Ney v R

l) Rules 2021 (NSW) rr 3.1, 3.2, 3.5 Cases Cited: AB v R [2014] NSWCCA 339 Aslan v R [2014] NSWCCA 114 Baker v David [2015] NSWCA 235 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Blake v R [2021] NSWCCA 258 BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Bullock v R [2016] NSWCCA 131 CC v R; R v CC [2021] NSWCCA 71; (2021) 289 A Crim R 453 Clark v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Pettitt v Dunkley [1971] 1 NSWLR 376 Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217 R v Dong [2021] NSWCCA 82 R v Lowe [2003] NSWCCA 313 R v Ney [2021] NSWSC 529 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Richardson v R [2021] NSWCCA 304 Rogerson v R [2021] NSWCCA 160; (2021) 290 A Crim 239 State Railway Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 Taylor v R [2018] NSWCCA 255 Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 Turnbull v Chief Executive of Office of Environment and Heritage [2015] NSWCCA 278 Veen v R (No 2) (1987) 164 CLR 465; [1988] HCA 14 Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 Category: Principal judgment Parties: Mert Ney (Applicant) Rex (Respondent) Representation: Counsel: G Brady SC and Dr K Fallah (Applicant) G Newton SC (Crown)

Solicitors: Oxford Lawyers (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2019/256082 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: [2021] NSWSC 529 Date of Decision: 14 May 2021 Before: Johnson J File Number(s): 2019/256082

HEADNOTE [This headnote is not to be read as part of the judgment] Mert Ney (the "applicant") pleaded guilty to the murder of Michaela Dunn and the wounding with intent to cause grievous bodily harm of Lin Bo. He was sentenced to an aggregate term of imprisonment of 44 years with a non-parole period of 33 years. The applicant appealed his sentence on 5 grounds, primarily relating to how his age and mental health were treated on sentence, and on the ground that the sentence was manifestly excessive. On 13 August 2019, the applicant arranged an appointment with an escort in Sydney. Upon arrival at the premises occupied by Ms Dunn, the applicant immediately attacked her with a knife to her face, neck, chest and limbs. The applicant filmed the immediate aftermath of his attack, sharing the video with a friend on Facebook. The sentencing judge's description of the murder as "a cruel, brutal and terrifying attack made for no reason", inter alia, was not challenged on appeal. Following the murder, the appellant took to the city streets of Sydney. He shouted purported terrorist chants but he was not associated with any extremist ideology. The applicant tried to stab a young woman, but his strike missed. The appellant did stab Ms Bo, to her left shoulder. She suffered a 4cm stab wound and psychological harm. The appellant continued running through the city streets until he was apprehended by a group of civilians and arrested by police. The Court held Ground 1: 1. There was no error in the learned sentencing judge's reasons based on the reference to "unwarranted double counting on sentence". The sentencing judge recognised that the applicant's youth and mental illness had a significant mitigatory effect for the purpose of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and that the mitigatory effect of those factors should not be overworked (Campbell J at [61]-[67], Beech-Jones CJ at CL agreeing at [1] and Weinstein J agreeing at [113]). Ground 2: 1. There is nothing in the legislative regime that makes every component of a party's submission, per se, a matter the sentence judge is obliged to take into account. Ultimately, it may turn on the argument raised and the significance of the point to the party's overall case. In the present case, the sentence judge failed to take into account a material consideration for the purposes of House v King (Beech-Jones CJ at CL at [2]-[5]). 2. The applicant's submissions on sentence, in writing and orally, referred to custody being more onerous for the applicant due to his mental health. This was supported by the expert evidence. The sentencing judge erred by not disclosing how this was considered on sentence (Campbell J at [71]-[76], Weinstein J agreeing at [113]). Ground 3 was withdrawn. Ground 4: 1. There was no error in the sentencing judge's finding regarding the applicant's demeanour as a witness or his conclusions about the applicant's insight, empathy and remorse (Campbell J at [80]-[87], Beech-Jones CJ at CL agreeing at [1] and Weinstein J agreeing at [113]). Ground 5: 1. The sentencing judge's reference to the applicant's subjective circumstances, generally, for the purpose of fixing the appropriate sentence extended to including the mitigatory effect of the applicant's relative youth (Campbell J at [90]-[91], Beech-Jones CJ at CL agreeing at [1], Weinstein J agreeing at [113]). Ground 6: 1. The extremely high objective seriousness in this case means that consideration of proportionality, specific deterrence and the need to protect the community predominate. The sentence was not manifestly excessive and ground 6 is rejected (per Beech-Jones CJ at CL at [5]-[7]). 2. As ground 2 was established, consideration of manifest excess was unnecessary (Campbell J at [92], Weinstein J agreeing at [113]). Re-sentence: 1. An independent exercise of the sentencing discretion leads to the conclusion that a less severe sentence is not warranted (per Beech-Jones CJ at CL at [5]-[7]). 2. A somewhat reduced sentence is warranted following the finding regarding ground 2. The applicant should be sentenced to an aggregate sentence of 40 years imprisonment with a non-parole period of 30 years (Campbell J at [93]-[110], Weinstein J agreeing at [113]).

