Pym v R

Court of Criminal Appeal (NSW)|2014-09-12|Before: Hoeben CJ, Price J, Fullerton J

Judgment 1HOEBEN CJ at CL: I agree with Fullerton J. 2PRICE J: I agree with Fullerton J. 3FULLERTON J: The applicant seeks leave to appeal out of time against sentences imposed by Sides DCJ on 4 June 2012 after he entered pleas of guilty on arraignment to one count of wounding with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW) and one count of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act. 4Both offences carry a maximum penalty of 25 years imprisonment with standard non-parole periods of 10 and 7 years respectively. 5After allowing a discount of 10 per cent for the pleas of guilty the applicant was sentenced to 18 years imprisonment with a non-parole period of 12 years for the offence contrary to s 27 of the Crimes Act, and 14 years and 5 months imprisonment with a non-parole period of 10 years for the offence contrary to s 33(1)(a). The sentences were partially accumulated, resulting in a total effective sentence of 20 years imprisonment with a non-parole period of 14 years. 6The applicant relies upon two grounds of appeal: Ground 1: The omission to adduce psychiatric evidence relevant to his case on sentence resulted in a miscarriage of justice. Ground 2: The sentences imposed are manifestly excessive. 7In support of the first ground of appeal, the applicant relied upon four reports from Dr Richard Furst, forensic psychiatrist. The reports, dated 13 December 2010, 22 October 2011 (the first two reports), 31 May 2012 (the third report) and 6 September 2013 (the fourth report), were annexed to the affidavit of Ms Psaltis, solicitor, dated 11 June 2014. The first two reports were available at the time of sentence but were not tendered in the sentence proceedings. A redacted version of the third report was tendered. Counsel submitted that the effect of the redaction withdrew from the consideration of the sentencing judge Dr Furst's opinion that it was likely the applicant was in dissociative mental state at the time he committed the offences. It also deleted any reference to the material Dr Furst relied upon in coming to that view, together with his analysis of that material. (A detailed comparison of the redacted and unredacted third report is set out at [68] of this judgment.) Dr Furst's fourth report was obtained in preparation for the appeal. 8The applicant submitted that the unredacted version of the third report, and the first two reports which Dr Furst stipulated were to be read in conjunction with it, contained material essential to an appreciation of the applicant's mental state and functioning at the time of the offending. It was further submitted that to tender the redacted version of the third report without Dr Furst's authority, coupled with the failure to tender the two earlier reports, was productive of a miscarriage of justice since it foreclosed the sentencing judge's consideration of relevant expert evidence which would likely have operated in significant mitigation of sentence. 9The fourth report was relied upon as containing Dr Furst's settled opinion as to the applicant's mental state and functioning at the time of the offences in a form which should have been before the sentencing judge. In that report Dr Furst expressed the opinion that the applicant had a compromised capacity to fully appreciate his conduct or to exercise proper judgment or control at the time that he committed the offences because he was in what Dr Furst described as an "altered state of consciousness". Counsel submitted that had Dr Furst's opinion as to the causal connection between the applicant's compromised capacity for judgment and self-control and his offending been before the sentencing judge, it would have invoked application of settled principles as to the impact of an offender's mental illness or condition in mitigation of sentence (as to which see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; 205 A Crim R 1) and that the failure to seek to establish that critical causal connection in this case has resulted in a miscarriage of justice. 10Although Dr Furst's fourth report constituted fresh evidence, the Crown objected to only part of the report. Those parts were either not pressed or ruled inadmissible. 11On the appeal, the Crown tendered, without objection, three reports from Dr Bruce Westmore, forensic psychiatrist. The first of Dr Westmore's reports, dated 5 May 2011, and the second, dated 27 September 2011, were provided to Dr Furst by the applicant's then solicitors prior to the preparation of Dr Furst's second report. Dr Westmore's third report, dated 27 August 2013, was obtained by the applicant's solicitors after sentence. None of Dr Westmore's reports were before the sentencing judge. The redacted third report made no mention of Dr Furst having been provided with Dr Westmore's reports although the second report did make reference to them. 12In Dr Westmore's third report he expressed the opinion that it was most unlikely that the applicant was suffering from any state of disassociation when he committed the offences or that he was in any state of disassociation prior to the offending. Dr Westmore concluded that any apparent disassociation or disorientation identified by police following the applicant's arrest was most likely to have occurred because of the offending rather than being a cause of it. 13The Crown indicated its intention to cross-examine Dr Furst as to the basis upon which he came to a contrary view and what was said to be an unexplained shift in diagnoses across the body of the reports. Dr Furst was available on the hearing of the appeal. In the course of oral argument it was accepted by the Crown that if the Court were persuaded that the sentence proceedings miscarried, then the appropriate forum for the parties to test the evidence of both of the forensic psychiatrists is in a newly constituted sentence proceeding in the District Court and that the appropriate order is for the matter to be remitted to enable that to occur. Counsel for the applicant concurred. 14The applicant also relied upon an unsworn affidavit from counsel who appeared on his behalf in the sentence proceedings in which counsel detailed the advice he gave the applicant as to the weight of the evidence in the Crown case and the likely course of any trial in which the Crown was put to proof on the question of his legal capacity. In particular, counsel gave advice that the defence of non-insane automatism was unlikely to succeed. Counsel also recorded the applicant's instructions upon receiving that advice, including the fact that he did not wish to give evidence. He said that the applicant instructed him that he would enter pleas of guilty, and that after some negotiations over the form of the charges, the matter was set down for sentence. 15Counsel said that his decision as to what to tender in the proceedings on sentence, including the redacted version of the third report, was based on the following factors: [The applicant] had given instructions to plead guilty; Those instructions had been given on the basis that the Crown would have no difficulty in proving that [the applicant] had committed the physical acts involved in the offences; That [the applicant] claimed to have no memory of the events; That the "defence" raised by Dr Furst was unlikely to be made out as in Dr Furst's report it was based on: (a) Dr Furst's correct view "that there was no logical reason" for the attack; (b) "The observations of the victims and police pointed to the likelihood that [the applicant] was in an altered state of consciousness at the time"; (c) that, therefore, there were "reasonable possibilities he was suffering from a dissociative amnestic state at the time"; and (d) that "he has the defence of automatism open to him". Dr Furst did not state that [the applicant] was suffering from a dissociative state, only that there were reasonable possibilities that this was the case; ... It was [counsel's] view that in order to prove the defence of automatism [the applicant] would have to give evidence about his memory or otherwise; [The applicant] was averse to giving evidence at trial; Even if he did, his evidence was unlikely to be accepted by a jury particularly given Dr Furst's assessment of him as a pathological liar; Any trial would necessarily involve further trauma to the victims; The sentence after trial ... would be greater than if he pleaded guilty; There was a risk if "automatism" was referred to in a report tendered on sentence the sentencing judge could consider it to be a traverse of the plea and that a trial could ensue; and [The applicant] was not prepared to give evidence on sentence. 16Counsel further deposed to the fact that he did not have any specific recollection of considering whether to tender Dr Furst's earlier reports, but reading them since the hearing led him to conclude that he probably did not consider that they would have advanced the applicant's case on sentence. Counsel did not consider calling Dr Furst or relying upon his opinion that the applicant was in a dissociative state such that his mental functioning was compromised to any degree as a mitigating factor on sentence. 17The Crown accepted that counsel's ill health prevented the applicant from obtaining a sworn affidavit for the purposes of the appeal or having counsel attend for cross-examination. In those circumstances the Crown did not object to the unsworn affidavit being tendered. The applicant waived legal professional privilege.

