Browning v R

Court of Criminal Appeal (NSW)|2015-06-01|Before: Gleeson JA, Johnson J, Garling J

Judgment

GLEESON JA: I agree with the orders proposed by Garling J for the reasons given by his Honour. I also agree with the additional observations of Johnson J

Other Relevant Matters

In addition to the offence to which the applicant pleaded guilty, he asked the Court, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 to take into account four charges which were placed on a Form 1. Those charges included an offence of intimidating Mrs Browning with intent to cause her fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, two offences contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act of contravening a condition of an apprehended domestic violence order which was made for the protection of Mrs Browning, and a charge of intentionally damaging Mrs Browning's mobile phone contrary to s 195(1)(a) of the Crimes Act.
At the time of the sentencing proceedings, the Crown withdrew a backup charge which had been preferred against the applicant. However, the Court was asked to deal with two offences contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act which had been placed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986.
In respect of those two offences, to which the applicant pleaded guilty, he was sentenced in each case imprisonment for 3 months to date from 8 April 2013 and to expire on 7 July 2013. These terms of imprisonment were wholly concurrent with each other, and with the sentence imposed in respect of the principal offence against s 47 of the Crimes Act.
These two sentences have been served. There is no application before the Court in respect of these sentences. Other than as a matter of context, they are of no further relevance to the consideration of this application.

Agreed Facts

The applicant and Mrs Toni Browning were married for over 30 years until they separated in August 2012.
After separation, Mrs Browning moved in with her parents in the Daley's Point area. The applicant remained living in the marital home in the Wamberal area.
On 11 September 2012, an Apprehended Domestic Violence order ("the ADVO") was made for a period of 12 months at the Lismore Local Court.
Notwithstanding that ADVO, which restrained the applicant from threatening or intimidating or approaching or contacting Mrs Browning in any way, the applicant contravened it. On two occasions in late January 2013 and mid‑February 2013, the applicant breached the terms of the ADVO by approaching Mrs Browning, first when she was visiting the Ettalong Markets in the company of her elderly mother, and secondly, when she was at a tavern at Empire Bay with members of her family. On each of those occasions the applicant was reminded firmly that he was not entitled to approach Mrs Browning or communicate with her. As he was leaving on each occasion, the applicant threatened Mrs Browning.
On 5 April 2013, Mrs Browning was driving home with her elderly mother. As she travelled through a roundabout, it became apparent that the applicant was driving his motor vehicle in the same roundabout, I infer, having followed her. She drove to her home, and pulled in along the driveway. As she pulled up outside her home, the applicant stopped his vehicle in the driveway directly behind her vehicle. She attempted to lock the motor vehicle but was unsuccessful. She took out her mobile phone in order to attempt to ring the police. At that point in time, the applicant approached the driver's side of the car where Mrs Browning was sitting. He opened the door, grabbed her mobile telephone from her and threw it to the ground, smashing it. The applicant punched Mrs Browning to the right side of her head and dragged her from the car. The applicant was heard shouting at Mrs Browning and, also, her mother.
At about that point in time, Mrs Browning heard the accused say "I've 30 litres of petrol and I am gunna burn …". Mrs Browning could not make out the balance of what the applicant said.
Three teenage boys, who were in the next door property, alerted by Mrs Browning's screams, came to her assistance. They observed the applicant standing over Mrs Browning, holding her by her shirt. When confronted by them, and having been told to stop, the applicant replied: "Leave it, it's my wife".
The applicant then let go of Mrs Browning and walked to the back of his motor vehicle where he took out a black jerry can full of petrol. Mrs Browning got up and ran towards the set of stairs on the side of her house. The applicant chased her, and caught her. He took the cap off the jerry can and poured the contents of the can over her head.
The applicant then took out a box of matches and attempted to light one of the matches. The three teenage boys jumped over the fence separating them from the applicant, and ran to the aid of Mrs Browning. One of the boys grabbed the applicant and pulled him away from Mrs Browning and onto the ground, causing him to drop the matches. That teenager then threw the matches into a neighbour's yard.
Mrs Browning was screaming because the petrol was burning her face. One of the other teenagers obtained a hose and helped to wash the petrol off Mrs Browning. The third teenager called the police.
Apparently undaunted, the applicant walked back to his vehicle and got another jerry can of petrol out of it. He poured its contents onto the driveway so that the petrol ran down to where Mrs Browning was standing. The petrol ran under the motorcar which had been driven by Mrs Browning to her house, and in which her elderly mother was still sitting.
The applicant, who by then was sitting in the front driver's seat of his motor car with the door open, attempted to light small pieces of paper with a cigarette lighter and throw them onto the petrol which had been poured on the ground, so as to ignite it. The burning paper went out before the petrol ignited.
Upon seeing what the applicant was doing, one of the teenagers ran up and pushed the driver's door closed to stop him throwing the lit paper out of the car and onto the spilled petrol.
The applicant started his motor car and left the scene. He was arrested by the police a short time later.
During an interview with police, the applicant told police that he was aware of the ADVO in place against him for the protection of his wife. He was asked about the allegations that he had assaulted Mrs Browning and poured petrol over her head. He responded "I don't remember … I blanked out".
As a result of the whole of the incident, Mrs Browning suffered scratches and bruising to the right side of her face and head, and minor petrol burns to various parts of her body.
These facts, to which I have just referred, were drawn from a Statement of Facts which was tendered by the Crown to the sentencing Judge, and which was not objected to.
The applicant was called to give evidence during the sentencing proceedings. He was asked about the events of 5 April 2013. He told the Court that he could remember seeing his wife's car stopped in the driveway, and he pulled in behind it in order to speak to her. He said that after that point in time he could remember nothing as to what happened. He agreed that, as witnesses had observed him pouring petrol over his wife, that must have been what occurred.
In cross-examination the applicant, when taken to the events of 5 April 2013, agreed that he poured petrol on his wife, but denied that he lit or attempted to light the petrol. His attention was drawn to the inconsistency between that evidence and the Agreed Statement of Facts. He responded that he did not remember what happened. Ultimately, in response to a question from the sentencing Judge, the applicant agreed that he did take out matches, attempt to light the petrol, but was unable so to do.

