Quinn v R

The applicant's quadriplegia

1. The sentencing judge noted that at the time of the murder of Ms Vize, the applicant had no previous criminal convictions and there was no suggestion that he had engaged in any previous instances of domestic violence. Accordingly, his Honour found that he was a person of good character. His Honour also found that the applicant had, and continued to have, very supportive parents.
2. The sentencing judge noted that after he stabbed himself in the neck on 22 July 2013, the applicant remained in a coma until September. He was not charged with murder until 10 September 2013 when bail was granted to allow him to be treated in the Spinal Injuries Unit at the Prince of Wales Hospital. While there, the applicant sent a message via Facebook to Ms Hasic which was disparaging of both her and Ms Vize. Despite Crown submissions to the contrary, his Honour was not prepared to find beyond reasonable doubt that this message was intimidatory.
3. The applicant was discharged from the Prince of Wales Hospital in June 2014 and his bail conditions were altered to allow him to be treated at Coledale Hospital from that time. His bail was revoked on 9 September 2015 (see Director of Public Prosecutions (NSW) v Quinn [2015] NSWSC 1326). Since that time the applicant had been detained in the hospital facility at the Long Bay Correctional Centre.
4. In the sentencing proceedings, a report from Dr Lee, a specialist in spinal cord injuries, was tendered on the applicant's behalf. Dr Lee examined him upon his release from Prince of Wales Hospital in June 2014 and re-examined him on 9 November 2016. In the report, Dr Lee described the applicant as having "incomplete C3-4 tetraplegia". At the time of sentence, the applicant was using a powered wheel chair controlled by a chin operated joystick. He was overweight. He managed his bladder with a catheter but required an enema to clean his bowels every second day. The applicant continued to be vulnerable to deep vein thrombosis, having experienced it while in custody. The applicant had only limited movement in his shoulders, his left elbow and fingers. He had no movement in his hips, but some limited movement in his knees. Dr Lee noted that there was "worsening power in his elbows and knees" and that this was indicative of a deterioration in his neurological status since 2014.
5. Dr Lee recorded that the applicant was taking an array of medications. Three or four staff were required to assist him with hoist transfers and he required "assistance with all activities of daily living". Dr Lee described the level of care that the applicant required as "[equating] to 24 hour care". Dr Lee opined that the resources required to care for him did not "exist outside an institution and were not compatible with community living".
6. Dr Lee identified the health risks that the applicant faced as including "skin issues", a risk of pneumonia as well as heart disease and stroke from sleep apnoea and obesity, kidney disease, autonomic dysreflexia (being a sudden onset of high blood pressure), fractures, pressure sores, a heightened risk of DVT, urinary tract infections, neuropathic pain, sepsis and suicide. Dr Lee estimated that the applicant had a life expectancy which was approximately in the range of 64 - 69 per cent of a normal life expectancy, i.e. somewhere between 51 and 55 years.
7. Dr Lee considered that the applicant had deteriorated since June 2014. Because of his "non-compliance with therapy interventions" and his dependence on assistance to arrange transfers, Dr Lee concluded that the applicant would require ongoing institutionalisation unless there were some significant psychological and behavioural changes.
8. At the sentence hearing, it was common ground that the applicant's disabilities were such that he would never be accommodated within the general prison population. Instead he would continue to reside in a hospital facility within the prison system.
9. It was submitted, on behalf of the applicant, that he was in a virtually "unique position" within the criminal justice system by reason of the combination of his mental condition and physical disabilities. Senior counsel for the applicant submitted that he could only obtain intellectual stimulation through electronic means, such as television, and through social contact with prisoners and family, yet these avenues would be significantly limited. In written submissions, senior counsel contrasted his position in prison with that of a residential care facility in which he would have free access to the internet and more frequent and longer visits from his parents. Ultimately, senior counsel submitted that the consequence was that he was a person who will be "imprisoned within his body" for the rest of his life. Senior counsel submitted that when that was coupled with the limitations of the correctional system, the applicant's position was "intolerable".
10. The sentencing judge noted that the circumstances now faced by the applicant, being his mental condition and his quadriplegia albeit that the latter was of his own doing, raised difficult issues for a sentencing court. His Honour took as his starting point to resolve those issues that equality before the law was a fundamental norm of the legal system. His Honour referred to the explanation by Gaudron J in Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461 at 71 where her Honour said that equality before the law required the equal treatment of that which is not relevantly different and the differential treatment of that which was relevantly different in a manner which reflected that difference.
11. The sentencing judge took into account the purposes for which a court imposes a sentence as stated in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) in the context of the applicant's crime and personal circumstances, including his quadriplegia. His Honour found that those purposes included the specific deterrence of the applicant from committing an offence, the protection of the community and the need to promote the rehabilitation of offenders (s 3A(a),(c),(d)). The sentencing judge noted that were it not for the applicant's physical disabilities, there would be a need to specifically deter him from committing an offence and a need to protect the community. His Honour found that although he had no prior criminal convictions, the nature of his mental condition was such that there would have been a significant risk of him engaging in serious anti-social conduct if the same or similar circumstances were to recur (DPP (Cth) v De La Rosa at [177] citing R v Israil [2002] NSWCCA 255 at [24]). His Honour concluded, however, that the applicant's physical disabilities were such that he did not represent a danger to the community other than possibly to his carers.
12. The sentencing judge took into account that s 3A(b) of the Sentencing Act identified the need to deter others from committing similar offences as one of the purposes for which a court might impose a sentence. The sentencing judge rejected the submission by senior counsel for the applicant that general deterrence should play a significantly diminished role in a case such as this where the applicant's unsuccessful suicide attempt was inextricably linked to his murder of Ms Vize and he was otherwise suffering from BPD. This was because, as his Honour explained, the killing of a woman as a consequence of her decision to leave a relationship was a persistent evil (see for example R v Maglovski (No 2) [2013] NSWSC 16). His Honour noted that it was not uncommon in such cases for the offender to be experiencing extreme distress and for the personal circumstances of the offender to warrant some sympathy. His Honour found that despite such considerations, the necessity for a sentence to reflect the need for general deterrence in such cases remained high, even in cases as extreme as that of the applicant.
13. The sentencing judge referred specifically to s 3A(g) of the Sentencing Act which specified that recognition of the harm done to the victim and the community from the offence was one of the purposes for which a court imposes a sentence. His Honour found that that principle applied irrespective of the applicant's circumstances.
14. In relation to the Sentencing Act generally, his Honour noted that s 3A(a) identified the necessity to ensure that an offender was adequately punished for the offence, that s 3A(f) identified the need to denounce the conduct of an offender and that s 3A(e) specified that making an offender accountable for their action was also one of the purposes of sentencing.
15. Senior counsel for the applicant submitted that he had inflicted on himself a "far greater punishment than any court could inflict on him" and that he would, for the rest of his life, be imprisoned within his body. Senior counsel submitted that public awareness of the extent of his injuries ameliorated the extent of any denunciation that might be required.
16. When considering that submission, his Honour found that two lines of authority were engaged. The first concerned what is called "extra curial punishment" where in some circumstances, an offender who suffered harm from a third party as a consequence of their offending, such as a vigilante, would have their penalty mitigated so that overall they were adequately and not excessively punished. On that issue, his Honour found that he was bound by authority not to afford any leniency where the harm was deliberately self-inflicted (Christodoulou v R [2008] NSWCCA 102 at [42] per Grove J with whom Johnson J agreed; Betts v R [2015] NSWCCA 39).
17. The second line of authority concerned the hardship occasioned to the applicant from being in custody while experiencing his mental and, most significantly, his physical disabilities. Where matters of that kind have the result that imprisonment "will be a greater burden on the offender", the second line of authority dictated that they warranted leniency (R v Smith (1987) 44 SASR 587 at 589). His Honour noted that he had already discussed the particular hardships that will be occasioned to the applicant from incarceration in a prison hospital compared to a care facility. His Honour accepted that this was compounded by his BPD. His Honour had no doubt that a gaol sentence would seem like an eternity to the applicant because he would only have his thoughts to contend with. His Honour found that given the applicant's circumstances, the differential impact of the effect of custody on him was a matter that warranted substantial leniency.

