Mansfield v R

Court of Criminal Appeal (NSW)|2019-10-30|Before: Gleeson JA, Harrison J, Cavanagh J

Judgment

THE COURT: Corey Troy Mansfield seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed by Frearson DCJ at Sydney District Court on 7 September 2017. Mr Mansfield had earlier pleaded guilty in the Downing Centre Local Court to the offence of reckless wounding on 11 December 2015. That is an offence contrary to s 35(4) of the Crimes Act 1900. The maximum penalty for that offence is imprisonment for 7 years, with a standard non-parole period of 3 years. His Honour was also asked to take into account on a Form 1 and pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 an offence of stalk/intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
A notice of intention to apply for leave to appeal was filed within time on 18 September 2017, but the application for leave to appeal was filed late, on 27 July 2018. A further application for leave to appeal was filed on 2 August 2019 together with a notice of application for extension of time. The Crown has indicated that it does not oppose the application for extension of time.
Mr Mansfield was sentenced by his Honour to a term of imprisonment of 4 years and 3 months commencing on 7 September 2017, with a non-parole period of 2 years and 6 months expiring on 6 March 2020. The principal offence and the Form 1 offence were committed in breach of a bond for an offence of common assault, for which his Honour sentenced Mr Mansfield to a concurrent term of 7 months imprisonment.

Circumstances of offending

The victim of the offence is Mark Stewart. He was 56 years old at the time of the offence. Mr Stewart is the owner and manager of Mark Stewart Smash Repairs at North Manly where Mr Mansfield was employed as a smash repairer. Mr Stewart became dissatisfied with Mr Mansfield's work performance, particularly in relation to his attendance at work and in taking sick leave.
On 9 December 2015, Mr Stewart discussed Mr Mansfield's work performance with him and asked him if anything was wrong. Mr Mansfield had spent long periods in the toilet that day. Mr Mansfield said that nothing was wrong and continued to work.
Mr Mansfield did not attend work on 10 December 2015 and did not call to explain his absence.
On 11 December 2015, Mr Mansfield attended work about 7.50am and handed Mr Stewart a doctor's certificate. At about 8.10am, Mr Stewart asked Mr Mansfield to come to the office where he spoke to him about his work performance. Mr Stewart had placed his mobile phone on his desk so that he could record the conversation if Mr Mansfield became threatening. Mr Stewart told Mr Mansfield that he was dissatisfied with his work performance and that he was giving him four weeks to find a new job. Mr Mansfield became upset and tense and said he needed more time. Mr Stewart apprehended he would be hit and activated his phone so that it would record. As he did this he heard something break.
The next thing Mr Stewart remembers is waking up on the floor, disoriented. He tried to get help. He noticed blood on the walls. He got himself onto a chair. Mr Mansfield then walked into the room. Mr Mansfield told Mr Stewart that they had a problem and that Mr Stewart was not going to tell anyone about this. Mr Stewart asked Mr Mansfield if he had king-hit him and Mr Mansfield replied, "I've fucked you over. I'm going to fuck your wife. I'm going to fuck your daughters."
At some point Mr Stewart phoned his wife. A customer came into the office and Mr Stewart told him what had happened. The police attended.
Mr Stewart was taken to Royal North Shore Hospital. He had sustained a 1 to 2 centimetre crescent shaped, deep laceration with surrounding soft tissue swelling, which was sutured. There were two smaller lacerations to his face, which did not breach the dermis, which were treated with glue. He had pain and swelling over the zygoma, bilateral subconjunctival haemorrhages, tenderness to the cervical spine, small contusions to the right frontal lobe of the brain, a second small contusion to the right frontal lobe above the right eye, and a small bruise under the skin to the left zygomatic bone near the eye. The victim stated he had continuing symptoms including dizzy spells, numbness to the right side of the face, confusion in conversations and forgetfulness.
Associate Professor Moynham found that the wounds and injuries were consistent with repeated blows to the head. The sutured wound had the appearance of being caused by a fist or a coffee cup.

Objective seriousness - findings

In the course of publishing ex tempore remarks on sentence, his Honour described the objective seriousness of the offending in the following terms: "Even disregarding the suggested weapon aspect, what the facts do show are [sic] quite a sustained vicious attack replete with aggression and violence. I have the recording which is consistent with that type of attack, and as I said, repeated blows. It is a very serious example of this type of offence, even though a weapon was not used. I do not accept there is any provocation in the sense of [s] 21A. It is just a completely unreasonable attack on an employer. I consider it above the mid-range, indeed significantly above the mid-range."

