Elturk v R

Judgment 1BEAZLEY P: On 5 April 2012, the applicant pleaded guilty to the offence of stealing a knife contrary to the Crimes Act 1900 (NSW), s 117 and to the offence of wounding with intent to cause grievous bodily harm contrary to the Crimes Act, s 33(1)(a). The victim of this crime was the applicant's father. The maximum penalty for the stealing offence is 5 years imprisonment. The wounding offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. 2On 5 June 2012, the Crown applied to the District Court to reject the applicant's pleas of guilty on the basis that a more appropriate outcome of the matter would be a special verdict of not guilty by reason of mental illness under the Mental Health (Forensic Provisions) Act 1990, s 38. This application was supported by the expert evidence of Dr Nielssen, a psychiatrist, who had concluded that the applicant would have the defence of mental illness open to him, and that a special verdict would be beneficial to both the accused and the community. The trial judge, Nicholson DCJ, rejected that application. 3The applicant was sentenced by Nicholson DCJ on 5 October 2012. His Honour sentenced the applicant in respect of the wounding offence to a term of imprisonment of 8 years commencing on 3 January 2011 and expiring on 2 January 2019. His Honour set a non-parole period of 4 years such that the earliest date upon which the applicant will be eligible for parole is 2 January 2015. In respect of the stealing offence his Honour entered a conviction but otherwise imposed no penalty pursuant to the Crimes (Sentencing Procedure) Act 1999, s 10A. 4The applicant seeks leave to appeal against sentence. If leave is granted, the proposed grounds of appeal relied upon by the applicant are as follows: Ground 1: The sentencing judge erred in waiving the applicant's right to rely upon his mental illness as a relevant mitigating factor in assessing the objective seriousness of the offence. Ground 2: The sentencing judge erred in finding that "absent a reliance on mental illness the now unexplained irrationality and malice are matters to be taken into account adverse to the offender". Ground 3: The sentencing judge erred in that he gave insufficient weight to the applicant's acute psychotic disorder at the time of the offence in assessing the appropriate sentence. 5The essential challenge raised by these three grounds was that the sentencing judge erred in the manner in which he dealt with the applicant's mental illness.

Background facts 6The applicant is a 40 year old man who has been diagnosed as suffering from either a major mental illness of schizoaffective disorder or a relapsing psychotic illness with features of both schizophrenia and bipolar disorder. There is a history of mental illness in his family, his mother suffering from schizophrenia which was diagnosed when the applicant was an infant. The applicant and his older brother were brought up by their father since the applicant was six months old, when their mother separated from the family. 7The applicant has had mental health problems since about the age of 19. He has had approximately seven admissions to psychiatric hospitals in Western Australia, including two as an involuntary patient under that State's mental health legislation. He has been prescribed antipsychotic medication. Some periods of hospitalisation were for up to three months. He was at some stage treated with long acting injections as a condition of a Community Treatment Order. 8On 3 January 2011, the applicant stole a chef's knife from a Big W store. He then went to his family home where, until shortly prior to Christmas 2010, he had lived with his father. The applicant and his father had quarrelled about two weeks before Christmas, during which the applicant had said to his father, "I am going to kill you one day, you son of a bitch". 9When he entered the house, the applicant's father was seated on a lounge chair in the living room watching a DVD. The applicant approached him from behind and placed a hand on his father's forehead and tilted his head backwards. The applicant then ran the blade of the knife across his father's neck from right to left, causing a wound that commenced in the middle of the throat to a point near the right ear. It required 15 stitches and was described by the treating doctor as "serious". The wound was deep and cut through the inferior border of the thyroid cartilage. The right anterior jugular vein was lacerated. The sternoclamistoid muscle on the right side was also partly severed. Untreated, the injury was life threatening. Upon arrival at hospital, the father was immediately rushed to surgery. 10The applicant's father described the offender at the time of committing the offence as having an emotionless and expressionless face, appearing as if he was in a trance. When the father asked the applicant why he had done that, the applicant responded, "I had to do that, you are the devil". Apparently, the applicant had not been able to sleep for the four nights preceding the commission of the offence. The applicant was arrested later that day and participated in an ERISP. 11On the hearing of the application by the Crown to reject the plea of guilty, the trial judge referred to some of the answers the applicant gave in his ERISP, describing those answers as "bizarre and unfocused". These included references to his being in church; to a "devil name"; to things being done to him in his sleep; to being "like pure evil, this thing"; to there being "such a sickness in me"; and that he "couldn't control" himself. 