Proceedings on Sentence

The Crown tendered a Victim Impact Statement from Mrs Browning. In that statement she recorded that she was still traumatised by the events of the physical attack upon her. She told the Court that she could still smell petrol covering her body. She felt guilty that her elderly mother was trapped in a car which was covered in, and surrounded by, petrol. She said that she still feared the horrific consequences had her elderly mother become trapped in a burning vehicle.
She reported that she continued to feel terrified even though the applicant was in jail, and that she was fearful for herself and for her family and friends once the applicant was released from jail.
The Crown also tendered a criminal history record for the applicant. That form recorded that the applicant, who was born in October 1955, and accordingly was 57 at the time of the offences, had a criminal history which, after achieving his adulthood, involved offences dealing with driving motor vehicles in 1974 and 1990, and a minor offence of unlawful carnal knowledge in 1978. But for those relatively minor offences, until 2012, the applicant had no criminal history as an adult - certainly, no history which was relevant to these offences
On 4 February 2013, the applicant was dealt with in the Gosford Local Court for two offences of contravening a restriction in an ADVO and for an offence of common assault. For each of those offences, the applicant was convicted and placed on a bond to be of good behaviour pursuant to s 9 of the Crimes (Sentencing Procedure) Act. An appeal was lodged. It was dealt with in the District Court at Gosford in March 2013. On that day, with respect to each offence, the convictions were set aside and the Court, without proceeding to a conviction, imposed with respect to each offence, a bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act for a period of 18 months.
The bonds were imposed in the Gosford District Court in March 2013 by Ellis DCJ, before whom the sentencing proceedings came.
The Crown also put before the Court a Pre-Sentence Report, which had been obtained from Community Corrections for the purpose of the sentence.
The applicant's attitude to his offending was discussed during the course of the interview for the pre-sentence report. It was concluded that the applicant had minimised his offending significantly, and found it difficult to empathise with the victim, Mrs Browning. Ultimately, he conceded to the interviewer that he was ashamed of his behaviour.
It was concluded that he had a medium risk of re-offending. He was assessed as suitable for a range of education programs, including the Domestic Abuse Program.
Ultimately, Community Corrections concluded: "It appears that Mr Browning's wife left the marriage in 2012, and the offender's mental health deteriorated over a number of months. Mr Browning's attitude to his offending behaviour is concerning as he continues to blame the victim and her family for his actions. His regret appears to be focussed around his own circumstances."
In late November 2012, the applicant had been seen by a registered psychologist at the Reid Clinic. He had been referred there by his general practitioner, who was concerned with his levels of distress, and his declining ability to attend to, and concentrate on, his business, consequent upon the separation from his wife.
According to the tests administered, the applicant was found to have mild depression and significant anxiety and stress. He was medicated for the depression, and also for hypertension. He was ultimately diagnosed with an adjustment disorder, mixed anxiety and depressed mood.
On the day following the incident, and after his arrest, the applicant was admitted to the mental health unit at Gosford Hospital and detained there under the Mental Health Act 2007. By the conclusion of his period of detention, there was no evidence of any major mental illness or disorder. He apparently expressed remorse over the alleged incidents prior to his admission, and the discharge summary notes that his claimed poor recollection of the incident did not appear to have any organic basis.
He was discharged from the facility back into police custody.
A forensic psychiatric report dated 30 May 2013, was also put before the sentencing Judge. It had been obtained previously for consideration when he was being sentenced for his earlier offences.
The report identified some physical problems associated with high cholesterol, angina and hypertension. Insofar as a psychiatric diagnosis was concerned, it concluded that the applicant had a chronic adjustment disorder with depressed mood, and associated major depressive disorder.
As well, the sentencing Judge had a psychiatric report of Dr Richard Furst, consultant forensic psychiatrist, before him.
The applicant gave a history to Dr Furst with respect to events after his separation. He said: "Mr Browning described becoming severely depressed after the marital separation, having been low in mood even before his wife left him. He was unable to cope, felt very depressed, became withdrawn, gained weight, lost interest in things, lost his motivation and drive to work, had low energy levels, felt agitated, irritable and moody, noticed his concentration and memory were letting him down, and suffered from insomnia - sleeping only around two hours per night."
The applicant gave a history to Dr Furst, that he had felt hopeless and suicidal and had made, what seems to be, a desultory attempt to hang himself on 11 February 2013, as a consequence of which he was admitted to the Mandala Clinic, the mental health unit at Gosford Hospital for a period of about 2½ weeks, after which he returned home.
The applicant maintained to Dr Furst that he had no recollection of the circumstance surrounding his offence, although he reconstructed that he probably wanted to speak to his wife to know why she had left him.
Dr Furst then reviewed a series of relevant documents, including a psychiatric report of Professor David Greenberg dated 30 May 2013. Dr Furst agreed with the diagnosis by Professor Greenberg, that the applicant had a major depressive order prior to the offence. He differed from Professor Greenberg in that he would not have concluded that the applicant had a chronic adjustment disorder.
Dr Furst certainly concluded that the applicant was properly required to have ongoing psychiatric care.
With respect to the events in question, Dr Furst expressed these various comments: "[The applicant] was probably suffering from severe depressions at the time of the offences in question before the Court, having lost weight, being unable to sleep, attempting suicide in February, and feeling hopeless, losing motivation and general decompensating to the point that he was unable to concentrate properly and became lost in familiar areas on two occasions. … He reported a poor memory for the alleged offences before the Court on 5/4/13, but had intact recollection right up until the moments before the offence. Although his reported amnesia is a consideration, it is unlikely that he was acting in a state of dissociation or has the defence of automatism available, as his alleged actions were purposeful and he was able to make coherent statements of an angry nature to the victim and his mother … … It is likely that Mr Browning acted on impulse at the time of the offences in question in response to his severe depression, feelings of anger and inability to come to terms with his marital separation. He may well have struggled to control himself at the time. … Although his depression was precipitated by the shock of his marital separation, the severity of his depressive symptoms make a diagnosis of major disorder more appropriate than an adjustment disorder alone. A major depressive disorder is an illness characterised by a pervasive low mood, low self-esteem and loss of interest or pleasure in normally enjoyable activities. It is a disabling condition that has an adverse impact on a person's ability to work or study, their family life, sleeping and eating habits and general health. Diagnosis is based upon a combination of self-reported symptoms and mental state features. Depressed individuals may be preoccupied with, or ruminate over, thoughts and feelings of worthlessness, inappropriate guilt or regret, helplessness, hopelessness and self-hatred. Other symptoms of depression include poor concentration and memory, withdrawal from social situations and activities, reduced sex drive and thoughts of death or suicide. Insomnia is common. It is common for individuals with depression to present with physical complaints including fatigue, headaches, or problems with digestion. The more severe depressive symptoms are typically referred to as melancholic, which are characterised by a more severe level of depressed mood, anhedonia (loss of pleasure and profound sadness) and psychomotor agitation."
Dr Furst concluded that Mr Browning was receiving appropriate treatment for his psychiatric condition and would probably make a reasonable recovery over coming months if he continued with his general treatment program.
As I noted earlier, the applicant was called to give evidence during the sentencing proceedings. In his evidence in chief, he told the Court that he felt very ashamed of himself for the behaviour in which he engaged on 5 April 2013. He asserted that he would not offend again, and that if placed in the position in which he was in the past, namely, in or near the presence of the victim, Mrs Browning, he would walk away from such a circumstance because he had "… been through enough punishment already".
A fair reading of the applicant's evidence would suggest that at least until the end of the cross-examination, when he was asked a number of questions by the sentencing Judge, he was reluctant to accept that he had undertaken all of the conduct reported by the independent witnesses, and contained in the Agreed Statement of Facts, and he was reluctant to accept that his wife was not the cause of the dispute, and shared some blame. It would seem that, ultimately, he came to an acceptance of those facts.
At the conclusion of the applicant's evidence, the applicant's solicitor made oral addresses to the Court, as did the Crown.
At the conclusion of addresses, his Honour proceeded to impose the sentence and deliver his Remarks on Sentence.

