HEINE v R

Court of Criminal Appeal (NSW)|2008-03-18|Before: Bell JA, Simpson J, Adams J

JUDGMENT OF: Bell JA at 1; Simpson J at 49; Adams J at 50

DECISION: 1. Grant leave to appeal; 2. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - detaining a person with intent to obtain advantage - SENTENCING - appeal against severity of sentence - offender suffering from mental disorder - assessment of impact on moral culpability - use of sentencing statistics - no error demonstrated - sentence not manifestly excessive

Makarian v R (2005) 228 CLR 357 R v Allen [2008] NSWCCA 11 R v Bloomfield (1998) 44 NSWLR 734 R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 CASES CITED : R v Hamid [2006] NSWCCA 302 R v Israil [2002] NSWCCA 255 R v Lee [2003] NSWCCA 391 R v Pearson [2004] NSWCCA 129 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Wright (1997) 93 A Crim R 48

PARTIES: Aung Wyn HEINE (Appellant) Regina (Respondent)

COUNSEL: R Burgess (Appellant) J Dwyer (Crown)

SOLICITORS: S E O'Connor (Appellant) S Kavanagh (Respondent)

BELL JA SIMPSON J ADAMS J

Wednesday 16 April 2008 Aung Wyn HEINE v R Judgment 1 BELL JA: The applicant applies for leave to appeal against the severity of the sentence imposed on him on his conviction for detaining a person with intent to obtain advantage contrary to s 86(1)(b) of the Crimes Act 1900 (NSW). He pleaded guilty to the offence in the Local Court and on 14 June 2007 he appeared before Judge Sweeney in the District Court, who sentenced him to a term of four years' imprisonment (backdated by one day to take account of a short period of pre-sentence custody) with a non-parole period of two years. The maximum sentence for the offence is 14 years' imprisonment.

The facts 2 The facts on which the Judge sentenced the applicant were set out in the facts sheet. They were not in issue. 3 The victim of the offence was the applicant's wife, Kay. The couple were married in Burma in 1999 and they moved to Australia in June 1999. They purchased a unit in which they were both living at the date of the offence. On Sunday 27 August 2006 they were at home but it appears that they were not speaking to one another. Mrs Heine went to bed at around 10 pm and she locked the bedroom door. She believed, wrongly, that she had the only key to the bedroom door. She was woken at about 4 am by the applicant, who had gained access to the bedroom and had taken hold of her arms. He was yelling at her to keep quiet. He tied her hands together with a length of curtain tie, which he secured to the rail under the bed. He tied her legs together, securing the end of the curtain tie to the cross-bar at the end of the bed. He turned the volume of the television up to cover any noise. He produced two large kitchen knives, saying that one was for her and the other was for him. He said that he would kill her first and then himself. He was very aggressive as he said these things and Mrs Heine believed that she was going to die. 4 The applicant kept asking his wife to name the man with whom she was having an affair. Mrs Heine denied that she was having an affair but the applicant did not accept her denials. He filmed his interrogation of her with a video camera. At one point he forced a small white towel into her mouth and covered it with tape. She was crying and after a short time he removed the gag. 5 The applicant kept his wife tied up in this fashion for several hours. During the course of the ordeal he searched through her handbag and found a lease agreement that she had signed shortly before these events. 6 At about 9.30 am the applicant telephoned his brother and reported that he had tied his wife up. A short time later the brother and his wife arrived at the unit. Mrs Heine was still tied to the bed. The brother told the applicant to free his wife, which he did. 7 Later that morning Mrs Heine attended at the Dee Why Police Station and reported the incident to the police. The police took a statement from her and made arrangements to carry out a search of the unit. At about 3.05 pm the police called to the unit and spoke with the applicant. The applicant admitted to the police that he had tied his wife to the bed. He said that he had done this because she was having an affair. The police located a number of items in the unit, including the video-recording and the curtain ties with which Mrs Heine had been restrained. In the recording Mrs Heine can be seen crying and sitting on the side of the bed with her hands and feet tied with rope, and with another rope passing from her hands to her feet, which prevented her from being able to stand. A cloth tape or ribbon was tied around her neck and secured to the top canopy of the bed.

