Craft v R

Factual background

1. The two index offences occurred on 6 September 2019 and the applicant was arrested on 1 October 2019. The agreed facts can be summarised as follows.
2. Both the victim and the applicant were homeless at the time of the offences and knew each other from the streets where they both congregated to drink. On this day the victim had been drinking in outdoor area proximate to old cinema known as the "Hub" in Newtown with others. After she purchased two further cans of UDL and returned to the Hub, she noticed the applicant sitting on a seat drinking from a plastic cask bag of white wine. She tried to get his attention so she could have some wine. They subsequently all moved to an area that was undercover and continued to drink.
3. When the victim spoke to the applicant he became aggressive towards her. They discussed where they came from and a dispute occurred. The two of them stood facing each other and a scuffle commenced where they were pushing each other and trying to stand over each other.
4. The victim made a move to hit the applicant, but it ended up being no more than a tap to his shoulder. The applicant then punched the victim to her face. Witnesses tried to separate them and calm them down, but the applicant and the victim continued to talk aggressively to each other ignoring the attempts by others to calm them down. Their aggressive conversation went on for approximately another ten minutes. They separated from the onlookers and commenced another scuffle. The victim said to the applicant, "[d]on't throw your section 32 crazy games on me". She said she thought she could try and settle him down, but it did not work.
5. The applicant then head-butted the victim, connecting with her forehead and the bridge part of her nose. He then punched her to the left side of her head near her temple and she fell to the ground. It is that interaction which constitutes the offence of assault occasioning actual bodily harm.
6. The two of them then walked back over to where the others were sitting. The victim had a graze to her forehead between her eyes arising from the offender's conduct. The offender and the victim were still talking aggressively to each other but according to the witnesses they were "not as bad" as before.
7. A witness offered the applicant a cigarette to try and get him to calm down. He was sitting away from the victim at that time. He then got up and walked towards the victim whilst speaking to her in an aggressive tone of voice. She got up and started speaking aggressively in return to him. The witnesses present were again trying to get them to stop by saying "[s]top it" without physically intervening.
8. The applicant and the victim started saying they were going to call people to deal with each other. The applicant said multiple times to the victim "I'll shank you". At one point he said to her, "[y]ou're gone, you bitch, you're dead, I'll kill you".
9. The applicant had a knife in his hand. The victim was not aware of this. With a closed fist the offender moved his right arm, which was holding the knife, around his side, at hip height, and then into the victim's rib area (reckless wounding). As soon as he did this, he ran off towards Bedford Crescent and turned right into Denison Street.
10. The victim sat down on the crate on the footpath and said, "I think my ribs are broken". A witness who came to the victim's aid lifted her shirt and saw that she was bleeding and then helped her towards the police station. They got to the corner before the police station when the victim appeared to faint. The witness left the victim on the corner and ran into the police station yelling, "[s]omeone got stabbed". Police then attended and assisted the victim.
11. The medical records demonstrated that the victim had been stabbed by the accused to her chest with a ten-centimetre kitchen knife. The knife was still in the victim when she arrived at the police station and it fell out whilst she was at the station, prior to paramedics arriving. The stab wound was to the victim's left axilla (armpit). The wound was to the fourth intercostal space and was two to four centimetres deep. There was no pleural entry and the wound was treated with sutures and pain relief medication.
12. The applicant was arrested on 1 October 2019. Police contacted the applicant's case worker from the Salvation Army's Oasis Youth Support Network, Ms Bernadette Stephens. Ms Stephens informed police that the applicant had been diagnosed with a brain trauma which impacts on his cognitive functions. As a result, police treated the applicant as a vulnerable person. He did not participate in an electronic interview, and no forensic procedure was completed.
13. The sentencing judge also summarised the facts of the previous offence that occurred on 18 August 2018, for which the applicant was sentenced to a CCO. The facts were similar. On that occasion the victim of the offence had been sitting in Belmore Park with a number of friends when he was approached by the applicant who asked for a cigarette. The victim did not have any cigarettes, so he could not oblige. Shortly afterwards the victim walked towards the bus stop on Eddy Avenue to check the timetable. While doing so the applicant approached him from behind, wrapped his arms around the victim's neck and placed him in a headlock. The applicant then raised his hand and punched the victim to his face multiple times, causing a laceration to the skin above the victim's left eye and swelling and bruising with some bleeding from a laceration to his lip.
14. His Honour observed the following in relation to that incident: "Clearly the facts disclose that on that occasion, that is 18 August 2018, this offender without provocation assaulted the victim from behind before then inflicting a number of blows causing injury. I note that the agreed facts sheet includes the following- 'The accused has admitted that he has a quick temper and is sometimes quick to violence. He has made admissions to the offence in some respect however has also made attempts to rationalise the incident. The accused has breached his bail numerous times'. Later while in custody he said, 'I admit I did get into a fight. I grabbed him and put him on the window' and made claims that he himself had been punched at some point during the altercation."