The application for leave to appeal out of time 18The notice of intention to apply for leave to appeal was filed on 6 July 2012, four days out of time (see s 10(1)(a) of the Criminal Appeal Act 1912 (NSW)). An application to extend time was granted and extended on five occasions by the Registrar. The last extension expired on 23 December 2013. The notice of appeal was filed on 5 February 2014, being 48 days out of time (see r 3B(1)(a) of the Criminal Appeal Rules (NSW)). 19The applicant relied on a notice of application for an extension of time filed on the same date as the notice of appeal. The Crown opposed leave being granted to extend the time for leave to appeal. 20In determining whether to grant leave the length of the delay and whether there is any satisfactory explanation for it are essential considerations. In addition, the interests of those involved in or affected by the application are to be considered, as is the question whether a substantial injustice would result if the application for an extension of time were refused. In respect of that question the merits or prospect of success of the proposed appeal are to be considered (see Miles v R [2014] NSWCCA 72). 21The Crown submitted that in this case the delay is substantial and the explanation offered is unsatisfactory. Further, the Crown submitted that the detrimental impact of the delay on the victims in this case is particularly significant given the extent of the injuries they sustained in the course of the applicant's entirely unprovoked attack upon them with a knife in their own home in May 2010, and that they were entitled to the legitimate expectation that the matter was finalised at the conclusion of the sentence proceedings in June 2012. The Crown also submitted that on a close examination of the reports of Dr Furst relied upon in support of the first ground of appeal, and the reports of Dr Westmore relied upon by the Crown in meeting the first ground of appeal, the application for leave to appeal is without merit. 22Counsel for the applicant submitted that a delay of seven weeks from the expiration of the last extension of time granted by the Registrar in February 2014 is not substantial. In reliance upon an affidavit sworn by Ms Psaltis, counsel submitted that the delay in filing the notice of leave to appeal was not through dilatoriness but through oversight in applying for a final application for an extension of time before the Registrar before the Christmas vacation in 2013. Counsel emphasised that each of a succession of previous applications over the previous year was made in a timely fashion and granted in recognition of focused and concerted efforts of the applicant's legal representatives to assemble the material to permit an informed enquiry into the grounds for an appeal against sentence. Where the challenge to the sentence turned upon the adequacy of the psychiatric evidence ultimately tendered in the applicant's case on sentence, counsel submitted that the need to obtain Dr Furst's third report, in the form in which it was tendered on sentence and the reports which were not tendered, and then to apply for Legal Aid funding to obtain a further report from Dr Furst was critical, and the delay in obtaining that material was unavoidable. The two earlier reports and the unredacted third report of Dr Furst were received by the applicant's legal representatives on 21 March 2013. In April 2013, counsel requested that further psychiatric reports be obtained by Dr Furst and Dr Westmore. Dr Westmore advised that he would not be in a position to assess the applicant before August 2013. 23Further, it was necessary to obtain an affidavit from counsel who appeared for the applicant on sentence before the notice of appeal was settled which also added to the delay. On the hearing of the appeal the Crown took no issue with the fact that there were difficulties in obtaining a sworn affidavit from counsel as a result of his ill health and in the result, as noted above, an unsworn affidavit was tendered without objection from the Crown. 24In all the circumstances, I am satisfied that leave to extend time should be granted. I am also satisfied that it is in the interests of justice to do so in order to allow for a close consideration of the question whether the sentence proceedings miscarried resulting in a miscarriage of justice and whether the appropriate course is to remit the matter to the District Court for a further sentence proceeding.