Other sentencing factors

1. The sentencing judge noted that s 21A(2) of the Sentencing Act set out a series of aggravating factors which the court was to take into account when determining the appropriate sentence. His Honour noted that those factors could not be considered as aggravating the offence if they were elements of the offence. Section 21A(3) set out a series of mitigating factors.
2. In the sentence proceedings, the Crown pointed to four potentially aggravating factors. The first two were that the offence involved the actual use of violence (s 21A(2)(b)) and the use of a weapon (s 21A(2)(c)). The Crown did, however, accept that these were essential elements of the offence and should not be considered separately from it. The third factor identified by the Crown was that the offence was committed in the "home of the victim or any other person". The Crown contended that the crime was committed in the applicant's home but that it was also the home of his family and a temporary home for Ms Vize. His Honour rejected the proposition that the applicant's home was a "temporary home" for Ms Vize. In addition, his Honour was not prepared to interpret s 21A(2)(eb) as extending to a home occupied by the offender but not the victim. The fourth aggravating factor suggested by the Crown was that the crime was part of some planned criminal activity (s 21A(2)(n)). His Honour declined to take that matter into account as an aggravating factor.
3. His Honour noted that six mitigating factors were raised on behalf of the applicant. The first two were that he had no prior convictions and was a person of prior good character. His Honour accepted that those factors had been made out, although they were diminished by his conduct at university in 2009.
4. The third and fourth factors relied upon were that he was unlikely to offend again and had good prospects of rehabilitation. His Honour accepted that submission, although noting that it mainly followed from the applicant's physical limitations.
5. The fifth mitigating factor concerned the conduct of the trial. His Honour noted that s 21A(3)(l) provided that the degree of pre-trial disclosure by the defence was a mitigating factor in sentencing. Section 22A(1) expanded upon this by enabling a court to impose a lesser penalty than would otherwise be the case, having regard to the degree to which the administration of justice has been facilitated by an offender's defence, including by disclosures made before or during the trial. The qualification was that any such lesser penalty must not be disproportionate to the nature and circumstances of the offence (s 22A(2)).
6. The sentencing judge agreed that the manner in which the trial was conducted on behalf of the applicant meant that these provisions were enlivened. His Honour accepted that in many respects the trial was not an easy one for the parties. The sitting hours of the court were reduced to accommodate the applicant's impaired capacity. His Honour noted that if every Crown witness had been required for an exhaustive examination on all issues, the trial might still be continuing. Instead, in advance of the trial, the Crown and the court were advised by the defence what the issues in the trial would be. During the course of the trial, many witnesses' statements were tendered without the author being required to attend. His Honour found that the cross‑examination of Crown witnesses was conducted efficiently and that overall he was satisfied that the defence facilitated the administration of justice. His Honour found that some leniency was to be afforded on that account.
7. The sixth potentially mitigating factor concerned the applicant's remorse. Section 21A(3)(i) of the Sentencing Act provided that the remorse of an offender is a mitigating factor, but only if the offender has provided "evidence that he or she accepted responsibility for his or her actions" and "has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage". His Honour found that throughout his evidence at the trial, the applicant expressed regret and sorrow for Ms Vize's death but he did not in any real sense accept that it was his responsibility.
8. His Honour noted that in the sentencing hearing a letter dictated by the applicant was tendered by consent. The applicant asked the court to accept it as a "letter of remorse". In that letter, he stated that he had "taken a life, the life of a daughter, a sister, a niece, a friend" as well as the possibilities for Ms Vize of "motherhood", a "satisfying and meaningful career" and "grandchildren for her parents". He also expressed regret for the hardship that he had occasioned to his own family. The applicant stated that he was "so very deeply, so very sorry".
9. His Honour accepted that the applicant regretted both the death of Ms Vize and the terrible hardship that had befallen her family and his own family. However, having heard him give evidence over a number of days, his Honour did not accept the belated statement of personal responsibility that was set out in his letter. His Honour noted that the remorse described in s 23A(3)(i) is one which involves the applicant accepting that Ms Vize's death and the suffering that ensued were caused by his actions in deliberately stabbing her. His Honour was not satisfied that the applicant accepted that.

