McVittie v R

Court of Criminal Appeal (NSW)|2015-05-01|Before: Hoeben CJ, Hulme J, Wilson J

Solicitors: Solicitor for Public Prosecutions File Number(s): 2013/36443 Decision under appeal Court or tribunal: District Court Date of Decision: 4 December 2013 Before: Hosking ADCJ File Number(s): 2013/36443

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.

Facts

The Crown's written submissions provided the following very useful and succinct summary of the objective facts of the offending: "Both offences arose from events on 5 February 2013 when the victim was invited to attend the applicant's house. When he arrived, the applicant confronted the victim with a 30cm knife and detained him. There followed a prolonged ordeal during which the applicant inflicted numerous acts of violence upon the victim. The applicant continually threatened the victim with the knife throughout the incident, and used it to stab him on three occasions. He also struck the victim forcefully with a dumb bell bar and a hammer as well as punching him to the face. The injuries sustained by the victim included three stab wounds (left shoulder blade, left thigh and chest area). The offender's purpose in carrying out these actions was to try to get the victim to agree with his (delusional) belief that the victim had been at his back fence the night before, talking with the applicant's ex-girlfriend and others about killing the applicant."

Personal circumstances of the applicant

The applicant was born in 1979 and so was aged 33 at the time of offences. (The applicant has an alias, Christopher Neal McVittie with a date of birth in 1981, and under that guise he would have been aged 31.)
The applicant has a criminal history which, excluding driving offences, comprised an offence of intimidating a police officer in the execution of his/her duty in 2007 and a matter of assault in 2009, for each of which he received a 12 month good behaviour bond. He had not been in gaol before his arrest for the present matter.
Counsel for the applicant tendered in the sentence proceedings reports by Dr Stephen Allnutt, forensic psychiatrist, dated 2 April and 1 November 2013 and a letter written by the applicant apparently in June 2013. He called the applicant's father to give oral evidence. Written submissions were provided which were supplemented by brief oral submissions.
In the first report which resulted from interviewing the applicant on 19 March 2013, Dr Allnutt obtained an account of the events of 5 February 2013 which clearly indicated that his actions were the product of delusions. For example Dr Allnutt reports that the applicant told him: "By the time of the alleged offence he said he had got rid of his ex girlfriend; he believed that she was trying to get him murdered; the night before the alleged offence he believed that his girlfriend had been conspiring to kill him; he believed that he had previously seen people pointing guns at him; when he had brought this up with her she seemed to be blank about it which meant to him that she already knew. … The night before the alleged offence he said that Uresh was having sex with Rachel, as bait; he was having sex with her to bait your client; he knew this was happening because he had gone to look for them; he said he had gone to a stormwater drain at the back of the house; he explained that he had gone to the stormwater drain because on a previous occasion, he had heard them through the stormwater drain plotting to kill him; he had heard Rachel and Justin and had been hearing this for a number of months prior to the alleged offence; he heard them say 'what's his knife gonna do to your shotgun'. … Uresh rang; he said he went to Leumeah; he said that Uresh asked him if he could come over; he thought Uresh might have asked him if he could come over in order to 'finish the job from the night before', 'or maybe have a choof'; he told him that he was a dead c*** and hung up; Uresh persisted that he wanted to come over and your client concluded, based on Uresh's insistence, that Uresh's plan was to kill him."
The applicant gave an account to Dr Allnutt of having first used cannabis at the age of 17 and having used it on a reasonably regular basis ever since. He had first used methamphetamines from about early 2012 and over the years had experimented with cocaine and speed.
The applicant's first contact with a psychiatrist was in 2000 when he had been admitted to Waratah House in Campbelltown for a drug induced psychosis. He was again admitted to Waratah House in August 2012. At the time of the offences he was receiving medication by way of Largactil and Endep.
The life history given to Dr Allnutt indicated that there was nothing particularly significant about his early years at school, at university and in employment, although in relation to the latter he had lost jobs because of poor attendance as a consequence of drug and alcohol abuse.
The applicant had had one serious relationship; with Rachel who he had met in 1996 and with whom he had a daughter. He told Dr Allnutt that he had broken up with her in late 2012.
Dr Allnutt concluded that the applicant manifested (as at 19 March 2013) symptoms consistent with psychosis, characterised by persecutory delusions in which he believed that a number of people had been conspiring with Rachel to have him killed. In Dr Allnutt's view the appropriate diagnosis was one of probable paranoid schizophrenia. Dr Allnutt also concluded that drug use had probably contributed to prior episodes of psychotic symptoms. Dr Allnutt stated: "His functioning, in my view, at the time that he saw me was significantly impaired particularly in interpersonal relationships and social relationships as a consequence of ongoing unresolved psychotic symptoms despite the prescription of antipsychotic medication in the form of Solium and Largactil that he continued to take."