12The applicant was referred to Dr Nielssen, psychiatrist, for the purposes of obtaining a report for the sentence hearing. During the consultation with Dr Nielssen, he said that at the time of the offence he was "in a psychosis", that "supernatural things were happening" and that he had "some powerful delusions". He said that he did not want to kill his father, but that he wounded him "to get relief from my situation". 13Dr Nielssen reviewed the applicant's ERISP, which he considered confirmed the presence of symptoms of psychotic illness. He stated that the applicant's answers "were disorganised in a way that was consistent with the disorder of form of thought of chronic mental illness". Dr Nielssen diagnosed the applicant as suffering from a schizoaffective disorder. He also remarked that when free of symptoms of psychosis, the applicant had periods of "both elevated and depressed mood". He noted that the symptoms of the applicant's condition were well documented in the medical records from Western Australia and confirmed by a statement of the applicant's father describing the onset and course of his son's mental illness. Dr Nielssen was of the opinion that at the time of the consultation, the applicant was elevated in mood and was in need of more intensive treatment for his psychiatric condition. 14The medical evidence indicates that the applicant's mental illness is relatively well controlled by medication. However, his father had described signs of the return of mental illness in December 2010. Hospital records at that time reported that the return of his symptoms was due to the cessation of his medication. It was common ground that the applicant had again ceased taking his medication some months prior to the commission of the offences, as he said that he felt better without it. 15Dr Nielssen was of the opinion that the contemporaneous documents, including witness statements and the applicant's answers in the ERISP, confirmed that the applicant: "... was acutely mentally ill at the time of the offence and that he committed the offence in response to symptoms of mental illness rather than for any rational or malicious reason." 16Dr Nielssen also expressed the view that the defence of mental illness would be available to the applicant. He observed that the applicant's illness responded to treatment and that the applicant did not have a pattern of antisocial conduct or a drug abuse disorder. Dr Nielssen stated that in his experience a special verdict (available under the Mental Health Act) was of benefit both to an accused person and to the community because rehabilitation through a separate forensic hospital system was very successful and as the rate of re-offending of patients granted release was very low. 17Dr Nielssen also recorded that the applicant was reported "to have limited insight into the nature of his mental illness and limited ability to recognise symptoms of the illness when they emerge". He stated that the medical records revealed that the applicant was affected by similar symptoms during acute exacerbations of his illness. Dr Nielssen was of the opinion that these symptoms might present a danger to himself and others when he was acutely unwell. The applicant had in fact self-harmed on the occasion of the 2010 admission to hospital, which was involuntary. On that occasion he had cut both his cubital fossae to "release evil spirits".

The trial judge's remarks on sentence 18His Honour considered, at [38], that although the applicant must have stolen the knife from the Big W store "in contemplation" of causing some harm, he did not contemplate causing serious harm to his father. His Honour found, at [39], that when the applicant entered the living room, his father was sitting with his back to him and did not realise that he was in perilous danger. His Honour found, at [45], that the injury, whilst not rating high on the scale of available grievous bodily harm outcomes, was nonetheless a very nasty injury, with long-term, if not permanent, physical sequelae, as well as having had a serious psychological impact on the father. 19The sentencing judge observed, at [31], that Dr Nielssen had expressed the opinion that the applicant's mental health condition had some causal impact upon the commission of the offence. His Honour found, at [43], that the attack was motivated by unfounded paranoid thoughts the applicant had in relation to his father, based on an "unfounded belief that he felt justified in seeking to cause his father really serious injury". However, because the applicant had chosen not to avail himself of the mental illness defence, his Honour considered, at [36], that the applicant's mental condition was not to be taken into account when assessing the objective seriousness of the offence. 20In coming to this determination, his Honour noted that the applicant's plea of guilty was not only an admission of the elements of the offence, but was also an acceptance by the applicant that he had no way of avoiding responsibility for his conduct. As his Honour put it, at [33]: "In effect [the applicant] has waived his right to rely upon this mental state as a mitigating circumstance of the objective seriousness of the offence." 21His Honour accepted that the full scope of the applicant's mental illness was relevant to the consideration of the subjective circumstances of the applicant, although, he noted that there were competing tensions in that proposition. 