Graham THEWLIS v R

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R v Phelan (1993) 66 A Crim R 446 Stratford v R [2007] NSWCCA 279 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 CASES CITED : R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Ellis (1986) 6 NSWLR 603 R v Conway [2001] NSWCCA 51; 121 A Crim R 177 R v Berlinsky [2005] SASC 316 Dowling v Phillips (Supreme Court of WA, Heenan J, 15 August 1995, unreported)

PARTIES: Graham THEWLIS (Applicant) CROWN (Respondent)

COUNSEL: R Burgess (Applicant) D Arnott SC (Respondent)

SOLICITORS: S O'Connor - Legal Aid Commission (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)

SPIGELMAN CJ SIMPSON J PRICE J

28 July 2008 Graham THEWLIS v R Judgment 1 SPIGELMAN CJ: I have had the benefit of reading the judgment of Simpson J in draft. I agree with her Honour's reasons and the orders she proposes. I wish to add a few observations with respect to the sentencing principle her Honour identifies to the effect that amelioration of the effects of a crime can be taken into account as a matter of mitigation on sentence. 2 Her Honour refers to the observation of Hunt CJ at CL in R v Phelan (1993) 66 A Crim R 446 at 448 to the effect that it is not the case that "an offender is able to purchase mitigation". However, his Honour went on immediately to say: "Where there has been a substantial degree of sacrifice involved in the repayment, that is a matter which may properly be taken into account by way of mitigation." 3 These observations have been subsequently applied in cases in which there has been fraudulent misappropriation of monies. (See most recently Stratford v R [2007] NSWCCA 279 at [22]-[24].) 4 The reasons in Phelan were clearly appropriate in the context of a crime involving the loss of money. They, however, emphasise that something special is required for ameliorative conduct to result in mitigation of sentence. Merely taking a step to redress the effect of a crime on victims is not of itself enough. 5 In the present case that special additional element is to be found in the fact that it does appear that the applicant's immediate recognition of his wrongful act played a significant, and quite possibly decisive role, in saving the victim's life. 6 I agree with Simpson J that this is a circumstance of the present case that deserves recognition in the sentence. 7 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 27 April 2007 by Morgan DCJ, following his pleas of guilty to one count of maliciously inflicting grievous bodily harm with intent to do so, and one count of malicious wounding with intent to cause grievous bodily harm. Pursuant to s 33 of the Crimes Act 1900 each charge carries a maximum penalty of imprisonment for 25 years; pursuant to Pt 3 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 7 years is prescribed in respect of each offence. 8 On the second count (malicious wounding) Morgan DCJ sentenced the applicant to a fixed term of imprisonment for 3 years, commencing on 2 July 2006; on the first count (maliciously inflicting grievous bodily harm) she sentenced the applicant to a term of imprisonment comprising a non-parole period of 4 years with a balance of term of 4 years, commencing on 2 July 2007 - that is, cumulative upon the earlier commencing sentence by 1 year. The overall effect of the combined sentences is a total term of imprisonment made up of a non-parole period of 5 years and a balance of term of 4 years. In reaching these sentences Judge Morgan gave effect to a finding that special circumstances within the meaning of s 44(2) of the Sentencing Procedure Act existed justifying departure from the statutory ratio between the non-parole period and the head sentence.