Conclusion

1. His Honour set out his conclusions as follows: "63 One function of a sentencing court is to characterise the degree of seriousness of the offence relative to the range of circumstances that can constitute the crime in question, in this case murder (Mulato v R [2006] NSWCCA 282 at [37] and [46]). I have already outlined the circumstances of Ms Vize's murder, including the relevant mitigating and aggravating factors. As stated, Mr Quinn intended to kill Ms Vize and did so out of distress that she was leaving him. It was not established that the murder was premeditated but equally it cannot be characterised as spontaneous. Mr Quinn may have been in an unstable mental state at the time he killed Ms Vize but it was not shown that his ability to control his actions was relevantly affected. This case is a serious example of the infliction of extreme domestic violence upon women. Overall, I am satisfied that the offence falls in the middle of the range of objective seriousness for the offence of murder. 64 In her written and oral submissions Ms Manuell SC contended that the Court should make a finding of "special circumstances" and reduce Mr Quinn's non‑parole period relative to his parole period beyond the ratio provided for in s 44(2) of the Sentencing Act. Ms Manuell SC submitted that this was warranted having regard to Mr Quinn's medical condition in that an earlier release on parole would enable him to be accommodated at a care facility. I have considered this submission carefully. However, given that Mr Quinn's psychological condition and physical disabilities have weighed heavily in my determination of the appropriate sentence, I do not consider that any reduction in his non‑parole period resulting from a finding of special circumstances can be justified given the criminality involved (R v Fidow [2004] NSWCCA 172 at [18] per Spigelman CJ). Otherwise, I note that the sentence I will impose will allow for a long period of supervision on parole. 65 Murder is the most serious criminal offence known to the law. On the morning of 22 July 2013, Michael Quinn viciously attacked the one person outside of his family who believed in him and loved him. He did so because she wanted to exercise the freedom to live her own life. In doing so he killed her, destroyed his own life and devastated two families."
2. His Honour then proceeded to impose the sentence which was taken to have commenced on 9 September 2015 and in relation to which the applicant would be eligible for release on parole on 9 September 2030.

Ground 1 - His Honour erred in his consideration of the need for general deterrence in the light of the applicant's abnormality of mind.

1. The applicant submitted that this case differed from the usual case involving domestic violence leading to death in that the applicant had a recognised abnormality of the mind at the time of the offence which not only impacted upon his moral culpability for the offence but also was causally connected with the attempt to end his own life. The applicant submitted that his mental condition was such as to cause him to seriously attempt to kill himself and the fact that he continued to suffer suicidal ideation was relevant to the nature and extent of his mental abnormality and the effect of it on him and to whether he was an appropriate vehicle for general deterrence.
2. The applicant relied upon the statement of principle by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa at [177]-[178] where his Honour said: "177 … • Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence … • It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed … • It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced … • It may reduce or eliminate the significance of specific deterrence … • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence … Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public … 178 I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence (applicant's emphasis) …"
3. The applicant submitted that in accordance with that authority whether general deterrence should be moderated or eliminated as a sentencing consideration depended on the nature and severity of the symptoms of the condition exhibited by the offender, and its effect on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. The applicant submitted that his Honour found that he was suicidal at the time he picked up the knife in the kitchen and that he intended to kill himself at that time as well as Ms Vize. Dr Furst and Dr Nielssen considered that the applicant's attempted suicide arose from, and was a consequence of, his BPD. Accordingly, his psychiatric disorder ultimately gave rise to the motive to do what he did, including the attempt to end his own life. The applicant submitted that his Honour failed to take these matters into account when considering the weight to be given to general deterrence.
5. The applicant further submitted that his Honour erred in not considering whether the applicant's mental condition, both at the time of the offence and at the time of sentence, made him an appropriate vehicle for general deterrence. The applicant submitted that the need for general deterrence did not remain high but was significantly diminished. He was not an appropriate vehicle for general deterrence.

Consideration

1. It needs to be kept in mind that his Honour gave careful consideration to the weight which should be given to general deterrence in the sentencing of the applicant. His Honour went into considerable detail in setting out the basis for the conclusion which he reached, i.e. that while the applicant's moral culpability was to be reduced because of the effect his abnormal mental condition had on him at the time of the offending, general deterrence should still play a significant role in the applicant's sentence. This was not one of those cases where there had been a failure to consider, or fully consider, a sentencing principle but rather one where the applicant challenged the result, i.e. the analysis and therefore the exercise of discretion, by the sentencing judge.
2. The process to be followed by this Court when a challenge of that kind is made to a finding on sentence was discussed by the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) in Munda v Western Australia [2013] HCA 38; 244 CLR 600 at [34]: "34 House v The King established that appealable error in the exercise of a discretionary judgment may be established by demonstration of specific error of fact or principle apparent from the primary judge's reasons or because: "the result embodied in [the primary judge's] order ... is unreasonable or plainly unjust, [such that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."" The plurality went on to discuss the difficulties associated with challenging a decision of a first instance court where the challenge is essentially directed to the weight to be given to evidence which was properly before the court.
3. In this case the sentencing judge, both in the principal judgment and in the sentence judgment, accurately described the applicant's mental condition at the time of the offence (Sentence judgment, [24]-[35]). His Honour accepted that the applicant suffered from an abnormality of the mind and that although he was not substantially impaired, his BPD was still of significance. It contributed to his offending (Sentence judgment, [33]-[34]). His Honour did not accept that the applicant's OCD played a role in his offending. Despite the judge's finding that the applicant's BPD contributed to his offending in the way his Honour described it (Sentence judgment, [33]), the applicant still had an ability to control his actions.
4. The criminal law gives significant weight to general deterrence, denunciation and community protection when sentencing an offender who takes the life of his partner or former partner as it does with respect to offences of domestic violence generally. On this issue, the observations of the plurality at [54]-[55] of Munda v Western Australia are of assistance: "54 It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community. 55 A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law."
5. One aspect of the protection accorded by the law to persons, particularly women in a domestic relationship who wish to end that relationship, is explained by Adamson J (Bathurst CJ and Leeming JA agreeing) in Patsan v R [2018] NSWCCA 129 at [39] where her Honour said: "39 … The experience of this Court and the statistics relied upon by the Crown indicate that domestic violence offences not infrequently conform to the following pattern, to which the applicant's conduct in the present case conformed: a male attacks (or kills) a woman with whom he is, or has been, in an intimate relationship when she expresses a wish to leave that relationship. Typically, the male is physically stronger than the female. The male is thus generally in a position to inflict considerable harm to the female and there is no real prospect of spontaneous physical retaliation because of the disparity between their respective strengths."
6. In The Queen v Kilic [2016] HCA 48; 259 CLR 256 the Court (Bell, Gageler, Keane, Nettle and Gordon JJ) at [21] recognised a societal shift in relation to domestic violence when their Honour said: "21 The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders. Consideration of "current sentencing practices" will include, where appropriate, the proper use of information about sentencing patterns for an offence. The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations."
7. Part of that change in approach can be seen in Glynn Kaderavek v R [2018] NSWCCA 92 at [12] where Hamill J (Beazley P and Schmidt J agreeing) said with respect to a domestic violence case that "the weight to be given to general deterrence was substantial notwithstanding his Honour's findings concerning the applicant's mental health problems".
8. For the purposes of general deterrence, it is not of significance that the applicant intended to take his own life. The applicant is taken as a member of the general population, not a limited class of the population who contemplate a murder/suicide. Gleeson CJ in Engert v R [1995] 84 A Crim R 67 said at 68 when referring to the relevance of mental illness to the sentence process: "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."
9. In this case the sentencing judge exercised his sentencing discretion when concluding that there was a need for general deterrence. In doing so, he accurately and completely reviewed the relevant facts, including the applicant's mental health and its effect on the offending. As indicated earlier, that discretion is well recognised and for it to be successfully challenged, House v The King error needs to be identified. In Lowndes v The Queen [1999] HCA 29; 195 CLR 665 the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) stated that principle in clear terms: "15 The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
10. This ground of appeal has not been made out.

