REGINA v. MACADAM-KELLIE [2001] NSWCCA 170

1 WOOD, CJ. at CL: I have had the advantage of reading in draft the reasons for judgment of Greg James, J. I agree with his reasons and the orders he proposes. 2 GREG JAMES, J: The applicant, William Macadam-Kellie, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Coolahan in the District Court of New South Wales at Newcastle following his plea of guilty to one count of wounding with intent to murder. 3 That offence is punishable by imprisonment for 25 years pursuant to s.25 of the Crimes Act 1900. He was sentenced to imprisonment for 16 years to commence on the day of his arrest, the day of the offence, 24 February 1999. A non-parole period of 12 years was imposed. 4 The victim of that offence was the applicant's estranged wife. 5 In his remarks, the learned trial judge set out the context of the offence. The marriage of some 21 years had declined and Mrs. Macadam-Kellie had left the home to reside with the two younger children. 6 Family Law proceedings had commenced and there were proceedings in that court in respect of custody and access. The two older children were living with the applicant. 7 Shortly following her leaving home, Mrs. Macadm-Kellie obtained an apprehended violence order from the Newcastle Local Court against the applicant. He consented to that order without admission. That order was obtained on 5 January 1999 and was current on the day of the offence. 8 On that day, the applicant and his wife were due to appear at the Family Court in Bolton Street, Newcastle. Mrs. Macadam-Kellie arrived at about 8.45 am, accompanied by their four year old son. 9 The applicant was apparently waiting nearby, equipped with the bread knife from the family home. As the victim approached the area where the applicant was waiting in the vicinity of the entrance to the Family Law Court, he approached her and produced the knife which was approximately 30 centimetres in length, with a tapering serrated edge blade. The victim dropped what she was carrying and ran screaming into the centre of the road. The applicant ran after her, caught her in the centre of the road and stabbed her in the right arm and in her back. When she fell to the ground she was stabbed a further three times in the stomach. The offender then dropped the knife and fled. 10 These events occurred in the presence of witnesses in and about the area of the Family Court entrance. One of those witnesses described the applicant as having "reamed the knife around violently, before pulling it from her stomach". The witness approached the applicant who was raising the knife above his head but then dropped the knife and grabbed the child when the witness told the applicant to get away. 11 Following the attack, the applicant approached a prison officer in the Newcastle Court complex area and informed him that he had stabbed his wife and thought that he had killed her. 12 He was interviewed at the local police station where, on a number of occasions, he said that he thought he had killed his wife. He also made statements to the effect of asking that the children be looked after and sent to a good home. 13 He gave an account to police that he had been waiting outside the court when his wife came up with the child. On his account he produced the knife, she said, "no Billy" and commenced to run; he chased her to the middle of the road where he stabbed her and then went to the police station. 14 The injuries to the victim verged on fatal. On admission to the John Hunter Hospital, she was haemodynamically unstable, presumably from blood loss. There was a two centimetre transverse laceration, four centimetres lateral to the umbilicus, a two centimetre vertical laceration in the left upper quadrant, a one centimetre laceration over the right costal margin at the front, a four centimetre laceration over the left iliac crest in the flank region, a one centimetre laceration to the right side of the posterior chest wall, a four centimetre laceration on the ulna side of the left forearm and a one centimetre laceration to the tip of the left fifth finger. 15 A laparotomy was performed on her, during the course of which it was noted that the flank wound seemed to involve the knife passing through the left flank, into the peritoneal cavity and thence into once side of the sigmoid colon and out the other. In that passage, the tip of the knife had skimmed across the top of the aorta and made several lacerations in the small bowel mesentery. Two holes were found in the stomach and the stab wound in the right of the abdomen, just lateral to the umbilicus, was found to enter the peritoneal cavity laterally. 16 Despite these serious wounds, the victim has apparently made some substantial recovery. There was no material before the trial judge to establish the victim's present condition. 