Proceedings on sentence 25A statement of facts was tendered by consent together with a certificate pursuant to s 35A of the Crimes (Sentencing Proceedings) Act 1999 (NSW). The Crown also tendered the applicant's criminal history and medical reports relating to injuries sustained by Mr and Mrs Hicks, each of whom read victim impact statements in open court.

The facts as found by the sentencing judge 26At approximately 2.45pm on 14 May 2010 Mr and Mrs Hicks were at their home in Castle Hill when the doorbell rang. Mr Hicks opened the door and was greeted by the applicant, who introduced himself as a former neighbour. Mr Hicks recalled the applicant living next door with his parents and his sister two years earlier although he had never been formally introduced to him. The applicant said that his car had broken down and requested a telephone book to ring for assistance. His Honour was satisfied this was a deliberate ruse to allow the applicant access to the house. 27Mr Hicks invited the applicant into the kitchen. Mrs Hicks offered him a drink. The applicant said he would have a cup of coffee, as did Mr Hicks, who then left the room. 28Mrs Hicks bent down to obtain something from a cupboard when she felt a number of hard blows to her back. The applicant was wielding a "fold up" knife with a blade of about five inches long which penetrated Mrs Hicks' spine and neck. As she turned to face the applicant she received a blow to the middle of her forehead, followed by one to the left side of her face, and another to her arm. She screamed and the attack stopped. Mrs Hicks did not hear the applicant say anything while he was attacking her. This conduct grounded the first count on the indictment. 29When Mr Hicks heard his wife scream he ran to the kitchen. He could not see her but saw the applicant standing with his right arm outstretched above his head, holding the knife in a closed fist. The applicant then struck Mr Hicks on the left hand side of his face, breaking his glasses and causing an incised wound above and below his left eye. 30Mr Hicks attempted to defend himself against the applicant's continued attack with the knife, in the course of which they both fell to the ground. Mr Hicks landed on top of the applicant and began to choke him by pressing his thumb on the applicant's throat. Mr Hicks told the applicant to drop the knife or he would kill him. The applicant dropped the knife to the floor. This conduct grounded the second count on the indictment. 31At about this time Mrs Hicks was found by her neighbours screaming in the middle of the road, with blood all over her face and saying, "He is killing Ron, he is killing Ron". A neighbour went into the house to assist Mr Hicks, who he found kneeling over the applicant holding him down. The neighbour observed a wound to Mr Hicks' neck which was bleeding profusely. He directed Mr Hicks to lie down whereupon he took hold of the applicant and rolled him over. He saw the knife on the ground which he placed on the kitchen sink. 32Another neighbour entered the house and saw the applicant lying on his back with a large amount of blood on his clothing. The applicant did not respond to the neighbour's questions. Police arrived shortly afterwards and arrested the applicant. The agreed facts made no reference to observations police made of the applicant at that time or his response to questioning at the scene or when he was taken into custody. 33Both Mr and Mrs Hicks were taken to Westmead Hospital by ambulance and admitted to the intensive care unit where Mrs Hicks underwent emergency surgery. She suffered multiple lacerations, including deep lacerations to her spine, the base of her neck, her right forehead and upper and lower eyelids, an intraoral injury (inside the mouth), and a laceration to the left temple. She suffered a fractured cheek bone, a left facial nerve injury resulting in numbness over the left cheek and jaw causing a permanent facial droop, and injury to the major nerves to the left arm resulting in weakness, a "pins and needles" sensation and burning pain on movement. In a statement annexed to the agreed statement of facts, Dr Maria Nittis, a forensic physician, expressed the opinion that Mrs Hicks' injuries, if not immediately addressed, were potentially fatal. 34Mr Hicks also sustained multiple wounds, including incised wounds above and below his left eye, an incision to his right neck measuring 10cm x 8 cm x 10cm, an 8cm incision extending from his collarbone to his ear, and a 1cm stab wound to his upper left chest requiring surgery. He also suffered a fractured nose. The incised wound to Mr Hicks' neck was a few millimetres from the external carotid artery. His Honour observed that the wounds to his neck, face and chest were in the vicinity of major arteries, veins and nerves.