Ground 2 - His Honour fettered his discretion when considering extra curial punishment and erred in not taking into account the applicant's injuries as a mitigating factor in this context

1. The applicant submitted that his Honour erred in limiting the mitigatory effect of the applicant's injuries on his onerous conditions of custody. The applicant submitted that in doing so, his Honour fettered his discretion to take the applicant's injuries into account as a further mitigatory factor.
2. The applicant submitted that the courts have recognised that mitigation of sentence is warranted on the basis of extra curial punishment where: 1. an offender sustained a serious and lasting injury inflicted by another person in the course of an offence, or after the commission of an offence; and 2. an offender unintentionally caused him or herself serious harm during the commission of the offence.
3. The applicant accepted that it has not been generally accepted that mitigation of sentence is warranted where an offender has intentionally caused himself or herself serious injury. The applicant accepted that the foundational case for that proposition is Christodoulou v R which was followed in Cvetkovic v R [2013] NSWCCA 66 and Betts v R. The applicant submitted that to the extent that Christodoulou and Betts have been considered to mandate that deliberately self-inflicted injuries may never be taken into account as an independent mitigating factor, such an approach places an impermissible fetter on judicial discretion. In that regard, the applicant relied upon Parente v R [2017] NSWCCA 284.
4. By a review of decided cases, the applicant sought to fashion a principle that self-inflicted injuries could amount to extra curial punishment where those injuries were caused by somebody with a mental illness, particularly where the mental illness explained both the primary offence and the actions which led to self-inflicted injuries. The leading example relied upon by the applicant was a single judge decision by Mathews AJ in R v Riley [2008] NSWSC 1477. The facts of that case involved the offender shooting his estranged wife's lover at point blank range in the abdomen and head and then attempting suicide by discharging the shotgun into his mouth. He was charged with murder, but found guilty of manslaughter on the basis of substantial impairment. He had no memory of the killing but there was evidence that he was suffering from depression which was related to his relationship with his wife. As a result of the suicide attempt, he suffered a very severe traumatic brain injury resulting in a number of permanent and serious intellectual and emotional deficits.
5. Her Honour found that the attempted suicide was integrally related to the killing and that the offender's abnormality of mind had led him to perform both actions. Her Honour found that the offender would not have attempted suicide had he not already killed the deceased. Accordingly, her Honour found that the offender was entitled to have his sentence mitigated as a result of extra curial punishment, even though the injuries were self-inflicted. Her Honour did not refer to any authority in reaching that conclusion. It was handed down 13 days before the decision of Christodoulou v R.
6. The applicant submitted that there is no Court of Criminal Appeal authority where there has been a considered analysis of whether extra curial punishment could operate as a mitigating factor in the context of an offender who has an abnormality of the mind which is integrally related to both the offence in question and the contemporaneous self-infliction of serious injuries.
7. The applicant therefore invited this Court to accept the proposition that where an abnormality of mind is integrally related to both the offence in question and the self-infliction of serious injuries, to prohibit taking into account the nature of the injury suffered is to exclude important facts relevant to the offence, the offender and to punishment. In support of that proposition, the applicant relied upon the statement of principle in Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; 139 A Crim R 398 where James J (Tobias JA and Hulme J agreeing) said: "62 … In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight."
8. The applicant submitted that because of the extent of the applicant's injuries, the purposes of punishment were served to a high degree. He submitted that he intended suicide, not to survive suffering catastrophic injuries. He submitted that he will be in prison for the rest of his life in his body with all its physical restrictions. The applicant submitted that in the light of his injuries, accountability, retribution, denunciation and deterrence all had a diminished role to play.

