Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2013/164538
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 24 September 2015
Before: Hanley DCJ
File Number(s): 2013/164538
[2]
Judgment
HOEBEN CJ at CL:
Offence and sentence
The applicant was charged with an offence of wound with intent to murder contrary to s 27 of the Crimes Act 1900. The maximum penalty for this offence is imprisonment for 25 years with a standard non-parole period of 10 years.
Ten days before his trial was due to commence, the applicant entered a plea of guilty to that charge. He was sentenced by Judge Hanley SC on 24 September 2015. His Honour sentenced the applicant to imprisonment with a non-parole period of 8 years commencing 28 May 2013 and expiring 27 May 2021 with a balance of term of 4 years expiring 27 May 2025.
The applicant seeks leave to appeal against that sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912. He relies upon a single ground of appeal:
That the sentencing judge erred in failing to quantify the discount to be afforded to the applicant for his assistance to the authorities
Factual background
Mr Shannon Suttle (the victim) had been married to Ms Tara Hebb (the co-accused). The co-accused and the victim had two children together. Pursuant to an order of the Family Court, the victim had been granted access to the children every third Saturday, which was to take place at Oxley Park in Sydney. The access order therefore required the co-accused, who was then living at Tweed Heads, to take the children to Sydney every third Saturday.
The applicant first met the co-accused in 2013 when they each lived in the same unit complex in Tweed Heads. The co-accused told the applicant that the victim had threatened to harm her and her children.
In May 2013 the applicant told his father that he was travelling to Sydney and his father assisted him in booking a flight from Coolangatta on 16 May 2013. On this date, the co-accused sent a text message to him saying "So long as the boys' dad is gone, I will be happy". In his record of interview the applicant agreed that he understood from this text message that the co-accused wanted the victim dead. It was the Crown case that it was at this time that the applicant agreed to kill the victim for the co-accused.
On 18 May 2013 the applicant arrived at his mother's residence in Blacktown. He stayed there for a number of days. During the stay, he told his mother that he had met a girl named Tara in Tweed Heads. He told his mother that her ex-partner was causing her trouble and that she had to bring her children down to Sydney to see him.
On 22 May 2013 the co-accused sent a text message to the applicant providing the name of the victim's employer, his fiancée's name and the name of both his fiancée's parents. She sent a further message to the applicant asking if everything was right to go from his end. During his stay with his mother, the applicant told her that he thought that he may have to go away for a long time.
On Saturday, 25 May 2013 the co-accused sent the applicant a text message providing the address of the father's group that the victim was attending. The co-accused said that her sons would be with the victim. On this day the applicant arranged for his mother to take him to the Blacktown Railway Station at about 9.30am. At about 10.30am his mother received a phone call from him in which he was crying and asked to be picked up at the Doonside Railway Station. She refused because she had other plans.
On that day the victim arrived at the drop-in centre at Oxley Park at around 10am. The co-accused delivered her children to the drop-in centre also at around 10am. She contacted a friend, Ms Middlebrook, and arranged to meet her at the drop-in centre while she was waiting for the victim's visit to end. This occurred at about 11.30am. The co-accused requested Ms Middlebrook to pick up her friend "Matt" from St Marys Railway Station and drive him to the park where the access visit with the children was to continue.
Ms Middlebrook picked up the applicant in her vehicle and drove him to the edge of the park. The applicant exited the car and departed. He went to a nearby grocery store and purchased a fruit knife with a 20 cm blade. He was wearing a dark hooded jumper, a beanie and dark pants. He was pictured on CCTV walking to and from the park.
Shortly before 12pm, the co-accused returned to the drop-in centre and told the victim that she would take the children to the park for the second part of the access visit. She then drove the children to the park and parked near Ms Middlebrook's vehicle.
The victim was picked up by his fiancée and driven to the park. The victim could see that the co-accused was parked on the other side of the park and recognised Ms Middlebrook's vehicle. The victim walked into the park and his son commenced to run towards him.
At the same time, the applicant ran towards the victim and commenced punching him and then tackled him to the ground. He was armed with a knife and stabbed the victim at least six times using a punching motion. The punches were to the victim's head, face, back and chest. The victim attempted to fight him off.