The evidence of surrounding circumstances 8 No oral evidence was led at the sentence hearing. The Crown brief of evidence was admitted without objection and there was a pre-sentence report. A report by Dr Westmore, a forensic psychiatrist, and a report of Dr Way, the applicant's treating psychiatrist, were tendered in the applicant's case. 9 The approach which the Judge took to the evidence of the applicant's mental state was central to the application. Before turning to the grounds of challenge it is convenient to refer to the evidence that bears on this issue in more detail.

10 Detective Senior Constable Morrall spoke with the applicant's brother on the evening of the offence. The brother reported that he had been concerned about the applicant because he [the applicant] was intoxicated and had not slept for two days. The applicant appeared to be intoxicated at around 3 pm on the day of the offence, when Detective Morrall spoke with him at the unit.

11 Mrs Heine's statement to the police included the following: "[9] Owen is very jealous and doesn't like me having friends, either male or female. He drinks most days and gets drunk and when he is drunk he is aggressive and nasty. He often throws things at me. He also has a gambling problem. He drinks scotch and rings all his family when he is drunk. [10] I try not to disagree with him and to avoid arguments. I am scared of him. … [13] I often give a few people from work a lift and in July 2006 I gave a male workmate a lift from Inman Road to Brookvale and Owen was waiting in Fisher Road for me to pick him up to go shopping. He didn't know I had someone in the car and as we went past he saw me so I picked him up. He was angry and thought I was having an affair with this man. I was not. I have not ever had an affair. [14] He continued being aggressive and abusive and to drink too much and last week he started threatening to kill me and send my head to my mum in Burma. I was very afraid and last Thursday night, August 24, 2006 I didn't want to stay in the unit alone with him so I asked a friend's wife to stay with me. My friend is Aung who also lives in … Avenue and his wife is Thin. Thin is Owen's cousin and she has a baby. She and her baby stayed on Thursday night. We slept in the lounge room and Owen slept in the bedroom. [15] The threats and aggression were getting worse and I couldn't take any more so on Friday, August 25, 2006 I decided to move out. On Sunday August 27 I found a unit in … Dee Why and signed a lease. I didn't tell Owen because I was scared he would kill me. [16] Yesterday, Sunday August 27, 2006 neither of us worked and after dinner I went to the bedroom and only came out to use the phone or go to the bathroom. We didn't talk much. I don't know if he was drinking. Owen stayed in the lounge room. The lights went out in the lounge room about 10.30pm. I went to sleep around midnight. I locked the bedroom door when I went to sleep and I thought I had all the keys but Owen must still have had one. … [Mrs Heine gave an account of the incident consistent with the statement of facts set out above]. … [22]…Around 9.30am he rang his older brother Win, whose wife is Myint but he wasn't home so he rang his parents. One of his brothers who still lives at home answered. He has seven brothers. He told them that he had tied me up and was going to kill me and himself. They tried to get him not to do anything and one of them must have rung another brother, Tin Win who lives and works in Dee Why. Tin works with Aung and so both of them came to the unit about 10.00pm (sic). Owen let them in and they talked to him and made him untie me. Both Aung and Tin saw me tied up. When I was let go Aung's wife Thin was also there and she looked after me. I was very upset and crying." 12 The police took a statement from the applicant's brother, Mr Naing. He was aware that the applicant had a drinking problem. He described the applicant as a kind-hearted person who helped people, especially old people, which is why he worked in a nursing home. He said that the applicant had telephoned him on 28 August 2007, saying, "Kay is trying to harm herself so I tie her with a rope. Please come over our place if you can". Mr Naing told the police that he had heard Mrs Heine's voice in the background and that she sounded normal. He told the applicant that he was feeding his children and that he would come over to the unit later. About half an hour later the applicant telephoned Mr Naing again, telling him that his wife was trying to harm herself. Mr Naing told the applicant not to let her do anything and that he would be there soon. The applicant said to him, "I cannot release her because if she do harm herself I will be in trouble". 13 When Mr Naing arrived at the unit the applicant told him, "she tried to harm herself again like two years ago. I reported it to police and they took us to Manly Hospital. She tied a rope to Phan and grabbed a knife. That is why I was worried and called police to our place and police took us to Manly Hospital." Later Mr Naing said that the applicant had told him that he and his wife quarrelled the previous night over the fact that in a telephone call he had told one of her sisters that she was proposing to leave him. The applicant had told Mr Naing that his wife may be having an affair.

