Canan EKEN v R

He added that the applicant's "past drug use appears to have directly contributed to his commission of the offence…". The Crown prosecutor tendered Dr Tran's report in the sentence proceedings. He did not give oral evidence. 30 The Crown also relied upon the report and oral evidence of another forensic psychiatrist, Dr Stephen Allnutt. Dr Allnutt did not see the applicant, but was supplied with a volume of material relating to the case, including the agreed facts, a transcript of the police interview and the reports of Dr Hampshire and Dr Tran. He was asked by the Crown to consider that material and to answer certain questions. 31 He provided those answers in a report of 27 September 2006. Asked whether there was evidence that the applicant was suffering from psychosis at the time he committed the offences, the doctor responded that it appeared that he was "manifesting psychotic and/or anxiety symptoms in the material time leading up to the alleged offence", and that it "would be reasonable to infer from the available material that on the day of the alleged offence he was prone to experiencing psychotic and anxiety symptoms". In response to further questions, he considered that the applicant was capable of forming a specific intent and of understanding the nature and quality of his acts and the wrongfulness of them. I pause to observe that, of course, by his pleas of guilty the applicant acknowledged that he had any intent requisite to the crimes for which he stood for sentence and did not raise the defence of mental illness. 32 It was Dr Allnutt's response to the fourth question which was of most significance. He was asked whether, assuming the applicant was suffering from a psychosis at the relevant time, there was a causal connection between that psychosis and the offences and, if so, to what degree. The doctor found "limited evidence of psychotic or anxiety symptoms being active at the material time of the alleged offence". He noted that the applicant's account to police in the recorded interview provided no evidence of any such symptoms. 33 He concluded: While the accused might have been experiencing or prone to be experiencing psychotic or anxiety symptoms at the time of the alleged offence, it does not automatically follow that his behaviours at the time were driven by these symptoms. Psychiatric symptoms fluctuate in their intensity; and when present, do not necessarily influence the behaviours the person chooses to engage in. Even when psychotic, individuals are still capable of making rationally derived but ill-advised decisions. In my opinion, having regard to the available material, there is insufficient evidence to conclude a direct causal nexus between psychotic symptoms and the specific offence. That is, on the material available, I was unable to find evidence of thought processes and decision making that appeared to be derived from delusional or hallucinatory experiences, in relation to his behaviour at the time. I believe, however, it would be reasonable to be of the view, that if he were experiencing a psychotic process and anxiety, he would have been more prone to being irritable. 34 Dr Hampshire considered that the applicant's criminal record disclosed a pre-disposition towards violence on his part. In evidence, however, he said that that pre-disposition could not be separated from, and be seen as independent of, his psychotic behaviour. He acknowledged that the applicant's tendency towards violence, his drug use, his consumption of alcohol and his feelings of anger towards the victim were all contributing factors to his behaviour. However, he added that the use of ice would "certainly trump" the influence of alcohol. 35 More importantly, he shared Dr Allnutt's view that symptoms of psychosis can fluctuate. He agreed that his conclusion that the applicant was psychotic at the time of the offences was dependent upon the history of his having delusions or hallucinations at that time. For this reason, he said, the delusion which the applicant described of a friend being burnt in the television set was significant because it was "the only one that was exclusive to that night…". However, it is not at all clear that the applicant intended to convey to the doctor that it was on that night that he had that experience. Dr Hampshire also said in evidence that he understood that it was "the trigger for him demolishing the television set". Again, that is not explicit from the history recorded in the doctor's report and may well have been a misunderstanding on his part. As I have said, in the recorded police interview the applicant gave an entirely different explanation for his having damaged the television and other items of furniture: an explanation which might be described as emotional or even irrational, but certainly not as psychotic. 36 Dr Allnutt adhered to his opinion in oral evidence. In doing so, he acknowledged that he was at a disadvantage not having interviewed the applicant and being confined to a review of the relevant documents. As I have said, one of the matters he noted in that review was that the applicant did not describe any psychotic symptoms in the police interview, but he also acknowledged that such symptoms might not be elicited in an interview of that kind. Nevertheless, he observed that the applicant was apparently unable to describe his mental state at the material time to Dr Hampshire. As he put it, "We're actually left with very little explanation and really a psychiatrist is left to turn to the documentation in this case". 37 It was put to Dr Allnutt that the report of Dr Tran supported the proposition that the applicant's behaviour was influenced by a psychosis. Dr Allnutt disagreed. He read Dr Tran's report as saying no more than that the applicant was under the influence of a psycho-active substance at the time of the offences and making the general observation that amphetamine intoxication is often associated with psychotic symptoms. It is apparent from the passage in Dr Tran's report which I have quoted above that that is so. That report does not support the applicant's case on the specific question whether his criminal behaviour was the product, wholly or in part, of psychosis. 