Islam v R [2013] ACTCA 10

Court of Appeal (ACT)|2013-02-28|Before: Mathews AJ, Marshall JJ

[2013] ACTCA 10 (28 February 2013)

APPEAL AND NEW TRIAL - in general and right of appeal - appeal against conviction - appeal dismissed.

CRIMINAL LAW- general matters - criminal liability and capacity - mental impairment - psychiatric assessments - whether mental impairment made out - Criminal Code 2002 (ACT), ss 27, 28.

APPEAL AND NEW TRIAL - general principles - in general and right of appeal - appeal against sentence - appeals dismissed.

APPEAL AND NEW TRIAL - general principles - in general and right of appeal - Crown appeal against sentence - principles in Crown appeals.

APPEAL AND NEW TRIAL - general principles - in general and right of appeal - grounds of appeal - weight - claim inadequate weight given to a factor - matter for sentencing judge.

CRIMINAL LAW - jurisdiction, practice and procedure - judgment and punishment - sentence - whether remorse shown - whether manifestly excessive or manifestly inadequate - no question of principle.

Ashdown v The Queen [2011] VSCA 408

Balthazaar v The Queen [2012] ACTCA 26

Hanania v The Queen [2012] NSWCCA 220

House v The King [1936] HCA 40; (1936) 55 CLR 499

Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

Rama v The Queen [2006] ACTCA 25

R v Campbell [2010] ACTCA 20

R v Cassidy [2008] ACTSC 13

R v Chatfield [2012] ACTCA 32

R v Eisenach [2011] ACTCA 2

R v Islam [2011] ACTSC 32

R v Islam (Unreported, Supreme Court of the Australian Capital Territory, Mathews AJ, 25 May 2011)

R v Mitchell and Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA - 28 of 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

3. The cross-appeal against sentence is dismissed.

IN THE SUPREME COURT OF THE ) No. ACTCA - 28 of 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appellant, Isa Islam, confronted Mr Andrew Dyer in a Take-Away Food Shop at the Ainslie Shopping Centre on 4 July 2009. Following the confrontation, Mr Dyer suffered stab wounds to the back of his neck and shoulder.

2. As a result, Mr Islam was charged with the attempted murder of Mr Dyer and, in the alternative, intentionally inflicting grievous bodily harm on Mr Dyer and, also in the alternative, intentionally and unlawfully using an offensive weapon against Mr Dyer. An indictment containing these counts was filed on 10 December 2009.

3. He was committed for trial to the Supreme Court on 17 September 2010 and on 16 February 2010 elected, under s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), for trial by a judge alone. On 23 November 2010 Mr Islam pleaded not guilty to all charges.

4. The trial was conducted by Mathews AJ on 22-25 and 29 November and 3, 7 and 9 December 2010. On 2 March 2011, her Honour found Mr Islam not guilty of the charge of attempted murder but guilty of the offence of intentionally inflicting grievous bodily harm. As a result, her Honour was not required to enter a verdict on the third count.

5. On 4 May 2011, her Honour heard evidence and submissions on sentence and on 25 May 2011 sentenced Mr Islam to imprisonment for nine years from 4 July 2009 with a non-parole period of four years and six months. Her Honour also made recommendations as to conditions that might be included in any parole order.

6. On 29 June 2011, Mr Islam appealed against his conviction and sentence. The Notice of Appeal was amended on 27 February 2012.

7. On 4 July 2011, the Crown cross-appealed on the basis that the sentence imposed was manifestly inadequate.

8. Mr Islam's appeal against conviction was essentially on the basis that Mathews AJ erred in failing to find that Mr Islam was not criminally responsible for the offence because, when carrying out the conduct required for the offence, he was mentally impaired to the requisite standard.

9. In her Honour's decision, R v Islam [2011] ACTSC 32 at [3], her Honour noted that "[m]uch of the evidence in the Crown case was not disputed."

10. The undisputed facts were that Mr Dyer worked in the Take-Away Food Shop where the altercation occurred. He and Mr Islam knew each other as they both lived at Ainslie Village, a public housing complex in Ainslie. Her Honour noted, however, that "there was no love lost between these two men".

11. When Mr Dyer approached the Shop to start work on 4 July 2009, he saw Mr Islam standing outside it and so he went round the back to avoid him, entering through the back door.

12. Mr Islam, however, entered the Shop and came straight up to Mr Dyer in an aggressive manner, but the owner told them to "take it outside". As both men left, a physical confrontation occurred between them in the front of the Shop and Mr Islam stabbed Mr Dyer, who fell onto the floor. Mr Islam had inflicted a number of knife wounds on Mr Dyer and, even after the blade of the knife broke off, continued to strike him with the handle. A witness also described Mr Islam as kicking and stomping on Mr Dyer's head.

13. One of the stab wounds entered Mr Dyer's spinal canal so that he is now a tetraplegic, with severe weakness of the muscles on the left side of his body below the shoulder and severely impaired sensation on his right side.

