R v Dunn

COUNSEL : Mr RA Hulme- Crown Mr CB Craigie- Applicant SOLICITORS : SE O'Connor- Crown DJ Humphreys- Applicant CATCHWORDS : Severity appeal - Wounding with intent to murder - Wounding with intent to cause grievous bodily harm - Shooting - Mental disorder LEGISLATION CITED : Crimes Act 1900 (NSW) Sentencing Act 1989 (NSW) R v Engert (1995) 84 A Crim R 67. CASES CITED: R v Fahda [1999] NSWCCA 267. R v Scognamilio (1991) 56 A Crim R 81. DECISION : 1. Application granted; 2. Appeal dismissed.

1 STUDDERT J: I will ask Dowd J to give the first judgment. 2 DOWD J: The applicant seeks leave to appeal against the severity of a sentence imposed by Ireland J at Coffs Harbour, on 20 August 1999. This was originally an appeal against conviction and sentence. The current application is however, on severity only. 3 The applicant, who is forty-eight years of age, was charged with wounding with intent to murder, in breach of s29 of the Crimes Act 1900 ("the Act"), and alternatively, with malicious wounding with intent to cause grievous bodily harm, contrary to s33 of the Act. Both offences carry a maximum penalty of twenty-five years imprisonment. 4 The trial took place from 12 to 28 April 1999. A plea of not guilty was entered, the jury finding the applicant guilty of the alternative charge, for which His Honour sentenced the applicant to a minimum term of five years and six months penal servitude, to commence on 16 April 1998, being the date of the offence, and to expire on 15 October 2003. His Honour imposed an additional term of three years and six months imprisonment, to commence on 16 October 2003. The applicant had been in custody since the offence, being the date of arrest. 5 The facts are that at Dorrigo on 16 April 1998, the applicant fired six bullets from a .38 Smith & Wesson revolver at Peter Donnelly, the victim. All of the bullets struck Mr Donnelly in the lower half of his body. 6 The applicant, his wife and daughter, had resided in a home which they had constructed on a rural holding, which was twenty-five kilometres from Dorrigo. Donnelly resided on another similar rural holding next door. 7 Lack of employment in the applicant's field of engineering in the Dorrigo district, obliged him to spend a considerable amount of time away from home. During this period a relationship developed between the applicant's wife and Donnelly. 8 In October 1993, at the applicant's former matrimonial home, Donnelly struck the applicant forcibly with a punch to the face, causing considerable bleeding from the nose. There was a dispute as to how many blows were struck. The evidence of the applicant's friend however, was that the applicant was covered in blood. 9 In the succeeding five years, the applicant saw his daughter on three occasions, the last being on 23 March 1998 in the presence of the school principal, at the school where his daughter was enrolled. The meeting followed the receipt by the applicant of information which suggested that his daughter had been involved in some sort of suicide pact. 10 The applicant was suffering from depression at the time of the shooting, and suffered from a compulsive obsessive disorder. The applicant was of the belief that there had been some sexual interference of the applicant's daughter by Donnelly, it being clear there was no foundation for this belief, and that his daughter was not part of any suicide pact. It was however conceded by the Crown at the trial, that the applicant's psychological condition contributed to his mistaken beliefs. 11 On the day prior to the shooting, the applicant travelled to Armidale with a friend and stayed at a motel, the applicant using an assumed name. On the day of the shooting, the applicant, accompanied by his friend, travelled to Dorrigo where the applicant recognised that Donnelly's motor cycle was parked outside a hotel. The car used by the applicant had had its registration plates replaced by false plates, which had also been altered in part. The applicant wore a peaked cap to which hair was attached, giving the impression that he had shoulder length hair. 12 In addition to the revolver, the applicant had with him a wooden baton and a Bowie knife, the latter being left in the driver's side door of his vehicle. 13 The applicant waited for some hours in his motor vehicle, which was parked in the street in the vicinity of the hotel. At 6.20pm, Donnelly left work, placed his bag in the saddle of the motor cycle, faced the wall of the hotel and commenced to put on his helmet. The applicant drove his motor vehicle across the street adjacent to the illuminated footpath under the hotel veranda where Donnelly was standing, almost parallel to the kerb, the vehicle facing against the flow of traffic. At a range of some four metres, the applicant fired the .38 Smith & Wesson revolver, until the revolver was empty. 14 It was found by the trial judge, that each shot struck the victim, the first in the region of the left hip, the second passing through his right thigh, the third shot struck the left leg, the fourth shot passed through his right leg above the knee, the fifth shot furrowed the victim's back adjacent to his spine. Each of these bullets was a .38 calibre special Winchester cartridge with a copper jacketed solid lead bullet. The sixth bullet propelled Donnelly through the door of the hotel, it being a .38 calibre special cartridge loaded with lead pellets, described as "rat shot", which caused multiple wounds to the victim's upper left leg and buttocks. None of the bullets in fact struck a major blood vessel or bone structure, to the extraordinary good fortune of Mr Donnelly. 15 In the trial, self-defence, which was relied on was implicitly rejected by the jury. It is put by Mr Craigie, on behalf of the applicant, that His Honour should have found only one of the limb of the self-defence defence. However, it is pointed out by the learned Crown that, during the course of the hearing, Mr Gelbart, who appeared for the applicant in the sentencing process, said that there was no doubt that regardless of the applicant's concern, nothing excused him presenting to Dorrigo on this day armed and shooting this man, giving the verdict brought down by the jury. 16 In my view, His Honour was entitled to make the finding that both limbs of the defence of self-defence were not available. His Honour was correct in finding that self-defence was not found. 17 The applicant then sped away from the scene in his vehicle. He told the police, who stopped him, that the lights on his car which were off were not functioning. His Honour found this, obviously, to be an incredible story. 18 At the time of sentence, the applicant was forty-seven years of age, he had had an unhappy marriage, which he had retained for the sake of his daughter. The applicant had suffered a mild stroke in 1997. He had a family history of suicide and alcohol. The applicant had a long medical history, including tropical sprue, fatigue and back pain, and an old right cortical lesion, with no evidence of recent infarct, haemorrhage or lesion which could have been caused at the time to which I have referred, that he was struck by Donnelly, but this was not proven. 19 In sentencing, His Honour found that evidence from Mr Cipriani was that the applicant was of very superior intellectual ability, consistent with his education and occupation. There was also evidence from a Dr Thomas Clarke, a forensic psychiatrist, which was given at the trial and on sentence. His evidence was that the electroencephalogram showed no acute brain lesions, and was indicative of a picture seen in immature rather than people of the applicant's age. He agreed that the old brain lesion could have been caused by blows to the head. There was evidence that there was no sign of psychosis, that the applicant had good thought systems, and that he was of good intelligence. 20 His Honour, the sentencing judge, found that his diagnosis of the applicant was of a longstanding depressive illness in a person who had an obsessive compulsive personality disorder. 21 As well as his mechanical engineering skills, the applicant is qualified as a marine engineer and has had related engineering experience. Most importantly he was found to be a person of good character without criminal antecedents. 22 His Honour sentenced the applicant specifically on the basis that the intention of the applicant was to disable Donnelly. His Honour found that it was a violent, premeditated and planned crime, and that there were attempts to disguise the applicant and his vehicle. His Honour however, made findings on the basis of the physical and mental health of the applicant, and accepted that the applicant's obsessions were genuinely held, but that they were without foundation. 23 In sentencing the applicant, his Honour particularly relied on the gravity of the offence and the need for personal and general deterrents, taking into account the previous good character and probable good future life of the applicant. His Honour used this as a basis for the finding under s5(2) of the Sentencing Act 1989, to increase the additional term to three years and six months being greater than the one-third proportion in s5(2) of that Act. 24 The first ground of appeal was that the learned sentencing judge failed to adequately assess a considerable body of medical, psychiatric and psychological evidence, and to take it into account in the assessment of the objective material represented by the offence. 25 In my view, His Honour showed a complete familiarity with the evidence brought before the sentencing court, considerable though that was. This is not a case of a distortion of the thought processes or mind of the applicant. The condition from which the applicant suffers is a known organic syndrome, which was found by His Honour to affect the applicant, and there was no contest that that condition exists, nor that in fact the applicant was suffering from depression. 26 None of these matters however detract from the fact that this is an offence which carried a twenty-five year penalty. The objective gravity of the offence in its sinister, planned, and meticulously carried out nature was such that the objective gravity of the offence was very great. The fact that there was not greater injury, as His Honour found, was quite extraordinary. 27 It is put as a second ground of this application that the circumstances of the offence were wholly exceptional, and that the applicant's condition and history of the relationship impacted upon the assessment of the objective gravity and on the weight to be afforded to subjective factors so as to render a sentence manifestly excessive. 28 If I can refer to the fourth ground of appeal in relation to this, that the sentence was manifestly excessive, this was not an injury of one shot. It was all six rounds in a revolver, one of those rounds being of a significantly different character, designed to cause damage of a very substantial order if the others had not. 29 The statistics with which we have been provided from the Judicial Commission, show that twenty-two per cent of offenders received a total sentence greater than that imposed upon the applicant. This offence under consideration was at the very top of the range of seriousness, and insofar as it might be suggested that character and the psychological conditions and the organic syndrome from which the applicant suffered had not been taken into account, these appear to me to be quite properly matters which were offset by the objective seriousness of the offence. 30 The applicant has further submitted that in relation to the principles arising from R v Engert (1995) 84 A Crim R 67 that His Honour, the sentencing judge, failed to adequately apply the principles in the assessment of the impact of significant mental disorders present in the applicant at the time of the offence, and relies on the decision of Her Honour Simpson J in R v Fahda [1999] NSWCCA 267, and the list of authorities referred to in that decision, and also relied on R v Scognamilio (1991) 56 A Crim R 81. 31 It must, of course, be remembered that His Honour, in summarising all of the authorities, dealt with a variety of mental conditions. The fact here is that, as submitted by the Crown, the applicant still had choice in what he did. The conditions from which he suffered were not such as to cause any psychosis or distortion of his mental processes, and in terms of the decision in Engert, the evidence, in my view, did not oblige His Honour when sentencing the applicant, to sufficiently discount general deterrence. The applicant knew what he was doing, he did not have a defence of insanity, and in fact was quite well aware of what he was doing, notwithstanding the obsession he clearly held. In my view, this ground of the appeal has not been made out. 32 Although in terms of character, as I have indicated, and the psychological state and the organic syndrome, the offence is obviously towards the top of the sentencing range, the objective seriousness of this offence is such that, in my view, the total sentence was appropriate. It is clear that His Honour took all those factors into account when assessing the relationship under s5(2) of the Sentencing Act. I am of the opinion that this is a matter where the application should be granted, but the appeal dismissed. 33 STUDDERT J: I agree with Dowd J. 34 BELL J: I also agree. 35 STUDDERT J: The orders of the Court then, will be those proposed by Dowd J. oOo

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