38 It was also put to Dr Allnutt, and he agreed, that the views expressed by Dr Hampshire were "professionally open to him". I understand that answer to mean simply that he accepted that Dr Hampshire arrived at those views conscientiously in the exercise of his professional judgment. It does not alter the fact that Dr Allnutt disagreed with his conclusion. 39 The applicant gave evidence himself. He said that, in providing the history to Dr Hampshire, he was being honest and doing his best to be accurate. Despite his professed lack of memory of the offences, he said that he accepted the agreed facts and acknowledged responsibility for his actions. Not surprisingly, he was cross-examined about his account in the police interview, which conveyed a clear recollection of relevant events. He sought to explain that by saying that he was trying to be co-operative in the interview and to adopt whatever the victim had said as the truth. He claimed to have filled the gaps in his memory from his reading of the police brief and, in particular, the victim's statement. It needs hardly be said that that explanation is not credible. What he told the police was inconsistent with the victim's account in significant respects and, in large part, amounted to an assertion of his innocence. 40 His Honour referred succinctly to all this material in his remarks. On the crucial question of the relationship between the applicant's psychosis and his criminal behaviour, he preferred the evidence of Dr Allnutt. He considered the applicant's behaviour to be premeditated to the extent that, before he returned to the unit, he conveyed to Mr Topcu his intention in relation to the victim. He noted that the applicant's pleas of guilty to the counts arising from the victim's sexual contact with Mr Topcu and Mr Papadopoulos acknowledged that he was a party with them to a joint criminal enterprise, one in which he maintained "a capacity to form a specific intent and a capacity for decision making and for directing others to engage in specific sexual activity". He found that the applicant "understood the nature of the directions which he gave to the co-offenders and the wrongfulness of his conduct". 41 His Honour also found that the applicant's police interview disclosed that he had "a greater recollection of specific details regarding his actions on 30 July 2004 than he was prepared to state to either Dr Hampshire or in evidence before me". He was not persuaded on the evidence that the applicant was experiencing any hallucinations at any relevant time after his return to the unit. He did accept that his mental state "was a direct response to the excessive amount of illegal substances he was abusing in the days prior" to the event, but he concluded: I do not consider that the mental state of the prisoner diminished his moral culpability or should be taken into account in considering questions of specific deterrence or general deterrence. In deliberately choosing to abuse illegal substances, the prisoner must be treated as choosing the consequences of his behaviour and to be held responsible for that behaviour. 42 In raising the question whether the applicant's mental state might bear on questions of specific and general deterrence, his Honour was clearly referring to the familiar line of authority dealing with the relevance of mental illness to sentence to be found in cases such as R v Engert (1995) 84 A Crim R 67 and R v Israil [2002] NSWCCA 255. Mr Nicholson submitted that the principles in those cases were applicable to the present case, and his Honour should have found that the applicant was affected by a mental condition bearing upon his culpability. 43 The argument was developed at some length, both in writing and orally. Some of the matters raised have already been dealt with in my review of the evidence and my comments upon it. Put shortly, the thrust of Mr Nicholson's complaint was that his Honour had misconceived the effect of the evidence, which was that the applicant's mental state was the product not just of his use of ice but also of the effect of that drug upon his genetic predisposition to psychosis. In response to his Honour's finding that the applicant had deliberately chosen to abuse the drug, thereby choosing its consequences, he also argued that ice was a relatively new drug at the time and, unlike alcohol or more familiar illicit drugs, its effects on behaviour were not well known. 44 He relied upon a passage in the oral evidence of Dr Allnutt where the doctor conceded that a psychotic process "was probably active in the background and impacted … on his behaviour to the extent that it made him more irritable". In the same context, he pointed to evidence of Dr Hampshire that the applicant's behaviour was "an overreaction" to any animosity he might have had towards the victim. The doctor continued: …so this is one of the reasons that lead me to think that it was the influence of the ice on him that really led him to having such a reduced capacity for impulse control, and reduced capacity for judgment in behaving the way he did. 45 As his Honour recognised, there was good reason to be sceptical about the applicant's history to Dr Hampshire and Dr Tran, particularly as to the extent of his recollection of the events of the night in question. Nevertheless, none of the psychiatrists, including Dr Allnutt, questioned that he was prone to a psychotic episode at the time and I do not understand his Honour to have found otherwise. Nor could it be said that his Honour failed to grasp what the psychiatric issue was. He said in his remarks that the effect of Dr Hampshire's evidence was that the applicant was "pre-morbidly at risk of developing a paranoid psychosis for two reasons", one being that he was "genetically vulnerable to psychosis" and the other that he was "abusing potentially psychosis inducing drugs" on the night of the offences. 