17 The trial judge concluded that these serious wounds were done in a frenzy and that it was fortuitous the victim survived. He concluded:- "This was a serious attempt at murdering her." 18 The trial judge concluded that the applicant in the electronically recorded interview with police was laconic, tearful and in distress, but he got the overall impression that the applicant was more distressed at his own predicament than at what might have happened to his wife. 19 His Honour specifically referred to particular answers of the applicant in response to questions as to why he had stabbed his wife. Those answers disclosed that he had done that because she was running away from him and he could not see her again. His Honour noted that the applicant had later said that he did not know what he intended to happen when he stabbed her, and he did not know why he did it. However, there had been some earlier acts of violence between the two. 20 His Honour noted that there was evidence of a plan formulated apparently by the applicant to abduct his wife, using the knife to persuade her to come with him so that he could reason with her and that in relation to his immediate motivation for the commission of the offence, the applicant had said that he had just snapped:- "I don't know, I just felt funny, that's all." 21 He had admitted that he had the knife with him secreted in his belt but said that he had taken it to make his wife come with him. It had been his intention to threaten her with the knife to achieve that purpose. He asserted that he, at least initially, did not intend to use the knife to stab her, only wishing to get her into the van, but that he had stabbed her because she was running away. He asserted that he had sought to do these things because he loved his wife. 22 The trial judge concluded:- "This offence is an extremely serious one of its own accord but the facts in this matter make the offence towards, in my view, the higher end of the scale. This attack was a frenzied attack in which at least four wounds were made to potentially vital areas and, as I said, in my view, having read all the material, including in particular the medical report from Dr. Gani, it was more luck than good management that Mrs. Macadam-Kellie was not killed. There is evidence of some prior planning, at least of a significantly serious crime in the form of kidnapping. The knife used was an extremely large knife and its potential for harm was great and finally, of course, this offence was committed in the face of an apprehended domestic violence order by which he was bound, and in the face of Family Court proceedings in which he was involved." 23 His Honour concluded that the offence called for a lengthy sentence by way of full time custody and that it appeared to be at the higher end of the scale provided for offences of this kind. 24 In turning to the applicant's subjective circumstances, his Honour noted that the applicant was 47 years of age, with no prior convictions and with a not unsatisfactory work history. 25 His Honour referred to a psychiatric report from Dr. Olaf Nielssen dated 24 September 1999 tendered in the Crown case. In that report, the applicant told the psychiatrist that he could remember the picking up of the knife, though not his exact mind or his intention at that time, but that he only ever intended to use the knife to persuade his wife to come with him so they could talk about their circumstances. He said that he wanted to take her out into the desert or some place where she could not run away so she would have to listen. He claimed not to recall the exact events preceding the assault. 26 He told Dr. Nielssen his intention was always to persuade his wife to come back to him and he denied ever planning to kill her. 27 Dr. Nielssen was of the view that the applicant's attention and concentration were affected by what appeared to be severe depression and emotional distress at the time of the interview, but that the responses were rather self-pitying and tended to minimise the applicant's own responsibility for his actions and the history of domestic violence. 28 Dr. Nielssen diagnosed a major depressive illness and a personality disorder, although the applicant appeared to have little awareness of the presence of that severe depressive illness. In summary, he said the applicant's behaviour appeared to have arisen from a combination of an immature personality with narcissistic traits, the adverse life events of losing his livelihood and separation from his wife and the development of the severe depressive illness. The doctor concluded that the applicant's behaviour was better understood as arising from the anger commonly observed in people going through a process of grief, particularly grief associated with rejection or abandonment. 29 The trial judge regarded Dr. Nielssen's observations of the applicant as self-pitying and tending to minimise his own responsibility as confirmed by the impression the trial judge had gained from viewing the record of interview. 30 On behalf of the applicant, there were tendered various reports, including from Dr. R. Foy, a registrar in psychiatry dated 27 April 1999. The applicant had told Dr. Foy that he had not slept the night before the attack, thinking about how he could get his wife to permit him to talk to her to have her come back and his plan to get her into the van to talk. 31 Dr. Foy referred to the applicant as suffering from major depression which affected his insight and judgment and Dr. Foy expressed the view that the attack was an impulsive and irrational act. 32 The trial judge had doubts as to whether that opinion should be accepted arising from the undoubted facts that the applicant had obtained the knife, had produced it and the attack had followed. 