Nairn v R

1. In addition, an offence of stalking or intimidating with an intention to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 was included on a document filed pursuant to s 32(1) of the Sentencing Act (ie a "Form 1"). This charge was associated with the first of the offences listed in the above schedule.
2. The sole ground of appeal is that the sentence is manifestly excessive. The focus of the complaint concerns the manner in which the sentencing judge dealt with the evidence of the applicant's mental illness. For the reasons that follow I do not consider that the aggregate sentence was manifestly excessive.

The Offences

1. The following description of the facts surrounding the offences is taken from two sets of agreed facts that were before the sentencing judge and his Honour's findings.
2. Some time around September 2012 the applicant's relationship with his former partner ended. She moved interstate. However, in August 2013 she was attending a shopping centre in Hurstville with her daughter who was pregnant. She saw the applicant who called out to her "Hey, trouble maker". In his hand was a sock which appeared to contain an object. He moved towards his former partner in a motion that suggested he would hit her. The applicant said to her: "Stay away from my family, stay away from my son, stay away from me. I'm going to kill you. I am going to make you suffer. I am going to kill your family."
3. Not surprisingly his former partner left in shock and fear from these threats. She approached the police. The applicant's threatening conduct led to him being charged with the offence listed in the Form 1 (the "Form 1 offence").
4. On 27 September 2013 the applicant was granted bail on the Form 1 offence. It was a condition of his bail that he attend a mental health unit for treatment. In his evidence before the sentencing judge the applicant stated that he attended a mental health unit, but was turned away because he did not reside in the relevant catchment area. He also stated that he saw a general practitioner but was not prescribed any medication despite advising the doctor that he had been experiencing hallucinations. The sentencing judge accepted this aspect of his evidence.
5. On the evening of 30 September 2013 the applicant attended a house in Hurstville. The house was occupied by a childhood friend of the applicant (the "second victim"). They had lost contact but saw each other again in 2011. They undertook weight training together until the applicant ceased training in mid-2013.
6. Also inside the house were two other people, a 42 year old male (the "first victim"), and his girlfriend. The applicant became aggressive towards the first victim. The applicant was carrying a skateboard. The applicant raised it above his head and swung it at the first victim. His action in doing so was the third offence on the schedule in [4] above.
7. The applicant then approached the first victim holding a knife. He yelled at him. The first victim was curled up on the couch. The applicant stabbed the first victim on the right side of his shoulder and the right side of his chest. The first victim held his hands up in front of his body to protect himself. The applicant stabbed him in the right side of his right calf. The first victim saw the knife come through the other side of his calf. Next the applicant stabbed the first victim in the right eye. The facts recited that the first victim recalled his eyeball being "out of its socket and hanging towards his chin". In the end result the first victim suffered 33 cuts and stab wounds, a punctured lung and lost his left eye. The impact on him of this attack is further described below.
8. The applicant's conduct in stabbing the first victim constituted the first offence in the table set out in [4].
9. The applicant then threatened another person at the premises who was in the rear yard (the "third victim"). The third victim scaled the rear fence. The applicant returned to the house and confronted the second victim. The applicant raised the skateboard above his head and demanded "give me all your money". The second victim tried to calm the applicant down. However the applicant grabbed the second victim by the shirt and dragged him to the room where the first victim had been stabbed. The applicant then dragged the second victim into his bedroom and punched him on the nose. The applicant picked up a pen and stabbed the second victim to the left side of the head. The second victim opened his wallet and handed the applicant $220 in cash.
10. The second victim staggered out of his bedroom with the applicant following him announcing that he was "… the boss of the area" and "… the king". The applicant pointed at the second victim stating "someone is coming for you tomorrow". The applicant pointed a knife and stated "I'll fucken kill you". The second victim then protested that he was the applicant's friend ("I'm your mate. I'm your mate."). The applicant grabbed him by the arm, dragged him to the back door and pushed him downstairs into the rear yard dislocating his shoulder. The applicant then returned to the lounge room, stomped on the first victim and kicked him in the head.
11. The applicant's conduct towards the second victim constituted the second offence in the table in [4].
12. The applicant then left the house. Outside the house he encountered the third victim standing beside his car. The applicant told him to drive. The third victim drove him to his unit in Penshurst. At the unit he showered. As he left he took a mobile phone. His conduct in doing so was the fourth offence in the table in [4].

