Field v R

Court of Criminal Appeal (NSW)|2020-05-01|Before: Hoeben CJ, Walton J, Harrison J

Solicitors: Aboriginal Legal Service (NSW/ACT) - Applicant Solicitor for Public Prosecutions (NSW) - Respondent Crown File Number(s): 2016/315219 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 1 August 2019 Before: English DCJ File Number(s): 2016/315219

JUDGMENT

HOEBEN CJ at CL: On 30 August 2018, following a three day trial, the applicant was convicted by a jury of an offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW).
This offence has a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years.
On 1 August 2019, her Honour Judge English sitting at Campbelltown District Court, sentenced the applicant to imprisonment for 6 years with a non-parole period of 4 years commencing 18 April 2018 and expiring 17 April 2022, with a balance of term of 2 years expiring 17 April 2024.
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against that sentence on the following grounds:

Ground 1 - The sentencing judge's assessment of the objective seriousness of the offence as "just below midrange" was not open to her.

Ground 2 - The learned sentencing judge erred in her approach to general deterrence by failing to have regard to the individual circumstances of this offence and offender.

Ground 3 - The learned sentencing judge erred in finding that a breach of conditional liberty was an aggravating factor in the unique circumstances of this case of excessive self defence.

Factual Background and Proceedings on Sentence

The victim was in a relationship with Ms Crowther. It was an on again, off again relationship. Ms Crowther was also in a relationship with the applicant. On the evening of 20 October 2016, the victim stayed overnight at Ms Crowther's residence. He left for work the following morning.
During the course of the day (21 October 2016) the victim sent a number of text messages to Ms Crowther consistent with someone who was in an intimate relationship with her and consistent with someone who had stayed with her the previous night. He received no response to his text messages. When he received no response, the victim thought that she was at a parenting course or asleep. The victim decided to go to her residence and wait for her. He took some alcohol with him, which he consumed while sitting on the front verandah.
He knocked loudly on the doors and windows to no avail. He fell asleep on a chair on the front verandah. At some stage he had removed his shirt. He woke up to the sound of the front door opening and saw the applicant standing in the front door. The victim's immediate reaction was to punch the applicant to the face, which caused him to stagger backwards.
Ms Crowther was sitting on the lounge. The victim approached her and remonstrated with her because the applicant was inside the premises with her. The victim's focus of attention was Ms Crowther. The victim gave evidence that the applicant was beside the lounge.
While the victim was talking to Ms Crowther, he felt a blow to his stomach and thought that he had been punched. He told the applicant to get out of the house.
After the blow, he went to the kitchen and realised that he had been stabbed. The victim said that he had gone to the kitchen in order to escape from the applicant. The victim said that he saw the applicant waving a green handled knife. He was able to describe the knife and a knife resembling that description was recovered by police.
The victim gave evidence that he grabbed paper towelling in the kitchen and applied it to his stomach.
The victim gave evidence that the applicant said words to him like "Come out and I'll finish ya." The victim then showed the wound to Ms Crowther who subsequently left the house to collect her daughter from school. The applicant also left the house.
The victim was left to fend for himself and called 000. He saw the applicant and Ms Crowther walk off in the same direction. He remembered the ambulance but did not have much recollection thereafter. The victim was taken to Liverpool Hospital and underwent a number of surgical procedures over the following months, including the removal of a portion of his bowel.
Police canvassed the area and located the applicant. They also located the knife used in the assault which had been discarded in a rubbish bin.
Her Honour found Ms Crowther to be an unreliable and reluctant witness. Her Honour characterised Ms Crowther as someone who was giving evidence to protect the applicant, instead of giving truthful and reliable evidence.
In the sentence hearing, the applicant relied upon self defence and submitted that such a finding was consistent with the jury's verdict. Her Honour accepted that submission.
Her Honour made the following findings on sentence in relation to the offending: "Clearly the offender's response to any perceived threat was not a reasonable one in the circumstances. He stabbed a shirtless man with a knife seriously injuring him. It was open to infer from the extent of the injury sustained that considerable force was used. As to the objective gravity of the offence it was an offence committed with a knife, a weapon capable of inflicting serious injury or worse. That said, however, there does not appear to have been any planning on the part of the offender in arming himself with a knife, it appears to have been a spontaneous act on his part after he had been punched to the face by the victim."
