10 Mar

Case Note – When disability is not a mitigatory factor.

The Court of Appeal in R v Newman (a pseudonym) [2021] QCA 13, considered whether a defendant’s personal circumstances, including a disability, operates as a mitigating or aggravating factor or has no substantial influence at all. Ultimately the Court held that the relationship between the disability and the offending was of such a nature as to show that the offender is likely to reoffend, and entitled the Applicant to no reduction in sentence.


In March 2018, when the Applicant was 14 years old, he went to Kmart at Wynnum Plaza after school. He loitered there for some time, watching school-aged children. He noticed the complainant, a six year-old girl. He lured the complainant into an area in the store where they could not be seen and engaged in significant inappropriate behaviour.

The applicant has been diagnosed with Autism Spectrum Disorder, Intellectual Disability, Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. His intellectual disability is such that he has well below average vocabulary and grammar skills and moderate speech production difficulties. He functions in the “Extremely Low Range” cognitively. 

The child came from a disadvantaged background, with both parents having a history of substance abuse, which impacted upon their ability to care for him.  He was himself the victim of sexual abuse. There was a history of “sexually deviant behaviour”, which the court concluded was not uncommon in children with his condition.

He showed little empathy for his victim and Not surprisingly, the psychologist concluded that the applicant “presents as a probable high risk of sexual reoffending.” His “future risk of sexual recidivism has been assessed as high.” 


His Honour Judge Dearden DCJ, imposed a sentence of three and a half years detention.  His Honour ordered that the Applicant serve that three and a half years detention at 60 per cent. 

While acknowledging that it was an unusual departure from the normal sentencing process His Honour recorded a conviction.


The applicant sought leave to appeal against his sentence. He contended that the sentence was manifestly excessive and that the proper sentence ought to have been one of three years’ detention with an order that the applicant serve 50 per cent of the period of detention. The applicant submits that his intellectual disability mitigates his offence. He relies upon R v Neumann; Ex parte Attorney-General (Qld) 


The President, Justice Sofronoff, with whom, Justices Mullins JA and Boddice J agreed dismissed the Appeal.


…depending upon the circumstances a mental disability may operate either as a mitigating factor or as an aggravating factor. Of course, it might also have no substantial influence upon the sentence at all. 

Sofronoff P, R v Newman (a pseudonym) [2021] QCA 13 at 14

A mental disorder might impact a sentence in the following ways, it may have such a connection with the commission of the offence that:

  1. the fact of general deterrence is rendered insignificant, thus reducing the sentence.
  2. it reduces the offender’s moral responsibility for the offence.
  3. the offending may be of such a nature as to show that the offender is likely to reoffend

The Court held that the relationship between the disability and the offending may be of such a nature as to show that the offender is likely to reoffend. This latter consideration would not justify a longer sentence than would be appropriate but its significance is to remove the disability as a mitigating factor.

To a very great extent his mental disability was found to have rendered him prone to commit sexual offences against children. Although that propensity existed through no fault of his own, it exists and could not be overlooked by the Court. 


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