R v Amati

Court of Criminal Appeal (NSW)|2019-07-26|Before: Johnson J, Harrison J

CA 47 R v Quach [2002] NSWCCA 173 R v Rae [2001] NSWCCA 545 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Thew (Court of Criminal Appeal, unreported, 25 August 1998) R v Zegura [2006] NSWCCA 230 Shine v R (2016) 260 A Crim R 534; [2016] NSWCCA 149 Tregeagle v R [2016] NSWCCA 106 Texts Cited: --- Category: Principal judgment Parties: Director of Public Prosecutions (Applicant) Evie Amati (Respondent) Representation: Counsel: Ms M Cinque SC (Applicant) Mr PD Lange (Respondent)

Solicitors: Solicitor for Public Prosecutions (Applicant) Aquila Lawyers (Respondent) File Number(s): 2017/5891 Publication restriction: --- Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: R v Amati [2019] NSWDC 3 Date of Decision: 18 January 2019 Before: Judge ML Willliams SC File Number(s): 2017/5891

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the comprehensive judgment of Johnson J.
I agree, generally for the reasons given by his Honour, that the Crown has established manifest inadequacy in the sentence imposed, that there is no basis for the exercise of the residual discretion to dismiss the appeal, and that the Crown appeal must therefore be upheld and this Court must proceed to exercise its own sentencing discretion.
In reaching the view I am about to express, I have excluded from consideration any prospect that the respondent might, at some necessarily distant time in the future, repeat the conduct the subject of the offences, or like conduct. I accept, on the analysis in Fardon v Attorney General (Qld) (2004) 223 CLR 575; [2004] HCA 46 and R v Garforth (Court of Criminal Appeal (NSW), 23 May 1994, unrep) that a prediction of future dangerousness may, in appropriate cases, be a legitimate factor to be taken into account in sentencing. But there must be a basis in the evidence for such a prediction. In Ng v R [2011] NSWCCA 227; (2014) 214 A Crim R 191 to which Johnson J refers, it was the nature of the crimes for which Mr Ng was sentenced - "a cold-blooded execution" - that was said to be capable of reflecting the way in which he might at some time in the future act. Even so, the Court found error in the sentencing judge having taken that circumstance into account.
In this case, as Johnson J has recounted, circumstances preceding and giving rise to these offences came about as a result of an "unusual interaction of factors". There is nothing in the evidence that would provide the basis for any conclusion to the requisite standard that the prospect of repeated offending of the same or similar kind should be taken into account in the determination of the appropriate sentence.
In this respect I note a finding of the sentencing judge that the respondent's prospects of rehabilitation are good. No doubt her ultimate rehabilitation will depend upon her response to her incarceration and whatever services and assistance she might be given during and after release from that incarceration. The assessment of the likelihood of her re-offending is most appropriately left to the State Parole Authority.
In other respects Johnson J has set out in detail the relevant circumstances to be taken into account in sentencing. They present a complex array of factors, indicating the gravity of the offences tempered by the unusual and compelling personal circumstances of the respondent.
I would maintain the finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) justifying reduction of the statutory ratio of the non-parole period to the total sentence made by the sentencing judge. The order I propose will reduce the degree of variation between the statutory ratio but nevertheless afford the respondent a significant benefit.
In my opinion the appropriate sentence is one of imprisonment for 14 years commencing on 7 January 2017 and expiring on 6 January 2031 with a non-parole period of 8 years which will expire on 6 January 2025.
The orders I propose are: 1. Crown appeal allowed; 2. sentence imposed by the District Court on 18 January 2019 set aside; 3. in lieu thereof, the respondent is sentenced to a term of imprisonment comprising a non-parole period of eight years commencing on 7 January 2017 which will expire on 6 January 2025, with a balance of term of six years which will expire on 6 January 2031.
JOHNSON J: This is a Crown appeal under s.5D Criminal Appeal Act 1912 with respect to an aggregate sentence of imprisonment imposed upon the Respondent, Evie Amati, in the Sydney District Court on 18 January 2019.

The Offences

Following a trial by jury, the Respondent was found guilty of the following offences committed at Enmore in the early hours of the morning on 7 January 2017: 1. Count 1 - wounding Benjamin Rimmer with intent to murder, an offence under s.27 Crimes Act 1900, punishable by a maximum penalty of 25 years' imprisonment with a standard non-parole period of 10 years; 2. Count 3 - causing grievous bodily harm to Sharon Hacker with intent to murder under s.27 Crimes Act 1900, punishable by the same maximum penalty and standard non-parole period as Count 1; and 3. Count 5 - attempting to wound Shane Redwood with intent to murder, contrary to ss.27 and 344A Crimes Act 1900, with a maximum penalty of 25 years' imprisonment and no standard non-parole period.

The Aggregate Sentence and Indicative Sentences

On 18 January 2019, the sentencing Judge imposed an aggregate sentence of imprisonment for nine years commencing on 7 January 2017, with a non-parole period of four years and six months commencing on 7 January 2017 and expiring on 6 July 2021, with a balance of term of four years and six months commencing on 7 July 2021 and expiring on 6 January 2026.
In accordance with s.53A(2) Crimes (Sentencing Procedure) Act 1999, his Honour noted the following indicative sentences: 1. for the Count 1 offence - imprisonment for seven years with a non-parole period of four years; 2. for the Count 3 offence - imprisonment for six years and six months with a non-parole period of three years and six months; and 3. for the Count 5 offence - imprisonment for five years.

Notice of Crown Appeal

On 11 February 2019, a Notice of Appeal under s.5D Criminal Appeal Act 1912 was filed in this Court. The Notice of Appeal was served on the Respondent in custody on the following day.
The Crown contends that the aggregate sentence imposed was manifestly inadequate.

Facts of Offences

The facts of the offences were not in dispute. Each of Mr Rimmer, Ms Hacker and Mr Redwood gave evidence at the trial and their evidence was not challenged. The offences committed against Mr Rimmer and Ms Hacker were captured on CCTV footage recorded inside a 7-Eleven convenience store located on Stanmore Road, Enmore and the offence committed upon Mr Redwood occurred in the street outside that store.
At the hearing in this Court, the Crown sought to play in Court the CCTV recording which depicted the offences committed against Mr Rimmer and Ms Hacker. Counsel for the Respondent objected to this course relying upon Malicki v R [2015] NSWCCA 162 at [67]-[68]. The Court determined that the CCTV footage should be played in Court. As in R v Mulligan [2016] NSWCCA 47, the CCTV footage in question depicted the actual commission of two of the offences which were the subject of the Crown appeal. Further, the CCTV footage was important evidence at the trial of the Respondent and was referred to in the sentencing remarks with his Honour observing that "the objective facts are clearly shown in the CCTV footage": R v Amati [2019] NSWDC 3 at [76]. In those circumstances, it was appropriate that this Court have the same opportunity as the sentencing Judge to view the CCTV footage. Background to Offences
The immediate events leading up to the offences commenced on Friday, 6 January 2017 when the Respondent (then 24 years old) matched with Mickila Jahnsen on the dating app, Tinder. They communicated through the messaging services provided by Tinder and then Facebook from about 3.00 pm that day, including a lengthy exchange about their respective sexual fantasies, and then arranged to meet for the purpose of going to the Burdekin Hotel. They expected to obtain drugs at that location.
At about 9.50 pm on 6 January 2017, the Respondent arrived at Ms Jahnsen's house where Ms Jahnsen's two housemates were also present. After a drink, the group left the house on foot to obtain alcohol. They met a friend of Ms Jahnsen with the intention of purchasing MDMA for the group to consume that evening. The group travelled to a house in Marrickville where they continued drinking and took what they believed to be MDMA tablets, but which toxicology examination later showed to be MDA.
At about 12.45 am, a friend of Ms Jahnsen collected the group to take them to the Burdekin Hotel. During the drive, the Respondent recalled a comment being made by one of Ms Jahnsen's housemates to the effect "You're so beautiful" or "You're so brave". The Respondent construed the comment to mean that others in the group had identified her as transgender and that they had spoken about it whilst she was out of the room. The Respondent began to feel "incredibly anxious" and "started going into one of [her] depressive episodes". The Respondent put her leg against Ms Jahnsen's leg to "test the waters", but Ms Jahnsen responded in a way which the Respondent perceived as negative.
The Respondent then asked to get out of the vehicle. According to Ms Jahnsen, the Respondent seemed "kind of mad". The Respondent got out of the vehicle and made her way home.
The Respondent smoked two joints on her balcony and listened to music. Ms Jahnsen messaged the Respondent on Facebook at 12.49 am to check if she was all right. A protracted exchange of messages ensued in which the Respondent expressed her anger and disappointment at being rejected, as she saw it, because she was transgender.
In the course of the messaging, the Respondent said at 1.13 am on 7 January 2017: "One day I'm going to kill a lot of people … for hating something so innocent … all I want to do is please … but I'm too ugly … and you will pay."
Ms Jahnsen responded at 1.14 am: "I didn't say you were ugly not once … this is the anxiety talking …"
Between 1.17 am and 1.31 am, the Respondent messaged Ms Jahnsen as follows: "How do you say you adore me and want to see me again … and then spew this shit about your personal demons like I have nothing to do with them … you have nothing … because you are nothing but hate … that's why you would make a great cop … I know I'm so much more beautiful than you will ever be … and that's what you hate … you shouldn't be in Marrickville go to duck get Blacktown or some other ignorant fuck hole …"
At about 2.00 am, some 30 minutes after the Facebook conversation had ended abruptly, the Respondent armed herself with a large axe and a knife and made her way on foot towards the 7-Eleven convenience store on Stanmore Road, Enmore. The sentencing Judge summarised the motivation and intoxication of the Respondent at that time in R v Amati at [22]-[23]: "22 The primary motivation for the offending was perceived intolerance/interpersonal rejection, in particular that attributed by the accused to Mickila Jahnsen. 23 The offender was affected and disinhibited by the combination of illicit drugs (MDA and Cannabis), alcohol and prescription medication." The Attack on Mr Rimmer
Mr Rimmer stated that he had been out that evening and stopped at the 7-Eleven store at about 2.00 am to get something to eat. He selected an item to purchase and was waiting in the line to pay when he observed the Respondent.
The CCTV footage revealed that the Respondent had entered the convenience store a short time before holding a large axe (which weighed about 4.5 pounds) with an 18 centimetre knife protruding from her rear pocket.
Mr Rimmer explained that he had "an ill-feeling, something wasn't right and she was holding an axe". He thought that the axe was "a prop, like somebody had left from a fancy dress party". Mr Rimmer turned away from the Respondent and was then struck by the Respondent with the axe. The Respondent swung the axe with two hands in a forceful blow to the vicinity of Mr Rimmer's left eye. Mr Rimmer described in evidence that he felt like he had been "king hit" and then noticed the blood and "started to panic" because he "thought [he] was just going to bleed out". He took his shirt off and tied it around his head in an effort to stem the flow of blood. Mr Rimmer stated that the blow "just came out of the blue".
In R v Amati, the sentencing Judge described the offence committed against Mr Rimmer at [24]-[26]: "24 The offender entered the store and approached Mr Ben Rimmer, striking him in the vicinity of his left eye with the axe when he turned his attention to the counter area. The axe was swung with two hands and the blow was forceful. It knocked Mr Rimmer to the ground. The injury sustained was described by Dr Chopra as: '… a massive laceration across the left side of his face extending from the bridge of his nose to his upper left eye (over 10 [cm] in length). The laceration was through soft issue and through bone. He had significant facial swelling and bruising consistent with massive trauma … the patient fractured his nasal bone, eye socket and cheek bones. The fractures were all complex with multiple fragments and with heavy distortion, especially to the cheek bone': 25 Had the positioning of the injury been slightly different catastrophic injury would have resulted (massive bleed to the brain, loss of vision): 'Myself and my consultant and other colleagues at the time around the operation commented that an injury of that magnitude, a millimetre or two above where Mr Rimmer had his injury would have had significant consequences or potentially life threatening injuries to him and consequences.' 26 The injury sustained required 5 hours of reconstructive surgery including the use of titanium plates and screws." The Attack on Ms Hacker
Ms Hacker was also present in the convenience store soon after 2.00 am on 7 January 2017. She told the jury that she had gone to the convenience store to buy some milk.
As the CCTV footage makes clear, it was whilst Ms Hacker was paying for her purchase that the Respondent attacked Mr Rimmer with the axe. The Respondent then attacked Ms Hacker with the axe bringing it down forcefully with two hands on the base of her skull. Ms Hacker fell forward to the ground. As the sentencing Judge noted (R v Amati at [28]), the first blow was cushioned by Ms Hacker's thick bundle of dreadlocks. The Respondent attempted to strike Ms Hacker with the axe a second time whilst Ms Hacker was prone but missed.
Ms Hacker told the jury that she realised that she had been struck in the head with an axe and then watched the Respondent proceed across Stanmore Road in a diagonal direction "where she was going to intercept another gentlemen who I was seeing that was in dishevelled clothing" (Mr Redwood). Ms Hacker stated that the Respondent "was walking very purposely methodically towards him carrying the axe and when she got to the road she had it in both hands and made a lower lateral swing" towards Mr Redwood. Ms Hacker then described becoming aware of "a sensation of falling and really really strong ringing in my head". She "was disorientated" and "was trying to sort of stabilise [herself]".
The sentencing Judge said in R v Amati at [28]-[29] concerning Ms Hacker's injuries: "28 … As a result of the first blow Ms Hacker sustained a left occipital condyle comminuted fracture (meaning that bone at the base of the skull was broken into multiple parts). 29 In addition to the need for the initial imaging, treatment and the MH collar for approximately 2 months, Ms Hacker also now suffers from what she described as shooting pain down her arm and hand, chest pain and sleeping issues."
The CCTV footage provides graphic and direct evidence of what were undoubtedly terrifying attacks upon each of Mr Rimmer and Ms Hacker, carried out as they waited in the store. It is apparent that no act or words of Mr Rimmer or Ms Hacker played any part in bringing about the Respondent's attack upon each of them. Each person was standing, minding their own business in a store, when a savage attack was directed to each of them by a complete stranger. The Attack on Mr Redwood
After attacking Ms Hacker, the Respondent walked out of the convenience store and headed across the road. She was still carrying the axe with the knife protruding from her rear pocket. Mr Redwood gave evidence by audio-visual link from the United Kingdom. Mr Redwood had left a nearby hotel and was walking along the footpath on Stanmore Road. He told the jury that he could see events occurring over the road at the convenience store. From that distance, he thought it "was a drunken fight".
Mr Redwood stated that, when the Respondent was about half way across Stanmore Road, he noticed that she was holding an axe, having previously thought that it was a baseball bat. Mr Redwood stated that he "knew at that point that she was going to try and hit [him] with the axe". He took his backpack off his shoulder and swung it at the Respondent as she swung the axe towards him. He managed to hit the blade of the axe with his bag, but the Respondent tried once again to swing the axe and he blocked it again with his backpack. The blow was so hard that his backpack flew out of his hand. Mr Redwood continued: "And I tried to run across the road. I am disabled, as you would probably know by now. I've got heart failure so I can't run. And I got like halfway across the road almost, fell flat on my face, but I did get to the side of the road and I turned around expecting an axe to enter my head. It didn't. So the young lady in question had carried on walking up the road."
Mr Redwood described how he then picked up his backpack and was spoken to by another man in the street. Mr Redwood said that the axe swings involved a lot of force and that, if he had not been able to stop the axe with his bag, he expected that he would have been struck on the left-hand side of his upper chest. Mr Redwood stated that, as he realised that the Respondent was walking towards him, he "couldn't come up with any other conclusion [he] just gathered she was going to try and kill [him] with the axe". A Witness Observes Events from the Street and Evades an Attack by the Respondent
Whilst the Respondent was attacking Mr Rimmer and Ms Hacker inside the convenience store, Nathan Wood was walking along Stanmore Road, Enmore on his way home. He observed the Respondent leaving the convenience store after those offences "with the dripping axe" and she approached Mr Wood who was on the other side of the street. He described the Respondent's approach as "slow, steady and deliberate".
The Respondent commenced to raise the axe towards Mr Wood who realised that he was about to be attacked. He "made a mad dash to the end of the block" and made a "000" call. As he reached the end of the block, he turned back and saw the Respondent swing the axe towards Mr Redwood, which cut through Mr Redwood's coat. Mr Wood described Mr Redwood as an "elderly, bearded" man who was "a very distinctive looking homeless person". As the Respondent moved away from Mr Redwood, Mr Wood followed the Respondent up the street to make sure he could obtain a description for the purpose of the "000" call which was already underway. Arrest of the Respondent
Following Mr Wood's "000" call, police and ambulance services attended the location. Whilst patrolling the area, police located the Respondent about 30 minutes after the attack on Mr Redwood. She was lying, seemingly unconscious, in the garden of 1 Stanmore Road, Enmore. She was arrested and handcuffed, lifted from the garden and transported to St Vincent's Hospital. The sentencing Judge recorded the following events at [34]-[37]: "34 Treating paramedics tested her responses on the scene and in transit. The only response was her eyelids fluttering, observed by ambulance officers and an accompanying police officer. An ambulance officer also noted flexion in her left hand. A witness who was observing the scene from the corner gave evidence of the offender lifting her head and looking directly at him while she was on the pavement outside the property on Stanmore Road. 35 She opened her eyes shortly after arriving at the hospital, and tried to get up. She pulled the tube from her nose and continued to struggle. She was heard to say "After the nose doesn't the arse come next", "Fuck me, fuck me" and "Pain is a part of life". On being asked her name by an ambulance officer she responded "I'm not telling you. I don't have a name". She continued to struggle and was sedated. 36 She gave evidence that she has no recollection between smoking a joint on the balcony and listening to her favourite song, until a vague recollection of waking up in the hospital and staff asking for her name and next of kin. 37 She was discharged into Police custody on the afternoon of 7 January 2017."
The Respondent has remained in custody since her arrest on 7 January 2017.

Impact of Offences Upon the Victims

The impact of these offences upon the victims was substantial. So much may be seen from the descriptions (set out above) that each of them give of the axe attack launched out of the blue against each of them. Mr Rimmer opened his victim impact statement in the following way: "I do not remember much about the attack, however it has had a profound and ongoing impact on my life I honestly don't think I will ever be the same again. Being attacked for no reason and by a complete stranger is something that is very difficult to overcome and even more difficult to describe in words. One of [the] biggest challenges I am experiencing is accepting my altered physical appearance. I have significant scarring and changes to my facial structure."
Mr Rimmer outlined the entirely understandable psychological consequences for him in the form of anxiety about going out at night. He cannot enter a service station after sunset because of the traumatic memories and feelings which result. Mr Rimmer's wife was pregnant at the time of the attack and he described the burden which she was required to undertake in caring for him at a time of major family need. More was said in Mr Rimmer's victim impact statement, but this provides some additional insight into the understandable consequences of this crime upon him.
In her victim impact statement, Ms Hacker spoke of her difficulty with continuing to live in the area where the crime occurred and other problems which resulted after the attack concerning her relationship. Ms Hacker described how this crime had given rise to unwanted changes in her life which had altered her in significant respects.
The physical and psychological consequences of the attacks upon Mr Rimmer and Ms Hacker serve to explain, as well, the finding of the sentencing Judge that these offences lay above the mid-range of objective seriousness.
No victim impact statement was provided by Mr Redwood. Mr Redwood's description of the offence against him provides ample understanding of the terrifying and life-threatening experience to which he was subjected. The absence of a victim impact statement does not, of course, give rise to an inference that the offence committed against him had little or no impact on him: s.29(3) Crimes (Sentencing Procedure) Act 1999 (as it stood prior to 27 May 2019).

The Respondent's Subjective Circumstances

The Respondent was 24 years of age at the time of the offences and 26 years old at the time of sentence.
The Respondent has no prior criminal history.
The sentencing remarks set out significant aspects of the Respondent's life and background. The sentencing Judge referred to the Respondent's early life at [5]-[6]: "5 Evie Amati was born male and named Karl Amati in Perth on 1 May 1992 to parents to Melanie Booth and Michael Amati. She grew up in Leederville in the inner city of Perth. She had a close relationship with her mother growing up, but a turbulent relationship with her father. She had an awareness of gender dysphoria at a very young age, recounting '"vivid dreams" of being female when she was 5 or 6. At 15 she recalls "coming out" about gender identity to her then girlfriend, who thought she was gay. She hid her gender identity for the remaining years of high school. 6 She attended Shenton College from years 7 to 10. She excelled academically, achieving an ATAR score of 99.40 in 2010, placing her in the top 1% of the State. She was selected in the WA School Debating Squad, and won the WA English literature prize. She was bullied by her peers. During her final year of high school, with her mother's financial assistance, she moved in with her girlfriend. She attended school sporadically at this time, struggling with feelings of depression and experiencing bullying at school."
His Honour then traced the Respondent's life history between 2010 and 2016, saying at [7]-[10]: "7 She moved to Sydney in 2010, at age 17, following the completion of her final exams. She commenced employment with the Community and Public Service Union (CPSU). 8 In 2011, she commenced studies at Sydney University in a combined Arts/Law degree. Again she excelled, winning a number of awards including the Sir Walter Reid Memorial Prize for Excellence in Arts and Law in 2011 and the John Kenneth Galbraith Prize for Economics II in 2012. She started her physical transition from male to female in 2012 when she began taking feminizing hormones. 9 She dropped out of university mid-way through her third year, citing ongoing depression and reported self-consciousness about the attention she received from peers when she commenced expressing her gender identity. She travelled to Thailand for gender reassignment surgery in 2016. The surgery went well, however the post-surgical process of ongoing dilations was arduous and extremely painful. 10 She was first treated for depression by her GP in 2012. Her diagnoses became more severe and from 2012 to 2016 her Sertraline anti-depressant medication increased from 25mg to the maximum 200mg daily. In July 2016 she was taken to hospital after being found at St Peters station, intending to jump onto the railway tracks. She presented to Cumberland Hospital with suicidal thoughts in August 2016."
His Honour referred to a six-month period before the commission of the offences in January 2017 at [11]: "In the six months preceding the offence she had separated from her partner of two years, Tara, and her band had disintegrated. She was living alone and her social sphere had collapsed. She found work to be an escape from her depression."
Prior to her arrest in January 2017, the Respondent had maintained stable employment as a union delegate with a reference tendered at the sentencing hearing describing the Respondent as being "highly organised and professional at work, showing maturity beyond her years when often dealing with complex and challenging situations" (Alicia Miller reference, 5 December 2018).
The sentencing Judge summarised other subjective evidence at [62]-[63]: "62 I take account of the evidence of the offender's mother at the trial. I also note the reference from Alicia Miller, a work colleague as a union delegate. The parents of the offender have written in heartfelt terms as to the uncharacteristic nature of the offending and the changes that they have observed in the offender while she has been in custody. Mark Cox, a Perth based lawyer and long-term family friend, says that she has always been well balanced, compassionate and considerate apart from this horrible incident. Family friends Anna Kanaris and Arthur Clarke speak in similar terms. Sabrina Klinger, accountant and next-door neighbour, has known the offender since 2002, and speaks of her in favourable terms. 63 This material and the other evidence establishes, as Mr Waterstreet submits, that she was a sympathetic, empathetic and consistent worker for several years, regarded as a person of good character with high intelligence and ability. It also shows that she suffered a form of depression for some time during her childhood and adolescence in Perth, and after coming to Sydney she experienced a deteriorating mental health profile without offending."

The Psychiatric Evidence

The Respondent proceeded to trial with respect to these charges with the sole issue being whether the defence of mental illness had been made good. At the trial, Dr Yvonne Skinner, psychiatrist, gave evidence in the Crown case with Dr Jeremy O'Dea, psychiatrist, and Professor David Greenberg, psychiatrist, giving evidence in the defence case. The sentencing Judge summarised the psychiatric evidence with respect to the Respondent at [52]-[58]: "52 A number of psychiatrists retained for the offender accepted that but for the combination of the offender's mental state and the ingestion of drugs and alcohol on the night of the offending the attacks were unlikely to have occurred. Dr Greenberg and Dr O'Dea identified the relevant mental dysfunction as a drug induced psychosis. Dr Greenberg was at pains to point out that it was a complex interplay of a number of factors without any one factor assuming a dominant role. For the Crown, Dr Skinner was of the view that no psychosis was operative but rather disinhibition in the context of prior aggressive or homicidal fantasies, noting her history of depression, self-harm and mood disorder. Dr Skinner's view placed a greater emphasis on the role played by substance abuse which is, as the Crown submits, arguably more consonant with the verdicts of the jury. 53 As counsel for the offender relies heavily upon the views of Dr Greenberg, they will be referred to in some detail. The history upon which Dr Greenberg proceeds has been adopted by the offender in evidence. It is relevantly summarised in counsel's submissions as involving a depressive disorder present for many years and gender dysphoria since her teenage years. She was never assessed for hormonal medication difficulties before or after gender reassignment surgery which occurred in early 2016. 54 Dr Greenberg notes earlier references to depression and suicidal attempts recorded in the medical material in, for example November 2013, March 2016 July 2016 and August 2016. 55 Dr Skinner, reporting to the Crown for the trial, accepted that the offender had suffered from a long history of episodes of mood disorder. 56 Dr Nielssen was of the view that she had a severe depressive illness, as was Dr Hampshire, who examined the offender within days of the arrest. 57 Dr Greenberg adheres to the view that the offender's mental illness, namely an unstable depressive disorder, was the most significant factor in her offending, which was completely uncharacteristic. The reasons for her being overwhelmed were multiple and complex. She had undergone sexual reassignment surgery and her feminising hormones had not been reviewed by an endocrinologist. Her depressive moods were aggravated by the use of the feminising hormones. He remains of the view that she was likely intoxicated with a cocktail of prescribed and illicit substances at the time of the offending and she had a brief drug induced psychosis on top of her depressive illness. Together with her use of substances, her perceived feelings of rejection by another female likely exacerbated a more significant relapse of her suicidality and thoughts of homicide as part of her underlying mental illness so that all these factors had a continuing role. Dr Greenberg acknowledges that the extent of the contribution of the mental illness to the offending can only be inferred from her self-report and the available evidence, but his view is that the contribution of the mental illness was the most significant factor in the offending. Notwithstanding the submission of counsel for the offender, it is unnecessary for me make a finding as to whether her depressive disorder was the most significant factor in the commission of the offences. It is sufficient to proceed on the basis that it was one of the factors which were at play. 58 Dr Greenberg considers a number of matters relevant to an assessment of the risk of reoffending including history of previous violence, absence of history of antisocial behaviour, historical relationship instability, stable employment, substance use problems, major mental illness, absence of significant features of psychopathy, a history of problems with traumatic experiences including being teased and bullied at school because of her gender identity, absence of history of violent attitudes, absence of problems with treatment or supervision response, good insight in regard to the role of her substance abuse at the time of the offending, lack of recent homicidal ideation, variable mood in custody with some suicidal ideation, responsiveness to treatment, and her high level of intelligence as a protective factor. Acknowledging that it is somewhat speculative, Dr Greenberg thinks that she has relatively good prospects for rehabilitation and her prognosis is relatively good provided that she can access available treatment in custody to address her depression and associated psychological challenges, to continue with abstinence from all un-prescribed substances and benefit from those interventions. Without addressing those factors her risk would likely be higher."

Some Findings of the Sentencing Judge

Early in the sentencing remarks (at [3]), his Honour noted that there was no dispute about the circumstances of the offences or the Respondent's life history which was to "be borne in mind in the sentencing process as it provides the basis for the principal argument for the offender, namely that moral culpability should be reduced due to her subjective circumstances".
Whilst addressing the objective seriousness of the offences, his Honour rejected (at [39]) the defence submission "that the dominant cause of the conduct and behaviour was the underlying medical condition". His Honour made the following express findings with respect to objective seriousness at [40]-[42]: "40 In each case there are a number of common factors bearing on objective seriousness. First, while the use of illicit drugs was a significant factor, it is likely that the offender's underlying mental conditions also contributed to her behaviour. Secondly, in each case the offender used a 4.5 pound axe to strike at the victim with force using an implement which by its very nature is dangerous and well capable of killing or inflicting serious injury. Thirdly, the offending involved a degree of premeditation and planning, namely the offender arming herself with a knife and axe and walking 450 m to the convenience store. Fourthly, the likelihood of death in each case was very high. 41 Both Mr Rimmer and Ms Hacker were struck when they were not looking rendering them more vulnerable to serious harm. Further, in both cases the injuries sustained were substantial and have long-lasting consequences. As to Mr Redwood, the attempt did not involve the infliction of actual physical injury due only to his self-defence with a backpack, but he was vulnerable given his physical disabilities. 42 In those circumstances, Counts 1 and 3 fall above mid-range of objective seriousness and Count 5 is in the mid-range."
His Honour noted (and apparently accepted) the Crown submission that there was evidence of a history of mental illness including major depressive order, substance-induced depression, self-harm, suicidal and homicidal ideation and gender dysphoria so as to invoke the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [43]; [2010] NSWCCA 194 at [177]. In accordance with authority and the Crown submission, his Honour accepted (at [44]) that the jury's rejection of the defence of mental illness did not preclude consideration of the Respondent's mental conditions in the sentencing process. His Honour continued at [45]-[46]: "45 As counsel for the offender submits, the psychiatric evidence is relevant to a number of factors including risk of reoffending, extent and severity of her condition, the extent of the condition at the time of the offence and its contribution to the offence, the prospects of treatment and rehabilitation, the need to engage in programs and the availability and relevance of social support. 46 However it remains necessary to assess and weigh appropriately the importance of the protection of the public: R v Lawrence [2005] NSWCCA 91 at [23]-[24]; R v Israil [2002] NSWCCA 255. Self-induced intoxication by illicit drugs and alcohol is not a factor in mitigation as set out in section 21A (5AA) of the Crimes (Sentencing Procedure) Act."
The sentencing Judge referred to the sentencing assessment report dated 7 December 2018, noting at [48]-[51]: "48 She has maintained positive relationships with the parents and sister who live in Western Australia. She intends to live on the South Coast upon release. She has been in regular employment while in custody and has received positive feedback. The Corrective Services records confirm her good behaviour in custody. 49 She continues to report having no memory of committing the offences, but remembers experiencing homicidal auditory hallucinations, visions and feeling scared. She demonstrated insight into her behaviour by describing the offences as "monstrous" and feeling disgusted by her actions. She also demonstrated insight into the impact of her offending on the victims, describing her actions as "catastrophic" and that she had apologised and expressed remorse. She recognised the link between her mental health, medications and the dangerous combination of these issues coupled with alcohol and illicit substances. 50 She had commenced experimenting with alcohol and other drugs after moving to New South Wales. Before the offending she was binge drinking on weekends, smoking cannabis daily and using MDMA or LSD on a recreational basis. On the night of the offences she had smoked cannabis, consumed alcohol and taken MDMA. 51 While in custody she has participated in the Remand Addictions Program which is a 20 session program covering a number of topics. She has also completed the Salvation Army Positive Lifestyle program and sessions of "Real Understanding of Self-Help" (RUSH). Corrective services records demonstrate a strong work ethic while in custody."
After summarising the psychiatric evidence, the sentencing Judge said at [59]: "As counsel for the offender submits (and the Crown concedes, to an unspecified extent), the long history of mental illness reduces to some extent her moral culpability and consequently reduces the need for general and specific deterrence as well as the extent to which she is made accountable for her actions."
With respect to the Respondent's prospects of rehabilitation, his Honour said at [60]: "The evidence establishes that the offender's mental state has improved while in custody in the absence of illicit drug use. She has no prior convictions, which of course is a matter to be taken into account in mitigation, and she has significant family support. She is well educated, articulate and intelligent. Community Corrections assessed her as having a medium to low risk of reoffending. I accept her prospects of rehabilitation are good, particularly if mental issues arising from hormone therapy are adequately controlled."
His Honour addressed aggravating and mitigating factors at [61]: "No aggravating factors have been identified in submissions, and none are apparent beyond matters which are elements of the offence. However, in mitigation I note her prior good character, lack of previous convictions, expressions of remorse and reasonably good prospects of rehabilitation."
His Honour referred to victim impact statements made by Mr Rimmer and Ms Hacker, noting at [66]-[67]: "66 The TV footage shows Mr Rimmer having an apparently innocent conversation with the offender in the vicinity of the cash register of the store. As he turned away slightly to pay for his purchases she swung the axe violently, striking him across the face. He underwent facial reconstruction surgery and one of his biggest challenges is accepting his altered physical appearance which causes him distress every time he looks in the mirror. He remembers lying on the ground and thinking he was going to die and never see his pregnant wife again or meet his son. He was subject to intense media scrutiny and had to watch the horrific TV footage many times. He describes symptoms which are well recognised as being consistent with a type of post-traumatic stress disorder, although it is unnecessary for me to make any particular finding on that issue. 67 Ms Hacker suffered orthopaedic injuries to her neck and lost the use of her hand for some time. She has continuing pain, disturbed sleep and requires medication and ongoing treatment. She also describes a number of psychological symptoms which are clearly consistent with sequelae from a major traumatic event."
His Honour accepted that the Respondent's time in custody had been and would be in the future "more onerous than usual due to her gender status and the antagonism expressed by female inmates" (at [68]).
With respect to accumulation and totality, the sentencing Judge said at [69]: "A degree of accumulation is necessary to reflect individual criminality in each of the three offences, all of which are very serious and of which involve different victims, even though they were part of one relatively brief episode of criminality."
His Honour made a finding of special circumstances given the Respondent's relatively young age, prior good record and the need for rehabilitation with regard to both mental health and drug issues (at [70]).
Before imposing sentence, the sentencing Judge expressed his conclusions at [72]-[77]: "72 In summary, the Crown position was that the offending was a very serious and confronting episode and an appropriate sentence should reflect not only the substantial maximum penalties but also the very real impact it has had on the three victims, in particular Mr Rimmer and Ms Hacker. In short, the offender had used a 4.5 pound axe to strike the head of both Mr Rimmer and Ms Hacker with considerable force, attempting to strike Ms Hacker a second time while she was prone and swung the axe twice at Mr Redwood. The risk of death was high in each of the cases, and the fact that death did not occur was entirely a matter of good fortune in circumstances where the jury's verdicts establish that that was her intention. 73 As the Crown submitted, the offender here ingested what she believed to be a prohibited drug and instead received a similar prohibited drug albeit one that was potentially more potent in some respects. The policy underlying the principles developed in relation to drug addiction in R v Henry (1999) 46 NSWLR 346 emphasise the personal choice that most drug users make. Here the offender was not an addict but a recreational user who willingly ingested what she thought to be a prohibited drug. 74 The Crown submits that, notwithstanding the conceded reduction in moral culpability, a sentence of full-time imprisonment is mandated by the overall synthesis of the circumstances of the case in light of the purposes of sentencing. 75 Counsel for the offender submits that, particularly having served over two years imprisonment, there is a strong case that she and the community would be best served if she were placed back into the community at the earliest opportunity. That is partly based on asserted lack of opportunities to consult with endocrinologists, psychiatrists or general practitioners. Counsel appears to submit that an intensive corrections order for three years may be appropriate and refers to the ACT case of R v Gabriela Woutersz [2018] ACTSC 36. 76 Mr Waterstreet ultimately submitted that the disastrous downfall that led to these offences has been addressed in all its complexity by the offender, that her mental illness lessens the significance of the standard non-parole period, that the scale of seriousness can be, to a large degree, addressed in the offender's favour, and that while the objective facts are clearly shown in the CCTV footage, the chaos and disorder within her mind would significantly ameliorate moral culpability for the very serious injuries that her behaviour caused. 77 There is merit in that position, but not sufficient merit to detract from the conclusion that this is a case in which a significant period of full-time imprisonment is required. To elevate the mental illness to a paramount position, as is effectively put on behalf of the offender, would largely ignore the purposes of sentencing and would not be an appropriate result of the process of instinctive synthesis of the objective and subjective circumstances bearing in mind the purposes of sentencing to which I have referred."
His Honour then proceeded to nominate indicative sentences and impose an aggregate sentence as indicated earlier in this judgment.

Submissions on the Appeal Crown Submissions

The Crown did not challenge the findings made by the sentencing Judge with respect to the objective gravity of the offences and features of the Respondent's subjective case, with these findings involving essentially acceptance of Crown submissions made at first instance. The Crown submitted that a manifestly inadequate aggregate sentence had been imposed with explanations for this flowing from a combination of reasons, including very lenient indicative sentences, insufficient partial nominal accumulation and an excessive allowance for special circumstances.
The Crown emphasised that the three offences for which the Respondent was to be sentenced involved a jury finding that the Respondent intended to kill each of the three victims.
The Crown noted the finding that the offences involving Mr Rimmer and Ms Hacker were "above mid range of objective seriousness". It was submitted that, given this assessment of objective seriousness (which was appropriate), and taking into account the maximum penalty and standard non-parole period, together with the injuries inflicted on the two victims, the fact that they were members of the public lawfully going about their business in a publicly available store and the absence of any discount for a plea of guilty, the indicative sentence with respect to each of these offences was not open notwithstanding the Respondent's strong subjective case.
With respect to the offence against Mr Redwood, which his Honour found to be a mid-range offence, the Crown submitted there was an excessively lenient indicative sentence having regard to all factors applicable for that offence.
The Crown submitted that the aggregate sentence was manifestly inadequate and demonstrated an erroneous approach to partial notional accumulation and totality.
Finally, the Crown submitted that the ratio of non-parole period to head sentence of 50% was indicative of error especially where the aggregate head sentence was one of nine years' imprisonment.
The Crown submitted that manifest inadequacy had been demonstrated and that consideration of the residual discretion should not stand in the way of the Court intervening and resentencing the Respondent. Submissions for the Respondent
Mr Lange, counsel for the Respondent, submitted that the aggregate sentence was open to the sentencing Judge in all the circumstances of this case. He submitted that these were highly unusual circumstances having regard to the combination of factors operating upon the Respondent's thought processes at the time of the offences. Even though there were three offences, it was submitted that the indicative sentences and the ultimate aggregate sentence did not indicate error on the part of the sentencing Judge.
Mr Lange submitted that the sentencing Judge had effectively adopted the submissions of the Crown upon sentence as to objective gravity of the offences and the relevance of factors bearing upon the Respondent's mental state including intoxication.
Insofar as the Crown sought to rely upon Hitchcock v R [2016] NSWCCA 226 as a useful comparative case, Mr Lange submitted that the circumstances in that case were quite different given an extended period of planning before the commission of the offence of wounding with intent to murder.
It was submitted that there were powerful subjective factors which applied to this case so that the sentence of imprisonment did not disclose error.
Counsel submitted that the appeal ought be dismissed.

Decision

The present case is an unusual one in a number of respects. The Respondent was to be sentenced for three offences which involved an intention to murder complete strangers by use of an axe. Two of the victims were injured, and could easily have been killed, in circumstances where there were attempts to murder Mr Rimmer, and then Ms Hacker, with a heavy bladed weapon.
Mr Redwood was attacked in the street and fortunately did not suffer any physical injury despite the Respondent's attempts to kill him with the axe.
The elements of the crimes for which the Respondent was to be sentenced lie at the forefront of the sentencing decision in this case. The Respondent was not to be sentenced for the alternative counts contained in the indictment which charged offences of wounding Mr Rimmer and Ms Hacker with intent to cause grievous bodily harm contrary to s.33(1)(a) and (b) Crimes Act 1900 (Counts 2 and 4). Given the verdicts of guilty on Counts 1 and 3, those counts were to be put to one side.
The attacks upon Mr Rimmer and Ms Hacker are captured on CCTV footage, the contents of which are chilling and confronting.
Having succeeded in striking both Mr Rimmer and Ms Hacker to the head with the axe causing injuries to them, the Respondent then attacked Mr Redwood, an elderly homeless man on the other side of the street. Fortunately, Mr Redwood was able to fend off the attack but, as his evidence makes clear, the experience was frightening.
That the jury was satisfied beyond reasonable doubt that the Respondent intended to kill each of Mr Rimmer, Ms Hacker and Mr Redwood is entirely understandable given her choice of weapon and her messages to Ms Jahnsen expressing homicidal thoughts which were communicated a short time before she set out on her journey on foot to the convenience store, a place where victims were to be found in the early hours of the morning. Comparative Sentences for s.27 Crimes Act Offences
For the purpose of assessing a submission that the sentence imposed in this case was manifestly inadequate, it is appropriate to have regard to other decisions of this Court where sentences for s.27 offences have been considered. Although caution is required in considering the sentences imposed in other s.27 cases, they remain useful given the relatively small number of s.27 offences for which courts have imposed sentences. As will be seen, it is not uncommon for s.27 offences to be committed by persons who were, at the time, experiencing a significant mental disorder and had no prior criminal history.
Although there have been sentencing decisions for offences under s.27 Crimes Act 1900, there is no authority, to the Court's knowledge, where a person stood to be sentenced for three s.27 offences committed against three victims such as the present case.
In considering the cases, it will be necessary, as well, to keep in mind that the standard non-parole period of 10 years applies only to s.27 offences committed since 2003.
In R v Thew (Court of Criminal Appeal, unreported, 25 August 1998), the Court allowed a Crown appeal with respect to two counts of attempted murder under s.27 Crimes Act 1900. The respondent, who had no prior convictions and was in a significantly depressed state, placed his daughters aged eight years and 14 months in a vehicle and attempted to poison them and himself with carbon monoxide. The older girl freed the younger girl and obtained assistance. The respondent pleaded guilty to the charges. The sentencing Judge imposed concurrent terms of penal servitude for five years and nine months with a non-parole period of two years and three months. The central issue on the Crown appeal was whether the sentencing Judge had taken sufficient account of the objective gravity of the offences.
Sheller JA and McInerney J allowed the Crown appeal and the respondent was sentenced to terms of nine years penal servitude with a non-parole period of five years to be served concurrently. In the leading judgment of the Court, Sheller JA observed that "This is less than I would have imposed but for the element of double jeopardy to which the respondent has been exposed". Sheller JA relied upon R v Dodd (1991) 57 A Crim R 349 at 354 concerning the need for reasonable proportionality between the sentence and the circumstances of the crime. His Honour considered that the description of the offences in the remarks of the District Court Judge was "quite overborne in his reasons by the lengthy investigation of the respondent's state of mind and its effect on him". Sheller JA observed that "The respondent committed two offences, each vile and inhuman and hardly the less so because he planned to kill himself at the same time".
In R v Rae [2001] NSWCCA 545, the Court (Giles JA, Sully and Levine JJ) dismissed a sentence appeal against a sentence of imprisonment for 19 years and eight months with a non-parole period of 14 years and nine months for a s.27 offence of causing grievous bodily harm with intent to murder. The applicant had pleaded guilty to an offence which involved an attack upon his former domestic partner. The applicant poured petrol on the victim and set her alight. The applicant had no prior criminal history and was described as a highly intelligent person.
In R v Macadam-Kellie [2001] NSWCCA 170, the Court (Greg James J, Wood CJ at CL agreeing) allowed an appeal against sentence imposed for a s.27 offence of wounding with intent to murder the applicant's estranged spouse. At first instance, the applicant was sentenced to imprisonment for 16 years with a non-parole period of 12 years. The applicant had stabbed his estranged wife outside the Family Court in the course of proceedings between them in that Court, and at a time when an apprehended violence order operated to protect her. The Court found that the sentencing Judge had given insufficient weight to the substantial psychiatric evidence before the District Court diagnosing a major depressive illness and personality disorder. Greg James J held (at [62]) that error had been shown arising from the sentencing Judge's failure to accept "the undoubted link between the major depressive illness and the crime". The applicant had pleaded guilty to the offence and received a 15% discount which was applied again on resentence. The appeal was allowed and the applicant was resentenced to imprisonment for 15 years with a non-parole period of 11 years.
After identifying the proposed sentence, Greg James J said at [64]: "… I would be minded to pass a sentence as severe as this notwithstanding the major depression and its link with the commission of the offence in that the objective criminality calling for a substantial element of general deterrence otherwise than as is affected by the mental condition of the applicant is so high."
In R v Quach [2002] NSWCCA 173, the Court (O'Keefe J, Smart AJ agreeing) dismissed an appeal against sentence for a single s.27 offence of causing grievous bodily harm with intent to murder where a sentence of imprisonment of nine years with non-parole period of five years was passed. The applicant had no prior criminal history and was 42 years old at the time of the offence. The applicant suspected (wrongly) that his wife was having an affair and attacked her with a bottle whilst restraining her and accusing her of having disrespected him. Psychiatric evidence was adduced at the sentencing hearing which indicated a major depressive disorder, but the evidence did not indicate a causal relationship between the depressive illness and the offence.
O'Keefe J observed at [20] that the sentence imposed and the non-parole period "were very lenient given the objective gravity of the offence and taking into account the subjective features of the applicant".
In the course of dismissing the appeal (including a ground which asserted manifest excess of sentence), O'Keefe J referred to statistical information concerning s.27 offences committed prior to 2002. His Honour said at [42]-[43]: "42 An examination of the statistics based on 19 cases (one of which is the present case) in relation to offences under s.27 of the Crimes Act shows the following: 1. A custodial sentence was imposed in 100% of the cases. 2. A total of 86% of the full term of the sentences imposed fell between 8 and 14 years. 3. Only 16% of the sentences imposed were below 9 years. 4. In 48% of the cases the non-parole periods (or equivalent) fell between 5 and 7 years, with 5 years being the minimum non-parole period fixed. 43 The above statistics show that the sentence imposed by the trial judge fell towards the lower end of the scale notwithstanding the seriousness of the circumstances in which the offence was committed."
The cases to be considered from here involve offences committed after the standard non-parole provisions came into operation in 2003.
In R v Zegura [2006] NSWCCA 230, the applicant had pleaded guilty to a s.27 offence of wounding his former partner with intent to murder. The applicant had a prior criminal history and was 24 years of age at the time of the offence. Psychiatric evidence was given at the sentencing hearing with the presiding Judge concluding that the applicant "may have had some mental condition at the time of the offences which caused him to have more rigid beliefs than normal". At first instance, the applicant was sentenced for the s.27 offence to imprisonment for eight years and six months with a non-parole period of six years. On a Crown appeal, the Court (Hoeben J, McClellan CJ at CL and Kirby J agreeing) allowed the Crown appeal with respect to an aspect of accumulation with concerning another offence for which the offender was sentenced. The sentence for the s.27 offence remained the same as that imposed in the District Court.
In Little v R [2010] NSWCCA 210, the applicant was sentenced for several offences of violence including an offence of causing grievous bodily harm with intent to murder under s.27 Crimes Act 1900. That offence was committed against a correctional officer inside a correctional centre by the applicant who was an inmate. The applicant pleaded guilty to the offences. For the s.27 offence, the applicant was sentenced to imprisonment for 20 years and six months with a non-parole period of five years and three months. The Court (Hall J, Macfarlan JA and Simpson J agreeing) dismissed the appeal observing that the s.27 offence could be characterised aptly as being in "the worst case category".
In R v Da-Pra [2014] NSWCCA 211, the Court considered a Crown appeal against sentence for offences of murder and causing grievous bodily harm with intent to murder. The sentence imposed at first instance for the s.27 offence comprised imprisonment for a term of six years with a non-parole period of four years and six months. The offence occurred in the circumstances of the applicant being found guilty by a jury of the murder of a 12-year old girl who lived next door and the s.27 offence committed against the girl's grandmother. On the Crown appeal, the Crown did not challenge the proposition that the respondent's mental illness was a highly relevant matter to be taken into account on sentencing and it was accepted that it did serve to greatly mitigate the sentence that would otherwise have been appropriate (at [454]). R A Hulme and Bellew JJ referred at [456] to Judicial Commission statistics concerning s.27 offences: "Judicial Commission sentencing statistics were also relied upon in relation to the sentence for the attempted murder of VW. They indicated that since the introduction of the standard non-parole period for this offence in 2006, non-parole periods imposed have ranged from 4 years and 6 months up to 16 years. The one non-parole period of 4 years and 6 months imposed involved an offender who had pleaded guilty. The respondent received such a non-parole period following his plea of not guilty in respect of the offence in count 3."
In approaching the relevance of past sentencing decisions, R A Hulme and Bellew JJ observed at [457]: "Care is obviously required in relation to the consideration of past sentencing decisions. The correct approach was described by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa; an approach endorsed by the High Court of Australia in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]. Her Honour said: '[303] A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. [304] But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned: Wong and Leung, at [59]. [305] In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender...'."
R A Hulme and Bellew JJ said at [461]-[462]: "461 We are persuaded that the sentence imposed in this case for the attempted murder of VW was demonstrably inadequate. Putting to one side for the moment the respondent's mental illness, the physical attributes of the offence renders it one that can also be described as falling little short in culpability of the completed offence. Ms W was extremely fortunate not to have succumbed to an attack by an intruder into her home in which death was clearly intended and thought by the respondent to have been achieved. 462 Allowing full weight for the mitigating factors that need to be brought into account for the respondent's prior blameless life and his mental illness (reduced moral culpability; little weight to general deterrence; and, we accept, more onerous custodial conditions) but giving greater emphasis than the primary judge gave to personal deterrence, respect for the legislative guideposts of the maximum penalty and the standard non-parole period demanded that a significantly greater sentence be imposed."
In resentencing the respondent for the s.27 offence, the Court imposed a sentence of imprisonment for 10 years with a non-parole period of seven years and six months.
R A Hulme and Bellew JJ referred to the use of other s.27 sentencing decisions at [458]-[460]: "458 The respondent challenged the Crown's reference to other cases and provided a useful summary of a variety of ways in which they were distinguishable. It may be readily accepted that they are distinguishable; that is apparent from the fact that they all brought sentences substantially exceeding those which were imposed in the present case. 459 One particular case the Crown referred to in relation to attempted murder bears attention: Cvetkovic v R [2013] NSWCCA 66. It involved a man who was estranged from his wife. One day after they met to discuss a financial settlement they were in a car together when he produced a 'gyprock saw' and stabbed her at least 30 times from which she miraculously survived but required over 9 hours of surgery and was left with ongoing physical and psychological harm of significant severity. The offender was convicted after trial. Two eminent forensic psychiatrists found he was suffering from depression; Dr Bruce Westmore diagnosed a major depressive illness which appears to have been accepted by Dr Nielssen. However, there was found to be no error in the sentencing judge finding that this did not mitigate the offender's conduct to any great degree. 460 McCallum J (with the concurrence of Price and Schmidt JJ) (at [87]) endorsed the sentencing judge's finding that 'this was a very serious offence falling little short in culpability of the offence of murder'. A sentence of 17 years 4 months with a non-parole period of 13 years was found to be 'stern' but not outside 'the proper range'."
In Shine v R (2016) 260 A Crim R 534; [2016] NSWCCA 149, the Court allowed a sentence appeal where a 58-year old offender was sentenced for a single count of causing grievous bodily harm with intent to murder under s.27 Crimes Act 1900. The applicant was sentenced, at first instance, to imprisonment for 12 years with a non-parole period of seven years and six months. The applicant had pleaded guilty to the offence. The applicant was subject to significant mental illness which it was held affected his moral culpability with respect to the offence. The applicant attacked the victim with a knife under the deluded belief that the victim posed a threat to the safety of the victim's wife who was a friend of the applicant. The Court of Criminal Appeal (Bathurst CJ, Davies J and R S Hulme AJ agreeing) allowed the appeal and resentenced the applicant to a term of imprisonment for nine years with a non-parole period of five years. In do so, the Court had regard to the applicant's mental illness in reducing his moral culpability and the fact that the custodial sentence would weigh more heavily on him by reason of his mental condition. A 25% discount was allowed for the applicant's plea of guilty.
In Hitchcock v R, after a successful sentence appeal by the offender, this Court imposed for a single s.27 offence of wounding with intent to murder, a term of imprisonment for nine years with a non-parole period of six years. This sentence took into account a 10% discount for a plea of guilty and a 5% discount for assistance. The offender in that case had substantial mental illness and cognitive impairment issues as reflected in the judgments of Hoeben CJ at CL and Harrison J.
Undertaking a similar analysis to that in R v Da-Pra at [456], Judicial Commission statistics for s.27 offences reveal that for sentences imposed from January 2008 to September 2018 (post-Muldrock), there is now a sample size of 31 sentences. In all of these cases, the offender only committed one offence contrary to s. 27, and the non-parole periods imposed have ranged from 2 years to 16 years and 6 months (Tregeagle v R [2016] NSWCCA 106, where an indicative sentence for the s.27 offence was 12 years, with a non-parole period of 8 years' imprisonment).
From that sample, six offenders proceeded to trial, and upon conviction, the non-parole periods imposed have ranged from 4 years' (R v Huynh [2017] NSWDC 126) to 13 years' imprisonment (Cvetkovic v R [2013] NSWCCA 66). In each of these cases, the offenders did not have any prior criminal record.
Examination of these other sentencing decisions fortifies a conclusion that the aggregate sentence imposed in this case was entirely outside any putative range of sentence for three s.27 offences. Indeed, reference to these other decisions points to inadequacy of the indicative sentences as well.
In AM v R [2012] 225 A Crim R 481; [2012] NSWCCA 203, an appeal was brought against sentence imposed for an offence of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s.33(1)(b) Crimes Act 1900. Although not a s.27 offence, aspects of this decision provide some assistance on sentence in the present case. The Court noted (at [70]-[71]) that the extent of injuries sustained by a victim which constitute grievous bodily harm is of significance in assessing the objective gravity of the offence. Other factors relevant to that assessment include the presence or absence of planning and premeditation (at [73]). The fact that a s.33 offence involves an unprovoked, uncalled for and unjustified attack elevated its objective gravity and an attack upon an innocent citizen who was going about his ordinary business was a crime of increased seriousness (at [74]). The Aggregate Sentence Imposed was Manifestly Inadequate
The fact that the three offences were committed over a relatively short period of time provides little assistance to the Respondent. These were three deliberate and separate attacks upon different individuals. Each victim believed that he or she was going to die and that, in fact, was the Respondent's intention. The aggregate sentence imposed in this case has the effect that a period of six months only is added to the non-parole period for the indicative sentence for the offence against Mr Rimmer. Where there are two other victims of s.27 offences, this approach bespeaks manifest inadequacy in the sentence.
In R v Gommerson (2014) 243 A Crim R 534 at 552; [2014] NSWCCA 159 at [105]-[106], this Court said: "105 The issues of accumulation, concurrency and totality will arise in a variety of circumstances. 106 Where there are several victims of crimes of violence (including sexual offences), it is important for the sentences actually imposed to recognise the fact that several individuals have been victimised by the offending conduct. Sometimes there may be several victims of the one course of violent conduct, such as persons robbed at the same time (three victims of robbery in a public place as in Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116 at 121 [19]) or two victims detained and terrified by an offender simultaneously (as in Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 at 512-513 [90])."
After referring to R v Hamid (2006) 165 A Crim R 175; [2006] NSWCCA 302 with respect to sentencing for domestic violence offences against several victims, the Court continued in R v Gommerson at [108]-[109]: "108 The decision of this Court in Cahyadi v R [2007] NSWCCA 1; 168 A Crim 41 is referred to frequently with respect to the statement of principle concerning accumulation, concurrency and totality (at 47-48 [27]-[29]). It should be kept in mind that the offences in Cahyadi v R involved dishonesty, money laundering and passport offences, and not crimes of violence or sexual assault. There were no individual victims in that case to whom reference needed to be made. 109 This observation is not intended to dilute the statement of principle in Cahyadi v R. Rather, it is to provide a reminder that other considerations will be brought into play as well when issues of accumulation, concurrency and totality arise with respect to crimes of violence, including domestic violence (Vaovasa v R; Jeffries v R; R v Hamid) and sexual assault offences involving several victims (R v Brown; Doyle v R; R v Doyle)."
It was necessary that the aggregate sentence imposed actually reflect the fact that his Honour had regard to the important sentencing factor in s.3A(g) Crimes (Sentencing Procedure) Act 1999 to recognise the harm done to the victims of the crime and the community. In reality, the aggregate sentence did not recognise in any real way the harm done to Ms Hacker and Mr Redwood who were victims of these serious crimes.
It is necessary to keep in mind, as well, that the Respondent had proceeded to trial, as was her right, with the consequence that there was no entitlement to a discount for a plea of guilty.
The Respondent had a powerful set of subjective circumstances to be taken into account. She is an intelligent person with a troubled history which has given rise to mental health issues and presented her with clear difficulties in her life. It appears that she was able to maintain employment regularly despite these circumstances so that her mental health problems were, in a sense, reactive to circumstances which loomed from time to time.
By the early hours of 7 January 2017, the Respondent was significantly intoxicated as a result of her voluntary use of alcohol and drugs, a factor which the sentencing Judge rightly observed could not operate in her favour (R v Amati at [46]). There was a convergence of factors which influenced the Respondent leading to her, in a form of anger, going out into the street in search of a person or persons to kill.
It should be stressed that what Ms Jahnsen said or did was reasonable and supportive of the Respondent. However, in an intoxicated and upset state, the Respondent set out to inflict homicidal violence directed towards strangers. She armed herself with an axe and a knife. This is not a case of violence by way of assaults or even more serious non-homicidal attacks. She came upon two complete strangers in the convenience store and made concerted efforts to kill each of them with that being her intention. Very significant injuries were inflicted on one of them with the other being physically and mentally scarred as a result of the incident. The attack on the third person in the street was terrifying, although fortunately did not involve any physical injury. These were features of the objective gravity of these offences that needed to be reflected, not just in the words of the sentencing Judge, but in the outcome in the form of the aggregate sentence imposed and the indicative sentences relating to each offence. That did not happen in this case.
I have kept in mind the particular constellation of issues which affected the Respondent at the time of these offences. I do not seek to understate the difficulties affecting her as a result of gender dysphoria and associated mental health difficulties including depression. Whilst giving substantial weight to evidence concerning the Respondent's mental health issues, so that there is a reduction in moral culpability, it remained necessary for the objective gravity of each of these offences to be reflected tangibly in the indicative sentences, and then the aggregate sentence to be imposed reflecting the totality of her crimes. It is necessary that there be reasonable proportionality between a sentence and the circumstances of the crime or crimes viewed objectively: R v Dodd at 354. I am satisfied that the sentencing Judge was diverted by the Respondent's undoubtedly strong subjective circumstances so as to impose a sentence that did not reflect the serious objective gravity of the three offences which she had committed: R v MD (2005) 156 A Crim R 372 at 387; [2005] NSWCCA 342 at [65]; R v Carroll (2010) 77 NSWLR 45 at 59-60; [2010] NSWCCA 55 at [62] (applying R v Dodd).
There is merit in the Crown submission that the 50% ratio selected by the sentencing Judge as between the non-parole period and the head sentence fortifies the conclusion that the aggregate sentence is manifestly inadequate. This is especially so when the non-parole period for these three offences is a period of four-and-a-half years only. It is very difficult to see how a non-parole period of that length could constitute an appropriate minimum period for the Respondent to spend in custody for her offences in accordance with the principles in R v Simpson (2001) 53 NSWLR 704 at 718; [2001] NSWCCA 534 at [65] and R v GWM [2012] NSWCCA 240 at [118].
There was a substantial disconnect between the sentencing Judge's findings and the aggregate sentence and the non-parole period ultimately fixed: R v Hall [2017] NSWCCA 313 at [103]. The sentencing Judge allowed the Respondent's subjective factors to overshadow almost entirely the objective gravity of these serious offences.
Manifest inadequacy is a conclusion. Intervention on the ground of manifest inadequacy is not justified simply because the result reached at first instance is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, this Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons: Hili v The Queen (2010) 242 CLR 520 at 538-539; [2010] HCA 45 at [59]. It may be taken that there will be a range of possible sentences that could be imposed by a sentencing Judge without error: AB v The Queen (1999) 198 CLR 111 at 128; [1999] HCA 46. However, in my view, it has been demonstrated that the aggregate sentence lies clearly outside the range of sentences properly available, in all the circumstances of this case, for three s.27 offences.
I am satisfied that the Crown has made good its claim that the aggregate sentence imposed upon the Respondent was manifestly inadequate.

The Residual Discretion

If the Court found error, Mr Lange read the affidavit of the Respondent sworn 24 July 2019 for the purpose of the appeal. The Crown read the affidavit of Steven Thomson sworn 25 July 2019 which dealt with some issues raised in the Respondent's affidavit.
Mr Lange submitted that the Court should dismiss the appeal having regard to the continued progress of the Respondent in custody and the ongoing difficulties which she is experiencing of the type referred to by the sentencing Judge given the attitude of some female prisoners towards her. It was submitted, as well, that it was not necessary for the Court to intervene in what was a very unusual case which would not provide guidance with respect to any broader category of cases.
The Crown submitted that this is a proper case for the Court to intervene and resentence the Respondent. There had been no delay in the bringing of the appeal and no conduct on the part of the Crown which gave rise to any difficulty for the Crown at first instance.
The Court having found error in the form of manifest inadequacy, it remains for the Crown to satisfy the Court that the residual discretion to decline to intervene and resentence the Respondent should not be exercised in this case: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.
There was no delay in the institution of the Crown appeal or the service of the Notice of Appeal upon the Respondent. Nor is there any feature in the way that the proceedings were conducted at first instance which operates against the Crown with respect to the residual discretion.
It is appropriate to take into account the continuing difficulty which the Respondent is experiencing in custody, as outlined in her affidavit of 24 July 2019, with those matters being essentially confirmed in the affidavit of Mr Thomson. It remains the fact, however, that a manifestly inadequate aggregate sentence was imposed for three very serious crimes. The sentence imposed significantly failed to reflect the criminality involved in the Respondent's offences.
It has been said that the primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v the Queen (2011) 244 CLR 462 at 465-466; [2011] HCA 49 at [1]-[2]. I have reached the clear view that the aggregate sentence imposed in this case was manifestly inadequate. These were serious crimes committed against three separate victims with the intention to kill. It is in the public interest that an appropriate sentence be imposed upon the Respondent.
An important part of the jurisdiction to hear Crown appeals is to ensure the maintenance of public confidence in the administration of justice. In Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, McHugh J said at 306: "Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice."
The present judgment draws together a number of sentencing decisions with respect to s.27 offences which assist an understanding of the range of sentences for this offence. It is appropriate for the Court to proceed to resentence the Respondent. This will serve to maintain public confidence in the due administration of justice.
I am satisfied that it is appropriate to proceed to resentence the Respondent for these offences.

Resentencing the Respondent

In resentencing the Respondent, the Court should have regard to and apply nearly all the findings made by the sentencing Judge at first instance. The offences committed against Mr Rimmer and Ms Hacker were above the mid-range of seriousness. The offence committed against Mr Redwood was in the mid-range of seriousness. It is appropriate to have regard to the evidence concerning the Respondent's mental state and history of mental illness.
It must be kept in mind, as well, that on the night in question, she was intoxicated by the voluntary ingestion of alcohol and drugs with this aspect to be approached in accordance with the principles acknowledged by the sentencing Judge, including s.21A(5AA) Crimes (Sentencing Procedure) Act 1999 and the principles in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. That is not to say that the unusual interaction of factors which operated upon the Respondent on this night are to be substantially diminished. However, the findings of the sentencing Judge were that the Respondent was setting out, in response to perceived (but not actual) rejection, to murder persons with weapons which she had selected for that purpose. She made a concerted effort to murder each of Mr Rimmer and Ms Hacker with a less effective attack following against Mr Redwood.
With respect to the Respondent's risk of reoffending, it is necessary to keep in mind the magnitude of the crimes for which she is to be sentenced. There is a prospect that a person who has acted in this way on one occasion may act in that way again in the future if the same coincidence of features come together. A sentencing court is entitled to take the circumstances of the offences into account in determining the question of risk of reoffending: Ng v R (2011) 214 A Crim R 191 at 207-208; [2011] NSWCCA 227 at [62]-[64].
However, the evidence before the sentencing Judge, and the further evidence before this Court by way of the Respondent's affidavit of 24 July 2019, confirms the ongoing development of significant insight and the need for care and support with the availability of such care and support in the community at a time when the Respondent comes to be released. It is appropriate to maintain the sentencing Judge's assessment of the Respondent's prospects of rehabilitation and risk of reoffending, whilst keeping in mind that this assessment is dependent upon the Respondent's maintenance of the approach which she has manifested since 2017.
It is appropriate to take into account, as well, the ongoing hardship of the Respondent's custody for reasons identified by the sentencing Judge and in the Respondent's affidavit.
The Court must keep in mind the purposes of sentencing set out in s.3A Crimes (Sentencing Procedure) Act 1999: "3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
The requirement for reasonable proportionality of sentence, having regard to the objective gravity of the offences, is reflected in s.3A(a) being the requirement for adequate punishment. The imposition of adequate punishment must have regard to the other purposes of sentencing which operate in the present case. The Respondent's moral culpability is reduced with respect to her grave offences. It remains necessary that the indicative sentences and the aggregate sentence reflect the need for reasonable proportionality or adequate punishment in all the circumstances of the case.
In sentencing the Respondent, it is necessary for the Court to have regard to s.68A Crimes (Appeal and Review) Act 2001 so that double jeopardy is not to be taken into account on the appeal. The approach to be adopted in this respect was set out in R v Mulligan at [49]-[53].
Having regard to the objective circumstances of the offences and the subjective circumstances of the Respondent, the indicative sentences in this case should be as follows: 1. Count 1 - the s.27 offence against Mr Rimmer - imprisonment for 10 years with a non-parole period of seven years; 2. Count 3 - the s.27 offence against Ms Hacker - imprisonment for nine years with a non-parole period of six years; and 3. Count 5 - the attempted s.27 offence against Mr Redwood - imprisonment for seven years.
The process of notional accumulation undertaken for the purpose of reaching an aggregate sentence must have regard in this case to the various factors referred to earlier and, in particular, the requirement that the aggregate sentence reflect three offences committed with intent to murder three separate victims.
A finding of special circumstances is appropriate by reference to the relative youth of the Respondent and the need for an extended period of supervised liberty at the conclusion of the custodial component of the sentence. The non-parole period should reflect the minimum period for which the Respondent should be held in custody having regard to all factors relevant to the determination of sentence and, in particular, the objective gravity of her crimes: R v Simpson at 718 [63]-[65].
The aggregate sentence of imprisonment in this case should comprise a head sentence of 15 years' imprisonment with a non-parole period of nine years to commence on 7 January 2017.
I propose the following orders: 1. Crown appeal allowed; 2. the aggregate sentence imposed at the Sydney District Court on 18 January 2019 is set aside; 3. in its place, the Respondent is sentenced to imprisonment for a period of 15 years commencing on 7 January 2017 and expiring on 6 January 2032 with a non-parole period of nine years commencing on 7 January 2017 and expiring on 6 January 2026.
HARRISON J: I have had the advantage of reading in draft the judgments of Simpson AJA and Johnson J. I agree that the appeal should be allowed generally for the reasons comprehensively set out by Johnson J. I am, however, unable to agree with the sentence that his Honour would impose. Without descending into the details of what Simpson AJA has in my view accurately described as the "unusual and compelling circumstances of the respondent", which Johnson J has otherwise helpfully recorded, my analysis and assessment of Ms Amati's particularly complex subjective case leads me to agree with the judgment of Simpson AJA and with the sentence that her Honour has proposed.

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