Mbele v R

Factual background

1. The sentencing judge found the relevant facts as follows.
2. The applicant and the deceased were members of opposing "groups" in the Bankstown area. As at 25 May 2011, the applicant was 22 years old and the deceased was 16 years and 9 months old.
3. The circumstances of the offence were largely not in dispute. The killing happened at Bankstown train station and was captured on CCTV. The only disagreement was as to what occurred leading up to the killing, in particular, during a confrontation between the applicant and the deceased approximately two hours earlier.
4. Around lunchtime on 25 May 2011 the applicant was in a park in Padstow with some friends, drinking wine from a five-litre cask. He was in possession of a large knife which was variously described as a "dagger" or a "hunting knife" and had a blade of around 20cm long. The applicant gave evidence that he had taken the knife from a friend earlier that morning for safekeeping because his friend was younger than him. He said that he put the knife in the pocket of his jumper and then went to the park. Her Honour rejected this evidence and was satisfied beyond reasonable doubt that the applicant armed himself with the knife.
5. The applicant's evidence was that he drank around one litre of wine that afternoon and did not finish the cask until shortly before he arrived at the station later in the afternoon. The sentencing judge found that the applicant did not intend to confront the deceased while he was drinking alcohol at the park but that his intoxication emboldened him to confront the deceased later on.
6. Around 5pm that evening the applicant and his friends went to South Terrace in Bankstown where they encountered the deceased and his cousins. A confrontation occurred during which verbal insults were exchanged between the applicant and the deceased. The applicant claimed that he "ran Bankstown". A brief physical altercation ensued between the applicant and deceased in which the deceased appeared to have the upper hand. The applicant left and returned briefly to his home, which was close to the Bankstown train station.
7. The applicant was observed to be very angry and agitated when he returned home. He removed his jacket and returned to the same area on South Terrace, before going to Bankstown train station. His explanation for carrying the knife was that he left home with it tucked into his pants, forgetting that he still had it. His explanation for the change in clothing was that when he arrived at Bankstown train station, he felt cold and borrowed a blue hoodie from a friend. The sentencing judge rejected the applicant's evidence on these matters and observed that the applicant's account of unknowingly having the knife tucked into his pants was entirely inconsistent with the size and shape of the knife. Her Honour was also satisfied that the applicant wore a different hoodie to disguise himself with the intention of confronting the deceased again. Her Honour thus concluded that the infliction of some harm with the knife was premeditated.
8. Her Honour found, based on the CCTV recordings and the evidence of the eyewitnesses, that once the applicant arrived at the train station, he intentionally sought out the deceased with the intention of confronting him.
9. The deceased was sitting with his friend on the train platform. The applicant approached him from the opposite side of the platform, stood in front of him and slapped him twice across the face. He then produced the knife. The applicant's evidence at trial was that the deceased called him a "nigger" and that was what provoked him to slap the deceased across the face. He said that he produced the knife only to scare the deceased and that he only spoke to the deceased in an attempt to avoid trouble in future. Again, this was contrary to the evidence of the deceased's friend who stated that the applicant approached the deceased saying "do you want to go one-on-one?" and brandishing the knife. It was after the deceased told the applicant to drop the knife that they exchanged verbal insults.
10. The sentencing judge rejected the applicant's account of these events as inconsistent with the objective evidence. Her Honour found that the CCTV footage showed the applicant was the initial aggressor, that he stood "menacingly" over the deceased and struck the deceased to the face within a very short time of initiating the conversation. Her Honour was satisfied beyond reasonable doubt that the applicant deliberately assaulted and antagonised the deceased with the intention that the deceased would physically assault him and thereby provide a justification for the use of the knife. Her Honour accepted that the deceased racially abused the applicant in the manner described and that this was capable of provoking the applicant. Her Honour was however satisfied that the applicant had by that time already resolved to assault the deceased and that the provocation was a consequence of the applicant's aggression towards the deceased.
11. The applicant's friend, Mbusi Mlotshwa, told the applicant to leave and with the help of the deceased's friend attempted to separate them. The deceased stood up but did not raise a hand towards the applicant or threaten him physically in any way. The deceased and his friend then turned and moved away towards the other end of the platform.
12. The applicant replaced the knife in its sheath and followed the deceased and his friend down the platform. His evidence was that he was walking down the platform with the intention of leaving via the stairway, but the sentencing judge rejected this as contrary to the evidence of the CCTV and eyewitnesses. While walking down the platform the applicant once again removed the knife from its sheath and confronted the deceased.
13. As the applicant approached the deceased holding the knife the deceased was heard to say "[d]rop your knife we can do this one-on-one. Don't worry about your boys, let's go." Eyewitnesses then described the applicant lunging at the victim, in a movement described as a "fake stab". The deceased stepped forward and punched the applicant to the head. Almost simultaneously, the applicant moved his right hand, holding the knife, and stabbed the deceased in the chest. The blade separated from the handle of the knife and lodged in the deceased's chest.
14. The knife entered the deceased's chest between his third and fourth ribs, to a depth of 125mm. The blade penetrated the deceased's left lung and his heart. The deceased fell to the platform and died within minutes in the presence of his younger brother, then aged 15 years old, and a number of his closest friends. Members of the public on the station platform also witnessed the offence.
15. The sentencing judge was not satisfied beyond reasonable doubt that the applicant intended to kill the deceased. Rather, she concluded that the applicant intended to inflict grievous bodily harm, knowing that the deceased's "imposing physical size" placed him at a significant disadvantage in the absence of a weapon.

