Korovou v R

Court of Criminal Appeal (NSW)|2020-11-25|Before: Hoeben CJ, Bellew J, Wright J

Solicitors: Inner West Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2019/67102 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 3 April 2020 Before: Noman SC DCJ File Number(s): 2019/67102

Judgment

HOEBEN CJ at CL: I agree with Wright J and the orders he proposes.
BELLEW J: I agree with Wright J.
WRIGHT J: The applicant, Mr Pita Korovou, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentences imposed on him by Noman SC DCJ on 3 April 2020 in the District Court at Sydney.

Background

The applicant was arrested on 28 February 2019 and was charged with a number of offences relating to conduct that occurred on 20 February 2019.
On 5 November 2019 at Central Local Court, the applicant pleaded guilty to one charge of detaining in company with intent to obtain advantage occasioning actual bodily harm and one charge of detaining in company with intent to obtain advantage. He was committed to the District Court for sentence. The applicant also asked that an offence of robbery armed with an offensive weapon be taken into account on a Form 1 under the procedure in s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act).
The sentence hearing took place before Noman SC DCJ on 3 April 2020, on which occasion the learned sentencing judge dealt with both the applicant and his co-offender. At the end of the hearing, her Honour delivered ex tempore remarks on sentence and imposed on the applicant the sentences set out in the table below. CAN/Seq Offence Sentence H…268 seq 1 Detaining Mr Yang in company with intent to obtain an advantage and occasioning actual bodily harm contrary to s 86(3) of the Crimes Act 1900 (NSW): maximum penalty 25 years' imprisonment 6 years, from 28 June 2019 to 27 June 2025, with a non-parole period of 3 years 8 months expiring on 27 February 2023 Taking into account on a Form 1 (H…268 seq 6): Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW): maximum penalty 20 years' imprisonment H…268 seq 2 Detaining Mr Lee in company with intent to obtain an advantage contrary to s 86(2) of the Crimes Act 1900 (NSW): maximum penalty 20 years' imprisonment A fixed term of 2 years from 28 February 2019 to 27 February 2021

These sentences yielded an effective head sentence of six years and four months commencing on 28 February 2019 and expiring on 27 June 2025 with an effective non-parole period of four years expiring on 27 February 2023.
The applicant has been in continuous custody since his arrest on 28 February 2019.
The applicant filed a notice of intention to apply for leave to appeal on 14 April 2020 and his notice of application for leave to appeal was filed within time on 16 September 2020.

Grounds of appeal

The ground of appeal on which the applicant proposes to rely involved two aspects: 1. "The trial judge erred in failing to consider according to sentencing principle, the evidence as to the Applicant's mental health diagnosis of Post-Traumatic Stress Disorder"; and/or 2. "erred by failing to give adequate reasons for decision as to how the matter was taken into account and considered".
The ground requires the learned sentencing judge's remarks on sentence to be considered in some detail.

The remarks on sentence

Noman SC DCJ commenced her remarks by noting the offences for which the applicant and his co-offender brother appeared for sentence and the maximum penalties for the relevant offences, including the offence on the Form 1.
It was recorded that the applicant had pleaded guilty in the Local Court and that her Honour intended to apply a reduction of 25% to the otherwise appropriate sentence.

