Carroll v R

Applicant's submissions on sentence in District Court 22The applicant agreed with the facts set out above. The applicant did not give any evidence himself, but his de facto partner, Ms Sandy Bird, gave oral evidence. 23A psychiatric report of Dr Allnutt dated 2 August 2010 was tendered, as was a reference from a previous employer. The applicant's counsel made submissions. 24Ms Bird gave evidence that she had been the applicant's partner for about 14 years. They had a daughter together, but she said that the applicant treated her two sons from an earlier relationship, as his own and raised them as though they were his natural children. She gave a history of the applicant's background which included friction with his mother, as a consequence of which he did not live with her whilst growing up but had been raised by his grandmother. He had a history of smoking marijuana and she said, although he required medication for a neurological condition, he did not take it because he could not afford it. 25She reported that she had continued to visit the applicant whilst he had been in custody and that she had observed that since he was taking a new regime of medication, he was a lot better, much easier to get along with and a lot calmer. 26The evidence of Dr Stephen Allnutt in his report of 2 August 2010, which was not subjected to any cross-examination by the Crown, was that the applicant had suffered head injuries in 1999 and 2002. Both of these head injuries resulted in admission to a hospital and both had been associated with a loss of consciousness and a mild pre and post-injury amnesia. 27Apparently the applicant told Dr Allnutt that he had never had any formal neuropsychological testing but that as a consequence of his head injuries, he had seizures commencing about one month after the first head injury, in the form of chronic seizures (grand mal seizures). He also reported extensive pre-existing cannabis and heroin usage, together with extensive alcohol usage. 28Dr Allnutt was provided with some documentation from the Wentworth Area Health Service, which related to the treatment of the applicant following upon each of his previous head injuries. The documentation noted the existence of head trauma followed by episodes of seizures. The reports noted that the applicant was almost always violent when post-ictal and that his diagnosis was probably one of focal epilepsy with secondary generalised seizures. 29Dr Allnutt set out the contents of a letter from Dr Fung of 18 February 2003, in these terms: "There was a letter by Dr Fung dated 18 February 2003 noting that he had been seizure free since commencing Tegretol; he was also taking Dilantin; that he had side effects of worsening of mood with poor temper control as well as headaches; that he also continued to have loss of appetite and a loss of weight." 30Dr Allnutt expressed this opinion: "He has ... suffered a head injury with associated loss of consciousness and has been diagnosed with seizure disorder secondary to his head injury; he describes that there has been a significant change in his behaviour and noted by others, that he has become more irritable, more prone to a class of aggression, has more difficulty within the workplace as far as functioning is concerned and that there has been a change in the quality of his interpersonal relationships. ...the head injury that he suffered did have an impact on his neurocognitive functioning and has contributed to some degree to his capacity for employment and has likely also contributed to increasing his vulnerability to loss of emotional control however in the absence of formal neuropsychological testing I am unable to say this with medical certainty. ... He describes that his last experience of a seizure was approximately one week prior to the alleged offence; at the time of the alleged offence he went to the store and got involved in an altercation with another motorist, then engaging in behaviours that resulted in the alleged offence; in my view, it is unlikely that his seizure disorder would have played a direct role in the offending behaviour however it is possible that cognitive impairments played a role ...; my clinical suspicion is that he has probably suffered frontal lobe damage and that this would have contributed to a diminished capacity for self control and increased his vulnerability to acting in an impulsive and aggressive manner when angered. ... At the time I saw your client he expressed that he felt bad for the victim and wished that he could apologise to the victim suggesting feelings of remorse." 31Dr Allnutt's recommendation for further formal neuropsychological assessment was not acted upon. 32Counsel for the applicant submitted that the sentencing Judge would regard the fact that the applicant lost control, and did so after the victim produced a piece of timber as a factor which indicated that the seriousness of the offence was somewhat less than it otherwise might be. His counsel submitted that the attack was a spontaneous one and that it did not last for a sustained period of time. He further submitted that the applicant's depressed mental state and capacity to more readily lose control, were matters which ought be taken into account. He submitted that the applicant was remorseful. 33Counsel for the applicant also submitted that in light of the plea of guilty, his client was entitled to a discount on any sentence which he would otherwise have received. 34The applicant submitted that a discount of 20 per cent would be appropriate. The Crown submitted that a discount of 15 per cent was appropriate. 35Counsel for the applicant also submitted that the Court ought make a finding in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999 that there were special circumstances such as to result in a adjustment of the statutory ratio between the sentence and the non-parole period. 36In terms of the assessment of the objective seriousness of the offence, counsel for the applicant submitted that the matter fell below the mid-range.