Consideration

1. The applicant has mischaracterised his Honour's approach to extra curial punishment in this case. His Honour was not binding himself in an absolute way to a principle of law. His Honour was merely following the authority of this Court in Christodoulou v R and Betts v R. In that regard, the issue dealt with in Parente v R does not arise.
2. The background to Parente was that there was a statement in an earlier decision of this Court to the effect that in cases of substantial drug supply, a custodial sentence should normally be imposed. That was interpreted in subsequent decisions, both of this Court and in lower courts, as establishing a principle that substantial drug supply must always be met with the imposition of a prison sentenced. Parente is authority for the proposition that such an approach was incorrect because it unduly fettered the sentencing discretion of judges in such matters.
3. That is not the approach followed by the sentencing judge here.
4. Extra curial punishment was recognised as a mitigating factor in R v Daetz. With some qualifications, a limit to the concept of extra curial punishment is harm that is self-inflicted by the offender. In Christodoulou, Grove J at [42], Johnson J agreeing at [45] and Campbell JA not deciding, held that the concept of extra curial punishment should not be extended to injury deliberately caused by an offender to himself or herself as opposed to injury to an offender that arises out of the commission of the offence.
5. In Christodoulou v R the offender had committed offences of assault, intimidation and malicious damage. When police arrived, he threatened to inject himself if they came close. He continued offending. At some stage, the contents of the syringe which consisted of hydrochloric acid did enter the offender's arm resulting in a substantial and permanent disability. Grove J with the concurrence of Johnson J declined to regard the disability as extra curial punishment. His Honour observed: "39 In Alameddine v R [2006] NSWCCA 317 the offender suffered extensive injuries when, in seeking to destroy evidence of amphetamine manufacture in a laboratory before the foreshadowed arrival of police, an explosion was initiated and the offender burned in the ensuing fire. An examination of authorities in that case included reference to R v Haddara [1997] 95 A Crim R 108 where an arsonist had been injured in a fire which he lit and Brooking JA in the Victorian Court of Appeal observed that the sentencing judge was right to treat the injuries as going to mitigation. With the concurrence of Kirby and Hislop JJ in Alameddine I concluded: "… there is a strong current of judicial opinion against outright rejection of the possibility of mitigation even where the injury is self inflicted or induced by the activity of the offender."" 40 I added the qualification: "To the extent that the Crown submitted that there was a boundary created by injury sustained by self inflicted illegal activity beyond which no mitigation could be granted, I would reject it. That is not to say that the circumstances of infliction are irrelevant but to deny that, once injury is sustained by the action of the offender in the course of committing the crime, the consequences are incapable of giving rise to a factor of mitigation." 41 It is a step beyond Alameddine (and Haddara) to seek to extend the availability of a mitigatory element to a deliberately self inflicted injury as distinguished from occasions where the injury was, although self inflicted and in the course of crime commission, unintentional. 42 Insofar as the taking into account of extra curial punishment may be described as a principle, there is no authority for extending it to deliberately caused injury and such an extension should not, in my opinion, be recognized."
6. The sentencing judge in this case did no more than follow that authority.
7. The applicant in Cvetkovic v R was sentenced for wounding with intent to murder his former wife by repeatedly stabbing her. After she escaped, the applicant began to stab himself. He contended that the judge should have taken his wounds into account as extra curial punishment. McCallum J (Price and Schmidt JJ agreeing) noted (at [30]) that the judge was bound to apply Christodoulou v R and therefore did not err in rejecting the offender's claim of extra curial punishment. Special leave to appeal to the High Court was refused. The High Court judges hearing the application for special leave (Bell and Gageler JJ) remarked that "an appeal on the ground that Christodoulou v R was wrongly decided would enjoy insufficient prospects of success to warrant a grant of special leave to appeal" (Dragan Cvetkovic v The Queen [2013] HCASL 131).
8. Betts v R was another case where the offender attempted to kill the victim as well as commit suicide. RS Hulme J (Meagher JA and Hidden J agreeing) held (at [35]) that "there was no basis advanced upon which this Court could conclude that Christodoulou v R was wrongly decided". The appeal to the High Court did not deal with this issue: Betts v The Queen [2016] HCA 25; 258 CLR 420.
9. The applicant's submission as to there being a lack of clarity in the law on this issue, should also be rejected. The distinction to be drawn, as set out by Christodoulou v R and Betts v R is clear. Injuries suffered by an applicant in, or in connection with, the commission of the offence even if the result of deliberate acts are able to be taken into account as extra curial punishment. Harm which an offender deliberately inflicts upon himself or herself lies outside what is regarded as extra curial punishment.
10. The applicant referred to the sentencing remarks of Mathews AJ in R v Riley. The sentence in R v Riley was imposed after the hearing of the appeal in Christodoulou v R but before judgment. That Mathews AJ took into account the offender's self inflicted injuries does not detract from the decisions of this Court that are set out above. Further, the case appears to be restricted to its own facts. The offender was no longer himself as a result of his attempted suicide (R v Riley at [34]).
11. In this case, the applicant's BPD contributed to his offending in the way described by the sentencing judge (Sentence judgment, [33]-[34]). The applicant's assertion that there is no authority of this Court that deals with the self-inflicted injury of an offender with an abnormality of mind should be contrasted with the states of mind of the offenders in the cases that have been cited. The applicant in Christodoulou v R was in a "highly disturbed and emotional state". The applicant in Cvetkovic v R was depressed when he stabbed his former wife. The applicant in Betts v R was motivated by jealousy. Self-inflicted injuries usually result from a highly emotional or disordered state of mind. Distinguishing an offender with an abnormal mind, as defined in s 23A of the Crimes Act does not take into account the reality of this type of offending. What is also common to these cases and to this case is violence committed by a male against a partner, former partner or, as in the case of R v Riley, the lover of the offender's wife. Jealousy or a desire to control are common motives. The sentencing judge was well aware of this (Sentence judgment, [48]).
12. Allowing the applicant's self-inflicted injuries to mitigate the sentence as extra curial punishment fails to take into account that, in the light of the judge's findings, the applicant's injury was at least in part his own choice. There is also something abhorrent and against public policy in murder/suicide cases where an offender who is unsuccessful in his suicide attempt can in some way be rewarded for that lack of success by the results of the failed suicide being taken into account by way of mitigation.
13. In that regard, the remarks of the sentencing judge in Betts v R (at [22]) are relevant: "22 … "It seems to me that in considering the circumstances in which these injuries occurred the crucial matter in determining whether any mitigation should be allowed in the sentence which otherwise would be imposed - in other words the circumstances themselves - here the undoubted injuries which the offender suffered were in circumstances where the injuries incurred were intrinsic to the commission of the offence itself, not collateral to it. I find that it was the offender's ambition to kill himself, and to kill Ms Holland. To find that because he failed to do so, in other words failed to achieve that ambition and merely suffered injuries as a result of his attempts, either at his own hand, or as a result of his invitation to her to stab him, would in essence be most obscene, and would legitimately be seen not only by [the victim], but by the community, as subversive to the rule of law."
14. The sentencing judge did not err in following Christodoulou v R and Betts v R and in rejecting the applicant's contention that he had suffered extra curial punishment. No good reason has been put forward by the applicant as to why Christodoulou v R and Betts v R were wrongly decided. This ground of appeal has not been made out.

Ground 3 - His Honour erred in failing to find special circumstances

1. The applicant submitted that the fact that his psychological condition and physical disabilities were taken into account when fixing the head sentence did not obviate the need to consider whether in the unusual circumstances of this case his circumstances were "sufficiently special" to amount to special circumstances and for the non-parole period to be reduced. While the applicant accepted that a finding of special circumstances is a discretionary finding of fact, in respect of which this Court will be slow to intervene (Jiang v R [2010] NSWCCA 277 at [83]) the applicant submitted that given the evidence in the present case, his Honour's discretion miscarried.
2. The applicant submitted that in this case the purposes of punishment were limited. His Honour found that the protection of the community and specific deterrence had no role to play in the sentencing. The applicant's moral culpability for the offence was reduced because of his abnormality of mind. The extent and nature of his catastrophic injuries placed him in a unique situation in the prison population. The applicant submitted that mercy required that there be a variation in the statutory proportion. The applicant submitted that the non-parole period of 15 years was well in excess of the minimum period which was required in all the circumstances.

