CAR v R

Court of Criminal Appeal (NSW)|2009-04-29|Before: Grove J, Buddin J, Price J

CITATION: CAR v R [2009] NSWCCA 138 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Grove J at 1; Buddin J at 2; Price J at 57

DECISION: Leave to appeal granted. Appeal dismissed.

R v Bailey [2001] VSC 461 R v Barker, R v Gibson [2006] NSWCCA 20 R v Black [2005] QCA 132 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 CASES CITED : R v Richards [2002] NSWSC 415 R v Shorten [2005] NSWCCA 106 R v Skipper (1992) 64 A Crim R 260 R v Thew NSWCCA, unreported 25 August 1998 R v Todd [1982] 2 NSWLR 517 The Queen v De Simoni (1981) 147 CLR 383

PARTIES: CAR (Applicant) Regina (Respondent)

COUNSEL: P Boulten SC (Applicant) P Miller (Respondent)

SOLICITORS: The Law Practice (Applicant) S Kavanagh (Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/5022

GROVE J BUDDIN J PRICE J

THURSDAY 7 MAY 2009 CAR v R Judgment 1 GROVE J: I agree with Buddin J. 2 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court. The applicant pleaded guilty to maliciously causing a person to take poison, namely carbon monoxide, so as to endanger life. The offence attracts a maximum penalty of 10 years imprisonment but there is no standard non-parole period which applies to it. The applicant was sentenced to a non-parole period of 12 months to date from 31 October 2008 and to a total term of 2 years imprisonment. The commencement date of the sentence was selected by the sentencing judge to reflect the fact that the applicant had spent 13 days in custody prior to being sentenced. 3 The matter proceeded by way of an Agreed Statement of Facts. In those circumstances the factual background to the offence can be briefly stated. The victim of the offence is the applicant's infant son. The applicant and his wife were in a domestic relationship for a period of five years until they separated in October 2005. They were married in 2003 and a son, whom I shall refer to as A., was born on 12 September 2004. 4 On 9 October 2005 the applicant's wife took A. and moved out of the family home. A shared custody arrangement was put in place. At about 10 am on 30 October 2005 the applicant's wife dropped A. at the former matrimonial home so that the applicant could have his regular access visit with him. A. was then thirteen months old. The applicant told his wife that he would contact her in order to make arrangements for her to pick up A. at 5 pm that day. When she had not heard from the applicant by 5.15 pm, the applicant's wife attempted to contact him on his mobile phone. There was no answer. When she contacted the applicant's parents, they informed her that the applicant and A. had visited them that day in order to celebrate the birthday of the applicant's sister. They told her that the applicant and A. had left their place at 4.30 pm. The applicant's wife then drove to the former matrimonial home but discovered that there was no one there. She also noticed that the applicant's motor vehicle was not there either. 5 At 7.15 pm the applicant phoned his wife on her mobile and said, "I just wanted to say goodbye". She asked him where A. was and he replied, "You are not seeing A. again". He then terminated the call. The applicant's wife went to Green Valley Police Station to report that A. was missing. She also expressed concerns for his welfare. A little later, the applicant sent her a text message which simply stated "Goodbye". He then phoned her again. His wife said that he sounded upset and irrational. She said that he had also spoken about their marriage breakdown. She said that he would not disclose his whereabouts and that he had then terminated the call. At 8.40 pm she received another text message that read, "I am at the Oberon Pine Forest and I'm all alone". Police were informed about the message, and as a result, they commenced a search using a triangulation of the applicant's mobile phone in order to establish his location. The search indicated that the mobile phone had been activated in the Blenheim State Forest, Oberon. 6 At 1.22 am the police located the applicant's vehicle in the forest. The police observed grey conduit tubing extending from the exhaust pipe of the vehicle and into the offside rear window which was slightly open. The tubing was affixed to the exhaust pipe and extended into the interior section of the vehicle. Clothing had been used to cover the gap between the top of the window and the underside of the top of the window. The applicant was located in the front passenger seat with the seat fully reclined. He was asleep, as was A. who was lying on the applicant's stomach. The vehicle was locked. 7 Police knocked on the window and the applicant awoke. At first he refused to open the door to the police. Subsequently he did open the door, saying "I'm sorry A., I'm sorry A.". A. was conscious at the time. The applicant told police that he had started the engine and that the interior of the car had commenced to fill with carbon monoxide fumes. He said that he had become dizzy and that he had developed a headache before he had turned the engine off. He was unable to say how long the engine had been running. Police located in a vinyl folder a number of letters which had been written in both English and in Spanish by the applicant's wife. They were addressed to the applicant and to his family. They related to the marriage breakdown and contained allegations that she had been the victim of domestic abuse at the hands of the applicant. The letter addressed to his family had been sent by email on 28 October 2005 and a copy of it had been sent to the applicant's home computer. Police also located a large kitchen knife. 