14. The assault stopped as suddenly as it started, when Mr Islam abandoned the attack and walked out to the street in front of the Shop. He did, however, return inside the Shop twice, in each case moving Mr Dyer's position on the floor to what he described as "the recovery position". Otherwise, he went outside apparently awaiting the arrival of the police.

15. When the police arrived, Mr Islam was standing quietly outside the Shop with his hands covered in blood and said "I did it, I'm the one". He was arrested. Later, after being cautioned, he said "I am sick of him. He is always breaking into my room and stealing my stuff. I am just sick of it and I have had enough."

16. The background to these events is that Mr Islam had been living in a room approximately opposite to Mr Dyer across the corridor in one of the blocks in Ainslie Village. The two came into conflict and Mr Dyer made complaints about Mr Islam. Mr Islam considered that Mr Dyer had been stealing property from his room or, at least, knew who was doing so. He said that when he returned to his room to find it vandalised, he often heard Mr Dyer laughing loudly. He also made complaints about Mr Dyer.

17. Her Honour found that there were occasions when Mr Islam's property had been stolen or vandalised, though she considered that it was likely that the seriousness or number of such incidents had been exaggerated in Mr Islam's mind.

18. After a careful and comprehensive analysis of the evidence, her Honour concluded that she could not find beyond reasonable doubt that Mr Islam intended to kill Mr Dyer. Accordingly, as noted above (at [4]), the verdict on the charge of attempted murder had to be not guilty.

The decision - intentionally inflicting grievous bodily harm

19. On the charge of intentionally inflicting grievous bodily harm, her Honour noted (at [76]) that Mr Islam admitted that the injuries sustained by Mr Dyer from the assault constituted grievous bodily harm, a finding that would have been inevitable. The only issue on this count, then, was whether the injuries were inflicted intentionally. Her Honour held (at [77]-[79]):

... from a factual point of view, it is much easier to infer that there was an intention to inflict the damage which was actually caused than it is to infer that the damage was inflicted with the specific intention of achieving a further end, as was required under the first charge.
Mr Gill submitted that the evidence indicates that the accused 'was not thinking clearly at all' during his assault on Mr Dyer. On one level this may be so, but there is no suggestion that his actions were involuntary at the time. He clearly understood the physical quality of his actions, and was able to describe them in considerable detail later. The obvious and inevitable consequence of those actions was that Mr Dyer would sustain serious injuries. In stabbing Mr Dyer several times, and, amongst other things, repeatedly bashing his head on the ground, he must have realised and intended that really serious injuries would follow.
For these reasons I have no difficulty in finding, beyond reasonable doubt, that the accused intentionally inflicted grievous bodily harm upon Mr Dyer.

20. Her Honour then turned to consider the defence Mr Islam had raised of mental impairment. This defence is established under Pt 2.3 of the Criminal Code 2002 (ACT) (the Criminal Code), the relevant provisions being ss 27 and 28 which provide as follows:

27 Definition - mental impairment

(1) In this Act:

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

(2) In this section:

mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.

(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

28 Mental impairment and criminal responsibility

(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(c) the person could not control the conduct.

(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

(3) The question whether a person was suffering from a mental impairment is a question of fact.

(4) A person is presumed not to have been suffering from a mental impairment.

(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.

(6) The prosecution may rely on this section only if the court gives leave.

(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must_ - _

(a) [...]return or enter a special verdict that the person is not guilty of the offence because of mental impairment.

21. To make out this defence, as her Honour pointed out (at [82]), it was necessary for Mr Islam to prove, on the balance of probabilities, that at the time of the offence, he was suffering from a mental impairment that had one of the effects referred to in s 28(1). The relevant sub-section here was (c), namely that he "could not control his conduct".

22. Mr Islam had been examined by a number of forensic mental health experts. Consultant psychiatrists, Dr Graeme George and Dr Stephen Allnutt, and psychologist, Mr Tom Sutton, gave evidence. Evidence was also given by a number of mental health practitioners, who had examined Mr Islam in the course of their employment with ACT Health in connection with his detention in custody at the Watch House or the Alexander Maconochie Centre, namely, Dr Luke Streitberg, medical practitioner, Lindal Wigginton, registered nurse, Jessica Rofe, social worker, and Dr John Kasinathan, consultant psychiatrist.

23. Her Honour considered that some reference to the background of Mr Islam was also needed and summarised it as follows (at [84]):

The accused is now 38 years old. He was born in Sydney on 22 February 1973, and adopted at the age of six months. He completed his secondary schooling with good results, and is clearly an intelligent man. At the age of 15 he joined the RAAF, where he remained until 2001. In 1999 he was involved in a car accident in which his head hit the windscreen. This was followed by a brief period of unconsciousness. Afterwards his friends started telling him that his personality had changed, and that he had become more aggressive and angry. It was this change of personality, he said, which led to his seeking a discharge from the RAAF two years later. In 2003 he went to Kuwait where he worked as a military contractor for eighteen months. It was as a result of his Kuwait experiences that he converted to Islam and changed his name. He also changed his habits. Whereas he had previously partaken liberally of alcohol and sometimes cannabis, he became totally abstemious. He is estranged from his adoptive family, and has no close friends or associates.