The applicant gave evidence in the sentence proceedings. He is of Aboriginal descent and was aged 40 at the time of sentence. He was raised in an extremely violent and dysfunctional environment with a father who was a violent alcoholic. The applicant sustained a fractured elbow as a result of an assault upon him by his father when he was 18.
The applicant left school in year 8 and was illiterate. He also suffers from dyslexia. The applicant has had significant health problems over the years and has been on a disability support pension. He never married but has four children. The eldest of his children resided with him prior to sentence. The applicant's partner was 12 weeks pregnant at the time of sentence.
Her Honour made findings concerning the applicant's drug use. He commenced the use of illicit substances at age 16, snorting cocaine on a daily basis. He used cannabis on a daily basis from about the same age. He was introduced to amphetamines at the age of 18, initially consuming the drug in a liquid form before commencing to use it intravenously. At age 28 he commenced the use of "ice" on an intravenous basis also. The applicant told the court that he felt powerless to stop using drugs. He had attempted rehabilitation in the past, but had relapsed. The applicant had also abused heroin, Valium, Xanax and MDMA. At the time of the offending, he was heavily addicted to "ice" and was using a gram a day.
The applicant was assessed by a psychologist, Mr Watson-Munro. In the opinion of the psychologist, the applicant suffered from longstanding problems of depression, anxiety and low self-esteem as a result of his traumatic childhood, which included physical and psychological abuse. Mr Watson-Munro diagnosed a Depressive Disorder and a Substance Use Disorder.
In his report of 1 October 2018, Mr Watson-Munro opined that continuing attendance at drug and alcohol counselling was imperative for the applicant as was attendance for cognitive behavioural therapy. Mr Watson-Munro noted that the applicant had attended the Tharawal Aboriginal Corporation and the Weigelli Centre Aboriginal Corporation. He had completed a 12 week program at the Weigelli residential healing centre and had commenced a day program through Watershed Drug and Alcohol Rehabilitation and Education Services. Mr Watson-Munro noted that the applicant had also engaged with Relationships Australia in couples counselling with his current partner. He was attending Narcotics Anonymous.
Her Honour noted that letters of support had been tendered from his current partner, his eldest daughter and a would-be employer. His mother also gave evidence on his behalf, saying that her son had turned his life around and that she had seen a significant difference in him since he committed to rehabilitation.
When giving evidence, the applicant said that he had had enough of a life of drugs. He wanted to remain clean, to live a law abiding life and be a good parent to his children. He wanted to re-establish a relationship with his other children and was working towards achieving that goal. He said that he was upset with himself for what he has done and he did not think that he was capable of doing such a thing. He said that what had happened to the victim should never have happened.
Steven Taylor, a drug and alcohol counsellor from Weigelli, gave evidence. He said the applicant had been positive in his approach to the programs he engaged in. He confirmed that the applicant continued to engage with Weigelli despite completing the program.
Her Honour took into account that the applicant had spent time in custody following his arrest on 22 October 2016. He was granted bail on 5 December 2017, which meant that he had been in custody for 1 year, 1 month and 14 days. Her Honour further noted that during this time in custody, he served sentences for other offences. These sentences were for periods of three months, four months, six months and three months respectively for relatively minor matters compared to the matter for which he was facing sentence.
Her Honour set out the applicant's criminal antecedents which included convictions for offences of possessing a prohibited plant, cultivating a prohibited plant, destroying or damaging property, possessing prohibited drugs, larceny and shoplifting. There were also a number of driving offences. Her Honour further noted that when the applicant committed the index offence, he was subject to two s 9 bonds pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) for driving while disqualified. Those bonds had been called up. Her Honour considered that the fact of those bonds was a matter of aggravation in the sentence proceedings.
Her Honour noted that the applicant's time in custody was not without incident. He had incurred a number of institutional misconduct charges including refusing to provide a urine sample, failing a prescribed drug test, possessing a drug, creating or possessing prohibited goods and failing to look after his property.
