228 CLR 357
McLaren v R [2012] NSWCCA 284
Mulato v R [2006] NSWCCA 282
Munda v Western Australia [2013] HCA 38
244 CLR 600
Parente v R [2017] NSWCCA 284
Patsan v R [2018] NSWCCA 129
Potts v R [2012] NSWCCA 229
Source
Original judgment source is linked above.
Catchwords
195 CLR 665
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 30552 NSWLR 705
Markarian v The Queen [2005] HCA 25228 CLR 357
McLaren v R [2012] NSWCCA 284
Mulato v R [2006] NSWCCA 282
Munda v Western Australia [2013] HCA 38244 CLR 600
Parente v R [2017] NSWCCA 284
Patsan v R [2018] NSWCCA 129
Potts v R [2012] NSWCCA 229Regina v Wilson [2003] NSWCCA 216139 A Crim R 398
Street v Queensland Bar Association [1989] HCA 53168 CLR 461
Trad v R [2009] NSWCCA 56
The Queen v Kilic [2016] HCA 48
Judgment (16 paragraphs)
[1]
The applicant's defence and mental condition
As part of the applicant's subjective case, the sentencing judge had regard to the applicant's defence at trial because those aspects which related to his mental condition had an ongoing significance for the sentencing exercise, both in terms of the level of criminality involved in the murder and his present functioning.
The sentencing judge noted that he had rejected the applicant's evidence at trial, which was not confirmed or corroborated by independent evidence, including his assertion that he did not intend to harm Ms Vize. His Honour did so because the applicant's evidence on disputed matters was implausible, internally inconsistent and inconsistent with the objective evidence, or a culmination of those matters.
His Honour further noted that at trial the applicant argued that his criminal culpability should be reduced from murder to manslaughter because of the partial defence of substantial impairment by an abnormality of mind provided for by s 23A of the Crimes Act. The onus of proof in respect of that defence was on the applicant and it was to the standard of the balance of probabilities.
His Honour noted that to establish the defence, the applicant was required to demonstrate that at the time he stabbed Ms Vize, he was subject to an abnormality of mind arising from an underlying mental or physiological condition, other than one of a transitory kind and that his capacity to control himself was substantially impaired by that abnormality and that this impairment was so substantial as to warrant his criminal liability being reduced from murder to manslaughter.
The sentencing judge found in the Principal Judgment that at the time he committed the act that caused Ms Vize's death, the applicant suffered from an abnormality of mind arising from an underlying condition which was not of a transitory kind, being OCD and BPD. The sentencing judge did not accept that the applicant's capacity to understand events, judge whether his reactions were right or wrong, or control himself, was substantially impaired by those abnormalities. The sentencing judge further noted that in the Principal Judgment he did not accept that the applicant's OCD made any significant or substantial contribution to any loss of control on his part when he stabbed Ms Vize. The sentencing judge further noted that in terms of his present condition, the applicant's OCD had apparently abated as his physical limitations precluded him from giving effect to his compulsions which consequentially reduced their effect on his mental state.
The sentencing judge reiterated his finding in the Principal Judgment that BPD involves a "prolonged disturbance of personality function characterised by a depth and variability of moods" which typically "involved unusual levels of instability of mood, chaotic and unstable interpersonal relationships, self image problems, identity problems" and "behavioural problems", as well as a disturbance of the individual's sense of self. Attempted and completed suicide were possible outcomes for persons with BPD.
The sentencing judge noted that even though in the trial he had not been satisfied on balance that the applicant's impairment was so substantial as to warrant his criminal liability being reduced from murder to manslaughter, this did not mean that the applicant's BPD was not of significance to an assessment of his criminality.
In the Principal Judgment, the sentencing judge had accepted that the applicant's BPD "had the capacity to increase his feeling of abandonment and reduce his capacity to control his responses". The sentencing judge also found in the Principal Judgment that the applicant was:
"306 … distressed about the breakup with Ms Vize and was refusing to accept that it would occur. He was emotionally dependent on Ms Vize and was desperate to contact and be with her. On the two previous nights they had argued. In those circumstances I accept that [the applicant] may have been "unstable" in the immediate prior to the stabbing in the sense stated by Dr Furst … and accordingly vulnerable to an impairment of his self control." (PJ at [306]).
Accordingly, the sentencing judge accepted that the applicant's BPD contributed to his offending. The sentencing judge accepted that it operated to diminish his moral culpability for the offence, but only to a small degree. His Honour referred to Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] which cited, inter alia, R v Pearson [2004] NSWCCA 129 at [43].
The sentencing judge found that although the applicant's BPD was still present, it was difficult to gauge its effect on a person who was in prison and was dealing with quadriplegia. His Honour noted that the applicant presented as bitter and angry when he gave his evidence and while in custody there had been difficulties with support staff. His Honour accepted that the applicant's BPD would make his conditions of custody more difficult, especially the enforced separation from his family.