Proceedings on sentence

1. Proceedings on sentence were conducted on 30 August 2013. The Crown tendered written submissions, the applicant's criminal and custodial history and a Pre-Sentence Report dated 20 August 2013. Victim impact statements were read by the victim's mother, father and two brothers. Counsel for the applicant tendered written submissions, a psychological report of Dr Stephen Allnutt dated 27 August 2013 and the applicant's certificates of attainment in nursing, aged care and construction.
2. The applicant's father, Chle Mbele, gave evidence at the proceedings on sentence. The applicant was one of three children. He was born in South Africa. His father moved to Australia in 2003 and was employed as a nurse. The applicant, his mother and his younger sister moved to Australia in 2007, when the applicant was aged 18. The applicant had been in Year 12 in South Africa but went into Year 10 in Australia. The applicant's father said that the applicant had never been in trouble with the police in South Africa and did not have a tendency towards violence. In his opinion the applicant was a kind-hearted person who never had problems with his temper. He stated that he had recently become aware that the applicant had a problem with cannabis, but he was not aware of the applicant having attended counselling for that problem. He had, however, taken the applicant to counselling when the applicant was aged 17 for anxiety that had "[come] out of nowhere".
3. He said that the applicant had a steady partner with whom he had two children. The younger child was born after the applicant was arrested in May 2011. Both children were in the care of the applicant's parents. He said that the applicant had been employed as a traffic controller and that he had a qualification in that field. The applicant's father said that the offending was totally out of character and he could not believe it was his son on the CCTV footage.
4. A friend of the applicant's father, Gordon Gamede, also gave evidence at the proceedings on sentence. He said that he regularly visited the home of the applicant's family and had always observed the applicant to be a respectful young man. He said that he was shocked by the applicant's offending and that the offending was out of character.
5. The applicant's criminal and custodial history indicated that he had been convicted of a common assault (domestic violence related) in November 2010, for which he was sentenced to an 18-month good behaviour bond under s 9 of the Sentencing Act. As noted in the Pre-Sentence Report, it was at that time that he first become known to Community Corrections. The author of the PSR observed that the applicant's response to supervision was "borderline" and that he had missed appointments and had minimal intervention to address his offending behaviour. That bond expired seven months after it was imposed, when the applicant entered custody for the current offence in May 2011.
6. In relation to the applicant's family and social history, it was noted that he met his partner in 2008 and had two children, aged 3 years and 18 months respectively. He was not considered violent by his mother or partner. Prior to entering custody, he was in receipt of Centrelink payments, having recently ceased employment as a traffic controller. He planned to move to Melbourne to live with his partner and children. He had previously been employed in a nursing home and in the construction industry.
7. In relation to the offending, the applicant maintained the account given at trial that he did not intend to stab the victim, but he was "sorry" that the victim's family lost their son. The report noted that the applicant had not incurred any institutional misconduct charges and was not a management concern in custody.
8. In relation to psychological issues, it was noted that the applicant reported having been kidnapped three weeks prior to the offence and that he became "paranoid" after that incident. The report concluded that the applicant would benefit from interventions in relation to violence and drugs and alcohol.
9. The report of Dr Allnutt stated that the applicant was 25 years old at the date of the report and had been incarcerated for two years. He was not seeing a psychiatrist or psychologist at the date of interview. Dr Allnutt noted that at the time of the offence the applicant was not taking any medication or consulting a mental health worker, but he had been seeing a psychologist due to a kidnapping that occurred two weeks prior to the offence. The applicant said that the kidnapping occurred when an ex-girlfriend came to pick him up. There was a man waiting in the car, whom the applicant could not see. The car came to a stop and the man got out of the car with a gun. The man pointed the gun at the applicant, swore at him, and hit him in the head with the gun. The applicant was handcuffed on one hand. The gun discharged and the applicant started running away. He was shot at a second time while he ran away.
10. After the kidnapping the applicant became more anxious in public places and started having "flashbacks" such as hearing gunshots, which he could not get out of his head. The applicant had difficulty falling asleep and woke up sweating and breathing rapidly from nightmares about being attacked. If he watched a movie with gunshots, he became afraid and remembered running away as the gun was fired at him. As a result of this incident the applicant consulted a psychologist in Bankstown four or five times shortly before the offence. He also reported having consulted a psychiatrist in South Africa when he was 17 years old, although he did not remember the diagnosis or whether he was prescribed any medication. He saw the psychiatrist in South Africa two or three more times.
11. In relation to the offence, the applicant's account to Dr Allnutt was substantially the same as his evidence at trial. He maintained that he only wanted to talk to the deceased when he confronted him at the train station and that he only had the knife in his possession for safekeeping. He said that he was walking away intending to leave the station when the deceased again confronted him. He maintained that the deceased was the initial aggressor and he did not mean to stab the deceased.
12. The applicant told Dr Allnutt that the previous two years in custody had been difficult. He still had nightmares "every now and then" and felt that he was socially withdrawn and found it difficult to engage in conversation or express his feelings. He reported feeling unsafe in the yard and was worried that a relative of the deceased might attack him. The applicant said that he tried to avoid conflict or "trouble situations".
13. When interviewed on 22 August 2013 the applicant said he felt depressed and had poor sleep. He said that he had cried most nights since being convicted and that he had poor energy levels and felt tired easily. The applicant had reduced appetite and difficulty with concentration. He had lost interest in activities and had poor self-esteem. He reported having nightmares about being attacked "fairly regularly", meaning about four times per week. He did not like talking about the kidnapping as this brought back bad memories that caused him anxiety and distress. The applicant was hyper-vigilant and concerned that he would be attacked.
14. Dr Allnutt noted documentation from NSW Corrective Services which indicated that the applicant had reported on 18 May 2011 (one week prior to the offence) that he was suffering from post-traumatic stress disorder. He said that he was experiencing difficulties with sleep and persistent thoughts about being assaulted. He was afraid to leave the house. The applicant requested a referral to a psychologist, which was provided.
15. In relation to "Psychiatric Illness" Dr Allnutt opined as follows: "[The applicant] manifested symptoms consistent with Depressive Disorder with a depressed mood characterised by disturbed sleep, reduced appetite, poor energy, concentration and motivation, poor self-esteem, loss of capacity for pleasure. In addition to that he manifested a number of anxiety symptoms of a Posttraumatic Stress Disorder characterised by intermittent palpitations, nightmares, avoidance, distress when exposed to cues that reminded him of the kidnapping, inclusive [sic] recollections that relate to the kidnapping, hyper-vigilance. … The most significant stressors impacting on him at the time that he saw me related to his current situation and sentencing."
16. In relation to the applicant's mental state at the time of the offence, Dr Allnutt stated the following: "Approximately two weeks prior to the alleged offence, he had been the victim of kidnapping. He had consulted with his probation and parole officer who had recommend [sic] that he consult with a psychologist. He described a number of symptoms consistent with Posttraumatic Stress Disorder, active at the material time, including - nightmares, flashbacks, some avoidance behaviour, distress at cues that reminded him of the prior incident, disturbances in sleep, appetite, energy, motivation, self-esteem and social withdrawal. Posttraumatic stress disorder can contribute to the heightened sense of personal vulnerability. In this case, consideration needs to be given to the evidence that suggests he initially approached the Deceased (at least at the time of the later interchange at the railway lines prior to the offence). PTSD is more likely to cause a person to be avoidant of situations that are similar to the original trauma as they trigger anxiety. Notwithstanding this, in less severe cases of PTSD it is reasonable to consider that at the material time of the alleged [sic] offence when he was leaving the station he was more prone to feeling anxious, when under attack. At the time that I saw [the applicant] he manifested ongoing residual symptoms of a post traumatic stress disorder including hyper vigilance, social avoidance, intermittent nightmares, reduced quality of sleep and some depressive symptoms characterised by reduced mood, sleep disturbance, reduced appetite, energy, motivation, concentration and self-esteem."
17. Dr Allnutt recommended that the applicant engage in the following treatment: "1. I recommend that your client consult with a psychiatrist for duration and at a frequency to be determined in collaboration with the treating psychiatrist depending on clinical need. 2. He requires a trial of antidepressant medication. 3. He requires drug and alcohol counselling and rehabilitation."
18. Counsel for the applicant in the proceedings on sentence submitted orally that the report of Dr Allnutt was relevant in two ways: first, as a "general corroboration of background"; and secondly on the basis of hardship in custody due to the applicant's psychological conditions. It was submitted that the applicant "suffer[ed] symptoms of anxiety and panic attacks" in a custodial environment. When the sentencing judge observed that the applicant appeared to be functioning in the way that might be expected for someone of his age in custody for the first time, counsel for the applicant said: "I hear what your Honour says. The point I want to make is that to the extent that the report might be considered to reflect upon the events central to this trial, I don't press it."
19. Counsel for the applicant went on to submit that based on sentencing statistics, there was no prevailing pattern in relation to the standard non-parole period for the offence.
20. The Crown submitted that the Court would place little weight on the report of Dr Allnutt as it relied principally on self-reporting from the offender, and much of the offender's account had clearly been rejected by the jury at trial. The sentencing judge observed the following: "HER HONOUR: I understand the only way in which Mr Dennis relies upon Dr Allnutt's report is with respect to the anxiety attack that he has in custody which are said to be a product of post-traumatic stress disorder, is that right, Mr Dennis? DENNIS: Yes. CROWN PROSECUTOR: Then I'll limit my submissions. …"
21. The Crown noted Dr Allnutt's observations in relation to the kidnapping incident and the applicant's resulting anxiety. The Crown observed that the applicant had not appeared anxious in the CCTV footage or in the eyewitness accounts. The Crown submitted that he was observed to be "confident, focussed and purposeful" shortly before the stabbing.
22. It was agreed that the applicant's youth was relevant to his sentence and that his prior offending would have "no real impact" on the sentencing exercise.

Remarks on sentence

1. After finding the facts as summarised above at [7]-[21], the sentencing judge considered the objective seriousness of the offence. She observed that it was "a cowardly, vicious, vengeful and premeditated" attack which was "out of all proportion to the petty animosities" that existed between the applicant and the deceased. Her Honour noted that the applicant's possession and use of the knife in these circumstances, as well as the commission of the offence in a public place, called for particular emphasis on general deterrence.
2. The sentencing judge noted that the applicant was on conditional liberty at the time of the offence, having been sentenced to an 18-month good behaviour bond only seven months prior to the offence. Her Honour observed that the commission of the offence in those circumstances suggested a contempt for the law, reinforced by the Pre-Sentence Report which noted that the applicant had a borderline response to supervision, with missed appointments and minimal intervention to address his offending. Her Honour considered that the objective gravity of the offence was "very high". Her Honour then observed the following (at [21]): "But for the offender's own youth (22 years of age at the time of the offence), I would regard the standard non-parole period as entirely appropriate to this offence."
3. I note that the error relied upon under ground 1 is based on this passage.
4. The sentencing judge found that the applicant expressed no remorse and maintained in effect that the stabbing was accidental. While he did express regret for the victim's death, he took no responsibility for causing the death, even to the extent that he continued to brandish the knife after being told by observers, including his own friend, to walk away.
5. The sentencing judge summarised the applicant's family history as set out in the two reports and the evidence of his father. Her Honour noted that the report of Dr Allnutt disclosed no alcohol or drug issues apart from some cannabis use and stated that the applicant was not seeing a mental health worker at the date of interview. Her Honour observed that the applicant had reported being kidnapped two weeks prior to the offence, and that he had been detained in a vehicle, handcuffed and threatened with a gun. The gun was discharged during the kidnapping and the applicant eventually escaped.
6. Her Honour noted that the applicant's account of the events and his symptoms in the aftermath suggested to Dr Allnutt that the applicant suffered post-traumatic stress disorder ("PTSD") as a result of the kidnapping. Her Honour then noted Dr Allnutt's observations, extracted above at [37], that PTSD would normally cause someone to avoid confrontation as it would trigger anxiety, but in some mild cases may make a person more prone to feeling anxious when under attack. Her Honour considered that these observations should be read in light of the information provided by the offender to Dr Allnutt about the offence, which was essentially the version given at trial and rejected by the jury. Her Honour noted that the residual symptoms observed by Dr Allnutt at the time of interview, namely "hypervigilance, social avoidance, intermittent nightmares, reduced quality of sleep and some depressive symptoms", could equally be consistent with the applicant's incarceration for the first time at a young age.
7. Her Honour concluded the consideration of the applicant's psychological conditions as follows (at [25]): "In any event, I do not accept that the offender's actions in the course of the commission of the offence are consistent with PTSD. To the extent that the offender's counsel submits that the offender suffers hardship in custody arising out of his PTSD, I do not accept that the condition is not capable of reasonably effective treatment, such as antidepressants, or that the offender's symptoms are more severe than the prospect of lengthy imprisonment inevitably produces." (emphasis added)
8. The sentencing judge took into account that the applicant suffered a number of stab wounds immediately after the offence, inflicted by the friends of the deceased. These wounds were not life-threatening but did result in his hospitalisation for a period of time.
9. In relation to future risk, her Honour noted that the evidence of the applicant's family was that the offending was out of character and he was not usually a violent person. Her Honour considered that it was difficult to assess the probability that the applicant would be dangerous in future due to his immaturity, noting however that the applicant had previously been resistant to intervention aimed at improving his insight into his offending. The sentencing judge assessed the applicant's prospects of rehabilitation as "reasonable" due to the support of his family. Her Honour made a finding of special circumstances given the length of the sentence, the applicant's youth and the fact that it was his first time in custody. Her Honour then imposed the sentence set out above at [3].

Applicant's submissions

1. Ground 1 contended for error in the observation of the sentencing judge extracted above at [45] that but for the applicant's own youth, her Honour would have considered the standard non-parole period of 25 years imprisonment to be appropriate. This was said to reveal error of the kind identified in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock").
2. Counsel for the applicant submitted that the impugned passage indicated that her Honour commenced her consideration of the appropriate sentence with the standard non-parole period and reduced it because of the applicant's age, contrary to Muldrock.

Crown submissions

1. The Crown submitted that where a ground of appeal contends for Muldrock error the sentencing remarks must be read fairly and as a whole: Zreika v R [2012] NSWCCA 44 at [43] per Johnson J with whom McClellan CJ at CL agreed. It was submitted that a reading of the judgment as a whole demonstrated that the sentencing judge did not fall into Muldrock error.
2. It was further submitted that this case could be distinguished from cases in which sentencing judges fell into Muldrock error by asking whether there was any reason to depart from the standard non-parole period: for example, TO v R [2017] NSWCCA 12 at [234]-[237]; Ryan v R [2019] NSWCCA 200 at [30], [33]-[35].
3. While the Crown accepted that Muldrock error will not be "saved" by the fact that the actual sentence imposed is less than the standard non-parole period (Trevor Essex v R [2013] NSWCCA 11 at [31]), it was submitted that the non-parole period imposed was so significantly below the standard non-parole period (in circumstances where the objective gravity was assessed as "very high") as to indicate that the sentencing judge did not use the standard non-parole period as a starting point and then reduce it to take into account the applicant's age.

Consideration: Ground 1

1. Specified standard non-parole periods ("SNPPs") were first inserted into the Sentencing Act in 2003. They are set out in the Table after s 54D of the Act in Part 4, Div 1A of that Act. The SNPP for the murder of a child is 25 years imprisonment.
2. Prior to the decision of the High Court in Muldrock in 2011, the Sentencing Act provided that an SNPP reflected the non-parole period for an offence assessed as falling in the mid-range objective seriousness following a plea of not guilty and the approach to take when sentencing for an offence to which an SNPP applied was as set out in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131. A two-stage approach was required which involved, first an assessment as to whether the offence fell within the mid-range of objective seriousness and, if it did, consideration of whether there was a basis to depart from the SNPP.
3. In Muldrock, the High Court held that such an approach should not be taken. The Court observed at [28] that: "Nothing in the [Sentencing Act] requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period."
4. Following the decision in Muldrock this Court heard a large number of appeals against sentence from applicants who had been sentenced consistent with the approach in R v Way, prior to the decision in Muldrock.
5. Section 54B was amended in 2013. The amendments are explained by Johnson J in Tepania v R [2018] NSWCCA 247 at [90]-[95]. Section 54B(2) now provides that the SNPP is a matter to be taken into account by a co urt in determining the appropriate sen tence for an of fender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate se ntence for an offe nder.
6. The applicant was sentenced on 20 September 2013, nearly eight years ago. It is now nearly ten years since the decision in Muldrock. Although applications alleging Muldrock error are now rare, this Court will intervene where error can be established. For example, in Ryan v R the Crown conceded Muldrock error in the following passage (at [30]): "The maximum penalties imposed by the legislature for these offences and the standard non-parole periods set reflect the community and legislature's concern to ensure that judges who sentence offenders for these types of offences are not merciful. The most serious offence is the forced fellatio with ejaculation [count 3]. It is a matter I find that falls within the midrange of objective seriousness as envisaged by the legislature and I can see no reason why I should depart from the standard non-parole period imposed by the legislature."
7. Similarly, in the decision of TO v R after the sentencing judge concluded that the objective seriousness of count 1 fell within the mid-range of objective seriousness but "probably … at the lower end of that range," her Honour observed the following (at [234]): "In particular there is clearly here a need to consider what if any departure there can be from the standard non-parole period of 15 years imprisonment. Given that the offender was convicted by a jury and there has been a finding that the offending falls within the mid-range, it is difficult to see that there should be a significant or substantial departure from the standard non-parole period."
8. Although the Crown in that matter did not concede error, Price J, with whom Button and Fagan JJ agreed, was satisfied that Muldrock error had been established. As Price J observed (at [236]): "At no stage did the judge refer to the standard non-parole period as a guide or yardstick. It appears that the judge placed determinative significance on the standard non-parole period. As error has been demonstrated, Ground 4 has been established. I would grant leave to the appellant to appeal against sentence."
9. These cases can be contrasted with the present matter. In the present matter her Honour did not make any finding of mid-range seriousness nor did she say anything about the SNPP having determinative significance. Moreover, the impugned passage of the reasons appears after Honour's finding that the objective gravity of the offence was "very high" and before her Honour made any findings about remorse or any other subjective factors. Further, at the end of the judgment her Honour stated the following at [29]: "The reasons provided for the imposition of a sentence invariably and necessarily focus on the offender. … The duty of this Court is to impose a sentence according to law, that is, a sentence which is warranted by a synthesis of all the objective and subjective circumstances."
10. The SNPP was 25 years imprisonment and the applicant was sentenced to a non-parole period of 18 years. He was not particularly remorseful, committed this senseless murder of a child whilst on conditional liberty and adhered at trial to a version which the jury and the trial judge rejected and which was inconsistent with the CCTV footage. Nor could his sentence be discounted for a plea of guilty. One of the only matters he had in his favour was his relative youth and her Honour placed significant weight on that factor. Her Honour also found special circumstances and reduced the non-parole period relative to the head sentence despite the length of the sentence.
11. But for the decision I have made under ground 2, I would have refused an extension of time to argue this ground.

Applicant's submissions

1. The applicant submitted that the findings of Dr Allnutt were "unchallenged and uncontradicted" and demonstrated that the applicant was suffering from a mental illness both at the time of the offence and when he came to be sentenced. The applicant referred to the observation of the sentencing judge I have extracted above at [50] regarding the history provided by the applicant to Dr Allnutt and submitted that by referring to the inaccurate account given by the offender to Dr Allnutt, her Honour "implicitly reject[ed]" the applicant's account of the kidnapping. The evidence showed that the applicant was suffering from PTSD at the time of the offence and when sentenced. It was submitted that it was not open to her Honour to "substitute her own view" that the applicant's symptoms were explicable by his circumstances in relation to his incarceration and his anticipated sentence.
2. The applicant relied upon the principles regarding mental illness in sentencing as set out by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa") and submitted that the sentencing judge ought to have found reduced moral culpability even if there was no causal link between the applicant's mental condition and his offending, although on the applicant's case Dr Allnutt did find a causal connection. It was further submitted that the applicant's mental illness would make him an inappropriate vehicle for both general deterrence and specific deterrence and that his time in custody would be more onerous.

Crown submissions

1. The Crown noted that none of the submissions now put in relation to moral culpability, general and specific deterrence and a causal link between the offending and the applicant's mental condition were put to the sentencing judge. Instead, Dr Allnutt's report was only relied on in a limited way in the sentence proceedings.
2. The Crown submitted that Dr Allnutt did not opine that there was a causal link between the applicant's mental condition and his offending. Nor did he expressly opine that the applicant's symptoms of PTSD and depressive disorder would make his time in custody more onerous. It was submitted that it was open to the sentencing judge to reject the submission that he would suffer hardship in custody and to find that her Honour was not satisfied that his mental health was not capable of reasonably effective treatment in custody.
3. The Crown submitted that there was no error of law in the sentencing judge failing to draw an inference as to a causal link where she was not asked to do so and reliance was expressly eschewed: W v R [2014] NSWCCA 110 at [180].
4. It was further submitted that it was open to the sentencing judge to treat the applicant's statements to Dr Allnutt and Dr Allnutt's subsequent findings with caution. This was consistent with her Honour's finding that the jury must have rejected much of the applicant's evidence at trial. In doing so, it was submitted that her Honour did not implicitly reject the applicant's account of the kidnapping. Rather, it was consistent with her Honour accepting the fact of the kidnapping but going on to find that she did not accept that the applicant's offending was consistent with a PTSD response. This finding was open to her Honour in light of the observations of Dr Allnutt about the effects of PTSD and the way in which the applicant's case was put on sentence.

Consideration: Ground 2

1. The principles derived from the numerous decisions of this Court concerned with the sentencing of mentally ill offenders were summarised by McClellan CJ at CL in De La Rosa at [177] as follows: "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. 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. 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. It may reduce or eliminate the significance of specific deterrence. 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." (citations omitted)
2. Two errors are relied upon in support of the claim that the sentencing judge erred in failing to ameliorate the sentence due to the applicant's mental illness.
3. The first alleged error was said to be the failure to find that the applicant's moral culpability was reduced due to the causal connection between his PTSD and his offending behaviour. One potential difficulty for the applicant under this ground is that in oral submissions before the sentencing judge, counsel for the applicant submitted that Dr Allnutt's report was relied on "only on two bases", namely as "general corroboration of background" and on the basis of hardship in custody. This was reiterated during the Crown's oral submissions as evidenced in the transcript I have extracted above at [41]. Nothing was added by way of reply when defence counsel was given the opportunity by the sentencing judge.
4. In fact, counsel for the applicant referred in written submissions to the applicant "engaging in an ever increasing bravado as the events unfolded". Dr Allnutt described symptoms seemingly inconsistent with this. Dr Allnutt made the observations extracted above at [36], that while PTSD can contribute to a heightened sense of personal vulnerability, the evidence was that the applicant initially approached the deceased and that PTSD would be more likely to cause a person to avoid situations similar to the original.
5. Given the limited way in which Dr Allnutt's report was relied on in the sentence proceedings, the question arises as to what extent this Court can identify error if the point was not raised before the sentencing judge. As Johnson J observed in Zreika v R at [81], in sentencing appeals to this Court: "… the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made."
6. Johnson J went on to observe at [82]: "In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may 'render a serious injustice' if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance." (emphasis in original)
7. As Johnson J accepted in this paragraph, this Court will entertain a ground of appeal contending for failure to have regard to a mitigating factor that was not specifically addressed at sentence if the overlooked factor was one that operated unequivocally in the applicant's favour. As McCallum J (as her Honour then was), Beazley P and Davies J agreeing observed in Griffin v R [2018] NSWCCA 259 at [36]: "While counsel's failure to address the issue in any helpful way was unfortunate and may go some way to explaining how the process may have miscarried, I do not think the observations made in Zreika should preclude the Court from entertaining the present ground. The ultimate question in sentence appeals is whether the applicant was sentenced according to law. That issue is not necessarily determined, as an issue raised in a civil appeal might be, by the answer to the question whether the point was taken in the court below."
8. When the CCTV footage, the jury verdict and the observations of Dr Allnutt about the effects of PTSD are considered, as well as the way in which the applicant's case was put on sentence, I am not satisfied that error is disclosed in failing to find a causal link. To put this another way, I am not satisfied that the state of the evidence was such that this Court would intervene to avoid a miscarriage given that this issue was not raised before the sentencing judge. For my part I am not satisfied that such a connection could be proved on the balance of probabilities.
9. The second error contended for under this ground was the failure to find that due to his mental health custody would weigh more heavily on the applicant. This conclusion relied in part on her Honour's finding that the applicant's symptoms were no different to anyone else experiencing custody for the first time. This finding led to her Honour declining to make a finding that the applicant's time in custody would be more onerous due to his PTSD.
10. Although Dr Allnutt did not expressly opine that the applicant's symptoms of PTSD and depressive disorder would make his time in custody more onerous, I am satisfied that that was the effect of his opinion. The applicant was not taking any medication nor seeing a psychiatrist or psychologist at the time of Dr Allnutt's report. He recommended that the applicant should do so. Despite this expert evidence her Honour found that the applicant would not find custody more onerous as he would receive adequate treatment in custody.
11. At no time did her Honour ever expressly reject the applicant's claim that he suffered from PTSD at the time of the killing. But nor did she ever expressly accept it. I have considered the Crown submission to the effect that it was open to her Honour to treat the applicant's statements to Dr Allnutt about his PTSD symptoms and Dr Allnutt's subsequent findings with caution given that the jury obviously rejected much of the applicant's evidence at trial. The difficulty with that submission is that, unlike his version of the circumstances of the killing, his account of the kidnapping and onset of symptoms is supported by contemporaneous documents.
12. The applicant was reporting to Community Corrections at the time of his kidnapping. Those records indicate that the applicant complained of PTSD symptoms weeks before the offence and Community Corrections arranged for him to see a psychologist. The case notes recorded that he was having trouble sleeping and was experiencing persistent troubling thoughts about the kidnapping.
13. Further, there is evidence to support the claim that the applicant was the victim of a kidnapping. The applicant reported the incident to police and the kidnappers were charged. Two of them pleaded guilty and then appealed against sentence to this Court: R v Speechley [2012] NSWCCA 130; Aubourg v R [2013] NSWCCA 154.
14. Further, it is well established that a person with a mental illness may well find the custodial setting more onerous than a person without a mental illness, even putting the question of treatment to one side. The extent to which that is so will depend on the particular mental illness, its symptoms, its severity and its treatment. The question is whether error is disclosed in the following finding by her Honour (at [25]): "To the extent that the offender's counsel submits that the offender suffers hardship in custody arising out of his PTSD, I do not accept that the condition is not capable of reasonably effective treatment, such as antidepressants, or that the offender's symptoms are more severe than the prospect of lengthy imprisonment inevitably produces."
15. The evidence established that the applicant had been kidnapped at gunpoint in the weeks before the offence and his incarceration. He had sought help and commenced seeing a psychologist, but treatment was interrupted due to his incarceration. He remained untreated in custody for two years and was then assessed by Dr Allnutt. The suggested treatment was consultation with a psychiatrist and a trial of antidepressants. Dr Allnutt described the symptoms of PTSD suffered by the applicant as: "intermittent palpitations, nightmares, avoidance, distress when exposed to cues that remind him of the kidnapping, inclusive [sic] recollections that relate to the kidnapping, hyper-vigilance"
16. In rejecting the contention that the applicant would face hardship in custody due to his PTSD her Honour referred only to the possibility of treatment but did not explain how a person with PTSD would not experience more severe symptoms in custody than in the community. The symptoms described would inevitably be more likely to be triggered in a violent custodial setting than in the community.
17. On the evidence before the sentencing judge, I am satisfied that it was not open to her Honour to find that, despite his PTSD, the applicant's time in custody would be no more onerous than that of any other offender being imprisoned for the first time.
18. I would uphold this ground.

Re-sentence

1. I am satisfied that ground 2 is established. Accordingly, I do not find it necessary to consider ground 3 which contended that the sentence imposed was manifestly excessive. Error having been established in the sentencing process, the Court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act by an independent exercise of the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].
2. The Crown submitted that in the event that error was found, no lesser sentence was warranted.
3. When this Court re-sentences an applicant it does so afresh, which involves putting the sentence imposed at first instance to one side. Simpson AJA explained it in this way in Aboud v R [2021] NSWCCA 77 at [4]-[5]: "The task of this Court in resentencing after error has been established in the sentencing process is, as stated in Kentwell v The Queen, to exercise its own sentencing discretion, independently of the sentence imposed at first instance. That task is not discharged by concluding that 'no lesser sentence is warranted in law', which is simply wrong unless the sentence imposed lies at the bottom of the available range. As the High Court said in Kentwell, any sentence within an available range is 'warranted in law'. The test stated by s 6(3) is a composite one, in two parts, the most important of which is the second - 'and should have been passed'… Sentencing is not an exact science and no one sentence can be said to be the correct sentence (as distinct from a correct sentence). Thus, any sentence that lies within the available range is 'warranted in law'. A lesser sentence than that imposed at first instance may, and often is, 'warranted in law'. It does not follow from that that the lesser sentence 'should have been passed'. That phrase implies that the established error in the sentencing process had the effect of wrongly elevating the sentence imposed, rendering the sentence excessive in the circumstances. Otherwise, it would not be possible to say that the other sentence 'should have been passed'." (footnote omitted)
4. An affidavit of the applicant sworn on 2 June 2021 was filed in the event that error was established. That revealed that the applicant has been incarcerated at Goulburn Correctional Centre in super maximum security since 2013 due to the length of his sentence. It will only be when he has 8 years or less to serve that he can be reclassified as "B" and move to medium security. Given he is in supermax he is only allowed out of his cell from 9am until 2pm each day. Twice per month there are scheduled "lock-ins" for 24 hours and staff shortages also result in inmates being locked in for three days at a time. There are limited programs and courses available to inmates. He has completed all of the courses available to him including in first aid, OH&S and infectious diseases.
5. Prior to the onset of the COVID-19 pandemic he worked in textiles from 7am to 1pm Monday to Friday, although work was not always available. That employment ceased completely due to COVID-19 and there is no longer any work for inmates.
6. As for his PTSD, he was previously able to see a psychologist and a psychiatrist every three months, but that also ceased due to COVID-19. He does not know when he will be able to receive such treatment again. This has led to his mental health declining since the onset of the pandemic. He now has to spend much more time in the yard because his employment has ceased. Violence is rife and inmates try to engage each other in conflicts. He no longer receives advice on coping strategies from the professionals he previously consulted. He does his best to avoid conflicts but being surrounded by so many other conflicts in the yard has led him to feel anxious and even more depressed. He states that "the danger is constant and I never feel safe".
7. On a positive note, his partner and mother of his two children has remained supportive. His children are now 12 years and 10 years old. He is able to speak with his family daily. He states that their ongoing support means he will have strong support to reintegrate into society. He is now remorseful stating, "I have had many years to think about what I did, and every day I think of all the things I could have done differently".
8. I would adopt the findings made by the sentencing judge with two exceptions. First, consistent with my finding in respect of ground 2, I am satisfied that the applicant's PTSD has and will make his time in custody more onerous. Second, her Honour was not satisfied that the applicant was remorseful. Given the evidence in the applicant's affidavit, I am satisfied on the balance of probabilities that he is now remorseful.
9. I would adopt the same findings as to objective seriousness. This was a very serious offence. The applicant armed himself with the knife, intentionally sought out the deceased with the intention of engaging in a further confrontation and had already resolved to assault the deceased when he was racially abused by him. The sentencing judge described the offence as a "cowardly, vicious, vengeful and premeditated attack" (at [19]) and found that its objective gravity was "very high" (at [21]). Her Honour found a strong need for general deterrence due to the possession and use of the knife and the commission of the offence in public on a crowded railway station.
10. The applicant was 22 years old at the time of the offence and had a minor criminal record. He was suffering from PTSD and had reasonable prospects of rehabilitation. The applicant was on conditional liberty at the time of the offence.
11. I would make a finding of special circumstances under s 44(2) of the Sentencing Act, as did her Honour.
12. The applicant is now 32 years of age. He has insight into his offending, has suffered from PTSD throughout his incarceration and has been negatively impacted in a particular way by the restrictions caused by the COVID-19 pandemic. Given his custodial record, his prospects of rehabilitation are now more favourable.
13. The effect of the decision in Kentwell is that this Court is to exercise the sentencing discretion afresh, putting the sentence imposed in 2013 to one side. When an appellate court re-sentences an applicant many years after his or her initial sentence, as in this case, it may be that an he or she presents a much more favourable case than when initially sentenced. This is one such case.
14. Having regard to the facts of the offence, the maximum penalty, the SNPP of 25 years imprisonment and all of the other factors relevant to the sentence I have made a value judgment as to what is the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] per McHugh J; confirmed by the Court in Muldrock at [26].
15. The orders I would propose are as follows: 1. Pursuant to r 3B(1)(c) of the Criminal Appeal Rules, extend the time within which the notice of application for leave to appeal may be filed to 12 January 2021. 2. Allow the appeal. 3. Quash the sentence imposed by Latham J on 20 September 2013. 4. In lieu thereof impose a non-parole period of 16 years imprisonment to date from 25 May 2011 and expire on 24 May 2027, with a balance of term of 7 years expiring 24 May 2034. The applicant is eligible for release on 25 May 2027.
16. CAVANAGH J: I agree with N Adams J.

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