Consideration

1. The sentencing judge declined to find special circumstances because the applicant's mental and physical condition had already been taken into account in determining the appropriate sentence. His Honour also determined that the term of the sentence which was imposed would provide for a long period of supervision on parole.
2. The variation of the statutory ratio between the head sentence and the non-parole period is a discretionary matter and is confined by the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender, including the objective gravity of the offence and the need for general and specific deterrence R v Wong [2018] NSWCCA 20 at [75]. In Caristo v R [2011] NSWCCA 7 R A Hulme J (with whom Giles JA and Adams J agreed) noted (at [27]) that the non-parole period is the minimum period of actual incarceration that the offender must spend in custody, having regard to all of the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances. It is clear from his Honour's conclusions (at Sentencing judgment [63]-[64]) his Honour had determined that 15 years was the minimal period of actual incarceration for the applicant, having regard to all of the matters which he had earlier set out in his review of the objective seriousness of the offending and the applicant's subjective circumstances.
3. What his Honour was saying in [64] of the sentencing judgment was that "double counting" for matters already taken into account in reduction of the head sentence and therefore already reflected in the non-parole period, must be avoided. That was a legitimate explanation for why, having acknowledged the existence of special circumstances, his Honour did not make a finding to that effect so as to otherwise adjust the sentence (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [47]).
4. As was explained by Spigelman CJ, an adjustment for special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene" (R v Cramp [2004] NSWCCA 264 at [31]). It is only if the non-parole period provided is manifestly inadequate, or manifestly excessive, that this Court should intervene: R v Simpson and R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]. Ultimately, the degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp at [31], Trad v R [2009] NSWCCA 56 at [33]. Just because there are factors which could amount to special circumstances does not mean that it is erroneous not to make such a finding.
5. This ground of appeal has not been made out.

(a) failing to take into account the [applicant's] abnormality of mind and his diminished moral culpability when assessing the objective seriousness, and

(b) his assessment of the objective seriousness of the offence

1. The applicant submitted that when his Honour characterized this case as an example of extreme infliction of domestic violence and found that it fell in the mid-range of objective seriousness, he did not take into account the applicant's abnormality of mind and his consequent diminished moral culpability. The applicant submitted that this did not have to amount to an excuse in law to be a relevant consideration.
2. The applicant submitted that his Honour had accepted Dr Furst's evidence that "fear of abandonment" was one of the diagnostic criteria for BPD and that being "abandoned or left behind by someone in an interpersonal relationship can be a devastating thing for someone" with BPD. The applicant noted that his Honour had found that he was affected by his BPB, that he was distressed at the ending of the relationship and vulnerable to an impaired capacity to control his actions. The applicant noted that his Honour considered that this diminished his moral culpability to a small degree. In those circumstances, the applicant submitted that given the evidence of the extent of his unstable state of mind and his vulnerability, his moral culpability was diminished to a significant degree. The applicant submitted that taking into account all of the evidence of the effect of the applicant's BPD on him, and his diminished moral culpability, the objective seriousness of the offence was below the mid-range.

Consideration

1. The sentencing judge made a finding of the objective seriousness of the offence, taking into account that the applicant may have been in an unstable mental condition at the time of the offence but that substantial impairment was not proven. His Honour's reference to "relevantly impaired" should be construed as "not substantially impaired as per s 23A of the Crimes Act". That being the case, his Honour took into account not only the objective circumstances of the offending but also the applicant's mental state at the time of the offence. The way in which the applicant has sought to substantiate this ground in reality seeks to traverse his Honour's finding that the applicant had not proved on balance that he was "substantially impaired as per s 23A of the Crimes Act".
2. His Honour found that the applicant's moral culpability was diminished but only to a small degree. His Honour's finding of objective seriousness is consistent with that finding and with the authorities referred to by the applicant (Biddle v R [2017] NSWCCA 128 at [68], McLaren v R [2012] NSWCCA 284; Elturk v R [2014] NSWCCA 61 at [33]-[35] and Yun v R [2017] NSWCCA 317).
3. As has been stated by this Court on many occasions, the assessment of objective seriousness (and therefore moral culpability) of an offence is a discretionary matter for the sentencing judge (Mulato v R [2006] NSWCCA 282 at [37], [46]; Ali v R [2010] NSWCCA 35 at [33]; Baines v R [2016] NSWCCA 132 at [15]).
4. The applicant has not shown that his Honour erred in his assessment of the applicant's moral culpability. The applicant's submission goes no further than to assert that putting the argument at its highest, another conclusion might have been reached. His assessment of moral culpability and the objective seriousness of the offending was well open to his Honour. This ground of appeal has not been made out.

Ground 5 - The sentence is manifestly excessive

1. The applicant accepted that in order to establish manifest excess, it is necessary to establish that the sentence is unreasonable and plainly unjust (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6], Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]).
2. The applicant submitted that in this case, the head sentence and the non-parole period were unreasonable and plainly unjust in the light of the applicant's abnormality of mind, his facilitation of the course of justice, his catastrophic injuries and the limited purposes of sentencing which apply to him.
3. His Honour did not find any aggravating factors but found five mitigating factors, pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). These were:

• The applicant had no prior convictions.
• Was a person of prior good character.
• Was unlikely to re-offend.
• Had good prospects of rehabilitation.
• Had facilitated the course of justice.

1. The applicant submitted that his Honour found that he was affected by his BPD, that he was distressed at the ending of the relationship, was vulnerable to an impaired capacity to control himself and that his moral culpability for the offence was reduced because of this to a small degree. His Honour found that specific deterrence had no role to play in the sentencing. This was because the applicant could not physically re-offend and considerations of rehabilitation did not arise. The applicant submitted that in those circumstances, full weight should have been given to the impact of his mental condition on him while in prison.
2. The applicant submitted that given his Honour's findings and the nature of the applicant's injuries relevant to his onerous conditions of custody, the sentence was unreasonable and plainly unjust. The applicant submitted that the extent of his injuries placed him in a unique situation in the prison system. He would remain in a hospital facility and would never be able to serve his sentence in the general prison population. The applicant submitted that given his reduced life expectancy, a 20 year sentence and a 15 year non-parole period would weigh particularly heavily upon him. In all the circumstances, the sentence was excessive.

