R v Kihara

The offender's evidence

1. The offender tendered a bundle of evidence which became Ex 1.1 to 1.4.
2. Exhibit 1.1 was a report from Dr S Dayalan, psychiatrist, dated 17 February 2020. Under the heading "Psychiatric history", the author noted that the offender's first admission to an inpatient psychiatric facility occurred at the age of 21 years and that he had had inpatient admissions on a yearly basis since that time. He suffered from psychotic symptoms and each of the admissions were to treat his psychotic illness. The author noted a number of the offender's delusional beliefs, and his history of manic episodes characterised by elated mood, insomnia, irritability, grandiose beliefs, increased energy levels and racing thoughts. The offender also had a history of non‑compliance with treatments. He had been treated with Depot (long acting intra-muscular injectable), anti-psychotic medications and also under community treatment orders. The offender gave an account of the offence recorded by Dr Dayalan which was largely not relied upon by the offender at the sentence hearing. Dr Dayalan also noted that the offender had recently been diagnosed with cancer in his mouth and had undergone surgery in January 2020 and continued to suffer from pain from that condition. He admitted to alcohol abuse from the age of 18 years and had commenced smoking cannabis at the age of 12 years.
3. The offender had completed school in year 10 and had not been in any employment since 1998. He was currently taking Olanzapine for his mental illness. His medical history revealed him suffering delusional beliefs, auditory hallucinations, disorganised behaviour and thought disorder. He also had a history of aggressive behaviour in the context of being acutely unwell. He had poor insight into his mental illness and a history of poor compliance and poor engagement with mental health services. His numerous psychiatric admissions to inpatient psychiatric units were involuntary and often in the context of police escort due to aggressive behaviour. His risk issues were identified as aggressive behaviour, inappropriate sexual behaviour, absconding, non-compliance with treatment, physical health neglect, homelessness and substance misuse. The author also noted a history of assaulting fellow patients, health staff members and members of the public unknown to him.
4. Dr Dayalan opined that his history and presentation was consistent with a diagnosis of Schizoaffective Disorder and Alcohol and Cannabis Use Disorder. He further opined: "Mr Kihara's chronic psychotic illness in conjunction with the disinhibiting effects of alcohol probably played an important contributory role to his offending behaviour by impairing his judgement, reasoning capacity and impulse control."
5. Under the heading, "Rehabilitation prospects and risk of re-offending", Dr Dayalan opined that the offender's chronic treatment resistant illness had been complicated by substance abuse, impaired insight with associated non‑compliance issues, and an iterant lifestyle. He did have the support of his mother and sister, however, overall, his prospects of rehabilitation were guarded. The nature of his symptoms was such that they increase his propensity for violent behaviour. Dr Dayalan further opined that if his mental health symptoms were well controlled and if he were to remain abstinent from substance abuse, his risk of re-offending would be significantly reduced. In view of the nature of his chronic psychotic illness, Dr Dayalan further opined that the offender experiences a greater level of distress associated with incarceration than an individual without such an illness.
6. Exhibit 1.2 was a letter from Dr Carolyn Stoney dated 14 December 2018. It therefore pre-dated the index offence, and concerned the offender's involuntary admission to the inpatient psychiatric unit at St Vincent's hospital in October 2018. On admission, he was floridly psychotic and over several months his mental state improved with inpatient treatment and pharmacotherapy. He was diagnosed with schizophrenia, complicated by cannabis and alcohol misuse. The author noted that when he was well, he was "a personable affable man, kind and considerate".
7. Exhibit 1.3 was a letter from the offender's mother, describing him as "a very compassionate and giving person". Mrs Kihara described him as battling mental illness and offered him a place to live with her upon his release from custody.
8. Exhibit 1.4 was a letter from the offender's sister, Ms Michelle Kihara. She described him as a "caring and inspirational person" who she looked up to. Notwithstanding his mental illness, he had always maintained "his kind, giving and open nature". She did not live with her mother, but was prepared to assist her in looking after the offender upon his discharge from custody.

The Crown submissions

1. The Crown relied on a thorough detailed written outline of submissions which set out well know principles regarding aggravated kidnapping offences, including Diaz v R [2018] NSWCCA 33 at [39] - [47], where at [40] the court referred to a previous decision of R v Newell [2004] NSWCCA 183. In that case, at [32], the court identified the following relevant factors in making an assessment of the objective seriousness of an offence pursuant to s 86, "including the period of detention, the circumstances of the detention, the person being detained and the purpose of the detention". The court went on to hold that the nature of the advantage that the offender sought to obtain was not conclusive as to the seriousness of the offence.
2. The Crown submitted that the following factors were relevant in determining the objective seriousness of the offence here: "(a) the offender locked the victim in the premises so she could not escape, (b) the initial detention was achieved by instilling fear and control over the victim, however the offender then used physical violence towards the victim and physically restrained her on the balcony, (c) the offender detained the victim with the intention of eliciting information about the whereabouts of his stolen guitar, which he believed she had stolen, (d) the period of detention was relatively brief - perhaps a few minutes, however the victim was in constant fear throughout the period of detention, (e) the offender assaulted the victim a number of times throughout the period of detention: first in the kitchen when he smashed the wooden chair over her head, secondly when he placed the victim in a "bear hug" on the balcony and the victim was heard yelling for help, thirdly when he held (by reasonable inference) the meat cleaver above his head and the victim was heard yelling "Put it down!", fourthly when the victim was pushed towards the balcony and she was heard yelling "Please stop!", and fifthly when the offender threw the victim over the balcony 5.4m down on to the solid concrete below, (f) the victim was a friend of the offender and had assisted him to his unit on the night in question due to his level of intoxication, (g) the victim was considerably smaller and physically weaker than the offender, (h) the victim's injuries were non-life threatening but a serious example of actual bodily harm, consisting of being knocked unconscious for a couple of minutes, fractures to the right 5th and 6th anterior ribs, fractures to the right 7th and 8th posterior ribs, and a right L4 transverse process fracture, and (i) there was no evidence that the offence was pre planned."
3. The Crown submitted that the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 86. It was mitigated by the relatively short duration of the detention, but was otherwise a serious example of the charge because of the vulnerability of the victim, the fact that the victim was locked inside the offender's unit, and that the offender assaulted the victim on no less than five occasions in circumstances where she was pleading for help and for the offender to stop assaulting her. Further, serious physical injuries were occasioned to the victim when she was thrown off the balcony. The Crown characterised this as "an absolutely terrifying ordeal for the victim".
4. The Crown identified the following aggravating circumstances: 1. The offender's considerable criminal record which demonstrated a continuing attitude of disobedience of the law. 2. The fact that he was on bail for two separate sets of matters at the time of the offence. 3. The use of a meat cleaver during the commission of the offence. 4. The fact that the victim was a guest in the offender's home, after having assisted him there.
5. Whilst the offender was extremely affected by alcohol, the Crown submitted that self-induced intoxication was not to be taken into account as a mitigating factor pursuant to s 21A(5AA) of the CSPA.
6. The Crown referred to the application of relevant principles to be applied where the offender has a mental illness, as summarised in DPP v De La Rosa [2010] NSWCCA 194 at [177], together with other authorities for the principle that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality. The Crown referred to the offender's lengthy history of mental illness, and his history of aggressive behaviour in the context of him being acutely unwell, together with his poor insight into his mental illness and history of poor compliance and poor engagement with mental health services. Two months prior to the index offence, the offender had missed his Depot medication and had been abusing drugs and alcohol. The Crown submitted that as a result of his treatment resistant mental illness, impaired insight, substance abuse, non-compliance issues and his propensity for violent behaviour, the offender presents an ongoing danger to the community which would lead to greater emphasis being given to specific deterrence here.
7. Finally, the Crown submitted that no sentence apart from full-time imprisonment was appropriate.
8. In his oral submissions, the Crown submitted that the s 5 threshold had been crossed and the issue here, given the application of principles relating to mental illness, was the length of the head sentence to be imposed.
9. The Crown rehearsed his written submissions in respect of the application of s 21A(5AA) of the CSPA, relating to self-induced intoxication not being taken into account, and the history of mental illness and substance abuse recorded by Dr Dayalan. It was submitted that the offender's lengthy record of serious violent offences, and that he now presents more of a danger to the community as a result of his treatment resistant conduct, meant a greater emphasis should be put on specific deterrence in the sentencing process.
10. The Crown conceded that the relevant offending took place over a short period of time. In total, the whole event took less than 65 minutes, however, relevantly, the offending took place over a few minutes once the offender struck the victim with a chair and she fled onto the balcony. It was submitted that it was only by sheer chance that the victim's injuries were not more significant here. She had fallen 5.4 metres onto a concrete surface and had suffered loss of consciousness for a number of minutes. The offending was aggravated in that it was committed in the home of the offender, a place where the victim should have felt safe as she was a friend who had assisted the intoxicated offender home. She was entitled to feel safe and secure within the confines of his unit.
11. The Crown submitted that the meat cleaver was found on the ground near the victim following the offending conduct. It could be inferred that that was the object that the offender held above the victim's head when she was detained by him on the balcony. She had pleaded with him to put that object down. Notwithstanding her entreaties for him to stop, the offender had continued the assault on her and lifted and thrown her from the balcony in a complete and callous disregard for her safety. Notwithstanding the short duration of the offending, these factors elevated the offending to mid-range of objective seriousness for an offence pursuant to s 86.

The offender's submissions

1. Counsel for the offender also relied on a written outline of sentencing submissions. In respect of the matters outlined in R v Newell, supra, relevant to the objective seriousness of an offence pursuant to s 86, the offender submitted that the precise amount of time the victim was detained was unknown, but was significantly less than 65 minutes. Further, the circumstances of the detention were spontaneous and the person being detained was an adult female who was six years younger than the offender. The purpose of the detention was to extract information from the victim concerning the whereabouts of the offender's guitar. It was submitted that that purpose was not to inflict violence, however, that was a spontaneous consequence of the offender's frustration.
2. The offender submitted that there were two discrete assaults, namely, the offender striking the victim over the head with a chair, and then throwing her from the balcony. The victim's injuries were serious, but not life threatening.
3. The offender submitted that the following aggravating factors were relevant pursuant to s 21A of the CSPA:

• (2)(d) the offender has an extensive criminal history, including multiple offences for assault.
• (2)(eb) the offence was committed in the offender's home.
• (2)(ib) the offence could have involved the grave risk of death.

1. The following mitigating factors were relevant pursuant to s 21A(3): 1. The injuries were not substantial. 2. The offence was not part of a planned or organised criminal activity. 3. (i) and (k) the offender had shown remorse by his early plea of guilty.
2. The offender submitted that he is not a suitable vehicle for general deterrence due to his mental illness. Specific deterrence was relevant, and the offender accepts that it should be reflected in the penalty imposed, albeit reduced as a result of the offender's significant mental health issues.
3. The offender submitted, in accordance with DPP (Cth) v De La Rosa, supra, the ways in which the offender's mental health could impact on the sentence to be imposed. He had a long history of mental illness and had been diagnosed with Schizoaffective Disorder, as well as Alcohol and Cannabis Use Disorder. Further, Dr Dayalan's opinion that his psychotic illness in conjunction with the disinhibiting effects of alcohol, probably played an important contributory role to his offending behaviour. Thus, the offender's moral culpability must be reduced by reason of his mental illness. In addition, he would suffer a greater level of distress in incarceration than an individual without such an illness.
4. The offender advocated a finding of special circumstances pursuant to s 44 of the CSPA based on his mental health issues and the longer period of properly monitored parole he would require for his return to the community.
5. It was submitted that the objective seriousness of the offending conduct here was below the mid-range of objective seriousness. The offender's mental illness reduced his moral culpability and the need for him to be used as a vehicle for general deterrence.
6. In his oral submissions, Counsel for the offender rehearsed the relevant factors to assessment of the objective seriousness of the offending pursuant to R v Newell, supra. The court would not accept the Crown's submission that the initial detention here was achieved by instilling fear and control over the victim. As the Agreed Facts indicated, the victim's entry to the offender's unit was amicable, and they had enjoyed a smoke and the offender had offered her tea, prior to the two assaults taking place. The circumstances changed when he locked the front door and commenced to ask about the missing guitar.
7. The offender submitted that, notwithstanding the Crown contended for five separate assaults, there were in fact only two, namely, when the victim was struck by the offender with a wooden chair over the head, and secondly, when she was pushed over the balcony.
8. The offender submitted that the presence of the meat cleaver on the ground near the victim could not be held to be the cause of her actual bodily harm.
9. The offender's intoxication was conceded to be not a mitigating factor, however, what was significant was his mental illness. The report of Dr Stoney (Ex 1.2) confirmed that five weeks prior to the offending he had been on a Community Treatment Order. Dr Dayalan's report (Ex 1.1) confirmed the offender's diagnosis of mental illness and his expressed opinion that the offender's psychotic illness contributed to his offending behaviour should be taken into account. Dr Dayalan's opinion that the offender's prospects of rehabilitation were guarded was not surprising and were relevant to a finding of special circumstances.
10. It was submitted that a lengthy custodial sentence served in Long Bay Hospital would allow for a treatment regime to properly deal with the offender's mental health issues before his release into the community. He was entitled to a 25% utilitarian discount on sentence and any sentence should be backdated to 20 January 2019.
11. Finally, the offender referred to Johnson v R [2016] NSWCCA 286 at [40] for authority that s 21A(2)(eb) extended to cover an offence which occurs in the offender's home as a mitigating factor.

Determination

1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A 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."
2. I find that the following are relevant factors in determining the objective seriousness of the offender's criminal conduct in accordance with R v Newell, supra: 1. The offender locked the victim in the premises so that she could not escape. 2. I find that the initial detention was not achieved by instilling fear and control over the victim, but rather, it only occurred after he locked the front door and confronted her about his guitar. 3. The purpose of the offender detaining the victim was to elicit information about the whereabouts of his stolen guitar. 4. The period of detention was relatively brief and can be measured as a matter of minutes, however, it was a terrifying ordeal for the victim in which she would have felt constant fear throughout. 5. I accept the Crown's submission that the offender assaulted the victim no less than five times throughout the period of detention. First, in the kitchen, when he smashed the wooden chair over her head. Secondly, when he placed the victim in a bear hug on the balcony, and the victim was heard yelling for help. Thirdly, when he held the meat cleaver above his head and the victim was heard yelling, "Put it down". Fourthly, when the victim was pushed towards the balcony and she was heard yelling, "Please stop". Fifthly, when the offender threw the victim over the balcony, a distance of 5.4 metres onto a solid concrete surface. 6. The victim was a friend of the offender and had assisted him to his unit due to his level of intoxication. 7. The victim was considerably smaller and physically weaker than the offender. 8. Although the victim's injuries were non-life threatening, they were serious and consisted of her being unconscious for a couple of minutes, fractures to her right 5th and 6th anterior ribs, and fractures to her right 7th and 8th posterior ribs, together with a right L4 tranverse process fracture. 9. The offence was not pre-planned or organised.
3. Whilst the offending conduct was mitigated by the relatively short duration of detention, I accept the Crown's submission that it was a serious example of an offence pursuant to s 86 because of the vulnerability of the victim, the fact that she was locked in the offender's unit to prevent her from fleeing, the number of assaults that took place when the victim was pleading for help and for him to stop assaulting her, and then the serious physical injuries occasioned by her fall. I accept the Crown characterisation of this as "an absolutely terrifying ordeal for the victim", and I find that it constituted offending within the mid-range of objective seriousness for an offence pursuant to s 86 of the Crimes Act 1900.
4. I find the following aggravating circumstances pursuant to s 21A(2): (c) The offence involved the actual threatened use of a weapon. I find the use of the meat cleaver during the commission of the offence was an aggravating factor, however, it has been taken into account in assessing the seriousness of the offence. (d) The offender had a long record of previous convictions for violent offences. (ib) The offence involved a grave risk of death to the victim. (eb) The victim was a guest in the offender's home and was entitled to feel safe and secure there, having assisted him home. (j) The offence was committed whilst the offender was on bail in respect of two unrelated offences.
5. I find the following mitigating factors pursuant to s 21A(3): (b) The offence was not part of a planned or organised criminal activity. (k) The offender has entered an early plea of guilty. The offender is therefore entitled to a 25% utilitarian discount on sentence.
6. Pursuant to s 21A(5AA), the self-induced intoxication of the offender cannot be taken into account as a mitigating factor. He is, however, entitled to a 25% utilitarian discount on sentence for his early plea of guilty.
7. I have had regard to the maximum penalty of 20 years imprisonment as a guidepost in the sentencing process.
8. As submitted by the parties, in DPP (Cth) v De La Rosa, supra, McClellan CJ at CL set out the following principles to be applied where an offender is suffering from a mental illness:

• "When the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in sentence.
• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced.
• It may reduce or eliminate the significance of specific deterrence.
• Conversely, it may be that because of the person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Anti-social Personality Disorder there may be a particular need to give consideration to the protection of the public (authorities and citations omitted)."

1. Applying those principles here, it is clear that the offender's moral culpability for his offending should be reduced as a result of his mental illness and I accept Dr Dayalan's opinion that the disinhibitive effect of his alcohol abuse, together with his mental illness, contributed to his offending conduct. That should lead to a reduction in his sentence. Also, as a result of his mental illness, he is not an appropriate vehicle for general deterrence, which again leads to a reduction in sentence.
2. I accept the Crown's submission that specific deterrence is still important in the sentencing process, particularly having regard to the need to protect the public from ongoing criminal behaviour by this offender.
3. The offender's mental illness will also mean that his period of incarceration will be more onerous on him than for those not suffering such an illness. This will be taken into account in a further reduction of his sentence.
4. I find that there are special circumstances established here pursuant to s 44(2) of the CSPA, based on the offender's mental illness and the need for careful and lengthy supervision of him on his return to the community. I therefore intend to vary the statutory ratio between head sentence and his non-parole period.
5. I have had regard to the comparative cases and the JIRS statistics provided by the parties as a guide and for the relevant sentencing principles. However, each case has to be determined on its own circumstances. I note that the parties were unable to indicate any one particular case close to the circumstances of this sentence.
6. I intend to sentence the offender to a head sentence of 3 years and 9 months imprisonment, with a non-parole period of 2 years, with effect from 20 January 2019.

Orders

1. I make the following orders: 1. Jimm Wallace Kihara, you are convicted of the offence of detain with intention to obtain advantage and occasion actual bodily harm pursuant to s 86(2)(b) of the Crimes Act 1900. 2. I sentence you to a non-parole period of 2 years to commence on 20 January 2019 and to terminate on 19 January 2021. 3. The balance of the term will be for a period of 1 year and 9 months to commence on 20 January 2021 and terminate on 19 October 2022.

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