Victim impact

1. It is appropriate to note the severe impact on the first victim of the injuries he received from the applicant's attack. The first victim gave evidence before the sentencing judge. At the time of sentencing the first victim was 43 years of age. I have described his physical injuries in [13] above. The first victim told the Court he suffered from epilepsy and seizures as well as nightmares about being stabbed. Previously he worked at Garden Island but he said that he was now unemployable. He said that he cannot see his children anymore ("... I don't get to see my kids because of what this person has done, and what he has done to my family and the people that live around me and the people that care for me ..."). The sentencing judge noted that, in addition to his physical injuries, the first victim had suffered "substantial alteration to his personality and abilities generally" as well as "ongoing frontal lobe dysfunction".

The Applicant's subjective case and mental health

1. At the time of the offences the applicant was 41 years of age. Between 1988 and 1990 he accumulated a number of convictions in the Children's Court for stealing, assault, and break and enter. This pattern of offending continued over the next decade although he was able to avoid a full time gaol sentence. However it was common ground that some time after 2000 he moved to New Zealand and served approximately four years in prison before being deported to Australia on the expiry of his sentence. The nature of the offending that led to that sentence was not explained.
2. A pre-sentence report tendered to the sentencing judge stated that the applicant was adopted as an infant. He left school in the middle of year 9. He commenced living on the streets when he was 14. He has recently reported that until he was ten years old he was the victim of sexual abuse by male friends of his mother. He has had two significant personal relationships and he has two sets of sons from each. He has no contact with the younger set of sons and there is an apprehended violence order in place preventing him from contacting one of the older set. The report described him as "currently single with numerous past AVOs by ex-girlfriends and a considerable history of violent behaviour". The report described the applicant's long history of abusing drugs and alcohol. The report included the following description of his approach to violence as follows: "Mr Nairn reported to enjoy the fist fights in which he engaged in his teenage years. His recreational time has been spent under the influence of various illicit substances with pro-criminal associates who normalise violence in their daily business of drug dealing and supply. Jostling for power in this underworld can be, and the offender has proven, very dangerous. His own paranoia and non-compliance with prescribed medications would appear to have led to his violent outburst as described in the current offences."
3. The report also recorded that the applicant agreed with the agreed facts, although he denied bringing a knife to the scene. Beyond that the author stated that he experienced difficulty in discussing the offences with the applicant in any detail as he asserted that his memory of the offence was "vague" and he suffered a "blackout".
4. Two psychiatrists' reports were placed before the sentencing judge. His Honour quoted from them extensively in his sentencing judgment. In his report dated 20 November 2013, a forensic psychiatrist engaged by Justice Health, Dr Clark, concluded that the applicant "suffers from psychotic symptoms with the diagnostic possibilities including delusional disorder, schizophrenia and drug induced psychosis". Dr Clark referred to possible treatment options for the applicant including psychiatric care, but concluded: "I consider that [the Applicant] will remain at risk of aggressive behaviour given his history of responding aggressively to perceived threats, and this threat is likely to increase when Mr Nairn is unwell. Close observation of Mr Nairn's mental state will be important to prevent further deterioration in his condition."
5. The other report was from Dr Richard Furst dated 4 September 2014. Dr Furst recorded the applicant as stating that he went to the house on the evening of 30 September 2013 to buy cannabis but that voices in his head told him "that they were all going to get me" and he had to show them "who's boss". Dr Furst records the applicant expressing remorse for his actions stating that it was a "terrible and horrible thing to have done".
6. Dr Furst reviewed the applicant's health records and also had the benefit of Dr Clark's report. Dr Furst concluded that the applicant met the criteria for schizophrenia, substance use disorder, post-traumatic stress disorder and personality disorder. Dr Furst also concluded that his "acute psychotic symptoms probably played a large part in the commission of the offences" and that his "unstable personality structure and poor insight at the time probably also contributed to his violent offending". Under the heading "prognosis", Dr Furst stated: "Mr Nairn has an unfortunate history and a number of previous offences. His mental illness in the form of schizophrenia [creates an] additional risk that will require assertive treatment in order to help him re-enter the community without endangering himself or others. However, he has been compliant with treatment thus far in custody and appears to have reasonable prospects of being successfully rehabilitated. Abstinence from drugs of abuse and ongoing treatment with antipsychotic medication would probably decrease his risk of re-offending, as would stable accommodation and employment. A Community Treatment Order (CTO) is probably indicated."

The Applicant's Evidence

1. The applicant gave evidence before the sentencing judge. He stated that he was "truly sorry and deeply regretful" for what he had done to the second victim. He accepted that he was friends with all of the victims. He described being granted bail and then being turned away from a mental health unit. He said that by 30 September 2013 he was "hearing things". He accepted the description of the offences as set out in the agreed facts that were tendered and described his personal history in terms consistent with what has already been stated. The applicant stated that he was being medicated and expressed an intention to continue taking medication and receive psychiatric treatment.

