Forrest v R

Court of Criminal Appeal (NSW)|2008-12-04|Before: Hodgson J, James J, Price J, Studdert AJ, Hodgson JA

The applicant's own past history together with the mental disorders he developed associated with the earlier traumatic events, was central to an assessment of the gravity of the provocation as perceived by him (on this see Green v R (1997) 191 CLR 335) and loss of self control due to "fear" can be an expression of provocation just as much as "anger" (see Van Der Hoek v R (1986) 161 CLR 158 per Mason J at 168). In this way it also goes to the loss of self control. These are two central tenets of provocation and they should fall within the realm of the issues contemplated by Hunt CJ at CL in Alexander .

Yet it is apparent from the remarks (particularly at para [39]) that the only practical way in which this material was taken into account in assessing the gravity of the offending was that the applicant was to be sentenced on the basis that he was "entitled" to have the Court approach this question on the basis that the offender entertained that perception [ie, that the deceased had access to a knife by means of the use of which he was in a position to carry out his threats towards Karen Crittenden] at the time he stabbed the deceased" (para [39]).

It is significant also that nowhere else did his Honour, in consideration of the appellant's "subjective case", give any consideration to this mitigating history and powerful psychiatric case.

There is a further aspect to this subject. Early in these submissions it was noted that self defence was raised in defence counsel's opening but provocation was not raised. It is also fair to say that the defence submissions on sentence focused on provocation but not self defence. Section 421 of the Crimes Act which deals with excessive self defence and provides that self defence which is not, objectively speaking, "a reasonable response in the circumstances" as the accused "perceives them" results in guilt, for manslaughter and this is a statutory overturning of Zecevic v DPP (1987) 162 CLR 645 and reinstatement of Viro v R (1978) 141 CLR 88; see on this R v Katarzynski [2002] NSWSC 613.0.

Although counsel did not advance the matter as one of self defence (which would lead to an acquittal) or excessive self defence (manslaughter), the fact is that the sentencing judge's own acceptance of the applicant's history to Dr Giuffrida and Dr Allnutt amounts to a finding of "excessive self defence" or very close to it. Whether it does in fact do so is perhaps not something that must necessarily be decided here.

What should have been taken into account on sentence (whether or not s 421 was satisfied) was that "provocation" was not a full account of the circumstances in which the applicant found himself. There was also a very significant element of defence of another which was best described as "excessive self defence". In short, on the evidence, the applicant did believe that it was necessary to do what he did to defend Ms Crittenden even although within the words of the section the response was "not a reasonable response in the circumstances" as he perceived them.

In the result there has not been an adequate assessment of the applicant's culpability. The full extent of the provocation and the applicant's response to it was not properly assessed both in the context of "provocation" and "excessive self defence". The applicant's psychiatric disorders were given insufficient weight and were not properly assessed by his Honour. This same material was not considered or considered in any adequate way on the applicant's subjective case.

