[2011] HCA 49
Haines v R [2016] NSWCCA 90
Hordern v R [2019] NSWCCA 138
Lowe v The Queen (1984) 154 CLR 606
R v Houlton (2000) 49 NSWLR 383
[2000] NSWCCA 309
R v Verdins (2007) 16 VR 269
[2007] VSCA 102
Robinson v The Queen [2006] NSWCCA 192
Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783
Source
Original judgment source is linked above.
Catchwords
[2011] HCA 49
Haines v R [2016] NSWCCA 90
Hordern v R [2019] NSWCCA 138
Lowe v The Queen (1984) 154 CLR 606R v Houlton (2000) 49 NSWLR 383[2000] NSWCCA 309
R v Verdins (2007) 16 VR 269[2007] VSCA 102
Robinson v The Queen [2006] NSWCCA 192
Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783[2013] NSWCA 383
The Queen v Guode (2020) 267 CLR 141
Judgment (10 paragraphs)
[1]
The applicant's submissions in reply
The applicant's submissions in reply ran to 151 pages. He largely repeated his assertions with respect to the errors made by the sentencing judge, with some additional submissions including:
1. The decision of his Honour was biased and unreasonable in that "a fair-minded observer, having considered the facts, would conclude that there was a real possibility that the decision was biased".
2. His Honour allowed irrelevant and extraneous matters to guide the sentencing discretion in that there was no evidence on which his Honour made the finding that the applicant was "controlling" in relation to the Ms Quintero Naranjo because the relationship evidence tendered by the Crown was "utterly and entirely untruthful" and contradicted the expert evidence.
3. His Honour did not take into account the principles formulated by the Victorian Court of Appeal in R v Verdins (2007) 16 VR 269; [2007] VSCA 102 in relation to the ways in which a mental disorder or abnormality or impairment of mental function may be relevant to sentencing; nor did his Honour follow common law principles as enunciated in The Queen v Guode (2020) 267 CLR 141; [2020] HCA 8 and Mabo v Queensland [No 2] (1992) 175 CLR 1; [1992] HCA 23.
4. The applicant was denied natural justice and his Honour's decision contravened Human Rights Act 1998 (presumably a reference to the statute of that name and year in force in the United Kingdom).
The applicant's primary submissions revolve around the mitigating features in his case not being appreciated, namely that the medical evidence was not considered in its entirety by either the sentencing judge or the CCA; and that the sentencing miscarried because it was not based on findings established beyond reasonable doubt.
[2]
Consideration
Section 79(3) of the CAR Act provides that the court may refuse to consider or otherwise deal with an application such as this. Circumstances in which the Court could do so include where it appears that the matter has already been fully dealt with (before the sentencing judge) or where a right of appeal exists that has not been used, and where the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
None of the complaints made by the applicant were raised in the CCA at which time the applicant was legally represented. All of the complaints he now raises concern challenges to factual findings. It is well established that had such complaints been made in the CCA the alleged errors would need to be framed in terms that it was not open to the sentencing judge to make the relevant factual findings. This derives from the decision of Hunt J in R v O'Donoghue (1988) 34 A Crim R 397, where his Honour stated the test in this way:
"It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below …. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. … It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice … Kryiakou (1987) 29 A Crim R 50 at 60-61."
Although Hunt J did not make these observations in the context of an application to seek leave to appeal a sentence, this Court has proceeded since then on the basis that if an applicant challenges a factual finding made by the sentencing judge, he or she is required to establish that the finding was "not open" to the sentencing judge. That is, "there is no evidence to support a particular finding". This approach has been questioned in Clarke v R [2015] NSWCCA 232 and Hordern v R [2019] NSWCCA 138. But the doubts raised have not found general favour in this Court: Azzopardi v R [2019] NSWCCA 306 at [36]-[39] per R A Hulme J (with whom Bathurst CJ and Fullerton J agreed). Accordingly, the relevant test is whether it was open to Bennett SC DCJ to make the findings he did.
Most of the complaints concern a contention that his Honour should have dealt with the evidence of the applicant's mental health issues differently and ameliorated his sentence to a greater degree. The relevant approach was stated by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 71:
"In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."