Findings concerning the offending

The sentencing judge's findings concerning the circumstances of the offending were based on the statement of agreed facts before her Honour. It was found that the instigator and main participant was Dean Contos. The principal victim was Mr Yang and the secondary victim, Mr Lee, was present to assist Mr Yang to clean Mr Contos's home, as Mr Yang had done on a number of occasions previously.
In summary, Mr Contos accused Mr Yang of stealing certain jewellery from him and demanded the return of the property or the payment of $10,000. Mr Contos recruited the applicant and his brother to assist him to obtain the property or payment. It was accepted that each offender was liable for the acts of the others. Initially, Mr Yang said that he did not steal anything. However, after being detained and beaten, including by the applicant and his brother, Mr Yang lied and said that he had stolen property and he agreed to pay the $10,000 sought.
It was found that the incident had been planned by Mr Contos, who lured Mr Yang to Mr Contos's apartment under a false pretence, arranging for Mr Yang to attend the apartment purportedly to clean at 4:15 to 4:30 PM on 20 February 2019.
On that day and prior to making this arrangement with Mr Yang, Mr Contos had been in contact with the applicant and arranged for him and his brother to attend the unit, which they did at 3:25 PM. When they arrived, the applicant and his brother assisted Mr Contos to prepare a room with a tarpaulin, chair, cable ties, a balaclava or beanie and a suitcase.
The victims arrived at 4:20 PM and Mr Contos opened the door armed with a baseball bat. Almost immediately, Mr Contos hit Mr Yang multiple times with the bat. The applicant and his brother entered the room during this assault. The applicant's brother commenced hitting Mr Yang as well. Even after Mr Yang fell to the ground, Mr Contos continued hitting him with the bat and while on the ground, one of the offenders removed $400 from Mr Yang's pocket. This conduct was noted to constitute the robbery whilst armed with an offensive weapon offence on the Form 1.
The secondary victim, Mr Lee, was directed to kneel in the corner of the room. The applicant said "Give us everything you have". Mr Lee only had a cleaning cloth.
Meanwhile Mr Contos demanded property from Mr Yang while he was being hit and the applicant and his brother tied his wrists with cable ties. One of the three offenders took Mr Yang's phone, made him unlock it and reviewed photos on it. There was a comment made about the victim's "beautiful kid and wife" and a threat about not seeing them again. Mr Yang was struck again. The applicant took Mr Yang's car keys and obtained Mr Lee's phone from the car.
Mr Contos then obtained a knife and held it against Mr Yang's chin and moved it across his neck. He threatened that if the money was not paid he would place Mr Yang in the suitcase. At this point Mr Yang lied and said that he had taken jewellery. One of the three offenders choked Mr Yang whilst another held his nose so that he could not breathe and he lost consciousness for an unknown period of time. Mr Contos made Mr Yang admit on a recording twice that he stole from, and would repay, him. There was discussion about taking Mr Yang to his house and Mr Contos placed the balaclava or beanie on the victim and tape over his mouth but, after Mr Yang said that he could not breathe, they were both removed. Mr Contos then tied Mr Yang's feet with cable ties and he was pushed down and rolled up in the tarpaulin. Mr Contos then threatened Mr Yang that if he did not get the property or money, he would be placed in the suitcase and thrown in a river. After this, Mr Yang was further assaulted and choked. Mr Contos obtained another knife or scissors which were held to Mr Yang's jaw and he used the baseball bat to strike Mr Yang to the genitals. Mr Contos threatened Mr Yang that he would be killed. The cable ties were then removed from Mr Yang and he was driven to his home in Mr Contos's van.
By this time, Mr Yang and Mr Lee had been in the apartment for two hours and 27 minutes.
The applicant's brother accompanied Mr Contos while the applicant drove Mr Yang's car to the same destination.
Mr Yang was directed to contact his wife to obtain $10,000 which he did. His wife was concerned and contacted the police.
The applicant and his brother took Mr Yang to his door to obtain the money but Mr Yang told his wife in Korean not to open the door and call the police but said in English to open the door and mentioned the $10,000. His wife did not open the door. The applicant and his brother returned Mr Yang to Mr Contos's van and he was driven away.
Eventually at about 9:05 PM both victims were released, having been detained for four hours and 45 minutes. Her Honour noted that this was a long period of detention during which there were sustained physical assaults and repeated threats. Even though principally directed at Mr Yang, Mr Lee witnessed these acts and fear would have operated on both victims.
It was observed that although he was not particularly tall or heavy, the applicant was muscular in shape and his brother was a former professional rugby league player and would have presented as intimidating based on his size. Her Honour was satisfied that that the three offenders all participated, although in varying ways. In particular, it was found that the applicant and his brother acted to increase the level of intimidation and each performed certain acts although the person responsible for other acts could not be nominated.
Her Honour accepted that Mr Yang suffered multiple broken ribs, chest pain, bruising, abrasions and swelling, which were significant and fell within the overall mid-range for injuries amounting to actual bodily harm.
The sentencing judge noted that the applicant told the author of the sentencing assessment report that he was involved for financial gain. The extent of any benefit promised to the offenders was not known but it was held that the reason advanced for involvement did not serve to moderate the seriousness of the offending.
Noman SC DCJ noted that there was no evidence of any planning undertaken by the applicant or his brother but both maintained their involvement in, and neither sought to remove themselves from, what transpired. They were present and immediately assisted. Both accepted that they were aware of their role prior to the offending. The applicant was recorded in his sentencing assessment report as saying that he intended only to help his "associates" scare the victim but this explanation did not detail how it was intended to do so. Her Honour found that the evidence did not allow for a determination as to precisely when the applicant became aware of the presence and intended use of weapons and restraints but both the applicant and his brother continued their involvement after they became aware of the use of weapons, restraints and threats.
As to the roles of the applicant and his brother, the sentencing judge said: "Although there are differences as to who used violence and who made threats, in the context of this offending those variations do not warrant distinguishing between the conduct of these two. They are equally complicit. There is a marked difference between the two offenders [the applicant and his brother] and the co-accused [Mr Contos]. Even though there is no evidence either offender was involved in any planning, both readily became involved based upon the impetus to recover stolen property, and both continued and demonstrated a sustained involvement over hours and at different locations. Both had ample opportunity to reflect on their involvement and withdraw. I accept that both had used substances at the time and this may inform their lapse of judgement. It does not ameliorate the offending, or lessen moral culpability."
The applicant was identified by his calls to Mr Contos and from the CCTV footage from the apartment. Upon his home being searched, items of clothing worn during the offence were also located. The applicant was arrested on 28 February 2019 and, on that occasion, denied knowledge of the offending or being present in the apartment.