Facts 9 Both offences were committed in the early hours of 2 July 2006. The victims were Ms Lisa Hodgson, who was a recently estranged de facto/fiancé of the applicant; and Mr Glen Hanks, a friend of the applicant with whom Ms Hodgson had begun a relationship. Ms Hodgson was the victim of the first count; Mr Hanks was the victim of the second. 10 Although a statement of facts was in evidence, there was some dispute about its detail. On the facts as found or accepted by her Honour, late in June Mr Hanks moved into new rented accommodation, in the same street as, and very close to, the applicant's home. Ms Hodgson assisted him in moving and unpacking, and stayed with him on the night of 1 - 2 July. At about midnight they were in bed. At that time the applicant knocked on the door, telling Mr Hanks that he had come around to check out his new premises, and have a beer with him. There is a significant discrepancy in the evidence with respect to his knowledge or suspicion that Ms Hodgson was present. According to Mr Hanks, he attempted to divert the applicant from the bedroom, where Ms Hodgson remained, by taking him to a room at the opposite end of the house. The applicant's evidence was that he was initially unaware of Ms Hodgson's presence, and became aware of that fact only after being told of it by Mr Hanks. The issue is relevant to the degree (if any) of pre-meditation involved in the offences. In any event, the applicant then produced a knife with which he struck Mr Hanks firstly in the left arm, and then in the right arm. He then ran into the bedroom where Ms Hodgson was, and swung the knife towards her. Mr Hanks followed, attempting to prevent the applicant from stabbing her; the applicant pushed him into a sofa, held his left arm, and stabbed him in the rib cage. (Again, a discrepancy can be discerned. According to the statement of facts, which, in this respect, must have been derived from Mr Hanks, the applicant produced the knife from the pocket of his jacket, suggesting that he had had it in his possession when he went to the premises; both in his statement to police, made immediately after the incident and in his evidence, the applicant maintained that he had picked up the knife, opportunistically, from a tray in the front room of the house, and that he had done so only after Mr Hanks told him that Ms Hodgson was going to move in with him. Morgan DCJ accepted the applicant's account on this issue.) 11 Mr Hanks then ran from the house to seek assistance. During his absence the applicant continued to use the knife to stab Ms Hodgson repeatedly. During the course of the attack the knife broke. Mr Hanks returned and attended to Ms Hodgson, who was bleeding from the mouth and other wounds, and was apparently losing consciousness. The evidence is unclear as to the result of Mr Hanks' attempt to obtain assistance; as will become clear below, this is of some significance. 12 The applicant left the house and went immediately to the home of the next door neighbours, Mr and Mrs Larkin, whom he asked to contact emergency services. He told Mr Larkin that he had stabbed Ms Hodgson in the chest. Having ensured that an ambulance was on its way, the applicant returned to Mr Hanks' house, in the company of Mr and Mrs Larkin. There they remained until police arrived. The applicant told police that there had been "a bit of a domestic incident", that he had been on anti-depressants, that it (the "domestic incident") had "got out of hand", and that he had stabbed Ms Hodgson. He also admitted having stabbed Mr Hanks. 13 Ms Hodgson was taken to hospital, showing signs of impending cardiac arrest. She underwent emergency surgery. Although her injuries were life threatening, she has made a good recovery and has a favourable prognosis. The outcome is principally due to prompt and efficient medical treatment. 14 The applicant gave evidence, disputing certain aspects of the prosecution's version of the events. Most significantly, he maintained that he had not taken a knife to Mr Hanks' house, but had picked up a knife from a kitchen table, when Mr Hanks told him that Ms Hodgson was present in the house and that the two were engaged in a sexual relationship. He also disputed an account given by the prosecution concerning the circumstances of the breakdown of his relationship with Ms Hodgson, saying that Ms Hodgson had in fact taken a large amount of money from his bank account.

15 The dispute concerning the circumstances of the breakdown of the relationship, is, in my opinion, of little, if any, moment. It could not be suggested that theft of money by Ms Hodgson from the applicant in any way justified or mitigated his crimes. It is unnecessary to resolve this factual issue, and, in any event, the evidence does not permit any findings of fact to be comfortably made. 16 Also before the Court was a Victim Impact Statement by Ms Hodgson. She was 22 or 23 years of age at the time of the offences. Initially she did not recall the offence, but as her recall returned, she began to suffer nightmares which continued to the time of her statement, January 2007. She has a scar from her chest to her hips, and three stab wounds that, she said, served as a reminder to her what had happened. She has some permanent damage to her face, and some broken teeth. She suffers from headaches and toothache and was unable to drink cold drinks because they caused pain to her. She has some damage to, and numbness in, the left hand. She said that she feels afraid all the time, dislikes crowds and is suspicious about other people. She finds the attention given to her by others who know what happened difficult to deal with. 17 Mr Hanks was treated for stab wounds to the left arm and chest. Medical opinion was that while the injuries were "significant", they were not life threatening. 18 The applicant was interviewed by police at the scene and again, later, in a formally recorded interview. On each occasion he fully admitted what he had done.