The applicant got off the victim and fled along Muscio Street, where a witness observed him jump over a fence into a construction site. A subsequent search of the site by police located the knife that was used in the attack. Another witness observed the applicant to run further along Muscio Street before jumping a fence which led into a church on Marsden Road. A search of the grounds of the church located the dark coloured hooded jacket, the dark coloured tracksuit pants and a blue coloured beanie, which the applicant had been wearing. The applicant returned to his mother's house in Blacktown.
When an ambulance attended the victim he was observed to be bleeding from a number of wounds, including wounds to the back of the head, thigh and chest. He was taken to Westmead Hospital. He had a superficial laceration to his left forehead, a penetrating wound to his left pectoral region, a penetrating wound through the abdominal wall of the stomach, a 2 cm penetrating wound to the thigh and a 1 cm wound to the right buttock. A laparotomy was performed to ensure that no major organs had been perforated.
The co-accused was spoken to by police that day. On the afternoon of 25 May 2013 she sent a text message to the applicant saying "Stuck at the cop shop, you need to smash your phone, they saw you I think".
On Sunday, 26 May 2013 the co-accused telephoned the applicant and the conversation was intercepted. During the call, the co-accused informed the applicant that he needed to destroy his SIM card and discussed what had happened to him after the stabbing. The co-accused informed the applicant that the incident was being reported in the media and that they had his description. The applicant told the co-accused that he needed to get away from where he was.
At about 8am on Tuesday, 28 May 2013 the applicant was arrested at Gosford train station while attempting to return to his home address. He was conveyed to Gosford Police Station and interviewed. He was asked about what happened on Saturday. He replied "I stabbed someone". When asked what the co-accused meant by the text message "So long as the boys' dad is gone, I will be happy", the applicant said "She wanted him dead".
The applicant stated that he had obtained a lift from an unknown person to the park in a small green coloured car and that he had purchased the knife before the stabbing from the shops nearby. A search of the applicant identified a small 2013 diary which included hand written notes. On one of the pages was the name of the victim, the victim's parents' address and a mobile phone number. The applicant said that it was written by the co-accused.
On Wednesday, 29 May 2013 the co-accused was arrested at Tweed Heads Police Station and taken into custody at which time she said "I didn't want him to go through with it". Investigators asked why she still organised for her friend to convey the applicant to the park on the day if she did not want the incident to occur. She did not respond and refused to be further interviewed.
In the course of his sentence judgment, his Honour had occasion to consider the assistance for which the applicant submitted he was entitled to a discount. His Honour dealt with the matter as follows:
"Assistance
On 28 May 2013, the offender was arrested and charged by police in respect to this matter. Whilst speaking to police in an ERISP, he stated "I stabbed someone" and "she (Hebb) wanted him dead" (answer 54 & answer 175). On 17 March 2015, the offender gave police a statement which set out the evidence he was prepared to provide in a court of law as a witness in the trial of Hebb. The Crown does not accept the offender has been fully frank in the statement and will not rely upon him as a witness of truth at the forthcoming trial of Hebb. Despite this, the offender's early disclosures to the police and later undertaking to the police attract some limited discount on the sentence.
I make this assessment on the basis that I understand he will be called at the trial of Hebb and although he may be declared an "unfavourable witness", his evidence implicating Hebb will provide assistance in her prosecution.
Generally however, in assessing his assistance, I accept the Crown submission that this is of limited value on the basis that in his record of interview, dated 28 May 2013, the offender initially attempted to explain the offence is a random attack. However, when confronted with his diary and the text messages from the co-accused, the offender gave a more complete account. Accordingly, the Crown does not accept his statement made to police on 17 March 2015 as credible. The Crown submits it is an attempt to minimise his and the co-offender's conduct. There is some considerable force in the Crown submission." (Sentence judgment 16.6 - 17.4)
The appeal
The appeal turned largely on the meaning of s 23 of the Crimes (Sentencing Procedure) Act 1999 (the Act). That section relevantly provides:
"23(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.
(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:
(a) (Repealed)
(b) the significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,
(d) the nature and extent of the offender's assistance or promised assistance,
(e) the timeliness of the assistance or undertaking to assist,
(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,
(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(h) any injury suffered by the offender or the offender's family, or any danger or risk of injury to the offender or the offender's family, resulting from the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,
(j) (Repealed)
(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.