[2]
The applicant's quadriplegia
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.
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.
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.
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.
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".
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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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).
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.
[3]
Other sentencing factors
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.
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.
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.
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.
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)).
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.
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.
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".
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.
[4]
Conclusion
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."
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.
[5]
Ground 1 - His Honour erred in his consideration of the need for general deterrence in the light of the applicant's abnormality of mind.
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.
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) …"
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.
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.
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.
[6]
Consideration
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.
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.
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.
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."
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."
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."
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".
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."
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."
This ground of appeal has not been made out.
[7]
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
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.
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.
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.
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.
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.
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.
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."
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.
[8]
Consideration
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.
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.
That is not the approach followed by the sentencing judge here.
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.
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."
The sentencing judge in this case did no more than follow that authority.
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).
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.
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.
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]).
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]).
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.
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."
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.
[9]
Ground 3 - His Honour erred in failing to find special circumstances
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.
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.
[10]
Consideration
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.
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.
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]).
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.
This ground of appeal has not been made out.
[11]
(a) failing to take into account the [applicant's] abnormality of mind and his diminished moral culpability when assessing the objective seriousness, and
[12]
(b) his assessment of the objective seriousness of the offence
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.
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.
[13]
Consideration
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".
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).
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]).
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.
[14]
Ground 5 - The sentence is manifestly excessive
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]).
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.
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.
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.
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.
[15]
Consideration
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]."
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.
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]).
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.
This ground of appeal has not been made out.
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.
WHITE JA: I agree with Hoeben CJ at CL.
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.
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.
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".
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.
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.
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.
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.
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.
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).
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.
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".
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.
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.
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.
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.
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].
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.
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.
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.
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).
In support of ground 2 the applicant reiterated in more general terms the arguments made under the sub-grounds of ground 1.
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.
[16]
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
Betts v The Queen [2016] HCA 25; 258 CLR 420
Biddle v R [2017] NSWCCA 128
Caristo v R [2011] NSWCCA 7
Christodoulou v R [2008] NSWCCA 102
Cvetkovic v R [2013] NSWCCA 66
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Director of Public Prosecutions (NSW) v Quinn [2015] NSWSC 1326
Engert v R [1995] 84 A Crim R 67
Elturk v R [2014] NSWCCA 61
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Glynn Kaderavek v R [2018] NSWCCA 92
Hughes v R [2018] NSWCCA 2
Jiang v R [2010] NSWCCA 277
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
Markarian v The Queen [2005] HCA 25; 228 CLR 357
McLaren v R [2012] NSWCCA 284
Mulato v R [2006] NSWCCA 282
Munda v Western Australia [2013] HCA 38; 244 CLR 600
Parente v R [2017] NSWCCA 284
Patsan v R [2018] NSWCCA 129
Potts v R [2012] NSWCCA 229; 227 A Crim R 217
R v Byrne [1960] 2 QB 396
R v Cramp [2004] NSWCCA 264
R v Fidow [2004] NSWCCA 172
R v Israil [2002] NSWCCA 255
R v Maglovski (No 2) [2013] NSWSC 16
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Pearson [2004] NSWCCA 129
R v Quinn (No 2) [2016] NSWSC 1244
R v Quinn (No 3) [2016] NSWSC 1699
R v Riley [2008] NSWSC 1477
R v Simpson [2001] NSWCCA 534
R v Smith (1987) 44 SASR 587
R v Trotter (1993) 35 NSWLR 428
R v Wong [2018] NSWCCA 20
Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; 139 A Crim R 398
Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461
Trad v R [2009] NSWCCA 56
The Queen v Kilic [2016] HCA 48; 259 CLR 256
Yun v R [2017] NSWCCA 317
Category: Principal judgment
Parties: Michael James Quinn - Applicant
Regina - Respondent Crown
Representation: Counsel:
S Buchen SC/G Westgarth - Applicant
E Balodis - Respondent Crown
Solicitors:
C Cole - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2013/275908
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Criminal
Citation: R v Quinn (No 2) [2016] NSWSC 1244
R v Quinn (No 3) [2016] NSWSC 1699
Date of Decision: 08 September 2016
Before: Beech-Jones J
File Number(s): 2013/275908
Substantial impairment
There was no dispute at trial as to the legal principles relating to the application of s 23A. That section relevantly provides:
"23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.
…
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.
…
(8) In this section:
underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind."
As was accepted at trial, the partial defence provided by s 23A can be conveniently broken down into three elements:
1. The accused must demonstrate that at the time they committed the act causing death, they were subject to an "abnormality of mind arising from an underlying condition" within the meaning of subs 23A(8).