The applicant has not raised any new material or arguments that would give rise to a doubt or question as to any mitigating circumstance or evidence on sentence. Indeed, as appears from my summary of the proceedings on sentence and on appeal above, I consider that in the terms of s 79(3) I could decline to consider the application as it has been fully dealt with by the sentencing judge and the CCA (sub-s (a)(i)) and I am not satisfied that there are special facts or circumstances that justify the taking of further action (sub-s (b)). I do not propose to take that course. Rather, in order to achieve some finality in this matter, I propose to consider the application and dismiss it for the following reasons.
[3]
Ground 1: error in not accepting evidence that the applicant lost control due to his psychiatric disorders/medication change
The sentencing judge made his finding (set out above) based on the evidence before him including the agreed facts, agreed to by the applicant. His Honour relied upon the description of what occurred as set out in that document, as he was required to. Further, contrary to the applicant's submissions, the opinions of Dr Furst and Dr Westmore did not provide strong support for the view that the applicant had lost control at the time of the offending. Both reports were heavily qualified and non-specific as to whether or not the offending had been pre-planned.
As for the applicant's reliance on the decision in Chapman v R [2018] NSWSC 1741, in that case the Court found that the accused had lost control which reduced his moral culpability and the importance of considerations of general and specific deterrence. That was another case with different facts. It does not support any contention of error in this case.
This ground does not raise any doubt or question in mitigation or about the evidence in this case.
[4]
Ground 2: error in not considering the applicant's change in medication
The sentencing judge expressly referred to Dr Westmore's evidence that the applicant had been prescribed Avanza some four months prior to offending. His Honour also expressly referred to the applicant taking that medication on the night before the offences. No finding was made as to the role that medication may have had on the applicant's mental state at the time of the offending. No doubt that was because of the limited evidence on this issue and the fact that the experts were divided on it. Dr Furst raised a possibility that the change in medication could have impacted the applicant's mental state at the time of the offending but avoided drawing a positive conclusion. Dr Westmore attributed the applicant's behaviour to his depressed mood and associated extreme anger. He did not attribute it to the applicant being put on different medication.
In any event, given his Honour's conclusion that the offending was pre-meditated and that the applicant, whilst afflicted by mental health issues, was capable of forming an intention to kill, wound and/or do grievous bodily harm, the potential effect of the change in medication was not relevant to his Honour's consideration of an appropriate sentence.
Again, the sentencing judge's finding was based on the statement of agreed facts and the experts' opinion that the applicant did not have a defence of mental illness available to him. It was clearly open to his Honour to treat the change in medication in the way he did. This ground does not raise any doubt or question in mitigation or about the evidence in this case.
[5]
Ground 3: findings of Dr Westmore and "psychosis"
Under ground 3 it was contended that the sentencing judge erred in considering "questions around psychosis" and then by determining how psychosis impinged on the assessment of the applicant's moral culpability and the factual matrix at sentencing. It was submitted that his Honour should not have approached the issue of mental illness in this way (ie by reference to "psychosis"), because the applicant's thinking and judgment were in fact impaired and he was in fact suicidal as evidenced in the written reports.
The summary above (especially at [40] and [46]) shows that his Honour accepted that the applicant suffered from depression and anxiety at the time of the offending and mitigated the sentence to some extent as a result. The complaint that the sentencing judge erred in failing to adopt the full extent of the expert medical evidence - in the applicant's view, to the effect that the applicant was, variously, mentally impaired, suicidal, delusional, disordered - or in failing to find that his behaviour was attributable to a sudden loss of control is a repetition of grounds 1 and 2.
As for the applicant's discrete contention that he was suicidal, his Honour accepted the possibility that the applicant was suicidal at the time of the offending. This was a finding favourable to the applicant. His Honour's finding that the applicant intended to commit suicide after the commission of the offences would be relevant to the question of the applicant's remorse. As stated above, his Honour accepted that the applicant was remorseful.
This ground does not raise any doubt or question in mitigation or about the evidence in this case.
[6]
Ground 4: discount for late plea of guilty
The applicant pleaded guilty on the first day of trial. Despite these late pleas, a discount of 12.5% was applied to his indicative sentences. The EAPG scheme ("early appropriate guilty pleas") was not in place at that time. If it had been, he would not have been entitled to a discount of more than 5% for such late pleas (see s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). At the relevant time the applicable principles were to be found in the guideline judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 ("Thomson and Houlton").