Remarks on Sentence

His Honour commenced by identifying the offence, and noting the maximum penalty applicable. In particular, his Honour noted that the offence did not require the infliction of bodily injury.
His Honour then turned his attention to the Agreed Statement of Facts, and set out a comprehensive version of those facts. No criticism is directed to his Honour's summary.
His Honour noted that the applicant pleaded guilty in the Local Court, and was entitled to a discount of 25%, and he also noted that the applicant had been in custody since 8 April 2013, and he indicated that he would backdate his sentence to then.
It is convenient here to interrupt the summary of his Honour's Remarks on Sentence to indicate that, in this Court, it is agreed between the Crown and the applicant's counsel, that his Honour should have backdated the sentence so as to commence on 5 April 2013, which was the day on which the applicant was arrested and taken into custody. It is agreed that his period of time in the mental health unit at Gosford Hospital ought count as part of his time in custody.
Regardless of the outcome of the substantive grounds argued on this appeal, it will be necessary for the Court to, at the least, resentence the applicant so that his sentence commences on 5 April 2013.
His Honour noted the applicant's previous offences and, in particular, the fact that he had appeared a little over a week prior to the offence in question in the District Court at Gosford before his Honour.
His Honour noted the way in which he would deal with the breaches of the bonds. No complaint is made with respect to that.
His Honour's attention had been drawn to the decision of R v Dinh [2010] NSWCCA 74; (2010) 199 A Crim R 573. His Honour considered that decision.
His Honour noted that the principle set out in Dinh required him to regard the range of acts set out in s 47 of the Crimes Act as not being hierarchical, but rather that it was a matter for him to determine what the factual situation was in this case, and ultimately determine where it falls on the continuum of offending against the particular provision.
His Honour then considered the question of the extent of the applicant's intent with respect to formulating a view as to the seriousness of his conduct. His Honour noted that he accepted that the matter proceeds on the basis that the incident was not a pre-meditated one, it was nevertheless clear that the applicant had formed an intent that he was serious in his attempts to set alight to the victim, and that he made a number of attempts so to do. His Honour noted that that crime was only prevented by the intervention of the three teenagers who were "… courageous in coming to the aid of the victim". This is undoubtedly true.
His Honour concluded that the matter fell within the mid-range of offending, and that the only reason that it did not fall in a more serious range was because there was no premeditation. His Honour also accepted that, at the time of the offence, the applicant had been diagnosed as suffering from a major depressive illness.
However, his Honour noted there was no direct causal connection between the offending and that illness as being relevant and took it into account when considering whether or not general deterrence played as significant a role as it otherwise might.
His Honour concluded from hearing the evidence of the applicant that he had demonstrated insight into his offence and that he had now expressed some contrition, not because of what had happened to him but because he had realised, and accepted, the consequences of his offending on the victim.
His Honour expressed the view that the sentencing exercise was a difficult one with "very little, if any, guidance in terms of specifics". His Honour had regard to the principle set out in the decision of Dinh.
His Honour concluded in this way: "I decide this matter on the basis of my conclusion as to the objective criminality being in the mid-range but I note that it is against the background of an offence that is a very serious criminal offence which carries a maximum penalty of 25 years imprisonment, and that that penalty applies regardless of whether an individual suffers actual bodily harm or not. …"
His Honour then indicated that he thought that the notional commencement point of the sentence was 10 years. He then discounted it by 25% for the early plea of guilty, leaving a remaining head sentence of 7½ years. His Honour found special circumstances and determined to fix a non-parole period of 4 years.
His Honour dated the sentence to commence from 8 April 2013, which was when the applicant was formally taken into custody, having been released from the Mental Health Unit at the Gosford Hospital.
Finally, his Honour noted that, in assessing the sentencing, he had taken into account all of the matters on the Form 1.

