AK v Regina

Court of Criminal Appeal (NSW)|2020-06-10|Before: Macfarlan JA, Adams J, Lonergan J, MacFarlan J

The application

The applicant raised four grounds of appeal: 1. The sentencing judge erred by failing to properly consider the mental health of the applicant; 2. The sentencing judge erred by failing to appropriately take into account the special circumstances of the applicant; 3. The sentencing judge erred by failing to appropriately vary the statutory ratio in recognition of the special circumstances and the mental health of the applicant; 4. The sentence is manifestly excessive.
No written submissions were provided on behalf of the applicant in support of ground 4. In oral submissions, counsel for the applicant informed the Court that ground 4 was only pressed to the extent it "embodies or encompasses" grounds 1 to 3. It was not pressed as a separate ground, and so is not dealt with as a separate ground in this judgment.

(i) The Applicant's submissions

Counsel for the applicant asserted that the conclusion that the sentencing judge should have reached, given the mental health evidence, and in particular Dr Chew's 2019 report, was that the applicant's moral culpability was significantly reduced, not, as his Honour found, only slightly reduced.
There was no apparent exercise of the necessary "sensitive discretionary decision" as required by R v Engert (1995) 84 A Crim R 67 at [67] that explained how his Honour applied the facts and circumstances of the case to the purposes of criminal punishment.
There was inadequate explanation for the conclusion that the applicant "may present more of a danger to the community than others who do not suffer from those conditions". [3] It was argued that this approach led to an increase in sentence, because more weight was placed on specific deterrence. The factual basis for that conclusion should have been properly set out in the ROS, but was not. [4]
The evidence supports a finding that this applicant was not an appropriate vehicle for the expression of the full weight of general deterrence, given his mental health problems based on Dr Chew's opinion that the applicant was suffering from a mental disorder or disability at the time of the commission of the offence.
The sentencing judge gave no consideration to the risk that imprisonment will have a significant adverse effect on the applicant's mental health. (I interpolate however that no evidence from the expert psychiatrists' evidence was cited to support this proposition, and the evidence tendered suggests the applicant's mental health has significantly improved whilst in custody).

(ii) The Crown's Submissions

The Crown submitted that it is apparent from [67]-[69] of the ROS that his Honour expressly applied the relevant considerations from the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa"): "…[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at [71]; R v Wright (1997) 93 A Crim R 48 at [50]-[51]; Israil at [22]; Pearson at [42]; Henry at [28]. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at [400]; Jiminez at [25]; Israil at [26]; Henry at [28]. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at [400]; Israil at [25]; JW at [192]. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23]-[24].
The criticism made is, in effect, that his Honour should have given more weight to the mental health issue in reducing moral culpability. The question of weight is part of the instinctive synthesis that has to be undertaken by the sentencing judge. As stated by Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11]: "Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined".
Here the assessment of the applicant's moral culpability had to be considered in the context of his history of domestic violence towards his wife, his ability to enter the home, forcibly detain both victims, and keep control of them for many hours notwithstanding his asserted mental condition. He threatened his wife, including a threat he would kill her and her daughter, he pressured her in relation to the court case - the subject matter of which was previous serious domestic violence on his part - in close proximity to the next listing of that case. The applicant also acknowledged to police a few days later that he knew that he was in breach of the AVO that was in place at the time of this offending.
Contrary to what was submitted on behalf of the applicant, his Honour in fact made a finding that a custodial sentence "may weigh more heavily" [5] on the applicant, despite Dr Adams noting in the his second report that the applicant's mental health had improved and that the applicant himself had commented that he was "fine", he was "very well" and that he "felt safe". The applicant told Dr Chew in March 2019 that he was now "all better" on treatment, and denied any mental health symptoms. His Honour's finding was, in the circumstances, a generous one.
The sentencing judge was obliged to carefully consider the applicant's criminal record and prior behaviour towards his wife. The 10 May 2016 offences were not isolated. There had been other incidents of violence during the relationship. The Court was required to take into account that the present offences were committed in breach of bail and in breach of an AVO. Dr Adams referred specifically to the possible danger posed by the applicant to others based on his assessments in 2017 [6] before the improvement in the applicant's condition whilst in custody and on medication.

(iii) Did the Sentencing Judge give proper consideration to the mental health of the applicant?