Aggravating factors

Mr Mansfield was subject to a 2 year s 9 bond to be of good behaviour at the time of the commission of the offence which had been imposed at Manly Local Court on 27 November 2015 for common assault. The offence was aggravated by Mr Mansfield being on conditional liberty at the time: s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.
The agreed facts refer to a shattered coffee cup being found in the office on the floor following the incident. Mr Stewart said that he had a recollection immediately before losing consciousness of hearing a breaking noise. The laceration on his scalp that was sutured had the appearance of being caused by either a fist or a coffee cup. Mr Mansfield said that, although he did not have a good memory of what occurred, he did not hit Mr Stewart with the coffee cup. Mr Stewart was also unable to say what it was he was hit with. In those circumstances, his Honour was unable to find that the coffee cup had been used as a weapon.
Mr Mansfield had also some years previously been placed on an 18 month s 10 bond at Manly Local Court on 21 June 2007. His Honour considered that Mr Mansfield's record was not particularly significant but would have the effect of denying him leniency to which he might otherwise have been entitled if his record were unblemished. His Honour also indicated that Mr Stewart's victim impact statement added little to the agreed facts and did not find that the impact of the offence amounted to a separately aggravating factor pursuant to s 21A.

Subjective factors

Mr Mansfield was 40 years old at the time of the offence and is currently 43 years old. He was the youngest of four children born to parents on Sydney's North Shore. His father was a panel beater and spray painter. His mother worked at a book publishing company. Mr Mansfield completed Year 10 and later undertook an apprenticeship in spray painting. At one time he owned a gym with his brother but that was sold in 2007 following a falling out between them.
Mr Mansfield's parents separated when he was 15. His father was an alcoholic and abused his mother. Mr Mansfield said that he had been sexually abused by his elder brother when he was aged between 8 and 11 years old. He told a psychologist that he had not had a relationship for 17 years and had only ever had one serious relationship. That lasted about twelve months.
Mr Mansfield began sniffing petrol at the age of 11 years and smoking cannabis at the age of 13 years. He began taking ecstasy and LSD and soon after amphetamines and cocaine. Mr Mansfield started using methylamphetamine about 10 years ago. He was not using it regularly in October 2016.

Mental health

Mr Mansfield reported to Ruth Allen, a psychologist that he had had a breakdown when his gym business was struggling and he and his brother were arguing. He was prescribed anti-depressants by his general practitioner.
Mr Mansfield was diagnosed with bipolar disorder in about 2009, apparently after being shot in the leg. He said he was homeless at the time and was prescribed anti-psychotic medication. He had been seeing a psychologist since January 2016 and had attended 12 rebated sessions allowable for low income earners. The sessions had focused on trauma associated with childhood abuse and his more recent shooting. He had also been attending anger management courses.
On intelligence testing, Ms Allen reported that Mr Mansfield's results placed his overall functioning in the below average range with 91 percent of the population having a higher composite score than him. On personality testing, Mr Mansfield's profile contained significant scores on the measure of narcissistic, passive-aggressive and schizoid patterns. He also had a significant score for the more severe paranoid personality pathology.
Mr Mansfield had significant scores for anxiety, post-traumatic stress disorder, drug dependence and dysthymia. There was also significant evidence of symptoms of delusional disorder (acute paranoid symptoms) and thought disorder (fragmented and disorganised thinking that can be associated with psychoses such as schizophrenia).
Ms Allen was of the opinion that Mr Mansfield's presentation at interview and test profile indicated the presence of symptoms associated with mental illness that may have had an impact on his behaviour at the time of the offences. Ms Allen raised the prospect that the Court may have wished to explore this further via a full psychiatric assessment to identify if Mr Mansfield was suffering from a mental illness and whether he may benefit from medication to support him to manage his symptoms.
Dr Michael Size, Mr Mansfield's general practitioner, indicated in a report dated 28 February 2017, that he had been a patient since 2007 when he was diagnosed with severe depression and prescribed Sertraline which he used for over 12 months. When his depression lifted, he exhibited significant bipolar traits and he was prescribed Zyprexa and Epilim. Dr Size said that in December 2009, Mr Mansfield referred himself to the adult mental health service at Queenscliff because of auditory hallucinations, paranoid ideas and anger. He was diagnosed with "unspecified organic psychosis" and treated with Risperidone. He was still having auditory hallucinations in 2011.
Dr Size next saw Mr Mansfield in early 2016 after he had been charged with the subject offences. He was found to have extreme depression and anxiety and was referred to psychologist Jennifer Rathgen, who diagnosed post-traumatic stress disorder and anger issues. Dr Size said Mr Mansfield's history indicated a diagnosis of bipolar II disorder in addition to his diagnosis of post-traumatic stress disorder. He had also been diagnosed with anger issues and Dr Size said that "anger attacks" may be associated with major depressive disorders.

