Moss v R

Court of Criminal Appeal (NSW)|2011-04-01|Before: Simpson J, Davies J, Grove AJ

Judgment 1SIMPSON J : The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 19 February 2010 following his conviction after trial on a charge of recklessly causing grievous bodily harm. Pursuant to s 35(2) of the Crimes Act 1900 (under which the charge was brought) the offence carries a maximum penalty of imprisonment for 10 years, and, pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), a standard non-parole period of 4 years. 2Murrell DCJ sentenced the applicant to imprisonment for 3 years and 9 months, made up of a non-parole period of 2 years, commencing on 28 October 2008, and a balance of term of 1 year and 9 months, which will expire on 27 July 2012. The non-parole period expired on 27 October 2010, and the applicant has been released to parole. Nevertheless, he remains subject to the sentence and liable, if he breaches the conditions of his parole, to be re-incarcerated. In sentencing the applicant, her Honour purported to impose certain specified conditions of parole, including not entering the street where the offence was committed (where the applicant had previously, and the victim did live), not to approach or contact the victim, and, on release from custody, to report to the Probation and Parole Service and accept the supervision of that Service for the whole of the parole period. Her Honour stated that this condition included accepting any direction of the Probation and Parole Service "to undertake any drug and alcohol rehabilitation program", specifically "a fulltime live-in" drug and alcohol program. 3The applicant was, in fact, charged with a more serious offence, brought under s 33 of the Crimes Act , of causing grievous bodily harm with intent to do so (a charge which carries a maximum penalty of imprisonment for 25 years) and with the s 35(2) offence as an alternative. He entered a plea of guilty to the s 35(2) offence, but the Crown declined to accept that in satisfaction of the indictment, and the matter went to trial. The jury acquitted the applicant of the principal charge and convicted him of the s 35(2) offence.

The facts 4The offence was committed on 28 October 2008. The applicant and the victim both lived in a Housing Department development in Lilyfield. The victim, a 53 or 54 year old woman, suffers from bipolar disorder and a number of other conditions. There was a history of altercations between the applicant and the victim and, in November 2007, the victim obtained an interim Apprehended Violence Order against the applicant. That was confirmed in December 2007 by the issue of an Apprehended Violence Order for a period of 2 years. In February 2008, the applicant contravened that order, by shouting to the victim from his balcony and threatening her with violence. He was charged with the contravention, and was, on 13 February 2008, subjected to a good behaviour bond for a period of 12 months. He appealed against the severity of the sentence, but the appeal was dismissed and the bond confirmed. He was therefore, on 28 October 2008, subject to the conditions of the bond and on conditional liberty. As a result of her fears of the applicant, the victim wrote a number of letters to the Department of Housing expressing her concern. 5Just before 28 October 2008 the applicant formed the belief that the victim was taking photographs of him and harassing him. On the morning of 28 October the victim went shopping and returned to her residence in her motor vehicle. She began to unpack her shopping. The applicant was nearby and believed that the victim had looked at him in a hostile manner. He approached her quickly, and, in a very short time (10 to 15 seconds) punched her several times. She fell to the ground, bleeding. The applicant ran off. The victim suffered some injuries, although at the lower end of the spectrum of injuries that constitute grievous bodily harm. They included multiple fractures of the bridge of the nose and a fracture to the right orbital bone. 6The applicant was arrested later on the same day. He admitted that he had attacked the victim and asserted that the victim had been harassing and provoking him by, inter alia , taking photographs of him. He said that he had "exploded", "lost control", or "just lost it" and had fallen upon the victim "like a lion falls upon its prey".

The personal circumstances of the applicant 7The applicant was born in January 1959 and, was, at the time of the offence, 48 years of age. He is unemployed and in receipt of a disability pension. There was psychiatric evidence before Murrell DCJ that established that he suffered from a paranoid delusional disorder concerning the victim. 8The applicant is single and has never married. He has had six de facto relationships, lasting various periods of time, from about two months to nine years. A child was born of the first of these. The applicant has been in receipt of a disability pension since 1994 but was unable to state the basis for that pension. 9He has consumed alcohol to excess since the age of 20 years and has been an occasional user of drugs. 10He has a criminal record which dates back to 1969, and includes entries for stealing, illegal use of motor vehicles, offences of dishonesty, driving offences, what are commonly called "street offences" and, most significantly, two counts of assault occasioning actual bodily harm (in 1976). On each of these the applicant was sentenced to imprisonment for a period of 2 years. However, his record ceased in 1997 and did not resume until 2008, when he was dealt with for contravention of the Apprehended Violence Order. 11Psychological testing revealed anti-social characteristics in his personality adjustment and anger pathology.