Dr Allnutt concluded that the applicant was fit to be tried but expressed the view that he would have available to him a defence of mental illness in that he had a defect of reason arising from his delusions and hallucinations causing him to make irrational interpretations of events that were occurring in his environment. He considered it unlikely that he would not have been able to understand the nature and quality of his actions but was severely compromised in his capacity to know the wrongfulness of those actions.
The letter written by the offender was undated but bore a stamp from the Legal Aid office at Campbelltown dated 13 June 2013. It was addressed to the victim (Mr Uresh Mendis) and at the outset purported to "express my sorrow, remorse and regret over the incident that happened between us on the 5th of February this year". It included, however, that the victim "obviously felt aggrieved enough to not tell the truth over what happened that day", claiming that Mr Mendis had lied in his "statement of facts" (presumably his police statement). The letter continued by saying that, nevertheless, the applicant was sorry for his actions and hoped that Mr Mendis' injuries had healed quickly. The applicant asked for forgiveness; acknowledged that their friendship was probably over; wished Mr Mendis "nothing but the best in life"; and concluded by restating that he was "sorry, remorseful and regretful".
Dr Allnutt's second report of 1 November 2013 arose from a further interview with the applicant on 29 October 2013. Dr Allnutt augmented the history originally obtained from the applicant. This included that at the time of the offences he had been taking his prescribed medication irregularly. He told Dr Allnutt that his mental state had changed in relation to what had occurred at the time of the offending. He now thought he may have been mistaken about things such as people chasing him with shotguns. He believed that his mental illness made him think that. He now understood that he had schizophrenia. At the time of the offences his thinking was irrational. He denied a continuing belief that there were any plots or conspiracies.
The applicant also told Dr Allnutt that he had not attended any drug and alcohol counselling in prison; he had had a positive urine test a month before (but claimed that there was an innocent explanation which the judge doubted); and that he had continued taking his medications. The applicant said that he believed he needed his medications as they kept him normal; he had continued seeing a psychiatrist; and he had no interest in taking drugs. He also said that he was receiving visits from his fiancé (Rachel), daughter and his parents.
Dr Allnutt's mental state examination was expressed in more positive terms than previously but included, "there were probably some residual symptoms of psychosis related to prior delusional experiences".
Although Dr Allnutt remained of the opinion of the applicant's psychiatric illness as expressed in his original report, he added that "there has been amelioration in his symptoms from the time that I first saw him, likely secondary to antipsychotic medication".
Dr Allnutt's second report was prepared for the purpose of sentence proceedings; the applicant had entered a plea of guilty and had thereby abandoned any reliance upon a defence of mental illness. Dr Allnutt included in this report his opinion that the applicant's "mental illness made a significant contribution to his offending". He recommended that the applicant continue to follow up with a psychiatrist on a regular basis; take antipsychotic and mood stabilising medication; abstain from substances absolutely; and pursue formal drug and alcohol rehabilitation.
The applicant's father's oral evidence included that he remained supportive of his son and visited him weekly. He said that he had noticed signs of change in that he had become "just more like his old self". He said that he had discussed the offences with the applicant and had been told "that he's extremely remorseful for his actions". The judge intervened at that point and asked whether the applicant had in fact used the term "remorseful", and Mr McVittie confirmed that he had. The applicant's counsel asked for detail of what the applicant had said and he replied, "I think at first he couldn't understand he had done what he did and the remorse and regret was there for what had happened because they [the applicant and the victim] had been friends". Mr McVittie also said, "he's a bit worried about the harm he had inflicted on [the victim]. Still at times he couldn't believe that he had done that".
Relevantly to two of the grounds of appeal, counsel for the applicant submitted to the sentencing judge that "there are some guarded yet not unrealistic prospects for rehabilitation". On the question of remorse, counsel sought to meet an anticipated objection by the Crown to the admissibility of the applicant's letter by referring his Honour to Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 and Butters v R [2010] NSWCCA 1. Both of those authorities were relied upon for the proposition that to establish remorse for the purpose of the provision in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act an offender does not have to give oral evidence. In the course of making that submission, counsel acknowledged that it was a question of the weight that might be given to the evidence when it does not come directly via oral evidence from an offender.