The applicant's criminal record 35The applicant was 23 years old at the time of the offence and 25 at the time of sentence. He had no prior offences for violence.

The applicant's case on sentence 36Dr Furst's third report, dated 31 May 2012, was redacted in consultation with the Crown on the day of the sentence hearing and tendered in its redacted form. As noted above, Dr Furst was not consulted about the redaction. The sentencing judge did not enquire as to the reason for the redaction or the extent to which the redacted version qualified those parts of Dr Furst's opinion that were to be relied upon. The only point of engagement with his Honour on the issue was at the commencement of the sentence proceedings when counsel informed his Honour that there was what counsel described as "a problem which needed to be resolved": The matter is set down for sentence today your Honour, the Crown was requiring a psychiatrist [Dr Furst] whose report we intended to tender. He has been tied up in a trial your Honour that was unexpected, he was expected to be available today. My friend and myself are trying to resolve how we can deal with the matter. 37After an adjournment, the Crown prosecutor indicated that the parties had "resolved the matter" without the need for Dr Furst to attend. It is clear that what was referred to as a "resolution" of the matter was achieved by the redaction. 38In the redacted version Dr Furst reported that the applicant was unable to account for his actions in going to where Mr and Mrs Hicks lived and gaining entry to their home (armed with a knife) and that he was unable to recall attacking them. Dr Furst noted the applicant claimed to think about what he had done "every day" and that he expressed remorse, including an appreciation of the impact of his actions on Mr and Mrs Hicks. He was reported as saying, "How would I have reacted if they were my parents ... it was a lose-lose scenario". 39Dr Furst also reported that on examination the applicant did not suffer from any formal thought disorder and there were no signs of psychosis. He concluded that there remained what he described as "diagnostic uncertainty" as to the applicant's mental state at the time of the offending, in the absence of any persistent memory problems after his arrest and a history of pathological lying before his arrest. Dr Furst was of the opinion that it was likely that the applicant suffered from a personality disorder with schizoid and antisocial traits, and that his reported episodes of amnesia, including of the assaults on Mr and Mrs Hicks, may represent "some type of dissociative disorder". Ultimately, he concluded that he could discern no rational explanation for the applicant's attack on his former neighbours and, in the absence of any evidence of a persistent psychotic disorder, that his conduct could not be accounted for by a disease of the mind. Dr Furst assessed the applicant as presenting a low to moderate risk for future violence, with the most significant risk factor being a relapse of dissociation or other mental disturbance when the applicant was under stress. 40In the sentence proceedings the applicant's counsel advanced brief oral submissions on the question of sentence. He submitted that the sentencing judge should find that the offences were "relatively spontaneous" and that the applicant's pleas of guilty evidenced remorse, confirmed by his expressions of remorse to Dr Furst. Counsel also submitted, again in reliance upon Dr Furst's report, that the applicant had insight into his offending. Counsel emphasised that the applicant did not have a history of violent offending and there was nothing to indicate he was likely to reoffend. Counsel acknowledged that a lengthy sentence was inevitable having regard to the objective gravity of the offences but submitted that taking into account the applicant's youth, the lack of any history for violent offending, a lengthy period of supervision was appropriate. Counsel did not advance any submissions directed to the applicant's mental health at the time of the offence in mitigation of sentence.

Remarks on sentence 41His Honour found the wounding with intent to murder, the subject of the first count, as towards the upper end of the range of objective serious, and the wounding with intent to inflict grievous bodily harm, the subject of the second count, somewhat above the mid range. 42On the issue of premeditation, he made the following observations: The Court is satisfied on the evidence before it that the offences were premeditated. There is no other conclusion to be drawn, in the Court's view, in light of him going to this particular house in possession of the knife. He gained entry ... by a ruse. The blows were directed to vulnerable parts of the victims' bodies. The [applicant] claims no memory of the offences themselves. If that were accepted, it is possible that he was in a disassociated state. It is, in the Court's view, no coincidence that the offences were committed upon a former neighbour. According to his account he was living at Croydon. These events occurred a long way away at Castle Hill. There is, however, no explanation for him choosing these particular victims. There is no evidence of any previous animosity. Indeed the evidence discloses that he never formally met either of the victims in the past. 43His Honour observed that there was very limited evidence regarding the applicant's subjective circumstances. He referred to Dr Furst's report but questioned the weight of the opinion he expressed as regards the applicant's mental health at the time of the offending. His Honour said: The [applicant] has a personality disorder and may well have been suffering from depression at the time he committed these offences. However, the conclusions of Dr Furst and his opinions are based substantially upon what the offender told him. As already noted, there is a history of the [applicant] being a pathological liar. Further, Dr Furst says that [his report] should be read with two earlier reports that he had prepared in connection with the [applicant] and that are not before the Court. In these circumstances the Court is left in a difficult position and is not able to place any considerable weight upon the opinions of Dr Furst. It is not persuaded that, as a consequence of any mental health or psychological issues, there is any reduction in the offender's moral culpability. 44Given what his Honour described as the applicant's history as a pathological liar and the fact that he did not give evidence, he was not satisfied that the remorse expressed to Dr Furst was genuine. He was satisfied that the applicant's prospects of rehabilitation were reasonable. Because of the applicant's relative youth, his Honour afforded greater weight to rehabilitation and less to general or specific deterrence. 45His Honour partially accumulated the sentences with the sentences imposed in the Local Court for unrelated offences of dishonesty, and made a finding of special circumstances on that basis.