8 The applicant and A. were taken to Oberon Hospital for treatment. A. had a minor temperature but was otherwise unharmed and was released into the care of his mother. The applicant was admitted as an involuntary patient into Bloomfield Psychiatric Hospital, Orange. On 3 November 2005 the applicant was released from hospital and was arrested by police. He was taken to Orange Police Station. He declined to be interviewed and was released without charge. 9 On 1 November 2005 a search warrant was executed at the applicant's residence and a number of items were seized, including a handwritten suicide note which was addressed to his wife. The note disclosed that the applicant had no intention of harming A. Because no grey conduit tubing similar to that recovered in the vehicle was located, it was to be inferred that the applicant had acquired it from elsewhere. Blood samples taken from the applicant and A. indicated that the carbon monoxide levels in their blood were not excessive. The applicant's telephone services were made the subject of lawfully authorised intercepts. During the course of the intercepted conversations, the applicant disclosed that he was depressed at the time and that he did not know what he was doing. He also indicated that he had not meant to hurt A. The applicant made similar assertions to both his sister and his mother. 10 The sentencing judge was provided with a substantial body of material which enabled him to gain an understanding of the applicant's background. It included the discharge summary from Bloomfield Hospital, an affidavit sworn by the applicant dated 5 May 2006 which was prepared for the purpose of family law proceedings between him and his wife, two psychiatric reports from Dr Nielssen dated 21 October 2007 and 15 September 2008 respectively, a report from a psychologist, Anthony Pignataro dated 13 April 2006 and a character reference from a former employer. The applicant's sister also gave evidence at the sentencing hearing. 11 The evidence revealed that the applicant, who was born in August 1969, was 36 at the time of the offence. He had migrated from Uruguay with his family when he was 4 years old. He was raised in a loving, caring and supportive environment. He still enjoys a close relationship with his parents and both of his sisters. His schooling was unremarkable but he did sufficiently well to gain entry to university. The applicant attended the University of Sydney although he did not complete his degree in chemical engineering. Since leaving university he had been in continuous employment as a technician with various communication companies. The former employer, to whom I referred, provided a testimonial in which he expressed, in glowing terms, the applicant's abilities as an employee. 12 His Honour concluded that the applicant and his wife had not enjoyed a particularly happy relationship. There was contradictory evidence stemming from the various reports as to the level of domestic violence which the applicant had occasioned to his wife. What was clear however was that an apprehended domestic violence order was issued against him on 30 November 2004 for the protection of his wife and son. On 25 January 2005 the applicant was dealt with in the Local Court for assaulting his wife. Sentence was deferred upon him entering into a s 9 bond for twelve months. He was on that bond at the time of the present offence. 13 The sentencing judge extended to the applicant a discount of 20% for his plea of guilty. His Honour referred to the expert reports and concluded that, although the applicant had been suffering from a depressive illness at the time of the offence, he had made a full recovery from it at the time that he was assessed. The applicant had apparently responded well to the medication with which he had been prescribed. He had also returned to productive employment. The evidence revealed that for some considerable time before sentence, the applicant had been having regular supervised contact with his son without there having been any problems. His Honour considered that a full-time custodial sentence had to be imposed because of the objective gravity of the offence. In view of the applicant's prospects of rehabilitation, and in light of the fact that this was to be his first custodial sentence, his Honour made a finding of "special circumstances". 14 The applicant relies upon the following Grounds of Appeal:

1 His Honour erred by sentencing the applicant on the basis that the applicant intended to kill his son.

2 His Honour erred by failing to take into account the fact that the applicant's mental illness reduced his moral culpability for the offence.