2. The accused must establish a substantial impairment of at least one of three capacities at the time and "by" [reason of] that abnormality. The three capacities are the accused's capacity to understand events, judge whether his actions were right or wrong and control himself.
3. The tribunal of fact must be persuaded that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A(1)(b)).
The parties agreed as to the relevance of the following extract from the judgment of Lord Parker CJ in R v Byrne [1960] 2 QB 396 (Byrne) at 403 as explanatory of the concept of abnormality of mind and its interrelationship with an impairment of an accused's capacity:
""Abnormality of mind," which has to be contrasted with the time-honoured expression in the M'Naughten Rules "defect of reason", means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression "mental responsibility for his acts" points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.
Whether the accused was at the time of the killing suffering from any "abnormality of mind" in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.
The aetiology of the abnormality of mind (namely, whether it arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence."
Ground 2 - The verdict is unreasonable
The applicant relied upon his analysis of the psychiatric evidence in support of Ground 1 to also support Ground 2.
The applicant noted that in Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at [97] Johnson J (with whom McClellan CJ at CL and Fullerton J agreed) said that there was no reason in principle why an unreasonable verdict ground cannot apply to a case where the applicant bore the onus of proof at trial, on the balance of probabilities, to establish the partial defence of substantial impairment. The applicant further noted that the partial defence under s 23A only arose when his account of accidental killing was rejected. Accordingly, the defence did not turn on his credibility, but on the evidence of the other witnesses, including the psychiatrists.
The applicant submitted that because his Honour found that all of the observer witnesses were reliable, and that each of the psychiatrists who gave evidence was highly qualified and professional in their manner of presentation, it was not a case where the trial judge had an advantage over this Court by seeing and hearing the witnesses. The applicant submitted that this Court was as well placed as his Honour to determine the issue of substantial impairment on all the evidence.
The applicant submitted that a credible narrative from him was not essential for him to discharge the onus on him under s 23A(1)(a). He submitted that his Honour's verdict was unreasonable and that on the evidence this Court should be satisfied that his capacity to control his actions was substantially impaired at the time of the killing.
The applicant submitted that if the Court was so satisfied, it is open to the Court to consider the issue under s 23(A)(1)(b) as to whether his impairment was so substantial as to warrant liability for murder being reduced to manslaughter. He submitted that this conclusion was readily available.
The applicant submitted that the issue under s 23A(1)(a) involved a finding of fact, whereas the issue under s 23A(1)(b) involved a moral judgment. The applicant referred the Court to Potts v R at [33] where Johnson J said of s 23A(1)(b)
"33 It has been said that the issue under s 23A(1)(b) is a task for the tribunal of fact, which must approach that task in a broad common sense way, involving a value judgment by the jury representing the community, and not a finding of medical fact: R v Trotter (1993) 35 NSWLR 428 at 431. It is often put to juries (as it was here) that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Trotter at 431; R v Ryan (1995) 90 A Crim R 191 at 195; R v Majdalawi [2000] NSWCCA 240; 113 A Crim R 241 at 243 [10]-[11]. In R v Majdalawi, Adams J observed (at 247 [36]) that the "value judgment by the jury representing the community" to which Hunt CJ at CL referred in R v Ryan "is a decision about culpability" and hence "is not a medical question"."
Relevant legal principles
The approach to be followed by this Court when considering an appeal from a judge alone verdict was considered by the High Court in Filippou v The Queen [2015] HCA 29; 256 CLR 47. There, the plurality (French CJ, Bell, Keane and Nettle JJ) said:
"4 As will appear, the Court of Criminal Appeal is required to deal with an appeal from judge alone in three stages. The first is to determine whether the judge has erred in fact or law. If there is such an error, the second stage is to decide whether the error, either alone or in conjunction with any other error or circumstance, is productive of a miscarriage of justice. If so, the third stage is to ascertain whether, notwithstanding that the error is productive of a miscarriage of justice, the Crown has established that the error was not productive of a substantial miscarriage of justice.
…
The nature of a criminal appeal from a judge alone
6 Section 133 of the Criminal Procedure Act 1986 (NSW) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury on the question of guilt of the accused and that such a finding has the same effect as a verdict of a jury. In that sense, "finding" means an ultimate finding of guilt as opposed to a finding of fact leading to the finding of guilt. The section also provides that the judge must include in his or her reasons for judgment the principles of law applied and the findings of fact on which the judge relies; and that, if any Act or law requires a warning to be given to a jury in such a case, the judge is to take the warning into account in dealing with the matter. As was held in Fleming v The Queen, the requirement to take a warning into account necessitates that the judge expressly refer to the warning in his or her reasons for judgment.