46 As the Crown prosecutor in this Court pointed out, the area of contention was a narrow one, that is, whether the applicant's criminal behaviour was influenced by such a psychosis. That being an issue sounding in mitigation of sentence, it was one upon which the applicant bore the burden of proof. In my view, it was open to his Honour to find that it had not been established and I would approach the re-sentence of the applicant on the same basis. 47 This is not to deny, as his Honour found, that the applicant was seriously disinhibited by his use of ice and, perhaps, also by alcohol. No doubt, that had much to do with his extraordinarily violent behaviour. Mr Nicholson did not take us to any evidence for the proposition that ice at the time was a new drug with unpredictable effects, but I am prepared to accept that it was. However, the applicant's use of the drug cannot afford him any significant leniency. On his own account, he had been using it for an extended period of time and was aware of the onset and escalation of irrational, paranoid thoughts in the weeks prior to the offences. His Honour was right to find that, in the circumstances, his ingestion of the drug did not diminish his responsibility for his behaviour. 48 All that said, his pre-disposition to psychosis and drug abuse are relevant subjective matters bearing, in particular, on his prospects of rehabilitation. Dr Hampshire wrote in his report that his vulnerability to mental illness "needs to be closely monitored", and that he would benefit from long-term rehabilitation for his substance abuse. Dr Tran observed that it would be "essential for him to remain abstinent from illicit substances in order to reduce his risk of re-offending", and added that while in custody his need for treatment could be met by the Justice Health Mental Health Service.

Hardship 49 As I have said, the applicant's youngest brother is severely disabled. He is now nineteen years old, and has suffered epilepsy and intellectual disability since his infancy. His condition worsened markedly after a seizure in 1994. He now cannot speak, eat or walk and is confined to a wheelchair. He is fed through an epigastric tube and needs care 24 hours a day. He had been attending a special school for the intellectually disabled. 50 As I have also said, the evidence was that the applicant had borne the brunt of the care of his brother. This was partly because his mother could not cope due to her mental illness. I have earlier referred to the fact that another of his brothers suffers from the same mental illness. The applicant gave evidence that, while he was living away from the family at Rosebery, he continued to visit the family home daily to assist in his disabled brother's care. He developed a special rapport with the boy, who became emotionally dependent upon him. 51 This issue also was the subject of a considerable body of evidence. It is not necessary to examine it further. His Honour accepted that the applicant had "assisted his family to a great degree in regard to the care of his severely disabled brother". However, he rejected a submission that hardship to the family resulting from the applicant's incarceration should be taken into account on sentence. He found that the hardship was not "within the exceptional category that the Courts of Criminal Appeal have stated should be the test to be applied when considering hardship to the family members". This was a reference to another familiar line of authority, to the effect that it is only in a most exceptional case that a sentencing court would mitigate sentence because of the impact of an offender's imprisonment upon third parties: R v Edwards (1996) 90 A Crim R 510. 52 This conclusion also was clearly open to his Honour. Significantly, there was evidence that other members of the family had been in a position to assist the disabled brother while the applicant was in custody, and had done so. They included the brother who suffers from mental illness, which was controlled by medication. Help was also forthcoming from the applicant's sister, who is in her twenties, and yet another brother, whose age does not appear but who had completed his Higher School Certificate and was undertaking a TAFE course. The circumstances of the disabled brother are, of course, very sad. No doubt, he misses the applicant, upon whom he had become particularly dependent, and additional burden has been placed upon other members of the family. Nevertheless, as the Crown prosecutor before us pointed out, those family members "have now stepped up to the mark". 53 Counsel referred us to two cases involving offenders who had children who were gravely ill or disabled. A relevant consideration in each of them was whether someone else was able to care for the child while the offender was in prison. In Roberts v R [2007] NSWCCA 112, the offender's five year old daughter was seriously disabled but his mother was able to care for her, albeit with difficulty. This Court held that it was open to the sentencing judge to conclude that the case was not sufficiently exceptional to justify taking into account on sentence the undoubted effect upon the child of the offender's imprisonment. On the other hand, the Court did find the requisite exceptional circumstances in R v Dib (CCA, unreported, 13 September 1991). In that case, the offender's teenage son had suffered serious brain damage and there was effectively no one else to care for him. 54 Reference was made to other cases on this issue, but it is not necessary to examine them. For the purpose of re-sentence, it would not be appropriate to take into account the effect of the applicant's imprisonment upon his disabled brother or other members of the family.