33 A further report was tendered from Dr. Bruce Westmore dated 8 November 1999. Dr. Westmore had been told that the applicant wished to take his wife away in the van into the bush or into the desert, to blow the van up and walk back with his wife, even if it takes weeks, so she would learn to love him again. Dr. Westmore also agreed with the diagnosis of depression but said there were no psychotic features. He referred to the applicant as suffering from a moderately depressed mood involving a mix of a strong reactive component and a vulnerable personality. He too concluded the applicant was suffering from a major depressive illness. 34 The trial judge observed:- "Dr. Westmore did not really attempt to provide any link between, or significant link between, the major depression which it appears from all the evidence the offender was suffering at the time and the actual commission of this offence." 35 I will return to this matter later. 36 There were also tendered three reports from a psychologist, Vincent Cook, at the Cessnock Correctional Centre. These reports dealt with the applicant's suicidal tendencies following his incarceration in the Acute Crisis Management Unit, and in particular that the applicant had attempted suicide on two occasions so that for some substantial time, the applicant would have to serve any sentence in that Unit notwithstanding that this was a significantly harsher way to serve a sentence in that there were no real facilities in the cells, for obvious reasons. Mr. Cook did note that the applicant was improving. 37 Before the trial judge, it was submitted, notwithstanding that the applicant did not give evidence himself, that questions of general and specific deterrence should play a limited role in the process because of the applicant's suffering from the major depression to which I have referred. His Honour rejected that submission. He accepted the submission of the Crown Prosecutor that the attack was very severe and showed a degree of viciousness; that it was made in the face of the apprehended domestic violence order and was, in his view, a case in which deterrence, particularly general deterrence, must feature highly in the sentencing process. His Honour pointed out that the courts have stressed time and time again that apprehended domestic violence orders must be observed and that it is harder to imagine a more serious breach of that order than what occurred in this case. 38 His Honour, correctly in my view, noted that this was, of course, an aggravating factor also relevant to general deterrence. 39 His Honour's findings are to be understood in the context of the applicant having admittedly prepared himself with the knife to ambush and abduct his wife from outside, what should have been, a place of refuge. He attacked her in the presence of their four year old child and in a way which plainly showed he was seeking to kill her at that time rather than abduct her. His assertions as to why he stabbed her, as far as he claimed to remember, appear to be that in running away from his attempt to coerce her with a knife, she showed she was not willing to submit herself to his wishes. 40 In my view, his Honour's conclusions as so far expressed were entirely open to him and I agree with him, as I also agree with his Honour's conclusion that although it is not suggested that it was likely that some such event as this might occur again, one could not find, notwithstanding the submissions by the applicant's counsel that there were special and unique factors, that such an offence was unlikely to happen again. 41 In The Queen v. Elphick [2000] NSWSC 977, I referred to the circumstances in which that offender killed his partner arising from his frustration and anger at his inability to have her conform to the course he wished her to take with her life and because she did not accord with what he wanted her to be like. I cited the remarks of Allen, J. in The Queen v. Cheung (CCA, unreported 11 December 1995):- "There are those within the community whose approach to the relationship between a man and a woman is that if the man has what might be called a grand passion for the woman, which completely overwhelms him, there is somehow a degree of respectability in him giving vent to that grand passion by seeking to control the life of the woman against her will - indeed, even in an extreme case, taking her life if he believes that is what ought to be done. There is no respectability in that at all. It is arrogance. I do accept that having such a grand passion, if it can be so called, can diminish, for sentencing, the importance of the element of personal deterrence. But it certainly does not diminish the importance of the element of general deterrence. Indeed, the very misconception that such a grand passion affords a degree of respectability to what otherwise is abhorrent makes it all the more important that, for the purpose of general deterrence, it be made perfectly clear that such an approach will not be tolerated in this civilised society." 