When considering the seriousness of the offending, her Honour took into account that the offence committed by the applicant was one of the most serious in the criminal calendar as could be seen from the maximum penalty fixed by the legislature and the standard non-parole period. The offence involved the use of a knife which resulted in serious injury to the victim. The victim was required to undergo a number of surgical procedures and was unable to work for 18 months following the offence. Her Honour had regard to the victim impact statement. As a result of the multiple surgeries, the victim was no longer able to engage in his former active lifestyle. He was forced to live with his parents who were required to take him to medical appointments and generally care for him for a considerable period of time.
Her Honour found that the injuries sustained by the victim had had a profound effect upon him, both physically and emotionally. Her Honour found that the ongoing physical and emotional harm suffered by him was substantial.
In assessing the objective seriousness of the offending, her Honour took into account mitigating factors, i.e. that the applicant was acting in self-defence, albeit excessive in the circumstances and that this was a spontaneous incident without any forethought or planning. Her Honour accepted that the applicant was someone who had been exposed to both physical and emotional violence during his childhood and teenage years and that as a result, he was ill equipped to think through the consequences of his actions on this occasion.
Her Honour took into account the applicant's criminal antecedents. She found that there were no other offences of violence on his criminal record. Her Honour considered that the record was in keeping with someone suffering from a longstanding drug addiction. Her Honour found that nevertheless his criminal record was such that he was not entitled to any lenience.
Her Honour found that the applicant was genuinely remorseful and contrite.
Her Honour found that the applicant had taken considerable steps to engage in the rehabilitative process by attending programs and undertaking counselling. Her Honour found that his prospects for rehabilitation were reasonable. She found that he was highly unlikely to re-offend in this manner again. Her Honour found that it was imperative that he continue drug counselling and psychotherapy as recommended by Mr Watson Munro. Her Honour surmised that the applicant might well need to be assessed by a psychiatrist and have medication for his depressive illness re-assessed.
Her Honour found that on the scale of objective seriousness the matter fell just below midrange. This was because it was a spontaneous offence with only one stab wound, albeit a serious one, and an offence committed in the circumstances of excessive self-defence. Because her Honour found that the offence fell below the midrange of objective seriousness, her Honour was not prepared to impose the standard non-parole period.
Her Honour took into account the applicant's dysfunctional upbringing and because of the opinion of Mr Watson-Munro, her Honour concluded that it had had a significant impact upon him in terms of his emotional regulation. Her Honour rejected a submission on behalf of the applicant that he should serve a sentence other than by way of a fulltime custodial penalty. This was because her Honour regarded the offending as serious because it involved violence and the use of a knife. The offending had resulted in substantial physical and emotional ongoing harm. Her Honour observed: "The community abhors such offences, particularly when weapons such as knives are used. All too often the consequences are the death of a victim."
Her Honour found that general deterrence had a significant role to play in any penalty to be imposed. This was because a message had to be sent to the community that this type of violent crime would not be tolerated. Her Honour found that the applicant was not an inadequate vehicle for general deterrence, but that specific deterrence had a lesser role to play.
Her Honour had no doubt that only a sentence of fulltime custody would suffice despite the extensive efforts of the applicant to rehabilitate himself. In fixing the sentence, her Honour gave credit for the entirety of the time spent by the applicant in custody because were he not in custody, the other matters for which he was sentenced could well have been dealt with differently. Her Honour allowed credit to the applicant for the time spent on bail because his initial bail conditions were onerous. Her Honour allowed the applicant credit for time spent in residential rehabilitation. Her Honour made a finding of special circumstances. That was on the basis that there was a need for a longer than normal period of supervision upon his release to parole to ensure that he did not relapse and would continue to attend drug counselling and psychotherapy in the long term to minimise the risk of re-offending.