22His Honour noted Dr Nielssen's opinion that the applicant had committed the offence "in response to mental illness rather than for any rational or malicious reason". His Honour considered, however, at [48], that the applicant's conduct was in fact "irrational and malicious" and in the absence of any reliance upon a defence of mental illness, the unexplained irrationality and malice were matters to be taken into account adversely to the applicant. 23His Honour next referred to the father's victim impact statement, noting the serious psychological impact that the wounding had upon him. 24In dealing with the applicant's subjective circumstances, his Honour referred, at [62]-[63], to Dr Nielssen's diagnosis of a schizoid affective disorder and the symptoms the applicant experienced at various times, including "supernatural communication", "external control of his movements", "persecutory delusional beliefs" and a "disorganisation of answers" consistent with disordered thought processes. 25His Honour also referred, at [68], to the applicant's criminal history, but as it was not extensive, his Honour considered that it would entitle the applicant to leniency in respect of sentencing for this offence. His Honour was concerned, at [69], that although the applicant had expressed regret to the Probation and Parole Service, his evidence in the sentence hearing suggested that there were still matters of tension between the applicant and his father that may have been the result of, or be exacerbated by, paranoid ideation in respect of his father. 26His Honour, at [70], allowed a 20 per cent discount for the plea of guilty, rather than a greater discount that might have been allowed on an early plea of guilty, because he was concerned about the quality of the applicant's contrition. His Honour did not regard the matter as one suitable to take into account either personal or general deterrence. His Honour stated that, but for the plea of guilty, he would have set an overall sentence of 10 years imprisonment. Taking into account the discount of 20 per cent, the overall sentence imposed by his Honour was 8 years. His Honour set a non-parole period of 4 years. 27In approaching the sentencing task, his Honour referred to Power v The Queen [1974] HCA 26; 131 CLR 623; Veen v R (No 2) [1988] HCA 14; 164 CLR 465, Bugmy v The Queen [1990] HCA 18; R v Engert (1995) 84 A Crim R 67; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; and Muldrock v The Queen [2012] NSWCCA 108. I will refer to those decisions more fully below.

Consideration 28The applicant submitted that the sentencing judge failed to apply the principles relevant to sentencing offenders with a mental illness. He relied in particular upon the statements in The Queen v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported) as to the principles to be applied when sentencing offenders whose mental illness at the time of the offending was such as to provide a defence of insanity although the defence was not relied upon. It is appropriate to set out the passages upon which the applicant relied: "On a plea of guilty a sentencing juge is precluded from passing sentence on any basis inconsistent with the conclusion that the offender is legally responsible for the crime to which he has pleaded guilty. How, then, is a trial judge to sentence an offender who adduces evidence in support of a plea in mitigation to the effect that he was mentally ill at the time of the commission of the offence? In sentencing generally it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor, which should often be given very little weight ... because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than what the offender's responsibility for the offence should be regarded as having been reduced." (per Young CJ) "In the present case, a defence of insanity probably could have been made out on Mooney's behalf. That defence not having been taken, the Court could not deal with him upon the basis that a disease of the mind had so affected his reason that he did not know that he was doing, or that what he was doing was wrong ... The sentencing court, however, must proceed upon the basis that the offender has accepted legal responsibility for his offence, either by plea or verdict. His mental condition, and in particular the possibility that his mental condition in the future may be different from that existing at the time of the offence, remain significant in the determination of what is an appropriate course to be adopted in relation to him as an individual and to the protection of the community from him and from those who might be disposed to imitate him. In my opinion Mooney was, at the time when he was sentenced, an inappropriate person to be made the medium of a deterrent sentence. Moreover, since public sentiment is of significance in this area of the law, I think that sensible people well informed as to the facts would have held that view." (per Lush J) "... [A]n evaluation of the offender's moral responsibility for his crime is always required in the exercise of the sentencing discretion." (per Jenkinson J) 29A similar approach was taken by this Court in Engert, to which the sentencing judge referred. In Engert, Gleeson CJ stated, at [71], that: "... 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." 