Application for Leave to Appeal

The applicant seeks leave to appeal on the basis of six grounds. They are as follows: "(1) The Court's finding that the s 47 Crimes Act 1900 offence was in the mid-range of seriousness failed to adequately account for the Court's findings that the offence was not pre-meditated but spontaneous, that no significant harm was occasioned to the victim, and that the appellant's attempts to carry out his intended actions were less determined than in other examples of this offence, and other matters which bore on the assessment of the seriousness of the offence. (2) The Court erred in finding that there was "no evidence of any direct causal connection" between the applicant's offending and his major depressive illness. (3) The Court's stated "starting point" of 10 years total term, and the ultimate reduced total term of 7½ years, reflected a reduction of 25% for the utilitarian value of the plea of guilty but failed to take into account the other factors in mitigation that were not taken into account by the Court in the finding of special circumstances. (4) The Court erred in inviting the Crown to give its opinion as to: (i) the quantum of the sentence the Court was proposing to impose; and (ii) what quantum of sentence would be "appealable". (5) The Court erred in increasing the quantum of the sentence the Court proposed to impose consequent on its discussions with (and opinions given by) the Crown (noted above in Ground 5) (sic) (6) The sentence imposed was, in all the circumstances, manifestly excessive."

Ground 1: Mid-range of Seriousness

The applicant submits that in light of the fact that the applicant's actions on 5 April 2013 were not pre-meditated but spontaneous, that there was no significant harm caused to the victim, and the nature of the applicant's attempts to set the petrol alight were such that they were not persisted with, the offence was lower than the mid‑range of objective seriousness.
As well, the applicant submitted that by comparison with the conduct, the subject of the decision of this Court in Dinh, there were many features which did not exist in the factual circumstances here which, if they were present, would have positioned the seriousness of the offending at or above the mid-range.
In conclusion, the applicant submitted: "… that by failing to really look at the range of actions that were absent in this matter, to properly assess where in that range the actions of this appellant truly sat, in accordance with the principals in R v Dinh …, the Court's assessment of the appellant's conduct as being mid-range was flawed, resulting in a 'starting point' (and subsequent sentence) that was unreasonable or plainly unjust."
The Crown submitted that, contrary to the applicant's submission, the applicant's attempts to light the petrol were serious and persistent, and that those attempts were only thwarted by the intervention of the three teenagers. Even after their intervention, the Crown submits, the applicant attempted to continue to light the petrol.
The Crown submitted that the absence of any significant physical injury was an irrelevant consideration in assessing the seriousness of the criminality. The Crown submitted that if significant injury had been sustained, then a different charge would likely follow. It was correct, the Crown submitted, for the sentencing Judge to conclude that the absence of actual bodily harm is not a mitigating factor.
Finally, the Crown submitted that, having regard to the principles in Dinh, the sentencing Judge approached the assessment correctly, noting that the objective seriousness for an offence against s 47 of the Crimes Act is to be determined by the established facts. The Crown submitted that no error has been demonstrated.
This Court is, and always has been, very slow to intervene in a sentencing Judge's evaluation as to the degree of objective seriousness of an offence.
In Mulato v R [2006] NSWCCA 282 at [37], Spigelman CJ said: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing Judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself, or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not a particular characterisation which her Honour gave to the circumstances of the offence, was open to her Honour."
In the same decision, Simpson J said at [46] this: "The assessment of the objective seriousness of an offence is quintessentially for the sentencing Judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principle stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of the first instance Judge should never be underestimated. It is not the function of this court to substitute its own view of objective seriousness for that of the first instance Judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance Judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance."
In order to consider fully the applicant's submissions, it is necessary to have regard to the principles stated by this Court in Dinh. At [46], Johnson J (with whom Basten JA and Howie J agreed), said: "[46] When an offence, such as that under s 47, is defined to include any of several categories of conduct, the seriousness of the conduct in a particular case depends not on the statute defining the offence, but on the facts of the case. In the case of a s 47 offence, a sentencing Judge has to consider where the facts of the particular case lie in a spectrum, at one end of which lies the worst type of offence perpetrated by any act which constitutes a s 47 offence as defined."
The terms of s 47, on their face, make it plain that the offence is complete whether a person suffers bodily injury as a consequence of the conduct of the offender or not. The offence is one of undertaking an act, in this case pouring petrol (an explosive substance) over a person, whilst having an intent to burn.
Here, not only were the elements of that offence satisfied by the plea of guilty, but the evidence overwhelmingly established those elements. In particular, the persistent but thwarted attempts by the applicant to set alight to the petrol, demonstrated his intention to burn his wife.
The facts of and surrounding this offence are, in my view, of obvious seriousness. The applicant followed the victim who was driving her elderly mother home to her parents' place. He parked his car directly behind where her car was stopped. He approached the driver's side of the car where the victim was sitting, opened the door, assaulted the victim and damaged her mobile phone which was the tool for summoning police assistance. The victim was pulled out of the car, and stood over by the applicant. When confronted by the neighbouring teenagers and told to let go of the victim, the applicant did so but, fetched the petrol, prevented his wife from escaping him by chasing after her and physically restraining her, then poured the contents of the jerry can of petrol over her head and produced matches intending to light the petrol.
He was thwarted. He then made a second attempt, this time pouring the petrol contents onto the driveway so that it ran down to the victim and under the car where her mother was sitting. He made further attempts to light that petrol. His offending only ceased when one of the teenaged neighbours, in effect, contained him within his vehicle. He then fled the scene.
Accepting, as his Honour did, that this was not a pre-meditated offence, nevertheless the facts demonstrate that the offending was serious. The fact that no physical injury ensued was due entirely to the intervention of three teenagers.
In my view, the finding of his Honour that this offence was in the mid-range was, if anything, unduly favourable to the applicant. However, the fact that I form a view of the objective seriousness is, as the authorities demonstrate, not to the point.
The question is whether it was open to his Honour to have come to the conclusion which he did. In my view, it was. The facts which I have just outlined are more than sufficient to support the conclusion to which his Honour came.
I would not uphold this ground.

