R v Stonestreet

Court of Criminal Appeal (NSW)|2020-06-12|Before: Bell P, Davies J, Adams J

Judgment

BELL P: I agree with the reasons of, and orders proposed by, Davies J.
DAVIES J: The respondent was charged with one count of wound with intent to cause grievous bodily harm contrary to section 33(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years' imprisonment and there is a standard non-parole period of seven years.
The respondent pleaded guilty and was sentenced by Judge Grant on 31 March 2020 to imprisonment for four years and six months commencing 15 March 2017 and expiring 14 September 2021 with a non-parole period of three years and one month expiring 14 April 2020. The respondent was not released to parole on 14 April 2020. His next parole review date is 27 August 2020.
The Director of Public Prosecutions for the Crown now appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the inadequacy of the sentence imposed.

Remarks on Sentence (ROS)

The sentencing judge noted that the respondent suffered from schizophrenia. His Honour made reference to a statement from the respondent's brother who said that the respondent had been acutely paranoid in the days leading up to the offending. The respondent believed that people were after him.
The sentencing judge made reference to a victim impact statement from the respondent's father. His father did not believe the respondent intentionally caused him harm. His father believed the respondent was unwell and was not guilty of the offence. He felt the healthcare system had let the respondent down.
A report from the psychiatrist Dr Richard Furst was tendered on behalf of the respondent at the sentence hearing. The sentencing judge set out large portions of that report in his ROS. The report said that the respondent had a serious mental illness in the form of schizophrenia and was prone to paranoid thinking. The report said that the respondent had no insight into his mental illness and treatment. Dr Furst also said: His actions in stabbing his father multiple times in the chest were clearly driven by his acute paranoid delusions. … All of the available history and observations of Mr Stonestreet at the time of the offence make it highly likely Mr Stonestreet believed that stabbing his father on the morning in question was the right thing to do, fearing for his own life unless he acted in a manner to defend himself and feeling morally justified as a consequence of longstanding delusional beliefs about his father.
His Honour accepted that at the time of the offending the respondent was paranoid and delusional. His Honour was satisfied that the respondent's mental condition contributed to the commission of the offence in a material way. His Honour said very little weight should be given to general deterrence because of the mental disorder. His Honour found that the respondent's moral culpability was reduced and that matters of retribution and denunciation had little weight.
The sentencing judge accorded a discount of 25% to the respondent for his plea of guilty. His Honour assessed the objective seriousness of the matter as being below the mid-range, but said that he did not take into account the mental illness of the respondent in assessing objective seriousness. Rather, he took that into account when making an assessment of the respondent's moral culpability.
His Honour found that there were special circumstances because of his age, and the fact that it was his first time in custody, and that there was a need for an adequate treatment program.

Ground 1 The sentencing judge erred by failing to take into account the protection of the community, which was a critical consideration in the sentencing exercise

Submissions

The Crown submitted that although the sentencing judge considered the evidence in respect of the respondent's mental illness extensively, and made comprehensive findings concerning the effect of that mental illness upon the respondent's moral culpability and the lack of need for general deterrence (none of which was challenged), the sentencing judge did not consider the effect of the respondent's mental illness upon the need to protect the community. The Crown submitted that it is well established that the protection of the community will be a critical consideration when sentencing an offender who suffers from an untreated mental illness.
The Crown submitted that where the evidence before the sentencing judge clearly demonstrated that the respondent's illness was treatment resistant, and that, when untreated, the respondent was a danger to the community, the need to protect the community should have been a critical consideration in the sentencing of the respondent. The Crown submitted that this was emphasised because the respondent had manifested similar delusions about his parents and the police on two separate occasions. Further, the respondent refused to participate in an interview when Probation and Parole contacted him in March 2020.
The Crown submitted that the sentencing judge did not mention the protection of the community in his ROS at all.
The respondent submitted that the Crown did not expressly submit to the sentencing judge that a critical consideration was the protection of the community, or that the respondent's mental illness should result in a longer sentence because of the danger he presented to the community and the need to emphasise specific deterrence.
The respondent submitted that the extent to which his Honour set out portions of Dr Furst's report, and the careful consideration he gave to it, augured against the proposition that the sentencing judge failed to take into account the protection of the community in fixing an appropriate sentence. That was because his Honour expressly adverted to the very matters which raised that concern, including the treatment recommendations which Dr Furst made in order to address it.
The respondent drew attention to what was said about considerations for sentencing mentally ill offenders in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. The respondent drew attention to cases such as R v Engert (1995) 84 A Crim R 67 at 68 and Alkanaan v R [2017] NSWCCA 56 at [108] which emphasised the imperative to sentence a mentally ill person with consideration for the facts and circumstances of the individual case, and the application of sentencing principles to those facts and circumstances.
The respondent submitted that the principles in De La Rosa are well-known to experienced practitioners of the criminal law, and his Honour was an experienced practitioner in the criminal law. It should not readily be inferred that his Honour overlooked the matter of the protection of the community.
The respondent drew attention to the fact that his Honour's ROS were made ex tempore, and submitted that this Court should not readily conclude that his Honour's failure to mention the protection of the community expressly, meant that he did not take it into account, when the respondent's mental illness was the central issue in the proceedings on sentence.

Consideration

One of the purposes of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is "to protect the community from the offender". It is obviously a significant consideration where violent crime is involved, but arises for particular consideration where crimes are committed by mentally ill persons whose moral culpability is reduced and for whom specific deterrence has reduced significance.
In Veen v R (No.2) (1988) 164 CLR 465; [1988] HCA 14, the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ, said (at 476): … [A] mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.
In De La Rosa McClellan CJ at CL said at [177]: Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner: • Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. • 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: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. • 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: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. • It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. • Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. (citations omitted)
In Elturk v R [2014] NSWCCA 61, Beazley P (R A Hulme and Schmidt JJ agreeing) said at [46]: Although the considerations to which I have referred have led me to the view that some other sentence is warranted in law, the determination of the appropriate sentence to be imposed requires that those considerations be balanced with the evidence as to the nature and seriousness of this offence and the danger which the applicant poses, given the nature of his illness; the consequences which follow from the applicant ceasing to take the medication which helps control his illness; the applicant's limited insight into the nature of his illness; and his limited ability to recognise symptoms of his illness, when they emerge, at which point he presents an acute danger.
One of the significant themes in Dr Furst's report was the respondent's lack of insight into his mental illness. When Dr Furst considered some earlier psychiatric reports about the respondent in 2015 he noted that the psychiatrist who examined him made reference to his insight being poor and to the respondent's preferring the term "autism" to schizophrenia. Dr Furst noted a report from another psychiatrist provided to the Mental Health Review Tribunal in September 2018 where the respondent was described as "guarded" and "insightless" at that time. Dr Furst noted that when the respondent was admitted to the Acute Mental Health Unit at Long Bay Hospital from January to July 2018 as an involuntary patient, he was largely uncooperative and remained lacking in insight during his admission, despite treatment with a combination of Clopixol Depot injections every two weeks and Olanzapine wafers.
Dr Furst went on to say: Mr Stonestreet's level of insight into his schizophrenic illness has been consistently low over the last few years, as has his level of engagement with his treating team in custody. His lack of insight and resistance to medication was evidenced by Mr Stonestreet being the subject of a Forensic Community Treatment Order (F-CTO) when he was discharged from the Long Bay Hospital in July 2018 … When assessed by myself on 14/01/19, Mr Stonestreet did not believe he was experiencing symptoms of mental illness. … When assessed by Dr O'Dea on 11/04/19, Mr Stonestreet stated he did not have schizophrenia.
At the time Dr Furst assessed the respondent in September 2019 he said that the respondent's mental state had deteriorated over the previous several months, suggesting that he had stopped taking his medication again. When Dr Furst asked him if he was taking his medication, the respondent said he did not believe he was mentally ill. Dr Furst went on to say: He eventually admitted he was not taking his oral medication or his prescribed injection, stating, "The doctor told me a long time ago the injection has stopped...no one told me it's prescribed again." His assertion in this respect was consistent with a total lack of insight into his schizophrenic illness/treatment needs, impaired judgement and his pattern of non- compliance with medication and treatment recommendations over recent years.
In the section of his report headed "Recommendations regarding future treatment", Dr Furst said: His illness is so severe and his insight so deficient at present that the preferred treatment course is likely to be a further admission to the Long Bay Hospital under the Mental Health Act to commence an antipsychotic medication again, … Psycho-education should also be provided with the aim of improving his insight and longer term compliance with treatment; however, the clinical course over the last 5 years suggests any expressions of insight cannot be relied upon at the current time or in the future, necessitating longer term involuntary treatment, in an inpatient setting and later in the community, on involuntary patient order (sic) and/or community treatment orders.
Finally, in the section of his report headed "Prognosis", Dr Furst said this: The available history and current mental state features suggest Mr Stonestreet is likely to remain paranoid, insightless and severely functionally impaired by his schizophrenic illness for the foreseeable future. He is capable of serious offending when mentally unwell, as was the case in Newcastle in 2015 and again when he stabbed his father in the chest in March 2017. He continues to have no insight into his illness and treatment needs, meaning he will require long-term assertive psychiatric follow-up and rehabilitation in accordance, with the treatment recommendations outlined above. In my opinion, the treatment measures outlined above, both in relation to hospital-based care and involuntary community-based care, would likely reduce his risk of re-offending, which is largely dependent on his capacity to achieve a remission of his paranoid thinking about his parents and others through adequate assertive psychiatric treatment.
The sentencing judge included almost all of the above parts of Dr Furst's report into his ROS. His Honour then said this under the heading "Moral culpability": At the time of the offending the offender was paranoid and delusional. The fact that an offender was or is suffering from a mental disorder or disability either at the time of the commission of the offence or at the time of the sentencing may be taken into account in sentencing: R v Anderson [1981] VR 155. An offender's mental condition can have the effect of reducing a person's moral culpability and matters such as general deterrence, retribution and denunciation have less weight: Muldrock v The Queen 244 CLR 120 at [53]. This is especially so where the mental condition contributes to the commission of the offence in a material way: DPP (Cth) v De La Rosa (2010) 70 NSWLR 1 at [177]. I am satisfied that the offender's mental condition contributed to the commission of the offence in a material way. General deterrence should be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. His mental condition contributed to the commission of the offence. His moral culpability is reduced. Matters of general deterrence, retribution and denunciation have less weight, and indeed, general deterrence should be given very little weight because this offender is not an appropriate medium for making an example to others.
His Honour then recognised the need for the adequate treatment program as outlined by Dr Furst "to take effect during the parole period of the offender", and for that and other reasons his Honour found special circumstances.
Whilst his Honour had express regard to the first four of the five matters identified by McClellan CJ at CL in De La Rosa, he said nothing about the issue of community protection. Community protection was not an optional consideration, not only because of s 3A of the Sentencing Act, but precisely because, as McClellan CJ at CL said, the person's mental illness means that they present more of a danger to the community. In such circumstances an increased sentenced may be imposed, but that is not because the person has a mental illness. Rather, an appropriate sentence must be imposed having regard to the fact that the person is a danger to the community. In the same way, a person without a mental illness who was a continuing danger to the community might expect to receive a longer sentence compared to someone whose offending and subjective circumstances did not place them in that category.
The respondent relied on an exchange between the sentencing judge and the Crown during submissions being made by the respondent. The respondent had complained that the Crown had not given him beforehand a copy of the decision in Elturk, when the Crown referred his Honour to that case. The exchange was a follows: HIS HONOUR: It should have, and indeed it should have been given to me before as well. But really what the Crown is talking about is a longstanding view of the High Court, and that is this: that where somebody has a mental - as they describe it as - a mental abnormality at the time of committing an offence it diminishes the moral culpability of the person. And it would be wrong for a court to increase the sentence because the person had a mental abnormality which may still exist. And I think in essence that's what the Crown was submitting to me. Am I right about that, Mr Crown? BAILEY: Yes, your Honour. That exchange was said to demonstrate that no error can now be discerned in his Honour's ROS and his approach to the sentence because of the Crown's agreement. However, a reading of that passage in the transcript in context shows that his Honour was merely stating the principle from Veen (No 2) as it appeared in Elturk, which had been referred to by the Crown.
In my opinion, it cannot be inferred from anything his Honour has said in his ROS that he in fact took into consideration the important matter of the protection of the community as a result of the respondent's lack of insight into his mental illness, and what that might mean in terms of re-offending. In my opinion, error is established in that regard. I would uphold this ground of appeal.

Ground 2 The sentence pronounced was manifestly inadequate

Although, where specific error is found, it is not strictly necessary to consider a ground of manifest inadequacy Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [33]; CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [34]), I consider that the sentence imposed by the sentencing judge was manifestly inadequate. This flowed from the failure to take account of the protection of the community and the high risk of reoffending without adequate supervision.

Submissions

In relation to the exercise of the residual discretion, the Crown submitted that the following matters were pertinent to the exercise of that discretion: (a) it was necessary to increase the sentence (particularly the full term of the sentence) so as to ensure the protection of the community; (b) there was no delay involved in the filing of the appeal; (c) the imposition of the manifestly inadequate sentence was not caused or perpetuated by the representative for the Crown; and (d) the Crown was not aware of any material which would suggest the Court should exercise its discretion not to intervene.
The Crown accepted that the fact that the non-parole period imposed has expired is a relevant consideration. The Crown submitted, however, that this should not outweigh the clear need to protect the community from someone with the respondent's mental health issues.
The Crown submitted that the objective criminality of the offence was extremely serious, and that a sentence of four years and six months with a non-parole period of three years and one month was manifestly inadequate, when the protection of the community was taken into account. Any new sentence would need to take that inadequacy into account.
The Crown submitted that, in the circumstances of the respondent's mental illness and treatment, there was scope for further amelioration of the ratio between the non-parole period and the head sentence to enable a longer head sentence. That was for the purpose of enabling the sort of treatment that Dr Furst said was vitally necessary, particularly the psychotherapy to overcome what Dr Furst described as the complete absence of insight by the respondent into his illness and treatment needs. The Crown submitted that the imposition of an increased head sentence would not offend the principles in Veen (No 2) because it would not lead to the imposition of a sentence that was greater than one which might have been imposed if the offender was not mentally ill.
The respondent, in relation to the residual discretion, pointed particularly to the fact that the non-parole period expired in April 2020. The respondent submitted further that principles informing the sentencing discretion in cases of mentally ill offenders require no clarification, and that even if error was established in relation to the sentence, that was no justification for this Court to intervene. Reference was made to R v Primmer [2020] NSWCCA 50 at [39].
The respondent submitted that the sentence imposed on the respondent was not obviously inadequate. Although the appropriate sentence required a term of imprisonment, the evidence clearly established a strong causal connection between the respondent's schizophrenic illness and the commission of the offence.
The respondent submitted that treatment of his schizophrenia would be a long-term task, and the evidence suggested that his illness, if not assertively managed, could potentially pose a risk to the safety of other people, particularly his parents. However, the respondent submitted that the evidence did not support the proposition that any longer period of custody would better treat the schizophrenia.
The respondent submitted that the notional starting point of six years adopted by the sentencing judge was not one that appeared to be a manifestly inadequate term of imprisonment for a first time offender with a schizophrenic illness, for an offence of the type charged. The respondent accepted, nevertheless, that it would have been open for the sentencing judge to have started at a higher point so that any head sentence, after the discount for the plea, was a longer one after the fixing of the non-parole period. The respondent submitted also that it was likely that he would subject to community treatment orders under the auspices of the Mental Health Review Tribunal for the foreseeable future in any event. In that way, it was submitted, the protection of the community is safeguarded.

Consideration

In my opinion, the Crown has satisfied its onus of demonstrating that the residual discretion should not be exercised. In Primmer, Hamill J (Leeming JA and Harrison J agreeing) said at [39]: Prosecution appeals serve the particular purpose of clarifying the law, laying down principles for the guidance of sentencing courts and interfering with sentences that are an affront to the administration of justice: see for example Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1] and [36]; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1. While error has been demonstrated, the case is not one where significant principles of law need to be clarified. …
One matter which would lead to an affront to the administration of justice is a lack of uniformity in sentencing. That is a relevant matter when consideration is given to relatively recent decision of this Court in Elturk, (see below) a case of striking similarity to the present. The present case is also a significant example of the tension which exists between reduced culpability as a result of mental illness and the need for protection of the community.
As I have indicated earlier, the theme running through Dr Furst's report is the lack of insight by the respondent into his illness and his need for treatment. Associated with that was the resistance of the respondent to medication which led to the imposition of a Forensic Community Treatment Order in 2018.
It may be accepted, as Dr Furst said, that custody is much more onerous for a person in the position of the respondent. However, although the respondent's culpability was reduced by reason of his mental illness, this was a very serious offence. Although Dr Furst's report suggested that the respondent might have a defence to the charge by reason of his mental illness, the respondent elected to plead guilty to the offence. His lack of insight into his condition and his failure at various times to remain compliant with his medication regime means that the community is at some considerable risk. Although his offending behaviour has so far been directed towards his family because of his delusional beliefs about what they did to him when he was a child, they are as much entitled to protection as the community at large.
The sentencing judge reduced the statutory ratio to 68.5%, partly to take account of his proposed treatment program, but this left an inadequate time during which the respondent would be under parole supervision to assist with that treatment. Although the Crown submitted that the sentence generally was inadequate, the Crown's focus was principally on the balance of term to be added to the non-parole period.
In Elturk, the applicant pleaded guilty, relevantly, to wounding with intent to cause grievous bodily harm. As in the present case, the victim was the applicant's father who was stabbed by the applicant and the wounds suffered by the victim were very serious. The applicant had experienced mental problems since about the age of 19 with various admissions to psychiatric hospitals. He was diagnosed as suffering from either a major mental illness of schizoaffective disorder or a relapsing psychotic illness with features of both schizophrenia and bipolar disorder. At the time of the offending, the psychiatrist Dr Nielssen said that the applicant was mentally ill and delusional. The applicant had limited insight into his mental condition.
The sentencing judge accorded him a 20% discount for the plea of guilty and thereafter sentenced him to a non-parole period of four years with a balance of term of four years. This Court reduced the sentence, because of specific errors made by the sentencing judge, to a non-parole period of three years and six months with an additional term of three years. That decision is a useful comparable case for the present re-sentencing exercise.
There is no doubt that the present applicant needs a lengthy period on parole. Particularly in the light of the expiry of the respondent's non-parole period, I would not interfere with that non-parole period. It is essential, however, that the respondent has an adequate period under supervision on parole to assist in the stabilisation of his mental health issues. I would find special circumstances for the reasons indicated by the sentencing judge but I would vary the statutory ratio so as not to increase the non-parole period.
In my opinion, the undiscounted sentence should be one of eight years. The applicant should be sentenced, after the discount for the early plea, to a non-parole period of three years and one month with a balance of term of two years and 11 months. The sentence should commence on 15 March 2017 with the non-parole period expiring on 14 April 2020. The balance of term will expire on 14 March 2023.

Conclusion

I propose the following orders. 1. Allow the appeal. 2. Quash the sentence imposed by Judge Grant in the District Court on 31 March 2020. 3. In lieu, sentence the respondent to a non-parole period of three years and one month commencing 15 March 2017 and expiring 14 April 2020 with a balance of term of two years and 11 months expiring 14 March 2023.
N ADAMS J: I agree with Davies J.

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