Objective seriousness

In relation to the offence of detaining in company with intent to obtain an advantage involving Mr Lee, sequence 2, Noman SC DCJ took into account the period of confinement, the limited interaction with Mr Lee, what he was exposed to during the period of detention and the advantage sought. In particular, it was observed that while Mr Lee witnessed some but not all of the assaults upon Mr Yang this must have increased his concern for his own well-being. In her Honour's assessment these factors supported her determination that this was "a moderately serious offence but considerably less serious than the main offence [sequence 1]".
As to the offence of detaining in company with intent to obtain an advantage involving the occasioning of actual bodily harm involving Mr Yang, sequence 1, her Honour noted the different and additional factors of the sustained assault and threats to him and the injuries amounting to actual bodily harm. The sentencing judge was also mindful of the anguish occasioned to his wife after she became aware of the incident. These factors in combination supported her Honour's assessment that for this offence "the seriousness was mid-level".

Aggravation

At the time of the offending, the applicant was subject to conditional liberty in that he was on bail for a number of offences including assault occasioning actual bodily harm and assaulting police. This bail had been entered on 8 February 2019, that is 12 days before the offending for which he was being sentenced. Her Honour noted that a breach of conditional liberty was a matter of aggravation as it reflected an abuse of the freedom granted by taking the opportunity to offend further.

Prior history and character

The applicant had two prior traffic matters dealt with pursuant to s 10 of the Sentencing Procedure Act and had pleaded guilty to the two offences for which he was on bail. Her Honour regarded him essentially as a person with limited prior criminal offending.
It was noted that the applicant admitted to periods of illicit drug use but the sentencing judge expressly did not use this to limit her determination on good character, concluding that his lack of antecedents and prior good character operated in his favour and permitted some leniency. It was noted that the applicant had not had any internal misconduct charges whilst in custody.

Youth and rehabilitation

The sentencing judge observed that the applicant was relatively young, being 21 at the time of the offending, and that he was facing his first custodial sentence. In these circumstances and despite the serious offending, her Honour considered that this allowed "for some elevated consideration of rehabilitation as a sentencing principle."