In Thomson and Houlton Spigelman CJ (with whom Wood CJ at CL, Foster AJA and Groves and James JJ agreed) said the following at 419 [160]:
"The Court should adopt the following guideline applicable to offences against State laws:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last-mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, for example, assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount."
Further, in R v Borkowski [2009] NSWCCA 229 at [31], it was held that it would only be in exceptional circumstances that the Court could have regard to the reason why a guilty plea was delayed.
The applicant relies upon the decisions in Haines and Shine where "exceptional circumstances" for a delay were recognised. However, these decisions do not assist the applicant in attempting to show error in how the sentencing judge dealt with this question in his case. In those cases the preparation of an expert report caused the delay and pleas were entered, respectively, within four days and within a "reasonably short period" of that occurring. By way of contrast the applicant did not enter a guilty plea within a "reasonably short period" after he first became aware that a defence of mental illness was not available to him. By 14 August 2016 the three experts had unanimously opined (Dr Westmore on 1 September 2015, Dr Furst on 1 March 2016, and Professor Greenberg on 14 August 2016) that such a defence was not available to the applicant; however, the applicant did not enter a plea until more than a year later on 21 August 2017, after the matter had been listed for trial.
In any event, his Honour applied a greater discount than what was requested on behalf of the applicant, namely 12.5% instead of 10%. This ground does not raise any doubt or question in mitigation or about the evidence in this case.
[7]
Ground 5: relevance of applicant's childhood sexual abuse
Contrary to the applicant's contention, the sentencing judge gave specific consideration to the assertion that the applicant had been sexually abused as a child. But his Honour could only have regard to the expert evidence before him. There was no material identifying any link between the abuse and the offending. His Honour accepted that the applicant was suffering from low self-esteem as well as depression and anxiety and took those factors into account for the purposes of sentencing the applicant.
The applicant contended that his Honour's reasoning in relation to general deterrence by reference to the "history of the relationship" amounted to an error of double counting in the sense explained in Elyard v R [2006] NSWCCA 43 at [9]-[10]. The Attorney General rejected this submission and described its content as "unclear". I also do not accept the submission. It was not an element of the offence against Ms Quintero Naranjo that it was committed in a domestic violence context.
This ground does not raise any doubt or question in mitigation or about the evidence in this case.
[8]
Ground 6: findings of facts not in dispute (denial of procedural fairness)
As stated above, all factual findings made by the sentencing judge were based on the statement of agreed facts or inferences drawn from it, with other minor findings being resolved in a manner that was favourable to the applicant.
The applicant relied on the opinions of Dr Westmore and Dr Furst that, respectively, "his greatest risk is to himself at this time" and that the applicant's "violence was out of character and unlikely to be repeated … and [he] has a low risk of reoffending". Nonetheless, his Honour was unwilling to find that the applicant had strong prospects of rehabilitation and low likelihood of reoffending.
As for the applicant's reliance upon other cases where persons with no criminal history have had the benefit of more favourable findings, those cases were different on their facts and did not take place in a domestic violence context.
The findings made by the sentencing judge were clearly open to him. Consequently, this ground does not raise any doubt or question in mitigation or about the evidence in this case.
[9]
Ground 7: errors in the CCA
There was no ground of manifest excess relied upon by the applicant in the CCA and nor did the only ground raised require the Court to consider the medical evidence as a whole. The applicant's counsel expressly denied any complaint of manifest excess or that the indicative sentences fell outside the scope of the sentencing judge's discretion.
The applicant's reliance on the decision in Robinson v The Queen [2006] NSWCCA 192 is misplaced. That decision did not concern an offender being sentenced on the basis of agreed facts. As for the applicant's assertions as to errors in the notional accumulation of the indicative sentences, he is simply repeating submissions rejected by the CCA.
As for the complaint about misapplication of the parity principle and the applicant's reliance on Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 and Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, that principle only applies when co-offenders are being sentenced for the same offence. The applicant acted alone in the commission of the offences.
The applicant also relied on JIRS statistics. Despite the frequent statements in this Court that statistics are a "blunt tool" (for example, in Gibbons (a pseudonym) v R [2019] NSWCCA 150 at [148] per Simpson AJA), it was submitted in relation to count 1 (for which the indicative sentence was 17 years and 6 months) that 24-26% of past offenders received a total sentence that was equal or greater. In relation to count 3 (for which the indicative sentence was 11 years and 3 months), 2-4% of past offenders received a total sentence equal or greater than that imposed on the applicant.
