RYAN v R

Judgment 1McCOLL JA: I agree with the orders proposed by RS Hulme J and his Honour's Reasons. 2RS HULME J: On 12 March 2010 this Applicant for leave to appeal was sentenced by Sweeney DCJ in respect of two offences of recklessly causing grievous bodily harm. Each of those offences carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years imprisonment. 3For the first offence the Applicant was sentenced to imprisonment for a period of 3 years including a non-parole period of 2 years both such periods to date from 5 August 2009. For the second offence, the Applicant was sentenced to imprisonment for 3 years and 9 months including a non-parole period of 2 years both such periods to date from 5 August 2010. 4The total effective sentence was thus one of 4 years and 9 months including an effective non-parole period of 3 years. The commencing date of the sentence reflected pre-sentence custody. 5The circumstances of the first offence were that during the night of Friday 19 June 2009 the Applicant and his girlfriend went to the home of a Mr Robert Jones. With Mr Jones' permission the Applicant invited friends to join them and there was listening to music and alcohol consumption. The Applicant challenged Mr Jones to a fight in the lounge room. Both were intoxicated. They sparred and wrestled and the Applicant became more aggressive and put Mr Jones in a headlock choking him so he could not breath. Eventually the Applicant released Mr Jones who told the Applicant to go outside. Both did so. The Applicant challenged Mr Jones to another fight. They fought for a short time then stopped and shook hands. The Applicant returned inside the house where he was heard to be arguing with his girlfriend. He then emerged again, walked up to Mr Jones, put a hand on his shoulder and pulled the latter towards him and ran off. Mr Jones then realised he had been stabbed by the Applicant and saw a knife blade protruding from the left side of his stomach. Mr Jones was found to have a perforated bowel, was in hospital for about 6 days and was not permitted to undertake strenuous work for some weeks. 6The second offence occurred on 24 July 2009. Shortly before it occurred, the Applicant was in one group and the victim in a second group walking along George Street, Sydney. There had been verbal and physical altercations between a woman in the victim's group and women in the Applicant's group. As the victim was walking along the Applicant came up behind him and punched him once forcibly to the back of the head. The victim told the Applicant he did not want to fight but the Applicant punched the victim twice to his face, the second punch causing him to fall to the ground unconscious. The Applicant then punched the victim five or six more times. At the time of this offence also the Applicant was intoxicated. 7The victim suffered extensive right side facial fractures to his cheek and eye socket, a fractured skull and nerve damage to the middle third of the right side of his face. His injuries have required a number of operations and he has been left with his right eye being set back because there is not enough bone to support his eye socket in its previous position. Some right lower eyelid retraction and some facial numbness. 8The victim is conscious of his face being disfigured and finds he is more edgy with family, friends and his children and feels his memory is less sharp than it used to be. At the time the victim was 26 years. 9Her Honour assessed both offences as in the mid range of objective seriousness and allowed a 25% discount for the Applicant's pleas. 10Her Honour recorded that the Applicant had suffered substantial disadvantage in his upbringing. His parents had separated when he was young. The Applicant and his mother suffered physical abuse for a long time at the hands of her ex-partner. The Applicant's education effectively finished at the end of primary school and his employment history had been affected by illiteracy. Her Honour also observed:- When he first went into custody, he tried to take his own life and was placed in a bare cell for about 2 weeks for his protection. Since then he has been placed on medication for his conditions. He is still in a form of protection, he said to protect him from other prisoners. There was no evidence given about how restrictive or otherwise the conditions of that regime are, although they permit Mr Ryan to attend school and work, so it is obviously not of the most restrictive kind. 11At the time of both offences the Applicant was 20 years old. A psychological report by a Dr John Jacmon was tendered before her Honour. In its mixture of discussion of psychological conditions and symptoms generally, and reference to those the Applicant had and did not have, the report was one of the most confusing I have read. However it did record that in an attempt to avoid her partner's violence the Applicant's mother had moved some thirteen times in the space of a few years, that the Applicant could not read or write and had devoted his energies in the sport of kickboxing in which he earned four belts. 12In evidence before Sweeney DCJ the Applicant said he had received no belts for his kick-boxing. 