Shine v R

Other subjective matters

1. The applicant at the time of the sentencing hearing was aged 58 years and had no prior convictions. As I indicated, he arrived in Australia in 1987 and became an Australian citizen in 2000.
2. Although he did not give evidence, he informed Dr Nielssen and Ms Wakely that he had had a troubled childhood, telling Dr Nielssen he had "a dark life … I had trouble with socialising". The applicant told Ms Wakely that he and his wife had divorced in 2000 when he moved to Sydney. He told her that since that time, he had been forced to move from shared houses because other persons in the house complained he was strange or "a psycho". At the time of the offence, he was studying second year nursing at the University of Western Sydney and living at Parramatta on a university campus. He told Ms Wakely that to begin with, he had been placed with six other students. However, they complained about his behaviour and he was moved to a studio apartment where he lived independently. He had also worked on a casual basis with the Department of Disability, Ageing and Home Care as a case worker in group homes for seven years up to the time of his arrest.
3. Although the applicant had no prior criminal convictions, he told Ms Wakely that there was domestic violence in his marriage and, at one stage, an apprehended violence order was taken out against him preventing him from being within 100 metres of his wife. He also referred to the incident where he threatened to kill other members of his Church, after which, he was referred to counselling.

The reasons of the sentencing judge

1. The reasons of the sentencing judge were sparse. After briefly summarising the facts, the sentencing judge noted that the applicant was separated from his wife and had not seen his children for 10 years. He noted the applicant's employment history with the Department of Disability, Ageing and Home Care, to which I have referred, and that the applicant did not drink alcohol or use illegal drugs.
2. The sentencing judge stated that the attack was premeditated and that there was no provocation. He noted that it was conceded that there were three children in the house and the injuries sustained by the victim were serious and life threatening. The sentencing judge stated, however, that he was not satisfied that the applicant went to the house intending to kill the victim.
3. The sentencing judge said, without elaboration, that the applicant's plea was not at the earliest opportunity, although it was before trial. He allowed a 20% discount for the plea.
4. The sentencing judge agreed with the Crown that there was little remorse towards the victim, rather, the applicant's remorse was more directed towards the victim's wife.
5. In relation to the applicant's mental illness, the sentencing judge made the following remarks: "I accept, as Dr Nielssen says, that the offender has a disease of the brain in the form of a psychotic illness which produced a defect of reasoning. However his psychotic illness did not affect his ability to understand the nature and quality of his actions. It provides an explanation of why he did what he did. I do not accept the Crown's submission that what he said about his belief was a falsehood to lessen his responsibility. It is quite clear on the evidence before me that he believed that he needed to act as he did to protect the victim's wife and there is no other explanation for his behaviour. He is not an appropriate vehicle for general deterrence."
6. However, the sentencing judge concluded that whilst the applicant had a mental condition, he knew what he was doing was wrong and knew he should not be doing it.

The grounds of appeal

1. The applicant relied upon the following grounds of appeal: "1. His Honour erred in allowing only a 20% discount for the appellant's plea of guilty. 2. His Honour erred in finding as a matter of fact that '[the offender's] psychotic illness did not affect his ability to understand the nature and quality of his actions' and that '[w]hilst the offender had a mental condition he knew what he was doing was wrong, he knew he shouldn't be doing it'. 3. His Honour erred in failing to properly evaluate the extent to which the appellant's mental illness operated to reduce the sentence imposed. 4. His Honour failed to consider the effect of the applicant's mental illness on the burden that incarceration will have on the appellant. 5. His Honour failed to consider the appellant's prospects of rehabilitation. 6. The sentence is manifestly excessive."

The inadequacy of reasons

1. Grounds 3, 4 and 5 of the grounds of appeal relate to the failure of the sentencing judge to deal with matters integral to the sentencing process. At the hearing of the appeal, senior counsel for the Crown conceded that the sentencing judge's reasons were inadequate and that there was an error in the sentencing process. That concession, in my respectful opinion, was correct and it is thus necessary to resentence the applicant: Kentwell v R [2014] HCA 37; 252 CLR 60 at [40]-[42]. However, prior to considering whether a lesser sentence is warranted in law, I propose to deal briefly with Grounds 2 to 5; first, to show why the Crown's concession was correct and second, to indicate what I consider are the correct principles to apply on resentencing for the offence in the particular circumstances of the present case. However, the matters relied upon in relation to Grounds 1 and 6 can be dealt with adequately in resentencing.