14 The Probation and Parole report recorded that the applicant was aged 43 years and that he came from a close-knit family with strong cultural values. He had come to Australia from Burma in 1987 and he had been granted refugee status. Thereafter he had sponsored members of his family to come to Australia. He had been married previously and had a daughter by that union. The marriage ended in circumstances in which the applicant believed that his first wife had been unfaithful to him. He had limited contact with his daughter. Since residing in Australia the applicant had a strong and stable employment history, working predominantly in geriatric care as a nurses' assistant. The applicant had obtained TAFE qualifications in nursing and aged care. The applicant reported being subject to a "tirade" of emotions at the time of the offence. His anxiety had been exacerbated by suspicion of his wife's infidelity and he had not been able to sleep or eat for a week before the offence. In the period leading up to the offence he had been drinking to excess. He had drunk a 750ml bottle of whiskey at the time of it. 15 The author of the pre-sentence report commented: "However, the offender's version of the offence appears to vary from that of the police facts. The offender stated that the victim became very upset because she was ashamed as he had contacted the victim's sister in Burma and informed her about the victim's new boyfriend. He proceeded to explain that the victim then started yelling abuse towards him and hitting herself. The offender appeared to justify his actions with claims that he restrained his wife due to the fear of her harming herself or committing suicide as he explained that she had previously attempted suicide. Furthermore the offender failed to comment on the impact that his behaviour would have had on the victim and appeared to minimize the seriousness of his offence."

The psychiatric evidence 16 The applicant's general practitioner had referred him to Dr Way for assessment and management of his depression. Dr Way commenced seeing him in November 2006 and had seen him regularly between that time and the date of his report, which was 12 June 2007. Dr Way commented that his consultations with the applicant were conducted in the Burmese language and this had enabled the applicant to communicate precisely and effectively with him. He recorded a history that on 3 October 2006 the applicant had been admitted to Manly Hospital suffering from severe depression associated with acute suicidal thoughts, sleep disturbances with nightmares and auditory hallucinations. He had been kept in hospital for three weeks, where he was treated for major depression with psychotic features and alcohol dependence. The applicant had expressed regret and remorse over his actions, but maintained that he had never had any intention of hurting his wife. On the contrary, he stated that his actions were motivated by his wish to protect his wife, whom he loved, from harming herself. He described an increasingly depressed mood and a sense of helplessness, having increased his alcohol intake to deal with the prospect of losing his wife, whom he believed to be having an extramarital relationship. The applicant reported that he now realised that because of errors of judgment on this day he had lost his wife, his home, his motor vehicle, his employment and that he was faced with financial difficulties. 17 Dr Way diagnosed the applicant as suffering from major depression with psychotic features, and alcohol dependence. In his opinion the applicant does not have an anti-social personality disorder. The applicant was being treated with antidepressant and antipsychotic medication and Campral for alcohol dependence. He had been compliant with treatment and had kept his appointments with Dr Way. Dr Way considered the prognosis to be favourable provided the applicant continued his treatment regime and attended psychotherapy and counselling sessions. In Dr Way's opinion, a custodial sentence would not assist in the applicant's rehabilitation and may even aggravate his illness or impede his recovery. 18 Dr Westmore interviewed the applicant in his rooms on 27 March 2007. He reported that the applicant had told him, "I did this to my wife, but at the time, major depression. I couldn't sleep, I couldn't eat. One week before it happened, I lost control". The applicant gave Dr Westmore a history that his wife was having an affair with "another guy" and that she had been about to leave him. She had got very angry with him and tried to hurt herself because he [the applicant] had told her sister in Burma about the whole thing. Dr Westmore noted the applicant's first psychiatric attendance was the admission to the Manly Hospital in October 2006. The applicant gave Dr Westmore a history of hearing voices, which had started after the incident. He described a male internal voice, which told him to kill himself. He also reported receiving messages from the television and radio. He had been prescribed an antipsychotic medication, Zyprexa, and this had assisted with the control of these symptoms. 19 Dr Westmore reported that the applicant was not suffering from a major depressive illness at the time he examined him. He said that the applicant described some symptoms which may be of psychotic intensity, including auditory perceptual disturbances and ideas of reference. Dr Westmore commented that Mrs Heine's statement was indicative of the applicant as being a very jealous man, who did not like her having friends, either male or female. 20 Dr Westmore made a provisional diagnosis of alcohol abuse and of major depression with psychotic symptoms. The diagnosis was based on the history given by the applicant, which was supported by Dr Way's report and by a letter from a psychologist, which was dated 30 October 2006 and which apparently referred to the applicant's admission to the Manly Hospital. Dr Westmore considered the principal differential diagnosis to include a delusional disorder of a morbid jealousy type. Dr Westmore thought it unlikely that the applicant suffered from an antisocial personality disorder. Dr Westmore commented that if the applicant's wife was having an affair it was unlikely that he was suffering from delusional jealousy. If she was having an affair the applicant may have become depressed and developed psychotic symptoms. In the event she was not having an affair, the applicant may have suffered from morbid jealousy, a delusional disorder, or from a major depression with psychotic symptoms. In Dr Westmore's opinion, the applicant required ongoing psychiatric care.