24. Her Honour then considered the evidence of those medical personnel who had seen Mr Islam and assessed his mental health within a short time of the incident.

25. Dr Streitberg saw him shortly after his arrest to assess his fitness to be interviewed by police. He noted that police had observed Mr Islam's post-arrest behaviour to be "calm and co-operative". He interviewed Mr Islam and, Mathews AJ reported that he assessed him as "'normal' in all relevant respects, including 'insight and judgement/awareness of circumstances', as well as 'memory (recent and remote)'". There was nothing in Mr Islam's presentation to suggest psychosis and he advised that Mr Islam was fit to be interviewed.

26. Two days later, Mr Islam was assessed by Ms Rofe, who worked as a mental health clinician at the Alexander Maconochie Centre (AMC). She reported that Mr Islam was "pleasant and co-operative". She found no evidence of any formal thought disorder. His thought content was considered to be "appropriate to questions asked and his situation" and his memory was described as "grossly intact".

27. A couple of weeks later, he was re-assessed by Ms Wigginton and she concluded that:

[He] was pleasant and co-operative throughout the interview, maintained good eye contact and rapport was established. I found him to be a good historian with an open and engaging manner.

28. On 10 June 1010, Dr Kasinathan saw Mr Islam at his request. He was complaining of depression and anxiety related symptoms. He concluded that Mr Islam was suffering from mild depression accompanied by anxiety symptoms but there was no sign of psychosis.

29. Her Honour then considered the evidence of the forensic mental health professionals. She noted that Dr George found that "Mr Islam does not suffer a mental illness nor does he suffer mental impairment".

30. Mr Islam, however, said that he was not entirely frank with Dr George, as he feared being moved to a psychiatric facility. In particular, he did not mention his anxiety attacks.

31. Mr Sutton carried out a series of psychological tests. Initially, he found "some executive dysfunctions, but ... not so low as to be dysfunctional in everyday life". He concluded that these results "do not at this stage add up to an impairment sufficient for me to say he has no control over his actions".

32. He carried out further tests and, as a result, concluded that:

• beneath his good interpersonal skills has been "a developing distorted internal ideation";

• there was a "progressive deterioration in his ability to control or contain internal distorted thoughts and impulses".

33. Mr Sutton concluded that Mr Islam's condition satisfied the definition of "mental illness" in s 27 of the Criminal Code. He said, further, that it did not have the effect specified in s 27(1)(a) or (b). As to (c), he commented "this one I cannot answer".

34. Dr Allnutt undertook a "very detailed assessment" and reviewed the other reports. He considered that the evidence did not support the conclusion that Mr Islam did not know the nature and quality of his conduct (s 28(1)(a)). As to s 28(1)(b), he considered that, in the absence of evidence of delusional belief that Mr Dyer was harassing him, there was not enough evidence to support the conclusion that Mr Islam did not know at the time of the incident that the conduct was wrong.

35. As to s 28(1)(c), he considered that if he had damage to the frontal lobe of his brain, that could compromise his capacity for control but said "the evidence is marginal at this stage".

36. Her Honour concluded from Dr Allnutt's evidence that much depended on whether Mr Islam's belief that Mr Dyer was implicated in persecuting him at Ainslie Village was a delusion or whether there was a basis for it. She understood Dr Allnutt, however, to say that even if he had a paranoid personality disorder, this would not amount to a mental impairment and, even if it did, he considered it a "marginal call" as to whether it meant Mr Islam could not control his actions.

As I have already indicated, I consider that there were real grounds for the accused's belief that his property was being vandalised and stolen. It is also likely that Mr Dyer, at the very least, knew who was involved in this. This being the case, it cannot be said that the accused was delusional at the time.

38. Her Honour was not persuaded that, on the balance of probabilities, at the time of the offence, Mr Islam suffered a mental impairment with the meaning of s 27 of the Criminal Code. Her Honour further found (at [103]):

Even if I had found that there was a mental impairment at that time, I would not have been satisfied that it had any of the effects set out in s 28(1). The only one of these which was seriously in issue was (c), namely that the accused could not control his conduct. But given the evidence of Dr George and Dr Allnutt, I could not find this affirmatively established by the defence.

39. Mr Islam appeared unrepresented in his appeal against conviction.

40. He submitted that her Honour should have interpreted Dr Allnutt's report in light of his subsequent conduct to conclude that Mr Islam had a mental impairment, and that this mental impairment (as demonstrated by his subsequent conduct) meant that Mr Islam could not control his conduct.

41. He referred to Dr Allnutt's reference to Mr Islam's belief that Mr Dyer was responsible in some way for vandalising or stealing his property. He referred to the following passage of that evidence:

If the court concluded it [that is, Mr Islam's belief that Mr Dyer was persecuting him] was a delusion, then the court might conclude that he went into that situation driven by a strong sense of justification, a delusional justification, derived from an inability to reason about things. And under those circumstances, then you might conclude that he meets - the court might then conclude he meets that threshold. If the court doesn't conclude it was delusional, then I think it's less likely. It's also less likely because he does described immediately - at least to me he described immediately after the offence he felt guilt, and there's a sense of knowledge of wrongfulness immediately afterwards, which suggests that, you know, that's probably not the case for him.