3 His Honour erred by failing to sufficiently moderate the sentence because of the delay between the offending conduct and the applicant's arrest.

Ground one 15 Complaint is made about the following passages in his Honour's remarks on sentence: I do not have any doubt that, when he started his car's engine, he intended to commit suicide and to take his son with him . He obtained a knife from his home and a length of tubing and a roll of duct tape from somewhere and he drove his car from his home to the Blenheim State Forest, a journey that took about three hours, where he attached one end of the tube to his car's exhaust pipe and inserted the other end of the tube into the car and, after covering the end of the tube that was insider the car with clothing, he reclined the car's front passenger seat and switched on the car's engine, all with the purpose of committing suicide and taking his son with him . I do not doubt that, when he started the car's engine, he intended to commit suicide and to take his son with him . (emphasis added) 16 It was contended that the highlighted passages, which contained references to the applicant intending to commit suicide and "taking his son with him", can only have meant that his Honour had found that, at the relevant time, the applicant intended to kill both himself and his son. The applicant pointed out that although an intention to kill is an element of the offence proscribed by s 27 of the Act, it is not an element of the offence with which the applicant was charged. Furthermore, as the applicant also pointed out, an offence under s 27 attracts a much more significant maximum penalty (namely imprisonment for 25 years) than the present offence. 17 It was submitted accordingly that his Honour had infringed the principles established in The Queen v De Simoni (1981) 147 CLR 383 in which Gibbs CJ said: …the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted … The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. (at 389) 18 It was submitted that the sentencing judge's erroneous approach had caused him to take a more serious view of the objective gravity of the offence than the law permitted him to do. 19 In reciting the evidence concerning the respondent's depressive illness, the sentencing judge referred to Dr Nielssen's opinion that the respondent "was depressed to the extent that he contemplated committing suicide and taking his son with him". His Honour also referred to Mr Pignataro's assessment that the applicant's "attempt on his life and that of his son was a serious consequence of his mental state at the time". It is to be recalled that these were opinions expressed by experts whose reports were introduced into evidence on behalf of the applicant. It was entirely legitimate in those circumstances for the sentencing judge to have made reference to their opinions. 20 Nonetheless the essential question to be answered is whether the applicant's contention, that the principles established in De Simoni (supra) have been infringed, has been made good. In determining this complaint it is necessary to have regard to the totality of the remarks on sentence. His Honour recited the history of the matter and referred to the fact that the applicant had originally been charged with a number of offences, including a charge brought pursuant to s 27 of the Act. His Honour recorded the fact that the matter was to have proceeded as a trial upon those matters but that the Crown had ultimately presented an indictment which contained the single count to which, as I have said, the applicant pleaded guilty. His Honour then said: I am now to impose sentence upon the offender for the offence to which he has pleaded that he is guilty. As I have said already, the offence of maliciously causing a poison to be taken by someone thereby endangering the life of that person, is an offence contrary to s 39 of the Crimes Act. The prescribed penalty for this offence is imprisonment for a maximum of ten years. It is an offence, which does not carry a standard non-parole period. … The offender committed the subject offence in breach of his position of trust in relation to his son. He was the father of his son. His son was aged thirteen months. He had the care of his son at the time when he committed the offence. I see an act of a parent deliberately endangering the life of his or her child to be a very serious act. The offender's commission of the subject offence abused his position of trust in relation to his son and this is another aggravating factor of the offence. … The offender is entitled to a discount on sentence for having pleaded guilty to the offence to which he did plead guilty. He did not plead guilty to the subject offence, as he could have done when he appeared before a Magistrate in the Local Court… for the committal hearing. He pleaded guilty to the subject offence on the day fixed for his trial in relation to a more serious offence. 21 Those passages to my mind indicate that his Honour was acutely aware of the need to sentence the applicant in respect of the offence to which he had pleaded guilty and only upon that basis. 22 Reference was also made by counsel for the applicant to an exchange which had occurred during submissions on sentence. His Honour observed to counsel that "your client attempted to kill his son and himself. Isn't that a go to gaol offence?" Counsel corrected his Honour by reminding him that: No it's not an attempt to kill his son. That's why he's pleaded to the charge that he's pleaded to. It's endangering the life of his son. It's not an attempt to kill…The exact charge is an important thing for your Honour to keep in mind. 23 I would not be inclined to infer, given that exchange, that his Honour had either overlooked or simply ignored that of which he had been reminded by senior counsel appearing on behalf of the applicant. 24 It is also important to have regard to the context in which the sentencing judge made reference to the applicant "taking his son with him". His Honour said: His attempt to commit suicide significantly endangered the life of his son. His attempt continued for five to ten minutes. Fortunately he, as it were, came to his senses and turned off the car's engine. Equally fortunately, his son was not greatly affected by carbon-monoxide poisoning. However I do not have any doubt that, when he started his car's engine, he intended to commit suicide and to take his son with him. 25 In other words, his Honour found that although the applicant may have had a plan in mind at the outset of the incident, he nonetheless changed his mind during the course of it and decided to abandon the original plan. In my view, the full extent of the applicant's conduct in endangering his son's life could only be properly understood when the context in which it had occurred, was considered. As I have concluded that his Honour's remarks do not reveal any error of the kind asserted, I would reject this Ground of Appeal.