Ground 1: The omission to adduce psychiatric evidence relevant to the applicant's case on sentence resulted in a miscarriage of justice 46It is clear that counsel who appeared on sentence was in possession of evidence (being Dr Furst's first and second reports and the unredacted third report) which addressed the applicant's psychiatric condition at the time he committed the offences. It was not submitted that counsel's failure to tender the three reports (the third in its unredacted form) amounted to incompetence or that any close examination of counsel's advice or reasons he gave for the forensic decisions he made is called for on the question whether the sentence proceedings gave rise to a miscarriage of justice. 47Counsel submitted that it was sufficient for the purposes of the appeal to establish that critical features of the applicant's psychiatric profile, explored by Dr Furst in the reports and foundational to his ultimate opinion that the applicant was in an altered state of consciousness at the time of the attack on Mr and Mrs Hicks, were not in evidence before the sentencing judge. Counsel submitted that since that evidence was available and relevant to sentence, to deprive the applicant of the opportunity to have that material considered in mitigation of sentence has been productive of a miscarriage of justice. 48The Crown submitted that the decision not to tender the material was both explicable and appropriate in circumstances where the applicant had entered pleas of guilty and was averse to giving evidence. The Crown submitted that to rely upon the redacted material from Dr Furst's third report would have effectively traversed the applicant's pleas and that there was nothing in the first two reports that added anything material to the sentencing exercise. 49It is necessary to examine Dr Furst's third report, in its unredacted form, and the fourth report that was tendered on the appeal in some detail. It is only by undertaking that exercise that the significance of what was not tendered can be assessed and the question whether a miscarriage of justice has been demonstrated can be meaningfully addressed. The first and second reports are not insignificant but the failure to tender them is not relied upon independently of the unredacted third report as constituting a miscarriage of justice.

The first report: 13 December 2010 50Dr Furst was initially consulted by the applicant's then legal representatives to prepare a report in relation to the issue of fitness to be tried; whether there were any psychiatric or psychological features of the offending that may operate in mitigation of sentence and whether there were any special defences the applicant had available to him. Dr Furst was furnished with a volume of material including an ERISP conducted shortly after the applicant's arrest, the applicant's past medical and psychiatric records and records from Justice Health after his remand, school records, and statements provided by the applicant's parents and friends. That material was not before the sentencing judge. It was not tendered on the appeal. 51Dr Furst noted that the applicant had a history of lying. The applicant's family and friends gave details of him lying in relation to matters such as the death of his parents (both of whom were alive), his financial situation, his employment status, and his name. Dr Furst also noted that the applicant told him that he suffered a loss of consciousness after a motorcycle accident in 2007 and that he was admitted to Intensive Care with raised intracranial pressure, although medical records indicated he suffered no loss of consciousness and was fully oriented in the Emergency Department and treated thereafter in the Orthopaedic Ward. 52The applicant reported that he had been treated for depression at the ages of 19 and 22, that he often felt sad and depressed and frequently had suicidal thoughts. He also reported periods of "high mood" where he was full of energy and did not need to sleep. He told Dr Furst he was very depressed around the time of the offence and would go walking for hours. 53The applicant told Dr Furst that he did not remember going to Mr and Mrs Hicks' home, and did not remember attacking them with a knife. He reported that he "woke up" being restrained by police, and thought that he was the one who had been attacked. He told Dr Furst that he felt no malice towards Mr and Mrs Hicks. 54Dr Furst noted that Mr Hicks told the police that the applicant was "behaving slightly strangely" when he invited him into the house. The police facts (also not tendered and not reflected in the agreed facts) described the applicant on arrest as: ... disorientated and unsure of his surroundings. He was sufficiently aware to supply police with his full name and place of residence, but when questioned about what had just occurred the [applicant] could provide no explanation as to his actions and the assaults. 55Dr Furst also had regard to an ERISP conducted on the day of the offence. In that interview the applicant stated that he had been "losing periods of time for up to 12 hours", however he believed he was still able to function. 56Dr Furst had regard to the applicant's Justice Health Medical Records which documented the applicant's social decline from around November 2009, including the demise of his relationship because of his lies, leaving his job and living on the streets until he was housed by the Salvation Army. Upon his reception into prison, the applicant told the reception nurse that he suffered from blackouts. He was placed in a safe cell and transferred to the Mental Health Screening Unit due to the nature of his offending, and what was described as "inappropriate talking and laughing ... isolative and overfamiliar behaviour, mood swings and agitation". 57The applicant was assessed by Dr Dall, a psychiatry registrar, on 18 May 2010, within days of his remand. He reported "several years of memory problems", a history of depression, and a history of lying without being able to offer any rational explanation for his lies. Dr Dall suspected that the applicant was suffering from an underlying serious major depression with possible emerging psychosis. 58The applicant was assessed by Dr Malik, psychiatrist, on 9 June 2010 to whom he reported "memory problems for six months" as well as introversion and depression. Dr Malik was of the opinion that the applicant was suffering from major depression. He prescribed antidepressant medication. 59Dr Furst expressed difficulty reaching a definitive diagnosis largely due to what he considered to be the applicant's unreliability as a historian. He noted the applicant's inconsistent reporting of memory problems, and other aspects of his self-reporting which were unreliable. Dr Furst suggested that the presence of apparent pathological lying raised "pseudologica fantastica, confabulation, or a Ganser syndrome" as reasonable diagnostic possibilities. Alternatively, he considered that the applicant may suffer from a factitious disorder or personality disorder but that further investigation was needed to confirm that diagnosis. Dr Furst was also of the opinion that it was possible the applicant suffered from schizophrenia or a bipolar affective disorder, particularly given his behaviour on his reception to prison. 60Dr Furst expressed the following further opinion: There appears to be no logical reason for [the applicant's] actions in question in attacking the two victims on 14/05/10, and the initial observations by the victims and police point to the likelihood he was in an altered state of consciousness at the time in question, raising reasonable possibilities he was suffering from a dissociative amnestic state, a period of catatonia, or a delirium (secondary to Endone). He told police immediately after the offences that he had been losing periods of time for up to 12 hours, not recalling anything that had occurred during those periods. ... The presence of amnesia at the time in question makes it a reasonable possibility that the act was not willed or voluntary, which raises the defence of automatism. Mr Pym may have an underlying mental condition that is prone to recur, such as the organic effects of a head injury or an underlying mental disorder, however this remains to be determined definitively. ... 61Dr Furst also ventured the view that the applicant appeared to have the defence of mental illness available to him, "especially if he turns out to have a disease of the mind, such as a head injury or major mental illness".