Mr Mansfield's submissions

Allowing for the 25 percent discount for his early plea, his Honour's starting point was 5 years and 8 months. It was submitted that this was only 1 year and 4 months less than the maximum penalty for this offence. There is no dispute in the present case that Mr Mansfield was entitled to a discount of this order. In such circumstances, his Honour's notional starting point is easily calculable and is an important integer in the sentencing equation: see Mun v R [2015] NSWCCA 234 at [60]; Xue v R [2017] NSWCCA 137 at [2]-[4]; Berryman v R [2017] NSWCCA 297 at [38].
Mr Mansfield emphasised that he was sentenced for reckless wounding, not for recklessly inflicting grievous bodily harm. His Honour specifically recognised this in his remarks on sentence. The only injury amounting to a wounding was therefore a 1 to 2 centimetre crescent-shaped deep laceration with surrounding soft tissue swelling requiring four stitches. Two other minor lacerations that did not penetrate deeply into Mr Stewart's skin could not therefore amount to wounds for relevant sentencing purposes.
Mr Mansfield drew attention to what was said by Howie J in Ciaron McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94 at [37]. His Honour continued as follows: "[38] The Judge was clearly entitled to take into account the nature of the assaults that gave rise to, or surrounded, the wounding. She was also entitled to take into account other injuries inflicted in the course of conduct resulting in the wounding that were less serious than the wounding. In my opinion her Honour was not, however, entitled to take into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. A broken wrist is not encompassed in a charge of wounding and, particularly in the case of a 60 year old, was considerably more serious than the wounds…"
Mr Mansfield emphasised that when a sentence is being imposed for reckless wounding, injuries constituting grievous bodily harm cannot be taken into account without offending the De Simoni principle.
Mr Mansfield also drew attention to what were said to be comparable cases in order to emphasise the complaint against his Honour's sentence. Tweeddale v R [2012] NSWCCA 99 was an appeal against a sentence imposed for reckless wounding that was upheld on the basis of manifest excess. The offence involved an attack with a broken bottle at a party. The victim sustained a 2cm laceration to the vertex of the scalp requiring three sutures, a 3cm long deep laceration to the back of the vertex of the scalp requiring two deep sutures, a partial amputation of the rim of the left ear, repaired with four nylon sutures, a laceration to the lower left ear repaired with five sutures, a superficial laceration over the left carotid artery with arterial bleeding behind the left ear, and a laceration on the back of the right forearm, deep down to the muscle requiring three deep sutures and five skin sutures. The treating doctor did not expect any long term deficit from these injuries, except scars to the head, ear and arm.
The sentencing judge described the offence as one of extreme violence involving the offender using a broken bottle as a weapon. The appellant had a very significant record for offences of violence, including a conviction for maliciously inflicting grievous bodily harm. The sentencing judge considered that the offender was a real danger to the community and referred to the need for specific and general deterrence.
Beazley JA (as her Honour then was) was of the view that the appellant had been wrongly sentenced on the basis that there were injuries to the victim's face, but also because the sentence imposed was manifestly excessive. The appellant had been sentenced to a non-parole period of 3 years and an additional term of 18 months, after a discount of 25 per cent for the early plea. This meant that the sentence imposed prior to the application of the discount was approximately 6 years and 4 months, in circumstances where the maximum penalty was 7 years. The appellant was re-sentenced to a non-parole period of 2 years and 8 months with an additional term of 1 year and 6 months.
In McCullough, Howie J described the wounding in the following terms: "[41] Here the principal wounding was the bite to the mother's finger that needed three sutures. The other wounds were minor although they appear to have produced a great deal of blood. The nature of the wound was, therefore, at the low end of the scale of seriousness for this offence. However, the circumstances in which the wound was occasioned increased its seriousness considerably. As I have already described, the wounding occurred in the course of a prolonged and unprovoked assault upon a vulnerable woman in her own home by her own son. The only explanation for the assault was that the applicant was drunk. He has a history of violent offences and was on bail for the offences against his brother at the time. The applicant has been shown considerable leniency by the courts in an endeavour to assist him overcome his problems with alcohol in the past. The sentence now must reflect a very significant degree of personal deterrence. [42] In any event a sentence before discount of 5½ years for the malicious wounding offence as against a maximum penalty of 7 years was manifestly excessive whatever injuries were taken into account by her Honour. Notwithstanding the seriousness of the conduct, as against the type of wounding or injuries in the nature of grievous bodily harm covered by the section this offence was no more than midrange notwithstanding its aggravating features. No weapon was used, the offence was unplanned and the injuries were not permanent. Unlike many wounding offences there is no evidence of any significant scarring. The applicant was truly remorseful. The sentence before discount should be 4 years."
Mr Mansfield contended that the wounding for which he was sentenced was less serious than the wounding in McCullough, or at least no more serious. The starting point for the sentence in that case was, however, significantly less. In neither case was a weapon used. Both offenders were on conditional liberty. Mr McCullough had a significantly worse record for violence with a correspondingly increased need for specific deterrence.