JUDGMENT

1. BEECH-JONES CJ at CL: The circumstances and grounds of this application for leave to appeal are set out in the comprehensive judgment of Campbell J. For the reasons given by his Honour, I agree that grounds 1 and 4 to 5 should be dismissed. In relation to ground 6, it follows from the findings made below that I would reject the complaint of manifest excess.
2. In relation to ground 2, I agree that, in his otherwise careful remarks on sentence, the sentencing judge did not expressly address the contention that the applicant's conditions in custody are likely to be rendered more onerous by reason of his mental illness. The contention was made in clear terms and was supported by evidence (see [69]).
3. Some precision is required in identifying the reason why the absence of any reference to this matter in the remarks on sentence might vitiate the sentencing exercise. If the complaint is that the relevant error is the failure to address the submission, then I am doubtful that that amounts to a failure to take into account a material consideration as referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. There is nothing in the relevant legislative regime that makes every component of a party's submission a matter a sentencing judge is, per se, obliged to take into account. Instead, in a case where a contention supported by evidence such as this is not expressly referred to in the sentencing remarks it may mean that the submission was not addressed, or it was addressed but not included in the judgment. Either of those possibilities may or may not yield an error, being either a failure to comply with the judge's "paramount judicial duty" to consider a party's case (Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [62]‑[63]; Baker v David [2015] NSWCA 235 at [24]) or, if it was considered, the judge's duty to provide reasons for the rejection of the argument (Baker v David). However, both of those possibilities must be approached on the basis that "a judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue" (Whisprun Pty Ltd v Dixon at [62] per Gleeson CJ, McHugh and Gummow JJ). Ultimately, these matters are approached by considering, inter alia, the clarity with which the argument was raised and the significance of the point to the party's overall case (see for example Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [121]).

Preliminary procedural point

1. The applicant's notice of intention to appeal was filed on 18 May 2021 within the time limited by s 10 Criminal Appeal Act 1912 (NSW) (see also rr 3.1 and 3.2 Supreme Court (Criminal Appeal) Rules 2021 (NSW) ("the Rules")). However, a notice of appeal was not filed until 22 November 2022. The grounds of appeal were not filed until 22 May 2023 with the applicant's written submissions. It is not apparent that any application was made to extend the validity of the notice of intention in the meantime. By his affidavit sworn on 11 November 2022, the applicant has provided an explanation for the delay in the prosecution of his application for leave to appeal from sentence. To my mind the explanation is reasonably satisfactory in as much as it does not suggest that he personally lacked forensic diligence. Rather, a new legal team was assembled, and it took time to provide an advice as to the merits and other necessary steps before the notice of appeal could be filed. There is no evidence from the solicitor as to whether applications for an extension were made. Given the seriousness of the matter, the non-opposition of the Crown and the consideration that the application for leave to appeal is more than fairly arguable, I would dispense with compliance with the requirements of the Rules to the extent to which they have been breached and extend the time for filing the notice of appeal to 22 November 2022, nunc pro tunc. If necessary, I would grant leave for the application for leave to appeal to be made under r 3.5(5) of the Rules.

The grounds of appeal

1. The applicant initially sought leave to appeal from his sentence on six grounds as follows: Ground 1: The learned sentencing judge erred by failing to provide reasons by which it can be determined what "unwarranted double counting on sentence" means in relation to how the applicant's mental health issues were considered on sentence. Ground 2: The learned sentencing judge erred in failing to take into account the fact that a custodial sentence is likely to be more onerous for the applicant than for the theoretical "average" inmate and/or the impact of custody on his mental health. Ground 3: The learned sentencing judge erred in failing to take into account the applicant's Intellectual Disability. Ground 4: The learned sentencing judge erred in failing to take into account material facts when assessing the applicant's demeanour as a witness and his subsequent conclusions about the applicant's insight, empathy and remorse. Ground 5: The learned sentencing judge erred in failing to take into account the applicant's youth other than in consideration of s 61(1) Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA"). Ground 6: The sentence was manifestly excessive.
2. Mr G Brady SC, who appeared with Dr K Fallah for the applicant, withdrew ground 3 at the commencement of the hearing (2.30T). He accepted "that it is not provable on the balance of probabilities there's an Intellectual Disability" (5.10T).
3. It can be seen from the formulation of the grounds that the central issue is the treatment by the learned sentencing judge of the applicant's mental condition or disorder and his relative youth. The applicant was born in September 1998 and was therefore 20 years and 10 months old on the date of his offending. There was also uncontradicted evidence, accepted by the learned sentencing judge that the applicant had "a diagnosis with metal health issues, including anxiety, obsessive compulsive disorder and depression" (Sentencing Judgment: R v Ney [2021] NSWSC 529 ("SJ") at [19].