Those statistics are to be considered in the context that the objective seriousness of the applicant's offending was found to be above the mid-range and the indicative sentences fell within the statistical range provided by the applicant. The sentences indicated were justified having regard to the seriousness of the offences.
With respect to the matters raised by the applicant in mitigation under this ground, it was submitted by the Attorney General that they do not raise any doubt or question about his sentence and that they cannot be considered in his present application.
I do not accept the applicant's contention that "unsubstantiated and misleading" evidence was led to his detriment on sentence. The sentencing judge made his factual findings from either the statement of agreed facts, or from drawing inferences from those facts.
Nor did the sentencing judge rely on the victim impact statements for the purposes of evidentiary findings in relation to aggravation. His Honour's limited reliance on them to note the impact of the offending on the victims does not raise any doubt or question about the applicant's sentence
I have no doubt or question as to any mitigating circumstances or any part of the evidence in this case and would refuse the application.
[10]
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Decision last updated: 15 July 2022
REASONS FOR DECISION UNDER s 79 OF THE cRIMES (aPPEAL AND rEVIEW) ACT 2001 (NSW)
By application filed on 31 August 2021, the applicant, Shelden Patrick Vaughan, seeks an inquiry pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act") into a sentence imposed upon him by Bennett SC DCJ in 2018 and against which the Court of Criminal Appeal on 6 February 2020 refused an extension of time to seek leave to appeal: Vaughan v R [2020] NSWCCA 3.
Although these are not judicial proceedings, the Supreme Court may consider any written submissions made by the Crown with respect to an application: s 79(4) of the CAR Act. The Attorney General has filed written submissions in response to this application dated 17 November 2021. The applicant filed submissions in reply on 30 November 2021.
This application was allocated to me for determination on 6 December 2021.
The Attorney General does not support the application on the basis that it does not satisfy the precondition in s 79(2) of the CAR Act.
Relevant legislation and applicable principles
Before turning to consider the application, it is necessary to first have regard to the relevant legislation and principles. Part 7 of the CAR Act provides for a statutory exception to the principle of finality. After a person has exhausted their appeal rights, they can still apply either for an inquiry into their conviction or sentence or a referral to the Court of Criminal Appeal in specified circumstances. Section 78(1) of the CAR Act provides:
An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.
Section 79 of the CAR Act provides:
79 Consideration of application
(1) After considering an application under section 78 or on its own motion:
(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:
(a) it appears that the matter:
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the previous review provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
(3A) …
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.
(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).
As set out in s 79(3), this Court may refuse to deal with an application such as this if it appears that one of the circumstances in sub-section (3)(a) applies and the Court is not satisfied that there are "special facts or special circumstances that justify the taking of further action".
The remarks on sentence
Although I was not provided with a copy of the remarks on sentence of Judge Bennett SC, they were summarised in the submissions of the Attorney General on the present application and extracts from them appeared in the judgment of the CCA. The comprised 43 pages and were delivered on 27 April 2018. They were described in the subsequent judgment of the Court of Criminal Appeal as "careful and detailed".
The sentencing judge remarked that the applicant had pleaded guilty to the charges on the day of trial and allowed a discount of 12.5% for the utilitarian value of the pleas of guilty, noting that a discount of slightly more than 12.5% would be applied to the indicative sentences to permit those periods to be expressed in years and months rather than in years, months and days.
The factual findings were made based largely on the statement of agreed facts, aside from two matters that fell outside its scope: whether the offending was pre-planned or a result of a sudden loss of control; and whether the applicant wanted to or even attempted to commit suicide by jumping in front of a train following the offending.
In relation to the first matter, his Honour rejected the applicant's submissions that his intention was to commit suicide in front of the victim but that his anger overcame him causing him to lose control. His Honour found that "the only rational conclusion" was "that he intended to kill his wife at the time he approached her". His Honour accepted that "his state was such that he might well have been intending to take his own life" but he was not satisfied "that was his purpose before the commission of these crimes", on the basis that it would be inconsistent with the fact that he went to the premises "armed with a knife", and (ROS 40):
"… that he had also available a tyre lever, that he waited for her, that he stopped his car behind hers, that he approached her and engaged in conversation and then lunged at her forthwith and thereafter entered his motor vehicle after the intervention by the second victim and drove at her at least twice."