Ground of Appeal 1 - The sentencing judge's assessment of the objective seriousness of the offence as "just below midrange" was not open to her.

By way of introduction, the applicant made the following point: 1. Every offence against s 33(1)(b) of the Crimes Act involved an offender acting with an intention to cause grievous bodily harm and a victim suffering grievous bodily harm.
The applicant submitted that some of the matters that can inform the relative seriousness of a s 33(1)(b) offence are: "• the seriousness of the injury; • the level of planning; • the level of violence; • the presence or absence of a weapon and the type of weapon; • the vulnerability of the victim; • the circumstances surrounding the offence (e.g. an unprovoked assault." The applicant submitted that in order to assess the seriousness of an individual s 33(1)(b) offence, it was necessary to have regard to that broad range of conduct covered by the section.
The applicant noted that in the sentence proceedings, the contest as to objective seriousness involved a submission by the defence that the offence fell "at the very low end" of the scale and by the Crown that the offence fell "below the midrange". The finding by her Honour was that it fell just below the midrange for such an offence.
It was against that background that the applicant submitted that the judge's factual findings could not justify the conclusion reached. Those findings were: 1. A knife, which was a weapon capable of inflicting serious injury or worse was used. 2. Considerable force was used. 3. The injuries had a profound effect on the victim both physically and emotionally and the ongoing physical and emotional harm was substantial. 4. There was no planning on the part of the applicant in arming himself with a knife and it appears to have been a spontaneous act on his part after he had been punched to the face by the victim. 5. The applicant acted in self-defence, i.e. he saw a need to defend himself, albeit excessively in the circumstances. 6. The applicant suffered from significant mental health problems and his background of exposure to physical and emotional violence meant he was ill equipped to think through the consequences of his actions on this occasion.
It should be noted that item f) in the above list is not a matter which can be properly taken into account in assessing objective seriousness of an offence in that it is a finding in relation to the applicant's subjective case. It may, of course, in part inform the extent of the applicant's moral culpability for the offending.
The applicant further explored the consequences of the finding of excessive self-defence. He submitted that implicit in that finding was that he honestly believed his conduct was necessary to defend himself but that the conduct was not an objectively reasonable response to the circumstances as he perceived them. He noted that while her Honour did not define with precision what his perception of the threat was, she did say that the response was "clearly" not a reasonable one. The applicant submitted that notwithstanding her Honour's opinion of the response, the fact that he "honestly believed" that he needed to defend himself was a matter which significantly ameliorated the seriousness of the offence.
The applicant submitted that when each of her Honour's findings was properly taken into account and was considered against the broad range of conduct covered by the offence, her Honour's characterisation of the offence as "just below midrange" was one that was not reasonably open to her. He submitted that her Honour's findings should have resulted in a substantially more favourable conclusion as to the objective seriousness of the offending.

Consideration

It needs to be remembered that the finding of excessive self-defence was one made by her Honour in the course of the sentence proceedings. It was common ground that self-defence had been raised in the trial but had clearly been rejected by the jury. It was during the sentence proceedings that the defence raised again the issue of self defence, albeit conceding that the response was "clearly" not a reasonable one.
The fact that her Honour made the finding rather than having to rationalise a finding by the jury is important. Her Honour clearly had in mind the level of self defence which she was prepared to find and also had in mind the significant disproportion between the punch by the victim and the response by the applicant.
On the findings by her Honour, while the stabbing was not planned and there was some spontaneity involved in it, there was also some delay between the victim punching the applicant and the applicant responding by stabbing the victim. The precise timeframe for that was never established but it is clear that at some point in time following the victim's punch, the applicant obtained a knife and was standing next to the lounge while the victim was berating Ms Crowther for spending time with the applicant. He attacked while the victim's attention was focused on Ms Crowther.
As a matter of principle in sentence proceedings, this Court has observed on numerous occasions that a finding of objective seriousness is a matter classically within the discretion of the sentencing judge and that the Court will be slow to set such a finding aside. In Mulato v Regina [2006] NSWCCA 282 Spigelman CJ said: "37 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..."
In the same case, Simpson J said: "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 a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 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 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."
Observations to similar effect were made in Ali v R [2010] NSWCCA 35 at [33] and Karout v R [2019] NSWCCA 253 at [40]. As was observed by Basten JA in Baines v R [2016] NSWCCA 132 at [15] consideration of the objective seriousness of an offence is an evaluative exercise that requires an assessment of a range of factors which may be susceptible of significantly differing views. The difficulties in intervening in such a determination are at their height in circumstances where there has been a trial in which the sentencing judge has been able to assess the evidence of the witnesses.
The review of facts by the applicant significantly understates a number of important findings by her Honour. There was no issue that not only was a knife used but it was used with considerable force. Moreover, the lack of proportion between a punch to the face and obtaining a knife and using it with considerable force while the victim's focus was elsewhere is significant and important. The extent of the disproportionality was substantial and significant.
In his written submissions (AWS [42]) the applicant submitted that the victim's injuries "did not fall anywhere near the serious end of the grievous bodily harm spectrum". As already indicated, that is a considerable understatement of the seriousness of the injuries. When regard is had to the evidence, the following emerges and was clearly taken into account by her Honour when assessing objective seriousness.