13Dr Jacmon did not conduct any assessment of the Applicant's intelligence but recorded a diagnosis of the Applicant having been suffering from depression, anxiety, adult attention deficit hyperactivity disorder, borderline personality disorder and alcohol abuse. Dr Jacmon's conclusions included that the Applicant's symptoms indicated that he suffered from a mental condition and needed protracted treatment available from a mental health facility and was suffering from a mental condition as per s 32 of the Mental Health (Forensic Provisions) Act 1990 . Her Honour expressly accepted that the combination of psychological conditions affected the Applicant's judgment and contributed to both offences. 14The transcript also reveals that the Corrective Services Department had provided the Applicant with a "support person" during the sentencing proceedings because of his mental disabilities. Her Honour asked as to the exact nature of the support person's role but before this was explained said she had some idea from the person's assistance to the Applicant while the latter was giving evidence. The transcript does not reveal what this assistance was or throw any further light on the matter. 15Although not mentioned by her Honour, there was also evidence in a Pre-Sentence Report that the Applicant had previously experienced "some incidents of self-harm" and that the abuse from the Applicant's mother's partner had been not only physical but also emotional. It was said that the Applicant had often been required to stay home from school and accompany the partner on shop stealing expeditions. The Pre-Sentence report also described the Applicant as having poor literacy and numeracy skills, and that "he has limited insight and has never developed effective interpersonal skills. He presents as immature and emotionally fragile, which leaves him ill equipped to resolve conflict without resorting to violent solutions, where he can be reasonably confident of success at least in the short term". 16Reference should be made to the Applicant's record. In September 2007 he had been placed on a s 9 bond for 12 months for eight offences of obtaining money by deception; In November 2007 he had been placed on a s 10 bond for driving whilst his licence was suspended. This offence had occurred before the imposition of the bond in September. In February 2008 he had been placed on an 8 month suspended sentence for being armed with intent to commit an indictable offence for which he had been charged in May 2007. On the same date he was placed on a s 9 bond for 2 years for two counts of dealing with stolen property for which he had been charged in November 2008. In September 2008 he had been fined for driving with an excess quantity of alcohol on his blood. This offence was committed during the currency of the above bonds. 17Conditions of the bond of September 2007 required the Applicant to obey any reasonable directions of the Probation and Parole Service in respect of drug and alcohol rehabilitation. Conditions of the bond and suspended sentence of February 2008 required the Applicant to obey any reasonable directions of that Service in respect of psychiatric and psychological counselling. 18It follows that the offences the subject of these proceedings were also committed whilst the Applicant was on conditional liberty, a condition of which was that he be of good behaviour. Her Honour also recorded that at the time of the offences the Applicant was on bail for an offence of damage to property for which he was subsequently dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 . This offence does not appear on the Applicant's antecedents record but there was no suggestion her Honour's reference to it was wrong. Of course, bail also carried with it an undertaking to be of good behaviour. 19The grounds of appeal are: (1)The sentencing judge erred in failing to give sufficient weight to the mental illness, psychological condition and general disability of the applicant and, in particular, its effect upon. (a)The Applicant's moral culpability; (b)The role of general deterrence in the sentencing exercise; (c)The role of specific deterrence in the sentencing exercise. (2)The sentencing judge failed to give any, or any proper, regard to the particular hardship of imprisonment arising from: (d)The nature of the custody which was necessary, specifically protective custody, or (e)The Applicant's mental illness, psychological condition and general disability. (3)The sentencing judge failed to give proper consideration to the applicant's age and other relevant facts in assessing his prospects of rehabilitation and likelihood of re-offending. (4)A miscarriage of justice occurred as a result of the incompetence of counsel - it was in fact a solicitor - who appeared for the Applicant on sentence. (5)The sentence imposed was manifestly excessive. 20In addition to these grounds, the Applicant sought to further his appeal by persuading the Court that it should admit evidence additional to that which was before the sentencing judge. This additional evidence consisted of:- (i) A psychological assessment report dated 22 September 2010 prepared by Mr Sam Borenstein, clinical psychologist; (ii) An Affidavit of Ms Jasmine Pyke, the Applicant's mother dated 16 November 2010; and (iii) A letter dated 2 November 2010 from Mr Steve Griffiths, Legal Officer, Corrective Services NSW, confirming the Applicant's prison classification. 21It is convenient firstly to consider grounds 1 to 3 together. In support of the first ground, counsel for the Applicant drew attention to authorities including R v Israil [2002] NSWCCA 255 and R v Pham [2005] NSWCCA 314 and the cases therein cited that establish that an offender's mental condition may have relevance:-