[2001] NSWCCA 353
Reberger v R [2011] NSWCCA 132
The Queen v Olbrich (1999) 199 CLR 270
Source
Original judgment source is linked above.
Catchwords
[2001] NSWCCA 353
Reberger v R [2011] NSWCCA 132
The Queen v Olbrich (1999) 199 CLR 270
Judgment (2 paragraphs)
[1]
Judgment
SIMPSON JA: I agree with Button J.
WALTON J: I agree with Button J.
BUTTON J:
Introduction
This is an application for leave to appeal against a sentence imposed by Judge Knox SC in the District Court of New South Wales at Sydney upon Daniel Lewin (the applicant). The sentence was imposed after the applicant had been found guilty after a trial by jury of one count of reckless wounding causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). The maximum penalty for the offence is imprisonment for 10 years, and there is a standard non-parole period of 4 years. His Honour imposed a head sentence of 3 years and 9 months, with a non-parole period of 2 years and 3 months.
Background
Neither the transcript of the evidence nor the exhibits at trial were placed before us. The following background is derived from the remarks on sentence, along with the agreed position of the parties.
Trial
On 27 December 2012, a social event took place in the western suburbs of Sydney. Many of the guests were affected by alcohol to varying degrees. A number of young people were present, including the applicant and his twin brother. Although they are not identical twins, they are very similar in appearance, and people often have difficulty telling them apart.
Present also was their father, who was very affected by alcohol. At some stage a comment was made about the untrustworthiness of the father of the applicant by another guest. In response, the applicant, then aged 18 years and 9 months, picked up an empty bottle of Jim Beam bourbon. He then smashed it into the face of the speaker, a young man aged 17 years. The victim immediately fell to the ground, lost consciousness, and vomited. Entirely as one would expect, he suffered serious injuries to his face, including extensive facial bone fractures near his right eye (which led to displacement of about 4.5mm), bruising that resulted in his right eye being swollen shut, and two broken teeth. As for permanent injuries, he suffered, amongst other things, a significant impairment to his vision.
The applicant took steps to flee the scene. Subsequently, on 13 March 2013, he engaged in a recorded interview with police in which he denied the offence and sought to throw suspicion onto others, completely falsely. Later again, he met the victim in a hotel, apologised to him, and assured him that he would plead guilty to the offence. Contrary to that assurance, he pleaded not guilty when arraigned. Furthermore, on the instructions of the applicant, his trial counsel put to the victim that he was mistaken as to which of the twins had admitted his guilt to him at the hotel.
Although he did not give evidence before the jury, the position of the applicant at trial was that, although many others at the party had been drinking heavily, he had not been. The defence case more generally was that it was possible that the assailant was someone other than the applicant.
Sentence
After the verdict of guilty was returned, the position of the applicant changed yet again. A psychological report was tendered on his behalf on sentence. It showed that he had told the psychologist that, in fact, he had been drinking heavily at the party. It also recorded a version of events at the party whereby the applicant had heard someone make threats against his intoxicated father before the offence. That version was, of course, contrary to the evidence at trial. The psychologist also recorded expressions of remorse for his crime on the part of the applicant. Separately, the report recorded that, the evening before the offence, the applicant had had a frightening interaction with a plain clothes police officer.
In the psychological report, the following paragraphs appear:
19. [The applicant] described a very limited drug and alcohol use history, saying he smoked Cannabis a couple of times when he was 17, and took "speed" occasionally at the age of 19. He said he has drunk alcohol from the age of 16, however usually only in small amounts. He said since the incident in 2012 he has found alcohol to be helpful to him when he is in social situations, saying "as soon as I have a couple of drinks I'm in a way better mood", and that without the help of alcohol "I can't talk one-on-one with people [when I go out]". He has not had any drug or alcohol counselling, or undergone detoxification or rehabilitation.
…
21. [The applicant] said on the night prior to the index offence he had been camping with a friend and his brother. It was raining that night so they spent the night in their cars. In the middle of the night they noticed a man in civilian clothes in the carpark. [The applicant] said "we thought he was robbing the cars, we were freaking out. He had a gun but he was in a suit". The incident escalated and [the applicant], his brother and friend were arrested, transported to Windsor Police station and detained. He said "we didn't tell our parents, we thought we could sort it out". This incident has been settled in court, with damages awarded to [the applicant] for wrongful arrest.
22. That evening [the applicant] attended a party during which the index offence took place. He said "I didn't sleep at all" prior to attending. He said he was drinking heavily, and that he heard the victim threatening his father all night. He said "I was scared they were going to bash my dad". He said his father was also heavily intoxicated by alcohol, which was unusual for him, saying "he was drunk as, he could barely stand, he couldn't defend himself".
…
50. The PTSD - Civilian scale was also administered during our meeting. [The applicant's] scores were reported in the Test Assessment section above and were considered to be an accurate description of his Post Traumatic Stress Disorder (PTSD) symptomology, which includes persistent disturbing memories of the event, feelings of isolation, hypervigilance, and avoidance of feelings triggering memories of the event. This symptomology may have played a role in his behaviour during the index offence, as symptoms of PTSD can cause an individual to over-react to situations, feel unable to manage their emotions, and diminish an individual's ability to self-regulate behaviour.