The Sentencing Judgment

1. In the sentencing judgment, the sentencing judge summarised the facts of the offences. His Honour then addressed Mr Nairn's personal circumstances. His Honour reviewed the material concerning the applicant's psychiatric condition, specifically the reports of Dr Clark and Dr Furst, in considerable detail. Implicit in the sentencing judgment is that his Honour accepted their diagnoses.
2. His Honour found that the offence of wounding with intent to cause grievous bodily harm was "objectively well above the mid-range of objective seriousness" and noted that the first victim's injuries and their sequelae were "horrific, substantial and life threatening". After noting the first victim's suffering, his Honour then stated: "… this is a difficult matter to deal with, there being a tension between the seriousness of the offending on the one hand and the mental state of the offender on the other at the time of the commission of the offence. I was referred to a case of Hemsley [2004] NSWCCA 228 where at paragraph 33 to 36 Sperling J said as follows: '[33] Mental illness may be relevant … in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced … [34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration … [35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person … [36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence ..." Whilst drug abuse perhaps plays a lesser role in this matter and seems to be more directed to explaining Mr Nairn's recent mental state, I do note that in SS & JC v R [2009] NSWCCA 114 the Court said at paragraph 102 that 'the occurrence of a drug addiction at a very young age' has been accepted 'as an exception to the general rule' that drug addiction is not a mitigating factor in offending behaviour. In the present case on one view Mr Nairn's drug abuse has promoted his psychosis in a previously vulnerable individual. I note that it appears that these symptoms, that is his mental symptoms, have only evolved to the extent that they have over a period of about 18 months and there is nothing to suggest that Mr Nairn was aware of his mental illness and was self-medicating with drugs. Clearly however, Mr Nairn's mental state is one that must be taken into account and, in my view, in all the ways that are referred to by Sperling J in the Hemsley case." (emphasis added)
3. The sentencing judge then described a number of decisions of this Court imposing sentences for offences under s 33(1)(a) of the Crimes Act 1900, but also observed that this case was far more serious than the facts of those cases. His Honour noted that the applicant would receive the maximum discount for his plea of guilty, accepted that he was "genuinely remorseful" for the harm done to the first victim and accepted that the applicant has "some insight into his mental functioning". However his Honour also considered that his poor work history, criminal history and drug addiction make him "extremely vulnerable on release to a quick relapse into more violent offending if he is not closely supervised and monitored". His Honour noted that Hemsley contemplated that "the level of danger which the offender presents to the community may sound in specific deterrence" and importantly described the applicant's conduct in this case as "irrational and as such pose[s] a serious concern for public safety".
4. The sentencing judge described the offence under s97(1) of the Crimes Act as a "serious offence" but added that it was not "of an order above the mid-range of objective seriousness". His Honour declined to treat the fact that the offences were committed on bail as a "specially aggravating feature" given the attempt by the applicant to comply with his bail conditions by attending the mental health unit only to be turned away. Given the need for the applicant to be supervised for an extended period of time, His Honour made a finding of "special circumstances" under s 44(2B) of the Sentencing Act. Finally his Honour noted that there needed to be a "small amount of accumulation" for the various offences "having regard to the different victims involved". No complaint was made about that assessment. His Honour did not specify indicative starting or finishing dates for the indicative sentences (see Beale v R [2015] NSWCCA 120 at [3] to [5] per R.A. Hulme J).