42. Of course, as noted above (at [37]), her Honour did conclude that there were real grounds for Mr Islam's belief about Mr Dyer's involvement, which meant that she could correctly find that, consistent with Dr Allnutt's opinion, that it was less likely that Mr Islam was mentally impaired in the way that made him not criminally responsible.

43. Mr Islam, however, pointed to his behaviour immediately after the stabbing which he described as "illogical behaviour", namely that after the "frenzied attack", he immediately tried to assist Mr Dyer and sat down to await the police. He submitted that these behaviours were strange and, in the context of the neuropsychological tests, assumed significance.

44. That, however, does not accord with Dr Allnutt's approach. His evidence was as follows:

When you consider the term, 'Could not control conduct' or 'Could not control' what do you mean - well, how do you believe that? ... Well, in lay terms losing his temper and acting it out. Now, we all lose our temper and normal people - and some people who lose their temper act it out, some of those people that lose their temper and act it out have no psychiatric or mental problem, some of them that lose their temper and act it out have mild or marginal mental problems, and some of them that lose their temper have significant mental problems. And one's got to try and distinguish between that group of people. Now, one of the ways of distinguishing that is by doing a psychiatric interview and checking whether there's a psychiatric condition that might contribute to that, and do neuropsychological testing and checking whether one's capacity is impaired in that area. In this case there has been assessment done, there's been neuropsychological assessment done that has shown cognitive impairment in executive functioning, and executive impairment is understood to contribute to a reduced capacity to control one's actions. In this case it doesn't appear to me that it's a serious incapacity but there is a degree of incapacity.

45. Dr Allnutt, having considered the neuropsychological testing, found that Mr Islam's capacity was reduced but not seriously reduced. Dr Allnutt did not place reliance on the post-attack behaviour. Indeed, his reference to loss of temper puts that behaviour into context. It is the ordinary experience of humanity that, following a loss of temper, people can behave with great remorse when they regain their temper. Dr Allnutt expressly noted the need to distinguish between a mere loss of temper by people without mental impairment and those who lose control through mental impairment. His conclusion was not dependent on the post-incident behaviour but on the belief that led to the attack.

46. Dr Allnutt was well aware of the post-attack behaviour; he described it in some detail in his report. It was, contrary to the submission of Mr Islam, not a matter that he regarded as relevant to the determination of Mr Islam's mental state at the time of the attack.

47. Her Honour did carefully consider Dr Allnutt's evidence; indeed, she took care to consider all the evidence as to Mr Islam's mental health. She did not mistake the issues that had been raised, especially by Dr Allnutt, and addressed them in the terms in which they were raised.

48. There is no error in her Honour's consideration of Mr Islam's mental state at the time of the offence and the appeal against conviction must be dismissed.

49. Mr Islam appealed against his sentence on the following grounds:

(a) that her Honour gave no weight to the issue of provocation under s 33(1)(q) of the Crimes (Sentencing) Act 2005 (ACT);

(b) that her Honour erred in concluding that Mr Islam should be subject to a longer than usual parole period because of the need for a long period of supervision to meet his long-term psychiatric care; and

(i) her Honour erred in the assessment of the objective seriousness of the offence;

(ii) her Honour erred in the assessment of the level of remorse of Mr Islam;

(iii) her Honour placed too much weight on Mr Islam's subjective circumstances; and

(iv) the sentence was manifestly inadequate, including the inadequacy of the head sentence and the non-parole period and that the relationship between the non-parole and the head sentence did not reflect the objective seriousness of the offence.

51. In sentencing Mr Islam on 25 May 2011, her Honour set out in summary the facts of the offence in R v Islam (Unreported, Supreme Court of the Australian Capital Territory, Mathews AJ, 25 May 2011). She described the consequences of the attack as tragically very severe for Mr Dyer who was rendered a tetraplegic, having been a physically fit man, in the second year of a mature aged motor mechanics apprenticeship and enjoying a range of sporting activities.

52. She described, in some detail, the consequences for Mr Dyer in his permanent medical, physical and psychological disabilities caused by the attack. She made reference to the "extremely moving impact statement" tendered on his behalf and that tendered on behalf of his parents. Her Honour, in our view, properly concluded:

It goes without saying that the extent of Mr Dyer's injuries is a major aggravating feature of this offence.

53. She then set out Mr Islam's background, some of which has been summarised above (at [23]). Her Honour described him as follows:

an extremely solitary man with no friends or close contacts, and is effectively estranged from his adoptive family. He is clearly a very intelligent man. Since 2008, he has been pursuing tertiary studies as an external student and has completed several units of a Bachelor of Arts Degree, specialising in English and Theology as well as commencing a Masters of Business Administration.

He presents as articulate and sociable. A presentation which significantly contrasts with his isolated lifestyle and his significant life events, many of which indicate a degree of dysfunction.