Subjective case

It was noted that the applicant's father was indigenous and committed suicide soon after the applicant was born. His mother was Fijian but was not active in his upbringing and had substance abuse issues. The applicant was raised by Fijian relatives.
The sentencing judge recorded that the applicant wrote to the Court and described his conduct as a "severe lack of good sense and judgement" as compared to an otherwise relatively law-abiding existence and said that he took full responsibility for his actions, blaming them on drugs. In this letter, the applicant described his childhood as "very loving and close, although strict".
It was noted that the applicant has no dependents, but he has a girlfriend and his family indicated there was both continued family and community support for him.
Her Honour then referred to the numerous references which supported the applicant. One from the gaol chaplain referred to the religious courses completed by the applicant and those which he continued to study. The chaplain also referred to the offender accepting his drug and alcohol addiction, his anger issues and noted his plans to undertake courses to address those matters.
It was noted that the applicant's community pastor had been involved with him for over 10 years and he mentioned the applicant's deep sense of remorse.
Noman SC DCJ referred to the applicant's girlfriend attesting to his commendable character and describing his being raised "by an amazing family and raised to be caring and loving."
Her Honour also noted that the applicant's previous employer referred to him as a good person and solid worker but said that he did not have "an easy upbringing".
It was recorded that the applicant's adoptive parents jointly wrote of "their harsh discipline" and said that the applicant battled his problems and had outbursts, but they considered this conduct to be a poor decision that would not be repeated.
Another reference referred to by the sentencing judge was from the mother of the co-offender's girlfriend who described the applicant as loving, kind and non-violent who would be unlikely to reoffend.
The applicant's general practitioner for over 23 years also authored a reference which addressed the difficulty in childhood arising out of the applicant's biological mother's drug addiction and father's suicide. The doctor opined in his reference that the applicant suffered identity issues particularly as he was not made aware he was adopted until his teenage years.
Her Honour noted that the applicant had been employed at times but was unemployed at the time of his arrest and had been for a period of approximately three months. He had earlier commenced, but not completed, an apprenticeship as a plumber and in his letter to the court he wrote of desiring to complete this study. The sentencing judge also noted that the applicant was employed in custody in a trusted position in the metal shop.
Next, her Honour referred to the sentencing assessment report and noted that while the applicant attributed his conduct to the influence of illicit substances, he nonetheless said that he accepted responsibility for his conduct. He said that he was to be paid for his assistance and indicated that he regretted his actions.
In his letter, the applicant also wrote of the pain to others including the victim's family and her Honour accepted that the remorse he expressed was genuine.
The sentencing judge also referred to the psychological report by Ms Brigida who found that the applicant "was to be considered against the complex history of trauma". It was noted that the psychologist was informed by the offender that he commenced using substances at 13, mainly alcohol and cannabis but escalated to MDMA at 14 and then ice and cocaine by 16. It was recorded that Ms Brigida referred to the "understood link between trauma and substance abuse" and that she said that the offender used substances as an avoidance strategy. Her Honour recorded that the applicant told the psychologist he was not aware that those who raised him were not his biological parents until he was 11 and that "[h]e indicated this discovery caused trauma". Finally, it was noted that the psychologist opined that the offender met the criteria for conduct disorder and PTSD but some diagnoses were deferred based on the applicant's age whilst PTSD was said to require therapeutic intervention.
Her Honour said that in considering personal deterrence she took into account that in the sentencing assessment report the applicant said he was quick to anger and was unable to make positive choices whilst angry and that he was also unable to regulate his emotions whilst using drugs, a concern reinforced by the psychologist. In addition, it was noted that in the sentencing assessment report, the applicant was assessed as falling in the medium risk of reoffending. It was also said that he should be referred for alcohol and drug assessment and intervention, mental health services for assessment and intervention, the EQUIP program and interventions to address his antisocial associations.
After dealing with issues relating to the applicant's co-offender brother, the sentencing judge then turned to considerations of parity, ultimately concluding that both offenders should receive the same penalty. It was noted that both experienced "disadvantage". In the applicant's case this was found to be that he had "a strict but loving home life. His discovery of his true parentage caused things to unravel." Her Honour expressly found that this adversity and its likely correlation with the offending would result in amelioration to the sentence. It was also accepted that the applicant resorted to substance abuse to alleviate aspects of childhood trauma and that he suffered poor judgement attributable to substance abuse.
The sentencing judge referred to and recognised the harm done to the victim and the community and accepted the importance of general deterrence and denunciation as important considerations. It was found that the applicant's prospects of rehabilitation and of not reoffending were optimistic and her Honour noted that despite adversity the applicant had managed to present as generally law-abiding until this incident. It was expressly found that personal deterrence had a continuing but limited role to play.
Her Honour accepted that only a sentence of full-time imprisonment would properly address the criminality involved. Although both offences occurred during the same period, the fact that there were separate victims and that the sentence for the more serious offence would not encapsulate the criminality of the less serious offence required a component of accumulation.
The sentencing judge took into account that the applicant would require assistance with mental health, impulsivity and substance abuse issues and that an extended period of supervision upon release would be beneficial. It was also taken into account that unusual hardship would be experienced by being denied visits during the COVID-19 pandemic. In these circumstances, her Honour made a finding of special circumstances but said that this would require only a relatively modest adjustment.
On these bases, the sentences referred to above were then imposed and it was noted that the overall effective sentence of six years and four months with an overall non-parole period of four years yielded a ratio of 63%, thus giving effect to the finding of special circumstances.

Was there a failure to consider according to sentencing principles the applicant's diagnosis of PTSD?

The first aspect of the applicant's ground of appeal was the contention that the sentencing judge had failed to consider, "according to sentencing principles", the evidence of the applicant's diagnosis of PTSD.