Although not raised or promoted as a separate ground of appeal, Mr Mansfield contended that his Honour's description of the events constituting the surrounding circumstances to the commission of the offence, set forth earlier at [13], was erroneous. The recording taken from Mr Stewart's phone lasts just over 12 minutes. The physical attack upon him by Mr Mansfield lasts no more than 25 seconds, which includes Mr Stewart falling to the floor. Mr Mansfield submitted that it was difficult to ascertain the number of blows inflicted from listening to the recording but suggested that it could be anywhere between one and three.
Mr Mansfield additionally submitted that the offence on the Form 1 is usually dealt with in the Local Court where the maximum penalty is 2 years. He contended that his Honour was in error to find that the offence in question was a very serious example of this type of offending. He submitted that in different circumstances it may simply have been treated as a continuation of the assault upon Mr Stewart. If dealt with in that way, it having occurred at the same time and place, it is likely that any sentence imposed would be wholly concurrent with the sentence imposed for the principal offence. In any event, Mr Mansfield submitted that any increase in his sentence as a result of the matter on the Form 1 being taken into account should be particularly modest.
Finally, although once again not raised as a discrete ground of appeal, Mr Mansfield drew attention to the way in which his Honour dealt with the evidence of his history of mental illness and its relationship, if any, to the offending behaviour. His Honour's remarks on sentence on this topic should be noted: "He details his history with substance use, and he began sniffing petrol at the age of 11; cannabis at 13; at 15 he was taking ecstasy; not long after that, amphetamines and cocaine and then ice. No wonder he has some mental health conditions. He described the background to the offence. His perception is he was unfairly treated, but he said he is sorry for what he has done. He was feeling angry towards the victim. The report details his father's alcoholism, and indeed domestic violence towards his mother, and the sexual abuse aspect. I do accept he has a background of significant disadvantage. The report sets out that he has easily triggered emotions, and his drug use has had the effect of generally undermining his mental health. Following the initial diagnosis in 2007, he re-engaged with a psychiatrist and had some anger management, and that has been helpful in managing his mental health in the past. He has distrustful personality patterns, but he will be responsive to appropriate treatment. It is difficult to know what to make of it. There is not a precise diagnosis, and I do accept that there is no clear nexus between his psychiatric condition and the present offence. But having said that, it does not have to be a clear nexus to be relevant. It is clear that whatever condition he has, it had an effect upon him in terms of him not being able to control himself, and being able to see things objectively, and control his anger and emotions. I consider his condition is such that it gives him less control than other people. That does tend to mitigate his culpability, but having said that, the countervailing consideration is that because he has that condition he is more likely to lose control. So one thing balances out the other. I do not consider he has any condition that precludes a very substantial appreciation that he was doing the wrong thing here, and the consequences of doing the wrong thing. He gave evidence before me and he did say to me that he felt angry and upset at the time with his boss, and he told me about his background and it has taken him ten years to get back onto his feet. He was homeless at one point. He was in shared accommodation. He went to a granny flat, and then he got his Diploma of Fitness. His father was a spray painter. When he was working as a spray painter, he felt discriminated against by the victim. He felt that the younger employees were getting advantaged, and this was in fact the third time he had been sacked, and being sacked led to apprehensions of homelessness. He said his blood boiled and now he just feels sorry for what had taken place. He says he did not use a mug or coffee cup, though as I have pointed out already, there was some tension between that claim and his general lack of recollection. He said his memory comes in and out, cuts in and out. He seems to appreciate that he has some problem with anger management. In the past he has been on psychotic medication. But quite disturbingly he said, 'That's not for me. I'm very strong', and he was concerned about the weight gain through medication. But quite commonly people who need psychotic medication do not feel that they should be taking it for one reason or another."
Mr Mansfield submitted that it was "difficult to know what his Honour meant by those remarks", referring to his Honour's comment that "the countervailing consideration that because of his condition he is more likely to lose control."
Mr Mansfield emphasised that mental illness or intellectual or psychological disability is a relevant factor in sentencing an offender. It is relevant to the question of an offender's culpability and to the reduced significance of general deterrence. Moreover, a custodial penalty may weigh more heavily on a mentally ill person: see R v Hemsley [2004] NSWCCA 228 at [33]-[35].
Mr Mansfield drew upon the well-known passage from R v Israil [2002] NSWCCA 255: "[23] To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law. As Wood CJ at CL put it in Henry, supra, at [254]: '… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing'."
Mr Mansfield effectively submitted that his Honour either did not, or did not obviously, take matters of this type into consideration in his case.

