conditions which caused voluntary intoxication as a mitigating factor. The second ground of appeal is not included in this note. The applicant was affected by Depression, Anxiety and Borderline Personality Disorder. Leading up to the offending, in which the applicant drove dangerously while intoxicated and caused grievous bodily harm to his passenger, the applicant had engaged in drinking to the point of intoxication. The Court of Appeal found s 9(9A) does not prohibit mitigation in exceptional cases where factors underly the voluntary intoxication. However, the Court emphasised that it is the underlying factors, in this case mental health conditions, which are relevant to mitigation and not the voluntary intoxication itself. Importantly, a causal link or connection between the offending and the factor other than voluntary intoxication must be established by evidence in order for it to be considered in mitigation.
Sofronoff P and Mullins JA and Kelly J
1 April 2022
The applicant pleaded guilty to one count of dangerous operation of a vehicle causing grievous bodily harm whilst intoxicated by alcohol, and one summary charge of driving while over the middle but not high alcohol limit. . After a day of drinking, the 24-year-old applicant drove at excessive speed with his friend, the complainant, in the car. –. The applicant’s car hit a car moving out of a side street and a parked car. . The applicant and complainant were found on the road about a meter from the car. . Both suffered injuries. –. The complainant’s injuries included a laceration to his elbow, which amounted to grievous bodily harm. .
A head sentence of three years imprisonment was imposed, with parole release set at 9 months, and disqualified from driving for 18 months. .
The applicant then sought leave to appeal the sentence on two grounds – this case note deals only with the first ground: that the learned sentencing judge failed to consider the reduction in moral culpability, and thereby mitigate the sentence, due to the applicant’s mental conditions, which included Depression, Anxiety and Borderline Personality Disorder. , , –.
At sentence, the parties, though alike in regard to the head sentence, were in dispute as to whether any period of imprisonment should be served in actual custody. . Defence counsel, conceding s 9(9A) of the Penalties and Sentences Act 1992 excludes voluntary intoxication as a mitigating factor at sentence, argued the applicant’s underlying mental health conditions led to his intoxication and subsequent offending. . The Crown submitted only the underlying reasons for the intoxication could be taken into account, and not the intoxication itself, as a mitigating factor. .
Decision of the Court of Appeal
The Court of Appeal dismissed the application. .
The Court reviewed the common law relevant to s 9(9A), –, including R v Rosenberger; Ex parte Attorney-General (Qld)  1 Qd R 677 (“Rosenberger”), which held “unless there is something that excuses the taking of alcohol or drugs by an offender, ordinarily intoxication will not mitigate penalty.” . The other cases cited emphasised that voluntary intoxication will not be an excuse nor mitigating factor at sentence. –. However, the Court noted that the cases, particularly Rosenberger and R v Clark  QCA 361:
“… recognised the possibility that, in an exceptional case, there may be something which wholly or partly excuses the voluntary taking of alcohol or drugs, which matter might be treated as a circumstance going in mitigation.” .
The Court found that s 9(9A), which was legislated after the common law developments outlined, was not intended to derogate from Rosenberger to the extent that there may be “exceptional cases where something wholly or partly excuses the taking of alcohol or drugs and can be treated as a circumstance going in mitigation”. .
The Court emphasised that in such exceptional cases, it is the underlying reason or feature that calls for mitigation and not the voluntary intoxication itself. . That approach is supported by Victorian cases: R v Kevich  VicSC 619 (“Kevich”) and Redenbach (1991) 52 A Crim R 95. –. The Court considered Kevich, Clark, and R v BCX (2015) 255 A Crim R 456 to demonstrate that where a causal connection exists between the offending and the medical condition, mitigation is open “because their offending was not solely the consequence of voluntary intoxication or stupefaction”. .
Importantly, the causal connection between the offending and the matter other than voluntary intoxication “is required to be established by the evidence”. . “Where the matter comprises a mental impairment or disorder, the diagnosis of a condition is only the beginning, not the end of the enquiry.” . Settled principles apply in determining a just sentence where an offender has a mental impairment disorder. , .
In this case, the Court found that the psychologist’s report, while it discussed historical abuse of alcohol by the applicant, did not clearly opine a link between the offending on the day, the applicant’s drinking and his mental health conditions. –. That is, the report did not demonstrate that the applicant’s intoxication on the day of the offending was caused by his mental conditions. –.
The learned sentencing judge considered the applicant’s mental health conditions in fixing the appropriate penalty, referring to these as “significant matters” in the applicant’s favour. . No error was therefore demonstrated, and this ground of appeal was dismissed.
A Hughes of Counsel