Subjective circumstances 19 In evidence were a pre-sentence report, and a psychiatric report provided by Dr Michael Giuffrida. As well, the applicant gave evidence. He was 45 years of age at the time of the offences. He said that, prior to visiting Mr Hanks, he had been in "a fairly depressed state", and had consumed several beers, had slept in front of the television and, on waking, had gone to Mr Hanks' home without looking at the time. 20 He expressed regret for his conduct, directly addressing Mr Hanks, who was present in court, and seeking forgiveness. 21 He had no prior convictions and had an impressive history of stable employment. Indeed, he referred to himself as a "workaholic", a condition that he believed he had inherited from his father. His mother died of cancer when he was 5 years of age. He and his father and three siblings maintained close bonds. 22 Dr Giuffrida recounted some psychiatric history which involved an anxiety disorder with, perhaps, agoraphobia and/or panic disorder. This dated from about early 2004. There was also a suggestion of a family history of haemochromatosis, which is excessive iron concentration. The applicant appears to have inherited this condition and it may be that it has caused some liver impairment. The applicant was, at the time of the offences, taking prescribed medication for his psychological problems. Dr Giuffrida was of the view that that medication may have magnified the effects of the alcohol that the applicant had consumed prior to committing the offences. Dr Giuffrida, however, expressly disclaimed any finding that, for this reason, the applicant did not bear responsibility for his conduct. 23 Also in evidence was a pharmacological report, outlining the effects of the medication, particularly when taken in combination with alcohol. In short, Dr Starmer, who provided the report, said that the combination of the two was "more than additive": - that is, that each interacts with the other in such a way as to produce an effect "greater than would be expected from the sum of the component parts".

The Remarks on Sentence 24 Judge Morgan set out the facts in some detail (drawing heavily upon the statement of facts that had been put before her), together with the subjective matters disclosed in the two reports. She considered that the offence committed against Ms Hodgson (maliciously inflict grievous bodily harm), for the purposes of Pt 3 Div 1A of the Sentencing Procedure Act, "certainly falls in the mid range of objective seriousness for offences of this kind". However, she considered that the offence against Mr Hanks came within "the lower end of objective seriousness for such offences". She did not explain why she drew this distinction; it may be inferred that the number of stab wounds, the ferocity of the attack, and the very serious consequences to Ms Hodgson provide the explanation. 25 Her Honour expressly accepted the applicant's account of how he came to be armed with the knife, and his evidence that he was unaware of Ms Hodgson's presence in the house before his arrival. She considered it likely that the revelation of this fact, and the actual relationship between Ms Hodgson and Mr Hanks caused the applicant to lose control and pick up the knife. She considered it likely that the effect of the combination of the alcohol he had consumed and his use of medication was a contributing factor to his loss of control. 26 She accepted that he was "generally (sic - ? genuinely) remorseful and contrite for the commission of the offences …". 27 She noted the pleas of guilty, and accepted that they were entered at the earliest opportunity and in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and allowed a discount of twenty-five percent. 28 She dealt, in accordance with s 21A of the Sentencing Procedure Act, with both aggravating and mitigating features of the offences. She identified only one aggravating factor - the use of the knife. She identified a number of mitigating factors:

· that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)). In this respect she took into account the applicant's evidence, that she accepted, that until his arrival at Mr Hanks' house he was unaware of Ms Hodgson's presence; and also his evidence, which she again accepted, that he had not been armed with the knife when he went to the premises; · that the applicant had no record of previous convictions and was a person of good character (s 21A(3)(e) and (f)); · that the applicant had good prospects of rehabilitation (s 21A(3)(h)); · that the applicant was genuinely remorseful and contrite (s 21A(3)(i)); · that the applicant had pleaded guilty to the charges (s 21A(3)(k)); and that he had done so at the earliest opportunity (and that the pleas had "considerable utilitarian value").

