Phanekham v R [2015] NSWCCA 295 | Case summary

Court of Criminal Appeal (NSW)|2015-11-17|Before: Ward JA, Adams J, Bellew J, Mr P, Beech-Jones J

Judgment

THE COURT: On 20 November 2013 Viengsavanh Phanekham ("the applicant") pleaded not guilty to an indictment alleging that on 20 June 2012, at Ambarvale in the State of NSW, he murdered Mark William Puffett ("the deceased").
On 29 November 2013 the jury found the applicant not guilty of murder, but guilty of manslaughter.
On 2 May 2014 the applicant was sentenced to a non-parole period of 6 years imprisonment commencing on 20 June 2012, with a balance of term of 2 years imprisonment commencing on 20 June 2018: R v Phanekham (No 3) [2014] NSWSC 508.
By notice dated 7 August 2015 the applicant seeks leave to appeal against that sentence upon a single ground, namely that the sentencing judge erred by failing to have proper regard to the applicant's mental health in a principled fashion.

THE FACTS

The sentencing judge found the facts to be as follows (commencing at [4]): [4] As at 20 June 2012 the victim's de facto partner, Ms Calleja, her son aged 17, and her two youngest children lived at a house in Martha Way, Ambarvale. The victim, Mr Puffett, was the father of her two youngest children. He had previously lived in the house but had recently left. The offender lived next door. [5] During 20 June 2012 Mr Puffett consumed alcohol continuously. He arrived at Ms Calleja's home at 2:30pm. He was drunk. Ms Calleja left the house and collected her two youngest children from school. She returned to the house. Mr Puffett played and talked with the children until around 4:30pm when he left. Mr Puffett returned to the house at around 7:00pm. He had been drinking in the meantime. [6] By this stage he was very intoxicated. He was described by some of the witnesses as being "paralytic drunk", staggering and stumbling. A blood alcohol sample taken after his death revealed a blood alcohol reading of 0.268 grams per 100 ml. [7] There is no doubt that in the immediate hour or so before his death at around 9.20pm Mr Puffett's behaviour was erratic. Ms Calleja recalled that he was at times telling her that he loved her, and at other times stating that he hated her. In cross examination she agreed that he was verbally aggressive. At one point he smashed a picture and cut his hand. He wiped blood on the front and back of Ms Calleja's blouse. Later he left the house, went downstairs and banged on the door to the garage which Ms Calleja's son used as a bedroom. He went inside, abused Ms Calleja's son and accidentally smashed a coffee table. Ms Calleja was able to manoeuvre him out of the garage. She also said that at one point he had his hands around her throat. She told him to leave. She went back into the house and closed both doors, but Mr Puffett kicked the door open. Ms Calleja said that he went back out of the house, back down the stairs and banged on the door of the garage using both his hands and his fists. [8] When she gave evidence it appeared that Ms Calleja was being protective of Mr Puffett's memory. She sought to deflect the suggestion that he was aggressive. Instead she sought to portray him as highly intoxicated and loud, but otherwise relatively harmless. However, I am satisfied that in the period immediately preceding his death Mr Puffett acted aggressively and at times was violent. [9] Later that evening, the offender participated in an "electronically recorded interview with a suspected person" with the police (the "first ERISP"). The offender stated that he had been at home playing an on-line video game for a number of hours when he heard Mr Puffett next door. He said that he yelled out "Shut the fuck up" twice. He said that Mr Puffett yelled out something to the effect of "[c]ome out to the fuckin' front yard, I'll fucking kill you". In his first ERISP the offender said he took a knife from his home and went into the street. In another ERISP conducted early on the morning of 21 June 2012 (the "second ERISP"), he said he took two knives. [10] Sometime between 9.10pm and 9.22pm on 20 June 2012 there was a confrontation between the offender and Mr Puffett in Martha Way. However, other than the participants, it was not directly observed by anyone. One of the neighbours was observing the two men, but her view of the spot where they came into contact with each other was obstructed. She did observe Mr Puffett "shadow boxing" and performing karate-like moves just prior to the confrontation. She also recalled Mr Puffett yelling out "[c]ome on, come out and have a go. I'll fucking fight you". [11] The next observation of Mr Puffett was of him running back to Ms Calleja's house. He was heard by Ms Calleja's son to be screaming out "I've been stabbed, I've been stabbed" and "someone is trying to kill me" as he ran past the garage door and up the stairs of Ms Calleja's house. In his first ERISP Mr Phanekham told the police that he followed the deceased at this time "yelling crap out at him" and he stood "just where his front porch is", ie on the lawn, yelling at him. Ms Calleja also saw the victim running across the lawn and a person she later found out was the offender following him. She said the offender ran up the steps to her house. I am not satisfied beyond reasonable doubt that he ran that far. [12] Ms Calleja let Mr Puffett into her home. He had one stab wound to his lower abdomen. It must have been a horrendous scene. Parts of his digestive system had fallen out of the stab wound. He died very soon afterwards. The stab wound had an approximate depth of 10.5cm and length of 5.9cm. The wound was crescent shaped with a maximum width of 2.3cm. The forensic pathologist called at the trial, Dr Irvine, stated that the cause of death was the effects of the stab wound. [13] The offender returned to his house. He cleaned blood from the knife and his hands. He called his brother. He sent a message to a friend with whom he had been playing the on-line video game. At around 9:22pm he phoned '000' and told the operator that he had "just stabbed someone" and that the other person "ran at me and I just pulled out a knife". [14] The police and ambulance arrived at the scene very soon afterwards. Mr Puffett died either prior to or shortly after their arrival. The police found the offender in his house. They recovered a knife from his kitchen. The knife's dimensions matched those of Mr Puffett's stab wound. [15] At 11:34pm on 20 June 2012 the offender participated in the first ERISP. I have already referred to parts of it. Early in the morning of 21 June 2012 the offender participated in the second ERISP. As noted, during that ERISP he disclosed that he had taken a second knife to the confrontation. Another knife was seized from his kitchen, but the dimensions of this knife were such that ultimately it was not alleged that it was used to stab Mr Puffett.