Consideration

Despite some discussion in this Court during the hearing about the possible addition of further grounds of appeal, Mr Mansfield continued to rely solely upon the single ground of manifest excess. He supported this ground by reference to the comparable cases to which earlier reference has been made, with particular emphasis upon his strong subjective circumstances, especially his mental illness.
It was perhaps uncontroversially accepted by the Crown that the sentence imposed upon Mr Mansfield in this case was "stern". Indeed, as already noted, the sentence imposed upon Mr Mansfield by his Honour before taking account of the discount for his early plea is only 1 year and 4 months below the maximum penalty of 7 years.
It was not in our view correct to characterise the wounding offence as above the mid-range having regard to the actual wound sustained by Mr Stewart. That is so notwithstanding the otherwise violent and threatening surrounding circumstances. A comparison with the facts in both Tweeddale and McCullough supports the conclusion that Mr Mansfield's offending was of a notably less serious nature.
Mr Mansfield's history of mental illness is such that many of the matters referred to in DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 have application in his case. Mr Mansfield had not previously served any time in custody. That fact taken in combination with the very real likelihood that he would find incarceration more onerous than otherwise was in our view an important and obvious indication for a sentence of less severity than that imposed by the sentencing judge.
Having regard to the way in which Mr Mansfield's appeal to this Court has been conducted, it has not been possible to discover or to isolate any discrete error upon the basis of which his Honour's sentencing discretion might be said to have miscarried.
In Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54, Gleeson CJ and Hayne J said this: "[6] Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."
In the particular circumstances of this case, the sentence imposed upon Mr Mansfield was manifestly too long. It was simply unjust and plainly unreasonable. A starting point of 5 years and 8 months for an offence that resulted in the infliction of a relatively minor wound is not warranted. Consideration of Mr Mansfield's insignificant criminal history and mental illness serves further to support this conclusion. In expressing that opinion we note that we have taken account of the fact that Mr Mansfield was on conditional liberty at the time of the commission of the offence and that his Honour was asked to take account of the offence of stalk/intimidate on the Form 1. These matters notwithstanding, we consider that a non-parole period of 2 years and 6 months is excessive and erroneously so. The sentence imposed by his Honour should be set aside and Mr Mansfield should be re-sentenced.
At the conclusion of the hearing of his appeal on 30 October 2019, this Court made orders that Mr Mansfield was to be released forthwith on unconditional bail pending the publication of the Court's reasons for judgment upon the basis that his challenge to the sentence imposed below would be successful and the appeal to this Court would be allowed. That approach was adopted having regard to the fact that Mr Mansfield's non-parole period was due to expire in a little over 4 months' time on 6 March 2020. It was plainly inappropriate for Mr Mansfield to remain in custody if there was a prospect that he would have been entitled to be released on parole if this Court had been in a position to re-sentence him and publish reasons immediately following the hearing of the appeal.
Having reserved our decision, we are of the opinion that the following orders should be made: 1. Grant Mr Mansfield leave to appeal against his sentence. 2. Allow the appeal. 3. Quash the sentence imposed upon Mr Mansfield by Frearson DCJ on 7 September 2017. 4. In lieu thereof, sentence Mr Mansfield to a non-parole term of imprisonment of 2 years commencing on 7 September 2017 and expiring on 6 September 2019 with a balance of term of 1 year expiring on 6 September 2020.

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: 06 November 2019

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