With respect to the second matter, the sentencing judge appeared to give the applicant "the benefit of the doubt overall upon the evidence" before his Honour and found that the applicant had at least a "wish to take his own life" but that this "was an act intended after he had completed his crime of specific intent directed towards his wife".
Judge Bennett SC found the objective seriousness of the offending to fall above the mid-range, noting the "ferocity" of the applicant's attack.
With respect to the impact of the applicant's mental health on his offending, the sentencing judge set out the relevant medical evidence in detail. His Honour concluded that no finding could be made that the applicant's depression denied him the capacity to understand that what he was doing is wrong and based that finding on the fact that neither expert had expressed the view that the applicant would have a mental health defence available to him. His Honour accepted that the state of the applicant's mental health was relevant to the sentencing exercise and applied the principles in R v Helmsley [2004] NSWCCA 228 and DPP (Cth) v De La Rosa [2010] NSWCCA 194. His Honour accepted that the applicant's mental health reduced his moral culpability, that he had been coping and progressing well in custody, but equally that there was a need to recognise the harm occasioned to the victims and denounce the applicant's conduct.
The present application
The applicant has prepared the application himself. His first set of submissions consisted of 16 pages and his submissions in reply run to 157 pages. He has listed the following seven grounds of review:
"1. The sentencing judge erred in finding that the applicant's loss of self-control was within the spectrum of his own personal control, rather than being attributed to the applicant's acute depression and mental disorders that were present before and during the commission of the offences. Mental illness was established by way of the written reports, but in effect not considered. The sentencing Judge should have been satisfied on the balance of probabilities that the applicant's mental disorders contributed to the commission of the offences in a material way.
2. The sentencing Judge erred by not considering evidence that it was possible the applicant's switch from Lexapro to Avanza in the in the weeks prior to his offending contributed to his violent behaviour. SSRI anti-depressants can trigger cognitive impairment, confusion, and automatic instability. This adverse medication event acted on the applicant to induce suicidal ideation, increased anxiety, agitation, and aggression.
3. The sentencing Judge erred by not realising the sentencing Judge decided that expert evidence concluded that there were no indications that the applicant was psychotic or suicidal. Respectfully, his Honour erred by considering questions around psychosis then determined how psychosis impinged on the assessment of the applicant's moral culpability and the factual matrix at sentencing. His Honour was not required to undertake this determination. The applicant's thinking and judgement was impaired and he was in fact suicidal as evidenced in the written report s.
4. The sentencing Judge erred by not finding that the applicant's guilty plea was delayed due to the applicant's mental disorder and having to await outcomes of psychiatric assessments. The applicant should have been given a full 25% discount.
5. The sentencing Judge erred by failing to realise the extent to which the applicant's childhood sexual abuse had on the applicant's pre-disposition to the later development of recurring mental disorders which were fundamentally linked to the offences the applicant committed.
6. The sentencing Judge erred by not realising the sentencing Judge went outside of his discretion to find facts that were in dispute and should have given the defendant notice to address these facts at sentencing to avoid a miscarriage of justice.
7. There was an abuse of process for unfairness. The Crown had led unsubstantiated and misleading evidence to the detriment of the applicant, that was not given by a witness of the truth. The Court of Criminal Appeal respectfully also did not act on evidence that was given to the sentencing Judge that attributed the offending behaviour to several psychiatric disorders and an adverse medication event that acted upon the applicant leading up to and during the commission of the offences. Fundamentally, because the sentencing process erred by not considering this medical evidence, the process was fundamentally flawed. The applicant asserts that the sentence that was ultimately imposed, when set against the parity principle in criminal law, reveals that the sentence was completely outside the range of comparable sentences for like offenders [sic]. The applicants [sic] sentence at the very least was 150% greater than all comparable offenders and this is very concerning.
Because consistency in the punishment of offences against the criminal law finds its expression in the parity principle, which requires that like offenders should be treated in a like manner. Equally, the parity principle also allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances. The applicant clearly had unrefutably certain psychiatric evidence that served to reduce his culpability significantly. Respectfully, this evidence was ultimately not considered by the sentencing Judge nor the Court of Criminal Appeal and this evidence needs to be considered now in this inquiry."