Submissions

The applicant contended that there were essentially three ways in which mental illness could impact on the sentencing process, where it is shown to be causally related to the commission of the offence: 1. it may reduce the moral culpability of the offender; 2. it may indicate that the offender is an unsuitable vehicle for the application of the principle of general deterrence; or 3. it may mean that a prison sentence will "weigh more heavily" on that offender than it would on others.
The applicant's submissions acknowledged that whether the presence of mental illness would attract such an approach depended on the particular circumstances of the case. It was submitted that the diagnosis of PTSD was used to increase the weight given to personal deterrence and was said not to have been properly considered because: 1. the aetiology of the condition was not properly appreciated because her Honour only referred to the trauma of discovering that he was adopted and not the trauma from physical abuse; 2. the question of the causative connection between the condition and the offending was not considered; 3. the impact of the condition on the weight to be given to general deterrence was not properly considered; and 4. the question of whether the applicant's time in custody would be more onerous was not considered.
It was also submitted that counsel for the applicant at first instance "perhaps seemed to misunderstand the aetiology of the PTSD and the certainty of the diagnosis" and it was for that reason that the submission to the sentencing judge was put no higher than that the applicant's "personal problems … may include PTSD". It was also contended that the Crown's submission in the sentence proceedings that there was no causal connection suggested between the applicant's mental illness and the offending was erroneous. It was then said that the fact that the issue of mental illness was inadequately developed in submissions at first instance did not justify this Court refusing to entertain the issue as a ground of appeal.
The Crown's submissions did not, in substance, involve any submission that the applicable principles were other than as contended for by the applicant. Rather, the Crown noted that no psychiatric evidence as to the applicant's mental condition was before the sentencing judge. Further, it was in effect submitted that the psychologist's opinion as to PTSD caused by exposure to physical violence in his childhood was founded upon the applicant's self-report of a strict upbringing, being hit and being scared, relayed in a single session with no other persons consulted by the psychologist. In addition, the Crown drew attention to the descriptions given by the applicant and others of the very loving and very close family in which he had been brought up and the fact that in his letter to the Court the applicant did not mention his ever being hit.
The Crown also contended that the psychologist did not assert in her report that the applicant's offending was causally related to his PTSD nor did she assert that the applicant's time in custody would be more onerous as a result of that condition.
Furthermore, the Crown submitted that there was no evidence before the sentencing judge that the applicant committed the offences because he felt threatened or because he became angry or otherwise lost control under the influence of alcohol and/or drugs. Attention was drawn to the fact that the sentencing assessment report included evidence that the applicant committed the offence for financial gain, as he was going to be paid for his assistance, while at the same time stating that the applicant also revealed that he was under the influence of illicit drugs at the time of the offences and when under such influence he was unable to regulate his emotions.