Proceedings on sentence

1. Proceedings on sentence were conducted on 25 June 2020. A Crown bundle was tendered comprising a sentence summary, agreed facts, the applicant's criminal and custodial history, a Sentencing Assessment Report dated 24 June 2020, written submissions on sentence and a bundle relating to the CCO offence.
2. Counsel for the applicant tendered a neuropsychological report of Ms Melanie Tucker, clinical neuropsychologist, dated 23 June 2019, and a letter from Ms Olympia Panagos, Oasis Youth Support worker, dated 16 June 2020. Written submissions on sentence were also provided.
3. The report of Ms Tucker noted that the applicant indicated severe levels of depression, mild levels of anxiety, and moderate levels of stress. The applicant also indicated significantly elevated depression, hostility, and interpersonal sensitivity. The applicant's cognitive proficiency was assessed as borderline to extremely low. Overall, Ms Tucker found that: "Mr Craft is a 19-year old man with a history of concentration and memory difficulties and was a victim of early childhood domestic violence. … … Mr Craft demonstrates weaknesses in immediate auditory attention span, working memory and memory/new leaning on a background of borderline range general intellect (5th percentile). … Mr Craft endorsed elevated levels of psychopathology, particularly depression, but also stress, hostility and interpersonal sensitivity. The neuropsychological profile, together with the history provided by Mr Craft, suggests lifelong cognitive weaknesses of an unclear aetiology. The severe memory/new learning impairment suggests possible hypoxic injury, potentially at birth. Alternatively, this may be associated with previous heavy cannabis use… Another potential cause of the severe memory impairment is traumatic brain injury during childhood. … Furthermore, complex trauma may account for some of the observed impairments. Mr Craft's description of fluctuations in his mental state suggests the additional impact of his emotional status on his ability to concentrate and focus, however this is not likely to be the sole cause of his difficulties."
4. The applicant gave evidence at the proceedings on sentence. He stated that he felt remorseful for his actions and acknowledged that he had difficulty controlling his emotions when he was intoxicated.
5. Submissions on sentence addressed, inter alia, the applicant's mental health conditions and deprived background. Counsel for the applicant submitted that the sentencing judge would find a causal connection between the applicant's cognitive and mental health impairments and his offending, and that this would reduce the applicant's moral culpability for the offences and moderate the weight to be given to general deterrence. Counsel for the applicant also referred to Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa") at [177], per McClellan CJ at CL, and submitted that the applicant's mental health may be relevant "in other ways". Counsel for the applicant further submitted that the applicant's deprived background should be taken into account in assessing his moral culpability.
6. The Crown submitted that there was inadequate evidence of a causal link between the applicant's offending and his psychological conditions. It was further submitted that the applicant's symptoms were essentially poor impulse control and that even if there was some causal link this would not result in a significant reduction in moral culpability. The Crown did however concede that there was evidence to suggest that the applicant's time in custody would be more onerous and that this could warrant a finding of special circumstances or otherwise operate to reduce the sentence. The Crown further accepted that there was evidence that the applicant's moral culpability was reduced as a result of his deprived upbringing.