Proceedings on sentence

1. As I have already remarked, the proceedings on sentence were conducted over 2 days. Agreed facts and a significant body of documentary evidence were tendered. Pertinent audio-visual evidence was also tendered (Exhibit B) depicting, in graphic detail, the crime scene in the immediate aftermath of the murder of Ms Dunn. This body of evidence includes footage recorded by members of the public and news media of the aftermath of the murder during which the applicant, brandishing a knife, "ran amok" through Sydney streets. Ms Bo was stabbed from behind during this phase of the offending.
2. Oral testimony was given by the police officer in charge, Detective Sergeant Mitchell Bosworth, the applicant's sister Dirench Ney (not the sister the subject of the Form 1 offending), the applicant and by Dr Richard Furst, the forensic psychiatrist qualified to give evidence about the applicant's mental health for the purpose of the proceedings on sentence.
3. The Crown submitted that the applicant's culpability for the murder of Ms Dunn was so extreme that a just and appropriate sentence was imprisonment for life (Appeal Book ("AB") 411). This submission was partly, certainly not wholly, based upon the argument that the applicant's offending was motivated by an adherence to an extremist and violent Salafist interpretation of Islam (AB 417). The learned sentencing judge rejected this aspect of the Crown case (SJ [160]-[168]). This question therefore may be put entirely to one side.

The sentencing judgment

1. His Honour found that the applicant had been born in Sydney in September 1998, one of the three children of migrant parents. His father was a computer engineer. His parents separated in 2013 and the applicant continued to reside with his mother and his sister Yazel at Marayong. This is the sister who was the victim of the Form 1 assault offending.
2. The applicant attended a state public school and later a state high school. While Dr Furst excluded a diagnosable intellectual disability, the applicant reported difficulties in class. He had few friends, little interest in sport and no identified hobbies except online computer gaming. He claimed to have been bullied at school. He mostly absented himself from Year 9 in 2014 and when asked to repeat in 2015, he attended for only two weeks before finishing school. There was no history of any gainful employment since leaving school.
3. The applicant had never formed an ongoing intimate relationship. The only intimacy he experienced was with sex workers.
4. The learned sentencing judge accepted that the applicant had a history of mental ill health. He largely accepted Dr Furst's evidence about this. His Honour seemed to accept the evidence of Dr Furst that the applicant met the DSM-5 criteria for the following diagnoses: 1. Obsessive Compulsive Disorder; 2. Substance Use Disorder (Benzodiazepines and other prescription pills); 3. Depressive Disorder, not otherwise specified; and 4. low level of intellectual function.
5. I do not understand the evidence to suggest that the last is a diagnosable condition. Dr Furst expressed the view that the applicant "probably" fell into the low average to borderline intellectually disabled region. But the expert accepted that there was no evidence that the applicant suffered a diagnosable intellectual disability and as I have said, ground 3 in dealing with that issue has been withdrawn.
6. The sentencing judge accepted that the applicant had a history of mental health problems from about the age of 14 in 2012 or 2013. The applicant received treatment on and off from this time up until the time of his offending. But he was not fully compliant with the course of treatment prescribed from time to time.
7. From his Honour's review of the medical records tendered in the proceedings on sentence, the dominant psychiatric presentation of the applicant was one of depression and anxiety, for which he was prescribed various medications and referred for psychological counselling intermittently over the years leading up to his offending. While he sought emergency department treatment (or it was sought for him) on occasion, he was resistant to specialist referral when this was recommended by his general practitioner ("GP").

Events of 13 August 2019

1. The applicant's aunt, Emine Gulle, contacted him by text message on the morning of 13 August 2019 offering him assistance. The applicant rebuffed her overtures saying he believed she would force him to go to hospital. He texted her that he would be dead in a week (SJ [43]).
2. The applicant caught the 11:37am train from Bankstown to Town Hall. From the closed-circuit television ("CCTV") footage the sentencing judge found that he moved in a purposeful manner. There was nothing unusual about his appearance or his manner. Immediately after disembarking from the train at 12:25pm the applicant went to the library in Townhall House. Ms Dunn, who was then aged 24 years, was working as an escort from a unit in premises in Clarence Street. At about 1:04pm a colleague of Ms Dunn received by text message a booking request from the applicant for a "girlfriend experience" service at 1:30pm that day. The applicant agreed to the cost of $250, which was quoted. His Honour found that this was of some importance in determining the applicant's intent as he was in no position to pay for the service having only $2 in cash and no credit card. The colleague confirmed the applicant's appointment with Ms Dunn and provided the address and instructions for entry. His Honour observed that there was no question of the applicant's functioning being impeded in any respect. While the applicant had some difficulty locating the Clarence Street address, there was nothing in the evidence to suggest that his mental functioning was impeded (SJ [51]).
3. The offender gained entry to the premises occupied by Ms Dunn. They were alone. This was his intent; the sentencing judge rejected the applicant's evidence that he had in mind the possibility of leaving without paying for the services. His Honour specifically found that the applicant had travelled to the city on 13 August 2019 for the purpose of doing physical harm to a person or persons. To his Honour's mind, this was borne out by what immediately followed (SJ [53]). One may say that it may have also be borne out by the circumstance that the applicant had brought with him "at least 1 knife" from his crisis accommodation. He drew the knife and immediately attacked Ms Dunn inflicting multiple stab and incised wounds to her face, neck, chest and limbs. The applicant had a significant height and weight advantage over Ms Dunn, and she sustained extensive defensive wounds as she fought to fend him off. After she fell, the applicant cut Ms Dunn's neck through to her spinal cord at the C4/C5 juncture. I interpolate that his evidence that he had done so to hasten her passing is entirely improbable. The learned sentencing judge made the following observations (SJ [55]-[57]): Ms Dunn had not said or done anything to provoke the Offender or trigger what happened. She was alone and vulnerable in an apartment with a stranger who had arranged to meet her, I am satisfied, for the purpose of killing her. This was a cruel, brutal and terrifying attack made for no reason. It is entirely clear that the Offender intended to kill Ms Dunn. Ms Dunn died quickly as a result of the Offender's knife attack. These findings are not challenged, or even cavilled with, in any respect in the grounds of appeal propounded on behalf of the applicant.