(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:
(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and
(b) state the penalty that it would otherwise have imposed, and
(c) where the lesser penalty is being imposed for both reasons - state the amount by which the penalty has been reduced for each reason.
(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.
(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence."
Also relevant is s 101A of the Act which provides:
"101A Effect of failure to comply with Act
A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence."
The Crown's written submissions accepted that the ground of appeal had been made out:
"Application
47 In this case Judge Hanley failed to comply with the requirements imposed by section 23(4) of the CSP Act. His Honour found that the applicant's early disclosures to the police and his undertaking to give evidence in the trial of the co-accused, "attracts some limited discount on sentence" (ROS at 16). His Honour failed to indicate the discount for the applicant's past and future assistance to authorities and to state the penalty that would otherwise have been imposed if no discount for assistance was given.
48 In light of the recent decision of this Court in Panetta it may be accepted that his Honour's non-compliance with s 23(4) of the CSP Act constitutes appellable error and requires this Court to consider whether a more or less severe sentence is warranted in law."
Before making that concession, the Crown set out its analysis of cases on the issue of the interrelation between s 23(4), 23(6) and 101A of the Act. The Crown noted that there was a possible conflict between the decisions of this Court in R v Robinson [2014] NSWCCA 12 at [42] (Basten JA) and Avery v R [2015] NSWCCA 50 at [68] (Bellew J) on the one hand and Panetta v R [2016] NSWCCA 85 at [36] (Adams J) on the other. It is not necessary, for the purposes of deciding this application, for this Court to express any final opinion on that possible conflict of approach. This is because full argument was not received on the issue and the occurrence of error and the making out of the applicant's ground of appeal has been expressly conceded by the Crown. The argument before this Court proceeded on the question of whether on re-sentence, a lesser sentence was warranted in law.
Accordingly, in following this approach this Court should not be taken to have expressed any firm view on whether the approach in Panetta should be followed in preference to that suggested in Robinson and Avery.
As was made clear in Kentwell v The Queen [2014] HCA 37; 252 CLR 601, once error of the necessary type has been identified, the sentencing discretion has to be re-exercised by this Court. There the plurality (French CJ, Hayne, Bell and Keane JJ) said:
"42 Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion.
43 After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal."
As I understand the opinion of the plurality, it does not require this Court on re-sentence to conduct a de novo sentence hearing with it being necessary for the Court to make its own specific findings of fact. This may be necessary where wrongful fact finding has been identified as one of the bases for the appeal being upheld. Where as here, no specific challenge has been made to the fact finding by his Honour, this Court in re-sentencing can accept as the basis for its re-exercise of the sentencing discretion, the facts which have been found by the sentencing judge. It, of course, remains necessary for this Court to apply to those facts "the factors that the Sentencing Act and any other Act or rule of law require or permit".
On the issue of the objective seriousness of the offence, the following findings by the sentencing judge are relevant to the re-exercise of the sentencing discretion. The offence carries the highest maximum penalty prescribed by the legislature short of life imprisonment. This is because s 27 of the Crimes Act requires an accused to actually have an intention to kill the victim. That maximum sentence is an important guide post when determining the seriousness of the offence. Another important consideration is the extent of the injuries suffered by the victim. These have already been summarised but involved six significant penetrating stab wounds requiring major surgery. It was only by chance that the injuries did not result in the death of the victim.
The amount of violence involved was significant and took place over a substantial period of time. The violent assault and stabbing continued after the victim had been forced to the ground. It was an aggravating factor that a weapon was used and that the attack occurred in front of the victim's children.
His Honour rejected the explanation in the applicant's ERISP that this was a spontaneous offence. His Honour referred to evidence which was consistent with there being a significant degree of prior planning. This included the trip to Sydney and the movement of motor vehicles at specific times. Absent other considerations, the objective seriousness of the offending was high.
There was, however, another important consideration which impacted on the applicant's moral culpability for the offending. The applicant had suffered significant brain injuries as a result of two motor vehicles accidents, which occurred on 2 July 2005 and 25 April 2008. In each accident the brain injury was described as "severe". The assessment by Drs Allnutt and Ashkar placed the applicant's intellectual skills as a result of these injuries within the lowest 10 percent of the population. The applicant's capacity to engage in complex planning and abstract reasoning was assessed as "borderline" or "extremely low".