In determining an application under Part 7 of the CAR Act, the Court is making an administrative decision: Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 362 [124]; [2003] HCA 28. The relevant principles to be applied in determining an application made pursuant to s 78 were considered by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 ("Holland"). His Honour stated the following at [6]-[9]:
"The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].
Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].
There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9].
Some Other Features of the Jurisdiction
The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result."
In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 ("Sinkovich"), Basten JA referred (at [64]) to the test stated in Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48 of whether there is a feeling of "unease" or "disquiet" about the conviction or sentence (also referred to by Johnson J in Holland at [6], see above). His Honour went on to observe at [65] that "[t]his language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question'." Similarly, in Buttrose v Attorney General of New South Wales (2015) 324 ALR 562; [2015] NSWCA 221, Beazley P and Leeming JA observed the following at [16]:
"The precondition to a direction that there be an inquiry or a referral to the Court of Criminal Appeal under s 79(1) is that 'it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case'. The statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question. That is to say, as Basten JA said in Sinkovich at [26], 'it is the satisfaction of the judge as to the relevant condition which is critical.'"
On the basis of his finding that the applicant's offending was pre-planned and not a result of a sudden loss of control, his Honour also found that the principles of specific and general deterrence had a role to play in the applicant's case.
The sentencing judge did not make any findings as to any role the applicant's taking of Avanza on the night before the incident had on him at the time of offending. His Honour had expressly referred to the evidence of Dr Westmore that Avanza had been prescribed to the applicant four months prior. Also, his Honour did not consider there to be a connection between the applicant's sexual abuse as a child and the offending.
In relation to the guilty plea, his Honour noted its utilitarian value, but found that because it was not entered in the Local Court the applicant could receive a discount of only 12.5% to the indicative sentences. His Honour also accepted that the applicant was remorseful.
Both victims (ie Ms Quintero Naranjo and Ms Knox-Haly) provided victim impact statements. The Crown submitted that they were provided not as evidence of aggravation of the offending but to provide "the Court with insight into what these victims experienced".
As stated above, on appeal to the CCA, there were no challenges made to any of the findings of the sentencing judge. The Court set out some of those findings as background to the sole ground of appeal which concerned the application of the totality principle. In the course of considering evidence concerning the applicant, the sentencing judge stated (ROS 17):
"He is now 45 years of age and this gross misconduct is said by counsel to be aberrant behaviour. It can be seen to be so, but in my judgment there is a pattern revealed in the psychologist's report and the psychiatrist's report to which I shall come that I find supports the submission made by the Crown that the offender had a misguided and unjustified sense of entitlement in his relationship with his former wife. When she sought to leave what she has said was a toxic environment he chose the path that has put him in the dock before me today."
His Honour made the following findings with respect to the applicant's moral culpability (ROS 35):
"There is to be an assessment made with regard to his moral culpability bringing to account his psychological assessments that are before me, which ultimately are all to the point that he does and has been suffering from major depression and anxiety.
To the extent that this violence was perhaps an aberration, the evolving pattern leading to what occurred was not so, but is to be seen within the context of his life beginning from when he was in school and the bullying that led to the personality that he now has.
The question that had to be resolved in the determination of this matter was when he formed the intention to kill. As I indicated I am satisfied beyond reasonable doubt, drawing together all of the facts and circumstances, that the only rational conclusion to draw is that he intended to kill his wife when he went to these premises. His wish to take his own life, for which he must be given the benefit of the doubt overall upon the evidence that is before me, I find was an act intended after he had completed his crime of specific intent directed towards his wife."
The sentencing judge found that the offences "were not spontaneous, that there was a measure or planning, and that this is reflected in the fact that he took the knife there and had the tyre lever also" (ROS 36). His Honour made further findings concerning matters relevant on sentence (ROS 36):
"The Crown provided written submissions; she summarised the facts and salient points upon which I would come to the view that this was a premeditated event and that the intention must have been formed before his attendance at the place. I am reminded of the grievous injuries suffered by these women. This is a domestic violence offence. The history of the relationship, the threats to his wife's life, including by way of an email sent to her family in Colombia. She referred to his sense of being discarded once his wife had gained the maturity and the confidence to manage life."