A portion of the victim's intestines were protruding outside his stab wound when police arrived.
He underwent multiple surgical procedures in the months following the stabbing, including the removal of a portion of his bowel.
The victim spent months in hospital which included two to three months on feeding tubes, in excruciating pain and not in control of his bowel movements.
The victim became dependent on his parents for physical and financial assistance for a considerable period of time and could not work for about eighteen months.
His struggle with pain was ongoing and the victim understood it would be present for the rest of his life. The source of this material is the victim's impact statement which was part of Crown Exhibit A which was before her Honour.

Taking into account the serious injuries and harm suffered by the victim, that the applicant used a knife capable of inflicting serious injury or worse and that the offence was committed spontaneously as part of an excessive and disproportionate mode of self defence, the assessment of objective seriousness by her Honour was well open to her.
This ground of appeal has not been made out.

Ground 2 - The learned sentencing judge erred in her approach to general deterrence by failing to have regard to the individual circumstances of this offence and offender.

The applicant noted that in the course of her sentence judgment, the sentencing judge said: "General deterrence has a significant role to play in any penalty to be imposed. A message must be sent to the community that this type of violent crime will not be tolerated. This [applicant] is not an inadequate vehicle for general deterrence." (Sentence judgment p8.6)
The applicant submitted that while it was legitimate for the sentencing judge to find that general deterrence had "some role" to play in fixing the sentence, it was unreasonable for her Honour to hold that general deterrence had a significant role to play.
The applicant submitted that this complaint also went to Ground 4 (manifest excess). The applicant submitted that in addition her Honour's approach had disclosed specific error in two respects.
The applicant submitted that her Honour's reasons suggested that she had approached the question of general deterrence by having regard only to the type of violent crime which had occurred rather than the individual circumstances of this crime. The applicant submitted that this was apparent from the words actually used by her Honour and from the overall substance of the judgment.
The applicant submitted that previous decisions involving personal violence show that general deterrence will vary in its significance from case to case. Much will depend upon the particular facts of the case. By way of example, the applicant referred to R v Najem [2008] NSWCCA 32. There, the respondent pleaded guilty to conspiring with others to maliciously inflict grievous bodily harm with intent to do so. Police arrested him near the crime scene before he had carried out the object of the conspiracy. He had a loaded semi-automatic pistol in his possession. The sentencing judge found that he was motivated to participate in the conspiracy for financial reward. The applicant noted that this Court in allowing the Crown appeal said: "33 Premeditated violence, particularly premeditated violence committed for reward, and leading to grievous bodily harm is something no civilised community can tolerate. Considerations of general deterrence and retribution demand that a penalty for those who pursue such activities be high..."
The applicant also relied upon statements of principle in the following cases: R v Loveridge [2014] NSWCCA 120. This was a manslaughter case involving an unprovoked act of street violence. This Court (Bathurst CJ, Johnson and R A Hulme JJ) said at [105]: "The use of lethal force against a vulnerable, unsuspecting and innocent victim on a public street in the course of alcohol-fuelled aggression accompanied, as it was, by other non-fatal attacks by the Respondent upon vulnerable, unsuspecting and innocent citizens in the crowded streets of King Cross on a Saturday evening, called for the express and demonstrable application of the element of general deterrence as a powerful factor on sentence in this case."
In R v Silva [2015] NSWSC 148, a manslaughter case involving excessive self defence, Hoeben CJ at CL said: "59 The principle of general deterrence while still important, should be given less weight because of the exceptional circumstances of this case. The factual circumstances are most unusual with the steady build up of fear on the part of the offender arising from the escalating threats of violence emanating from the deceased as he approached the offender's home. Account also needs to be taken of the offender's state of mind at the time of the offending, she having been already brutally assaulted and witnessing the struggle between the deceased on the one hand and her brother and father on the other. I am satisfied that these circumstances are not such as to require that substantial effect should be given to general deterrence."
In R v McDonald [2019] NSWSC 858 an offender from a disadvantaged background was sentenced for an offence of manslaughter by unlawful and dangerous act. The offence, described as a "moment of madness" involving a single stab was following some provocation from the deceased. Harrison J said at [20]: "20 Nor in my opinion does general deterrence loom large in the events with which I am required to deal. Even though a powerful argument can be mounted, that crimes of passion or spontaneous loss of self-control, such as here occurred, do not sit comfortably with the idea that a person might be convinced to think twice before acting if they quietly and rationally contemplated or appreciated the possible consequences of their actions, the law nevertheless insists that general deterrence continues to have a role to play. Without diverting from authoritative judicial exhortations to that effect, I am only prepared to conclude that I should sentence Mr McDonald in a way that takes account of the need for general deterrence to a limited extent. It seems to me to be an extremely remote prospect that anything will be achieved, in terms of informing or educating the wider community upon the perils of crime, by a close examination or dissection of a sentence that I impose upon this offender in the particular but spontaneous circumstances of this case."
The proposition which the applicant sought to take from those cases was that the individual circumstances of a violent offence will inform the emphasis that should be given to general deterrence.
The applicant submitted that in the present case her Honour found, inter alia:

the applicant had no previous offences of violence on his record;
he was punched by the victim;
he armed himself with a knife in a "spontaneous act";
he was suffering from "significant mental health problems" and was "ill equipped to think through the consequences of his actions on this occasion".

The applicant submitted that although such circumstances called for a significant moderation of general deterrence, her Honour appeared to have approached the issue as if violent crime is assessed indiscriminately. The applicant submitted that it was not open to find in the unqualified terms that her Honour used, that general deterrence had a "significant role to play". The applicant submitted that such a conclusion appears to have been arrived at by wrongly focusing on the type of violent crime rather than on the facts of this particular crime.
The applicant raised a further issue which he submitted came within this ground of appeal. This related to her Honour's finding that the applicant was suffering from "significant mental health problems", was "ill equipped to think through the consequences of his actions on this occasion" and that he was "not an inadequate vehicle" for general deterrence. The applicant submitted that the sentencing judgment contained no automatic consequences which flowed from a finding about his adverse mental health. He submitted that general deterrence should be given less weight because a person with his mental health problems was not an appropriate medium for making an example for others. The applicant submitted that the sentencing judge erred in not explaining why her finding about the applicant's mental health problems had no impact on general deterrence. The applicant submitted that this was a further reason for concluding that her Honour's approach to general deterrence in the circumstances of this case was wrong.

Consideration

A foundational problem for the applicant is that he has referred continually to his "mental health problems". The applicant, however, made no attempt to identify with any precision what those problems were and how, if at all, they impacted on the offending. There was only a general reference to the report of Mr Watson-Munro.
The matters referred to in that report are the effect of domestic violence at the hands of an alcoholic father when he was young, together with a Substance Use Disorder and a recurring Depressive Disorder. His violent upbringing can operate as a mitigating factor in that it explains to some extent his spontaneous resort to violence and in that regard operates to reduce his moral culpability for the offending. That is not a circumstance, however, which could be described as a "mental illness". In any event, it was certainly expressly taken into account by her Honour.
The mental illness aspects of the applicant's claim appear to be unrelated to his criminality generally and this offence in particular. His Substance Use Disorder may well account for previous offences of dishonesty but it is not a mitigating excuse for the current offending. Similarly, his Depressive Disorder while being relevant to the fact that he might find incarceration more difficult than other prisoners, has nothing to do with the occurrence of this offending.
When dealing with the issue of general deterrence, what her Honour was concerned with (and properly so) was the resort not only to violence but to violence involving a weapon, in this case a knife, in circumstances where serious as the victim's injuries were, the consequences could have been much worse.
I do not read her Honour's sentence judgment as dealing with generalities. Rather, it appears to be directly focused on the particular elements of this offending and the particular circumstances of the applicant. Against that background, the findings as to general deterrence have direct relevance to the applicant. At sentence judgment 8.4, in the course of rejecting a somewhat bold application that the applicant receive a non-custodial penalty, her Honour referred again to the elements of this offence. Her Honour described a "violent offence involving the use of a knife resulting in substantial physical and emotional harm". Her Honour went on to say "The community abhors such offences, particularly when weapons such as knives are used. All too often the consequences are the death of a victim."
It was in that context, that her Honour stated that general deterrence had a significant role to play in any penalty and that a message would have to be sent to the community that this type of violent crime will not be tolerated. It was in that context that her Honour found "This offender is not an inadequate vehicle for general deterrence."
It is clear from their context and content that those observations have direct application to the facts of this case and do not constitute some generalised "motherhood statement". The observations by her Honour, as set out above, do not downplay or ignore the applicant's mental illness. That is because the Depressive Disorder and Substance Use Disorder did not impact upon the applicant's culpability for this offence.
Earlier in the sentence judgment (p7.1) her Honour set out matters which mitigated the applicant's offending: "In assessing the objective seriousness of the matter I also take into account that the offender was acting in self-defence, albeit excessive in the circumstances, that this was a spontaneous incident without any forethought or planning and it was committed by someone with significant mental health problems. The offender was someone who had been exposed to both physical and emotional violence during his childhood and teenage years and I find he was ill equipped to think through the consequences of his actions on this occasion as a result."
Although her Honour referred to "significant mental health problems", it is apparent from the context that she was not referring to mental illness in the conventional meaning of those words but was referring to the effects which his violent upbringing had upon him. These were all matters in mitigation of the offending including the mental element, i.e. that the effects of his violent upbringing, reduced his moral culpability for the offending. Importantly, her Honour made no reference to general deterrence in that context because it had no part to play. Her Honour's reference to general deterrence was in relation to the repugnance which society has for the use of dangerous weapons such as knives as a first resort by way of response to a physical confrontation.
It follows that I am not persuaded that her Honour erred in the way which has been asserted.
This ground of appeal has not been made out.