The Judge's reasons 21 The Judge allowed the applicant a discount of 15 per cent to reflect the utilitarian value of the applicant's plea of guilty. She found that it was unlikely that he would re-offend. She commented on the evidence concerning the circumstances in which the applicant's first marriage had broken down, observing (by reference to the submissions made by the applicant's counsel) that it was accepted that there were issues which needed to be addressed concerning the applicant's ability to maintain a successful personal relationship in the future. In this respect, her Honour observed Dr Way's prognosis was optimistic provided the applicant kept up his treatment. 22 The Judge referred in detail to the reports of Dr Westmore and Dr Way. She went on to say this: "I accept from the reports of the two psychiatrists, that Mr Heine was suffering from the major depression with psychotic factors (sic) and the alcohol dependence at the time he committed the offence, and that it contributed to his commission of the offence. The Crown has referred me to the Court of Criminal Appeal's decision of The Queen v DRR in which the Court said that moral culpability and general deterrence are moderated by mental illness. However, in that case that it had to be weighed against special deterrence and the need to protect the community from repetition of the behaviour which led to, and constituted the offence. There were, in that case, the Court said, a number of considerations which pulled in different directions, as there are in this case. I accept that because of Mr Heine's mental illness contributing to the offence it moderates his culpability and the need for him to be made a vehicle for general deterrence. But there is a need to recognise the seriousness of the offence and for there to be punishment and denunciation of that offence." (ROS 9.7-10.4) … "I have noted that the lack of remorse and the shifting of blame to the victim would qualify his prospects of rehabilitation if he does not fully acknowledge responsibility for the offence. It was conceded on behalf of Mr Heine that because the offence is serious a custodial sentence would be appropriate, but I was asked to suspend that sentence. I have decided that a custodial sentence is the only appropriate sentence to reflect the circumstances of the offence and that a suspended sentence would be too lenient, in that it would not reflect the objective circumstances of the offence and it would permit Mr Heine's subjective circumstances to overwhelm the objective seriousness of the offence, so I have decided not to suspend the sentence of imprisonment which I will impose". (ROS 10.9-11.5) 23 The Judge found that there were special circumstances justifying a departure from the statutory proportion between the non-parole period and the head sentence. The finding that she made in this respect is as follows: "I have taken into account Mr Heine's mental illness as a contributing factor to the offence in moderating the head sentence, but I do take into account that there is a need for him to be further rehabilitated and further treated in respect of that mental illness which continues. I take into account as a further special circumstance that this is Mr Heine's first time in custody at the age of forty-three, which is a relatively mature age, and that he is a person of prior good character." (ROS 11.6-8)