THE GROUND OF APPEAL - THE SENTENCING JUDGE ERRED BY FAILING TO HAVE PROPER REGARD TO THE APPLICANT'S METAL HEALTH IN A PRINCIPLED FASHION

The evidence

Exhibit 1 in the sentence proceedings was a report of Dr Olav Nielssen, Psychiatrist, of 28 March 2014. The applicant told Dr Nielssen that he was first diagnosed with depression in his late teenage years. He said that he believed that this diagnosis was secondary to the effects of a head injury which he sustained at the age of 12 which had left him with visual and learning impairments. Dr Nielssen noted that the applicant had reported contemplating suicide from that time, and that on one occasion he had been admitted to the Psychiatric Emergency Centre of Campbelltown Hospital after reporting suicidal thoughts.
The applicant reported to Dr Nielssen that he had suffered "really bad" episodes of depression during his twenties and early thirties, following which he was prescribed anti-depressant medication. Dr Nielssen noted that the applicant did not report experiencing typical symptoms of psychotic illness, such as hallucinations or persecutory beliefs.
When asked about his current symptoms, the applicant told Dr Nielssen (inter alia) that he felt low and unmotivated. He said that he had always felt anxious in social settings around people and that these feelings had been exacerbated by the crowded conditions in custody. Those things said, the applicant denied any plans to commit suicide. The applicant also told Dr Nielssen that when he was taken into custody arrangements were made for the continued prescription of Escitalopram (an anti-depressant) and Quetiapine (an anti-psychotic drug). He said that the dosage had recently been increased, but that it was "not working very well".
Dr Nielssen diagnosed the applicant as suffering from: 1. a dysthymic disorder, namely chronic depression; 2. a substance abuse disorder (in remission); and 3. a traumatic brain injury.
Dr Nielssen acknowledged that these diagnoses were based largely upon the history provided by the applicant, in the absence of an opportunity to view any documentation regarding his past or recent treatment. However Dr Nielssen said that he had no reason to doubt the history with which he had been provided. He assessed the applicant as being significantly depressed, and expressed the opinion that in the event that his mood did not improve he would require "more assertive treatment". He also expressed the opinion that the applicant would require long term psychiatric care following his release from custody.

The proceedings before the sentencing judge

The applicant was represented by senior counsel, both at his trial and on sentence. For the purposes of the sentence proceedings, senior counsel provided written submissions to the sentencing judge. These were supplemented by short oral submissions. The principal thrust of the submissions put on behalf of the applicant was that the opinions of Dr Nielssen should be reflected in a finding of special circumstances pursuant to s. 44 of the Crimes (Sentencing Procedure) Act 1999. No submission was put to the sentencing judge that: 1. there was a causal connection between the applicant's mental state and his offending; 2. the applicant's moral culpability was lessened as a consequence of his mental state; 3. the applicant was an inappropriate vehicle for general deterrence; 4. the applicant's mental state was such as to render his conditions of custody more onerous.