Sentencing judge's findings as to gravity and moral culpability

1. I repeat that the learned sentencing judge was not persuaded that the offending had a terrorist motivation. However, as I have already said, the Crown submitted that the case was one calling for the imposition of a life sentence for the applicant, in any event. It was argued by senior counsel appearing for the applicant below that the state of his mental health and his youth reduced his moral culpability such that a life sentence was not warranted.
2. His Honour found that even absent a terrorist motivation, the offending was "especially grave" (SJ [169]). As I have already recorded, his Honour was satisfied that the applicant travelled to the Sydney CBD with the intention of killing a person and to use violence to terrify others. While he was affected by a mental disorder it did not impede his capacity to plan and implement the "relatively complex series of steps which he took on 13 August 2019" (SJ [169]). His Honour was satisfied beyond reasonable doubt that the applicant's plan was to confront a young woman in a private and secluded setting for the purpose of murdering her. The attack was savage and brutal, without any provocation whatsoever from Ms Dunn, who was vulnerable due to her isolation in her workplace in the presence of the offender. His Honour found that the "grotesque" act of filming the immediate aftermath of the murder scene "reflected a measure of satisfaction at what he had done" (SJ [171]). His Honour accepted, however, that the applicant's "mental disorder played a part". His Honour accepted that the applicant would have been "content to die that day at the hands of the police", but this did not "operate as a powerful factor in his favour" (SJ [172]). From the record provided by the content of his electronic devices his Honour found that the applicant was influenced by the Christchurch terrorist murders, and other mass killings. He also had a morbid interest in shootings associated with the violent interactive computer games he played. His Honour found that the applicant was "a self-centred individual with no real concern for others". His offending conduct was "devoid of natural human sympathy or regret for what he had done" (SJ [174]). To his Honour's mind this conclusion was reinforced by what his Honour made of the applicant's demeanour giving evidence at the sentencing hearing. His impression was that the applicant's bearing "demonstrated the lack of sympathy and insight into the suffering of others". He said, "[h]is matter of fact and emotionless account of the killing of Ms Dunn was disturbing for its absence of empathy and human content (T53-55)" (SJ [175]).

Rejection of the appropriateness of a life sentence

1. As he was required by law to do, his Honour then turned to the question of whether the statutory criteria prescribed by s 61(1) CSPA mandated the passing of a sentence of life imprisonment on the applicant. His Honour (SJ [185]) directed himself that the primary focus of s 61(1) is "how extreme an offender's culpability is, with the need for the Court to find features of great or very great heinousness, along with the absence of any facts mitigating the seriousness of the crime": R v Meritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [52]. His Honour said that it was the combined effect of the criteria of retribution, punishment, community protection and deterrence, in their statutory context as expressed in s 61(1) that was important. The absence of one or more of those "indicia" make it more difficult to conclude that a life sentence is required.
2. Having so directed himself, his Honour concluded (SJ [188]-[189]): But for the Offender's mental health issues, I would have been satisfied that the requirements of s.61(1) had been met in this case so that a sentence of life imprisonment was appropriate. However, I am satisfied that the Offender's mental health issues contributed to the commission of the murder offence and bear upon the imposition of sentence in a manner which renders it inappropriate to impose a life sentence upon the Offender. In this respect, I keep in mind, as well, his youth. In determining the appropriate sentence to pass for the murder offence in this case, it is necessary to keep in mind that the Offender's mental health issues have now been taken into account in reaching a conclusion that a life sentence is not appropriate: Potts v R (2012) 227 A Crim R 217; [2012] NSWCCA 229 at [135]-[137]. The Court should take care not to inappropriately double count those factors, again in the Offender's favour on sentence. The Offender's mental health issues should be considered on sentence, but unwarranted double counting on sentence should not occur: Potts v R at [137]. (My emphasis.) I interpolate that the statement at [189] is the subject of ground 1.
3. The Crown invoked s 25F(2) CSPA to argue that if a life sentence was not to be imposed, no discount should be given for the applicant's early plea of guilty because of his level of culpability. In the ordinary course his early plea would have entitled him to a 25% discount on sentence. His Honour observed that the language of s 25F(2) is similar to that of s 61(1), but said, "it is clear that s 25F(2) has different work to do" (SJ [201]). His Honour was not prepared to allow the full 25% and reduced the discount to 10%. There is no appeal from this part of his Honour's decision.