Grounds of appeal

The applicant appeared in this Court without legal representation. He had filed a document headed Grounds of Appeal and another document headed Submissions. He supplemented those by making oral submissions at the hearing of the application. The grounds of appeal raise three issues: 1. The judge erred by regarding the applicant as having no chance of rehabilitation. 2. The judge erred by taking into account that the applicant was still psychotic at the time of sentencing and presented a danger to the community. 3. The judge erred by not accepting that the applicant was remorseful.
The starting point in the assessment of each of the grounds of appeal is to recognise that this Court's authority to intervene depends upon error having been established in the exercise of the sentencing discretion: Lacey v Attorney General (Qld) [2011] HCA 10; 242 CLR 573 at [11]-[12]; Kentwell v The Queen [2014] HCA 37; 313 ALR 451 at [35].
The second point to note is that error in the original sentencing exercise cannot be established by reference to events or circumstances that have subsequently arisen. If facts did not exist at the time of sentencing it cannot have been an error for the sentencing judge not to have taken them into account: Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [110] (Simpson J).
A third matter to note is that, generally speaking, the court may take into account "fresh" evidence (evidence of which the applicant was unaware and could not have obtained with reasonable diligence) where it might have affected the outcome of the case; or in other words, where the applicant can show a miscarriage of justice occurred in the sentence proceedings: R v Fordham (1997) 98 A Crim R 359 at 377-378; R v Goodwin (1990) 51 A Crim R 328. This is as opposed to "new" evidence, being evidence which was available at the time of sentencing and could have been obtained with reasonable diligence but was not used: Khoury v R at [107].
I have referred to these matters because, in a large part, the applicant's case in this Court depended upon it being prepared to receive a report of his treating psychiatrist, Dr Andrew White, dated 20 November 2014. The report includes reference to the applicant's treatment within the custodial environment prior to sentence but also subsequent to sentence. The applicant's case on sentence in the District Court was presented on the basis that he had a significant mental illness which bore upon his offending behaviour. The issue was well known and was dealt with by way of obtaining and tendering the two reports of Dr Allnutt to which I have referred. In my view, no case has been made for this Court to receive and take into account the further report by Dr White, both as to events prior to sentencing and subsequent.

Grounds 1 and 2

Questions of rehabilitation prospects and of whether the applicant was still subject to psychosis at the time of sentencing were overlapping considerations in the reasoning of the sentencing judge and so it is appropriate to deal with these two grounds together.
The judge reviewed the evidence in detail before announcing various findings. They included that "there is no real evidence before me of any genuine desire in the offender to permanently abstain from consumption of illicit drugs"; "there is a real connection between the offender's continued use of prohibited drugs and his psychotic state"; and that "there is no substantial evidence that his thinking is significantly less delusional now than it was at the time of the commission of the offence".
The judge noted that the applicant had been taking psychiatric medication in custody but noted an absence in Dr Allnutt's second report of any prognosis as to his future mental health. He noted as well that Dr Allnutt had referred to "amelioration" in the applicant's symptoms since seeing him earlier in the year but noted that this did not amount to a finding that they had ceased. He had earlier noted Dr Allnutt's view that "there were probably some residual symptoms of psychosis related to prior delusional experiences".
The judge also said that there was "little or no evidence of any real insight by the offender". He found the applicant was not genuinely remorseful; he was not confident about the applicant's rehabilitation; and he would not make any finding that he was unlikely to re-offend. The judge immediately proceeded to say that the applicant may well re-offend and that he represented a "real danger to the community".
One of the reasons the judge considered that the applicant remained delusional at the time of sentencing was that additional aspects of his account of the offences provided at the second interview with Dr Allnutt included claiming that the victim attempted to take up a knife and a hammer, and at one point tried to get the applicant to stab himself with the knife the applicant was holding. The judge said that these claims were "patently untrue" and showed that the applicant was "still in a significantly delusional state".
The judge acknowledged that in the second report the applicant was recorded as having said that he "might have been mistaken about Grant, Justin and Johnny chasing him with shotguns" and believing that his mental illness had made him say this. But his Honour found it significant that nowhere in Dr Allnutt's second report was there anything reportedly said by the applicant about realising that his actions towards Mr Mendis, the victim, were inappropriate, entirely without justification, seriously criminal, or regretted.