The findings of the sentencing judge

The sentencing judge (commencing at [40]) outlined the applicant's personal circumstances, before turning to the evidence of Dr Nielssen and the prospects of the applicant's rehabilitation (commencing at [51]): Dr Nielssen's diagnosis and prospects of rehabilitation [51] Dr Nielssen diagnosed the offender as suffering from chronic depression, a substance use disorder which was said to be in remission, and traumatic brain injury. The diagnosis of chronic depression was made on the basis of a history of his suffering long term symptoms of depression commencing in his late teenage years, including chronic low mood, lack of energy and anxiety. He considered that the factors contributing to his present depression included the effects of the head injury noted above, his frustration with disability, the effects of chronic substance abuse and, of course, his current circumstances. [52] Dr Nielssen's diagnosis of substance use disorder was made on the basis of the account of several years of opioid dependence and abuse, a period of abuse of methylamphetamine, as well as abuse of sedative medication and the offender's account of his alcohol intake. Dr Nielssen described this disorder as being in remission on the basis of his detention in the "relatively drug-free environment" of gaol. [53] Dr Nielssen's diagnosis of a traumatic brain injury was made on the basis of the offender's account of suffering a head injury resulting in a fractured skull. Dr Nielssen considered this to be a limitation on the reliability of his diagnosis. He did not rely on any documents relating to his past or recent treatment, although he noted that the offender was able to provide a reasonably detailed history. As noted, the suggestion that he suffered a traumatic brain injury is supported by the evidence of his sister. [54] I accept the first two diagnoses of Dr Nielssen. As I have stated, the evidence at trial about the offender's lifestyle was consistent with someone who is effectively a recluse and who suffered a long term chronic depression. Similarly, the evidence as to his abuse of alcohol on the day of the offence was consistent with someone who has been abusing drugs and alcohol for a long period. [55] I also accept Dr Nielssen's diagnosis of traumatic brain injury, although its effects were not described in any detail. In particular, there was no evidence that the offender's cognitive functioning was impaired and, in particular, that he was impeded in his ability to appreciate the potential consequences of his actions. [56] Generally I am not satisfied that there was any causal connection between any of these conditions and the commission of the offence. It follows from that and the other findings I have made that considerations of both general and specific deterrence are of real significance in assessing the appropriate sentence for the offender. [57] Dr Nielssen also stated as follows: "The main factors contributing to Mr Phanekham's behaviour appear to have been his intoxication with alcohol and his coincidental confrontation with another intoxicated person. He has reached his late thirties without having been in prison, and hence would have a relatively low risk of further offences of a similar nature, although I note the history of a previous incident involving a knife some years ago. His risk of reoffending is further reduced by sustained abstinence from alcohol and other illegal drugs." [58] I have already made findings concerning the significance of the offender's intoxication to the commission of this offence. I agree with Dr Nielssen that one significant matter affecting his risk of reoffending will be whether he can sustain his abstinence from alcohol and illegal drugs. However, notwithstanding that he will now have an enforced sustained period of abstinence in gaol and presumably supervision upon his release, in the medium to longer term there is still an appreciable risk that he would return to a lifestyle that involved the abuse of alcohol and illegal drugs. [59] Overall I consider the prospects that the offender will ever commit an offence as serious as this one in the future to be relatively low. Despite his limitations, the evidence suggested that the offender is a person with a reasonable level of intelligence who is capable of making the basic choices to enable him to avoid committing a serious offence. I am less optimistic, however, that in the medium to longer term he would not reoffend at some level. The risk of his return to using drugs and alcohol carries with it a concomitant risk that he may revert to some level of violence in response to a perceived slight. [60] Overall I consider that the offender has a moderate risk of re-offending, although there is a relatively low risk of his committing an offence as serious as this one.