Grounds 2 and 3

The applicant combines these grounds in his submissions. It is to be remembered that in Ground 2 the applicant complained that the Court erred in finding that there was no evidence of any direct causal connection between the applicant's offending and his major depressive illness.
It is convenient to deal with this Ground first. The Crown resists a finding of error. It notes that in the proceedings on sentence, the applicant's legal representative did not make any submission that there was a causal connection. In the course of the Crown submissions, a discussion between the sentencing Judge and the Crown occurred on the subject. His Honour ventured the view that there was no such causal connection. The Crown notes that after that exchange, the applicant's legal representative made further submissions, but did not suggest to the contrary of that view.
The sentencing Judge was in a difficult position when considering this question of whether the applicant's depressive illness had a causal connection with this conduct. The evidence from the applicant was that he could not remember his offending conduct. He did not attempt to give any explanation for it himself. The highest which any explanation for his conduct rose to on this day, was an available inference that, having accidentally and unintentionally seen his wife, the applicant followed her to her parents' home because he wanted to talk to her. That inference is available from his previous attempts to discuss with his wife their separation, in the context of her unwillingness so to do.
The expert report of Dr Furst seems to reason that a causal connection existed by reason of the co-existence of the depressive illness and the conduct, the subject of the offence.
In describing a major depressive disorder, Dr Furst suggests that the disorder is a disabling condition that has an adverse impact on a person's ability to work or study, their family life, sleeping and eating habits and general health. He notes that depressed individuals may be preoccupied with, or ruminate over, thoughts and feelings of worthlessness, inappropriate guilt or regret, helplessness, hopelessness and self-hatred.
Some of those symptoms were noted by Dr Furst as having existed in the applicant prior to the offence. Dr Furst had previously recorded in summary, the nature of the conduct, giving rise to the offence. He noted that the applicant was able to make coherent statements "of an angry nature to the victim and her mother". He noted that there was no reason to conclude that the applicant was mentally ill within the legal test at the time of the offence. He then went on to express his opinion that it was likely that the applicant acted on impulse at the time of offences in question: "in response to his severe depression, feelings of anger and inability to come to terms with his marital separation. He may well have struggled to control himself at the time".
The reasoning for the connection between a disorder, which has the consequences to which I have earlier referred, and the conduct in question, is absent from the report of Dr Furst. There is an obvious causal connection between anger on the part of the applicant, and his conduct. His statements at the time are evidence of that causal connection.
The mere statement of a causal connection with the depressive disorder by Dr Furst, in terms which would otherwise be described as an ipse dixit is not persuasive. The fact that the applicant's lawyer at the sentencing hearing did not make any submission with respect to such a causal connection suggests also that there was a less than convincing connection between the two.
It was a matter for the sentencing Judge to assess, as to whether he accepted, on the balance of probabilities, the opinion of Dr Furst. His Honour made known his tentative view in the course of the Crown submissions. The applicant's lawyer did not seek to dissuade his Honour from that view, or even raise it with him, in submissions in reply.
I am not satisfied that in all of the circumstances, there was any error in his Honour declining to accept the existence of the causal connection postulated by Dr Furst. It was, on any view, speculation rather than reasoned opinion. I would not uphold Ground 2.
Ground 3 complains that the sentence imposed, while accounting for the utilitarian value of the plea of guilty, failed to take into account: "other factors in mitigation that were not taken into account by the Court in the finding of special circumstances".
The applicant listed the following matters as being matters which ought to have but which were not, explicitly, taken into account in mitigation of the offence. They were these: 1. the applicant's expression of remorse, both immediately after the incident to hospital staff, and then during his evidence on sentence; 2. the fact that he accepted responsibility and entered the plea of guilty despite his lack of memory of committing the offence; 3. the fact of the applicant's apparent mental breakdown and major depressive illness, which does not appear to have been reflected in the sentence even though the Court said that it was taken in account; 4. the fact that the applicant was co-operative with police on the arrest; 5. the fact that the applicant did not have a serious and/or extensive criminal record for a man of his age.
The Crown submitted that the applicant's submission arises from a mistaken understanding of the way in which the sentencing Judge structured his sentencing remarks.
It is correct, as the applicant submits, that the sentencing Judge, towards the end of his sentence, and having dealt with the matters on the s 166 Certificate, did commence by saying: "I propose to start this sentence at a term of 10 years and discount it by 25% leaving a sentence of 7½ years".
The applicant submitted that this phrasing demonstrates that his Honour failed to have regard to any mitigating factors.
The difficulty with this submission is that, immediately prior to his Honour expressing himself in this way, his Honour made clear reference to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, and made specific reference to having considered the provisions of s 21A of the Crimes (Sentencing Procedure) Act "… both in terms of mitigating and aggravating factors".
Earlier, in the course of his Remarks, his Honour had comprehensively referred to both the objective circumstances and the subjective circumstances engaged in this sentencing exercise. With respect to the applicant's mental condition, and his major depressive illness, his Honour noted that it was a relevant factor, and that general deterrence was not as significant as it otherwise might be. Once his Honour had, correctly in my view, discounted any causal connection, this was the appropriate approach to this matter.
It is correct, as the applicant submits, in the Discharge Summary of the Mental Health Unit of Gosford Hospital, there is a record that the applicant expressed remorse for his conduct. However, the applicant's evidence, given during the sentencing proceedings, cast considerable doubt upon that. It was only towards the end of his evidence that the applicant was prepared to express any remorse whatsoever for what he had done. There is no reason to think that his Honour's conclusion, expressed at it was, did not reflect a reasonable finding on the facts.
There is no reason to think that the applicant's prior good record was disregarded by his Honour. When recounting the circumstances leading up to the sentencing hearing, his Honour specifically noted that the applicant was entitled to be treated as a person of good character. In light of that specific statement, I would not be prepared to conclude that his Honour ignored that fact when considering the appropriate sentence to impose.
The applicant submits that the fact that he was co-operative with police on arrest should be taken into account in mitigation of his offence.
Section 21A of the Crimes (Sentencing Procedure) Act provides that, in accordance with s 23, the provision of assistance to law enforcement authorities is entitled to be regarded as a mitigating factor.
Here, the evidence did not suggest any provision of assistance to authorities. It merely suggested that the applicant, having been arrested, agreed to participate in an electronically recorded interview, and gave an account of the incident. Beyond that, there is no factual material to support any conclusion of co-operation or assistance. The mere fact that an applicant participates in an electronically recorded interview about the incident, the subject of the offence, even though not obliged to, is not a matter which is entitled to any weight, of itself, in mitigation of any sentence. If it were otherwise one would, in effect, be running the risk of imposing a punishment upon someone who exercised their right to silence.
There was no reason for the sentencing Judge to have had regard to any mitigating effect, in the circumstances of this case, from the mere fact that the accused participated in an electronically recorded interview.
The fact that the applicant was effectively a person of good character prior to the domestic violence offence committed against his wife in 2013 was taken into account.
I see no reason to conclude that his Honour failed to have regard to any of these factors to which the applicant calls attention, when deciding what penalty ought be imposed. I would not uphold Ground 3.