Consideration of the applicant's submissions

The applicant submitted that the judge was wrong to have found that he had "no chance of rehabilitation". That is not quite what the judge said. He said that he was "not confident" about the applicant's rehabilitation. However, he also said that he "represents a real danger to the community".
To establish that these findings were wrong, it is necessary for the applicant to establish that the findings could not be justified on the evidence that was before the judge. In other words, they were findings that were simply not open to be made on that evidence. I have used the italics to emphasise to the applicant that the report of Dr White cannot be taken into account by this Court for the reasons given earlier. It is necessary for the applicant to establish that the judge misdirected himself, misapplied some principle, took into account something that was irrelevant, or made a finding that had no basis in the evidence: see, for example, R v Kyriakou (1987) 29 A Crim R 50; R v O'Donoghue (1988) 34 A Crim R 397; and AB v R [2014] NSWCCA 339 at [44]-[55].
There was nothing wrong in the judge's assessment of Dr Allnutt's second report. The doctor did not state that the applicant was free of psychosis at the time of his second consultation which occurred in the month prior to the sentence hearing; simply that his symptoms had abated, or ameliorated. The doctor had also specifically noted that there were still some "residual symptoms". Moreover, it was open to the judge to characterise the false statements about the victim's conduct that the applicant had added to his version of events as being the product of a continued delusional state.
With those findings being open to the judge, it followed that it was also open to his Honour to be dubious about the applicant's prospects of rehabilitation. In turn, and having regard to the seriously violent nature of the detention and assault of Mr Mendis, it was open to the judge to consider that the applicant presented a danger to the community.
The applicant sought in his submissions to contrast the negative findings of the sentencing judge in his case to another case (identifying details of which were not provided) where "a fellow prisoner with a 45 page criminal record was deemed a good chance of rehabilitation". That may seem unfair to a person in the applicant's position, not having any apparent training in the law, but it reflects the fact that the factual matrix of every case is unique. It reflects the fact that sentencing is a complex task involving the exercise of an individual judge's discretionary judgment. It also reflects the notion that justice is individualised in that a finding of fact in one case might be warranted whereas similar evidence in another case might, because of its different context, warrant a different, or no, finding.
I can discern no appellable error in relation to either issue raised by the applicant under grounds 1 and 2.

Ground 3

The applicant relied upon his letter written in June 2013 and the evidence of his father as justifying a finding that he was remorseful. He submitted that it was wrong for the sentencing judge to have found that he was not remorseful.
Again, this is a challenge to a finding of fact and what the applicant must establish is that it was simply not open to the judge to make the finding or that there was some error in the judge's process of reasoning that led to it.
The applicant's counsel in the District Court was quite open in conceding that, in the absence of oral evidence by the applicant, it was a matter for the judge to assess what weight he should give to the letter. That was clearly a matter for the judge's discretion. As it turned out, he gave it no weight at all. That was open to him because whilst it purported to express to Mr Mendis the applicant's "sorrow, remorse and regret" it also accused him of being a liar. The judge was also critical of the letter referring to the applicant having thought that Mr Mendis was coming to kill the applicant; and that it used a substantial understatement by referring to "the incident that happened between us", when by "incident" the applicant was referring to what the judge called "a savage, sustained, one-way attack".
The applicant's father's evidence that the applicant was "extremely remorseful for his actions" was not required to be accepted by his Honour. He had the benefit, as this Court has not, of having seen and heard Mr McVittie give evidence. Counsel for the applicant made no submission to the judge about whether or not the judge should accept it.
I can discern no error in the judge's approach on this issue.

Was the sentence manifestly excessive?

Given the applicant is not legally represented it is appropriate to consider a broader question of whether the sentence is manifestly excessive even absent a ground complaining as such. A sentence will fit this description if it is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25].
The offence for which the applicant was sentenced was a very serious one. So too was the further offence he asked the judge to take into account.
The judge made findings in the applicant's favour that his moral culpability and the need for general deterrence were of less significance and that a custodial sentence would weigh more heavily upon him on account of his mental illness. On the other hand it was necessary for the judge to punish the applicant for the serious harm, both physical and psychological, that he occasioned to his innocent victim, to personally deter him and to protect the community.
For a person who had not previously been to gaol a sentence of five and a half years with a non-parole period of almost three and a half years is a stern imposition. However, having regard to the fact that the offences involved a sustained and violent attack upon an innocent man after the applicant lured him to his home, I am unable to see anything unreasonable or unjust in the outcome.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
WILSON J: I agree with R A Hulme J.

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: 13 May 2015

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