42 In the applicant's depression, he determined to abduct or kill his wife. He fortuitously did not commit the crime of murder but he has injured his wife most severely at a time when he intended to commit that crime. His crime falls little short in culpability of the completed crime. 43 However, his Honour also concluded that he did not accept that the applicant's adverse life events or his major depressive illness could be used in any way as mitigating factors in the commission of such an outrageous crime. 44 His Honour noted that there was no evidence in his view which he found acceptable that would link, in any way or any significant way, the major depression suffered by the applicant at the time with the commission of the crime. His Honour accepted that the applicant was entitled to the benefit of a plea of guilty, albeit that it was entered late, but that was in the context of a difficulty obtaining instructions by the legal practitioners. His Honour noted that there was an extraordinarily strong Crown case. 45 On the issue of special circumstances, his Honour noted the applicant's asserted general prior good character, the fact of the confession, some contrition, albeit arising to an extent out of a feeling of self-pity, that it was the applicant's first time in custody and of the confinement in the special unit which would be more onerous and that it was the case that for rehabilitation he would be subject to an extended period of parole. 46 His Honour had regard to the matters raised by the applicant's counsel in the light of the concession made by the Crown that those matters could give rise to a finding of special circumstances, but accepted the Crown submission that the need for the finding of special circumstances only arises where it is contemplated that it might be necessary for an offender to need a longer than normal period of supervision upon his release. His Honour concluded that the sentence which he felt appropriate as structured would allow an adequate period of time for supervised rehabilitation and assimilation into the community to occur. 47 His Honour did not think that there were special circumstances requiring an extended period of supervision and the non-parole period should therefore be in the statutory proportion. His Honour concluded that the offence:- "Is an extremely serious offence and falls certainly, in my view, well above the middle range for this type of offence." 48 On appeal, it was submitted that his Honour should have allowed the full discount for a plea of guilty based on utilitarian considerations: Regina v. Thomson (2000) 49 NSWLR 383 at 418; see s.22 of the Crimes (Sentencing Procedure) Act 1999. It was contended that that would have entitled the applicant to a discount of about 25%. 49 It was contended that there should have been a further discount for contrition, his Honour having acknowledged that contrition, even if it were alloyed to a certain extent by the applicant's concern for himself. It was contended that even though there was a strong Crown case, in the light of what had been said in Thomson (supra), the value of the plea had been underestimated by his Honour and so had contrition, particularly having in regard to the early confession: The Queen v. Bond (1990) 48 A. Crim. R. 1 at 6-7. 50 It was contended that his Honour had fallen into error in confining his enquiry in relation to special circumstances as he had, since it has now been held in The Queen v. Carrion [2000] NSWCCA 191 that the utility of special circumstances and the purpose for seeking to ascertain whether there are such circumstances, is different from that which prevailed under the Sentencing Act 1989. 51 Most importantly, and I refer again to the finding of his Honour concerning the applicant's suffering from depression, to which I have referred above, it was contended that his Honour erred in failing to accept the findings of Dr. Nielssen and in concluding that there was no evidence which established a link between the major depressive illness the applicant was suffering and the commission of the offence. In that regard, it was submitted that the offence was substantially mitigated in having been committed whilst the applicant was so suffering. 52 As I have noted, there was some considerable psychiatric evidence but, the proceedings before the trial judge went ahead on the basis of the tender of written reports without the psychiatrists being called to give evidence. 53 I have referred to his Honour's observation that Dr. Westmore did not make any significant link between the mental condition and the offence. 54 It is the case that the report of Dr. Westmore of 8 November 1999 did not explicitly associate the major depressive illness and the incident, although the coincidence of the condition with the event was noted. It would appear that his Honour has evaluated the other medical opinion on the basis that Dr. Westmore did not consider there was such a link. 55 On appeal, it was submitted the court should have regard to a report from Dr. Westmore dated 26 February 2001 which is annexed to the affidavit of Ross Hill, solicitor, sworn 27 March 2001 and which is read on the appeal. In summary, that report supports entirely the opinion expressed by Dr. Nielssen and also the view of Dr. Foy that the major depression was affecting the applicant's insight and judgment. Dr. Westmore accepted that he had not in his previous report made an explicit link between the commission of the offence and the major depressive condition and pointed out that no doubt such evidence would have been obtained from him had he given oral evidence in court. He expressed the view that it was not possible to separate the significance of the man's depression from his aggressive act and that the depression was so severe that, had the victim died, the applicant might well have been eligible for a defence of substantial impairment or diminished responsibility. 