Ground 2

1. The applicant pointed out that Dr Nielssen expressly stated that the applicant's delusional beliefs and grossly distorted capacity for logical thinking affected his ability to recognise his actions were wrong. The applicant submitted that, in finding that the applicant knew what he was doing was wrong, the sentencing judge ignored Dr Nielssen's conclusion without giving any reasons for doing so.
2. The Crown submitted that the sentencing judge was entitled to reach the conclusion he did as the applicant's guilty plea implicitly acknowledged that he knew what he was doing was wrong. The Crown submitted that there was evidence to support this conclusion. The Crown referred to the recorded conversation with the police prior to the applicant's transportation to hospital (see above at [42]). The Crown also referred to the statements made to the police at the hospital and in the recorded interview (see above at [43]-[44]), as supporting the proposition that the applicant knew what he was doing was wrong.
3. The difficulty with the Crown submission is that the sentencing judge simply did not deal with Dr Nielssen's conclusion, which was directly contrary to the conclusion he reached. Although he referred to the conclusion of Dr Nielssen that the applicant had the defence of mental illness open to him and that he had a psychotic illness, he did not refer to Dr Nielssen's ultimate conclusion that the applicant's grossly distorted capacity for logical thinking affected his ability to recognise his actions were wrong. If the sentencing judge was to reach a contrary conclusion on a critical matter of this nature, he should have set out his reasons and his failure to do so was an error of law: R v Thomson & Houlton (2000) 49 NSWLR 383 at [42]-[44] and the cases there cited; see also Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291 at [39].
4. In my opinion, this ground of appeal has been made out.

Ground 3

1. The applicant submitted that, although the sentencing judge acknowledged that his mental state was a significant consideration in the sentencing process and referred to the report of Dr Nielssen, the sentencing judge did not give consideration to what extent his mental illness in fact affected the sentencing outcome. The submissions pointed to the fact that, although the sentencing judge referred to the passage in Elturk v R [2014] NSWCCA 61; 239 A Crim R 584 (Elturk) to the effect that the existence of mental illness does not necessarily produce a lesser sentence, he did not go on to apply that reasoning - other than stating that the applicant knew what he was doing was wrong - to indicate how the applicant's mental condition impacted on the sentence which he imposed,.
2. The Crown referred to the passage from the judgment of Gleeson CJ in Engert v R (1994) 84 A Crim R 67 (Engert) at 71, cited by the primary judge. It noted that that passage specifically refers to the proposition that, despite a causal link between the mental illness and the commission of the offence and the consequent amelioration in weight for general deterrence, such findings might also warrant an increase in the weight to be afforded to personal deterrence and the protection of the community. It was submitted that "despite any further explicit elucidation in the remarks on sentence", the Court will be satisfied that the sentencing judge formulated the sentence "by offsetting the complete absence of any allowance for general deterrence". This submission presumably meant that the fact general deterrence was not to be taken into account either contributed to a reduction in sentence or was offset by the increased importance of personal deterrence and the need to protect the public: Engert at 71.
3. In Elturk, Beazley P, with whom R A Hulme and Schmidt JJ agreed, accepted the submission that although the appellant's plea of guilty precluded his mental illness from absolving him of criminal responsibility, it could be used to demonstrate that his significantly impaired state of mind at the time of offending affected both his objective criminality and moral culpability. Her Honour stated, at [34], that the following analysis by McCallum J in McLaren v R [2012] NSWCCA 284, at [27]-[29], aptly captured the relevance of moral culpability in the sentencing process: "[27] The appellant contends that his Honour's conclusion may now be seen to have entailed error in that the decision in Muldrock renders impermissible any consideration of the applicant's state of mind in assessing the objective seriousness of the offence at hand. [28] In my view, that submission misconceives the effect of the decision in Muldrock. The phrase 'objective seriousness' in Muldrock at [27] ... refers specifically to the definition in s 54A(2) of the Act as to what a 'standard non-parole period' denotes. That is the 'concept' referred to in the previous sentence of that paragraph. The point there made by the High Court, as I would understand it, is that there is no sense in attempting to place the offence at hand (with all its features, including matters personal to the offender where relevant to an assessment of the nature of the offending) at a point along a purely hypothetical range which, of its nature, is ignorant of those matters. [29] The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the 'objective seriousness' of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing)."
4. The approach was consistent with previous authority: R v Israil [2002] NSWCCA 255 (Isrial) at [23]; Carroll v R [2012] NSWCCA 118 (Carroll) at [57], citing R v Hemsley [2004] NSWCCA 228 (Hemsley) at [33]-[36]; Carney v R [2008] NSWCCA 277 (Carney) at [54]-[58]; Piciollo v R [2011] NSWCCA 180 at [45], citing R v Pham [2005] NSWCCA 314 at [35]; R v Windle [2012] NSWCCA 222 at [41]; Turner v R [2011] NSWCCA 189 at [3], [43], [54]; Millwood v R [2012] NSWCCA 2 at [69]; Dang v R [2013] NSWCCA 246 at [25]-[30].
5. In the present case, the sentencing judge appears to have paid no attention to this issue. Although he said the case was not appropriate for general deterrence, he gave no attention to the reduction of moral culpability which in my view squarely arose in these proceedings. He was in error in failing to do so. This ground of appeal has been made out.