Grounds 4 and 5

These grounds can be dealt with together. They suggest that error is to be found in the process of sentencing because the Judge exposed to the Crown his tentative view as to an appropriate sentence and, in effect, invited the Crown to comment upon it, and then took into account the Crown's submissions. The grounds suggest inappropriate conduct on the part of the Crown.
It is necessary to set out, unfortunately at some length, the context to the discussions between the sentencing Judge and the Crown, and then those discussions.
It is to be recalled that the applicant was taken into custody on 5 April 2013. The sentencing proceedings took place on 2 May 2014. That is to say, about 13 months after the applicant had been taken into custody. He had been on remand, and not admitted to bail, for the whole of that period.
In the course of the submissions by the applicant's lawyer, the following was put to the Court: "Hanrahan: … and that it's had to take a serious intervention as has occurred in this case for there to be a change in that course of behaviour. We would submit your Honour that this man has served sufficient time in jail for him to be given a release, not a total release your Honour, perhaps in some way on a tight lead … either under a suspended sentence or on some form of supervised management of him in the community, but there is an opportunity for society to benefit more from a man who has recognised his wrongs and been able to recover from them, and deal with them properly, rather than be kept in jail and to be exposed to the kind of dangers that he has to date been exposed to there. I know it is a difficult situation your Honour, but this is not the sort of person, in my submission, who should be in jail. …"
The submissions continued for some further time, and at the conclusion of them, the applicant's lawyer said: "And in those circumstances your Honour, I renew my application to allow this man to remain in the community under careful supervision."
In short, the applicant's lawyer was, at that stage, submitting that a 13 month non-parole period ought to be imposed.
At that point in time, the Crown was called upon to address and make submissions. The lawyer appearing for the Crown first addressed the question of the seriousness of the offence. He commenced by reminding the Court that the offence carried a maximum penalty of 25 years imprisonment, and submitted that this offence was a serious one. He then summarised the facts which supported that submission.
The lawyer for the Crown went on to say this: "Your Honour, in offending of this nature, in my submission, issues of specific and general deterrence loom large. It is in the context of a domestic relationship, continuous breaches of those, the AVO and the Court orders, not just in relation to that general deterrence, but also that specific deterrence in relation to this offender sending that, and communicating to him, the significance of this offence."
His Honour then adjourned for lunch. During the luncheon adjournment his Honour read the judgments in the matters of Dinh and three other District Court cases which had been referred to in Dinh. Upon return, the Crown lawyer's submissions continued. They drew his Honour's attention to the fact that the cases provided had some significant differences with the one standing for sentence. His Honour's attention was drawn to the statements of principle in Dinh, and a discussion ensued between the Bench and the Crown lawyer about various of the facts in this matter.
Having outlined various of the matters of fact, and other issues for consideration, his Honour went on to say: "But I would have to say, and I'll give Mr Hanrahan another opportunity, I'd have to say that Mr Hanrahan and I are a fair way apart in terms of what he's advocating as the outcome and what I consider to be an appropriate sentence. I mean against the background of 25 years, and in my view that it is a serious example of this offence in the sense that it is at least in the mid-range, probably the upper end of the mid-range, and he gets 25% discount, but, you know, he is still looking, I am still looking at a starting point for the sentences, maybe somewhere between 8 and 10 years with a discount of 25% obviously, that, well on 10 years it brings it back to 7½, and on 8 years it brings it back to 6. And then no one has addressed on this, but there is an issue of special circumstances I need to consider … which probably apply I would have thought bearing in mind his age, first time in custody etc, etc."
The Crown agreed that it would be appropriate for the Court to find special circumstances, notwithstanding issues which he had previously raised. The Crown then reminded his Honour that he needed to note the Form 1 offences, and give them proper consideration. The Crown reminded his Honour that he also had to deal with the matters on the s 166 Certificate. All of these submissions were entirely appropriate.
There was then considerable discussion as to the appropriate approach to be taken with respect to the offences that were referred to in the certificate under s 166 of the Criminal Procedure Act. The Crown was careful to ensure that his Honour was reminded that he ought not consider the same conduct twice when dealing both with the principal offence and the offences contained in the certificate under s 166.
There was then further discussion between the Bench and the Crown about the particular facts, and the nature of the aggravating circumstances. At the end of that discussion, his Honour turned to the applicant's legal representative, Mr Hanrahan, and said: "His Honour: Well, perhaps I'll just heard [sic] from Mr Hanrahan again, Mr Hanrahan, there is no point in my imposing upon your client a sentence of imprisonment that would be successfully appealed by the Crown. Hanrahan: Yes I understand that your Honour, I appreciate that. His Honour: I certainly think that if I was to sentence him to a term of imprisonment which then ended up meaning that he had a non-parole period that brought about a fairly immediate release, that not only would the Crown appeal, but the Crown would be successful on appeal, which is really the pertinent point and the question is, what is the minimum, I'm prepared to give him, the least amount that is called for, because he has, I mean there is some, while I don't accept its provocation, there is at least some explanation and some understanding after long years of marriage and the frustrations that were clearly occurring in his life in relation to what was happening. But, it is still not, against a 25 year maximum penalty, the only thing that's really missing is pre-meditation from making it - Hanrahan: And that's the most significant thing your Honour I mean - His Honour: I agree it's significant, but it's the only thing that's missing from making it up in the sort of most serious range. Hanrahan: Yes it is that's right and the kind of pre-meditation that was involved in the Dinh case was extreme. ... "
This was followed by more discussion between the applicant's lawyer and the Bench about the seriousness of the offence, the nature of the intent which was disclosed and whether the applicant's conduct ought be regarded as being mitigated to the extent that his wife, the victim, had precipitated it by declining to speak with him.