Consideration

The principles concerning sentencing of offenders who suffer from a mental disability were not in issue in this application. It is sufficient, therefore, to set out an extract from the judgment of Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [33]-[35] (M Adams and McCallum JJ agreeing) which summarised the relevant principles as follows: "33. This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: '[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4] It may reduce or eliminate the significance of specific deterrence ... [Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...' (internal citations omitted, italics added) 34. It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. 35. A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)." (emphasis in original)
A further explanation of the relevant principles was given by Simpson JA in Barbieri v R [2016] NSWCCA 295 at [53] to [55]: "53. Put shortly, that an offender suffers from a mental illness may be taken into account (in his/her favour) in any or all of three ways. It may be seen (where it is shown to be causally related to the commission of the offence) to reduce the moral culpability of the offender; it may indicate that the offender is an unsuitable vehicle for the application of the principle of general deterrence; and it may mean that a prison sentence will "weigh more heavily" on that offender than it would on others. These are well established principles and were spelled out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. (In truth, the first and second of these state essentially the same proposition: see the analysis by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [254]. The reason that general deterrence is accorded less weight is because the mental disorder reduces the offender's moral culpability. This, no doubt, was what the sentencing judge had in mind in [141] of the Remarks when he moved from his assessment of the applicant's moral culpability to the weight to be given to general deterrence.) 54. Conversely, by reason of a mental illness, an offender may present more of a danger to the community, which may, accordingly, call for greater emphasis on the principle of special deterrence. 55. Of course, much depends upon the nature and extent of the mental illness. Of particular importance in this case in relation to the assessment of moral culpability is the causal relationship (if any) of the applicant's mental disorder to the offending. Also of importance in this case is the likely progress in the future of the applicant's mental illness. It is therefore necessary to examine in more detail the psychiatric evidence."
It can be noted that in the present case there was no psychiatric evidence at all nor was there any evidence as to the likely progress in the future of the applicant's PTSD. As to the applicant's future, the sentencing judge was satisfied that his prospects of rehabilitation and of not reoffending were optimistic and she noted that despite adversity the applicant had managed to present as generally law-abiding until this incident.
Counsel for the applicant on sentence addressed the applicant's mental condition in his written submissions as follows: "In the psychological report and to a lesser degree some of the references the same point is identified as the negative causative event in his personal development. He found out at 11 that he was not the biological child of his parents and he had effectively been open 'given away' after the suicide of his biological father. The confusion, emotional upheaval and anger that resulted have stayed with him. It appears that with[in] the confines of a street [strict] Fijian household his anger could have no physical outlet. However, his use of alcohol and drugs in dangerous quantities and frequencies seems to be causally connected to his childhood trauma. Psychological report (6.9) - (6.11). [The applicant] despite his personal problems that may include PTSD, has been productive and has a very limited criminal record" (emphasis added)
In addition, during oral submissions on sentence, it was not submitted that the applicant suffered from psychiatrically diagnosed PTSD, that it was caused by childhood physical abuse or that it was causally related to the offending.
Similarly, the Crown's written submissions on sentence included the following: "11.3 It is not understood there to be an assertion that [the applicant] has a psychiatrically diagnosed mental health condition, although it is noted that the psychological report details self-reports of significance in relation to anxiety and depression - albeit the conclusion appears to be that this might reflect largely on the offender's current incarceration (page 13). There are also hints at post-traumatic stress issues, and anger issues, with impulsive aggression. 11.4 Whilst again, something that may help explain the offending, it is submitted - given no causative link seems to be asserted of [or] established - that no mitigation can flow. Indeed it is an issue that may be taken to cut both ways. It may help to explain, but may also give the Court concern as to the risk of re-offending. The author of the report ultimately concludes that [the applicant] is in the moderate-high risk of reoffending. …".
In oral submissions the Crown did not address whether the applicant suffered from PTSD, whether it was caused by childhood physical abuse, whether it was causally related to the offending or whether and to what extent these matters should be taken into account in the sentences to be imposed. This is readily explicable since the applicant's case did not raise such considerations.
Thus, it appears to me that the applicant on this appeal is seeking, in effect, to put a different case from that put to the learned sentencing judge. It is now sought to be argued, in substance, that the applicant suffered PTSD as a result of the trauma of childhood physical abuse in addition to the trauma of discovering he was adopted, that there was a causal connection between the PTSD and the offending, that this should have reduced the weight to be given to general deterrence and there should have been a finding that the applicant's time in custody would be more onerous as a result of his PTSD.
It is well established that in sentence appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation and it is not the occasion for the revision and reformulation of the case presented at first instance: Zreika v R [2012] NSWCCA 44 (Zreika) at [81] (Johnson J, McClellan CJ at CL agreeing); (2012) 223 A Crim R 460; Lambkin v R [2020] NSWCCA 327 at [33] (Bellew J, Simpson AJA and Campbell J agreeing). In light of the matters raised above, it seems to me that the applicant on this application for leave to appeal is impermissibly attempting to revise and reformulate his case presented before the sentencing judge.
In Zreika at [81], it was also commented, however, that where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrated that there has been a miscarriage of justice arising from the plea and sentence, the Court should consider arguments that could have been, but were not, advanced below. An example of this being done is found in Griffin v R [2018] NSWCCA 259 at [37] and [38] where McCallum J (as her Honour then was) said: "37. In my respectful opinion, in circumstances where there was cogent evidence before the Court as to the applicant's mental condition, the sentencing judge was required to consider the significance of that evidence in assessing the applicant's moral culpability for the offence and in considering the objects of sentencing. That is consistent with the proper approach to sentencing described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], as follows: '[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.' 38. For those reasons, I do not think the fact that the issue was inadequately developed in submissions at first instance warrants our refusing to entertain the issue as a ground of appeal in this Court. Indeed, for this Court to refuse to have regard to the evidence of the applicant's mental state on that basis would perpetuate a serious injustice in the circumstances of this case: cf Zreika at [81]."
A significant problem for the applicant in the present case is that there was no "most compelling material available on the plea that was not used or understood". In my view, the submissions put by both the applicant and the Crown at first instance were plainly based on the material available and dealt with it appropriately and in sufficient detail. There was no significant material that was not used or understood. By way of example, at the sentence hearing: 1. there was no psychiatric evidence supporting a diagnosis of PTSD nor was there any such evidence supporting a diagnosis of PTSD because of childhood physical abuse; 2. the psychologist whose report was before the sentencing judge did not express the opinion that the offending had been caused by, or was causally related to PTSD, whether suffered by the applicant as a result of the trauma of childhood physical abuse or otherwise; 3. the psychologist's report included on a number of occasions the curious expression that "[i]t is the assertion of this author" that the applicant suffers from PTSD, which suggested that the psychologist might have been asserting an hypothesis rather than stating an expert opinion upon which the sentencing judge could rely; and 4. the evidence relied upon by the psychologist to support the contention that the "etiology" of the condition was "physical violence when younger" amounting to "physical abuse in his developmental years" was unsatisfactory in that it was limited to entirely non-specific allegations of physical violence only "significant to the point that he was very fearful of what would happen if he misbehaved" and notwithstanding the psychologist's only specific report of trauma was that he was "traumatized at age 11 with the discovery" that the person whom he understood to be his parents were not his biological parents. At this time, it does not appear that the applicant was physically punished since he managed to control his anger and not punch holes in the wall, as the psychologist recorded: "[the applicant] reported that his initial problem with controlling his anger first emerged after he was informed that his 'mother and father' were not his biological parents. He stated that he wanted to punch holes in the wall but was too fearful of the punishment to actually do so. He reported difficulty with controlling his anger since this time…" .
In these circumstances, I am not satisfied that there was, in this case, cogent evidence before the sentencing judge as to the applicant's mental condition that was not the subject of appropriate submissions or consideration.
Accordingly, I would not uphold any appeal, if leave to appeal were granted, on the basis of this first aspect of the applicant's proposed ground of appeal.