Dr Furst's second report: 22 October 2011 62On 15 September 2011 the applicant's legal representatives sought a further opinion from Dr Furst following neurological testing and after receiving a report from Dr Westmore (Dr Westmore's first report). 63Dr Furst noted that the results of the neurological testing were unremarkable and revealed no evidence of epilepsy or neurological disorder. A neuropsychological assessment indicated that the applicant was of "high average intelligence" with no significant impairment in his memory or attention. Personality testing revealed a tendency towards a schizoid personality and a fragmented personality. 64Dr Furst noted that despite these results, there remained some diagnostic uncertainty. He noted that the absence of any persistent memory deficits on neuropsychological testing rendered it difficult to attribute the applicant's reported memory loss prior to the incident and the incident itself to an underlying neurological disorder, although it may represent a dissociative disorder. Dr Furst noted that in light of the test results, the likely primary diagnosis was a personality disorder with schizoid and antisocial traits. 65Dr Furst noted that despite the limitations of the applicant's self-report, he probably still met the diagnostic criteria for a major depressive disorder, however the absence of any signs of psychosis made the diagnosis of a serious mental illness, such as schizophrenia or a bipolar affective disorder, unlikely. Dr Furst abandoned his earlier opinion that the applicant's presentation could be attributed to a disease of the mind, there being no evidence of a persistent psychotic disorder or severe depression. 66Dr Furst provided an updated opinion regarding the availability of what he described as "psychological, psychiatric or other defences". He reiterated the likelihood that the applicant was in an altered state of consciousness at the time of the assaults, raising the reasonable possibility he was suffering from a dissociative amnestic state. He maintained the opinion, expressed in his first report, that the defence of automatism was available.

Dr Furst's third report: 31 May 2012 58 On 17 April 2012 the applicant's legal representatives sought a further updated report from Dr Furst after the applicant entered pleas of guilty, in which he was invited to consider the risk of further offending and an updated opinion as to whether any psychiatric or psychological mitigating factors, or special defences, were operative at the time of the offending. It was a redacted version of this report that was tendered in the proceedings on sentence. 67Dr Furst reported that the applicant continued to maintain he had no memory of the assaults and remained unable to account for his conduct. Dr Furst reiterated the view there was some diagnostic uncertainty as to the applicant's mental condition at the time of the offending but remained of the opinion, expressed in his second report, that the most likely diagnosis was a personality disorder with schizoid and antisocial traits. He said: Given the history of childhood maladjustment and pathological lying, combined with the results of recent personality testing, it is now more likely that the primary diagnosis is one of a personality disorder with schizoid traits. In the absence of apparent substance abuse, his episodes of amnesia for events, including the index offence on 14/05/10, may well represent some type of dissociative disorder. Despite the limitations of his self-report, he probably still meets criteria for a diagnosis of Major Depressive Disorder. He is being treated for depression and his condition has remained stable over the past 18 months with the antidepressant medication Avanza. The lack of any psychotic signs of relapses over the last 18 months makes the diagnosis of a serious mental illness such as Schizophrenia or a Bipolar Affective Disorder unlikely. (During proceedings on sentence, the parties, by agreement, amended the second sentence in the above extract to read "... his stated history of episodes of amnesia for events".) 68The italicised portion of the passage that followed was redacted: I remain of the opinion that there appears to be no logical reason for his actions in question in attacking [the victims] on 14/05/10 at their home in Castle Hill, and the initial observations by the victims and police point to the likelihood he was in an altered state of consciousness at the time in question, raising reasonable possibilities he was suffering from a dissociative amnestic state at the time. I remain of the opinion that he has the defence of automatism open to him; however, I understand that he is pleading guilty. The history of apparent episodes of dissociation prior to the events in question makes it more likely that this was a function of his underlying personality dysfunction, or an internal factor prone to recur, than from an external factor such as the Endone and antibiotics he was taking at the time. I no longer think that his presentation can be accounted for by a disease of the mind, as there is no evidence of a persistent psychotic disorder or severe depression, which would tend to preclude a mental illness defence. He does not appear to have acted in self-defence or out of provocation. 69Dr Furst analysed the applicant's risk of future violence to be low to moderate.