Ground two 26 In support of this ground, the applicant sought to highlight parts of the evidence which was before the sentencing judge. Reference was made to the report of Dr Nielssen who expressed the opinion that: As a result of [the applicant's] severely depressed state he was unable to reason with sense or composure about the likely consequences of his actions or the alternative courses of action open to him, and at the time he was unable to appreciate that his actions in planning to commit suicide with his son were morally wrong. 27 As a consequence, Dr Nielssen concluded that the applicant had the "defence" of mental illness available to him. Reference was also made to what the applicant had said in the affidavit which he had sworn in respect of the family law proceedings: I felt like I was on auto-pilot…. I didn't have intentions of hurting my son. I just wanted to end my life. I ended up in the Oberon pine forest … I stopped the car. I then attached the piece of hose to the exhaust, with the other end in the car window and I turned the engine on. I then sat in the passenger seat with A. on my lap, although I wasn't really thinking about my son being there in the car with me. I had no intention of hurting him. My mind wasn't at all clear. 28 It was submitted that that evidence established the necessary causal link between the applicant's mental illness and his offending conduct. 29 The applicant relied upon the principles identified by this court in R v Hemsley [2004] NSWCCA 228, in which Sperling J said: Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]. (paras 33-36) 30 It was acknowledged by the applicant that the sentencing judge had found that:

I see general deterrence to be of less importance in this case than it might be in another case because, as he was suffering from depression at the time when he committed the offence, the offender is not an appropriate medium for making an example to others. 31 It was not suggested that either of the third or fourth principles identified in Hemsley (supra) was relevant to the present case. However it was submitted that his Honour had erred in not giving effect to the first of the principles identified in Hemsley (supra). In that context reference was made to the following passage in the sentencing judge's remarks: However, I do not have any doubt that, when he started his car's engine, he intended to commit suicide and to take his son with him and that, notwithstanding that he was suffering from depression, he knew what he was doing and what would be the consequences of what he was doing . (emphasis added) 32 It was thus contended that it was clear that his Honour had not concluded, as he should have, that the applicant's moral culpability was moderated because of his mental illness. 33 However, there was also other evidence upon this issue which the sentencing judge was bound to consider. First, there was the entire course of conduct upon which the applicant had embarked on the day of the incident which included the lengthy drive which he had undertaken with his son to the forest. It was a course of conduct which had lasted for many hours and involved a number of quite deliberate acts on the part of the applicant. Moreover, in the discharge summary following the applicant's release from Bloomfield Hospital, it was observed that: No psychotic thinking, no hallucinations or delusions. No evidence of cognitive deficit and oriented for memory. Judgement and insight present i.e. feels rejected by wife. Says feels alone and dejected, feels guilty and upset. He assured that he will not do this again as it will destroy him more. Diagnosis was Adjustment Disorder with depressed mood and deliberate self harm behaviour and differential diagnoses was depression first onset, situation specific. The treatment plan was a short stay in hospital and to commence anti depressants. 34 It is also convenient, in considering the applicant's state of mind on the day of the offence to refer to some other parts of the affidavit to which I earlier referred: In or about the start of November 2005 I received a very personal email from [my wife] in relation to the breakdown of our relationship. I recall receiving the email on the Friday afternoon, after I got home from work. Reading the email was extremely difficult for me. I understood that our relationship was over, and it seemed to me that this letter was just unnecessary. The email also showed that it had been forwarded to my elder sister G. and her husband. There was also a version in Spanish, which I assumed was intended for my parents to read as they are Spanish. Reading the email, I felt it was defamatory and extremely one-sided. It alleged abuse by me against [my wife]. When [my wife] left, I found so did most of my fiends. All that I had left was my immediate family and I was distraught in the knowledge that they had received a copy of this email correspondence, I felt it would have a big impact on our relationship and what they thought of me. After having read the letter, and in the knowledge that my whole family had also received it, I lapsed into a state of complete depression. I admit to having feelings at that time like I wanted to end my life because I felt like my family were my last support, and now they wouldn't want to have anything to do with me either. I felt totally isolated. I felt more positive on the Saturday. In accordance with the arrangement I had with [my wife] [she] dropped A around to me the next day, which was the Sunday. A. was tired, and so I put him down for a sleep. While he was asleep I cooked a meal for him, and when he woke up, he ate a big meal. That Sunday was also my sister C's birthday, so after A. woke up and after he had had something to eat, we went and purchased a present for C. and I had decided that we would then take it to her. We went home briefly and A. had a bottle of milk, and we then drove to my parent's home where my mother had said previously that my sister would be that day. I was surprised however to see that my older sister's car was also parked in the driveway. For some reason, this affected me greatly, and I developed an impression - which I now realise was all wrong - that my family had gotten together without me to discuss the letter [my wife] had sent them and my failed relationship. It just seemed to me that it was strange my mother hadn't called me to let me know of any get together. I went inside with A. and stayed for a while, but had strong feelings that I was all alone the whole time. I felt that my father was not making eye contact with me. I had feelings that I had lost my family. I had already lost my circle of friends, and now I was going to lose my family. I had an intense resurgence of the feelings I had had on the Friday to end my life, but now they seemed a lot stronger. I truly thought I had no one. I now realise that I was really not thinking clearly at all. My feelings of depression and sadness about my relationship were affecting my judgment and making me irrational. As it turned out, my parents had not even read the letter received from [my wife], but I didn't know this at the time. 35 In any event, as senior counsel for the applicant candidly recognised, Dr Nielssen's opinion had to be evaluated in the light of the fact that the applicant had pleaded guilty to the offence, which meant that the applicant himself recognised that he had committed the prohibited act "maliciously". 36 In R v Engert (1995) 84 A Crim R 67, Gleeson CJ, with the concurrence of the other members of the court, said: Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. … A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise. …the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system. (at pp 68,71) 37 Those observations are equally applicable to the present case in which there were a number of factors arising from the applicant's mental disorder which had to be balanced one against another. 38 In light of the evidence, I am not persuaded that any further moderation of the otherwise appropriate sentence on account of the applicant's mental disorder was called for. Even allowing for the applicant's depressed state, it remained necessary to denounce his conduct. 39 As error has not been established, I would reject this ground of appeal.