Remarks on sentence

1. After setting out the agreed facts as summarised above, the sentencing judge turned to consider the objective seriousness of the offences. In relation to the sequence 1 offence, the sentencing judge assessed the objective seriousness as falling "below the mid-range of objective seriousness but not at the lowest end of the range". The sequence 3 offence was found to be "within the mid-range of objective seriousness". It was noted that it was an aggravating factor under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the applicant was on conditional liberty at the time of the index offences.
2. The sentencing judge then considered the applicant's subjective case. He observed that the applicant's criminal history commenced in 2015 when he was a juvenile and that a number of his previous offences involved violence and aggression towards others. It was further noted that the applicant was under the influence of alcohol at the time of the offences and that the applicant believed his offending behaviour was linked to alcohol consumption, although he also acknowledged that he was unable to regulate his emotions and impulsivity when he was not intoxicated. The applicant was assessed as having a medium to high risk of re-offending.
3. Significantly, for the purposes of the sole ground of appeal, the sentencing judge summarised the findings of the neuropsychological report as follows: "I note that the offender has informed the neuropsychologist that he received multiple blows to his head as a result of childhood abuse, as well as sporting tournaments and that he may have lost consciousness on occasion, although he was not sure as to how long if he had. The neuropsychologist said that he has been diagnosed with post-traumatic stress disorder, however there is nothing before me that indicates that any appropriately credentialed person has ever diagnosed him as having suffered from PTSD rather than being simply a claim by the offender. He has a history of illicit drug use but denied any current use as at 24 May 2019. The neuropsychologist carried out a number of tests as to his intellectual functioning and skills. She referred to him as then being a nineteen-year-old with a history of concentration and memory difficulties and a victim of early childhood domestic violence, who at the time of the assessment suffered from elevated levels of psychopathology, particularly depression, but also stress, hostility and interpersonal sensitivity. She stated that his neuropsychological profile and his history suggested 'a lifelong cognitive weakness of an unclear aetiology'. She opined that there may be a number of different reasons for his suggested lifelong cognitive weaknesses, those being possibly a hypoxic injury, potentially at birth, previous heavy cannabis use, although it was unusual to see that endure in the abstinence of use and also possibly impairment caused by traumatic brain injury during childhood. I am unable to find on the information before me that there is any causal link between the offender's conditions and the offending such as to warrant a reduction in his moral culpability as contemplated by the principles in DPP v De [La Rosa] (2010) 79 NSWLR 1. I do however accept the offender has some personal difficulties, both emotional and intellectual and I accept that that is likely to make his time in custody more onerous as in addition will the current circumstances of Covid-19, potentially also adversely impact on his time in custody, even though we now appear to be at least over the hump if I can refer to it that way. I accept from the material before me that the offender has had a deprived upbringing in a dysfunctional background and suffered from domestic violence as a child, even though the only source of that material is ultimately the offender. I accept that that brings him within what is referred to usually as the principles discussed in Bugmy v The Queen [2013] HCA 37, so as to reduce to some degree his moral culpability. A countervailing circumstance in relation to this offender however is what was said by the Court at (44): 'However the inability to control the violent response to frustration may increase the importance of protecting the community from the offender'. The offender's criminal record indicates that there must be some concern that there is a need for the protection of the community from the offender, although he is still young and does not have that significant history of violence that would bring him within the realm of Veen (No 2). However there must be some concern as a result of the similar nature of his past offending." (emphasis added)
4. The sentencing judge noted that the applicant had been involved in three breaches of prison regulations involving violence since his arrest on 1 October 2019, and observed that: "It is in my view clear that he has difficulty in not responding in adverse circumstances with violence and has a certain lack of control in that response. Nonetheless there must be some reduction in sentence as a result of his accepted lower moral culpability." (emphasis added)
5. The sentencing judge noted the importance of general and specific deterrence and reflecting the objective seriousness of the offences. The sentencing judge also accepted that the applicant was genuinely remorseful. His Honour further observed that the applicant's criminal history was not an aggravating factor, but it would disentitle him to leniency.
6. The sentencing judge then paused to confer with counsel and the following exchange occurred between his Honour and counsel for the applicant, Ms Sanders: "However is there any area that I have omitted to refer to that should be referred to or error that I have made in relation to dates or anything of that nature? SANDERS: Your Honour just perhaps in relation to his cognitive and mental impairments your Honour has found inadequate evidence of a causal link. HIS HONOUR: Yes. SANDERS: However those factors can be relevant in other ways such as in accordance with De [La Rosa] there's a number of ways in which those conditions are still relevant notwithstanding a lack of causal link. I'm not sure if your Honour-- HIS HONOUR: I am taking that into account-- SANDERS: Your Honour is taking that into account. HIS HONOUR: --as generally relevant to him yes. SANDERS: Yes so all right. HIS HONOUR: I thought I had said that. SANDERS: Yes you may well have and I perhaps haven't noted it down as diligently as I should have. Thank you."
7. The sentencing judge then imposed the sentences set out above at [6] and noted that the statutory ratio had been varied due to his finding of special circumstances and the applicant's need "to have a longer period potentially on parole to assist him with his problems".