Subjective Features 37The applicant was born on 15 July 1971, and was accordingly 38 years old at the time of the offence. 38He had a previous criminal history going back to 1989 which included a number of offences of assault in 1993, when he was convicted of an offence of maliciously inflicting grievous bodily harm for which he was sentenced to a term of imprisonment of two and a half years with a non-parole period of a little over one year and ten months. 39In 1997 he was again convicted of an assault for which he was fined. In 1999, he was convicted of a common assault for which he received a bond to be of good behaviour for a period of two years. 40He had some other matters on his criminal record, but in the 10 years prior to his commission of this offence, he had only one offence of violence, which was an assault occasioning actual bodily harm for which he was fined $1,000 in the Penrith Local Court. Judging by the fact that only a fine was imposed, I would conclude that this assault involved a relatively low level of criminality. 41Prior to the offence in question, the applicant had undertaken some work as a casual labourer in 2008 and 2009 for an asphalting company on the Central Coast. His employer was willing to consider rehiring the applicant again, once that was possible.

Remarks on Sentence 42The sentencing Judge delivered his sentence on the day upon which he received submissions. 43He carefully noted the objective features of the offence, the extent of injuries sustained by the victim, and briefly summarised the applicant's subjective case. 44The sentencing Judge drew these conclusions: (a)The offence was a serious one which involved a degree of violence used against the victim; (b)His Honour was satisfied that the attack was deliberate and that the applicant's action showed that he intended to wound the victim and cause serious bodily injury. His Honour noted that the nature of the attack to the victim's face increased the seriousness of the offence. As did the fact that the offence involved the actual use of a weapon, being a knife. (c)His Honour accepted the opinion of Dr Allnutt that at the time of the offence, the applicant was in an emotional state and that he was relying upon drinking alcohol and continuing to use cannabis to deal with that emotion. (d)His Honour expressed the view that the offence, by reason of the deliberate act of the offender, and the injury sustained to the victim, was above the mid range of objective seriousness. 45The sentencing judge did not deal with all of the opinions of Dr Allnutt. In particular, he made no mention of his opinion derived from his clinical examination, that the applicant had probably suffered frontal lobe damage from his two previous head injuries which would have contributed to a loss of self control. 46Although Dr Allnutt described this opinion as his "clinical suspicion", the sentencing Judge made no reference to it. 47His Honour found that the applicant was entitled to a discount of "somewhere between 15 and 20 [per cent]". 48His Honour then pronounced sentence.