…
8 Section 6(1) of the Criminal Appeal Act provides in effect that the Court of Criminal Appeal shall allow an appeal against conviction if:
(1) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(2) where the judgment of the court of trial is wrong by reason of wrong decision of a question of law; or
(3) for any other ground there has been a miscarriage of justice,
provided that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
9 As was also explained in Fleming, perforce of s 133 of the Criminal Procedure Act, each of the three limbs of s 6(1) of the Criminal Appeal Act is capable of application to the verdict of a judge alone[6]. For the purposes of the first limb, the question is whether, upon the evidence on which the judge acted, or upon which it was open to the judge to act, the judge's finding of guilt is "unreasonable" or "cannot be supported". For the purposes of the second limb, the question is whether the judge has erred in law in the sense of a departure from trial according to law. Under the third limb, the question is whether for any other reason there has been a miscarriage of justice.
10 In Fleming, the Court left open the question of whether the Court of Criminal Appeal should intervene under the first or third limb of s 6(1) only if it appears that there is no evidence to support a finding of guilt or the evidence is all the one way or where there has been a misdirection leading to a miscarriage of justice. For the purposes of this appeal, it is necessary to answer that question.
…
12 Authority makes plain that a jury's finding of guilt is not to be disturbed unless it appears that there is no or insufficient evidence to support the finding, or the evidence is all the one way, or the finding is otherwise unreasonable, or unless there has been a misdirection leading to a miscarriage of justice. It follows perforce of s 133(1) of the Criminal Procedure Act that, in the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced. …"
Ground 1(b) - Failing to properly assess the opinions of Dr Nielssen and Dr Furst and adequately explain why he did not accept their opinions
The trial judge's assessment of the evidence of the psychiatrists called by the applicant revealed that each suffered from the lack of a reliable account by the applicant as to his state of mind at the time he stabbed Ms Vize and himself.
Dr Furst assumed or inferred that the applicant had become homicidal and/or suicidal when arming himself. It was logical for Dr Furst to reason back from the time when the applicant stabbed Ms Vize and himself to the time he armed himself with the knife. The applicant was homicidal and/or suicidal at least by then. It was, however, not logical to then infer that the applicant was not homicidal and/or suicidal any earlier. A possibility that the applicant had been homicidal and/or suicidal before he armed himself with the knife, could not be ruled out as a reasonable inference.
Dr Furst's opinion that the applicant had a "disordered mind" did not resolve the issue. The issue for the trial judge was whether there was substantial impairment. Moreover, this conclusion by Dr Furst also suffers from the same limitation referred to in relation to Ground 1(a). The preceding day or days were not the subject of evidence from the applicant as to how he was dealing with the end of the relationship.
Dr Furst's opinion was therefore based on an assumption that the applicant became homicidal and/or suicidal at the time he armed himself, that was not proven on the evidence. There was in fact no evidence on the subject.
Dr Furst was entitled to state an opinion based on an assumed fact (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]). That assumed fact, however, must "be identified and proved in some other way" (Makita at [85]; ASIC v Vines [2003] NSWSC 1095 at [39]). Without a reliable account from the applicant that assumed fact could not be proved.
The applicant set out a number of passages from Dr Nielssen's evidence (at [130]-[133]). That evidence formed part of Dr Nielssen's opinion that the applicant was substantially impaired. That evidence was then tested in cross-examination by the Crown. In the course of that cross-examination, the Crown asked Dr Nielssen:
"Q. But as his Honour asked you, Borderline Personality Disorder, one of the manifestations of that is an immediate reaction to something; would that be right?
A. Typically. But there can be an overreaction lasting over time. For example, the reaction to news of rejection might lead to days of phone calls, for example. So it's not necessarily a momentary event in the immediate seconds afterwards.
Q. But the history of this man is that he considered killing himself the night before but didn't want to do it in the house with other people present. But then he gives a version of intending to kill himself the next day. Now, if you reject that completely as being a completely made up version, then the fact that he's put the knife in his pocket the next morning and then he's gone outside and stabbed Cherie Vize, that's indicative, is it not, not of a complete loss of control as indicated by a Borderline Personality Disorder, but it shows some planning; does it not?
A. Well, again, it's over a short period of time without proper forethought or consideration of the consequences. I mean --
Q. But how do you know that? How do you know he didn't just consider this the previous night when he got up and he was thinking about, not so much 40 about killing himself, but killing Cherie Vize?
A. Look, I don't know that, again, that's really for Mr Quinn to - he's the only one who really knows exactly what was going through his mind. But certainly, taken as a whole, it does appear to be an impulsive and extreme overreaction to perceived rejection by a person who has those psychiatric vulnerabilities.