Ground 4

1. The applicant referred to the submission, made on his behalf at the trial, that mental illness should be considered in all its relevant respects. He also pointed to the fact that the sentencing judge, in argument, pointed out that mental illness was usually taken into account in three or four different ways.
2. The applicant pointed to the evidence of the difficulties suffered as a result of incarceration. Ms Wakely referred to the difficulty he had with housemates and the fact that his behaviour in custody has caused difficulty with other inmates and staff. Dr Nielssen also referred to the fact that prison officers asked the mental health nurse to review the applicant because of his odd behaviour, to which I have referred above at [54]. Further, his psychological assessment indicated significantly elevated levels of depression and anxiety.
3. The Crown accepted that there was evidence before the sentencing judge that whilst in custody, the applicant had experienced difficulty with other inmates and was paranoid in respect of certain Corrective Service officers. The Crown pointed out that submissions dealing with this issue were not developed at any length in the applicant's submissions in the Court below and submitted that, whilst the sentencing judge did not refer to the matter, the Court could be satisfied that he was well seized of the issue.
4. There is force in the Crown's submission that the issue of the difficulties the applicant would suffer in incarceration as a result of his mental condition was not the subject of substantive submissions by the applicant in the Court below. However, the Crown has not contended that it was not raised.
5. It is well-established, and not disputed in the present case, that a relevant factor to consider in the sentencing process is the fact that a custodial sentence may weigh more heavily on an applicant by reason of his or her mental condition: Hemsley at [35]; Israil at [26]; Carney at [60]. The sentencing judge, at least on the face of his reasons, did not give any consideration to this issue. He was in error in not doing so. This ground of appeal is also made out.