The applicant had in the past displayed aggressive behaviour which was found by the doctors to be due to a combination of brain injury and drug use. There was no issue that the applicant had a long history of drug abuse which pre-dated the offending behaviour and included the abuse of alcohol, cannabis, amphetamines, heroin and methylamphetamine. The applicant told both doctors that at the time of committing the offence he was in the middle of a drug binge and was highly intoxicated by ice. This part of the applicant's history to the doctors was expressly rejected by his Honour on the basis of the observations of his mother at the time and his performance during the ERISP.
His Honour's conclusions on this issue are important and in the absence of any challenge to them, need to be taken into account by this Court in the re-exercise of the sentencing discretion. His Honour said:
"I am satisfied the offender's significant cognitive functioning issues arising from two incidents of brain trauma that incurred in the two motor vehicle accidents and the fact his higher-level thinking skills (e.g. complex attention planning and organisation, abstract reasoning, self-monitoring) were "borderline" or "extremely low" made him an easy target and susceptible to being manipulated by the co-offender Hebb, into committing the offence. I accept he probably believed his actions were "morally" justified on the basis presented to him by Hebb, being that the victim was going to harm her children. To this extent, his moral culpability was reduced and to some extent his appropriateness as a vehicle for general deterrence is limited." (Sentence judgment 12.4)
Despite the presence of brain damage, his Honour was satisfied that the applicant was aware that he was committing a serious criminal offence. The matters which his Honour took into account in reaching that conclusion were:
1. Putting into effect the plan by travelling to Sydney on the pretext of his visiting his mother.
2. His comment to his mother that "he was going away for a long time".
3. The initial lies to police in his first interview, which unravelled when he was confronted with objective evidence to the contrary.
4. The text messages between him and the co-accused before and after the stabbing demonstrated his awareness of the plan and the steps taken to avoid detection.
5. His explanations to Dr Allnutt and Ashkar concerning the commission of the offence and his drug usage at the time did not withstand close scrutiny.
6. His claim that he was under the influence of methylamphetamine and heroin at the relevant time was not borne out by other evidence.
Specifically his Honour rejected the following propositions, which were put on behalf of the applicant:
1. He was under the influence of crystal methylamphetamine at the time of the offence.
2. He was in the process of an ongoing drug binge at the time of the offence.
3. There was no agreement between the applicant and the co-accused until the exact time of the offence.
4. That he was not taking his prescribed medication.
His Honour disregarded the applicant's criminal antecedents as an aggravating factor in that they were relatively minor. His Honour took into account the injury, emotional harm, loss and damage caused by the offence. Reference has already been made to the physical injuries. The victim also referred to significant emotional harm, anxiety and paranoia which he had suffered following the accident.
By way of mitigation, the applicant had pleaded guilty although not at the earliest point in time. His Honour allowed a 10 percent reduction for that plea of guilty. That accords with my assessment of the utilitarian value of a plea of guilty entered 10 days before trial in circumstances where there was no issue that the applicant had stabbed the victim in the way asserted.
Given the applicant's success in his ground of appeal, the question of assistance requires closer examination. Merely because an offender is co-operative during an ERISP and makes admissions, does not of itself necessarily entitle him to a further reduction in sentence pursuant to s 23 of the Act. Under the section, whether to allow a reduction is discretionary. It is not automatic. Moreover, such co-operation and admissions relate more to the discount for a plea of guilty than what would be conventionally regarded as "assistance".
The assistance here is the evidence in the ERISP and the statement of 17 March 2015 which was relevant to the part played by the co-accused. Such evidence would be of value in the Crown case against the co-accused and would entitle the applicant to some discount. His Honour so found.
In assessing the extent of the discount, however, other matters need to be kept in mind.
1. Given the unreliability of much of what was said in the ERISP and in the subsequent statement, that evidence might not be given great weight by a jury.
2. There were real issues with the truthfulness, completeness and reliability of what was contained in the ERISP and the subsequent statement.
3. The content of the 17 March 2015 statement was replete with self-serving assertions which were designed to minimise the culpability of the applicant. This reduced the usefulness of any evidence by him which could be used against the co-accused.
Of considerable importance was the evidence of the police officer in charge, Detective Kendle, which was that the 17 March 2015 statement was of minimal value and some assistance could be obtained by the Crown from the ERISP. He said that there was no evidence that such assistance as the applicant was prepared to give would give rise to him experiencing harsher custodial conditions, nor would it place him or his family at risk.