The conclusion in Dr Adams' first report regarding the possible danger posed by the applicant to others is a significant consideration that his Honour was required to weigh in reaching an appropriate sentence to impose.
Contrary to the submissions made on behalf of the applicant, there is no evidence that in taking that matter into account, his Honour increased the sentence because of potential dangers presented by the applicant. He clearly weighed up the relevant factors as described in De La Rosa and gave some weight to the issue of the future dangerousness of the applicant. This is not at all surprising against a background of repeated, violent offending, where an AVO and bail conditions in place seem to have made no difference to this offender's willingness to attack, detain, humiliate, terrorise and rape his partner in the presence of her children.
In some respects the mental health evidence was incomplete, but his Honour was required to take into account such evidence as was before him. It was open to him to find that the applicant presented as a risk, despite some demonstrated improvement in custody where he is under medication, supervision and the structured circumstances of custody away from his wife.
His Honour made a generous finding that the custodial sentence may weigh more heavily upon the applicant. He specifically declined to find that the applicant's mental health could underpin a finding that the applicant was not an appropriate vehicle for the expression of general and specific deterrence, as is well within his discretion to so find, particularly given the High Court's observations in Munda, and the nature of the offending.
There is no requirement based on De La Rosa, that where there is a finding by a court that a person's mental health contributed to the commission of the offence in a material way, that the offender's culpability must be reduced; only that it may be reduced. Having considered the relevant evidence, the sentencing judge concluded that the evidence warranted a slight reduction in the applicant's moral culpability.
Such a finding was clearly open to him and was the result of weighing the various competing considerations, which is very much a matter within the province and discretion of the sentencing judge.
There is nothing in the sentence imposed that suggests no such reduction was applied. The offending was very serious, as reflected in the maximum sentences the legislature has chosen to impose for such offending.
His Honour's approach was consistent with authority. No error has been demonstrated. Ground 1 must be dismissed.

(i) The Applicant's Submissions

The applicant submitted that the Remarks on Sentence betray a lack of any clear finding of special circumstances, and the effect any such finding had upon the sentence imposed is not evident. Because of this approach, there was error in setting an excessive non-parole period. This had the effect of depriving the applicant of the benefit of any special circumstances his Honour may have found.
Alternatively, his Honour having made a finding of special circumstances failed to adequately alter the statutory ratio in a manner appropriately reflecting his finding.
As stated in R v GDR (1994) 35 NSWLR 376 at 381, an explicit addressing within the sentencing remarks of the length of the parole period as a proportion of the total, in circumstances where it is less than one third of the non-parole period, is required. Whilst it was acknowledged that there is no principle of law that requires that a parole period must not be less than one third of the non-parole period, it is desirable to address what approach has been applied, lest it be considered that there was an error of oversight or omission. In support of this submission reliance was placed on Wakefield v R [2010] NSWCCA 12 at [26]; Briggs v R [2010] NSWCCA 250 ("Briggs") at [34]; Etchell v R (2010) 205 A Crim R 138; [2010] NSWCCA 262 at [49]-[50] and Brennan v R [2018] NSWCCA 22 ("Brennan") at [69].
The sentencing judge's silence on this aspect is submitted to be something that leads to a "sense of disquiet that he may have overlooked giving appropriate focus to the statutory ratio", as was the case identified in Briggs per Fullerton J at [34].
Given the findings made about the applicant's mental health and ongoing risk to the community, there is a recognised need for the applicant to undergo suitable rehabilitative treatment. That amounts to special circumstances which ought to have resulted in a variation of the statutory ratio to reflect that the applicant would benefit from treatment while in full-time custody, but he may not receive it due to factors out of his control: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [57]-[58].

(ii) The Crown's Submissions

The Crown submitted that it is well-established that a finding of special circumstances is discretionary in nature and the degree to which the ratio of the non-parole period to the head sentence is varied is also discretionary and very much a matter for the sentencing judge. As noted in R v Fidow [2004] NSWCCA 172 ("Fidow") at [18]-[24], particularly at [19] per Spigelman CJ (reiterating his earlier statement in R v Simpson (2000) 153 NSWLR 704; [2001] NSWCCA 534 ("Simpson") at [73]): "As a practical matter, there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive".
As pointed out by Johnson J (with whom McClellan CJ at CL and Bellew J agreed) in R v GWM [2012] NSWCCA 240 ("GWM") at [118]: "As the decision of this Court in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 (at 718 [65]) makes clear, the adjustment of the statutory ratio, after considering factors relevant to the fettered sentencing discretion, must lead to the imposition of a non-parole period which constitutes the minimum period which the offender should spend in custody having regard to all objective and subjective circumstances, including the objective gravity of the offence and the need for general deterrence. The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36]."
Similar observations were made in Simpson at [65] per Spigelman CJ: "In addition to the need to identify and articulate "special circumstances", in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. (See R v Maclay (1990) 19 NSWLR 112 at 122G-123A; R v Morrissey (supra); R v McDonald (NSWCCA, 12 October 1998, unreported); R v Henry & Barber [1999] NSWCCA 107 at [76] per Simpson J.) As the High court said in Power (supra) at 628: 'To the extent to which deterrence is an object of imprisonment, then imprisonment without a chance of release for a longer time, rather than a shorter time, is within that objective.'"
It is evident that the sentencing judge expressly considered the submissions made about special circumstances and decided that there should be an adjustment made, as set out in his remarks at [74]-[76]. Contrary to the applicant's submissions, the length of the adjustment is clear, being a reduction in the non-parole period of 6 months from the 7 years and 6 months that would have been 75% of the aggregate head sentence.
The Court was required to ensure that it did not "double count" mental health considerations already taken into account in imposing the sentence. As stated by Spigelman CJ in Fidow at [18]: "In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s 44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the 'decision' to be that the statutory proportion of one-third be "less". 'Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur."