The grounds of the application 29 Two grounds of appeal were pleaded. They are expressed as: "1. Her Honour erred in her assessment of the objective seriousness of the offence. 2. The sentences are manifestly excessive, as is the effective sentence." 30 The two grounds can conveniently be dealt with together. On behalf of the applicant it was contended that her Honour failed to take into account the evidence of the effect of the combination of alcohol and prescribed medication on the applicant. I do not accept that this is so. As I have already indicated, towards the conclusion of her Remarks on Sentence Judge Morgan said this: "It may well be that his loss of control was contributed to by the effects of alcohol and medication. However it is apparent to me that he was fully aware of what he had done." 31 It is true, as was pointed out on behalf of the applicant, that this appears towards the end of the Remarks on Sentence, and after the finding that the offence against Ms Hodgson fell into the mid range of objective seriousness. But that does not mean that it was not in her Honour's mind at the time she made that evaluation. In fact, it came immediately after that finding and in the context of the matters her Honour considered to be mitigating factors. The sequence in which relevant matters are mentioned is not necessarily indicative of the relative importance given to those matters, nor of the various aspects of sentencing in relation to which they have been taken into account. What is important is that the offender, and the prosecution (and, indeed, the victims) are able to discern that the sentencing judge is seized of all relevant factual matters. I am quite satisfied that Judge Morgan was well aware of all relevant facts, including the one under present consideration, in making her evaluation. 32 It was also contended on behalf of the applicant that: "… the emotional impact of [the applicant's] discovery of the relationship between the victims, his loss of control due to the effects of the combination of alcohol and [medication], which was accepted by her Honour, the spontaneous nature of his actions, and the fact that Ms Hodgson had recovered well from her physical injuries, …"