Consideration

1. The relevant principles with respect to a ground asserting manifest excess were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86]: "86 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]."
2. The applicant killed his partner with an intention to kill. She had wanted to end the relationship. The objective seriousness of the offence was in the mid-range. It was "a serious example of the infliction of extreme domestic violence upon women" (Sentence judgment, [63]). The applicant's moral culpability was only diminished to a small degree because of BPD. The trial judge took into account the relevant mitigating factors, although remorse was not one of them because of the applicant's attitude to how the offence was committed.
3. His Honour took into account the difficulties that the applicant has in custody from his BPD and from his quadriplegia and its effects which warranted "substantial leniency". The applicant's life expectancy was taken into account by his Honour (Sentence judgment, [52]).
4. As has already been stated, the sentence imposed by his Honour, given the seriousness of the offending, was in all the circumstances lenient. His Honour explained why. His Honour exercised his discretion in balancing the objective circumstances and the subjective factors so as to arrive at the sentence. No House v The King error has been established.
5. This ground of appeal has not been made out.
6. It follows from the above that the orders which I propose are: 1. In relation to the applicant's appeal against conviction I would grant leave to appeal but dismiss the appeal. 2. In relation to the application for leave to appeal against sentence, I would grant the leave to appeal but dismiss the appeal.
7. WHITE JA: I agree with Hoeben CJ at CL.
8. FAGAN J: I agree with the Chief Judge, with respect to both the application for leave to appeal against conviction and that for leave to appeal against sentence.
9. On ground 2, the otherwise entirely general contention that the verdict of guilty of murder was unreasonable is narrowed by the applicant's written and oral submissions. There is no challenge to his Honour's findings beyond reasonable doubt that the applicant deliberately stabbed the deceased (PJ [226]) and that he intended to kill her (PJ [232]). The applicant only asks for reduction of liability to a conviction for manslaughter, contending that his Honour ought to have found that s 23A of the Crimes Act applied to that effect.
10. Even under s 23A the issue on ground 2 is narrowed by the submissions. His Honour accepted that the applicant suffered from an abnormality of mind at the time of the homicide (PJ [285]-[286]). For the purposes of s 23A(1)(a) there is no challenge on appeal to the findings that the applicant had not proved on the balance of probabilities that his "capacity to understand events" (PJ [294]) or his "capacity … to judge whether [his] actions were right or wrong" (PJ [302]) had been substantially impaired by his abnormality of mind. All that is in issue on ground 2, applying the law in Filippou v The Queen at [12], is whether it was reasonably open to the learned trial judge not to be satisfied on the balance of probabilities that the abnormality had substantially impaired the applicant's "capacity … to control himself".
11. It is inherent in the verdict that his Honour found the applicant had not proved that his capacity to control himself was substantially impaired. But his Honour's finding in this respect was also explicit and supported by reasons (at PJ [303]-[312]). The verdict has "for all purposes, the same effect as a verdict of a jury": s 133(1); Filippou v The Queen at [11]. It follows that ground 1 and its four sub-grounds must be regarded as particulars of why and how it is said that it was not open to the learned trial judge to find that substantial impairment of capacity for self-control was not proved.
12. Under any of those sub-grounds the question for this Court is whether it was reasonably open to his Honour to evaluate the particular sub-issue or sub-category of evidence in the way he did and, even if not, whether it was nevertheless reasonably open to his Honour to have decided the ultimate issue under s 23A adversely to the applicant. For the purposes of both grounds 1 and 2 I have reviewed the trial evidence so far as it bears upon this ultimate issue of substantial impairment of the applicant's capacity to control himself at the time of the homicide.
13. That evidence includes the reports and oral evidence of the three psychiatric experts. It includes the evidence of the deceased's mother and of her friends, Ms Hasic and Ms Loke, particularly as to the applicant's behaviour and mood over the weeks and days prior to the homicide in apparent reaction to the ending of his relationship with Ms Vize. Evidence relevant to the appeal grounds also includes the telephone records of the applicant's numerous and persistent attempts to contact Ms Vize over approximately 11 days prior to the homicide. A very important component of the evidence was that of his mother and brother who observed him in the hours before the attack on the deceased and who saw him in the immediate aftermath. The neighbour, Ms Broad, also saw him immediately after the stabbing. I consider it was well open to his Honour to find on all the evidence that substantial impairment of self-control was not proved on the balance of probabilities.
14. With respect to sub-ground 1(a), is not the case that his Honour gave "determinative weight to the importance of planning". At PJ [307] his Honour identified that, in general, the level of planning for an act and the length of time over which the plan has been formed before being implemented will be relevant to determining whether or not the perpetrator carried out the act under an irresistible impulse. It was open to his Honour to regard any planning by the applicant as relevant in this way. This was, as his Honour said, common sense. But on the evidence his Honour could find only a limited level and duration of planning, "namely, seizing of a knife some minutes before Ms Vize was stabbed, the selection of her neck as the place to administer the fatal [wound] and the plan to kill himself" (PJ [309]). His Honour found it was only 4-5 minutes from when the applicant seized the knife to when he stabbed the victim.
15. Far from "giving determinative weight to the importance of planning", his Honour said that the level of planning in these circumstances was "not necessarily inconsistent with the accused possessing a substantially impaired capacity for self-control" (PJ [309]). At the end of [309] and continuing to [312], his Honour attributed his lack of persuasion on this issue not to "the importance of planning" but largely to the absence of any reliable account from the applicant of his thought processes leading up to the killing. The Chief Judge has quoted (at [95] above) the learned trial judge's reasons at [309]-[312]. They constitute the critical part of the judgment for the purpose of the limited issue on the grounds of appeal against conviction. Those paragraphs explain fully and cogently why his Honour concluded that the absence of such an account from the applicant left the Court without proof on the balance of probabilities that the applicant's self-control had in fact been substantially impaired. The conclusion was reasonably open to his Honour on this analysis. It expressly took into account the psychiatrists' opinions.
16. The applicant's written submissions on sub-ground 1(a) conclude with the proposition (at par 126) that: his Honour's focus on the importance of planning and the lack of credible evidence of the [applicant's] thought processes about when he formed the intention to kill Ms Vize distracted him from a proper assessment of the opinions of Dr Furst and Dr Nielssen, and the consideration of whether all the independent evidence was capable of establishing that the appellant's capacity to control himself was impaired to any degree at the time of the killing and, if so whether this impairment was substantial for the purpose of s 23A(1)(a).