30The applicant makes no complaint in respect of his Honour's approach to questions of personal or general deterrence. Although the remarks in Mooney that a mentally ill offender is not an appropriate medium of a deterrent sentence were not directly applied, the applicant accepted that the primary judge's findings on deterrence operated in his favour. The applicant contended, however, that his Honour wrongly applied other sentencing principles, including those discussed in Mooney and Engert, in relation to offenders suffering from a mental illness. In particular, the applicant submitted that his Honour erred in rejecting the applicant's mental illness in his assessment of the objective seriousness of the offence. The applicant contended that although his plea of guilty precluded his mental illness from absolving him of criminal responsibility, it could be used to demonstrate his significantly impaired state of mind at the time of offending which, on his submission, informed both objective criminality and moral culpability. 31The question of what is meant by moral culpability in the sentencing process and whether the assessment of the objective seriousness of the offence is to be assessed without regard to an offender's mental state at the time of the offending was considered in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The High Court there observed, at [54]: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. 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." (citations omitted) 32The Court had earlier stated, at [27]: "Section 54B(2) and (3) [of the Crimes (Sentencing Procedure) Act] oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as 'the non-parole period for an offence in the middle of the range of objective seriousness'. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending." (emphasis added) 33In McLaren v Regina [2012] NSWCCA 284, McCallum J (McClellan CJ at CL and Bellew J agreeing), in considering this passage, stated: "27 The appellant contends that his Honour's conclusion may now be seen to have entailed error in that the decision in Muldrock renders impermissible any consideration of the applicant's state of mind in assessing the objective seriousness of the offence at hand. 28 In my view, that submission misconceives the effect of the decision in Muldrock. The phrase 'objective seriousness' in Muldrock at [27] ... refers specifically to the definition in s 54A(2) of the Act as to what a 'standard non-parole period' denotes. That is the "concept" referred to in the previous sentence of that paragraph. The point there made by the High Court, as I would understand it, is that there is no sense in attempting to place the offence at hand (with all its features, including matters personal to the offender where relevant to an assessment of the nature of the offending) at a point along a purely hypothetical range which, of its nature, is ignorant of those matters. 29 The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the "objective seriousness" of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing)." 34Her Honour's analysis is, respectfully, not only correct, but aptly captures the relevance of moral culpability in the sentencing process. 35It follows, in my opinion, that the sentencing judge in this case erred in determining that the applicant had waived his right to have his mental illness considered as a causal factor in the commission of the crime. 36That is sufficient itself for the grant of leave to appeal. Whether the appeal should be allowed requires the Court to determine, in accordance with the Criminal Appeal Act 1912, s 6(3), whether some other sentence is warranted in law and should have been passed. Before considering that question, reference should be made to grounds 2 and 3 of the appeal.

Ground 2: the sentencing judge erred in finding that absent a reliance on mental illness the now unexplained irrationality and malice are matters to be taken into account adverse to the applicant 37The sentencing judge described, in appropriate detail, the occasion and circumstances of the offending, noting, at [39], that the "offence was sudden, unannounced and achieved by stealth". His Honour observed that the applicant had "offered a reason to the father that made no sense". His Honour also found that the applicant had formulated the intention to do grievous bodily harm at the time that he pulled out the knife from wherever it was secreted upon his body. 38His Honour, at [47], referred to Dr Nielssen's medical opinion that the applicant had committed the offence "in response to mental illness rather than for any rational or malicious reason". His Honour found, however, at [48], that "on any view" the applicant's conduct "was irrational and malicious". His Honour continued: "Dr Nielssen's wording of the situation was an unhappy one if he was seeking to excuse it on account of the offender's incapacity to reason with a moderate degree of calmness. It was this incapacity that saw the offender irrational and malicious. There is no doubt that the offender was irrational and malicious. In the case of mental illness that irrationality and malice is something an offender will not be held responsible for, but absent a reliance on mental illness the now unexplained irrationality and malice are matters to be taken into account adverse to the offender." 39His Honour's last statement was in error. The error stemmed from his earlier conclusion that the applicant had waived his right to rely upon his mental state in the assessment of the objective seriousness of the offence. As I have explained, the applicant's mental state at the time of offending remained relevant to the sentencing process, including in assessing the objective seriousness of the offence and the applicant's moral culpability, notwithstanding that the applicant had not proceeded under the provisions of the Mental Health (Forensic Provisions) Act. 40It follows that I would allow ground 2 of the appeal.