Ground 5

1. The sentencing judgment is silent on the applicant's prospects of rehabilitation.
2. The applicant submitted that each party at the sentencing hearing indicated that rehabilitation was a matter which was required to be taken into account. The applicant submitted that the sentencing judge erred in failing to do so, particularly in circumstances where the applicant's mental illness was susceptible to treatment.
3. The Crown submitted that it was implicit in the finding of special circumstances that the sentencing judge took the prospects of rehabilitation into account.
4. The Crown also pointed to the reference by the sentencing judge at the sentencing hearing to the benefit of continued monitoring of the applicant, which it was submitted was consistent with an acceptance by the sentencing judge that the applicant's mental illness may well continue to provide challenges upon his release. The Crown, in those circumstances, submitted that the amelioration of the non-parole period for additional supervision showed that weight was given to the mental health issues as the purpose of the amelioration was to provide for additional supervision of the applicant and enhance his prospects of rehabilitation.
5. It cannot be disputed that prospects of rehabilitation are a relevant factor to be taken into account as part of the sentencing process: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(h). The difficulty in the present case is that it does not appear from the sentencing judgment that consideration was given to this issue. It may be that it provided the reasons for the finding of special circumstances, however, that can only be a matter of inference as the sentencing judge gave no reason for this finding. In light of those matters it cannot be said that the sentencing judge took the question of rehabilitation into account. He was, in my respectful opinion, in error in failing to do so: see Carroll at [63]-[64]: TU v R [2014] NSWCCA 155 at [55]-[56].
6. It follows that this ground of appeal is made out.

Resentencing

1. I have set out the facts giving rise to the offence and the subjective features of the applicant above. For the purpose of resentencing, the applicant also relied on an affidavit of 19 April 2016. In that affidavit, he stated that when he first came to gaol, he was bullied and asked to be in protection, where he has remained ever since. He said he is, at present, on Medical Hold in Long Bay Gaol because of his serious sleep apnoea. He said he would like to undertake courses when he came off protection. He said he feels very isolated in custody but has one friend who visits him regularly.
2. The applicant has continued to have no contact with his children. He saw his former wife once, who asked him not to contact the children.
3. The applicant stated that when he first came to gaol, he had almost overwhelming problems sharing a cell. He said he was trying hard to cope with having a cellmate. He said he has had problems and has had to change cellmates three times so far.
4. The applicant stated that he takes two medications, Zoloft for his depression and Zyprexon for his anxiety, the latter drug only having been prescribed since he was taken into custody. He said he feels calmer and less anxious as a result. He said he now accepts he has a mental illness and needs medication to keep him mentally well.
5. The applicant stated he has been seeing a psychiatrist and psychologist regularly. He said he had been seeing the psychologist every two weeks but stopped late last year when the psychologist decided he was well enough not to be seen.
6. The applicant stated that he now realises he was mentally ill at the time of the offence. In his affidavit, he expressed remorse for both the victim and his wife. He stated the medication he has been taking has made it possible for him to acknowledge his behaviour and mental illness.
7. The applicant is entitled to a discount for the utilitarian value of his plea. In submissions at the sentencing hearing, the prosecution acknowledged that the delay in entering the plea was so that the applicant could be psychologically and psychiatrically assessed and there was the need for the applicant to confer with his counsel so it could be explained to him that he had a mental health defence which he decided not to avail himself of. Taking a somewhat different approach on the appeal, the Crown pointed out that the plea was not in fact entered until a little over 12 months after the date of arrest, six months after committal for trial and four months after receipt of the report of Dr Nielssen.
8. In my opinion, in the present case, the delay in the entry of the plea can fairly be attributed to the applicant's mental illness. The applicant at no time denied committing the offence and he confirmed with Dr Nielssen he had not entered a plea because he was awaiting the outcome of his psychiatric evaluation. Having regard to the conclusion of Dr Nielssen, the further delay whilst he considered his position could not be said to be unreasonable. In the circumstances, I am of the view that the applicant should be allowed a 25% discount for the utilitarian value of his plea.
9. In dealing with the ground of appeal related to manifest excess the Crown pointed to a number of factors which were said to warrant the sentence imposed. They included the contention that the applicant knew what he was doing was wrong, that the sentence gave appropriate weight to considerations of personal deterrence and protection to the community, that the objective criminality was high and that the injuries were life threatening. The Crown also pointed to the fact that the evidence established the victim, Mr Lee, is unable to work and continues to suffer post-traumatic stress disorder.
10. The Crown also pointed to the fact that the offence was aggravated, in that it occurred in the victim's bedroom whilst his children were present and noted that, although it had not been established beyond reasonable doubt that he went to the victim's home intending to kill him, the attack was premeditated.
11. The Crown is correct in concluding the offence was very serious indeed. As the Crown pointed out, it involved a premeditated attack on the victim in his bedroom in the presence of his children, followed up by a further attack with a large knife outside the premises. The injuries were extremely serious and the attack has had an ongoing effect on the life of the victim. The seriousness of the offence can be shown by the maximum penalty of 25 years and the standard non-parole period of 10 years.
12. Notwithstanding, the moral culpability of the applicant is sufficiently lessened by his mental illness. Dr Nielssen's conclusion that he did not know that what he was doing was wrong, as I have pointed out, is a matter that can be taken into account in assessing the gravity of his conduct.
13. It is correct that the fact that there is a causal relationship between the offence and the mental illness does not automatically lead to a reduction in the sentence which would otherwise be imposed. As Gleeson CJ in Engert stated, whilst the fact of mental illness may reduce the need for general deterrence, it may increase the need for personal deterrence or protection to the public (subject to the principle that a sentence should not be imposed beyond what is proportionate to the crime merely to protect society against recidivism: Veen v The Queen (No 2) [1987] HCA 14; 164 CLR 465 at 472-473).
14. In the present case, the evidence does demonstrate that the applicant, at least without treatment and medication, does have a propensity to commit irrational and violent acts. However, in his affidavit, the content of which was neither objected to nor disputed, he deposed to the treatment he has received and its helpful effect on him.
15. Further, although it may be accepted that the applicant showed little remorse at the time he was sentenced, there is now evidence in the applicant's affidavit that he now feels remorse both towards the victim and his wife.
16. Further, having regard to what I have said in relation to Ground 4, it is clear that incarceration will occasion him particular difficulties.
17. Nothing of what I have said is to gainsay the seriousness of the offence or the effect it has had on the victim. However, the matters to which I have referred are matters that are required to be taken into account, along with questions of retribution and personal deterrence, in considering the appropriate sentence to be imposed.
18. So far as the non-parole period is concerned, I would find special circumstances. The applicant will require an extended period of supervision following his release to parole. Further, particular difficulties the applicant will face in incarceration warrant a finding of special circumstances.
19. In the result, I would grant leave to appeal, allow the appeal and quash the sentence imposed by the sentencing judge. In lieu thereof, I would sentence the applicant to a term of imprisonment of 9 years, commencing on 19 April 2014 with a non-parole period of 5 years. The earliest date on which the applicant will be eligible for release to parole will be on 18 April 2019.