…
52. [The applicant] reported a limited drug and alcohol use history, consisting of occasional Cannabis use at the age of 17 and occasional use of Speed at the age of 19. He reported finding it increasingly difficult to socialise without the help of alcohol, however reported he is mindful not to drink to excess. He has not previously had drug or alcohol counselling or undergone detoxification or rehabilitation. He expressed concern over the long-term health implications of alcohol use and was amenable to undergoing psychological counselling and exploring medication options instead.
53. [The applicant] has no prior criminal history and prior to the index offence had never been involved in a physical fight. He described the index offence occurring subsequent to a sleepless and traumatic night having been wrongfully arrested. He reported being intoxicated by alcohol at the time of the index offence, and fearing his father would imminently be assaulted. Given [the applicant's] experiences in the hours previous to the incident it is likely he was experiencing increased feelings of hypervigilance and alertness due to the threat against him, and he likely over-reacted to the situation. He expressed remorse for his actions.
Separately, a handwritten letter from the applicant addressed to the learned sentencing judge was tendered in the proceedings on sentence. It expressed remorse. It also maintained the change of position from being unaffected by alcohol at the party to being very drunk.
Neither the history given to the psychologist nor the handwritten letter addressed to his Honour was supported by oral evidence from the applicant on sentence.
Remarks on sentence
The remarks on sentence extend over 23 pages. They are, with respect, a comprehensive, detailed, and reflective discussion of: the circumstances in which the offence occurred; the injuries to the victim; aspects of the trial, including the fact that the twin brother of the applicant changed his evidence so many times as to render it thoroughly unsatisfactory; the question of remorse (which was accepted by his Honour, but in "a very guarded way"); the background of the offender (assessed as generally favourable); the prospects of rehabilitation of the applicant (again, assessed as generally favourable); the objective seriousness of the matter (assessed as being above low-range but below mid-range); a discussion of sentences imposed by this Court in broadly similar matters; the questions of general and specific deterrence; a rejection of sentencing options other than full-time imprisonment; and a finding of special circumstances.
As well as that, his Honour discussed the psychological report over the course of over three pages of the transcript of the remarks on sentence. His Honour noted the Crown submission that, to the extent that things said by the applicant to the psychologist differed from sworn evidence in the trial, the latter should be preferred; his Honour accepted that submission. In particular, with regard to para 22 of the report, his Honour said the following at p 11:
As I say the thrust of the report is to urge a lower finding of criminality based on his age and the circumstance, particularly the matters set out in para 22 of the report. That aspect and those facts are not reflected in the evidence given at the trial. There was no suggestion for example of any hypo [scil. hyper] vigilance at the time. There is no evidence of any post traumatic disorder following other events and I need to be very guarded in my acceptance of that report in all the circumstances.
At p 12 of the remarks on sentence, his Honour said:
In the absence of medical or sworn evidence to this effect [that is, the PTSD] I am unable to make any findings in this regard - as I say particularly when I have given the limited weight that I do to the psychologist's report.
At p 20 of the remarks on sentence, his Honour said:
…I have considered in the intervening period the contents of the psychologist's report and the limited way that I have outlined and propose to regard the matters, given the factual dispute as set out in para 24 [scil. 22]. I do not consider that that evidence, such as it is, is such to lessen the other than relatively marginal adjustment that is going to be made.
Towards the end of the remarks on sentence, his Honour devoted two and a half pages of the transcript to a discussion of comparative cases, a number of which had been supplied by the parties in the proceedings on sentence. His Honour referred to having had regard to nine decisions of this Court, one of which was Reberger v R [2011] NSWCCA 132. That was a case that was very broadly similar to this, in that a young man had "glassed" another person.
His Honour explicitly noted, however, that there were a number of distinguishing features between the two matters: Mr Reberger pleaded guilty, whereas the applicant did not; there was an intellectual disability on the part of Mr Reberger, but sound intelligence on the part of the applicant; significant psychological difficulties on the part of Mr Reberger, an absence of issues of that kind on the part of the applicant; the fact that the applicant was younger than Mr Reberger at the time of the offending, and enjoyed a happier family background; and the fact that the injuries inflicted by Mr Reberger included the complete loss of the eye of the victim, in contrast to the lesser permanent injuries inflicted by the applicant. As well as that, because Mr Reberger had pleaded guilty early, and had received a discount for doing so, a starting point was adopted with regard to his head sentence before discount.
Ultimately, his Honour imposed an identical sentence to that imposed in Reberger v R: as I have said, a head sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months. Self-evidently, special circumstances were found in both cases: in the case of the applicant, they were based upon his age, his prior good character, and the fact that, until his incarceration, he had been living at home and both working and studying.
Grounds
The following two grounds were pressed at the hearing of the appeal:
Ground 1: The Sentencing Judge erred in his approach to the applicant's mental illness/condition.