Proceedings after initial sentence 49Having considered his Honour's oral remarks, after the luncheon adjournment, the Crown Prosecutor returned with counsel for the applicant, to the Court to draw his Honour's attention to what had occurred. 50His Honour in imposing sentence, had said that he was of the opinion that but for the plea of guilty, the appropriate sentence would be a period of imprisonment of 10 years. The sentence, which his Honour actually imposed, was a total of nine years. Given the apparent discrepancy between the amount to be allowed by way of discount that is, between 15 and 20 per cent and the sentence which his Honour actually imposed, it was appropriate for counsel to draw the matter to his Honour's attention. 51The Crown Prosecutor indicated to the sentencing Judge, that as the sentence then stood, the applicant had received a discount of 10 per cent rather than that which his Honour had announced. A discount of only 10 per cent was less than both the Crown and the applicant had submitted. 52There was then some discussion about the mathematical consequences of various calculations. This discussion ended with this statement: "His Honour: ...so if I make it 8 years and 3 months, that's somewhere between 15 and 20 [per cent] isn't it? Crown Prosecutor: That's right, that's correct. [Applicant's counsel]: That's so. ... His Honour: So it would mean, just work out the calculations in relation to this, I think that would still be right. So the minimum if it was 8 years and 3 months, the minimum non-parole period would be somewhere in the vicinity of 6 years and 9 months, is that not so? Because it has to be a third of that. So the minimum period of 6 years is still giving him a position of less than the minimum statutory period. [Applicant's Counsel]: Yes, it's still within the ratio. His Honour: And that is correct? [Applicant's Counsel]: Yes. Crown Prosecutor: That's right." 53His Honour then went on to make this remark with respect to the minimum period: "His Honour: And in fixing that minimum period, it should be noted on the record that I have found special circumstances in particular in relation to the continuing support that he is receiving from his partner and family and the continuing assistance that will occur to him in relation to any possible rehabilitation. And that would still bring in the special circumstances in relation to the six years. So the only thing that would have to be changed, other than the fact that I have found special circumstances which should have been noted, would be the period of imprisonment taking into account his plea of guilty of 8 years and 3 months, is that not so? [Applicant's Counsel]: That is so your Honour, but I think I may have been wrong when I said a minute ago that 6 years would fulfil the statutory ratio. I think the normal test is the non-parole period needs to be 75 per cent in proportion to the head sentence. ... [Applicant's Counsel]: Actually no, your Honour, I think your Honour's right, I think it was 72 per cent and that would be, that would make sense. His Honour: Yes. Crown Prosecutor: That's under 75." 54His Honour then proceeded to re-sentence the applicant, saying this: "I sentence you, you are convicted of the offence and taking into account your plea of guilty, I sentence you to a period of imprisonment of 8 years and 3 months, which is to date from 28 January 2010 and is to expire on 27 April 2018. I find special circumstances and I set a non-parole period of 6 years which is to date from 28 January 2010 and is to expire on 27 January 2016 on which date you will be eligible for release on parole subject to the supervision of the New South Wales Probation and Parole Service and to obey all directions of that service particularly in relation to drug and alcohol counselling, and to remain on parole until the expiration of your sentence on 27 April 2018."

Grounds of Appeal 55The applicant relies upon seven grounds of appeal. They are as follows: (1)His Honour failed to take into account a material consideration namely the applicant's mental disorder in the sentencing exercise. (2)His Honour took into account an irrelevant matter when finding the offence was above the mid-range of objective seriousness. (3)His Honour erred in finding that the offence was above the mid-range of objective seriousness. (4)His Honour erred in his approach to the non-parole period in that the finding of special circumstances was not adequately reflected in the non-parole period imposed. (5)His Honour failed to comply with s 44(1) of the Crimes (Sentencing Procedure) Act in the fashion in which he sentenced the applicant. (6)His Honour failed to reflect the discount for the plea of guilty in the non-parole period. (7)The sentence imposed is manifestly excessive.