Ground three 40 For reasons that remain unexplained, the applicant was not charged with any offences arising from this incident until 27 July 2007, which was nearly 21 months after the incident itself. When he stood for sentence, three years had elapsed since the incident. 41 In those circumstances, the applicant submitted that the sentencing judge had erred in not giving sufficient weight to the factor of delay in the sentencing process. In support of the submission, the applicant relied upon the often cited passage from this court's decision in R v Todd [1982] 2 NSWLR 517 in which Street CJ at CL said: Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner. (at p 519) 42 It was acknowledged that the sentencing judge had given some consideration to this aspect of the matter because his Honour found that: I accept that as slightly more than three years have passed since when he committed the subject offence and nothing untoward has happened in his life during that time, the offender has good prospects for rehabilitation and that he is unlikely to re-offend. 43 In those circumstances, the submission in respect of this Ground, is confined to a complaint that the sentencing judge erred in not having regard to the fact that the delay had left the applicant "in a state of uncertain suspense". There was simply no evidence before the sentencing judge to establish the proposition that the applicant was experiencing any anguish of that kind. Indeed Dr Nielssen in his report dated 21 October 2007, observed that the applicant told him that when he went to the police station at their invitation, he had not realised that he was going to be charged. That rather suggests that he was not in a state of uncertainty as to what course the police may take. 44 In R v Shorten [2005] NSWCCA 106, James J, with the concurrence of the members of the Court, said: Nor was it submitted that the second factor referred to by Street CJ, that is that during a protracted period the offender had been left in a state of suspense or uncertainty, had any application. It is well settled that the only state of suspense or uncertainty which will be relevant is any state of suspense or uncertainty experienced by the offender after he has been arrested or after it has been indicated to him by some person in authority that he is likely to be prosecuted for the offence. Any suspense or uncertainty on the part of an offender as to whether his committing of the offence will ever be detected is not to be taken into account. See Kay especially at paras (30) to (33) and R v Law (Queensland Court of Appeal) (1995) 84 A Crim R 142 at 145 per curiam. In the present case the first indication to the applicant that he was likely to be prosecuted for the offence was when he was spoken to by police on 16 April 2003. There was then a delay of only a few months before he was sentenced. (at para 19) 45 In R v Barker, R v Gibson [2006] NSWCCA 20, Howie J, with whom the other members of the Court agreed, said: The delay in the prosecution of the respondents was not of the quality that could lead to any significant reduction in the ultimate sentence to be imposed. This case was very different from Todd or other cases where significant regard has been given to the effect of delay. This could not be regarded as a stale offence after a period of only two years delay and having regard to its seriousness. In any event, the impact of delay will play a significant role in the determination of the appropriate sentence in those cases where the delay is due to the operation of the judicial system and not to the actions of the offender: R v Kay [2004] NSWCCA 130 at [28]. It has little application where, as here, the respondents either chose to say nothing at arrest… One of the reasons why delay mitigates the offence is because of the uncertainty left in the mind of the offender. The only uncertainty suffered by the respondents was whether the police would be able to make a case against them. That is not relevant uncertainty for the application of the principle: R v Shorten [2005] NSWCCA 106 at [19]. Presumably, when they were let go without charge, they thought they were "home and hosed". I do not believe for one minute that they were affected by any uncertainty about the prospects of being charged with that offence. They simply went on committing offences. In the present case the respondents chose to plead not guilty, as was their right, until after the trial date was fixed. But they can hardly complain of the delay up to committal and from committal to trial when they could have pleaded guilty at any time: R v Bragias (1997) 92 A Crim R 330. Nor was the delay before charging shown to be unreasonably lengthy. (paras 78-79) 46 Those observations are apposite to the present case particularly given that the applicant had chosen not to be interviewed by police. In rejecting this ground of appeal I note that the relevant delay was not, in the scheme of things, all that lengthy.