The applicant's sentence should be re-assessed and reduced accordingly. The head sentence and the non-parole periods should both be reduced. In addition, or alternatively, there should be a finding of special circumstances and a reduction down of the non parole period which is currently 76% of the head sentence. 16 In oral submissions, Mr Game submitted that the measure of gravity of the provocation must have regard to the special sensitivity of the accused: see Green v The Queen (1997) 191 CLR 334 at 372. Mr Game submitted that the sentencing judge's finding at [40] that the degree of provocation "should be assessed as significant, but by no means extreme" did not give effect to this principle, having regard to what the sentencing judge had said in the previous paragraph: [39] It is not clear precisely what the offender's perception was about the threat of the knife attack by the deceased. The offender had been with the deceased earlier in the hotel and they then went to the premises where the attack took place. The clothing worn by the deceased would not have been capable of concealing a knife: he was wearing nylon football shorts which had no pockets, and a singlet which was also without pockets. Any knife that the deceased had, if there was one, would have to have been in the backpack he was wearing. The offender gave the detailed but confused account of events to Dr Allnutt which the doctor has referred to at pp 10-15 of his report. The offender also gave the account to Dr Giuffrida about the events and circumstances leading up to the stabbing recorded by Dr Giuffrida at pp 7-8 of his report. I will not record those accounts here but the evidence does not make it clear that the offender believed that the deceased was actually holding a knife when the offender stabbed him. The deceased was not armed with a knife, and the lighting where the attack took place was good enough for the offender to have seen this to have been the case. Nevertheless the deceased was angry, he was shouting and he was threatening Karen Crittenden. In the circumstances, having regard to the psychiatric assessments, the offender is entitled to have the court approach the issue of provocation on the basis that the offender entertained the perception that the deceased had access to a knife by means of the use of which he was in a position to carry out his threat towards Karen Crittenden. Further, the offender is entitled to have the court approach this question of provocation on the basis that the offender entertained that perception at the time he stabbed the deceased. 17 Mr Game submitted that the sentencing judge did not sufficiently acknowledge the effect of the psychiatric evidence, particularly Dr Giuffrida's evidence that, at the time of the offence, the applicant underwent a dissociative episode in which he re-experienced the original traumatic incident of 1978 when the victim was stabbed and bled to death, which was superimposed on what was actually occurring before him; that the applicant suffered from Post Traumatic Stress Disorder reducing his ability to control himself; and that the applicant acted selflessly and without thinking in defence of Ms Crittenden and probably himself. 18 Mr Game submitted that the danger in which Ms Crittenden stood in his perception was a further matter of mitigation which the sentencing judge should have taken into account and did not. 19 I note that the applicant did give evidence at the sentence hearing, and that in addition to expressing his remorse, he gave only the following evidence concerning the circumstances of the offence: Q. If I could just briefly take you back to the night, you told Dr Giuffrida and Dr Allnutt that at the time that the events started unfolding, in particular when Mr Crittenden was threatening Karen Crittenden, threatening to stab her, that you had flashbacks to events that had occurred in 1978 in Perth? A. Yeah, that's correct.

Q. When you came down the stairs with the knife and saw Mr Crittenden still standing over Karen, did you again have any flashbacks about the events that had occurred in July 1978? A. I did, yes. 20 There was no cross-examination on this evidence. 21 In this evidence, the applicant did not suggest that the history he gave to Dr Giuffrida was different from and more accurate than the history given to Dr Allnutt; and the history given to Dr Allnutt suggested that the flashbacks to 1978 did not last for any length of time and did not have a major impact on him. In submissions to the sentencing judge, the applicant's counsel made no suggestion that one history was more accurate than the other; and in my opinion there could be no error by the sentencing judge in not addressing that issue. 22 I note also that the history given to both psychiatrists suggested that at the time the applicant believed the deceased had a knife and was about to use it to stab Ms Crittenden; but the applicant did not give any evidence to that effect, and when the sentencing judge asked the applicant's counsel whether she was asking him to make a finding that the applicant had a perception that the deceased was holding a knife, the applicant's counsel responded that it was not necessary "because it's based on provocation" (presumably, referring to the finding of manslaughter and/or the submission as to the applicant's culpability). 23 Thus, the case was not presented to the sentencing judge on the basis that it was one of self-defence, or that the verdict of manslaughter was appropriate because it was a case of excessive self-defence; and in my opinion, there was no error by the sentencing judge in not addressing that issue, or in the way he addressed the issue of whether the appellant believed the deceased had a knife. 24 In my opinion also, the reasons of the sentencing judge do not suggest that he failed to have regard to the special sensitivity of the applicant, or erred in assessing the provocation as significant but by no means extreme. 25 Thus, in my opinion, no error has been shown in the reasoning of the sentencing judge, having regard to the way the matter was conducted before him; and in my opinion, it cannot be said that the result arrived at by the sentencing judge was manifestly excessive. Also, while it may have been open to the sentencing judge to find special circumstances, the view of the sentencing judge that the parole period was adequate and appropriate was one which was open to him. 26 For those reasons, in my opinion, the following orders should be made: (1) Application for leave to appeal against sentence granted. (2) Appeal against sentence dismissed. 27 JAMES J: I agree with Hodgson JA. 28 PRICE J: I agree with Hodgson JA. **********

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LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 301

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