Ground 1 - Applicant's mental condition 56The applicant submits that the sentencing Judge failed to properly consider, and take into account, the applicant's mental state. In particular, the applicant submits that the sentencing Judge ought to have concluded that the applicant had probably suffered frontal lobe damage, which was a causally contributive factor to the way in which he acted. 57It is undoubted that mental illness, or a mental problem may be relevant in a number of ways in the sentencing process. As this Court held in R v Hemsley [2004] NSWCCA 228 at [33]-[36], the ways in which mental illness or disorder may be relevant are: (1)where mental illness contributes to the commission of an offence in a material way, the offender's moral culpability may be reduced; (2)mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration; (3)a custodial sentence may weigh more heavily on the person; (4)it may reduce or eliminate the need for specific deterrence; (5)a countervailing consideration may arise, namely that the level of danger which the offender presents to the community may sound in special deterrence. See also Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 at [177]-[178]. 58It is necessary to note that the application of these principles is not limited to cases of serious psychiatric illness. Circumstances may indicate that a condition or problem of modest severity may still be relevant: De La Rosa at [178]; R v Verdins [2007] VSCA 102; 16 VR 269 at [15]. 59The sentencing Judge gave only very brief consideration to this issue. He said this, in addition to the references to the existence of Dr Allnutt's report: "I do however, accept that he did state to Dr Allnutt that he was remorseful for his conduct and I also accept that, as at the time of the offence, he was suffering from effects of depression. His conduct in drinking daily and imbibing drugs, which he said he was imbibing, is no excuse for his actions and are only taken into account in relation to the background of the offence. The only real mitigating factor available to the offender, is that of his plea of guilty." 60It does appear from this extract that the sentencing Judge rejected the applicant's mental state as in any way contributing to the commission of the offence, including the applicant's moral culpability, and did not consider that the need for either general or special deterrence may have been reduced or eliminated. His conclusion of substance was that the applicant's history of previous head injuries, his history of convulsions and his tendency to react violently, particularly having regard to his medication were not matters to be taken into account by way of mitigation. 61The material before the sentencing Judge indicated that the applicant had, in the past, sustained two head injuries, which had led to neurological complications. The report of Dr Fung of 18 February 2003, to which Dr Allnutt made reference, also noted that one of the complications which the applicant faced was that whilst taking medication for his neurological condition, manifesting in seizures, the applicant suffered side effects which worsened his mood, and meant that he had poor temper control. The medication also gave him headaches. 62This was a good reason for the applicant to cease to take that medication. As is apparent, having ceased taking his medication, the applicant's capacity to control his temper and behaviour was then unremediated by the beneficial effect of any medication. 63This evidence and material warranted careful consideration, and, so it seems to me, required some mitigation of the sentence to be imposed by his Honour. His Honour did not have any, or any expressed, regard to this material. 64Because it was highly relevant, I would uphold the appeal on this Ground because the sentencing Judge disregarded it, and did not as he should have, take it into account.

Ground 2 - Irrelevant material considered 65The applicant submits that his Honour took into account an irrelevant matter when finding the offence was above the mid-range of seriousness. 66The submission for the applicant notes that the offence for which the applicant was sentenced, was one against s 33(1)(a) of the Crimes Act, namely that the applicant wounded Mr Staunch with intent to cause grievous bodily harm. 67In assessing what the objective seriousness of the offence was, the sentencing Judge concluded that the offence fell above the mid-range of objective seriousness. This was a significant finding in the determination of the appropriate sentence to be imposed. 68In approaching that finding, his Honour said: "I consider on the agreed facts before the Court, the attack was deliberate and the actions of the offender showed that he intended to cause or to wound the victim and cause serious bodily injury." 69When announcing his finding that the applicant's conduct fell above the mid-range of objective seriousness, his Honour said: "I have come to the conclusion that the offence by nature of the deliberate act of the offender and the injuries sustained to the victim, is above the mid-range of objective seriousness." 70When determining where on the range of objective seriousness an offence falls, the determination is made by a sentencing Judge by reference to the particular offence, and the factual circumstances which demonstrate the guilt of the person to be sentenced. 71In other words, one is not comparing an offence contrary to s 33(1)(a) of the Crimes Act, which is an offence of specific intent, with some different offence which does not have, as a necessary element, a specific intent. On the contrary, one is comparing the factual circumstances which go to make up the particular offence, and asking the question, where, on the full range of factual circumstances which can comprise the offence, does this particular set of factual circumstances fall. 72It is unclear from his Honour's remarks that this is the approach he adopted. Allowing for the fact that his Honour was delivering his sentence in an ex tempore fashion, I am nevertheless satisfied that his Honour seems to have placed significant weight on the fact that the act was deliberate and intentional on the part of the applicant. He has wrongly used these features to determine where on the range of objective seriousness, this conduct falls. 73This was an erroneous approach. 74This Ground of appeal should be upheld.