Did the sentencing judge fail to give adequate reasons for decision?

The second aspect of the applicant's proposed ground of appeal was that the learned sentencing judge erred by failing to give adequate reasons for decision as to how the applicant's PTSD was taken into account and considered.

Submissions

In substance, the applicant contended that the absence of express consideration in the sentencing judge's remarks of: the aetiology of the PTSD being childhood physical abuse; whether the offending was caused by the PTSD; the impact of PTSD on the weight to be given to general deterrence; and, whether the applicant's time in custody would be more onerous because of his PTSD, led to the conclusion that the reasons were inadequate.
The Crown effectively submitted that her Honour considered all of the relevant evidence and her remarks demonstrated that adequate reasons were given.

Consideration

Her Honour's remarks on sentence have been summarised above. That summary establishes their comprehensiveness, especially when viewed in the light of the applicant's case and the submissions made during the proceedings on sentence.
In particular, in relation to the applicant's mental health and PTSD, the remarks on sentence included, without attempting to be exhaustive, the following observations: 1. the applicant said that at the time of the offending he was suffering both depression and anxiety and he attributed his drug use to a form of self-medication; 2. the applicant had indicated that discovery at age 11 that those who raised him were not his biological parents "caused trauma"; 3. the psychologist referred to the link between trauma and substance abuse and that the applicant used substances as an avoidance strategy; and 4. the psychologist opined that the applicant "meets the criteria for conduct disorder and PTSD" and that the "PTSD [was] said to require therapeutic intervention".
As to the applicant's upbringing, her Honour referred to various descriptions given by the applicant and those who provided references including that his childhood was "very loving and close, although strict", he was "raised by an amazing family and raised to be caring and loving", the applicant "did not have an easy upbringing" and the fact that the applicant's parents wrote "of their harsh discipline of the [applicant]". Her Honour did not find, nor was she asked to find, that the applicant suffered physical abuse as a child as a result of the discipline he received in the family in which he was raised. Nor was she asked to find, nor did she find, that the PTSD asserted by the psychologist was so caused.
Furthermore, the sentencing judge: 1. when considering the objective seriousness of the offending, referred to and took into account that: 1. the applicant had engaged in the conduct for financial gain, had been aware of his role prior to the offending, had continued and had demonstrated a sustained involvement in the conduct over hours at different locations even though he had ample opportunity to reflect on his involvement and withdraw; and 2. the applicant had used illicit substances at that time and this may inform his lapse of judgment but this did "not ameliorate the offending or lessen moral culpability"; 1. expressly considered personal deterrence and took into account the sentencing assessment report and the psychologist's "concern about the [applicant's] control of his anger and … his elevated results from testing for both anger and antisocial personality and conduct problems" and her comments concerning his use of drugs as an avoidance strategy, which all led to her Honour concluding that: "Despite adversity, [the applicant] managed to present as generally law abiding until this incident. I accept that [the applicant] used illicit drugs. Personal deterrence has a continuing but limited role to play"; 1. took into account that the applicant had a "strict but loving home life" and that "the discovery of his true parentage caused things to unravel" and concluded that "[t]his adversity, and its likely correlation with the offending, will result in amelioration of the sentence"; 2. expressly considered general deterrence and denunciation and held that they were "important considerations for offences of detention for advantage whether specially aggravated or aggravated" in a context where it had previously been noted that the applicant engaged in the conduct for financial gain; and 3. expressly considered the onerousness of incarceration by reference to the matters raised in submissions and on the evidence.
Moreover and at the risk of being somewhat repetitive, it is clear from her Honour's remarks that appropriate consideration was given to the adversity faced by the applicant arising out of his childhood circumstances and his mental health and substance abuse issues. These matters were given appropriate weight in both the determination of the sentence, the non-parole period and the finding of special circumstances. In the circumstances identified by the sentencing judge it was open to regard general deterrence and denunciation as important considerations and to accept that personal deterrence had a continuing but limited role to play. It was expressly noted that the sentence would be the applicant's first time in custody and this together with his youth were taken into account favourably. There was no evidence that his PTSD would render the applicant's time in custody more onerous.
On a fair and not overly critical review of her remarks as a whole, the sentencing judge addressed the substance of all of the submissions put to her on sentence and the evidence relied upon by the parties. Her ex tempore reasons were comprehensive and her conclusions were adequately explained and open on the material before her. The applicant has not established that there was a failure to consider, or give reasons as to, any relevant sentencing principles, any aspect of the applicant's case as put to the sentencing judge or any of her Honour's conclusions.
For these reasons and if leave to appeal were granted, I would reject the applicant's proposed ground of appeal in so far as it relied on there being an absence of adequate reasons for her Honour's conclusions as to the appropriate sentence and her consideration of relevant aspects of the applicant's case.