dictated a conclusion that the offence against Ms Hodgson, like the offence against Mr Hanks, fell below the mid range of seriousness for a s 33 offence. 33 These were all matters that were well known to Morgan DCJ, and taken into account by her. The fact remains that the offence against Ms Hodgson was extremely serious, and resulted in life threatening injuries, even though prompt medical attention saved her life. Not only do I not accept that the offence against Ms Hodgson was less than in the mid range of objective seriousness - in my opinion it would have been well open to her Honour to have found that it was considerably graver than such an offence. 34 Nor have I overlooked the applicant's conduct immediately following the offences, in raising the alarm, ensuring that an ambulance (and police) were called, and making prompt admissions. But this goes to mitigation rather than the assessment of the objective gravity of the offence against Ms Hodgson. It will be necessary to return to this circumstance. I would reject this ground of appeal. 35 The second ground is that the sentences, individually and in total, are manifestly excessive. Reference was made to the applicant's prior clear history, and his immediate remorse, demonstrated by alerting the neighbours to what he had done and ensuring that an ambulance was despatched. Reference was also made to a number of precedential cases. Each of these involved attacks upon a single victim. It is true that some resulted in sentences significantly lower than the total sentence imposed upon the applicant. However, it is well established that there exists a range of sentences appropriate to any individual offence (or set of offences) and that a sentencing judge is entitled to sentence within that range. The individual cases referred to do not establish at all that either of the individual sentences, or the two in their combined effect, are outside the range legitimately available to the sentencing judge. 36 In my opinion, it must not be overlooked that the standard non-parole period for each of these offences is 7 years. True it is that, the applicant having pleaded guilty, the standard non-parole period did not strictly apply (see R v Way [2004] NSWCCA 131; 60 NSWLR 168), but it nevertheless operates as a guidepost or benchmark. And the applicant was being sentenced for two offences, not one. 37 There is, however, one additional circumstance to which I now return. That concerns the applicant's conduct in the immediate aftermath of the attacks. In a dramatic reversal, he almost instantaneously sought the help of neighbours, disclosed what he had done, insisted on an ambulance being called, and waited until it had arrived. Given that the results of Mr Hanks' efforts to secure assistance are uncertain, it may well be that it was the applicant's conduct in so doing that ensured the prompt medical attention that possibly saved Ms Hodgson's life. 38 This is not a circumstance that goes to the evaluation of the objective seriousness of the offences, which, by this time were complete. Nor is it an instance of conduct of the kind explained in R v Ellis (1986) 6 NSWLR 603, (voluntary disclosure of otherwise undetected guilt) warranting leniency in sentence for the reasons there set out. And it goes well beyond throwing light on remorse or contrition, which were also well established. It goes to amelioration of the effects of the applicant's criminal conduct. 39 This was an unusual case, in that the applicant took immediate, almost instantaneous, steps to ameliorate the consequences of his crimes; and, further, that, in the case of Ms Hodgson, those steps may well have had substantial beneficial, and ameliorative, effects. 40 Although reference was made, both in the facts and submissions, to this circumstance, Morgan DCJ was not asked to take it into account in this way. It appears to me that she did not. But it is something which, I have concluded, the applicant was entitled to have taken into account not as a mitigating factor catalogued in s 21A(3), but as a particular, and unusual, circumstance which may be called ameliorative conduct, justifying a measure of leniency on that particular basis. 41 The notion is not unique. There have been cases, such as property crimes, where leniency is justified because reparation has been voluntarily made prior to any charges being brought or anticipated. That is an appropriate analogy. 42 My researches have yielded no explicit statement of principle to the effect that voluntary rectification can operate in mitigation of sentence. Indeed, in respect of property crimes, it has been held that voluntary repayment of the proceeds of the criminality cannot be used to "purchase mitigation": R v Phelan (1993) 66 A Crim R 446 at 448, per Hunt CJ at CL. But that very circumstance was accepted on a relevant sentencing factor in R v Conway [2001] NSWCCA 51; 121 A Crim R 177, per Heydon JA, in R v Berlinsky [2005] SASC 316, and in Dowling v Phillips, Supreme Court of WA, 15 August 1995 per Heenan J. (And these were, in contrast to the present, cases where the ameliorative conduct occurred after the offender was charged, or when aware that he or she was to be charged. (That is not here of great importance: there could have been no doubt that the applicant would have been identified as the perpetrator of the attacks, and charged.) 43 In my opinion it ought now be accepted that, in an appropriate case - and, it may be said, there are few examples of appropriate cases, at least that came before this Court - conduct of the kind engaged in by the applicant warrants some consideration in mitigation of sentence. (I stress that I have twice referenced to "mitigation of sentence". That is different from, and not to be confused with, mitigation of the offence: the latter concept is concerned with the evaluation of objective gravity.) 44 Although, on an objective analysis, the applicant's criminality did warrant a total sentence of the magnitude imposed, to my mind his immediate post crime ameliorative conduct (and its significant consequences) entitle him to some reduction in the totality of those sentences. 45 I propose that both the head sentence and the non-parole period be reduced by 1 year. The orders I propose are: (i) leave to appeal granted; (ii) in respect of the sentence imposed for count 1, appeal allowed, sentence quashed; (iii) on that count the applicant be sentenced to imprisonment with a non-parole period of 3 years, commencing on 2 July 2007 and expiring on 1 July 2010, with a balance of term of 3 years, expiring on 1 July 2013. 46 PRICE J: I agree with Simpson J. I also agree with the observations made by Spigelman CJ. **********

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