HIS HONOUR
Q. Can I ask about that, doctor. If the killing of Ms Vize, on this hypothesis as deliberate, and the personal attempt at suicide was part of the one plan, and
that had been in contemplation for a period of time, that would at least impact upon an assessment as to whether there was a loss of control, I take it?
A. Yes, a degree to which there's been a loss of control according to a rational - a calm and rational contemplation of the likely outcome." (T.512.20-513.4)
Proceedings on sentence
Detailed evidence concerning the occurrence of the offence is set out earlier in these reasons. Accordingly, the following is intended to supplement that material.
At the time of her death, Ms Vize was aged 25 and the applicant was aged 24. At the time of sentence, the applicant was aged 27. Both Ms Vize and the applicant were passionate about the visual arts. The applicant graduated from the University of Sydney with a Creative Arts degree in May 2013, but as of 22 July 2013 he had not found work. Ms Vize was enrolled in the same degree at the date of her death. She worked in various art stores across Sydney.
The following additional factual information is taken from the sentencing judgment (R v Quinn (No 3)) and I do not understand any of it to be controversial.
Ms Vize and the applicant commenced a relationship in about May 2010. They saw each other continuously from that time until her death, although during that period they saw other people as well. At times the relationship was tumultuous, but there is no suggestion that the applicant was violent towards Ms Vize before he killed her, although he did threaten self‑harm on at least one occasion. The volatility in their relationship was most likely a result of the manifestation of the applicant's BPD and compulsive traits. Ms Vize's mother recalled that the applicant constantly telephoned their home to find out where she was. By contrast, the witnesses invariably described Ms Vize as a caring person who was conciliatory towards everyone.
Approximately three weeks to a month before her death, Ms Vize commenced another relationship with Andrew Meyers. On the morning of 22 July 2013, the applicant and Ms Vize were asleep in his bedroom until some time after 9am. Subsequently, each of them came out of the bedroom separately for a brief period and then returned. Later they both came out of the bedroom together and had some orange juice in the kitchen. Ms Vize told the applicant's mother that they were going to spend the day painting together. The applicant's mother observed "While I was speaking with them, everything seemed fine". Mrs Quinn, however, had heard them argue the night before during which time Ms Vize cried. The applicant told his mother about his distress that Ms Vize was seeing somebody else. The sentencing judge was satisfied that the argument the night before the murder arose out of Ms Vize telling the applicant that their relationship was over and that she intended to continue seeing Mr Meyers.
At around 10.30am on 22 July 2013 Mrs Quinn saw Ms Vize walk outside the front of the house. About a minute or so later, she heard the front door "bang". A short time later, Mrs Quinn heard Ms Vize say "Michael don't do that". It seems that the applicant had taken a knife from the kitchen that was approximately 20cm in length. He went to the front yard and attacked Ms Vize. She resisted and suffered defensive slash wounds to her right hand. She also suffered four superficial incised wounds to her neck as the applicant tried to cut her throat. The applicant stabbed her fatally in the neck, inflicting a wound of between 5cm and 10cm in depth which cut her carotid artery and jugular vein.
As set out in Byrne, Lord Parker CJ described the concept of control as the "ability to exercise willpower to control physical acts in accordance with a rational judgment" formed about whether an action is right or wrong. Further, in Byrne Lord Parker CJ stated at 404:
"… In a case where the abnormality of mind is one which affects the accused's self-control the step between "he did not resist his impulse" and "he could not resist his impulse" is, as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common-sense way."
In R v Trotter (1993) 35 NSWLR 428 Hunt CJ at CL summarised the issues to be decided in relation to the s 23A defence at p 430:
"(1) Was the accused at the relevant time suffering from an abnormality of mind of the type described in the section.
(2) Did that abnormality of mind impair his mental responsibility for his act.
(3) Was that impairment substantial.
Each issue is one of fact to be determined by me as the relevant tribunal of fact.
The particular aspects of mind to which attention is usually paid in relation to this defence are the accused's perception of events, his ability to form a rational (or sensible) judgment as to whether his actions were right or wrong, and his capacity to exercise willpower to control his physical actions in accordance with rational (or sensible) judgment. Such perception, ability and capacity vary widely in normal people. An abnormality of mind exists where there is a deviation from the range over which they may vary in normal people or persons' mental responsibility for his actions concerns the extent to which his mind is answerable for his physical acts and it too involves the extent of that person's ability to exercise willpower to control his physical actions: R v Byrne [1960] 1 QB 396 at 403. That mental responsibility is impaired if it is diminished by reason of that abnormality of mind.