The following exchange then occurred: "His Honour: Yes. Well I mean it's just a case of trying to find where the range is, he doesn't want to go anywhere else, the Crown doesn't want to go anywhere else, but I'd like to get it right. I don't think giving him a non-parole period, well I know giving him a non-parole period of 12 months is not within range, the question is where is the bottom of the range. Hanrahan: Could I suggest your Honour that it not be twice that, that that would be somewhere within the range, having regard to those other matters that we've looked at. But in all the objective circumstances that it would fit in that category somewhere under the two year mark … whether that be the top or the bottom, somewhere around that. His Honour: I'll see if Mr Crown can help me on that, I don't know, I don't think … Crown: Your Honour's quite correct when your Honour said that it's a difficult exercise that your Honour has because none of those cases do set out a sentencing principle in terms of quantum in any way that your Honour could be guided by and again that case of Dinh that I provided to your Honour was for the comments on the nature of sentencing that type. His Honour: Yes. Crown: In my submission your Honour, that is of little benefit to compare this case to that. His Honour: No, the numbers don't help for this - Crown: No, that's not to suggest that your Honour couldn't consider similar aggravating features or that but your Honour's task I think as your Honour has already articulated is that those guideposts that your Honour mentioned, that is the maximum penalty, the nature of those aggravating features, those sorts of things are what your Honour has to go on if I can … … Crown: Yes, and I accept it's difficult from the Crown's perspective to give your Honour that guidance in terms of quantum. … the reason is that those who are successful aren't charged with this offence. So just in one perspective of where your Honour places this in terms of criminality I don't think I would cavil greatly with what your Honour said, that the intent is very significant in terms of this offence. … … Crown: In relation to the intent though, that is a significant example under this offence because of those multiple attempts and because they are only stopped by the intervention of a third party. In my respectful submission, your Honour wouldn't accept that it was any positive act on the part of the accused that ended this. … … Crown: It's not so here, and it is only again stopped by those physical interventions. And that is in my submission quite a significant factor in relation to an offence of this type. It's true that the petrol doesn't cause severe burns that for instance caustic acid would, but if lit it can take matters quite significantly further. So there's obviously a significant fear there and that's why, whilst there is different offences that are categorised under the section, they all carry that penalty of 25 years in my respectful submission."
Further submission occurred in which the Crown drew attention to various features surrounding the offence. The following exchange then took place: "Crown: Your Honour just for the record, I don't know if it's necessary but in my submission from the Crown's perspective the course that my friend urged would be, as your Honour has already indicated … His Honour: I think it's appealable error if I was to do that. Crown: … would have your Honour sliding into that area. His Honour: The real question is not so much the head sentence but the real question is what's the minimum time he's got to serve. Mr Hanrahan's now saying two years, whereas I was probably thinking, well even it was to start with eight, that brings it back to six and the best he could probably get there would be three, even if it was three + three. Then it could easily be four + two-. Crown: Your Honour if your Honour accepts my submissions in relation to the overall criminality of the matter I suppose and your Honour is then considering of course the Forms 1 and those sorts of other aggravating features. In my respectful submission my friend's revised position would still cause your Honour in looking against the backdrop of that 25 year … His Honour: It is, that's why I'm asking you. Crown: Yes, your Honour. It would still cause your Honour to fall into appealable error. That is the revised, that is the two years. As your Honour knows, it is of course a matter for your Honour. I hope I can be of some assistance. His Honour: Yeah, well it's not as if you're standing her [sic] advocating a course, you're standing her [sic] responding to a request for assistance in terms of each of us might have a view as to what the range is obviously and in a case such as this, it's helpful to have as many views upon that as possible, ultimately, it will be my view that counts and if it goes anywhere else by way of a Crown or defence appeal, it will be for the CCA. Crown: Yes. His Honour: But getting as much input as possible hopefully increases the chances that it's done, or that it's got right the first time. Does the Crown say that a non‑parole period of three and a half years would be outside the range? Crown: I would submit to your Honour that having regard to that maximum penalty and the degree of criminality and the intent and those aggravating features that yes it would your Honour. Your Honour also has those issues as I've noted, there are of conditional liberty, those other matters that I've raised with your Honour. His Honour: Yes, I thank you Mr Crown."
The sentencing Judge gave the applicant's lawyer an opportunity to be heard further. Nothing of substance emerged from that discussion.
In Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 88 ALJR 372, the High Court held that the Victorian practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences in any particular matter, was wrong in principle. The practice referred to, involved counsel for the prosecution specifying in numerical terms, a range for a head sentence, and in some cases, a range for a non-parole period also in numerical terms.
In the judgment of the majority (French CJ, Hayne, Kiefel and Bell JJ), the dangers in such a practice were identified. At [33], their Honours said: "The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution's view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, an appeal against sentences seems well-nigh inevitable."
However, the judgment of the High Court in Barbaro is not authority for the proposition that the obligation of a prosecutor to render assistance to the Court has been entirely removed. The contrary is the case. In CMB v Attorney General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407, French CJ and Gaegeler J, said at [38]: "The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that an 'appellate court' would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing Judge to avoid error.": R v Tait (1979) 24 ALR 473 at 477.
The plurality (Kiefel, Bell and Keane JJ) were of a like view. At [64], their Honours said: "The determination of the appropriate sentence is one that rests solely with the Court. The public interest in the sentencing of offenders, does not permit the parties to bind the Court by their agreement. Nonetheless, the prosecutor is under a duty to assist the Court to avoid appealable error. Where the sentencing Judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the Court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion. The weight of that consideration will depend upon all of the circumstances. A prosecution concession that a non‑custodial sentence is an available disposition is a powerful consideration weighing against intervening to impose a sentence of imprisonment on appeal." (footnotes omitted)
Nowhere in the exchanges which I have quoted at length, did the Crown advocate any range of penalty by way of a term of imprisonment in any numerical sense, or at all. The Crown was careful to draw the attention of the Court to various of the facts and the aggravating circumstances. He was careful to ensure that the sentencing Judge understood that he was not contending that the cases, copies of which had been given it his Honour, were directly in point. The only submission which the prosecutor made, was that the Court would fall into appealable error if a sentence reflecting either of the two alternate proposals which the applicant's lawyer had advanced, was imposed. To that extent, the prosecutor did precisely what the High Court suggests his duty ought be.
If, as it is said occurred, the sentencing Judge, having given an indication of his thinking as to a sentence, invites submissions and then reconsiders what the sentence ought be, provided that the offender's lawyer is given an opportunity to be heard, as occurred in this case, there can be no error of process, or error of substance.
I would not uphold Grounds 4 and 5.