Taking those matters into account, I am prepared to accept that the evidence of the applicant would be of assistance in the Crown case against the co-accused, but only to a relatively minor extent. The discount which I would allow for assistance would be a total of 5 percent. I would apportion that assistance as to nil for the past and 5 percent for the future.
In relation to other mitigating matters, there was no issue that the applicant had shown some remorse and that there was some acceptance of responsibility by him. His rehabilitation prospects are not particularly good. This is because of his heavy drug use. Nevertheless, the record of his performance while in custody provides a basis for him achieving rehabilitation and not re-offending.
There were difficulties in the applicant's childhood and background in that his father abused alcohol and drugs. There was domestic violence to which he and his mother were subjected until the marriage broke up when he was aged 10. He was aged 26 at the time of the offence and is now aged 29.
The two motor vehicle accidents have rendered him unemployable and he is currently living on the Lifetime Care and Support Scheme provided for under the Motor Accident Compensation Act 1999.
Taking those matters to which I have referred into account, having regard to his Honour's unchallenged factual findings, and having regard to my own assessment of the documents which were before his Honour, I am of the opinion that a lesser sentence is warranted in law than that which was imposed at first instance. In imposing that sentence, I find that special circumstances do exist for the reasons identified by his Honour. The sentence which I would impose is imprisonment with a non-parole period of 6 years and a balance of term of 3 years. My principal reason for imposing a lesser sentence is that I have given substantial weight to the causal effect of the applicant's brain damage on the offending.
Accordingly, the orders which I propose are:
1. Leave to appeal against sentence is granted and the appeal is allowed.
2. The sentence imposed in the District Court on 24 September 2015 is quashed.
3. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 6 years commencing 28 May 2013 and expiring on 27 May 2019 with a balance of term of 3 years expiring 27 May 2022. The applicant will become eligible for parole on 28 May 2019.
HARRISON J: I agree with Hoeben CJ at CL for the reasons given by him. I consider that his Honour's conclusions are particularly appropriate having regard to the appellant's subjective circumstances to which his Honour has had regard.
For example, included in the material provided to this Court were medical reports from a psychiatrist Dr Stephen Allnutt dated 4 September 2013 and from a psychologist Dr Peter Ashkar dated 10 November 2014. Dr Allnutt's report includes the following analysis:
"Your client was brought up in an inconsistent, abusive and violent environment with frequent geographic moves. He demonstrated behavioural problems at school likely contributed to by a combination of the stress of his developmental environment and Attention Deficit Hyperactivity Disorder. [He] was prescribed Dexamphetamines and he left school at a relatively early stage.
He was involved in a motor vehicle accident and suffered frontal lobe damage, which in my view would have aggravated a pre-existing propensity to impulsivity and behavioural difficulties. This was further compounded by another accident that occurred in 2008. As a consequence of his frontal lobe damage he would have experienced Executive Dysfunction characterised likely by poor problem solving and a tendency to concrete thinking.
He discontinued the use of substances in 2011, but in the wake of a death of a friend (in May 2013), he recommenced using methamphetamines. The information he provided supports the conclusion that the methamphetamines triggered the onset of a Drug Induced Psychosis characterised by auditory hallucinations. Soon after this, a girl informed him that her child was at risk from another man ...
In my view the combination of his executive dysfunction and auditory hallucinations resulted in the emergence of a belief that in fact this child was at risk, further compounded by the command nature of the voices, telling him to protect the child. At the time he held the belief with conviction and was prone to do so due to mental conditions. He describes that the material time of the offending believing that what he was doing was the right thing and describes feeling convinced of that course of action as the right thing.
Based on information provided to me, your client had suffered a 'disease of the mind' at the time of the alleged offence; that affected his capacity for reasoning; but not to the extent that he was unable to reason about the nature and quality of his actions.
He was affected by his capacity to reason about the moral wrongfulness of his actions with an adequate degree of sense and composure and on this basis has available to him a defence of mental illness."
Dr Ashkar summarised his conclusions in the following terms:
"23. Mr Hitchcock is a 27-year-old man with a history of learning difficulties and traumatic brain injury. He is accused of stabbing a man in a park in May 2013 and is facing attempted murder (and associated lesser) charges. He was seen for neuropsychological assessment to assist in determining his level of intellectual and cognitive functioning and fitness to be tried.