Submissions of the applicant

In written submissions, counsel for the applicant asserted two errors on the part of the sentencing judge namely: 1. failing to consider whether the principles of general or specific deterrence should have had less weight in light of the applicant's mental condition, regardless of the lack of any causal connection to the offence; and 2. impliedly finding that any consideration of the impact of the applicant's mental health on the questions of general and specific deterrence was not open because of the absence of such causal connection.
Those submissions were prepared without counsel being aware of the content of the written submissions which had been provided to the sentencing judge by senior counsel who then appeared for the applicant.
In oral argument, having had the benefit of reading the written submissions provided on sentence, counsel for the applicant candidly conceded that it had not been put to the sentencing judge that the applicant's moral culpability was lessened by reason of his mental state, or that principles of general and specific deterrence were of less weight. With equal candour, counsel conceded that it had not been put to the sentencing judge that the applicant's mental state was such that a custodial sentence would weigh more onerously upon him.
However counsel submitted that the general issue of the applicant's mental state had been raised on sentence, in the context of urging the sentencing judge to make a finding of special circumstances. It was submitted that if this Court found error and proceeded to exercise the sentencing discretion afresh, any re-sentence should be reflected in an adjustment of the ratio between the head sentence and the non-parole period.

Submissions of the Crown

The Crown submitted that the applicant faced a fundamental difficulty before this Court, arising from the fact that the position he now sought to advance was at odds with the basis on which the case was conducted before the sentencing judge. It was submitted that in these circumstances it was incumbent upon the applicant to establish that a miscarriage of justice had occurred arising from the failure of senior counsel to put various submissions to the sentencing judge. In this respect, for the purposes of determining whether any such injustice was made out, the Crown effectively invited the Court to consider the affidavit material which had been filed on the applicant's behalf.
The Crown further submitted that on a proper reading of what the sentencing judge had said at [56] of his reasons, it was apparent that his Honour had concluded that because of the absence of any causal connection between the applicant's mental state and his offending, and because of the factual findings made in respect of that offending, the circumstances of this case were such that considerations of general and specific deterrence remained of significance. It was submitted that the factual findings to which the sentencing judge had regard in coming to that conclusion included that: 1. the applicant had deliberately inserted a knife into the deceased (at [17]); 2. the applicant had, on his own admission, consumed approximately half a bottle of bourbon in the period leading up to the killing (at [18]); 3. the applicant had committed the offence of manslaughter by an unlawful and dangerous act (at [28]); 4. the applicant's level of intoxication did not impair his ability to appreciate the consequences of his actions (at [30]); 5. although alcohol consumption may have loosened the applicant's inhibitions and perhaps made him more aggressive, it did not impair his ability to control his actions, make decisions or appreciate the consequences of his actions (at [30]); 6. the applicant realised that by his act, the deceased was exposed an appreciable risk of injury (at [31]); and 7. the applicant had deliberately inflicted a single stab wound to the deceased in circumstances where he did not intend to inflict death or grievous bodily harm upon him (at [32]).

The affidavit material

As noted at [17] above, the Crown invited this Court to have regard to two affidavits filed by the applicant in order to determine whether any injustice had arisen as a consequence of the failure to put submissions to the sentencing judge regarding the applicant's mental state.
The first affidavit was that of the applicant's solicitor, Pip Hill, annexed to which were case note reports and clinical notes covering the period between 7 April 2014 and 21 July 2015. We do not propose to set out the entirety of the contents of that material. It is sufficient, for present purposes, to note the following: 1. on 5 May 2014 the applicant presented in a stable mental state and reported that he was coping, and accepting of his custodial sentence; 2. on 22 May 2014 he was noted to have a blunt affect and teary mood and reported suffering "adjustment issues" arising from his placement; 3. on 17 September 2014 he reported a recurrence of anxiety arising from the effect of the behaviour of another inmate; 4. on 1 October 2014 he was referred for psychiatric review on the basis that his mood/affect had declined; 5. On 7 October 2014 his dosage of Escitalopram was reduced and he was prescribed Effexor. Although he was assessed as being depressed, there were no other active symptoms detected; 6. on 4 November 2014 he reported anxiety arising from issues with another cell mate; 7. on 16 January 2015 it was noted that he was working as a packer in the rations workshop. He was described as a "friendly person who is respectful and polite to staff, appears to Get on well with other inmates"; 8. on 27 February 2015 he reported difficulty coping in custody, but denied any thoughts of self-harm, or any suicidal ideation. It was noted that he did not require direct psychological intervention at that time; 9. on 25 June 2015 it was noted that he was "coping well" and that he had been "working well with no problems from other inmates". It was also noted that he had reported that his health was "good"; 10. on 15 July 2015 it was reported that he "works very well and is allways (sic) at his bench completing his work" and that he "caused nil issues or problems within the workshop".
The second affidavit filed was that of the applicant himself of 4 November, 2015. He stated (inter alia) that he found it difficult being forced to live in crowded conditions in custody, and that he continued to feel anxiety arising from interacting with other inmates.