Whether the cause of the abnormality of mind falls within the terms of s 23A requires expert medical evidence: R v Byrne (at 403), and such evidence is relevant to the other matters as well. Although the word "responsibility" in the phrase "mental responsibility" appears to introduce a non-medical value judgment, an expert medical witness would in my view be able to give evidence that, for example, the accused's perception of events or his capacity to exercise willpower to control his physical actions was impaired. But the tribunal of fact is not bound to accept the medical evidence where there is other material before it which, in its judgment, conflicts with it and outweighs it: ibid (at 403). Such material includes the nature of the killing, the conduct of the accused before, at the time and after the killing and any history of mental abnormality: Walton v The Queen [1978] AC 788 at 793.
The tribunal is in any event entitled to consider the quality and the weight of the expert medical evidence: ibid (at 793).
The "crucial" question in the defence of diminished responsibility is, however, whether the impairment of the accused's mental responsibility for his act was substantial: R v Byrne (at 403). Some impairment is not sufficient; if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial: R v Simcox (Court of Criminal Appeal of England, The Times, 25 January 1964, unreported), quoted in R v Lloyd [1967] 1 QB 175 at 181. To be substantial, the impairment may be less than total, but it must be more than trivial or minimal: R v Lloyd (at 178-179).
It was held in R v Byrne (at 404) that medical evidence is relevant to this
question as well, but not decisive of it. The Court of Criminal Appeal pointed out (at 403-404) that the question involves matters of degree, and that it is one which is essentially for the jury. And, as the question is not merely a medical one of whether there was an impairment but also whether that impairment can "properly" be called substantial, it was pointed out (at 404) that this is a matter upon which juries may quite legitimately differ from the medical experts: see also R v Lloyd (at 179). It is often put to juries that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Ignjatic (1993) 68 A Crim R 333 at 346.
Those criteria demonstrate why expert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is substantial. The doctors are obviously qualified to say whether the extent of the particular impairment to the accused's perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused's mental responsibility for his actions may "properly" be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession. That is a task for the tribunal of fact, which must approach that task in a broad common-sense way: R v Byrne (at 404); Walton v The Queen (at 793). It involves a value judgment by the jury representing the community (or by a judge where there is no jury), not a finding of medical fact."
The applicant submitted that the opinions of Dr Nielssen and Dr Furst were based on facts, which his Honour was satisfied were proved. Both Dr Nielssen and Dr Furst were qualified to express an opinion as to the extent of any impairment the applicant suffered, whether it was slight, moderate or severe. The applicant submitted that their evidence was persuasive and their opinions were not dependant on a narrative from the applicant, but were based on the evidence of persons who had observed the applicant at the relevant time.
This evidence, the applicant submitted, demonstrated the extent to which he was not coping with his feelings of abandonment and rejection. His Honour found that the evidence of the applicant's mother and brother and the telephone and SMS records overwhelmingly suggested that in the weeks preceding her death Ms Vize told the applicant that she had met someone else, that their relationship was over or coming to an end, and that the applicant was so distressed that he threatened self-harm.
The applicant noted 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. His Honour accepted that the applicant had told his brother that he was "devastated" and that "Cherie was cheating on him". His Honour found that the applicant's discussions with his mother and Ms Loke on the evening prior to the killing, revealed a state of despair.
The applicant submitted that the evidence of his abnormal behaviour in the weeks before the killing, the extent of his distress in this period and on the night before the killing, and the circumstances of his attempted suicide made it more probable than not that his capacity to control his actions was substantially impaired at the time of the killing. The applicant submitted that in those circumstances, an account from him as to when he formed the intention to kill Ms Vize was not essential in the light of all of the evidence.
The applicant submitted that there was no evidence that he intended to kill Ms Vize before 22 July 2013. He submitted that the compulsive phoning and texting Ms Vize in the weeks leading up to the killing and the argument with Ms Vize during the evening before the killing were consistent with him being desperate to continue the relationship.
The applicant referred to the evidence of Ms Loke that he said to her on that night "I don't know what I'm going to do". The applicant submitted that this conversation with Ms Loke was also relevant to establish that at that time he lacked any clear plan concerning what he was going to do.
The applicant also relied upon the evidence of Dr Furst that the two conditions of OCD and BPD could feed into each other:
"A. Yes, it's fair to say that it's if you like, the OCD probably gives you a base line level of dysfunction which is, as I said earlier, moderate to severe … So the OCD is a baseline level of anxiety and need for control and compulsions around that and then you've got an overlay of someone who's functioning on a very low level, a poor way with emotional instability and volatility and all the issues that come into play with interpersonal relationships of people with that type of personality structure and some narcissism as well …" (T.325.35)
The applicant noted that Dr Furst was unable to say whether he intended to kill both himself and Ms Vize, or just himself, when he picked up the knife but he (Dr Furst) was of the view that it was unnecessary to know precisely what the applicant's motivation was at that time to establish that his capacity to control himself was substantially impaired at the time of the killing. Dr Furst considered that once the applicant made the decision to kill either himself or the victim, and was in such a mental state as to carry this through (as evidenced by the taking of the knife) he was in a disordered state within the meaning of the Mental Health Act 2007 (NSW) in that his capacity to control himself was substantially impaired.
