1 CAMPBELL JA: I agree with the order proposed by Grove J, and, with one exception, with the reasons he gives. That exception is para 42 of the reasons for judgment.
2 I would prefer to leave undecided whether there are no circumstances at all in which injury or detriment that a criminal causes to himself or herself can operate as a mitigating factor. I can envisage a situation in which an argument might be put that an injury or detriment that a criminal had imposed upon himself or herself should be taken into account in mitigation. For example, if someone's criminal conduct had caused very serious injury to a family member, and the criminal thereafter spent considerable time and money in seeking to moderate the consequences of his or her action, an argument might be put that that was appropriate to take into account as a mitigating factor. I do not seek at present to foreclose what the appropriate response to such an argument would be, merely to leave open the possibility that it might be made. I would prefer to decide ground 4 on the basis of a more detailed consideration of the facts of the present case.
3 Apart from the matters recorded by Grove J in paras 35 and 36, the only evidence relating to the nature or effect of the applicant's self-injection with battery acid is a statement in a psychological report that "he received a graft from his right thigh due to necrosis of the arm muscle and tissue area." There is no indication of the extent of the necrosis.
4 While counsel at the sentencing hearing informed the judge, in the terms set out by Grove J at para 36, there was no allegation that the disability marred the applicant's physical capacity, as opposed to his appearance, and no indication of the size of the "crater" or of what the practical consequences of having it were.
5 In my view it is of considerable importance that the applicant's self-injection with acid, though not in itself a criminal act, was intimately bound up with his criminal actions on 20 January 2006. The types of detriments that have been recognised as extra curial punishment that can be taken into account as mitigating factors have all been detriments that have come to be imposed on the criminal after the crime has been committed in retribution for or as a consequence of, his having committed the crime, or detriments unintentionally arising from the criminal conduct. I would not expect a matter of mitigation to arise from something that was part of the committing of a crime itself - for example, a person who engaged a hitman to injure someone would be unlikely to succeed in arguing that it was a mitigating factor that he had paid a lot of money to the hitman. In the present case, when the self-inflicted harm is intimately bound up with the criminal conduct, and the extent to which it is a serious disability is not well established, I see no error in the trial judge not having mentioned it as being a mitigating factor.
6 As stated earlier, I agree with the orders proposed by Grove J.
7 GROVE J: The applicant seeks leave to appeal against the severity of sentence imposed upon him by Ellis DCJ at Parramatta District Court on 13 March 2007. The imposition concerned convictions for nine offences together with three further offences which were asked to be taken into account pursuant to the Form 1 procedure. The offending took place in January 2006. It is convenient first to sketch a summary of the facts which will provide context for demonstrating how the charges were derived. I extract this summary from a lengthy agreed statement which I will not reproduce in full but that is not to suggest that the extensive detail therein has been ignored.
8 On Saturday 14 January 2006 the applicant was at the house of his wife and three children (aged 14, 11 and 8). As had occurred on numerous prior occasions, the applicant was living separately and apart from his family. However, on this day he spent a considerable time at his wife's house using her computer. In the evening she asked him to leave but he responded with verbal abuse. At about 7.30 pm she left with the children to dine elsewhere. Upon their return the applicant again refused to leave when requested so to do. Upon being told that police had been called, he obtained a knife from the kitchen, grasped his wife by the throat and presented the knife to her. His fourteen year old son intervened and he and his mother were able to run into his bedroom. The applicant followed them and slapped his wife's face. Their son again intervened and the applicant took his wife's car keys, left the house and drove off.
9 Mrs Christodoulou and the children went to her parents' home which was located at the back. The two residences occupied parts of what constituted a battleaxe block. A short time later, the applicant returned and was holding a small axe with which he struck one of the car tyres. Exchange of words and some physical struggle occurred but the son pleaded "Don't do anything Dad, just leave" whereupon the applicant looked about, after which he climbed the fence and decamped. The police arrived but their search did not locate the applicant.