Manifestly excessive 55 Although a ground of the application complaining of the relationship between the sentences passed upon the applicant and those passed upon his co-offenders was not pressed, it is appropriate to record the effect of this Court's decision in Papadopoulos v R, Topcu v R (supra). Mr Papadopoulos had been found guilty of two counts under s61J of the Crimes Act. His appeal against sentence was successful, and he was sentenced to terms of imprisonment aggregating 4 years with a non-parole period of 2 years and 9 months. Mr Topcu had been found guilty of an offence under s61JA of the Act. The Court set aside that conviction and substituted a conviction for an offence under s61J. He was sentenced to imprisonment for 3 ½ years with a non-parole period of 2 years and 3 months. However, both men were dealt with on the basis that they were under the domination of the applicant and were in fear of him. Hulme J, who delivered the leading judgment, described the applicant's criminality as "vastly greater" than that of Mr Papadopoulos: [118]. The same is true of the roles of the applicant and Mr Topcu. 56 The sentencing judge described the applicant as the "dominant person" in the joint criminal enterprise, and characterised his conduct towards the victim as "violent and degrading". In addition to finding the measure of premeditation to which I have referred, his Honour said: It was after the victim refused to partake in any sexual activity with him, that the prisoner started hitting her and pulling her hair. The prisoner further assaulted the victim in the course of commanding and directing her to fellate the co-offenders. Any reluctance shown by the victim to follow the prisoner's directions resulted in her being further struck by the prisoner. 57 There is no denying the seriousness of these offences, perpetrated upon a victim who was only seventeen years old. In an eloquent victim impact statement she described the enduring psychological effects of this experience upon her. Nevertheless, I am persuaded that there is force in Mr Nicholson's remaining ground of the application, that the sentences, individually and in their totality, are manifestly excessive. 58 The aggregate sentence is close to imprisonment for 16 years with a non-parole period of 12 years. It is true that it commences on the day of the applicant's arrest, 30 July 2004, and that it encompasses periods when the applicant was on bail or was in custody not exclusively attributable to these offences. I referred earlier in these reasons to a short period of imprisonment which he served following the breach of a recognizance. That was a period of 18 weeks, imposed after his arrest for the present offences but ordered to commence on 30 July 2004. It expired on 12 December 2004. On 21 January 2005 he was granted bail in respect of the present offences and was at liberty until 23 January 2006, when he was arrested and refused bail for unrelated offences. He remained in custody thereafter, and bail in relation to the present matter was formally refused on 17 February 2006. 59 On the other hand, his Honour had previously sentenced Mr Topcu and Mr Papadopoulos for the offences of which they had been convicted and, no doubt, he had sought to achieve an appropriate relativity between those sentences and the sentences to be passed upon the applicant. For the offence under s61JA of the Crimes Act of which he was found guilty, Mr Topcu was sentenced to imprisonment for 10 years with a non-parole period of 7 years. For the two offences under s61J of which Mr Papadopoulos was found guilty, he was sentenced to an aggregate term, in round figures, of 7 ½ years with a non-parole period of 5 years and 9 months. 60 On appeal, this Court reduced those sentences significantly. Of course, in Mr Topcu's case that followed the substitution of a conviction for a lesser offence. Mr Nicholson's decision not to press a ground concerning the relativity between the applicant's sentences and those of his co-offenders was sound and practical, but that does not mean that the question of relativity can be ignored for the purposes of re-sentence. Given the reduced sentences imposed by this Court on the co-offenders, particularly Mr Papadopoulos, justice demands some reduction of the applicant's aggregate sentence. 61 The applicant's pleas of guilty were entered late and his Honour recognised them by relatively modest discounts of sentence. The sentences for the first and fifth counts, the charges of assault occasioning actual bodily harm, were reduced from a starting point of 4 years to 3 ½ years. The sentence on count two, the s61JA charge, was reduced from 16 years to 14 years. In each case, this was a discount of 12 ½ per cent. Somewhat more generous discounts were applied to the sentences on the other counts. On the third count, common assault, a sentence of 18 months was reduced to 14 months. On each of the fourth and sixth counts, the s61J charges, sentences of 12 years were reduced to 10 years. In my view, discounts of that order were appropriate. 62 In Papadopoulos v R; Topcu v R at [191]-[192], Hulme J referred to Judicial Commission sentencing statistics for offences under s61J. His Honour noted that the figures for all offenders, twenty-nine cases, showed head sentences ranging from 2 to 12 years, with a median of 6 years. He also summarised figures for non-parole periods, and for sub-categories of offenders, to which it is not necessary to refer. After observing that the standard non-parole period of 10 years was applicable during the period covered by the statistics, and "recognising that that period has limits to its application in the case of offenders who plead guilty", he expressed the view that the sentences reflected by the figures were "on the low side". 