Ground 3: The sentencing Judge erred by placing undue weight on the sentence passed in a single previous decision.
Ground 1
Submissions of the applicant
It was said by counsel for the applicant in support of this ground that his Honour erred in failing to accept not only that the applicant suffered from post-traumatic stress disorder (PTSD), but also that it had played a causative and mitigating role in the commission of the offence. It was accepted that, because it was inconsistent with the sworn evidence at trial, the contents of para 22 of the report of the psychologist were correctly put to one side. It was said, however, that the finding of PTSD (said to have arisen from the events of the previous evening) was separately based upon the administration of objective psychological tests. The fact that the Crown Prosecutor on sentence had neither disputed the previous interaction with the police nor insisted that the psychologist be called for cross-examination was emphasised. Reliance was placed upon the well-established principle that a psychiatric or psychological condition that plays a role in causing an offence to occur can be taken into account in mitigation: Engert v R (1995) 84 A Crim R 67; for a recent example of its application, see Aslan v R [2014] NSWCCA 114.
In short, the submission was that the sentencing judge should have accepted the opinion of the psychologist that the applicant was suffering from PTSD at the time of the offence, accepted also that it played a role in the commission of the offence, and mitigated the sentence accordingly.
Determination
Turning to my determination of this ground, I do not accept that any error is demonstrated. I say that for the following reasons.
As can be seen, the psychological report contained at least three changes of position on the part of the applicant, as follows. First, his position had changed from pleading not guilty, and suggesting through his counsel to the jury that another person could have been responsible for the crime, to an acceptance of responsibility. Secondly, his position had changed about whether he had been affected by alcohol (at trial, not at all; to the psychologist, heavily affected). Thirdly, although at trial it was alleged that the father had merely been spoken of as being untrustworthy prior to the attack, to the psychologist it was said that threats had been made against him.
In light of the many changes of position adopted by the applicant by the time of sentence, his credibility was, at the least, seriously impaired. Quite apart from the well-known note of caution sounded by this Court in R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 about accepting exculpatory or mitigatory histories from offenders recorded in documents tendered on sentence but not supported by sworn evidence, in the particular circumstances of this case his Honour was entitled to approach what the applicant had said to the psychologist with considerable caution. Any other approach would have been surprising.
Secondly, as is demonstrated from the extracts from the report that I have provided above, the finding of PTSD was based upon the administration of tests and the history of a response to threats of violence having been made against the father of the applicant, as recorded in para 22 of the report. Once it was agreed that that unsworn and untested assertion should be put to one side (on the basis that it was simply inconsistent with the evidence at trial) it was inevitable that the opinion of the psychologist would be undermined.
Thirdly and separately, as the final sentence of para 50 of the report extracted above demonstrates, the psychologist spoke of symptomology that "may have" played a role in the commission of the offence. And yet, in accordance with well-established principle, it was incumbent upon the applicant to establish any such feature on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
In short, I consider that, in truth, all that his Honour did was take a cautious approach to what was contained in the psychological report. In all of the circumstances - the many changes of position of the applicant; the absence of sworn evidence at any stage; the unavoidable inference that the diagnosis was partly based on a history that was rejected by agreement; and the tentative assignment of causation in any event - his Honour was perfectly entitled to take that approach.
I would reject ground 1.
Ground 3
Submissions of the applicant
In written and oral submissions, counsel for the applicant explained that this ground was based not only upon the extended discussion in the remarks on sentence of the authority of Reberger v R, but also upon the fact that the sentence imposed upon the applicant is identical to the sentence imposed upon Mr Reberger. That gives rise to the inference, it was said, that his Honour had erroneously placed too much weight on the earlier decision of this Court.
It was also said that, due to the clear differences in objective and subjective features between the two matters, the decision of this Court was in truth of very little assistance to his Honour, and should not have been the subject of such emphasis in the remarks on sentence.
Determination
Turning to my determination of this ground, I do not accept the proposition that a sentencing judge who dealt with all relevant factors so diligently and carefully as Judge Knox did in these remarks on sentence somehow adopted a capricious shorthand, whereby a sentence imposed by this Court in a different matter was simply replicated.
Separately, quite apart from the care taken by his Honour to analyse all of the objective and subjective features of this matter, the fact that in Reberger v R there had been a plea of guilty with resultant discount, and therefore a completely different starting point with regard to the head sentence, powerfully argues against the proposition.
Thirdly, as the remarks on sentence show, his Honour was perfectly well aware of the points of similarity and difference between the two matters. As I have said, his Honour recounted that Mr Reberger and the applicant were both young men who committed a glassing. Thereafter, many points of distinction were explicitly noted.
Fourthly and finally, his Honour reflected upon nine decisions of this Court. One of them, his Honour found, was worthy of a more detailed analysis in the remarks on sentence than the others. There can be no criticism of the fulsomeness of that analysis; quite the contrary.
I would reject ground 3.
Orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal dismissed.
[2]
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Decision last updated: 07 April 2017