Ground 3 - Error in finding offence above mid-range of objective seriousness 75The applicant submits that there was an error, not just in the path by which the sentencing Judge reached his conclusion, but also for the sentencing Judge to have concluded that the offence was above the mid-range of objective seriousness. 76In Mulato v R [2006] NSWCCA 282 at [37], Spigelman CJ, with whom Simpson J agreed, 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 the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." 77Simpson J, in her reasons, said this at [46]: "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 discretion. As such it is reviewable in this Court only on the principles stated in House v R [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a 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 the 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." 78Nevertheless, as Basten JA has said in R v Koloamatangi [2011] NSWCCA 288 at [51]-[52]: "Nevertheless, the appellate Court retains a statutory responsibility under s 5D or s 6(3) of the Criminal Appeal Act to intervene in circumstances where, upon an application of the correct principles, error is established: R v KB [2011] NSWCCA 190 at [53] ... The accepted principles are those identified in House v R ... As has been noted on other occasions, the principles in House refer to appellate interference with discretionary orders; nevertheless, similar principles are to be applied in relation to evaluative judgments such as that now in issue." It is necessary to keep in mind these principles. 79However, in light of the fact that I consider that error has been established with respect to Grounds 1 and 2, with the result that it will be necessary to re-sentence the applicant, it will be necessary for this Court to determine the degree of objective seriousness of this offence.

Ground 4 -Failure to correctly reflect the finding of special circumstances

Ground 6 -Failure to reflect discount for the plea of guilty in the non-parole period 80It is convenient to deal with these two Grounds together. The recounting of the exchange which took place after the luncheon adjournment, and which is set out in [52]-[54] above, demonstrates that the initial sentence imposed by the sentencing Judge failed to reflect the discount which his Honour had in mind. 81His Honour commenced with what he thought would be an appropriate total sentence. He announced that he was discounting it, but failed to discount it sufficiently to reflect his stated intention. He had discounted it by 10 per cent from 10 years to 9 years. He intended to discount the sentence by an amount between 15 and 20 per cent. When this was drawn to his Honour's attention, he reduced the overall sentence to 8 years and 3 months. This represented a discount of 17.5 per cent, which accorded with his stated intention. 82Although he increased the discount for the plea of guilty on the total sentence from 10 per cent to 17.5 per cent, his Honour made no change at all to the non-parole period. Ordinarily, one would expect that his Honour having fixed the non-parole component at 6 years with a balance of term of three years, namely, a ratio of 50 per cent, that the same ratio would continue to apply after he had adjusted the balance of the term. 83However, without reasons being given, his Honour did not adjust the non-parole period, which meant that the balance of the term represented just 37.5 per cent of the applicant's non-parole period, and not 50 per cent as his Honour had initially imposed. 84In the course of sentencing, his Honour made a specific finding of special circumstances. He said that he found special circumstances by reason of the continuing support and assistance the applicant was receiving from his partner and family, and his finding that that support and assistance would continue in a way which assisted with his rehabilitation. This finding of special circumstances, and the reasons for it, provided a sufficient basis for increasing the statutory ratio from 33 per cent to 50 per cent. The finding certainly provided a proper basis for a greater increase of the statutory 33 per cent ratio than the 37.5 per cent, which is the position that his Honour finally reached. 85It is clear that his Honour failed to reflect adequately the discount for the plea of guilty in the non-parole period which he ultimately imposed, and in so doing, did not adequately allow for the finding of special circumstances in the non-parole period which he fixed. 86I would uphold the appeal on these Grounds.