Ground 1: failing to provide reasons by which it can be determined what "unwarranted double counting on sentence" means in relation to how the applicant's mental health issues were considered on sentence

1. Ground 1 specifically impugns the conclusions expressed by the sentencing judge which his Honour made clear flowed from his decision that a life sentence was not called for by application of s 61 CSPA to the circumstances of this case. It is clear that the applicant presents this complaint as a "reasons" ground. However, Mr Brady and Dr Fallah recognised that the resolution of this ground involves an understanding of the principle governing the interplay of s 19A Crimes Act and ss 21 and 61 CSPA. Reference was made to CC v R; R v CC [2021] NSWCCA 71; (2021) 289 A Crim R 453. While no obvious consensus emerged from the decision of that five-judge bench, Adamson J's (as her Honour then was) analysis has been approved in subsequent cases. Her Honour said (at [80]-[83]): Where, as in the present case, the objective seriousness of the offence is very high, it is appropriate for the judge to indicate, particularly to the deceased's family and friends, how seriously the court takes the offence which has resulted in the loss of a life. This pronouncement, together with the reading of victim impact statements in court during the sentence hearing, is thought to go some way to providing official recognition of the suffering which such crimes cause. A sentencing judgment has several audiences. These audiences include the offender; the victim, or if the offence is unlawful homicide, the victim's family and friends; the wider community; the investigating and prosecuting authorities; and this Court. A sentencing judge is mindful of these several audiences. In the present case, I regard the sentencing judge's indication that a life sentence would have been imposed, but for the three matters, as being calculated to achieve the important purpose of indicating to the deceased's family how seriously the court (and the community as a whole) regards such a crime. It is sufficient to note, in response to CC's detailed submissions, that there is an important distinction, which is plain from the wording of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), between the factors germane to the matter about which the court is to be satisfied and the factors germane to the sentence to be imposed on an offender. The focus of the court's attention in s 61(1) is the offender's "level of culpability in the commission of the offence". The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender's background, criminal history and any mental disease, disorder or incapacity. By contrast, the instinctive synthesis required as part of the exercise of the sentencing discretion involves a consideration of all relevant matters, not merely those that affect the offender's level of culpability in the commission of the offence. There is a significant overlap in the matters germane to s 61(1) and those germane to sentencing but the matters relevant to s 61(1) are, inevitably, a subset of the matters relevant to sentencing: see R v Burke [1983] 2 NSWLR 93 at 101C-D (Nagle CJ at CL). Matters relevant to sentence which fall outside the purview of s 61(1) of the Act include whether the offender has demonstrated remorse or contrition, whether the offender has pleaded guilty and at what time the plea has been offered or entered, and whether the offender has given assistance to authorities in respect of this offence or other offences committed by the offender or by others. The distinction was drawn by Bell J in R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415 at [83]-[84] and approved by this Court on appeal from her Honour's decision in R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [60] (Wood CJ at CL, Giles JA and James J agreeing). If s 61(1) arises for consideration, the sentencing judge will be obliged to consider the matters that affect the offender's level of culpability for the offence. Even if the judge reaches the state of satisfaction provided for in s 61(1), there remains a discretion to impose a lesser sentence. The order in which relevant matters are addressed in the reasons is a matter for the sentencing judge. At [84] her Honour also said, "[i]n the present case, CC's subjective circumstances were relevant both to the level of his culpability in the commission of the offence in s 61(1) as well as to the sentencing discretion at large" (my emphasis).

Consideration

1. I am not satisfied that there is any inadequacy in the sentencing judge's reasons with reference to the manner in which he dealt with the mental health issue and the principles which informed his decision. While there are many cases concerning a judge's obligation regarding reasons in sentence appeals, Taylor v R is a sufficient expression of those principles for present purposes. The passage relied upon by the Crown is at [51]-[56] (per Wilson J, White JA and Walton J agreeing). The purpose of the provision of reasons is to enable the offender and the Crown (and the public) to understand how the sentencing judge arrived at the sentence passed. The path of reasoning actually followed must be disclosed to permit the parties and the Court of Criminal of Appeal to ascertain whether appellable error has occurred in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40. Wilson J pointed out that the reasons of a first instance judge must be considered as a whole and read fairly. As it is frequently put, the reasons must not be read with an eye finely attuned to the detection of error (eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6).
2. I am well satisfied that his Honour's reasons accord with the relevant legal standard. His Honour correctly, with respect, regarded the applicant's mental illness as relevant to the assessment of moral culpability for the purpose of s 61(1) CSPA and said so (SJ [181]). His Honour considered that issue for the purpose of assessing whether the case at hand fell into the category of cases calling for a life sentence (SJ [188]). Having recognised that in the circumstances of the case, mental illness and the applicant's youth had a significant mitigatory effect removing the matter from the reach of s 61(1), he also recognised that, while these matters remained relevant, their mitigatory effect should not be overworked. This last aspect is made clear inasmuch as his Honour recognised that the applicant's mental illness did not point in one direction only. While it was relevant to the applicant's subjective case in the process of the instinctive synthesis following determination of the s 61 CSPA question, his mental condition also contributed to the applicant's dangerousness as assessed by the sentencing judge and accordingly brought the purpose of the protection of the community and the significance of specific deterrence into focus for determining the appropriate sentence for this offending and this offender. His Honour also recognised that the applicant's mental disorder attenuated but did not eliminate the relevance of general deterrence (SJ [207]). There are no inadequacies in the sentencing judge's statement of reasons.