Leave to appeal

As the ground of appeal was arguable, I would be prepared to grant leave to appeal but the appeal should be dismissed for the reasons already stated above.

Additional evidence sought to be led on the application for leave to appeal

At the hearing of the application for leave to appeal, the applicant sought to read an affidavit affirmed by him on 24 November 2020. Part of that material, including par 12, was only relevant if the Court found error and proceeded to consider resentencing. The remainder, in essence par 13, described in more detail the "harsh discipline" to which the applicant was subjected during his upbringing.
Because of its very nature, it was correctly accepted by counsel for the applicant that this evidence in par 13 was not "fresh" evidence, that is, evidence of which the applicant was unaware at the time of the sentence proceedings or evidence which he could not have discovered with reasonable diligence, see Lawless v The Queen (1979) 142 CLR 659 at 675; [1979] HCA 49. It should be seen as "new" evidence: see Khoury v R [2011] NSWCCA 118 (Khoury) at [107]; 209 A Crim R 509. Counsel for the applicant submitted that the Court will admit such evidence if necessary to avoid a miscarriage of justice. Nonetheless, counsel's "ultimate submission" in relation to the whole of the affidavit was: "that if the Court is of the view that the ground of appeal is made good and the Court then moves on to the resentencing process and the Court was mindful of the fact that the matter was not argued in the same way below and the Court arrived at the conclusion that it is necessary to have regard to that detail in order to do justice or to avoid a miscarriage of justice, then I submit the Court would receive para 13. I think para 12 is also objected to."
The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence on appeal: Khoury v R at [104] (Simpson J (as her Honour then was), Davies J and Grove AJ agreeing). Nonetheless, this rule is not absolute and if there has been error in the sentencing process, however caused, resulting in injustice, it ought to be remedied: Khoury at [105]. When considering whether to admit fresh or new evidence, the following principles stated in OGC v R [2016] NSWCCA 254 at [30] (Harrison J, Ward JA and R A Hulme J agreeing) should also be borne in mind: "3. The Court must use caution when exercising the discretion to receive fresh or new evidence and there must be proper grounds for it to do so: Khoury at [107]. 4. The Court should have regard to the circumstances of, and any explanation offered for, the non-production of evidence and whether the evidence had the potential to affect the sentencing outcome at first instance: Khoury at [121]. 5. In relation to new evidence, the mere fact that evidence available to the applicant at the time of sentencing was not put before the sentencing judge will not ordinarily be sufficient to establish a miscarriage of justice, even if the evidence could potentially have affected or influenced the sentence imposed on the applicant: [R v Fordham (1997) 98 A Crim R 359] at 377."
There was no explanation as to why the evidence in par 13 was not obtained earlier. Applying the principles set out above and given the evidence and submissions made in the sentencing proceedings, the contents of the psychologist's report, the sentencing judge's comprehensive consideration of relevant factors and her findings, including in particular that the sentence should be ameliorated in light of the adversity (which included the harsh discipline) suffered by the applicant during his upbringing, and the actual sentences imposed, I do not accept that there has been any error in the sentencing process or that, if there was error, that it has resulted in any injustice.
Finally, since the question of the resentencing of the applicant has not arisen in this case, the affidavit is not admissible for that purpose. For these reasons, the applicant's affidavit should not be admitted into evidence on this application for leave to appeal.

Proposed orders

Accordingly, I propose that the Court should order as follows: 1. The applicant has leave to appeal. 2. The appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2021

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