(iii) Was there any error in the way the Sentencing Judge dealt with special circumstances?

As observed by Spigelman CJ in R v Cramp [2004] NSWCCA 264 at [31]: "… the size of such an adjustment raises so many matters of a discretionary character that this Court should be very slow to intervene."
There are many obvious reasons why this must be so. Aspects of the evidence led in the applicant's subjective case had countervailing factors that had to be weighed. Treatment in custody had brought about an acknowledged improvement in the applicant's mental state, both objectively and subjectively but he had been unwell in the community. He was not so unwell, however, that he could not plan and execute his crimes with some resourcefulness to avoid detection. He arrived and left in darkness, capturing SM and her children when he knew that they would be at home, 3 days before his previous domestic violence matter was listed before the court. All of these considerations are relevant to the criminality, and thus need to be reflected in the minimum period in custody, "having regard to all the purposes of punishment and not simply his rehabilitation" as observed by Johnson J in GWM.
These are the type of considerations that comprise part of the required instinctive synthesis. They are not matters capable of specific, "plus and minus" equations of the type that seems to be implied by the applicant's submission are required to be set out in the ROS.
However, contrary to what was submitted by the applicant, his Honour's approach to this task was clearly articulated. He accepted the Crown's submissions and concluded that it would be appropriate to provide a "minor adjustment" to the statutory ratio. There was no need for him to provide lengthy reasons for doing so: Brennan at [40].
It is simply not correct to argue, as the applicant does, that there was "no effective adjustment made to reflect his finding of special circumstances". There was clearly an adjustment of 6 months. Six months is a significant additional period of time to add to the potential time in the community under the assistance of parole supervision. There is no error, manifest or otherwise, in structuring the sentence as his Honour did.
Grounds 2 and 3 are not made out.

Orders

I propose the following orders: 1. Leave to appeal sentence granted 2. Appeal dismissed

Endnotes

Remarks on Sentence of Wilson SC DCJ, 19 June 2019, at [83]-[90].
Remarks on Sentence of Wilson SC DCJ, 19 June 2019.
Remarks on Sentence of Wilson SC DCJ, 19 June 2019, at [69].
Applicant's Written Submissions at [10].
Remarks on Sentence of Wilson SC DCJ, 19 June 2019, at [69].
Report of Dr Jonathon Adams, Forensic Psychiatrist, dated 11 November 2016, p. 11, [3]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2020

Findings

The sentencing judge made specific reference to the context of domestic violence and what the High Court had said about that in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 ("Munda") at [54]-[55], noting: "…the longstanding obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence…".
Reference was also made to The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [21], recognising the societal shift in relation to domestic violence and that current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence, because of changes in societal attitudes to domestic relations.
His Honour concluded that counts 2, 3, and 4 were all in the mid-range of objective seriousness for that type of offending and that count 5 was slightly above the mid-range, given the presence of the young child. He placed the objective seriousness of the breach of the AVO at above the mid-range given that it involved detention and sexual violence, the two counts of common assault at the mid-range, and the stalk and intimidate at about the mid-range. No issue has been taken regarding any of those assessments.
His Honour listed the aggravating features of the offending at [61] as follows: "…[61] Other considerations affecting the sentence to be imposed in this case include the following aggravating factors: (a) the actual or threatened use of violence. I mention that only to the extent that it does not involve double counting in respect of the assault matters which include as an element of the offending an act of violence; (b) the offences were committed in the presence of children, namely NK aged two and PC who was then aged around 15 years of age. Of most concern is the fact that not only was PC present but she was also the subject of violence, and also of concern to the Court and an aggravating factor in relation to the sexual intercourse count being count 5 on the Indictment, that offending occurred in the presence of the two year old child; (c) it is also an aggravating factor that the offences were committed in the home of the victims, a place where they are entitled to expect to be safe and free from this type of conduct, particularly in view of the fact that an AVO had been taken out with conditions which precluded the attendance of the Offender at those premises; and (d) the offending is aggravated further by the fact that the offences were committed whilst the Offender was the subject of conditional liberty".

(2000) 153 NSWLR 704

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