Ground 2: failing to take into account the fact that a custodial sentence is likely to be more onerous for the applicant than for the theoretical "average" inmate and/or the impact of custody on his mental health.

1. By reference to the oft cited passage in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa"), of the principles to be applied in sentencing an offender who is suffering from a mental illness (at [177]), Mr Brady pointed out that one of those principles is that a custodial sentence may weigh more heavily on the person. For this reason, the sentence will be more onerous and the length of the term or the conditions under which it is served may be reduced.
2. Senior counsel pointed out that this subject was specifically dealt with in the report of Dr Furst dated 15 March 2021 (p 18; AB 169). It was addressed specifically in the written submissions of senior counsel for the applicant at sentence (p11 [14]; AB 432) and also in oral submissions (107.10-20T; AB 564). The sentencing judge's reasons do not disclose that his Honour considered this matter or took it into account.
3. The Crown did not join issue with the proposition that this matter was not specifically referred to by the learned sentencing judge, rather it was argued that the principles distilled by McClellan CJ at CL in De La Rosa were not hard and fast, inflexible rules: Richardson v R [2021] NSWCCA 304 at [62]-[64] (per Johnson J, Lonergan and Dhanji JJ agreeing); Aslan v R [2014] NSWCCA 114 at [33]-[34] (per Simpson J (as her Honour then was), N Adams J and McCallum J (as her Honour then was) agreeing); Blake v R [2021] NSWCCA 258 at [42]-[43] (per RA Hulme J, Leeming JA and Fullerton J agreeing). The Crown argued that Dr Furst's opinion had to be considered in the context of all of the evidence and that the sentencing judge referred to the applicant's history of misconduct in custody, his risk of further violent offending, poor prospects of rehabilitation and "the most important consideration of protection of the community" (SJ [205]). In light of these circumstances, it was not incumbent on his Honour to deal specifically with the onerousness of custody for a person with the applicant's mental disorders.

Consideration

1. Of the five principles distilled by McClellan CJ at CL in De La Rosa from his Honour's review of the authorities concerning the effect of an offender's mental health for sentencing purposes, it is clear that the sentencing judge referred specifically to four of them: the reduction in moral culpability; the attenuation of the significance of general deterrence; the effect on the significance of specific deterrence; and whether the person presents more of a danger to the community. Of these, the sentencing judge applied the first two, to which I have referred, in a mitigatory fashion and the second two as matters tending to point in the direction of a longer sentence. As the Crown argued, the principles are not absolute or inflexible, nor do each of them necessarily point in the same direction for sentencing purposes. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ, presiding in this Court, said: A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise. The uncontradicted evidence was that Mr Engert suffered from schizophrenia, that is to say a most serious psychiatric disorder. After reviewing the sentencing court's decision and earlier authority on the effect of mental illness, the Chief Justice continued: In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a longer sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.

Ground 4: failure to take into account material facts when assessing the applicant's demeanour as a witness and [his Honour's] subsequent conclusions about the applicant's insight, empathy and remorse.

1. This ground is a challenge to the findings of fact made by his Honour at SJ [174]-[175] and by extension at SJ [209]-[210]. Learned senior counsel acknowledged that these findings were in no small part demeanour based. Senior counsel specifically referred to the limitations upon the Court of Criminal Appeal's power to interfere with demeanour-based findings of primary fact as expressed in Rogerson v R (at [548]) in the following terms: It should be remembered that, in applying the correctness standard of appellate review, an appellate court may be subject to "natural limitations" that exist when such an exercise is undertaken: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [34]. These may include the lack of the advantage enjoyed by a primary judge in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole: Fox v Percy at [23]; CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1 at [17]; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 at [90]. That is of some significance in the present case when it is recalled that the ruling under s 135(a) of the Evidence Act in relation to the two conversations occurred on day 50 of the trial. It is notable that in stating the applicable principles for the purpose of criminal appeals their Honours referred to the same authorities which establish the same principle applicable in civil appeals, notwithstanding the broader powers enjoyed by the Court of Appeal. I interpolate that the limitation on the power of an appellate court to overturn demeanour-based findings are well understood. It is convenient to refer to the exceptions to that limitation by reference to the decision of the High Court of Australia in Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78. Brennan, Gaudron and McHugh JJ said (at p 475): More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his [or her] advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable". (Footnotes omitted). The last category is sometimes expressed as "contrary to compelling inferences".