Grounds 6: Manifest Excess

This ground arises for consideration in the context that the applicant has not persuaded the Court that there has been any identifiable discrete or specific error of the kind raised in the previous grounds. Nevertheless, it is open to an applicant to submit, and this applicant submits, that: "Having regard to the objective criminality of the offence, together with the appellant's subjective features, this Court would still find that the sentencing Judge failed to properly exercise his sentencing discretion on the basis that the sentence ultimately imposed was 'plainly unjust or unreasonable'. "
Here, the objective seriousness of the offending was categorised as in the mid-range in a manner which was open to the sentencing judge. The offending occurred in the context of a breach of an ADVO, and a breach of a number of bonds under s 10 of the Crimes (Sentencing Procedure) Act which had been imposed only a few weeks before this event. Any sentence to be imposed needed also to take into account four offences which were placed on the Form 1 schedule.
It needs also to be kept in mind, that until the time of his separation, the applicant had not been convicted of any criminal offences. However, his conduct after separation had led to him being before the Courts on a number of occasions.
The maximum term of imprisonment fixed by the legislature with respect to this offence demonstrates the legislature's view that the offence is a serious one.
Notwithstanding the mitigating factors which were available, and the subjective case of the applicant, I am not able to conclude that the sentence itself reflects error, that it was unreasonable, nor that it was one that was not lawfully open to the sentencing Judge to impose, and accordingly, I would not uphold this ground.

Summary

I have read and agree with the observations of Johnson J.
I have not been persuaded that there has been any error of the kinds asserted with respect to the sentencing Judge's conclusions, nor have I been persuaded that the sentence itself bespeaks error on the basis that it is not a sentence which could lawfully have been imposed. These conclusions would lead to the appeal being dismissed.
However, for the reasons which immediately follow, it is necessary that the application be granted and the appeal be upheld, and for the applicant to be resentenced. The sentence which is to be imposed is the same as that imposed by the sentencing Judge.

Error in Commencement Date

The sentencing Judge fixed the commencement date as 8 April 2013.
The applicant was actually taken into custody on 5 April 2013, and then was taken to the Mental Health Unit at Gosford Hospital, where he was detained pursuant to the mental health legislation.
The Crown concedes that custody commenced on 5 April 2013, and the sentence ought to have been dated from that day.
Accordingly, the Court will uphold the appeal for the purpose of correcting such error, and will resentence the applicant accordingly.

Orders

I make the following orders: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Set aside the sentence imposed by Ellis DCJ in the District Court of NSW on 2 May 2014. 4. In lieu of that sentence, impose the following sentence: 1. The applicant is sentenced to a term of imprisonment for 7 years and 6 months to commence on 5 April 2013 and to expire on 4 October 2020. 2. A non-parole period of 4 years commencing on 5 April 2013 and expiring on 4 April 2017 is fixed. 1. The applicant is not to be released to parole before the expiry of his non‑parole period.

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: 17 June 2015

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