54. Her Honour noted his prior criminal record, mainly traffic and dishonesty offences, and his current employment with the difficulties he had in it. She also referred to an earlier altercation with Mr Dyer.

55. Her Honour further referred to the evidence of the mental health professionals and noted that "they found nothing abnormal or inappropriate in the offender's presentation or his thought content." Referring to the forensic mental health assessments, she noted that he did suffer from a paranoid personality disorder and that she had found there was a genuine ground for his belief that some of his property had been vandalised and stolen, but that his perception of these events had been exaggerated by his paranoid ideation.

56. Her Honour noted that the Crown submitted that the horrific injuries placed the offence in the highest level of objective seriousness. Reference was made to R v Mitchell and Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94, where a revenge attack of numerous punches and kicks had left the victim with brain damage, reduced to a vegetative state. The principal offender had been sentenced to twelve years imprisonment with a non-parole period of seven years. Her Honour noted, however, that the maximum penalty for that offence in New South Wales was twenty-five years imprisonment, compared with a maximum penalty in the Territory of fifteen years imprisonment. Her Honour further noted that, in that case, Howie J emphasised that the nature of the injury to the victim is central to the determination of the objective seriousness of the offence.

57. Her Honour also noted that the use of a knife was an aggravating feature and in the confined space of the Shop, Mr Dyer, once the attack had commenced, had no means of escape.

58. As submitted by Mr Islam's counsel, her Honour noted that the offence was not premeditated, as Mr Islam's intention on entering the Shop was to have words with Mr Dyer. Additionally, the attack was of short duration and finished, unlike in R v Mitchell and Gallagher, because Mr Islam desisted, not because of third party intervention. Further, Mr Islam himself rendered some assistance to Mr Dyer. As a result, her Honour, considered that it did not reach the highest level submitted by the Crown.

59. The question of remorse was also addressed by her Honour because of the competing submissions. The Crown referred to the self-justifying statements made to police initially, the fact he had pleaded not guilty and that he continued to justify his actions to the author of the Pre-Sentence Report. Mr Islam's counsel, on the other hand, referred to a number of expressions of remorse both in his evidence during the trial and in the Pre-Sentence Report. Her Honour concluded that Mr Islam had shown genuine remorse. It had also to be noted that he was acquitted of the most serious charge to which he plead not guilty, that of attempted murder. Her Honour indicated she was prepared to give Mr Islam the benefit of his stated remorse.

60. The question of deterrence and rehabilitation was also addressed by her Honour, a complex matter, because of a similar assault Mr Islam had committed three months before this offence. Her Honour noted that Mr Islam had never been to prison before and noted the Pre-Sentence Report assessment of an unpredictable element in the assessment of his risk of re-offending.

61. Her Honour noted that there were structured options for Mr Islam on release and considered that he would "need a long period of supervision and assistance in order to ensure that there is no further offending". Hence, her Honour considered that the parole period (inadvertently referred to in her Honour's reasons as the non-parole period) would be a greater proportion of the sentence than would otherwise have been the case.

62. Accordingly, her Honour imposed the sentence of nine years imprisonment, commencing on 4 July 2009 to take into account pre-sentence custody with a non-parole period of four years and six months.

63. Mr Islam was not legally represented in respect of his appeal against sentence.

65. The first complaint was that her Honour failed to consider or not give enough weight to the question of provocation, required to be considered under s 33(1)(q) of the Crimes (Sentencing) Act, which requires a sentencing court to take into account, so far as relevant or known, "the degree to which the offence was the result of provocation, duress or entrapment."

66. Mr Islam pointed out that her Honour had found "real grounds" for Mr Islam's belief that his property was vandalised or stolen and that Mr Dyer, at the very least, knew who was involved in that. He also referred to the opinion of Dr Allnutt that Mr Islam's ability to exercise control was compromised "by the provocative circumstances he faced".

67. The second complaint was that the non-parole period was too long. He clearly read her Honours reference to a longer non-parole period (see [61] above) as it was inadvertently misstated rather than as was intended.

68. He submitted that her Honour noted he had been "a model prisoner" and that, as prison is "an environment that has considerable higher violence and risk of violence than the general community", the period should be shortened.

69. His third point was that his subjective circumstances were given no or insufficient weight and referred to s 33(1)(m) of the Crimes (Sentencing) Act, namely the "cultural background, character, antecedents, age and physical and mental condition of the offender" as mandatory considerations. He referred to the education he had completed in the AMC and his further plans and the completion of the Cognitive Skills Program.

70. The fourth matter raised was that Mr Islam said he has been the subject of a Provisional Order for Restitution to pay $30,000 which had apparently been made under s 54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT). He submitted that her Honour had given no or insufficient weight to s 33(1)(n) of the Crimes (Sentencing) Act which requires the court to take into account, where relevant and known, "the financial circumstances of the offender".

71. Finally, Mr Islam referred to the fact that he had sent a letter to the victim and his family and submitted that her Honour gave no or insufficient weight to s 33(1)(h) of the Crimes (Sentencing) Act, namely "an action the offender may have taken to make reparation for any injury, loss or damage, resulting from the offence".