The grounds of appeal 24 The sentence is challenged on two grounds: "1. Her Honour erred in her consideration of the applicant's mental illness, placing too much weight on general and specific deterrence, punishment and denunciation. 2. The sentence is manifestly excessive, taking into account the applicant's early plea of guilty, and his subjective case including his prior good record and mental illness." 25 On the hearing of the application, counsel acknowledged that there is a substantial overlap between the two grounds in that the applicant's mental illness is central to the contention of manifest excess in ground two. 26 The principles that are applied in the sentencing of offenders suffering from mental disorder are well-known. They are collected in R v Fahda [1999] NSWCCA 267 at [40]-[48] per Simpson J. In R v Israil [2002] NSWCCA 255 Spigelman CJ said at [23]: "To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry [(1999) 46 NSWLR 346, supra, at [254]): '… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive faculties or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.'" 27 It is not said that the Judge wrongly stated the principles relating to the sentencing of offenders suffering from a mental disorder but, rather, that the resulting sentence bespeaks a failure to give effect to them. This aspect of the applicant's challenge, which is advanced in ground one, needs to be assessed by reference to the statistical and other material which was relied upon in support of ground two. I will return to it. 28 The applicant's counsel identified a passage in the Judge's reasons, which it was submitted revealed patent error. Her Honour said this: "It was submitted on behalf of Mr Heine that the factors to take into account in assessing the objective seriousness of the offence are the duration of the detention, the purpose of the detention and the degree of fear or anguish engendered in the victim. It was conceded that the period of some hours during which the victim was tied up was a long period of time. It was conceded that she was in fear and, it would seem, a deal of misery. It was conceded that the purpose of the detention was jealousy on behalf of Mr Heine in terms of his perception of his wife's commitment to the marriage. Other than the threat of violence and the actual tying up, there was no other violence, but they are matters of seriousness. It was submitted on behalf of Mr Heine that I would find the objective seriousness in the low to mid-range but in my view it has to be assessed as in the mid-range, having regard to those factors of the duration of the detention, the purpose, of the detention and the use of the knife and the tying up of the victim ." (ROS 4.5-9) (emphasis added) 29 In counsel's submission, the Judge erred in that she made an assessment of the objective seriousness of the offence without taking into account the applicant's mental disorder. In R v Way [2004] NSWCCA 131; 60 NSWLR 168 this Court held that some of the circumstances which objectively affect the seriousness of the offence will be personal to the offender. Among such factors the Court instanced mental illness or intellectual disability in a case in which it is causally connected to the offence (at 186-187, [86]). R v Way was concerned with the approach to the sentencing of offenders for offences that are the subject of Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). In cases that come within Div 1A it is necessary for the Judge to make an assessment of the objective seriousness of the offence in order to determine where it falls in relation to an hypothetical offence in the middle of the range of objective seriousness for such offences. The present offence is not one to which Div 1A of the Sentencing Procedure Act applies. 30 The Judge's assessment of objective seriousness is to be understood in the context in which it appears, which is that her Honour was dealing with a submission made by the applicant's legal representative, namely, that the offence was to be assessed as in the low to mid-range of objective seriousness taking into account the duration of the detention, the purpose of the detention, and the degree of fear or anguish engendered in the victim. The submission that the applicant's legal representative made fastened on the circumstances of the offence and not on any circumstances personal to the applicant. The reference in this context to "objective seriousness" is one commonly used by criminal lawyers. As the Court observed in Way (at 186, [84]), sentencing case law is replete with references to the objective features of the offence and the subjective features of the offender. The Court also observed (at 188, [98]): "[98] Prior to enactment of legislation of the kind which is seen in Div 1A of Pt 4 it was probably not necessary for any strict line to be drawn between matters which related to the offence, and to the offender, respectively, since the focus was placed upon the question of setting a sentence that reflected the overall criminal culpability involved." 31 The Judge's assessment of the "objective seriousness" (in the sense that the phrase was used by counsel) of the offence did not constitute an error. 32 In counsel's submission, there were not the countervailing factors in this case that often require that, notwithstanding mental illness, an offender receive a sentence of some severity. Frequently, the protection of the community will require such a course either because the offender suffers from a condition that is not amenable to treatment or because he or she has a history of voluntarily ceasing treatment. The applicant's psychiatric disorder was undiagnosed at the time of the offence. Following diagnosis he had been compliant with the treatment regime and had a favourable prognosis. The Judge's starting point for the sentence was five years and four months. Given that the applicant was a man of good character, in his mid-forties, with a creditable employment record it was submitted that the Judge had failed to moderate the sentence so as to reflect her finding that his moral culpability was reduced by his illness. 