Ground 3: the sentencing judge erred in that he gave insufficient weight to the applicant's acute psychotic disorder at the time of the offence in assessing the appropriate sentence 41This ground can be dealt with briefly. The applicant directed the Court's attention to the statistics maintained by the Judicial Commission of New South Wales relating to sentences imposed for offences under s 33(1)(a). Those statistics revealed that in the period from February 2008 to June 2013, 85 per cent of persons sentenced for an offence under this provision received a sentence of less than 8 years. 51 per cent of all offenders received a sentence of 5 years or less. 72 per cent of all offenders received a non-parole period of less than 4 years and 64 per cent of offenders received a non-parole period of 3 years or less. The applicant particularly relied upon the statistic that no offender with a similar profile to him, that is, as having pleaded guilty to one offence only before the Court under s 33(1)(a), had received a sentence greater than 8 years, being the sentence that was imposed upon him. An examination of the relevant statistics to which the applicant referred reveals that they related to the imposition of the non-parole period. Full term sentences of 12 years have been imposed for a single offence on a plea of guilty. 42The applicant submitted that the sentencing outcome reveals error in that his Honour did not give sufficient weight to his mental illness, even in the consideration of the applicant's subjective case. Had he done so, the applicant submitted, both the full term and the non-parole period imposed would have been lower. 43The reasoning of the plurality in Veen (No 2) is of particular relevance to this ground of appeal. Their Honours observed that the principle of proportionality was an established sentencing principle with the consequence that a sentence could not be increased merely so as to provide for a longer period of protection of society from the risk of re-offending: see Veen (No 2) at [8]. Nonetheless, the protection of the community remained relevant to the sentencing process. 44The plurality further observed that the sentencing principles that guided courts in imposing sentences could not be considered in isolation from each other and further recognised that the principles sometimes pointed in opposite directions. Thus, their Honours noted that: "...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. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." 45This passage would appear to be the basis of his Honour's comment that there were competing tensions when considering the applicant's mental illness. It will be recalled his Honour considered that the applicant was potentially a danger to his father and there was also the history of occasions of non-compliance with his medication regime, which led to periods of hospitalisation and, on this last occasion, to the commission of a serious offence. It is also apparent that his Honour well understood the principle of proportionality. Nonetheless, the sentence imposed failed to make appropriate allowance for the applicant's mental condition and his low level of moral culpability, with the consequence that the sentence imposed was not proportionate to the criminality. This last observation leads to the result that some other sentence is warranted in law: the Criminal Appeal Act, s 6(3). 46Although the considerations to which I have referred have led me to the view that some other sentence is warranted in law, the determination of the appropriate sentence to be imposed requires that those considerations be balanced with the evidence as to the nature and seriousness of this offence and the danger which the applicant poses, given the nature of his illness; the consequences which follow from the applicant ceasing to take the medication which helps control his illness; the applicant's limited insight into the nature of his illness; and his limited ability to recognise symptoms of his illness, when they emerge, at which point he presents an acute danger. 47Having regard to all of these matters, I consider that an appropriate sentence is a non-parole period of 3 years 6 months commencing on 3 January 2011 and expiring on 2 July 2014 with an additional term of 3 years expiring on 2 July 2017. 48I propose the following orders:

1. Leave to appeal is granted.
2. The appeal is allowed.
3. The sentence imposed in the District Court on 5 October 2012 is quashed.
4. The applicant is sentenced to imprisonment comprising a non-parole period of 3 years 6 months and a balance of the term of the sentence of 3 years. The sentence is to date from 3 January 2011. The earliest day the applicant will be eligible for release on parole is 2 July 2014. The total term expires on 2 July 2017. 49R A HULME J: I agree with Beazley P. 50SCHMIDT J: I agree with Beazley P.

Amendments 28 April 2014 - Correction to typographical error Amended paragraphs: [8] 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: 28 April 2014