The applicant submitted that his attempted suicide in front of his family, and the evidence from observers about the manner in which this occurred, were not consistent with a rational, well thought out attempt to end his life. The applicant submitted that the attempted suicide was demonstrative, not only of a determination to kill himself but as stated by Dr Nielssen, was consistent with "an extreme overreaction by him, consistent with his psychiatric vulnerabilities", and with his capacity to control himself being substantially impaired. The applicant submitted that his demeanour at the time, as described by his mother and his brother, strengthened an inference of a substantially impaired capacity to control himself at that time.
The applicant submitted that as set out in support of Ground 1(a), Dr Allnutt did not have all the observer evidence when he formed his initial opinion, which was based on an account of an accidental stabbing. When he was asked to assume that the stabbing was deliberate, he did not give a considered opinion based on all the evidence as to whether the applicant's capacity to control his actions was substantially impaired. Dr Allnutt's focus was on the difficulty raised by the absence of a credible account from the applicant. The applicant submitted that in those circumstances, the opinions of Dr Nielssen and Dr Furst, which were based on all of the evidence, were more persuasive than the opinion of Dr Allnutt. The applicant submitted that in the circumstances, his Honour's acceptance of Dr Allnutt's opinion was unreasonable in that his Honour gave undue weight to the absence of a credible narrative from him [the applicant] and did not properly assess the opinions of Drs Nielssen and Furst and the evidence of the persons who had observed the applicant in the days leading up to the killing.
To the extent that the argument in support of a ground of appeal under s 6(1) takes issue with the correctness of the trial judge's intermediate findings of fact, this Court must have regard to the reasons stated by the trial judge. In this case, the applicant takes issue with a significant number of his Honour's intermediate findings of fact. It is therefore necessary to have regard to his Honour's reasons. The question for the Court, however, is not whether it is satisfied that his Honour's findings of fact are correct, but whether his Honour's findings were not reasonably open.
On that issue, Filippou v The Queen is also of assistance, where the plurality said:
"56 Starting with the first of the judge's supposed errors, the question for the Court of Criminal Appeal was not whether it was "satisfied that the judge's account was correct" but whether her Honour's findings as to the sequence of events were not reasonably open. …"
The applicant's case at trial and on this appeal relied upon that part of s 23A(1)(a) which referred to the inability of a person to control himself or herself. This was because although Dr Nielssen opined that the applicant was substantially impaired under all three limbs of s 23A, Dr Furst only supported the proposition that the applicant's capacity to control himself was substantially impaired. Accordingly, the applicant's submission is that the trial judge should have found that his capacity to control himself was substantially impaired and the applicant does not take issue with the trial judge's rejection of Dr Nielssen's opinion concerning how the applicant was otherwise substantially impaired pursuant to s 23A.
It was common ground that the applicant's description of the incident to all three psychiatrists that his stabbing of Ms Vize was accidental and that it had occurred as a result of his intention to suicide (PJ at [239], [256], [271]) was false. The applicant repeated that account in his evidence at trial. The trial judge rejected that evidence and other evidence of the applicant unless it was confirmed or corroborated by independent evidence (PJ at [167]; [206]). No challenge is made to that finding by the trial judge.
The unstated assumption upon which the opinion of Dr Nielssen was based is revealed by this evidence. While it may have appeared to Dr Nielssen that the killing had been "an impulsive and extreme overreaction to perceived rejection by a person who has those psychiatric vulnerabilities", only the applicant could know whether it was, as Dr Nielssen conceded. Further, Dr Nielssen accepted that the presence of planning would adversely affect the conclusion of a loss of control.
It follows that the evidence of Drs Furst and Nielssen was therefore not able to prove that the applicant was substantially impaired. Their evidence was not discounted by the judge. Rather, the limitations in their evidence resulted in the substantial impairment not being proved as his Honour explained (PJ at [306]). Their evidence was not wholly dependent on the reliable account from the applicant. With respect to proof of an abnormality of mind, that did not matter. Indeed the trial judge was prepared to accept that the applicant was vulnerable to an impairment of his self-control. What their evidence failed to prove was that there had been a substantial loss of control and that this was due to the established abnormality of mind.
The applicant's submission that the trial judge failed to make a finding of any degree of impairment should be rejected. The trial judge was not required to make such a finding. On the evidence his Honour was prepared to conclude that the applicant may have been "unstable" and "vulnerable" to an impairment of his self-control (at PJ [306]). His Honour went no further because he was not required to do so.