17. So far as this is directed to the learned trial judge's "focus on the importance of planning", there was no such focus for the reasons given above. The rest of the quoted submission is relevant to sub-grounds 1(b) and 1(d). It is correct that his Honour was significantly influenced by "the lack of credible evidence of the [applicant's] thought processes about when he formed the intention to kill Ms Vize". For reasons given below, that did not "distract" his Honour from assessing the opinions of Drs Furst and Nielssen or from considering the "independent evidence". On the contrary, the inconclusiveness of the "independent evidence", in his Honour's assessment, led to the view that a reliable account from the applicant regarding his thought processes leading up to stabbing Ms Vize would be necessary to provide a proper foundation for those doctors' opinions. No such reliable account was in evidence.
18. With respect to sub ground 1(b), which asserts failure properly to assess the opinions of Drs Furst and Nielssen, having read their reports and the transcript of their cross-examination on days 7 and 13 of the trial I consider his Honour's assessment of their evidence (primarily at PJ [256]-[283], [305]-[306], and [310]-[311]) was open to him. The opinions which his Honour did not accept, referred to in sub-ground 1(b), were Dr Furst's view that the applicant "was probably unable to control his actions as a consequence of his acute mental disorder and his underlying mental conditions (borderline personality disorder and [obsessive compulsive disorder])" and Dr Nielssen's conclusion that "his abnormal state of mind … significantly affected his ability to control his actions, as it seems the alleged offence and his subsequent suicide attempt was committed on impulse, with little in the way of warning".
19. The evidence of Drs Furst and Nielssen, from which the applicant has quoted extensively in written submissions in support of this sub-ground, reveals that their opinions on this issue were based primarily upon the clinical features of the applicant's mental disorders as they diagnosed them and upon inference from the fact that the stabbing was an extreme reaction to the termination of the applicant's relationship with the victim. By reviewing the applicant's behaviour and his reported symptoms over a timeframe of years prior to the stabbing, the psychiatrists arrived at their diagnoses of obsessive compulsive disorder and borderline personality disorder. (In lieu of the latter, Dr Nielssen preferred depressive disorder). They were also able to opine, in medical terms upon the basis of their experience and expertise, as to the likely mental and behavioural responses of the applicant to the emotional stress of the end of his relationship with Ms Vize, under the influence of these disorders. But his Honour had to decide, on the balance of probabilities and taking into account all the evidence, whether substantial impairment of the applicant's capacity to control himself had in fact occurred in this case. Opinions, based upon medical knowledge and experience, as to the likelihood of such substantial impairment were not determinative of his Honour's application of the legal standard proof.
20. It was submitted that the opinions of Drs Furst and Nielssen were supported by "the independent evidence", by which term the applicant referred to evidence which established that in the weeks preceding the homicide the applicant "was not coping with his feelings of abandonment and rejection" as a result of his relationship with the deceased having come to an end. This "independent evidence" did not compel that his Honour should have found substantial impairment of self-control at the time of the killing or that it was unreasonable not so to find.
21. His Honour took fully into account the "independent evidence" and made findings about the applicant's distress concerning the breakup, his relentless attempts to contact Ms Vize by phone and his threat to the deceased's mother, about 36 hours prior to the stabbing, to crash his car. His Honour had regard to the applicant's extremely low mood when speaking to the deceased's friend, Ms Loke, by phone on the evening before the stabbing and his expression to his own mother, also that evening, of upset concerning Ms Vize's new relationship. It was well open to his Honour to regard this evidence as not sufficient to prove on the balance of probabilities that there was loss of self-control at the time of the attack upon Ms Vize.
22. It is self-evident that in explaining a mental state and its causal relationship to behaviour, psychiatrists will in many situations be highly dependent upon reliable reportage from the subject of what occurred within his or her mind. It was open to his Honour to regard this as such a situation, taking the view that the evidence of observations of the applicant in the weeks and hours before the stabbing and in its immediate aftermath were not sufficient to support an inference that self-control was impaired when Ms Vize was stabbed. The evidence of Dr Allnutt supported the conclusion that, in this case, a sound psychiatric opinion that the applicant's disorders impaired self-control would depend upon reliable account from the applicant, which was not available.
23. Dr Allnutt's evidence summarised by his Honour at PJ [254] was that, from a psychiatrist's point of view, trying to determine whether or not the applicant acted impulsively and without ability to control his actions involved speculation "in the absence of a proper history from him and an account from him". It was well open to his Honour to adopt and act upon that view. Dr Nielssen's evidence that knowledge of what was going through the applicant's mind could only come from the applicant himself (quoted by his Honour at PJ [282]-[283]) was to similar effect. It was open to his Honour to conclude that the absence of a reliable account from the applicant left the opinions of Drs Furst and Nielssen without a sufficient basis to justify reliance upon them. It was open to him not to be persuaded by their view that the applicant had been unable to control his actions, as he explained at PJ [310]-[311].
24. Sub-ground 1(c), asserting a failure to make relevant findings of fact in relation to the applicant's attempted suicide, is primarily concerned with evidence of the applicant's brother, Thomas. Thomas said the applicant was unresponsive when he screamed at him to stop stabbing himself, that the applicant's expression was "blank" at this time and that Thomas "could not see any sign of distress". The applicant complains that his Honour: did not make a finding as to whether Thomas' evidence, and the evidence of the other witnesses [who also saw the applicant when he was stabbing himself], supported the inference that the [applicant's] capacity to control himself was substantially impaired at the time he stabbed himself.
25. His Honour expressly found beyond reasonable doubt that "at least from the time the [applicant] obtained a knife from the kitchen, he not only intended to deliberately stab Ms Vize he also intended to kill himself" (PJ [230]). Later, in referring to the opinion of Dr Allnutt that the applicant's self-harm was "an impulsive response" to having killed Ms Vize, his Honour said (at PJ [253]): I do not accept that the accused's self-harm was an "impulsive response" to what happened, if that is meant to suggest that the accused only decided to harm himself after he stabbed Ms Vize.
26. The fact in issue was whether the applicant's self-control was substantially impaired when he stabbed Ms Vize. It was open to his Honour to find that that was not proved on the balance of probabilities, without making any finding about loss of control after the event and with respect to the self-infliction of harm. It was not a critical step in fact-finding that his Honour should determine whether the applicant's capacity to control himself was substantially impaired after the homicide, with a view to reasoning back in time.
27. Sub-ground 1(d) contends that his Honour erred in finding that, absent a history from the applicant of his state of mind leading to the deliberate killing of the deceased, he had not discharged his burden of proving that his control of his actions was substantially impaired by abnormality of mind. The applicant offered only brief written submissions in support of this sub-ground, recognising that it is substantially repetitive of sub-ground 1(b).
28. In support of ground 2 the applicant reiterated in more general terms the arguments made under the sub-grounds of ground 1.
29. In relation to the application for leave to appeal against sentence, I agree with what the Chief Judge has written. I agree with the orders which his Honour proposes for disposition of the applications for leave and the appeals pursuant to leave.

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: 25 January 2019