Ground 3 - The learned sentencing judge erred in finding that a breach of conditional liberty was an aggravating factor in the unique circumstances of this case of excessive self defence.

The applicant accepted that he was on two s 9 good behaviour bonds for driving while disqualified at the time of the offence. The applicant submitted that in finding that this was an aggravating factor on sentence, her Honour erred.
The applicant submitted that her Honour's reference to a breach of the two s 9 bonds as a matter of aggravation was a reference to s 21A(2)(j) of the Sentencing Act. He submitted that under s 21A(2) matters identified as aggravating factors could only have that effect if they aggravated the offending in a real sense, i.e. made a contribution to the seriousness of the offending. In that regard, the applicant relied upon the decisions of, Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 Jonson v R [2016] NSWCCA 286 at [52] and Patel v R [2019] NSWCCA 170.
The applicant submitted that the rationale for treating a breach of conditional liberty as an aggravating factor has been referred to in a number of cases and gave as examples the following:

an abuse of the freedom granted by taking the opportunity to commit further crime;
a betrayal of the opportunity for rehabilitation.

The applicant submitted that a breach of s 21A(2)(j) did not arise because the offending occurred after the applicant had been unlawfully punched in the face by the victim. It occurred in circumstances where the applicant honestly believed that he needed to take some action to defend himself. The applicant noted that his crime was described as "spontaneous" by the sentencing judge.
The applicant conceded that while his offending amounted to a crime that warranted punishment, the level of punishment was not usefully informed by the fact that he happened to be subject to two s 9 bonds. The applicant submitted that his offending did not represent "an abuse of the freedom granted" or "a betrayal of the opportunity for rehabilitation". The applicant submitted that properly analysed the breach of bonds was not actually an aggravating factor and that to hold otherwise amounted to error.

Consideration

It is by no means clear that her Honour was referring to s 21A(2)(j) when referring to the breach of the two s 9 bonds. Such a breach is an aggravating factor under the general law and does not require the application of s 21A(2)(j). It should also be understood that the fact that an offence is committed while a person is on conditional liberty does not go to the objective seriousness of the offending. It is a subjective matter to be taken into account when considering an offender's subjective case. The fact that an offender is at conditional liberty at the time of the offending is personal to the offender and stands entirely independently from the objective circumstances of the offending.
The fact of the offending occurring while a person is at conditional liberty is not capable of elevating the criminality of the offence. On the contrary, it has an aggravating effect on the imposition of sentence. It aggravates the sentence by affecting considerations of punishment, deterrence and protection of the community (Regina v FD; Regina v JD [2006] NSWCCA 31; 160 A Crim R 392at [152]; R v Richards (1981) 2 NSWLR 464 at 465).
The fact that the applicant was subject to conditional liberty at the time of the offences operates as an aggravating factor by virtue of its existence at the operative time and not because of its capacity to rationally affect the criminality of the offence.
In R v Richards (Court of Criminal Appeal (Street CJ; Nagle CJ at CL and Lusher J) the following was said by Street CJ: "Having been arrested on 4 June and charged she was released to bail on 5 June 1980. In the months that followed, she committed the remaining break, enter and steal charge against her, twenty four of the scheduled offences and the receiving offence. It is a matter for grave concern that the appellant having been afforded the opportunity of liberty on bail while awaiting coming up for sentence abused that opportunity by committing a further very large number of offences. As the lists of persons awaiting trial on serious criminal charges continues to lengthen, there are at large within the community an increasing number of persons on bail. Many of those persons will in due course plead guilty or be found guilty of the offences for which they are awaiting trial. The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes "for free". On the contrary, they will receive salutory penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crime."
This ground of appeal has not been made out.