72. The Crown cross-appealed against the claimed inadequacy of the sentence and, for the cross appeal, Mr Islam was represented by counsel. The principal matters put were as follows.

73. The first ground was essentially that the head sentence was inadequate having regard to the seriousness of the offence, the maximum penalty of fifteen years, the limited contrition of Mr Islam, the lack of compelling subjective circumstances and his prior criminal history, including a prior offence of assault occasioning actual bodily harm committed in similar circumstances.

74. The second ground was that the non-parole period was too short for the above reasons, notwithstanding the finding of her Honour that there was a need for Mr Islam to have a long period of supervision. It was submitted that it was a "non sequitur" that the necessary long period of supervision after release should dictate a shorter non-parole period.

75. The principles relating to Crown appeals against sentence were helpfully set out by Charles JA, with whom Winneke P and Hayne JA (as his Honour then was) agreed, in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522, after a careful and extensive consideration of the authorities. Those principles are summarised as follows:

(i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.

(ii) Occasions may arise for the bringing of a Crown appeal:

(a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;

(b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;

(d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected;

(e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and

(f) to ensure, so far as the subject matter permits, that there will be uniformity of sentencing.

(iii) When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat lesser than the sentence it considers should have been imposed at first instance.

(iv) An appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.

76. The third principle, however, no longer represents the law in this Territory. See R v Chatfield [2012] ACTCA 32 at [72]. Apart from this modification, these principles have been approved in this Court in R v Eisenach [2011] ACTCA 2 at [8]- [10] and R v TW (2011) 6 ACTLR 18 at 20; [4], 29; [71] and 38; [120].

77. General principles applicable to all appeals against sentencing must also be borne in mind. Those principles include the following considerations. The Court is not hearing the matter anew and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. The Court only interferes if there is an error of fact or law by the sentencing judge of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5, or where there is such manifest inadequacy or excess in the sentence as to indicate error.

78. Mr Islam asserted that her Honour had failed to give any or sufficient weight to the factors he identified.

79. The complaint of insufficient weight in respect of each of these matters is, in essence a complaint that the sentence was manifestly excessive. It is not the function of an appellate court on a sentencing appeal to try to assess the weight given to individual factors. Such an approach is inconsistent with the approach to sentencing now mandated by the High Court, namely that sentencing is the process of arriving at a single result which takes due account of all the relevant factors, namely to arrive at an "instinctive synthesis" as set out in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611; [75].

80. As Button J, with whom Hoeben JA and Johnson J agreed, said in Hanania v The Queen [2012] NSWCCA 220 at [33]:

It seems to me that a ground asserting that a particular feature has not been given sufficient regard or sufficient weight by a sentencing judge is, in truth, a particular of a ground asserting that the sentence is manifestly excessive. That is because the ground accepts that some regard or weight was given to the factor, but asserts that it was insufficient. It seems to me that the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed. Such an approach leads to considerations of outcomes, not process.

81. As to the ground that a sentence is wrong because it is manifestly excessive (as also with the ground that a sentence is manifestly inadequate), this Court has set out, in R v Campbell [2010] ACTCA 20 at [32]- [35], the task faced by an appellant, as follows:

In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):
1. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
2. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

82. The approach was followed in R v TW at 27; [60] where it was also noted that the appellant is required to provide an insight into current sentencing standards by which the sentence could be judged, namely "the collective wisdom of other sentencing judges", referred to by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 at 460. This can sometimes be achieved when a court of criminal appeal has received a conspectus of comparable sentences, identifying relevant characteristics, as in Rama v The Queen [2006] ACTCA 25.

83. Thus, as Gaudron, Gummow and Hayne JJ said in Wong v The Queen at 605; [58]:

Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.

84. Their Honours emphasised that what is important is not the result for a sentence does not of itself give rise to a binding precedent; their Honours added (at 605; [57]):

What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised either generally or in particular kinds of case. It is, therefore, fundamentally wrong to speak of 'quantitative aspects' of discretionary decisions. [footnote omitted].

85. The claims of specific error by Mr Islam, namely that Mathews AJ gave no weight to certain factors are addressed below.

86. As to the question of provocation, her Honour made specific reference to the fact that there were "genuine grounds for [Mr Islam's] belief that his property had been vandalised and stolen" and that at the time he was being persecuted. There is no reason to doubt that, insofar as there was some, very limited, role of provocation in the offence, her Honour clearly took that into account.

87. Her Honour also described the educational studies being pursued by Mr Islam and described him as "a very intelligent man". She quoted from the reference written by Mr Paul Cooper, Manager of the AMC Education Unit which also appears to be the source of some of her information, as indeed was the other reference from Mr Arthur Huggins, Manager of AMC Education and Training. Her Honour considered the Pre-Sentence Report, noting the complex assessment of his risk of re-offending. She noted he had been "described as a model prisoner". All the matters relating to Mr Islam's personal circumstances which he has raised were taken into account.