Consideration

1. At the outset, it should be said that this ground appears to represent a challenge to findings of fact by the sentencing judge in relation to the applicant's motivation for the murder of Ms Dunn and whether the evidence established remorse. To the extent to which the applicant's evidence of his motivation was mitigatory in as much as he gave evidence that his actions were spontaneous and he was armed only because he always carried a knife for self-protection in and around Blacktown and not because he had premeditated killing a young woman, he bore the onus of proof: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. Naturally, evidence of remorse was tendered in mitigation and was required to be established by the applicant on the balance of probabilities. The sentencing judge was not bound to accept the evidence of any witness, whether uncontradicted or not. And there is no complaint that his Honour failed to explain his reasons for rejecting the evidence of the applicant and his sister Direnc about remorse.
2. Moreover, the prevailing jurisprudence of this Court is that where findings of fact are challenged on appeal, it is incumbent on the applicant to show that the finding challenged was not open: Turnbull v Chief Executive of Office of Environment and Heritage [2015] NSWCCA 278 at [32]-[35] (per Button J, Meagher JA agreeing, McCallum J reserving her position); AB v R [2014] NSWCCA 339 at [44]-[55] (per Simpson J, Meagher JA and Wilson J agreeing); contra Clark v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 at [34] (per Basten JA, Hamil J agreeing, Garling J contra).
3. Mr Brady conceded that his Honour's findings of fact in this regard were open (14.10-30T) as did learned senior counsel who appeared for the applicant at first instance (AB 566.30-40). In my judgment, these concessions were properly made and I would reject the ground of appeal on the authority of AB v R.
4. In deference to the argument of Mr Brady, I will observe that I am unpersuaded by the three factors he relied upon to make good his ground that there was a failure to take into account material evidence. My own view is that the medical evidence, which the sentencing judge accepted, did not support the conclusion that the applicant's flat affect in giving evidence was consistent with the mental disorders that Dr Furst diagnosed. Dr Furst's evidence was to the effect that "emotional deficits" including being unemotional and detached may be clinically significant in people with Autistic Spectrum Disorder, low IQ or Schizophrenia. But he was "not saying [the applicant] has those disorders." Indeed, it was his evidence that the applicant did not suffer from a major psychiatric disorder. While there was other evidence from other clinical material tendered that the applicant's presentation on clinical examination was of flat affect or he gave restricted or blunt answers, there was no evidence that that presentation was clinically significant.

Ground 5: failing to take into account the applicant's youth other than in consideration of s 61(1) CSPA

1. The applicant argued that as youth was not mentioned specifically other than for the purpose of s 61(1) CSPA this Court should infer that the sentencing judge did not take it into account other than for that purpose. Reference was made to BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 (at [4]-[6] per Hodgson JA) as to the mitigatory effect of youth and also to Bullock v R [2016] NSWCCA 131 at [69] (per Rothman J). Senior counsel, however recognised the difficulty presented by KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [25] (per McClellan CJ at CL).
2. The Crown took issue with the premise on which this ground rests. That is, the Crown contended that the sentencing judge did take into account the applicant's relative youth even if his Honour did not refer to it expressly. Emphasis was laid upon the following passage (SJ [211]): It is necessary to have regard to all the purposes of sentencing and factors bearing on sentence including the objective gravity of the offences, the [applicant's] subjective circumstances and other significant factors including specific deterrence, a measure of general deterrence and protection of the community. (Crown emphasis). It is contended that the general statement "subjective circumstances" read in the context of the whole judgment extended to include his Honour's finding that the applicant's youth was a mitigating factor for the purpose of his Honour's s 61(1) determination. It was also emphasised that the decision not to impose a life sentence afforded the applicant a considerable measure of leniency having regard to his age. Reference was also made to the gravity of the offending.

Consideration

1. I am satisfied that his Honour's reference to the applicant's subjective circumstances, generally, for the purpose of fixing the appropriate sentence extended to including the mitigatory effect of the applicant's relative youth. In this regard, the gravity of the offending must be regarded as a countervailing consideration. As McClellan CJ at CL said in KT v R (at [25]): The emphasis given to rehabilitation rather than general deterrence when sentencing young offenders may be moderated when the young person has conducted himself or herself in the way an adult might conduct himself or herself and has committed a crime of violence or considerable gravity. Two observations should be made about this passage. The first is that the applicant is not a young offender or juvenile in the legal sense meant by McClellan CJ at CL. I accept however at nearly 21 years of age, he was a person of relative youthfulness. But there can be no gainsaying that he had committed, to adapt McClellan CJ at CL's language, a crime of violence of considerable gravity. Not only was Ms Dunn murdered but she was murdered in a premeditated, brutal and cold-blooded manner. The knife attack on Ms Bo was also a serious example of the offence of wounding with intent. As Gleeson CJ observed in R v Engert, the consequences flowing from the consideration of a particular fact, matter or circumstance relevant to sentencing do not lead to automatic mitigatory consequences.
2. For these reasons, I reject ground 5.

Ground 6: manifest excess

1. As I have found ground 2 has been made good it is necessary to re-sentence the applicant. Therefore, it is pointless to separately consider the manifest excess ground.

Approach to re-sentencing for this appeal

1. Given that ground 2 has been made good, it is necessary to re-sentence the applicant for both offences. A number of points may be made about this. First, other than in relation to ground 2 and the consideration of the effect of the applicant's mental disorder on his experience in custody, there is no successful challenge to the substantive findings of fact made by the sentencing judge. Indeed, there has been no challenge at all to many of the central aspects of his Honour's reasoning. Secondly, as I have rejected ground 4, which was the challenge to his Honour's finding of the absence of remorse, I will proceed on the basis of his Honour's findings in relation to that consideration. Thirdly, affidavits have been read on the usual basis concerning the applicant's experience in custody since the sentencing proceedings and it is necessary for me to give consideration to that material. Finally, for practical and pragmatic reasons it is unnecessary for me to revisit the s 61(1) CSPA question. As was said by the High Court in Kentwell (at [43]): The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal. (footnotes omitted). It is not suggested by the Crown that this is a case calling for the imposition of a greater sentence.
2. It is also relevant to record that there has been no challenge to any fact which informed the contribution of the wounding of Ms Bo with intent to the aggregate sentence. I will proceed on the basis that there is no challenge or complaint about his Honour's assessment of the facts, matters and circumstances relevant to that separate offending bearing in mind that offence carries the Form 1 offending.