56 Whilst his Honour does not appear to have expressly stated, that he rejected the link between the illness and the act as opined by Dr. Nielssen and by Dr. Foy, after observing that Dr. Westmore did not really attempt to provide any link or significant link of that kind, he expressed the view that the major depression could not be used as a mitigating feature in the context of observing that there was no evidence which, in his view, he found acceptable that would link, in any way or any significant way, the depression to the commission of the crime. 57 It would appear that his Honour reached that view in the context of the reports being tendered without oral evidence or cross-examination and on the basis that Dr. Westmore had not made his view of the link explicit. Such a statement, it seems clear, would and could have been made if the matter had proceeded on a basis that the parties or the doctor considered such a link was open to doubt. 58 In my view, the fresh evidence should be admitted notwithstanding that on behalf of the Crown, it was submitted that the report was admissible on re-sentencing but that the trial judge had not been led into error by its absence. The report is plainly material on a re-sentencing exercise, however, I have concluded that its absence at trial led the trial judge into error in his assessment of the link between the major depressive illness and the crime and thus led him to misinterpret the conclusions of the other psychiatrists. I would conclude that this report is admissible to show error rather than only in the event of error having been shown. 59 It was also contended that his Honour's sentence was manifestly excessive, having regard to the maximum for the offence and by comparison with other sentences for this offence, schedules of which were provided to us even making appropriate provision for this offence as falling, as his Honour found "well above the middle range for this type of offence". 60 It was submitted that making allowances for the matters of the plea and contrition, his Honour must have treated the offence as falling within or close to the worst class of case so that the sentence, after the relevant discounts, would result in the sentence which was imposed and that a comparison with the various cases provided showed that such a starting point was in error. 61 Particularly it is submitted, that the asserted error in relation to the finding of special circumstances resulted in a non-parole period which exceeded that which was requisite in the context of the psychiatrists' opinions. 62 I consider it is not necessary that these matters be resolved whether his Honour erred in this respect since I am of the view that error has been shown arising from his Honour's failure to accept what must be treated in the light of Dr. Westmore's further report that the undoubted link between the major depressive illness and the crime and in such a case it is well accepted that less weight might be given to the factor of general deterrence: The Queen v. Scognamiglio (1991) 56 A. Crim. R. 81. For myself, however, I am of the view that putting aside the matter of the mental condition, this case does fall within or up towards the worst class of case. I do not consider the comparisons with other sentences as submitted to assist the applicant. 63 Further, I am of the view that, in the light of the plea of guilty, the early confession and contrition, but qualified as his Honour noted an appropriate discount on sentence would be of the order of 15%. 64 But, having regard to those matters and to the impact of those matters on a sentence which otherwise would be required to emphasise general deterrence, I conclude that, in particular, in the light of the further evidence concerning the link between the offence and the mental illness, that an appropriate sentence would be that of 15 years imprisonment to commence on 24 February 1999 and to expire on 23 February 2014. In respect of that sentence, having regard to the principles in Carrion (supra), I would be minded to impose a non-parole period of 11 years to commence 24 February 1999 and expire on 23 February 2010. In particular, 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. 65 I would therefore propose that the sentence imposed by his Honour be quashed and in lieu the applicant to sentenced to imprisonment for 15 years to commence 24 February 1999 and to expire on 23 February 2014 and that a non-parole period be imposed of 11 years to commence on 24 February 1999 and to expire on 23 February 2010. *******

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