88. Mr Islam referred to the Provisional Order for Restitution. There is no material in the Appeal Papers to suggest that her Honour was aware of the Order. It is made only after conviction (s 54(1) of the Victims of Crime (Financial Assistance) Act). There is no evidence before the Court as to when it was made. If a copy was not tendered to her Honour, then s 33(1) of the Crimes (Sentencing) Act did not require her to take it into account. In any event, it is not relevant unless it has been complied with and nothing was placed before us on appeal to that effect.

89. Mr Islam referred to a letter he had written to Mr Dyer and his family. The letter was not in evidence. There was nothing in the Appeal Papers to suggest that her Honour had seen it or a copy of it or was made aware of it. In any event, it is not relevant to any issue about reparation for the injury, loss or damage as referred to in s 33(1)(n) of the Crimes (Sentencing) Act.

90. There is no substance in the claims of Mr Islam to any specific errors alleged to have been made by her Honour.

91. As to the challenge of manifest excess, that her Honour gave insufficient weight to these factors, the ground cannot be made out. None of the matters to which Mr Islam referred would have significant mitigatory effect. That he felt provoked did not justify the vicious and serious response. The Courts have always regarded the use of knives as seriously aggravating an offence. See, for example, Ashdown v The Queen [2011] VSCA 408 at [20]; R v Jajou [2009] NSWCCA 167; (2009) 196 A Crim R 370 at 386; [72]. The education of Mr Islam and his prospects of reform led her Honour to impose a lenient non-parole period, though requiring longer supervision because of the particular factors personal to Mr Islam, especially his mental health. The other matters were not before her Honour and would not have led to a lesser sentence in any event.

92. The Crown submitted that her Honour's sentence was manifestly inadequate, both as to the head sentence and as to the non-parole period.

93. The Crown submitted that the maximum penalty provided for the offence, namely fifteen years imprisonment was the starting point. Such may be accepted. As the High Court has observed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at

... careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

94. The Crown further referred to the caution of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478, in relation to the second principle referred to by the Court, as follows:

The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen [(1987) [1987] HCA 46; 163 C.L.R. 447, at pp. 451-452]. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposed the maximum penalty offends this principle only if the case is recognizably outside the worst category.

95. Of course, the sentence must, using the yardstick of the maximum penalty, be proportionate to the gravity of the offence as submitted by the Crown but also must have regard to the circumstances of the offender. As McHugh J noted in Markarian v The Queen at 389-9; [83], "a judge may not impose a sentence that is greater than is warranted by the objective circumstances of the crime." See also Balthazaar v The Queen [2012] ACTCA 26 at [55]- [58].

96. Thus, the objective seriousness of the offence is a key consideration and will have limiting consequences for the sentence, both limiting the severity of the penalty to that which is no more than proportionate, but also ensuring that undue leniency is not accorded an offender. In this case, for example, it would be inconceivable that a non-custodial penalty would be justified.

97. The process is, however, not completed by this assessment. Again, Gaudron, Gummow and Hayne JJ made the point in Wong v The Queen at 612; [76]-[77] as follows:

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.

The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.

98. The Crown also referred to Mr Islam's criminal history, noting that, in accordance with Veen v The Queen (No 2) at 477-8, it is to be taken into account, but not so as to lead to a sentence that is disproportionate to the gravity of the offence. It is important, too, that an offender not be punished twice for past offences. The history can, however, show that the instant offence is not an "uncharacteristic aberration" and whether there is a continuing attitude of disobedience to the law. Its relevance is to more than just any claim to leniency.

99. The relevant offence is that of assault occasioning actual bodily harm committed about three months earlier than the instant offence. Her Honour referred to it in the following terms, which neither party submitted was inaccurate:

Much more significantly in relation to these proceedings, on 28 April 2009, he was convicted of a charge of assault occasioning actual bodily harm. The offence itself took place on 13 April, less than three months before the current offence.

At that time, the offender was employed by the ACT Department of Parks, Conservation and Land. There had apparently been some personality clashes between the offender and the victim, a co-employee. In addition, complaints had been made about the offender's work performance and he believed that the victim was responsible.

One morning the offender approached the victim and with no provocation whatsoever, proceeded to punch him heavily in and around the face. Another co-employee intervened and the offender desisted, but not before striking the victim twice more whilst he was lying on the ground causing facial injuries.

The offender then left the room and waited outside for the police to arrive. He later pleaded guilty to the charge of assault occasioning actual bodily harm and was fined $1000.

As the Director of Public Prosecutions, Mr White points out, there is a certain resonance between the offender's actions on this earlier occasion and the circumstances of the current offence.

100. Her Honour was well aware of that offence and its significance..

101. Emphasis was placed in the respondent's submissions as to the "horrific nature of the injuries suffered". There is no doubt that the extent of the injuries suffered by a person the victim of violence is an important factor determining the seriousness of an offence and the level of appropriate punishment. As Howie J, with whom Giles JA and Fullerton J agreed, said in R v Mitchell and Gallagher at 101; [27], "[t]he nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence".