The Remarks on Sentence 12Murrell DCJ comprehensively and clearly reviewed all of the evidence and arguments that had been put before her. It is unnecessary to review the whole of the Remarks on Sentence. Her Honour correctly assessed the objective seriousness of the offence, noting that the injuries were at the lower end of the spectrum of injuries constituting grievous bodily harm. She considered the applicant's mental illness to be a very important factor in the sentencing decision. She concluded that, by reason of his psychiatric disability, he was not an appropriate vehicle for the principles of general deterrence; that was because his mental illness contributed directly and critically to the commission of the offence. She considered that his mental illness did not elevate the danger which the applicant presents to the community. She declined to treat the need for specific deterrence as having any particular materiality. 13She accepted a Victim Impact Statement from which she recognised that, from the victim's point of view, the offence had far reaching consequences, including her suffering post-traumatic stress disorder which deflected her from attending to her pre-existing psychological problems. Her Honour therefore accepted that the emotional harm caused by the offence was substantial. This was a reference to s 21A(2)(g) of the Sentencing Procedure Act. 14She noted that the applicant was, by reason of the bond imposed following his earlier breach of the Apprehended Violence Order, as being at conditional liberty at the time of the offence, and that this was an aggravating feature for the purpose of s 21A(2)(j) of the Sentencing Procedure Act. 15Pursuant to s 44(2) of the Sentencing Procedure Act, she found special circumstances that justified departure from the statutory ratio between the non-parole period and the head sentence. Those circumstances were the applicant's complex psychological problems and the need for rehabilitation in relation to mental health and alcohol dependence. 16In recognition of the applicant's plea of guilty to the charge of which he was ultimately convicted, she allowed a reduction in the sentence she otherwise would have imposed of 25 per cent. 17Her Honour proceeded to impose the sentence I have set out above. 18It is here worth mentioning, at the conclusion of the sentencing remarks, the applicant told Murrell DCJ that he was going to hang himself as soon as he arrived at the gaol. He then uttered some obscenities before being taken from the court.

The application for leave to appeal 19The applicant appears unrepresented on this application. He provided several pages of handwritten submissions. Most of these were references to matters found in his favour by Murrell DCJ: for example, he quoted that part of the judgment where her Honour referred to the relatively low level of grievous bodily harm suffered by the victim. He also referred to a part of the remarks in which her Honour noted that the crime was not planned and that no other person was involved. 20I do not propose to re-state each of the matters raised by the applicant, since they cannot establish any error on the part of the sentencing judge. 21The applicant did assert a factual error on the part of the judge. In one part of the Remarks on Sentence, in referring to the psychological evidence, Murrell DCJ said that the applicant had been under the impression that the victim was selling photographs of him to the gay community. She then said: "It was in these circumstances and in the context of an encounter between the offender and the victim on the previous night when the victim was minding her own business and walking her dog, that the offender lost control and, under the influence of his delusions, attacked the victim." 22As the Crown points out in her written submissions, this is explained by reference to a psychiatric report, which referred to an occasion when the applicant formed the belief that the victim was photographing him and harassing him. The "attack" to which she referred was the attack of 28 October. Although it is understandable that the applicant has misconstrued the remark, I am satisfied that her Honour did not take an erroneous view of the facts. 23The applicant made extensive, comprehensive and articulate submissions to this Court. He sought to tender additional material to the Court, but accepted the ruling of the Court that the circumstances did not bring the material within the "fresh evidence" rules, and appeared to understand that this was so. 24He expressly accepted that the sentence imposed was "a fair one", but wished to reiterate many of the matters found in his favour by Murrell DCJ. His acceptance of the fairness of the sentence, which in my opinion was properly and realistically made, is conclusive of his application. 25The sentence is not manifestly excessive, and is not attended by any error. 26Finally, however, the applicant complained of the parole conditions purportedly imposed by her Honour. He wrote: "11 To do with alcohol I haven't had a major problem with alcohol as far as hospitals, rehab, or other . So could you take that order away your Honour?" (emphasis in original) 27The Crown accepts that the order for parole and the conditions purportedly imposed exceeded the power of the court. Pursuant to s 50(1) of the Sentencing Procedure Act, where a sentence of imprisonment with a total term of 3 years or less is imposed, a court is required to direct release of the offender at the expiration of the non-parole period. No such power exists where the sentence exceeds 3 years, as does this sentence. 28In my opinion the parole order purportedly made by her Honour has no effect, but it is appropriate that this Court set it aside. 29In other respects, there is no merit in the various points made by the applicant. Her Honour properly took into account all relevant circumstances, most particularly the impact of the applicant's psychiatric condition. The sentence imposed was, as the applicant himself recognised, well within the range available to her. 30I propose the following orders: (i) Leave to appeal granted; (ii) The appeal allowed to the extent that the order purportedly made with respect to the imposition of parole conditions is set aside; (iii) The appeal is otherwise dismissed. 31DAVIES J : I agree with Simpson J. 32GROVE AJ : I agree with Simpson 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: 11 April 2011

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