Dr Furst's fourth report: 6 September 2013 70In this report Dr Furst considered whether there was any causal connection between the applicant's mental state and his offending, not limited to the defence of automatism (which had been abandoned by the pleas of guilty) but more generally as providing some insight into what he considered was extremely violent conduct by a person without any criminal history for violence and in the circumstances in which that offending occurred. 71Dr Furst remained of the opinion that the primary diagnosis was a personality disorder with schizoid and antisocial traits made in the second report and repeated in the third report (including the redacted version), characterised by adjustment difficulties, interpersonal problems, low self-esteem and pathological lying. He also remained of the opinion that the applicant probably suffered from a depressive disorder which he noted had been treated with antidepressant medication since his remand. He opined that the applicant's personality disorder and his previous reported episodes of dissociation render it likely that any dissociation he experienced at the time of the offending was a function of his underlying personality disorder. 72Dr Furst reiterated the opinion (expressed in his first and second reports but redacted from the third report) that there was no logical reason for the applicant's actions, and the observations of Mr Hicks when the applicant spoke to him at the door and the observations of police suggest the likelihood that he was in an altered state of consciousness making it a reasonable possibility that he was suffering from a dissociative or fugue state when he committed the offences. Dr Furst adhered to his opinion, raised in his first report and affirmed in his second and third (unredacted) reports, that the defence of automatism was open. 73Dr Furst was ultimately of the opinion that although diagnostic uncertainties remain, the applicant's personality disorder, depression, acute medical problems (wound infection and treatment with antibiotics and Endone), and his possible dissociative state or fugue state at the time he attacked Mr and Mrs Hicks probably contributed to his offending behaviour by impairing his judgment, orientation and capacity for self-control. His opinion concerning a probable causal connection between his mental state and the offending was more expansive than the opinions expressed in his second report and the redacted third report, where it was his view that the applicant may have been suffering from some type of dissociative disorder at the time of the offence. 74Dr Furst observed that the applicant has largely recovered from his depression, and appears to have adjusted to his custodial environment and was not displaying any obvious signs of mental illness, psychosis or cognitive impairment at the time of assessment. He noted that the applicant presented consistently with his earlier consultations, being quietly spoken and somewhat monotonous in tone but logical in thinking and speech with no objective signs of psychosis or major mood disturbance.