Applicant's submissions

1. The nub of the complaint under this ground is that the sentencing judge erred in his conclusion that there was insufficient evidence of a causal link between the applicant's mental health conditions and his offending such as to reduce the applicant's moral culpability.
2. The "causal link" to which the sentencing judge referred was submitted to be a reference to the first "dot point" at [177] of De La Rosa: "Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence".
3. The applicant submitted that the sentencing judge's finding of insufficient evidence of a causal link was inconsistent with his Honour's later reference to making "some reduction in sentence as a result of accepted lower moral culpability". It was further submitted that the sentencing judge did not engage in an analysis of whether the objective seriousness of the offences was reduced as a result of the applicant's mental health and cognitive impairment.
4. The applicant's cognitive and mental health conditions were submitted to be relevant to the offending in that they "directly affected his ability to appreciate the circumstances posed and to respond in a proportionate (not criminal or violent) way". This was submitted to be a matter that was both personal to the applicant and relevant to the applicant's moral culpability. Counsel for the applicant submitted that it was not useful to search for a "bright line" between characteristics personal to the offender and those impacting on the nature of the offending. It was submitted that it was not only open to the sentencing judge to find that the applicant's conditions reduced his moral culpability but that his Honour "should" have made such a finding.

Crown submissions

1. The Crown submitted that it was entirely open to the sentencing judge to find that there was no demonstrated causal relationship between the applicant's cognitive weakness and his offending. It was further noted that the neuropsychological report of Ms Tucker, which was prepared prior to the relevant offences and for therapeutic purposes, did not address any link between the applicant's mental conditions and his offending.
2. The Crown further submitted that the sentencing judge gave full weight to the applicant's subjective case, including by the finding of reduced moral culpability as a result of childhood deprivation. It was observed that the sentencing judge may have balanced the applicant's reduced moral culpability with his Honour's finding that there was still a need for general and specific deterrence and protection of the community.