33 We were taken to the statistics maintained by the Judicial Commission of New South Wales with respect to the sentencing of offenders for s 86(1) offences. The sample, which consisted of the cases in which offenders had been sentenced to non-consecutive sentences, comprised 18 cases. The longest sentence in the sample was seven years, which had been imposed in two cases. The next highest sentence was five years. Counsel for the applicant also took us to the sentencing statistics for offences under s 90A, the predecessor to the present offence. Section 90A carried a maximum penalty of 20 years' imprisonment unless it was established that the person detained had been liberated without substantial injury, in which case the maximum penalty was 14 years' imprisonment. An analysis of the 95 cases in the sample revealed that 70 offenders had been sentenced to terms of fulltime imprisonment. The offenders with non-consecutive terms had been sentenced to terms ranging between six months to 14 years. In only 14 cases had a sentence in excess of five years' imprisonment been imposed. It is not known how many of these were cases in which the sentence was discounted to reflect a plea of guilty. 34 This Court has cautioned about the limitations on the use of statistical information, in particular, by emphasising that the upper limit of the sentencing discretion in any case is fixed by the maximum penalty for the offence and not the highest penalty recorded in the statistics: R v Allen [2008] NSWCCA 11 at [24]. Nonetheless, the statistics may provide a guide to the pattern of sentencing for an offence. The larger the sample the more likely that they will be a useful guide: R v Bloomfield (1998) 44 NSWLR 734 per Spigelman CJ at 739. The sample of sentences imposed under the present provision is a relatively small one. Furthermore, the offence is one that is committed in a wide range of circumstances, which make the statistics of less assistance than is the case with some offences, such as those involving the supply of prohibited drugs. 35 The statistics do not lend support to the contention that the sentence is manifestly excessive. The significance of the statistics is in such support as they may provide to the contention that the Judge failed to moderate the sentence sufficiently in recognition of the applicant's reduced moral culpability. 36 Counsel for the applicant took the Court to three decisions, involving mentally disordered offenders who had been convicted of a kidnapping offence, in an endeavour to show that this sentence was excessive in the circumstances: DRR; R v Pearson [2004] NSWCCA 129 and R v Lee [2003] NSWCCA 391. 37 DRR was the case to which the Judge referred in her remarks. In that case this Court dismissed an appeal against a sentence of four years and six months with a non-parole period of two years and three months imposed on an offender who was suffering from a drug induced psychosis at the time of the offence. The offender persuaded his victim to give him a lift in her car. His behaviour became increasingly bizarre during the course of the drive. He threatened to rape and to kill her. The detention was for around four hours. The offender had convictions for dishonesty, drug and driving offences and one conviction for assault. He had been subject to supervision by the Probation and Parole Service in the past and his response had been superficial or non-compliant. 38 In Pearson the offender was charged with three offences contrary to s 85A(1) (as s 86(1) was originally numbered). He entered the classroom of a school demanding to see his daughter, to whom he had been denied access over the Christmas period. He placed a can of petrol on the floor of the classroom and detained a group of schoolchildren and their teacher in an attempt to force the authorities to produce his daughter. He had one prior conviction for assault. He was suffering from a major depressive illness. Fresh evidence was led on the hearing of the appeal to show that he had been advised to cease his medication six weeks prior to the incident. His sentence was discounted by 22.5 per cent to reflect the value of his plea of guilty. On appeal he was sentenced, after allowance for the discount, to five years' imprisonment with a non-parole period of three years. 39 The offender in Lee had a history of mental illness, exacerbated by drug and alcohol use. He pleaded guilty to one count of detaining for advantage and asked the Court to take into account three like matters on a Form 1. He locked a teacher and a group of school students into a storeroom, pretending that he was in possession of a bomb. He was sentenced to a term of five years' imprisonment with a non-parole period of two years and six months. 40 Counsel for the applicant submitted that the circumstances of the offence in DRR were of a more serious character. She noted that the offender in that case had a record and had chosen not to continue a course of treatment. The nature of the conduct in the present case and in DRR was such as to expose the victim in each instance to a terrifying and protracted ordeal. There was the added feature of aggravation in the present case that the victim was threatened with a knife. The circumstance that the offence occurred in a domestic context (as distinct from the detention of a stranger) does not lessen its gravity: R v Hamid [2006] NSWCCA 302. DRR, Pearson and Lee do not support the submission that the sentence imposed in this case exceeded the bounds of discretion. 41 The Crown pointed to evidence that in the course of this offence the applicant donned a pair of latex gloves before searching his wife's handbag and wallet. In the Crown's submission, this pointed to his awareness of the wrongfulness of his conduct and to his endeavours to "cover his tracks". Counsel for the applicant submitted that this was to overstate the matter. There were features of the offence, which could not stand with a serious acceptance that the applicant had sought to conceal evidence in any calculated fashion. He and the applicant jointly owned the unit and were both living in it at the time of the offence. There was no rational reason for him to be concerned about his fingerprints being found on any item located within the house. More to the point, he had telephoned his brother, telling him that he had his wife tied up in the unit. He had made no attempt to free her and hide the evidence before his brother and his brother's wife arrived at the unit. 42 Counsel submitted that the applicant's plea carried with it his acknowledgement that he knew his conduct was wrong. This will always be so when a person suffering from a mental illness or disability pleads guilty to an offence, since absent such awareness a defence of mental illness would be available. In counsel's submission, the evident irrationality of the conduct pointed to a significant reduction in the applicant's capacity to appreciate the gravity of his actions. 43 The Crown Prosecutor and counsel for the applicant each referred to the remarks of Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 (at 50-51):