Ground 5 - Failure to comply with s 44(1) of the Crimes (Sentencing Procedure) Act 87This Ground complains that his Honour failed to comply with s 44(1) in the fashion in which he sentenced the applicant. 88There is no doubt that the process by which the applicant was sentenced was sufficient to generate considerable confusion. 89His Honour having made a calculation error in the first place, then proceeded to re-sentence the applicant, but in so doing also attempted to remedy his failure to specifically refer to special circumstances when he had earlier sentenced the applicant. 90The result of the way in which the applicant was sentenced, undoubtedly created room for confusion. 91Section 44 requires that when sentencing an offender, the Court is first to set a non-parole period for the sentence. Although it is necessary to also determine a balance of term, such an exercise is not a two-step or sequential process: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [112]. However, there are separate considerations which involve s 44(2) of the Crimes (Sentencing Procedure) Act. The sentencing judge in this case did not adequately conduct this aspect of the sentencing. 92However, in light of the fact that error has been established upon other grounds, which require this Court to undertake the determination of an appropriate sentence, there is no need to come to a final conclusion on this ground.

Ground 7 - The sentence imposed is manifestly excessive 93As with Grounds 3 and 5, because of the fact that error has been established in the imposition of sentence, which will require this Court to re-sentence the applicant, there is no utility in considering this Ground any further.

Re-sentence 94The applicant relied upon an affidavit affirmed on 18 April 2012, in the event that this Court came to re-sentence him. The Crown did not challenge the contents of this affidavit. It did not submit that the Court should not have regard fully to them, if the applicant came to be re-sentenced. 95The Court is entitled to take into account the applicant's current circumstances in the exercise of re-sentencing. 96The affidavit discloses that the applicant has been, and is continuing to be, held on protection whilst in custody. This has been necessitated by the fact that his safety was threatened because a relation of his was in jail for a crime not approved of by his jail inmates. It is likely that he will spend the balance of his time in custody on protection. 97The applicant notes that he has been well behaved since being in jail and has only taken prescription medication. He says that no illegal or illicit drugs have been taken. Random tests by the prison authorities have not detected any illicit drug use. 98The applicant has completed a number of courses and has carried out work when available. He notes the existence of ongoing family support, and the benefit that he obtains from this. 99The applicant expresses his remorse for his crime and acknowledges the effect that his crime has had upon Mr Staunch, the victim. 100These are matters that stand to his credit in any re-sentencing process, and I will have regard to them. 101The applicant's subjective features have been discussed earlier. 102It seems to me that significant weight must be given when determining a sentence to the impact that the applicant's head injuries have had on his behaviour, including the fact that he has poor temper control. 103Having regard to the agreed facts in this matter, it seems obvious, and I would conclude, that poor temper control played a significant role in the events that occurred. 104The offence was undoubtedly a serious one. 105The maximum penalty of 25 years imprisonment and the standard non-parole period of 7 years, are both important guideposts to be taken into account when imposing a sentence. The standard non-parole period has limited weight in the present circumstances, because of the discount for the plea of guilty, the effect of the earlier head injuries on the applicant's culpability and the need to reflect the finding of special circumstances in the ratio of the non-parole period to the total sentence. 106The sentencing Judge was satisfied that special circumstances existed for the reasons that he expressed. The Crown did not submit that there was any error in this finding, or that special circumstances did not exist. I am satisfied that special circumstances exist which means that the applicant should have a longer period on parole than that provided for by s 44 of the Crimes (Sentencing Procedure) Act. 107It will also be necessary to give effect to the applicant's plea of guilty for which a discount should be given. The sentencing Judge ultimately allowed a discount of 17.5 per cent. No one submitted that this finding was erroneous. I would allow the same discount. 108Taking into account all of the matters relevant on the issue of sentencing, and the need to balance the objectives of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act, I would propose that the applicant be sentenced to a non-parole period of 4 years, with a balance of term of 2 years. 109I propose the following orders: (a)Leave to appeal granted. (b)Appeal allowed. (c)Quash the sentence imposed in the District Court of New South Wales on 25 November 2010. (d)Sentence the applicant to a non-parole period of 4 years commencing on 28 January 2010 and expiring on 27 January 2014. (e)Sentence the applicant to a balance of term of 2 years, expiring on 27 January 2016. (f)Note the first day upon which the applicant is eligible for release on parole is 27 January 2014.

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: 08 June 2012