Consideration

1. The sole complaint made in this application is that although the sentencing judge made a finding that the applicant's moral culpability was reduced on one basis (based on Bugmy principles), his Honour erred in failing to find that the applicant's moral culpability was also reduced on another basis (based on his cognitive impairment).
2. The two most common situations in which a sentencing court may make a finding that an offender's moral culpability is reduced is either as a result of a finding of profound childhood deprivation or a finding of mental illness/cognitive impairment. The former of these two derives from the decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 in which the High Court considered the relevance of an offender's deprived background to offending as an adult. On that issue the Court observed the following at [44]: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (footnote omitted, emphasis added)
3. The second most common basis upon which a finding of reduced moral culpability will be made is mental illness/cognitive impairment. The complex issues arising when sentencing such an offender were considered by the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 ("Veen [No 2]") where Mason CJ, Brennan, Dawson and Toohey JJ observed the following at 476-477: "... sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter." (emphasis added)
4. The High Court revisited this question in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. After citing Veen [No 2] and other decisions (including R v Engert (1995) 84 A Crim R 67 ("Engert")), the Court went on to observe the following at [54]: "A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community." (footnote omitted, emphasis added)
5. The principles derived from the numerous decisions of this Court concerned with the sentencing of mentally ill offenders were summarised by McClellan CJ at CL in De La Rosa at [177] as follows: "Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence." (citations omitted)
6. In the context of these principles, the scope of the error alleged under this ground is narrow. It is submitted that it was "not open" for the sentencing judge to observe (in the passage extracted above at [30]) that he was "unable to find on the information before [him] that there [was] any causal link between the offender's conditions and the offending such as to warrant a reduction in his moral culpability" as contemplated by the first point in De La Rosa.
7. A question arose at the hearing of this application as to what the relevant test was for error when the allegation is that the primary judge failed to make a particular finding: in other words, where there has been a "non-finding". I propose to proceed on the basis that the question is whether it was open to the sentencing judge to conclude that there was insufficient information before him to find the causal link urged upon him by the applicant: R v O'Donoghue (1988) 34 A Crim R 397.
8. The first difficulty with the complaint made under this ground is that the only expert evidence before his Honour came from the report of Ms Tucker who had not been asked to provide her expert opinion on the specific question of any causal link. I have extracted the relevant portions of her report above at [24]. She described the applicant as having a history of concentration and memory difficulties, being a victim of early childhood domestic violence, and as demonstrating weaknesses in immediate auditory attention span, working memory and memory/new learning on a background of borderline range general intellect (5th percentile). He was also depressed. Significantly, she described him as having "lifelong cognitive weaknesses of an unclear aetiology". She suggested this could have been from: 1. possible hypoxic injury, potentially at birth; 2. previous heavy cannabis use; 3. a traumatic brain injury during childhood; or 4. complex trauma.
9. At no stage did Ms Tucker ever opine that there was any causal connection between the applicant's cognitive weaknesses and his offending.
10. A second difficulty with this complaint is that there appears to be a close nexus between the applicant's deprived childhood and his mental health issues. The expert evidence before his Honour was that the suggested causes of the applicant's cognitive deficits included his childhood experiences. In that context, his Honour did make a finding of reduced moral culpability based on his childhood of deprivation.
11. His Honour accepted that the applicant had difficulty "in not responding in adverse circumstances with violence" and that he had a "certain lack of control in that response". These findings are consistent with his Honour's satisfaction that Bugmy principles applied. Accordingly, his Honour reduced the sentence. I do not accept the submission made on behalf of the applicant that there is any inconsistency in this approach.
12. A similar complaint was recently considered by this court in Johnston v R [2021] NSWCCA 86 and rejected on the same basis. In that decision Ward JA and Wilson J observed at [82] that: "The difficulty with the applicant's submission is that his Honour did in fact have regard to the applicant's significant mental health conditions and did make the finding sought to the effect that there was a reduction in moral culpability and that the principles of general deterrence had less application. Whether those findings were made in addressing the application of the Bugmy principles (as, in the applicant's submission, is the context in which they were addressed) or otherwise (it being the applicant's submission that this could not simply be 'rolled into one' by referring to moral culpability and general deterrence), it is clear that his Honour did give specific consideration to the applicant's mental condition."
13. A third difficulty with the complaint under this ground is that the applicant gave this evidence at his proceedings on sentence: "Q. You just told his Honour that you were intoxicated at the time. Am I looking at you? A. Yes. Yes. Q. Do you accept that when you get intoxicated, it causes you to have difficulty controlling your emotions? A. Yes."
14. It was open to his Honour to conclude that alcohol was a causative factor in the applicant's offending.
15. Having regard to the lack of expert evidence, the overlap between the two bases upon which a reduction in moral culpability was sought and the real doubts as to whether it was the applicant's intoxication which led to the commission of the offence, I am satisfied that it was open to his Honour to make the finding that he did based on the evidence before him.
16. As Gleeson CJ observed in Engert at 68: "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."
17. In the present matter the applicant's mental condition clearly was taken into account in a number of ways. His Honour expressly stated that the applicant's time in custody would be more onerous because of it, his moral culpability was reduced on the basis of his childhood deprivation which had ties to his cognitive difficulties and there was a finding of special circumstances such that the non-parole period was reduced to only 61% of the head sentence.
18. Overall, I am not satisfied that any error is disclosed in the manner in which the sentencing judge approached the issue of the applicant's cognitive impairment.

ORDERS

1. I would propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

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: 25 June 2021