For the above reasons his Honour properly assessed and explained the evidence of Drs Furst and Nielssen and its limitations. Ground 1(b) should be rejected.
On hearing what appeared to be a struggle, Mrs Quinn ran to the front yard and arrived at or shortly after the time when Ms Vize was fatally stabbed. She observed Ms Vize to be bleeding profusely and attempted to help her. A neighbour came to her assistance and rang triple 0.
By this time the applicant's younger brother, Thomas, had run to the front yard in response to his mother's screaming. He observed Ms Vize's eyes were rolling and she was "gasping for air". He ran into the house to obtain some towels. When Thomas returned, he saw the applicant in the front yard stabbing himself in the chest with a knife. Thomas ran inside and telephoned his father. He returned to find the applicant near the nature strip. By this time the applicant had already stabbed himself in the neck. The knife was protruding from his neck. It was this injury that rendered him a quadriplegic.
Paramedics and police began to arrive at the scene. Both Ms Vize and the applicant were transported to hospital. Ms Vize's neck was operated upon, but to no avail. Sometime during the evening of 22 July 2013, she died at Wollongong Hospital from blood loss consequent upon the wound in her neck. Her parents were by her side.
In the Principal Judgment, the sentencing judge concluded that the applicant had deliberately stabbed Ms Vize in the neck. He was satisfied that the applicant intended to kill her and then kill himself. The sentencing judge accepted that he did so because he realised that his relationship with Ms Vize was "over or coming to an end" and that he was distressed from reading the text messages she sent to Mr Meyers on 21 July 2013. As for how long the applicant held an intention to kill Ms Vize and himself, the sentencing judge found:
"15 … 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. The evidence suggests that he had been at least brooding over that possibility for some days. His discussions with his mother and [a friend] on the evening prior to the stabbing suggests he was in a state of despair. The events immediately after the killing revealed a lack of hesitancy consistent with a determination to end his own life."
The sentencing judge observed that since there was no reliable evidence of the applicant's state of mind before he seized a knife in the kitchen, he was not able to conclude whether or not the applicant formed an intention to kill Ms Vize before that point in time. By reference to R v Olbrich [1999] HCA 54; 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) the sentencing judge directed himself that he could not take into account facts adverse to an offender unless they were established beyond reasonable doubt and might take into account facts favourable to an offender if they were proved on the balance of probabilities. As a result, the sentencing judge could not be satisfied that the murder of Ms Vize was either premeditated or spontaneous.
The sentencing judge referred to the recording of the triple 0 call in which Ms Vize's distress could be heard in the background. In relation to that, the sentencing judge observed:
"17 … At this time she was still conscious but her breath was shortening as she was draining of blood. Although the time between the attack upon her and her lapsing into unconsciousness was not long, during that period she would have known that she was seriously injured and possibly dying. A person she cared for had launched a cowardly and vicious attack upon her when she was completely defenceless. Ms Vize's death was not quick or painless. To the contrary, it would have been terrifying and she would have suffered greatly." (Sentence judgment, 8.9)
In relation to the impact of Mr Vize's death, the sentencing judge found:
"19 Even allowing for those limitations the evidence adduced at the trial from Ms Vize's family and many friends uniformly portrayed her as an exceptionally warm and caring person with great empathy for those around her, including [the applicant]. There was no doubt she was smitten with Mr Meyers. As a young woman it was her right to follow her passions. Even so, her conduct towards [the applicant] in the last few weeks of her all too short life were indicative of someone who still cared for him and wanted to mitigate his feelings of rejection."
In addition, his Honour had regard to a victim impact statement from Ms Vize's mother. Having received the statement, the sentencing judge considered it appropriate to take the statement into account in connection with the determination of punishment for the applicant, in particular as part of the assessment of the harm done to the community by him killing Ms Vize.
Ms Vize was her parents' only child and her mother and her father's lives revolved around her. They hoped that she would have a family of her own and a successful career in the arts. Instead, Mrs Vize said that their "lives were shattered and our future was destroyed" and all they were left with were memories. Those memories included the times when their daughter helped them care for sick animals in their family pet shop, as well as the occasions when she assisted children with disabilities with their artwork.
By way of illustration of the suffering experienced by Ms Vize's parents, the sentencing judge took note of the fact that later on the afternoon of 22 July, Mrs Vize was contacted by a social worker from the Wollongong Hospital. She and her husband caught a taxi to the hospital. During the taxi ride, she heard on the radio that someone had been stabbed and realised that it was her daughter. When they arrived at the hospital, she was advised of what had happened and spent some time with her daughter before she died. Ms Vize's mother and father live in southern Sydney. The taxi ride to a hospital in the Illawarra region would have taken at least an hour. The sentencing judge noted that "the events of that day, including that journey, could have been nothing other than pure agony for Mrs Vize and her husband".