Consideration

The sentencing judge found (at [56]) that there was no causal connection between the applicant's mental state and his offending. Contrary to the submission advanced on behalf of the applicant before this Court, the sentencing judge did not impliedly find that because of the absence of such connection it was not open to consider the impact of the applicant's mental health on questions of general and specific deterrence. Such a submission overlooks the express reference, by the sentencing judge, to the "other findings (he had) made". On a fair reading, what his Honour found was that in the particular circumstances of this case, and in light of the findings that he had reached regarding aspects of the applicant's offending, general (and specific) deterrence remained significant considerations.
In R v Engert (1995) 84 A Crim R 67 Allen J observed (at 72) that even in a case where there is no causal connection between an offender's mental state and the relevant offending, the offender may nevertheless be an inappropriate vehicle for general deterrence. However as Gleeson CJ pointed out in the same case (at 68) it is erroneous to approach the law of sentencing on the basis that once the mental illness of an offender is established, it will automatically follow that general deterrence will assume less importance in determining the appropriate sentence. In doing so, his Honour emphasised that 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 relevance of general deterrence where there is no causal connection between the offender's mental state and the offending will therefore depend upon the particular circumstances: Iskandar v R [2013] NSWCCA 235 at [27]-[32] per the Court (Beazley P, R A Hulme and Bellew JJ). In the present case, the sentencing judge concluded that general (and specific) deterrence remained significant. That conclusion stemmed, at least in part, from the various factual findings made by the sentencing judge regarding the offending. No challenge is made to any of those factual findings. No error is disclosed, either in the approach adopted, or the conclusion reached.
Moreover, and as we have noted, no submission was made to the sentencing judge that the applicant was an inappropriate vehicle for general deterrence on account of his mental illness, nor was any submission made that such illness would render his period of custody more onerous. As was properly accepted, those circumstances present the applicant with a difficulty in seeking to argue before this Court that the sentencing judge erred in failing to consider such matters, or otherwise erred in failing to have regard to the principles governing the sentencing of mentally ill offenders.
In Zreika v R [2012] NSWCCA 44 Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said (commencing at [79], citations omitted): "[79] This court is a court of error. The jurisdiction of the court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law. If material error is demonstrated, before the court would proceed to resentence the Applicant, the court must form a positive opinion that some other sentence is warranted in law and should have been passed. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion. [80] There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand. … "
Similar observations had previously been made by Redlich JA in Romero v R [2011] VSCA 45 where his Honour said (at [11]): "In sentencing appeals, this court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this court will not lightly entertain arguments that could have been, but were not advanced on the plea. …".
More recently in Dicianni v R; Pintabona v R [2015] NSWCCA 201 Hoeben CJ at CL (with whom Price and Davies JJ agreed) said (at [282]): "It is difficult to see how there can be said to be error by the Sentencing Judge's failing to take matters into account when no submissions about those matters were made. This court has made clear in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [75] to [81] that, ordinarily, if a matter has not been put to the Sentencing Judge, this court will be unlikely to find error by reason of the matter not being referred to in the remarks on sentence unless some serious injustice can be shown from the failure to raise the matter in the court below".
There is nothing in the affidavit material filed by the applicant in the present case which would support a conclusion that an injustice of the kind referred to by Hoeben CJ at CL has occurred. The applicant's difficulties in custody appear to originate, in large measure, from the actions of other inmates. Such a difficulty is not uncommon. Importantly, there is nothing to suggest that the applicant's mental condition is impacting upon his period in custody in a materially adverse way. On the contrary, the condition is apparently being appropriately treated, and the assessments of the applicant are generally positive.
For all of these reasons the ground of appeal is not made out.

ORDERS

For the reasons expressed above, the orders of the Court are as follows: 1. Leave to appeal granted. 2. Appeal dismissed.

Amendments 30 November 2015 - Amendment to Decision on coversheet. 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: 30 November 2015

Phanekham v R

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