10 From these events emerged charges of common assault which I will refer to as counts 2 and 3 using the enumeration in the particulars of trial filed in accordance with the Criminal Appeal Rules.
11 In the days between 14 and 20 January, the applicant made numerous calls to his wife's landline and mobile phones and sent text messages to the latter. They contained a variety of threats to kill and also threats to harm himself, specifically by sticking a needle into his own arm. There was evidence that a threat of the latter nature had been made previously by the applicant, for example, in 2000 when his wife informed him that their marriage was over. The conduct in this period led to a charge of intimidating with intent to cause fear (count 4).
12 Shortly before 7 pm on Friday 20 January 2006 the applicant called his wife and asked to speak to his children and she urged him to turn himself in, commenting that he needed help. This call terminated but at about 8 pm he left a message on the landline asserting that, as he was not being allowed to see the children, he would inject himself with acid in the sight of his family.
13 Mrs Christodoulou and the children went to her parents' residence where her father, with the assistance of her brother, locked the doors and windows. Following a further message which included a threat of suicide, the applicant arrived at the premises. He attempted to open the power box but it had been effectively sealed against interference. He yelled threats and commenced kicking the front door damaging the handle and causing part of the architrave to collapse. At the time he was seen to have a syringe in his hand.
14 Thereafter he picked up a pot plant weighing about 40 kilogrammes and threw it through a window. It in fact landed on a mattress upon which his younger children had been sleeping over the previous five nights. The breakage of the window left remnants of large glass shards. The applicant commenced to enter the house through the window frame but he was stopped by his brother-in-law who was wielding a cricket bat. After the applicant retreated he moved again to the front door and applied further kicks to it. He later returned and attempted once more to enter through the broken window. He picked up a large shard of glass and threw it at his father-in-law which caused a wound to his forehead. It was deep, it bled profusely and required medical treatment. The applicant took a second glass shard and threw it also, but he missed his father-in-law and it hit his son on the upper thigh. Further entry was prevented by use of a door and the applicant retreated to the front of the house and resumed kicking the front door.
15 By this time it appeared that he had impaled his arm with the syringe. The foregoing circumstances led to charges of specially aggravated breaking and entering and committing a serious indictable offence, namely wounding (count 1), malicious damage to the front door (count 7) and common assault upon his son (count 5).
16 At a point when the applicant was still kicking the front door, police arrived. The syringe was observed to be impaled in his arm and he said to police that he would inject himself if they came any closer. He then picked up a brick and successively threw it at Subaru and Holden vehicles which belonged to his wife and father-in-law respectively. Both vehicles were damaged and two further charges of malicious damage to property arose out of this conduct (counts 8 and 9).
17 Thereupon the applicant rushed at the police officers who applied capsicum spray to him but this had no apparent effect and he resumed kicking the front door. More police arrived and a Sergeant Dodd called upon the applicant to desist and also informed him that he was under arrest. The applicant did not comply with the direction to desist and picked up nearby garden chairs which, in succession, he threw at police officers striking four of them. He then attempted to punch one of the police officers who avoided his blows. Ultimately police subdued the applicant and handcuffed him. This led to four charges of assaulting a police officer in the execution of his (and in the case of Sergeant Bills, her) duty. One such charge became count 6 and the other three charges were scheduled in the Form 1.
18 The prescribed maximum penalties in respect of the respective charges were for the specially aggravated breaking and entering, 25 years imprisonment; for common assault, 2 years imprisonment; for intimidation, 5 years imprisonment; for malicious damage to property, 5 years imprisonment and for assault of a police officer in the execution of duty, 5 years imprisonment.
19 It can be noted that, with the exception of count 1, the applicant pleaded guilty to the offences at Parramatta Local Court on 18 July 2006. He pleaded guilty to the remaining count 1 upon his arraignment in the District Court. He had been in continuous custody from 20 January 2006. Although he was for a time granted bail, he did not enter it.
20 The sentences imposed by his Honour were as follows: