McIlwraith v R

(a) legal principles

1. Count 7 contained a charge in the following terms, namely that the applicant, "On 18 June 2014 at Fairlight in the State of New South Wales, being armed with an offensive weapon, namely, a tomahawk, did break and enter the dwelling house … situate at 10 Baltic Street, and did commit a serious indictable offence therein, that is, he, the said Nathan McIlwraith, did intimidate Arthur Zervas with the intention of causing him to fear physical harm."
2. The offence was identified as one under s 112(2) of the Crimes Act 1900 (NSW). Section 112 relevantly provided as follows: 112 Breaking etc into any house etc and committing serious indictable offence (1) A person who: (a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or … (2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.
3. The serious indictable offence referred to in count 7 was an offence under s 13(1) of the Personal Violence Act, which relevantly provides: 13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
4. Part 11A of the Crimes Act codifies the law with respect to the relevance of intoxication in determining the mental element of criminal responsibility. Section 428A provides a number of definitions relevant to matters dealt with in Pt 11A. Importantly, the Part distinguishes between offences of specific intent and other offences. Section 428B contains the following definition: 428B Offences of specific intent to which Part applies (1) An offence of specific intent is an offence of which an intention to cause a specific result is an element. (2) Without limiting the generality of subsection (1), the offences referred to in the Table to this section are examples of offences of specific intent.
5. The table to s 428B contains two parts: part (a) identifies and lists offences of specific intent, while part (b) lists offences "to the extent that an element of the offence requires a person to intend to cause the specific result necessary for the offence". The distinction appears to be to distinguish between offences which always involve a specific intent, and those which may involve a specific intent, but may in some circumstances be satisfied otherwise.
6. Provisions within that Part draw a distinction between self-induced intoxication (that is, not an involuntary state of intoxication) and other forms of intoxication. The following provisions are relevant for present purposes: 428C Intoxication in relation to offences of specific intent (1) Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent. (2) However, such evidence cannot be taken into account if the person: (a) had resolved before becoming intoxicated to do the relevant conduct, or (b) became intoxicated in order to strengthen his or her resolve to do the relevant conduct. 428D Intoxication in relation to other offences In determining whether a person had the mens rea for an offence other than an offence of specific intent, evidence that a person was intoxicated at the time of the relevant conduct: (a) if the intoxication was self-induced - cannot be taken into account, or (b) if the intoxication was not self-induced - may be taken into account.
7. Two points should be made in respect of the operation of s 428C. First, the trial judge did not find (nor was it suggested that she should have found) that the exception in s 428C(2) applied in the present case; accordingly, the judge was entitled to take into account evidence that the applicant was intoxicated in determining whether he had the intention to cause the specific result necessary for an offence of specific intent. Secondly, s 428C merely renders evidence of intoxication relevant and admissible for the identified purpose; it does not require any particular finding. In other words, classification of an offence as one of specific intent and acceptance that the accused was intoxicated at the time of committing the relevant conduct does not require the formation of a reasonable doubt, nor acquittal on any other basis.

(b) factual circumstances

1. Counts 1 and 2 related to stealing from a property. The conduct the subject of both counts was alleged to have occurred on the same day and, given the sequence of events, before the conduct the subject of counts 5 and 7.
2. The evidence accepted by the sentencing judge was that Mr Zervas (who lived at 8 Baltic Street) came home shortly after 2.30pm on the day in question. He intended to collect some sporting equipment for his children and was walking down the side of the house when he noted that a panel had been dislodged from his shed and that the shed was in a mess. The applicant appeared from an alcove under the house wearing what was described as a "blue ski suit" belonging to Mr Zervas' father-in-law and usually stored at his premises. The applicant was also wearing a beanie and a dark shirt. He had a tomahawk in his hand which he lifted and approached Mr Zervas. Mr Zervas ran down the side passage and into the house next door (10 Baltic Street); the applicant followed him. Mr Zervas entered the laundry, shutting the external door behind him. From the laundry he entered the main part of the house where he encountered the occupant, Ms Hodgson-Croker, whom he asked to call the police. A few seconds later he heard glass smash and someone enter the laundry. He held onto the door handle of the interior door between the laundry and the house, which he felt being pressed down as if someone were trying to open the door.
3. The encounter at Mr Zervas' home was the conduct the subject of count 5, namely that the applicant possessed an offensive weapon, a tomahawk, and intimidated Mr Zervas with intent to cause him to fear physical harm. To that conduct the applicant had entered a plea of guilty. The conduct the subject of count 7 was breaking and entering the next door premises through the laundry and intimidating Mr Zervas there, with the intention of causing him to fear physical harm.
4. The applicant was then seen to leave the premises and return to Mr Zervas' house which he entered by breaking in through French doors. Shortly thereafter the police arrived and he was discovered lying partly under a bed and a doona in the main bedroom.

(c) reasoning of trial judge

1. To explain the reasoning of the trial judge, it is necessary to refer to the other counts on the indictment. Each of counts 1, 2, 3 and 8 involved theft. The judge accepted that offences involving stealing required an intention to permanently deprive the owner of his or her property and were therefore offences of "specific intent". There was evidence, both of the applicant's conduct on the afternoon in question and his own statement that he was, at the time of the alleged offending, under the influence of a drug, namely methylamphetamine or "ice". He was therefore intoxicated within the meaning of "intoxication" in s 428A of the Crimes Act.
2. Section 428B, as well as defining an "offence of specific intent", [1] contains a table listing "Examples of offences of specific intent." While s 112 of the Crimes Act was not contained in the list of offences in the table, that was of limited significance, because the table expressly identified itself as containing only "examples". Furthermore, s 112 was by no means an obvious example to include, because it refers to breaking and entering premises and committing a serious indictable offence therein. It is the particular serious indictable offence which must be an offence of specific intent. Section 13 of the Personal Violence Act might have been included, but is not because the two sub-headings in the table both refer to offences under the Crimes Act. Neither, it should be added, was its predecessor, s 562AB of the Crimes Act, so listed. [2]
3. The trial judge was satisfied that the accused was affected by a substance which was probably methylamphetamine. However, it was largely the "odd and even bizarre aspects" of his conduct which led her to entertain a reasonable doubt as to whether he had an intention to permanently deprive persons of their property. [3]
4. Turning to count 7, the judge (a) put to one side the accused's state of intoxication, (b) took into account the admission made by the accused in relation to his state of mind for the purposes of count 5, and continued: [4] "That admission at least establishes that at that time the accused knew that his conduct was likely to cause fear to Arthur Zervas. It is trite to observe that anyone would know that emerging from a shed or alcove to confront and follow a person one does not know, dressed in a ski suit and wielding an axe is likely to cause that person to fear."
5. The trial judge then considered other elements of the offence, concluding first that the accused was armed with a tomahawk when he broke into the neighbour's dwelling house. In considering that issue, the judge rejected the evidence of the accused that he had put the tomahawk down before entering the laundry and had picked it up again after leaving the laundry. (There was no doubt that he had taken the tomahawk with him when he later entered Mr Zervas' house, it being found near him in the main bedroom when he was arrested.) The judge then made findings with respect to other elements, namely that he broke into the laundry and entered the dwelling house. [5] The next finding was that Mr Zervas was intimidated by the actions of the accused. The judge relied on Mr Zervas' evidence, the evidence of the neighbour, Ms Hodgson-Croker, that he had "an ashen grey face", and the evidence of another woman in Ms Hodgson-Croker's house who heard him call out "that he was being chased by a man with an axe", and who then "saw him holding onto the door handle." [6]
6. The critical passage in the reasoning as to the state of mind of the accused was as follows: [7] "The state of mind of the accused at the time can be determined from what he did at the time and from his evidence as to what was on his mind at that time. In that respect the evidence of the accused is contradictory. On the one hand he said he was thinking about the occupants of the house and whether he would frighten them, and he admits that his conduct in relation to Arthur Zervas when he first encountered him only moments before would have caused Arthur Zervas to fear physical harm, yet he denies that his conduct in the laundry would have caused Arthur Zervas to fear harm. I reject the accused's evidence on this point. Apart from the fact that it does not make sense, it is highly unlikely that the accused did not know that his conduct was likely to cause Mr Zervas to fear physical harm. That conduct was in some sense a continuation of his earlier conduct, but it was even more threatening involving, as it did, pursuing Arthur Zervas into the laundry by breaking the door and then moving the handle as if he wanted to continue his pursuit of him and, of course, during this pursuit the accused had an axe. The possession of the axe is fundamentally important. Contrary to his evidence, I find that the accused must have known, and did know, that his actions were likely to cause Arthur Zervas to fear physical harm."
7. Subject to one matter, the reasoning is self-explanatory. The reference to the accused's contradictory evidence in relation to the occupants of the house is explained in a passage rejecting the evidence of the accused that he did not carry the axe (or tomahawk) into the laundry: [8] "The third reason that I reject the accused's evidence on this point is that it seems to me inherently implausible that he would carefully place the axe down before entering the house and then retrieve it upon leaving. It is inherently implausible that he would pause to think about causing fear to occupants in the house and so place the axe aside. It is not consistent with his earlier actions in relation to Arthur Zervas, and it is not consistent with his latter actions in taking the axe into [Mr Zervas' house]."
8. After concluding that count 7 did not involve an offence of specific intent, thus not permitting her to take account of the fact that the accused was intoxicated, the judge concluded that if she were wrong in that regard her finding would nevertheless be the same, namely that she was satisfied beyond reasonable doubt that the applicant did intend to cause Mr Zervas to fear physical harm.

(d) appeal ground 1

1. Although the trial judge was not taken to any case law with respect to the identification of offences carrying an element of "specific intent", the statutory definition in s 428B is clear in its terms. Without regard to authority, there was good reason for the judge to accept that the elements sufficient for proof of specific intention for the purpose of s 13(3) of the Personal Violence Act did not engage the definition of an offence of specific intent.
2. There is no doubt that s 13(1), read in isolation, would constitute an offence of specific intent, being an intention to cause the other person to fear physical or mental harm. However, subs (1) cannot be read in isolation from subs (3). Thus it is sufficient to satisfy the specific intent identified in subs (1) if the accused "knows" that his or her conduct is "likely" to cause fear in the other person. The judge accepted that knowledge of a likely result is a lesser requirement than an intent to cause a specific result. [9] Therefore, the trial judge's primary reasoning did not take into account the state of intoxication on the part of the applicant.
3. Ordinary linguistic usage recognises a distinction between intention and knowledge. The same is true when the language is used in the context of the criminal law. Knowledge that a particular consequence is likely is distinct from an intention to cause that consequence. The language of subs (3) reflects the general law notion of reckless indifference, which is understood to be different from intention. The Director submitted that subs (3) did not engage the definition in s 428B.
4. There is, however, an alternative reading. The offence created by s 13(1) is clearly an offence of specific intent; s 13(3) expands the scope of that offence in a manner analogous to that by which the mental element in murder can be satisfied by reckless indifference to human life. Even where the prosecution relies upon s 13(3), what has to be proved is a specific state of mind of the accused; that exercise is the same as that required to prove intent. Intoxication will be relevant to proof of knowledge in the same way as it is with respect to proof of intent. Accordingly, a purposive construction would support the conclusion that s 13(1) remains an offence of specific intent, despite the fact that intent can be proved by proof of particular knowledge.
5. There is support for this approach in the history of Part 11A of the Crimes Act, discussed by Wood CJ at CL in R v Grant [10] and, more recently, by Macfarlan JA in Harkins v R. [11] The intention behind Part 11A was to adopt the approach accepted by the House of Lords in Regina v Majewski, [12] an approach which had been rejected by the High Court in The Queen v O'Connor. [13] Thus, in explaining the role of intoxication, Lord Simon in Majewski stated: [14] "The criminal law prohibits certain defined conduct (actus reus). But it goes on to say that a person who perpetrates such conduct is not criminally responsible, in general, unless such conduct is accompanied by a wrongful state of mind which is expressed or implied in the definition of the offence (mens rea). This wrongful state of mind can vary greatly with the various offences …. Mens rea is therefore on ultimate analysis the state of mind stigmatised as wrongful by the criminal law …."
6. In Regina v Stones, [15] this Court, in considering intoxication in its application to murder involving reckless indifference to human life, said that, "as it [reckless indifference] involves a state of mind, it [intoxication] becomes relevant in the same way as in the specific intent cases." The Court then noted the practical consequences of drawing a distinction between cases of specific intent and those involving reckless indifference, in directing a jury.
7. In Grant, Wood CJ at CL undertook a comprehensive analysis of the operation of Pt 11A in its application to murder. To the extent that murder involves an intention to kill or to inflict grievous bodily harm, it is clearly an offence of specific intent. However, he held that the same cannot be said of homicide resulting from reckless indifference as to the consequences for human life; in that case "it is strictly not a crime of specific intent". [16] After citing a number of authorities, including Brennan J in He Kaw Teh v The Queen, [17] Wood CJ at CL continued: [18] "These passages, and particularly that in He Kaw Teh, do need to be understood in their context. It is the case that a relevant state of mind, such as knowledge, or specific intent, can be inferred from conduct, or from the circumstances in which an act is done …. It does not, however, follow that intent and knowledge are synonymous, or equivalent states of mind for all purposes."
8. Nevertheless, Wood CJ at CL concluded that Part 11A should not be given a differential operation in relation to murder depending on the mental element involved, relying on, (i) the purposive rule of interpretation embodied in s 33 of the Interpretation Act 1987 (NSW); [19] (ii) the presumption that criminal legislation be given an interpretation beneficial to the liberty of the individual in the case of ambiguity; [20] (iii) the historical context, including the intention to give effect to the reasoning in Majewski; [21] (iv) the potential complexity of directions to a jury where a case of murder is left upon the separate bases of specific intent and reckless indifference [22] and (v) the specific reference to the offence of murder in part (a) of the table to s 428B(2). The last point depends on part (a) identifying offences of which specific intent is a necessary element, by contrast with part (b) listing offences "to the extent that an element of the offence requires a person to intend to cause the specific result".
9. Some of these considerations are clearly specific to the offence of murder, others are not. Generally, it is necessary to apply caution in comparing the concepts of "intention", "recklessness" and "knowledge" in different statutory contexts. For example, s 4A of the Crimes Act states that "[f]or the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge." It is not necessary to explore the significance of this provision as it does not apply to the Personal Violence Act, which, in any event, did not use the term "recklessness". Further, s 4A post-dated the judgment in Grant. [23]
10. Adopting the reasoning in Stones and Grant, the particular form of the mental element identified in s 13(3), although not in truth a form of intention, is a relevant state of mind having a specific or particular focus and is thus distinguishable from the general intention required in relation to the conduct constituting an offence (which is not subject to considerations based on intoxication). Because subs (3) uses language associated with reckless indifference, it is closely analogous to the particular state of mind necessary for specific intent.
11. The provisions of Part 11A dealing with intoxication, understood in their conceptual context within the criminal law, are concerned with circumstances in which a particular state of mind is required and can be characterised as wrongful. A particular state of mind can involve a specific intent to achieve an identified consequence (as in s 13(1)) or, (as in s 13(3)), matters of which the accused is aware (knowledge) and consequences which he or she knows to be likely. It is therefore coherent to treat as an offence of specific intent, one which can be proved by knowledge of specific matters in the same way as one where the state of mind involves a specific intention, and thus subject to the provisions of Part 11A. The underlying distinction, which is preserved by this approach, is between refusing to allow intoxication to remove what is described as "general intent", and allowing it to be taken into account in considering a specific intent. This is an application of the principles of interpretation identified at (i) and (ii) in [36] above.
12. The practical considerations relied on in Grant also support this conclusion. Subject to one further issue, the complexity of jury directions if a charge could be based on specific intention (regarding consideration of intoxication) and knowledge of likely consequences (not permitting such consideration) is a significant reason to doubt that the legislation was intended to be so understood. Although neither party referred to Grant, either before the trial judge or in this Court, that case supports the applicant's submissions as to error. If murder, which can be based on reckless indifference, is always to be treated as an offence of specific intent, the legislative scheme should be understood as including an offence under s 13, whether based on a specific intention or a form of reckless indifference. The statute (s 428B) could not properly be read as encompassing reckless indifference in relation to one offence of specific intent, but not another, absent a justification which does not appear in the present case.
13. The further issue referred to in the preceding paragraph in relation to the potential complexity of jury directions is whether s 13(3) may be a sufficient, but not a necessary, basis for establishing intention under s 13(1). That should follow because subs (3) adopts the structure "a person intends … if he or she knows …". Had it been intended to provide an exclusive method of proof of intention, one would expect the drafter to have used the expression "if and only if", rather than merely "if". On the other hand, in the previous subsection, subs (2), in providing an expansive reading of "causing a person to fear physical or mental harm", the drafter used the term "includes", making it clear that what followed was not an exhaustive provision, although that might, in any event, have been clear from the subject matter. Such language was eschewed in s 13(3). However, the better view is that subs (3) is expansive and not exhaustive: in other words, the offence can be established by proving an intention to cause a person to fear physical or mental harm, without reference to subs (3). This is in part because of the effect of reckless indifference in determining criminal responsibility (for example, it does not create a lesser form of murder) and the fact that s 13(3) uses the language of reckless indifference.
14. Accepting that s 13(1) is an offence of specific intent, however, does not result in the conviction being set aside. Having dealt with count 7 on the basis that it did not involve an offence of specific intent, the trial judge continued: [24] "In the event that I am wrong about whether I can take intoxication into account on this offence, my finding is that, even taking into account the fact that the accused was intoxicated, I make the same finding. Despite his intoxication, I find that the accused must have known and did, in fact, know that his conduct was likely to cause Arthur Zervas to fear physical harm. Accordingly, I am satisfied beyond reasonable doubt that the accused did intend to cause Arthur Zervas to fear physical harm."

Challenge to factual findings - ground 3

1. As noted above, the applicant was given leave in the course of the hearing to formulate a fresh ground challenging the factual findings which supported the conclusion that, taking account of his drug-induced state of intoxication, the elements of the s 13(1) offence were made out. It will be recalled that whilst count 5 related to the confrontation between the applicant and Mr Zervas in the side passage of his home, the offence identified in count 7 referred to the conduct of the applicant whilst in the laundry of the neighbouring house. The factual challenges raised at the hearing of the appeal related to the finding that the applicant had the tomahawk with him in the laundry and, secondly, his state of mind at that time. The amended notice of appeal was limited to the latter point, but both will be addressed.
2. The applicant's case with respect to the tomahawk was, primarily, based on his own evidence that he had laid the tomahawk down before entering the laundry, and picked it up again on his departure. He urged that that should have been sufficient to raise a reasonable doubt in the judge's mind. That was because Mr Zervas could not see what was going on in the laundry and Ms Hodgson-Croker, who did observe some of the activities in the laundry, did not see the tomahawk in the applicant's hand until he was leaving the laundry.
3. With respect to his state of mind, the applicant placed reliance upon the fact that his plea with respect to count 5 did not constitute an admission as to his state of mind at the later stage when he was in the laundry and noted his own evidence that when he realised that he might be causing concern to those in the house, he left.
4. Dealing first with the presence of the tomahawk, the finding of the trial judge rejecting the applicant's evidence that he had not taken the tomahawk into the laundry was referred to above. [25] The judge gave three reasons for rejecting the applicant's evidence in this regard. The third reason has already been identified; [26] it was, in short, that the accused's account was "inherently implausible".
5. The second reason was that the damage done to the laundry door was consistent with it being caused by the tomahawk. There was no challenge to that finding which, it may be inferred, the applicant did not treat as sufficient to warrant a conclusion beyond reasonable doubt that he took the tomahawk into the laundry.
6. The first reason depended on the evidence of the occupier of the house, Ms Hodgson-Croker. Her evidence was accepted, the judge stating that she "impressed me as a careful and accurate witness." [27] The specific finding that she had seen the applicant with the tomahawk "immediately after he had left the laundry" was also not challenged by the applicant, again presumably on the basis that it was not sufficient to warrant a finding beyond reasonable doubt that he had the tomahawk with him when he was in the laundry.
7. The evidence underlying the judge's findings should be considered further. The external door to the laundry led into a carport. The laundry door was a little above ground level and there were two steps from the carport floor up to the door. Ms Hodgson-Croker described the action of Mr Zervas inside her house, holding onto the handle of the internal laundry door. She said she then went out onto her veranda and could look through the window into her own laundry. The relevant testimony was as follows: [28] "Q. How long did you have Mr Zervas under view? From the time he's come in. A. It would have been pretty quick, I mean, it must have been, like, 20 seconds because, you know, he's come in, he's asked for Barbara, he's hanging onto this door, he's ashen faced. By the time I've run across the room, pick up the phone, started dialling triple-0, it's probably 20 or 30 seconds and then I've run out the door." [She then said she could see through the window that the applicant was going through her laundry cupboards and pulling things out.] "Q. So did you see him leave the laundry? A. Yes, I did. Q. By what door did he leave? A. The external door. Q. Where did he go from there? A. So he came out of the laundry door and I went round to tell him to leave because I was on the phone to the police and at that time he came out and stood - … he was in front of me, in the carport. Q. Did you see whether he had anything in his hands at that point? A. Yes he did. He had an axe in his hands. … Q. So you've see[n] him come out, you told us he was carrying the axe? A. Mm-hmm. Q. What, if anything, did he do from there? A. He stood there with the axe in his hand, and I was telling him to leave and that I was on the phone to the police and to leave and go now, go now. At that point he seemed dazed and then he slowly walked backwards. So he progressively walked backwards, and as he walked backwards he looked into the first car in my carport …. … And he looked in there and saw, saw that there was nothing but he brandished the axe with his hand, and then he kept walking backwards and then he looked in the next car, which is a four-wheel drive and looked into that, peered in that, and then brandished the axe and then left up the driveway towards Baltic Street …. [The witness was asked how far she was from him when he was looking in the car and said:] A. At first we were pretty close, … so maybe a metre and a half, maybe even closer. … So he was very close to me at that point. And I probably then, as I realised he had a, had an axe in his hand, I stepped back a little bit more but kept telling him to leave because the police were coming."
8. As the trial judge accepted, that evidence was not consistent with the applicant having put down the tomahawk before entering the laundry and then picked it up as he left. Ms Hodgson-Croker saw him leave the laundry and saw that he had "an axe" in his hands at that time.
9. The applicant's account was in the following terms in his evidence-in-chief: [29] "Q. You said you followed him through the door? A. Yeah. Q. I want to concentrate on the outside door …. A. Yep. Q. Was that open or closed when you got to it? A. No, the door was open. I followed him through the door, it was open. I didn't walk in with the tomahawk inside the laundry door, I left it, basically out the front of the porch sort of area and - because I wasn't going to walk into someone's house with that in me hands, just in case it wasn't who I thought it was, you know." The witness was shown a photograph looking across the carport at the laundry door. The photograph showed a pot plant to the left of the door, a step up to the level of the door and a shelf to the right with numerous runners and other shoes on it. The questioning continued: "Q. Are you able to see where you left the tomahawk? A. I don't see it there, but no, pretty much on the seat - on the table, on either the step or the pot plant or maybe even the shoe rack. It was very close to the door. I needed it like close to me just in case the police came but I wasn't - I never walked in with it, yeah. … Q. Once you got into the laundry, you said you tried to open what must have been a second door? A. Yes, that door was shut. I tried to open it. I could hear him screaming in the background. I could hear that I know now is Catherine screaming in the background. She was saying that she had kids. Catherine came around basically, around the side near that fence where she was saying and it felt to me - I observed it in the way I seen it and it was like she was leaning over the fence telling me to piss off and she had kids and police were on the way basically and she said it to me, like a few times. I didn't want to be there to intimidate - I wasn't there to intimidate them in that way, so I knew I was in the wrong and at the same time I was a bit disorientated. I knew I needed to get out of there. I believed the police were coming and I wanted to get out."
10. In the cross-examination of the applicant, dealing with the short period between his first confrontation with Mr Zervas and his entry to the laundry of the neighbouring house, the following exchange occurred: [30] "Q. So we're clear, I'm talking about in the laundry now. A. Yep, yep. Q. You were holding the handle, trying to get into the house, weren't you? A. The one that he had his hand on the other side? Q. Yes. A. Yeah. Q. How long did that go on for? When you were both holding the handle? A. I don't think it went on for that long at all, I don't think it [went] on for over a minute. I'm pretty sure that, that it only would have happened for, like, five or ten seconds max. Q. Well, let's say it was five seconds. A. Yeah, it would have seemed like a long time to them people of course, yeah. … Q. Let's assume it was five seconds, you must have realised immediately that this man is scared? A. Yeah. I, I, I, I, I realised he was scared, now, I realised he was scared at the time, I realised that they were scared, that's why I left, you know…." [31]
11. The trial judge was entitled to be satisfied beyond reasonable doubt that the applicant took the axe into the laundry with him. Indeed, as she stated, the applicant's account of putting it down and picking it up again was inherently implausible.
12. The evidence given by other witnesses, including Ms Jones, who lived in a house on the other side of the street, and saw the applicant chasing Mr Zervas with something raised in his hand (which she thought was a hammer) left little doubt as to the conduct of the accused and led to the finding of fact (made disregarding the effect of the drugs) that it was "highly unlikely that the accused did not know that his conduct was likely to cause Mr Zervas to fear physical harm." [32] The admission set out at [52] above was sufficient to justify the conclusion that the effects of the drug did not prevent him understanding the likely consequences of his conduct. Accordingly, the conclusion reached by the trial judge, even taking his intoxication into account, was open on the evidence.
13. With respect to the challenge to the fact-finding, there is no doubt that it was an afterthought on the part of counsel for the applicant, realising the significance of the alternative finding made by the trial judge on the basis that intoxication was a relevant consideration. There was ample evidence, however, to support the findings that were made and no basis for concluding that the judge ought to have had a reasonable doubt in respect of the two factual issues under challenge. For these reasons, leave to appeal on this ground should be refused.

Sentence - special circumstances

1. There is no challenge to the 4 year sentence imposed for the offence under count 7. The proposition underlying the appeal against sentence is that the judge should have found there were special circumstances for the purpose of s 44 of the Crimes (Sentencing Procedure) Act and should have varied the non-parole period so that it constituted less than 75% of the overall sentence. That would be achieved by increasing the proportion constituting the balance of the term beyond one-third of the non-parole period.
2. The error in this regard is said to have arisen from the following passage in the reasons given by the trial judge in sentencing the applicant: [33] "The second matter I must consider before imposing sentence is whether there are special circumstances. Ultimately, because of my finding in relation to his prospects of rehabilitation, I have determined that there are no special circumstances in this case, and I decline to find any circumstances that would constitute special circumstances."
3. The objection to this passage appears to have been that it failed to take into account in express terms a submission made on behalf of the applicant, namely that incarceration had failed to break what was described as a "cycle of offending and drug use". In his 34 years, the applicant had spent 17.5 years in custody and during the last 18 years had been outside prison for only 18 months. [34] It was submitted that a longer period of parole would allow him to enter a "long term residential rehabilitation program outside of prison." [35] No other circumstance was relied on to justify a finding of special circumstances.
4. As noted by the Director on the appeal, the judge expressly dealt with prospects of rehabilitation, to which that submission was directed, in the following terms: [36] "I cannot find, and I do not find, that he is unlikely to re-offend. I cannot find, and I do not find, that he has good prospects of rehabilitation. I do not find that his prospects of rehabilitation are hopeless. I hope, and I think there is reason to hope, that rehabilitation will be achieved, but I do not think that he has demonstrated a great deal, if any, of real insight into the nature of his offending, and the fact that it has been continuous throughout much of his adult life."
5. That assessment was undoubtedly open in the circumstances. One circumstance of significance was that the applicant had been released from custody only six weeks before the present offending. He was on parole at the time of the present offending. There was indeed, as the sentencing judge said, little beyond "hope" to suggest that the next period of parole would be more productive.
6. A finding of special circumstances in the present case would have been remarkable. That no such finding was made is unremarkable. Leave to appeal against sentence should be refused.

Orders

1. The Court should make the following orders: 1. Refuse leave to appeal with respect to the challenge to findings of fact. 2. Otherwise dismiss the appeal against conviction. 3. Refuse leave to appeal against the sentence imposed in the District Court on 20 November 2015.
2. JOHNSON J: I agree with the orders proposed by Basten JA and with his Honour's reasons for making those orders.
3. BUTTON J: I agree with the proposed orders of Basten JA, and with the reasons of his Honour for them.

Endnotes

1. See at [13] above.
2. Section 562AB (as amended) was inserted by the Crimes Amendment (Apprehended Violence) Act 1999 (NSW) and repealed by the Crimes Amendment (Apprehended Violence) Act 2006 (NSW).
3. Judgment, pp 22-23.
4. Judgment, p 25.
5. Judgment, p 27.
6. Judgment, p 28.
7. Judgment, pp 28-29.
8. Judgment, p 27.
9. Judgment, p 21.
10. (2002) 55 NSWLR 80; [2002] NSWCCA 243 (Spigelman CJ, Kirby J agreeing).
11. [2015] NSWCCA 263 at [27]-[37].
12. [1977] AC 443.
13. (1980) 146 CLR 64.
14. Majewski at 477-478.
15. (1956) 56 SR (NSW) 25 at 34 (Sir Kenneth Street CJ, Roper CJ in Eq and Herron J).
16. Grant at [33].
17. (1985) 157 CLR 523 at 570; Grant at [65].
18. Grant at [66].
19. Grant at [67].
20. Grant at [67].
21. Grant at [67].
22. Grant at [97].
23. Section 4A was introduced by the Criminal Legislation Amendment Act 2007 (NSW), Sch 3[1].
24. Judgment, p 29.
25. See [25] above.
26. See [27] above.
27. Judgment, p 26.
28. Tcpt, pp 60-64.
29. Tcpt, pp 112-113.
30. Tcpt, pp 130-131.
31. Emphasis added.
32. Judgment, p 28.
33. Judgment on sentence, 20 November 2015, p 12.
34. Tcpt, 20/11/15, p 8.
35. Tcpt, p 8.
36. Judgment on sentence, pp 11-12. 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: 22 February 2017