Further evidence for re-sentence

1. At the hearing, the applicant read the affidavit of his solicitor, Zemarai Khatiz, sworn on 22 May 2023. The affidavit attaches a number of documents relevant to the applicant's experience of custody to which I will return. It also annexes a report of Mr Andrew Wong, a clinical psychologist, dated 31 October 2022. That report was prepared on a medico-legal basis for the applicant's plea in mitigation on his plea of guilty to a charge of assault occasioning actual bodily harm committed in custody on 23 February 2021 and dealt with at the Penrith District Court on 2 February 2023. It may be necessary to return to that sentence for the purpose of s 59 CSPA. However, in the usual way Mr Wong's report covers a wide range of matters relevant to the applicant's mental health, both before and after he was sentenced for the murder of Ms Dunn and the wounding of Ms Bo. The report details the usual constellation of matters relevant to an offender's subjective circumstances for sentencing purposes. I am not satisfied that the report is admissible on re-sentence having regard to the decision in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, and I have rejected the whole of it.
2. Otherwise, the Correctional Services NSW ("CSNSW") documents attached to the affidavit cover the applicant's experience in custody. It must be said he has been managed in very difficult conditions which seem likely to continue for the foreseeable future. Since sentencing, he has been classified at the highest level of A1 and is housed in the High Risk Management Correctional Centre at Goulburn. He is managed by the Serious Offender Review Committee. And is regarded as a high security and extremely high-risk restricted inmate. This requires him to be escorted by the extreme high security unit when on external escorts such as when he has been taken to hospital for incidents of self-harm. He has also been held in segregation, or isolated in safe cells, for extended periods of time. These confinements, it may be said, are due to his own (mis)behaviour and (mis)conduct. Accepting that the measures taken by CSNSW to manage the applicant are reasonable in the circumstances, they also indicate a detention of considerable hardship.
3. I should point out that in her review dated 7 December 2022, a departmental psychologist, Lauren Haywood, considered there had been a perceptible degree of improvement in the applicant's behaviour, albeit remaining far from perfect. However, his overall rating according to internal standards, in Ms Haywood's opinion, represented "a reduced severity rating compared to the previous reporting period" (Khatiz affidavit p 20).

Re-sentencing the applicant

1. I turn then to re-sentencing the applicant. With one exception I would proceed on findings of fact and conclusions drawn from them by the learned sentencing judge. As I have said, mainly, they were not in dispute. I proceed on the basis that the murder of Ms Dunn is a very grave offence. While Ms Dunn as victim was chosen purely by chance, which itself is a factor relevant to objective seriousness, the murder was premeditated and involved a degree of planning. The murder itself was cruel, brutal and cold-blooded. His conduct toward Ms Dunn including after her death was entirely devoid of empathy or any natural human sympathy for his victim. Given the principle of proportionality as expressed in the provisions of s 25F(2) CSPA, like the trial judge I would allow a 10% discount for the early plea of guilty. I repeat that his Honour's approach was not the subject of any challenge. I accept that the offender's mental disorder and comparative youth reduced somewhat his moral culpability for this horrendous offence. I am of the view that one should bear in mind that these were the factors which reduced the offender's culpability below the s 61(1) standard which would otherwise have applied. However, I accept that a fact, matter or circumstance relevant for one purpose of sentencing may be relevant to another or others. Where that is so, no double counting is necessarily involved but proportionality must be borne in mind. The attenuation of moral culpability borne of his mental disorder and youth are relevant mitigatory considerations in re-sentencing.
2. Since he has been in custody, it is apparent that the applicant's mental disorder continues to affect his behaviour. However no real definitive diagnosis different from those proffered by Dr Furst has emerged since he was sentenced. I have noticed some tentative views expressed about the possibility of an emerging Antisocial Personality Disorder but the evidence does not rise to a level where one can act upon that with any degree of confidence whatsoever. Part of the applicant's misbehaviour, in my view, must be put down to his self-centredness bordering on narcissism, as identified by the learned sentencing judge.
3. While there has been some apparent recent improvement in his behaviour in custody, he appears to represent a very significant risk of reoffending, even in a serious way, and to the extent permissible in sentencing, protection of the community is a significant factor. I also agree with the sentencing judge that notwithstanding his mental disorder, general deterrence continues to have a role even if somewhat reduced. I am of the view that given his apparent dangerousness, notwithstanding some improvement, specific deterrence remains an important factor. I accept the learned sentencing judge's findings that the applicant is not suffering from a major psychotic illness. He suffers a lesser form of mental disorder and while his functioning at the time of the offences was affected it was not significantly distorted.

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 October 2023