"It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great." 44 The Judge accepted that the applicant was suffering from a mental disorder at the time of the offence and that the sentence should be moderated because his moral culpability was less than the moral culpability of a person who acted in this way and who was not suffering from such a condition. It is apparent from her Honour's remarks, which I have set out at [22] above, that her Honour did not accept that the applicant's mental condition had compromised his understanding of the gravity of his actions to a significant degree. In this respect her Honour commented on the applicant's lack of remorse and tendency to shift the blame to his victim. 45 The applicant's mental condition was accepted to be causally related to the offence. Nonetheless, it was purposive conduct carried out with the apparent intent of forcing his wife to acknowledge her perceived wrongdoing. The psychiatric evidence did not establish a significant degree of compromise in the applicant's ability to appreciate the gravity of his offence. The degree of moderation of the sentence on account of the applicant's mental condition was a discretionary determination for the Judge. It was open to the Judge to attach weight to the applicant's tendency to blame his victim. It was a stance that was maintained at the time of the interview with Dr Westmore, when the applicant was no longer exhibiting symptoms of major depression and was responding well to medication. 46 In Makarian v R (2005) 228 CLR 357 Gleeson CJ, Gummow, Hayne and Callinan JJ at 371, [27] emphasised that sentencing involves a discretionary judgment in respect of which there is no single correct sentence. 47 In this respect, the remarks of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 are particularly pertinent (at 68): "Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases… … It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." 48 The Judge gave detailed consideration to the body of psychiatric material. She is not said to have misstated the principles to be applied in the exercise of her discretion. The applicant has not demonstrated that her Honour erred in her assessment of the evidence. Nor is it correct to say that the sentence, taking into account the applicant's mental condition, is manifestly excessive. For these reasons the orders that I propose are as follows.

ORDERS 1. Grant leave to appeal; 2. The appeal is dismissed. 49 SIMPSON J: I agree with Bell JA. 50 ADAMS J: I agree with Bell JA. **********

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Judgment (21 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (10)

Cited By (9)