His Honour observed, by reference to the psychiatric evidence and the objective seriousness of the offences (ROS 36-37):
"The opinions offered by Dr Furst and Dr Westmore, which are the most favourable to the offender, must be viewed, as the Crown submits, in the context of the level of planning that was evident in the commission of the first crime. The objective seriousness is to be assessed by the context of domestic violence, the level of planning, and the attempt to take his wife's life in two separate sequences all within an hour timeframe, first using the knife and, secondly, by driving a motor vehicle at her. He thereafter left the scene without offering any assistance. And, of course, in between the attack on his wife by the knife and his attack upon her by the car, he grievously injured the woman who came to her aid."
His Honour said with respect to the applicant's risk of reoffending and his remorse (ROS 38):
"Upon whether or not he is likely to offend in the future, the material before me includes opinions that risk of re-offending is low, at least in the pre-sentence report, however the history of bad relationships does not leave me confident that I could conclude that there is limited risk of him re-offending in the future in the absence of more progress toward towards the resolution of the issues identified by these psychiatrists. There is a risk that he cannot cope in a relationship in which he suffers the perception of rejection or abandonment. I accept that he is sincere in his intention or desire to ensure that he does not offend again but these are early days and I am not prepared to conclude that his prospects for rehabilitation are strong or that there is [a] low risk of reoffending. Things I expect will change, however, in the time that he is going to spend in custody. I accept that he is remorseful. It does not appear from the material before me that he has put in issue any of the facts of the offences other than the mental health issues. He has to have the benefit of the plea[s] of guilty as I have indicated to be taken into account in the assessment of the facts and circumstances and including the discount to which I have referred."
His Honour also made the following observations (ROS 39):
"His psychological condition impacts upon the assessment of moral culpability, I accept. It remains however that such a crime does attract considerations relevant to general deterrence and specific deterrence. Moreover this conduct must be denounced. There must be recognition of the harm suffered by these victims. The sentence and its length will do much to fulfil the obligation to rehabilitate the offender, to the extent that the sentence might, and ultimately one hopes that the community will be protected from him."
In concluding his sentencing remarks his Honour stated (ROS 39-40):
"There were two discreet attacks upon the wife within a narrow timeframe. The first was with the knife and the second using a motor vehicle. The injuries she suffered are properly described as grievous. In between those two discreet attacks, he was seen to drop his wife on the ground after dragging her from the vehicle. He turned to the second victim who approached and then struck her with sufficient force to drive the knife through her skull causing also grievous injury.
The proposition that he intended to commit suicide in front of his wife is not consistent with the objective circumstances which I have drawn together to lead to the conclusion that he intended to murder her before taking his own life, if that was his intention. I am satisfied that he formed the intention to kill his wife the night before or at least at the point when he was determining how he might go about severing the carotid arteries as he has admitted in respect of himself. To conclude otherwise is inconsistent with the fact that he went to these premises armed with a knife, that he had also available a tyre lever, that he waited for her, that he stopped his car behind hers, that he approached her and engaged in conversation and then lunged at her forthwith and thereafter entered his motor vehicle after the intervention by the second victim and drove at her at least twice, leading to the orthopaedic damage that she suffered. The ferocity with which he attacked her is another factor that I brought into account, together with the ferocity of the attack upon the second victim."
None of these grounds were raised on the appeal in the CCA where, as stated above, the applicant's challenge was confined to a single ground of appeal contending that his Honour erred in the notional accumulation of the indicative sentences for the purpose of fixing an aggregate sentence.
The applicant's primary complaint is about the way in which Bennett SC DCJ dealt with medical evidence of his mental illness at the time of offending. On the applicant's submission, this evidence should have resulted in a lesser sentence. This forms the basis of ground 1 (that his Honour's finding that the offending was pre-meditated and not a result of loss of self-control ran contrary to the available medical evidence), ground 2 (that his Honour attributed insufficient weight to the potential effect of the applicant's change in medication from Lexapro to Avanza on his mental state at the time of offending), ground 3 (that his Honour failed to accept a diagnosis of mental illness) and ground 5 (that his Honour failed to consider the effect of the sexual abuse the applicant experienced as a child). His submissions on these grounds may be summarised as follows:
1. His Honour erred in not accepting psychiatric evidence that the applicant's loss of self-control at the time of offending was directly attributable to his psychiatric disorders in combination with the adverse effect of the change in medication rather than as a result of the history of his relationship with the victim.