Ground four 47 In support of this ground, it was submitted that the objective gravity of the offence "was not high on the scale". Furthermore it was contended that: [t]he offence was committed by a severely mentally ill person whose illness was in remission at the time of sentencing. The child victim was exposed to the fumes for only a short time and was not harmed. The danger to his life, though real, was not great. The applicant quickly recovered his senses sufficiently to terminate his harmful actions. 48 In the absence of any meaningful statistics as to the appropriate range of sentence, counsel for the applicant referred to a number of other authorities. Counsel, as he had done before the sentencing judge, placed particular reliance upon the Victorian decision of R v Bailey [2001] VSC 461 in which Coldrey J imposed a non-conviction good behaviour bond upon a woman who had pleaded guilty to an offence of reckless conduct endangering death. The offence arose out of an attempt by the offender to kill herself and her son by carbon monoxide poisoning. The offender had discontinued her endeavours when she came to a realisation as to the enormity of what she was doing. There are however, as the Crown pointed out, a number of features which distinguish that case from the present. The sentencing judge in that case found that the offender's conduct was not planned but was impulsive. Nor, unlike the present case, were her actions designed to cause anguish to an ex-partner. Nor was she on conditional liberty. Although there were other considerations that were taken into account, it is clear that the well-being of the offender's son was found to be of paramount importance. The sentencing judge said that: [t]he view of the experts is unanimous that this will be best served by ensuring that your current relationship with him is not disrupted. Clearly he wants to be with you. This is one of those occasions when the views and future well being of the victim should be taken into account. 49 The Crown in written submissions, referred to R v Thew NSWCCA, unreported 25 August 1998 and to R v Black [2005] QCA 132. I derive little assistance from those decisions because the offences in question were attempted murder. 50 Counsel for the applicant also relied upon R v Richards [2002] NSWSC 415, which was a case of carbon monoxide poisoning by the offender of her three children, one of whom died. That offender pleaded guilty to one count of manslaughter and two counts of attempted murder. The offender was sentenced to an effective term of imprisonment of 15½ months, the period of time that she had already spent in custody, together with a bond of 5 years duration. It was submitted that the significance of that authority lay in the fact that the offender had been dealt with for much more serious offences than the applicant but had received an effective punishment that only slightly exceeded his. A similar argument was advanced in respect of the decisions in Black (supra) and the Western Australian decision of R v Skipper (1992) 64 A Crim R 260, in which a Crown appeal against a sentence of probation for five counts of attempted murder by the offender of two of her children, was dismissed. 51 Needless to say, the circumstances of each of those cases differ significantly from the present case whilst the circumstances in Richards were quite extraordinary. That offender decided to kill herself and her children when she was informed that a court was about to order that she had to hand over her children to their father for a trial period of 6 months, a person whom the offender believed had sexually abused them. That offender was characterised, in a report to the court, as suffering from a serious psychiatric condition which required a period of hospitalisation. That meant that she was rendered incapable of looking after the children. 52 In considering this Ground I have given due consideration to those cases although, as counsel conceded, the sample is extremely small. It is impossible, in my view, to derive from them any real assistance as to what the appropriate range of sentence for an offence of the present kind may be. 53 The sentencing judge found that there were a number of features of the present case which aggravated its objective seriousness. Some of them I have already referred to, but they bear repetition. They include the fact that the applicant committed the offence whilst on conditional liberty. His Honour also found that the offence had been planned by the applicant and that his actions were designed, and were intended, to cause as much anguish to his ex-wife as was possible. That finding, which was a significant feature of the case, was not challenged. Indeed it can readily be inferred from the applicant's affidavit, to which I referred earlier, that his wife's letter to him and his family had engendered in him considerable feelings of antipathy towards her. One can readily imagine how distressed the applicant's ex-wife would have been during the period of time that her son was missing. Indeed, she described her state of anxiety in a victim impact statement. A very clear message must, in my view, be sent to persons involved in marital disputes. It must be clearly understood that however distressing those experiences may be, the community will not tolerate the use of children as pawns in such disputes. 54 It was also of considerable significance that the victim was particularly vulnerable by reason of his age. Moreover, in committing the offence, the applicant seriously breached the position of trust that he occupied by reason of his son being in his exclusive care at the time. His Honour observed that "I see an act of a parent deliberately endangering the life of his or her child to be a very serious act". Moreover, the attempt to commit suicide had lasted for a period of about five to ten minutes before the applicant came to his senses and turned off the car's engine. 55 This is, by any measure, an extremely sad case. Fortunately, the applicant was able to avert a much more serious outcome. Clearly, the applicant's circumstances were such as to attract some measure of sympathy. Nonetheless, the features of the case to which I have just referred, indicate that it was an offence of considerable seriousness. Accordingly, I am not persuaded that it has been demonstrated that the sentence that was imposed, although severe, exceeds the legitimate range of the sentencing judge's discretion. I would reject this Ground of Appeal. 56 I propose that leave to appeal be granted but the appeal be dismissed. 57 PRICE J: I agree with Buddin J.

18/05/2009 - Suppression of victim's name - Paragraph(s) paragraph 27

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