102. Her Honour was well aware of the injuries suffered and referred to them in some detail. She cannot be said not to have taken them into account or failed to understand them. No complaint was made of the statement by her Honour of the nature and extent of the injuries. These were, however, significantly less than those inflicted on the victim in R v Mitchell and Gallagher.

103. Her Honour found the offence to be "well above the mid line of objective seriousness for offences of this nature". This assessment was challenged, the Crown submitting that the offence was in the worst category. While it is important not to use "ingenuity ... [to] conjure up a case of greater heinousness" (see [94]), there were relevant matters that made it somewhat less than the worst category: there was no premeditation, the attack was of relatively short duration, it ceased of Mr Islam's own accord, he provided assistance to Mr Dyer, also urging by-standers to call an ambulance, he awaited the arrival of the police and admitted to them on arrival stabbing Mr Dyer and there was some basis, her Honour found, for Mr Islam believing that Mr Dyer at least knew about the vandalising and stealing of his property.

104. Her Honour's assessment of the objective seriousness of the offence involved no error.

105. That, of course, is not the end of the matter; as noted in the passage from Wong v The Queen quoted above (at [97]), there are other relevant factors that must also be considered before the sentence is arrived at through the instinctive synthesis of all relevant factors.

106. The second element which was challenged by the Crown was the finding by her Honour that Mr Islam had shown remorse. Her Honour addressed that directly and evaluated the competing submissions of Crown and defence counsel. No error in her Honour's consideration of the issue, other than the result, was identified by the Crown.

107. The Crown pointed to the plea of not guilty. It is true that this required Mr Dyer to give evidence. As her Honour noted, however, Mr Islam was acquitted of the more serious charge, ameliorating this complaint to a very great degree.

108. The Crown further suggested that Mr Islam's comment to the author of the Pre-Sentence Report that Mr Dyer owed him answers also showed he had no remorse. Given her Honour's findings that there was some basis for Mr Islam's belief in Mr Dyer's knowledge of or involvement in the vandalising or theft of his property, this is not inconsistent with remorse. Indeed, it was consistent with the Crown case and it was not suggested to Mr Islam in cross-examination that he was lying about this or mistaken. There is, thus, no inconsistency in Mr Islam considering that Mr Dyer was required to say what he knew about those matters and expressing remorse at the terrible injuries he had inflicted upon him. The same applies to the statements made after the crime that he was "sick of" Mr Dyer and had "had enough" of his actions.

109. Her Honour was not in error in finding that Mr Islam showed remorse. Her Honour continued, however, saying:

Accordingly, I propose to give the offender the benefit of his stated remorse. However, given the other circumstances of this case, this cannot be regarded as a major mitigating factor on sentence. General deterrence is of course always a relevant factor in relation to offences of this nature.

110. This appears to be consistent with the Crown's submissions and discloses no error.

111. Finally, the Crown submits that none of the subjective circumstances of Mr Islam could "excuse his conduct or even explain it". These are, of course, not the only ways in which an offender's subjective circumstances are relevant to sentence. All relevant considerations must be taken into account.

112. The level of prior offending differentiates offenders, with greater prior offending often pointing to the need for greater specific deterrence. Mr Islam's record consisted largely of traffic offences. The prior violence offence was concerning, but the court had only imposed a fine, marking its view of the offence.

113. In particular, the Pre-Sentence Report stated that, despite "an unpredictable element in an assessment of ... risk of re-offending, ... his current presentation gives an indication of a low risk of further offences". There was no Crown challenge to that assessment.

114. There is no substance in the Crown's submission that her Honour placed too great a weight on the subjective features of Mr Islam.

115. The Crown referred to two authorities which it said showed matters of principle that were relevant. Reference was made to R v Mitchell and Gallagher and R v Cassidy [2008] ACTSC 13.

116. It was, however, not entirely clear what principles were sought to be derived from those authorities. In R v Mitchell and Gallagher, the Crown referred to the passage which set out the principle that the seriousness of the injury inflicted was a most important factor in determining the gravity of the offence and the appropriate sentence, as noted above (at [101]).

117. The result seemed of significance to the Crown. Reference was made to the comment of Howie J that, had there not been a plea of guilty, the head sentence would have been sixteen years imprisonment. The maximum in that case, however, was twenty-five years imprisonment. The proposed sentence for a plea of not guilty was, therefore, 64% of the maximum. Here, her Honour's sentence was 60% of the maximum. Insofar as this is a relevant criterion, no error is shown.

118. In the Crown's submissions, it is suggested that R v Cassidy is "in terms of sentencing precedent, the most useful". The rationale for that submission is not clear. The offence there was manslaughter. The victim was a toddler who was killed when hit repeatedly with a pan, in a prolonged assault, preceded by other abuse. The accused there was in a position of trust and authority. There was a delay in seeking medical treatment.

119. The acts were described by the learned sentencing Judge as "cowardly and merciless". The offender was suffering from a bi-polar disorder. The offender had an abused childhood and a history of drug and alcohol abuse. He had a short criminal history. He pleaded guilty at an early stage.

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