2. In the weeks before the offending the applicant's antidepressant medication was changed from Lexapro, an SSRI-class antidepressant, to Avanza, an MOI-class antidepressant. His Honour did not consider the psychiatric evidence attributing the applicant's violent behaviour to the adverse effects of this switch, by inducing suicidal ideations, increased anxiety, agitation and aggression and by causing the applicant, both in the weeks prior to offending and during the offending, to experience cognitive impairment, confusion, autonomic instability and self-harm ideation.
3. His Honour erred both in not adopting Dr Westmore's diagnoses of Acute Stress Disorder and Panic Disorder in mitigation and in approaching, incorrectly, the question of mental illness by reference to looking at whether the accused "was in psychosis".
4. The applicant had a low self-esteem because he was sexually abused as a child and his Honour erred by not considering the link between the abuse and the applicant's mental health issues and by not taking it into account in mitigation on sentencing.
5. The applicant was denied procedural fairness because his Honour did not accept the expert evidence, resulting in excessive indicative sentences and an excessive aggregate sentence. In particular, his Honour erred in not considering the decision in Chapman v R [2018] NSWSC 1741, going to the submission that applicant's mental health contributed to the commission of the offence in a material way.
6. His Honour erred when he stated that the sentence that was imposed on the applicant was what the community would expect. The applicant relied on Chapman in submitting that the notion of general deterrence, that "anticipates some form of rational or studied consideration of the consequences of acting in particular way", must have less significance in the case of the applicant who was mentally ill and suffering from an adverse reaction to medication at the time of offending.
7. The CCA was in error by not considering the expert medical evidence in its entirety and by not finding that the aggregate sentence was too high by reference to past cases, sentencing statistics and the parity principle.
With respect to ground 4 (that he was not given the full 25% discount for his guilty pleas) the applicant relied on Haines v R [2016] NSWCCA 90 ("Haines") and R v Shine [2016] NSWCCA 149 ("Shine") in submitting that the full discount should have been applied (although the pleas were entered only on the day of trial) in light of exceptional circumstances. The applicant detailed his issues with obtaining legal advice with respect to the expert reports in circumstances where he was still mentally ill and submitted that the delay in entering the pleas was not unreasonable and that it can be attributed to his mental disorder.
With respect to ground 6, the applicant submitted that the sentencing judge exceeded the bounds of his discretion by finding facts that were in dispute without giving the applicant proper notice. The nub of the applicant's submissions is that his Honour was unwilling to find that he had strong prospects of rehabilitation and a low likelihood of reoffending and that both the sentencing judge and the CCA erred in not properly making these assessments. He relied on Chapman in submitting that he had no criminal history or tendency for violence. He also relied on the opinions of Dr Westmore and Dr Furst, respectively that "his greatest risk is to himself at this time" and that his "violence was out of character and unlikely to be repeated … and [he] has a low risk of reoffending". In support of this ground, the applicant also detailed issues with visits in custody and health issues experienced by his father, mother, sister and stepson.
With respect to ground 7, the applicant submitted that there was an abuse of process both before the sentencing judge and the CCA that resulted in the aggregate sentence being excessive. The applicant repeated the submissions regarding his mental impairment in the period leading up to and during the offending due to the medication change and regarding the lack of notice given to him when the sentencing judge made adverse findings. He relied on the decision in Robinson v The Queen [2006] NSWCCA 192 ("Robinson").
The applicant also referred to the principle of parity in submitting that both of his offences were assessed as being in the mid-range of objective seriousness but that the indicative sentences fell in the "worst case" range and were outside the range of comparable sentences. He relied on JIRS statistics in submitting that the indicative sentence for count 1 was approximately 171% higher than the median sentence for that offence and for count 3 that most sentences were 500-700% less than what was imposed on him.
The nub of his further submissions in relation to this ground included a repetition of his assertions that the offences were out of character, that he is remorseful and accepts responsibility and that his circumstances did not warrant either specific or general deterrence.
The applicant submitted that his review application is warranted because he was not sentenced in accordance with the Crimes (Sentencing Procedure Act) 1999 (NSW).