Ground 4 - The sentence is manifestly excessive

The applicant accepted that the offence was undoubtedly serious. He accepted that a proper sentence required a component of punishment, as well as some recognition of the harm caused to the victim. Having made those concessions, the applicant submitted that the spontaneous nature of the offending, including the element of excessive self defence, reduced the seriousness of the offence. The applicant submitted that his "significant mental health issues" and his past exposure "to both physical and emotional violence" further reduced the objective seriousness of the offence. He submitted that all of those factors, along with his lack of a history of violent offending moderated the emphasis to be given to punishment, denunciation and retribution.
The applicant submitted that general deterrence was a relevant but not a significant consideration. This was because of the reasons put forward in support of Ground 2.
The applicant submitted that because he was found to be remorseful and contrite, had reasonable prospects of rehabilitation and was considered unlikely to offend again in this manner, this meant that specific deterrence was not a salient consideration. This was particularly so because of his lack of a history of violence.
The applicant submitted that the object of promoting his further rehabilitation was important. He referred the Court to the fulltime residential rehabilitation which he had completed and the fact that he was making further progress in the community. He submitted that these circumstances pointed towards a more flexible and favourable approach to sentencing. He submitted that in those circumstances, a further period of actual incarceration beyond that already served was not required.
The applicant submitted that when these factors were synthesised, no reasonable exercise of the sentencing discretion could result in a sentence of 6 years with a non-parole period of 4 years. The applicant submitted that the sentence was plainly unjust and that this Court ought to quash it and pass a less severe sentence.

Legal principles

To succeed on this ground of appeal, the applicant must establish that the sentence was "unreasonable" or "plainly unjust": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 371 [25] (Markarian) and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59]. Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [34].
Accordingly, sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its discretion differently: Markarian at [15]. As Hayne J observed in AB v The Queen [1999] HCA 46; 198 CLR 111 at [128]: "There will be a range of possible sentences that could be imposed without error."
The sentence imposed of 6 years with a non-parole period of 4 years was not manifestly excessive for the following reasons: 1. The sentence has to be considered against a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. These are significant guidelines. 2. The applicant received the benefit of a finding of special circumstances such that the non-parole period is 67 per cent of the total sentence. 3. Having been found guilty by a jury after trial, the applicant was not entitled to any utilitarian discount. 4. The offence properly fell just below the midrange of objective seriousness for the reasons advanced in relation to appeal ground 1. Although the applicant's offence was found to involve a spontaneous act of excessive self defence, those actions also involved a significantly disproportionate response to the perceived threat. This response involved the use of a knife which caused severe ongoing physical and emotional harm to the victim. 5. The applicant's criminal history disentitled him to the leniency to which a person with no criminal history may have been entitled. 6. The applicant was subject to conditional liberty at the time of the commission of the offence. 7. The applicant's sentence was backdated in a manner favourable to the applicant to 18 April 2018. This backdating subsumed the entirety of his time in custody for six other unrelated offences for which he had received sentences of imprisonment ranging from 3 to 6 months.
It follows that this ground of appeal has not been made out.
The orders which I propose are: 1. (1) Grant leave to appeal against sentence. 2. (2) Dismiss the appeal.
WALTON J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his Honour.
HARRISON J: I agree with Hoeben CJ at CL.

I certify that this and the 26 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law. Morna Lynch Associate Date: 22 May 2020 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: 22 May 2020

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