The sentence was not manifestly excessive

1. As stated the only ground of appeal is that the sentence is manifestly excessive. The limitation of the appeal to that ground reflects the fact that the sentencing judge dealt carefully and comprehensively with all of the issues raised in what was clearly a difficult sentencing exercise.
2. Two matters should be noted at the outset.
3. First in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58] the plurality stated: "As was said in Dinsdale v The Queen …, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out … in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605 appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say … in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.
4. Later the plurality stated that a determination of this ground requires a "consideration of all of the matters that are relevant to fixing the sentence" (Hili at [59]).
5. Second, as formulated the ground of appeal correctly recognises that it is the aggregate sentence that must be shown to be manifestly excessive and not just its individual components. Merely because an indicative sentence for one of the offences might be considered to be manifestly excessive, does not necessarily warrant that conclusion in relation to the aggregate sentence as a whole. The materiality of any error in the indicative sentence to the overall aggregate sentence still needs to be demonstrated (PD v R [2012] NSWCCA 242 at [44]; SHR v R [2014] NSWCCA 94 at [40]). Understandably enough the submissions in support of this ground correctly focused on the indicative sentence for the first offence listed in the table in [4] as that was by far the most significant contributor to the aggregate sentence. A conclusion that the indicative sentence for that offence was manifestly excessive would in this case travel a substantial part of the journey towards establishing that the aggregate sentence was excessive. Even so, the excessive nature of the aggregate sentence would still need to be demonstrated.
6. Counsel for the applicant, Mr Hunt, relied on two particular matters in support of his contention that the aggregate sentence was excessive. The first concerned the sentencing judge's conclusion in relation to the four factors identified in the passage from Hemsley set out above. Mr Hunt accepted that the sentencing judge's finding that the applicant posed a "serious concern for public safety" engaged the fourth consideration referred to in the above passage from Hemsley but submitted that, having accepted the other three factors were engaged, their mitigating effect "should not have been entirely nullified by the countervailing fourth consideration". He submitted that, given that a 25% discount was applied, it followed that the sentencing judge's overall starting point for the aggregate sentence was 16 years and for the first offence in the table in [4] was 14 years and 8 months. He submitted that the sentence was a "highly punitive result" for an offender whose "moral culpability ought to be reduced on account of the causal link between [his] mental illness and the offending".
7. The difficulty with this submission is its starting point as to the role of the Hemsley factors. The analysis in Hemsley was endorsed and expanded upon in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]). Of particular relevance is the proposition that the establishment or absence of particular circumstances or factors concerning mental illness does not have "automatic consequences" for the sentencing exercise (Engert v R (1995) 84 A Crim R 67 at 71 per Gleeson CJ). Thus simply because all of the factors referred to in the above passage from Hemsley may be engaged in the sentencing exercise does not mean that one of the factors cannot negate the effect of the others. Thus in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 Mason CJ, Brennan, Dawson and Toohey JJ stated (at pp 476 to 477): "And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." (emphasis added)
8. In this case the sentencing judge found the applicant represented a substantial danger to the community. That finding cannot be the subject of serious dispute and it was capable of negating the factors mitigating his sentence on account of his mental illness. Given that the maximum penalty for the offence was 25 years imprisonment and that it carried a standard non-parole period of seven years (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120), the undertaking of such a vicious and "irrational" attack and the Applicant's poor subjective case more than justified the relatively high starting point for the indicative sentence for the first offence in the table in [4].
9. The second matter that Mr Hunt relied on was the statistics on sentencing provided by the Judicial Commission of New South Wales. His written submissions acknowledged they were a "blunt tool" but he nevertheless noted that during the period from February 2008 to September 2014 only one of 197 offenders sentenced for wounding with intention to cause grievous bodily harm received a sentence of greater than twelve years and only three of the 160 offenders who pleaded guilty received a sentence in excess of ten years. Similar figures pertained to the imposition of non-parole periods. In light of the applicant's mental illness at the time of the commission of the offences it was contended that these figures are suggestive of the indicative sentence for the applicant being manifestly excessive.
10. The relevance and limitations on the use of sentencing statistics was stated in Hili at [54] to [55]. In Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40] to [41] the plurality stated that sentencing outcomes in other cases "may well establish a range of sentences that have been imposed" but that range does not "mark the outer bounds of the permissible discretion" but instead the "history stands as a yardstick against which to examine a proposed sentence". Within the confines of that statement "statistics have a role in fostering consistency in sentencing" provided care "is taken to understand the basis upon which they have been compiled" (The Queen v Pham [2015] HCA 39 at [49] per Bell and Gageler JJ).
11. As Mr Hunt's submissions acknowledge, one difficulty with the reliance on the statistics is that as presented they do not enable a detailed interrogation of the distinctive features of the offences that warranted the imposition of a custodial sentence of the order of magnitude imposed on the applicant. No doubt one significant factor is the level of violence involved and the harm inflicted upon the victim. In this case that is very significant. Otherwise the applicant had a very poor criminal record and very weak subjective case. Any ameliorating effect of his mental illness was negated by the finding that he posed a danger to society. While it can be accepted that, allowing for his plea of guilty, the indicative sentence for the first offence in the table in [4] was a stern one, I am not persuaded that either it or the aggregate sentence was manifestly excessive.
12. Accordingly I would reject the sole ground of appeal.
13. The orders I propose are: 1. Leave to appeal be granted; and 2. The appeal be dismissed.
14. R.S. HULME AJ: I agree with the orders proposed by Justice Beech-Jones and with his Honour's reasons.

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