24. Mr Hitchcock's history of intellectual and cognitive functioning is a complex one. He sustained a severe traumatic brain injury in a motor vehicle accident in July 2005 and an extremely severe traumatic brain injury in a pedestrian accident in April 2008. He had a history of Attention Deficit-Hyperactivity Disorder and learning difficulties at school and substance misuse throughout his adolescent and adult years. He was likely functioning towards the low end of the 'low average' range (ie, at or near the 10th percentile) with regard to his intellectual and cognitive functioning before his traumatic brain injuries in 2005 and 2008.
25. Neuropsychological assessment in December 2008 (approximately eight months after his second traumatic brain injury) suggested a reduction in Mr Hitchcock's information processing speed (from pre-injury level) and difficulties with aspects his higher-level thinking involving planning and organisation, verbal abstract reasoning, mental flexibility, idea generation, and problem solving. His intellectual and memory skills were relatively intact. Behaviourally, he demonstrated a low frustration tolerance and was easily angered.
26. Findings from this assessment are broadly consistent with the results of the 2008 assessment. Mr Hitchcock's verbal and nonverbal/visual intellectual skills are at the lower end of the normal range ('borderline'). The same is true for his information processing speed ('borderline'). His attention and concentration skills are a personal weakness ('extremely low'), which is not surprising given his history of Attention Deficit-Hyperactivity Disorder and traumatic brain injury. His learning and memory skills are relatively intact ('low average' or better) but his memory lacks precision and is vulnerable to contamination (i.e., he confused old with new material). His higher-level thinking skills (e.g., complex attention, planning and organisation, abstract reasoning, self-monitoring) are largely commensurate with his level of intellectual functioning and are either 'borderline' or 'extremely low'.
27. The observed reductions in Mr Hitchcock's cognitive functioning (from estimated 'low average' to 'borderline' and 'extremely low' levels) are likely due to his history of substance misuse and traumatic brain injury. Mr Hitchcock has passed the point of maximum spontaneous neurological recovery (from his 2005 and 2008 traumatic brain injuries) and his cognitive functioning is unlikely to improve substantially over time.
28. Mr Hitchcock demonstrates sufficient cognitive resources to understand the nature of his charges and to assist in his defence under the Presser [1958] and Kesavarajah [1991] criteria, notwithstanding the limitations in his cognitive functioning. He is able to name his charges and he understands their nature. He has patchy memory of his behaviour at the time in question (predominantly due to his substance use and symptoms of psychosis) but he is able to piece together an account of his behaviour at that time. He understands the meaning of 'innocent', 'guilty', 'truth' and 'lie'. He appreciates the consequences of pleading guilty and of pleading not guilty, and he is able to make a reasoned decision about his plea. He has a basic understanding of courtroom process and personnel. He has difficulty generating information of importance to his defence, but he is capable of doing so with the appropriate guidance and support from his solicitor.
29. The available documentation strongly suggests that Mr Hitchcock has been having difficulty controlling his anger (and his behaviour more generally) since his traumatic brain injury in 2008. Changes in personality, increases in anger, and reductions in behavioural and emotional control are common in people who have experienced extremely severe traumatic brain injuries and are typically associated with damage to the frontal lobes of the brain (an area of the brain that is particularly susceptible to damage in traumatic brain injury). Mr Hitchcock also has difficulty controlling his substance use (in large part) because of his traumatic brain injury. His traumatic brain injury may therefore be an important mitigating factor for consideration in his defence and/or at sentencing."
It is apparent that the somewhat curious, if not bizarre, events that constitute the offending that is the subject of this appeal cannot be divorced from the appellant's significant mental and cognitive difficulties. The Chief Judge has properly emphasised the causal relationship between these conditions and the offending. The result is a subjective case in which the appellant's moral culpability for what is clearly a serious offence is necessarily significantly reduced.
The appellant should be resentenced in the way proposed by the Chief Judge.
CAMPBELL J: I agree with Hoeben CJ at CL.
[3]
Amendments
17 October 2016 - Typographical error - amended Cover sheet in Decision - (3) Expiration date for the 3 year balance of term changed to 27 May 2022. Same amendment in para [49].
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Decision last updated: 17 October 2016