The significance of the unpresented psychiatric evidence 75As the Crown emphasised, it is not for sentencing courts to decide what evidence should be adduced by the parties (see Madden v R [2011] NSWCCA 254 at [29]). Further, this Court, as a court of error, is not a forum for the revision and reformulation of the case presented at first instance (see Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [79]-[81]). However, in Zreika, Johnson J also observed (McClellan CJ at CL and Rothman J agreeing) that whilst the Court will not lightly entertain arguments that could have been advanced on sentence but were not, it may do so in exceptional circumstances where the Court is satisfied that compelling material was available but not tendered, or its significance not appreciated, and that a miscarriage of justice has resulted. 76It is not necessary for this Court to resolve the question of the weight that might have been attributed by the sentencing judge to the unpresented psychiatric material. Neither is it for this Court to consider any question bearing upon the competence of counsel in failing to place that material before the sentencing judge when no ground of appeal makes that challenge. The sole question is whether the failure to place the entirety of the material relevant to the applicant's mental state before the sentencing judge has resulted in a miscarriage of justice. If that question is answered affirmatively, the second ground of appeal does not need to be considered. 77The applicant submitted that to dismiss Dr Furst's opinion as providing any insight into the applicant's offending, or in any way operating in mitigation of sentence, would not have been open to the sentencing judge had each of Dr Furst's reports been tendered in their entirety. The applicant submitted that the decision of the sentencing judge to place little weight on Dr Furst's findings is not of itself in error, it being based upon the following three considerations, each of which related directly to the failure to tender available evidence: (1) An assumption that Dr Furst's opinions substantially relied upon the history taken by the applicant; (2) The applicant's history of lying; and (3) The omission to tender the first two reports. 78With regards to (1), the applicant submitted that were the sentencing judge to have had Dr Furst's reports, he would have appreciated that the opinions he expressed were based on an extensive range of material extending beyond the history taken from the applicant, including evidence from the prosecution brief, including from Mr Hicks and the police and the account the applicant gave in his ERISP, together with the applicant's medical and psychiatric records, including the observations of medical professionals after his arrest and upon his admission to jail. 79With regards to (2), the applicant submitted that were the first and second reports before the sentencing judge, his Honour would have appreciated the extent to which Dr Furst grappled with the applicant's history of lying, and the fact that he took into account the limitations of the applicant's self-report of having no memory of the assaults in formulating his opinion. In his first report, Dr Furst expressed difficulty reaching a definitive diagnosis due to the applicant's unreliability as a historian noting, specifically, the aspects of his self-reporting which were inconsistent with other information or otherwise unreliable. In his second report, Dr Furst's opinion as to the availability of a diagnosis of a major depressive disorder also took into account these limitations. As Allsop P observed in Devaney v R [2012] NSWCCA 285 at [88], the very nature of the professional expertise and skill of a psychiatrist involves an assessment of the history provided by an offender: It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect (although care needs to be taken not effectively to exclude admissible evidence by a process of going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. [Citations omitted.] 80Further, the applicant submitted that it appears the sentencing judge discounted Dr Furst's view that it was possible that the applicant was in a compromised state of functioning at the time of the knife attacks because it depended upon an acceptance of the truth or reliability of the applicant's claim to amnesic episodes, and that his Honour was unaware of the extensive body of material considered by Dr Furst in considering the potential for dissociation to have been operative at the time of the offending, equally as he was unaware of the persistence of the applicant's claim that he had no memory of the incident. 81The applicant further submitted that the effect of redacting a portion of the third report was that the sentencing judge was deprived of Dr Furst's expressed view that the applicant may have been in a dissociative amnestic state at the time of the offence, the likelihood that he was in an altered state of consciousness, in the context of his history of apparent episodes of dissociation and the probable relationship of his presentation at that time with his underlying personality dysfunction. 82The applicant submitted that although the defence of automatism was abandoned by the applicant's pleas of guilty, that did not render Dr Furst's opinion irrelevant for sentencing purposes and that the Crown's submission to the contrary should be rejected. The applicant submitted that Dr Furst's consistently held view that the defence of automatism was open was relevant in order to appreciate the context in which he expressed the view (in the third report) that the applicant was in a dissociative amnestic state at the relevant time, which he expressed in the fourth report as being associated with an altered state of consciousness. It is unclear whether it is Dr Furst's view that the "dissociative or fugue" state is what allows for the defence to be raised or whether, even if the defence is not raised, it remains a feature of the applicant's mental functioning at the time of the offending. As I see it, that is an issue which can only be fully explored in a focused testing of Dr Furst under cross-examination. 83In Elturk v R [2014] NSWCCA 61, the applicant entered a plea of guilty to the offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act, despite psychiatric evidence that he was suffering from symptoms of a psychotic illness such that the defence of mental illness was available under s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and a special verdict on that basis. The sentencing judge found that because the applicant had chosen not to avail himself of the defence, his mental condition would not be taken into account in the assessment of the objective seriousness of the offence. On appeal the applicant submitted that although his plea precluded his mental illness from absolving him of criminal responsibility, it was relevant to establishing his compromised capacity for sound judgment at the time of the offending and, in that way, was relevant to both an assessment of the objective criminality of his offending and his moral culpability. Beazley P (RA Hulme and Schmidt JJ agreeing) held that the sentencing judge erred in determining that the applicant had waived his right to have mental illness considered as a causal factor in the commission of the crime for sentencing purposes by his plea of guilty and that, consistent with established sentencing principles, an offender's mental condition, whether or not causative, is relevant to the sentencing exercise. It follows that evidence which may be relevant to establish a defence, even a complete defence such as on the basis of mental illness (or by parity of reasoning the defence of automatism), if eschewed by a plea, may be relevant to the issues relevant to the sentencing exercise, including consideration of moral culpability and future dangerousness (see McLaren v R [2012] NSWCCA 284 at [27]-[29]). 84For my part, I am satisfied that in light of the failure to tender material that addressed the applicant's mental health prior to the offending, at the time of the offending and for a measurable time thereafter, evidence which supported the opinions Dr Furst expressed in his unredacted third report, it is unsurprising that the sentencing judge was unable to afford any weight to Dr Furst's report. I am satisfied that were his Honour to have had the entirety of that evidence before him, his findings with regards to the relevance of the applicant's mental state at the time of the offence would not have been open to him. On any view, they were made on the basis of incomplete information. 85For that reason I am satisfied that the sentencing proceedings miscarried and that the matter should be remitted to the District Court for a fresh sentence proceeding. I express no view as to how those proceedings might be conducted or the evidence which might be tendered or called. That is a matter for the judgment of the parties. 86In those circumstances, it is unnecessary to resolve Ground 2. 87Accordingly, the orders I would make are as follows:

Leave to extend time for bringing the appeal granted.
Leave to appeal granted.
Appeal allowed.
Sentences imposed by Sides DCJ on 4 June 2012 quashed.
The matter be remitted to the District Court at Parramatta.

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: 15 September 2014

Crimes (Sentencing Proceedings) Act 1999(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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