63 This Court has emphasised on a number of occasions the caution with which these statistics should be approached. I find them of little assistance in the present case. Nevertheless, after careful reflection, I consider that the sentences on all of the counts are excessive. Moreover, while a number of the sentences are concurrent, the extent of accumulation in the overall sentencing order is, in my view, more than was called for. 64 For the purpose of re-sentence, I am satisfied, as was his Honour, that it would be inappropriate to fix the standard non-parole periods prescribed for the sexual offences. The applicant's complicity in those offences was attended by physical violence on his part (although it must be remembered that that violence was the subject of separate charges). Nevertheless, I would assess the objective gravity of the sexual offences as close to, but falling short of, the mid-range. In any event, adequate reasons for departing from the standard non-parole periods are to be found in the applicant's pleas of guilty, his subjective case and the need to foster his rehabilitation. I think that he has reasonable prospects of rehabilitation if he is afforded the treatment regime recommended by Dr Hampshire and Dr Tran, and he would be assisted by an extended period of parole eligibility. That said, the standard non-parole periods take their place in the re-sentencing process as guideposts or reference points. 65 Like his Honour, I would pass fixed terms of imprisonment for the counts of assault occasioning actual bodily harm and common assault. As I have earlier said, there must be some accumulation of the sentences. I would pass sentence first on the first count, assault occasioning actual bodily harm. The third count, common assault, is immediately connected with the fourth count, aggravated sexual assault, when the victim was forced to fellate Mr Papadopoulos. I would pass concurrent sentences on those counts but would direct that they commence 3 months later than the sentence on the first count. The fifth count, assault occasioning actual bodily harm, is also directly connected with the sixth count, again aggravated sexual assault, arising from the act of penile/vaginal intercourse with Mr Papadopoulos. I would pass concurrent sentences for those offences but direct that they commence 6 months later than the preceding sentences. The second and most serious count, aggravated sexual assault in company, arose from the victim being forced to fellate Mr Topcu. I would pass sentence on that count last, directing that it also commence 6 months after the sentences preceding it. 66 Although both the fourth and sixth counts were offences under s61J of the Crimes Act, I would pass a somewhat higher sentence on the sixth count because it represented an act of unprotected vaginal intercourse. I would date the first sentence from 30 July 2004, even though it provides the applicant with something of a windfall because of the significant period he spent on bail and the short periods of custody not referable to the present offences. In its practical effect, the aggregate sentence I propose is still severe. 67 As I have said, I agree with the discounts of sentence which his Honour allowed for the applicant's pleas of guilty and I find it unnecessary to specify the starting point for each of the sentences which I propose. In fixing non-parole periods for the sexual offences I find special circumstances, as his Honour did. The relationship of the effective non-parole period to the aggregate sentence would be close to the statutory proportion. However, it would leave a lengthy period of parole eligibility and I do not believe that any lesser non-parole period would be sufficient to reflect the applicant's criminality. 68 Accordingly, I would grant leave to appeal and allow the appeal. I would quash the sentences passed in the District Court and would re-sentence the applicant as follows: · On the first count, imprisonment for a fixed term of 2 ½ years, commencing on 30 July 2004 and expiring on 29 January 2007; · On the third count, a fixed term of imprisonment for 9 months, commencing on 30 October 2004 and expiring on 29 July 2005; · On the fourth count, imprisonment for 8 years, comprising a non-parole period of 5 ½ years, commencing on 30 October 2004 and expiring on 29 April 2010, and a balance of term of 2 ½ years, commencing on 30 April 2010 and expiring on 29 October 2012; · On the fifth count, imprisonment for a fixed term of 2 ½ years, commencing on 30 April 2005 and expiring on 29 October 2007; · On the sixth count, imprisonment for 9 years, comprising a non-parole period of 6 years, commencing on 30 April 2005 and expiring on 29 April 2011, and a balance of term of 3 years, commencing on 30 April 2011 and expiring on 29 April 2014; · On the second count, imprisonment for 13 years, comprising a non-parole period of 9 years, commencing on 30 October 2005 and expiring on 29 October 2014, and a balance of term of 4 years, commencing on 30 October 2014 and expiring on 29 October 2018. 69 The aggregate sentence, then, would be imprisonment for 14 years and 3 months with an effective non-parole period of 10 years and 3 months. The applicant would be eligible for release on parole on 29 October 2014. 70 HOEBEN J: I agree with Hidden J.

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.