Conclusion

1. The orders I would make are as follows: 1. Grant the applicant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed on the applicant and in lieu thereof order that the applicant be sentenced to a non-parole period of 5 years, commencing on 19 April 2014 and a balance of term of 4 years. The earliest date the applicant will be eligible for release to parole is 18 April 2019.
2. DAVIES J: I agree with the orders proposed by Bathurst CJ and his Honour's reasons therefor. I wish, however, to add some brief remarks in relation to the discount to be given for the applicant's plea. Although error has otherwise been found making it unnecessary to consider ground 1, the issue concerning the utilitarian value of the applicant's plea arises at the re-sentencing stage.
3. The Crown correctly submitted that the plea was not in fact entered until a little over 12 months after the date of arrest, six months after committal for trial and four months after receipt of the report of Dr Nielssen who examined the applicant on 5 December 2014 partly to determine whether the applicant was fit to enter a plea and partly to assess, if he was fit to plead, whether he had a defence of mental illness open to him. The Crown submitted, in the circumstances, that the appropriate discount was a 20% reduction as the Sentencing Judge accorded.
4. It has been held in a number of decisions of this Court including R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 at [11]; Nguyen v R [2008] NSWCCA 280 at [27]; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] and R v Nicholson [2010] NSWCCA 80 at [36], that generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced. In R v AB [2011] NSWCCA 229 Bathurst CJ said at [3] that while sentencing courts should generally continue to follow the approach in Borkowski, the principles had to be applied by reference to the particular circumstances in any case. That statement was noted and applied recently in Haines v R [2016] NSWCCA 90 at [27] .
5. The chronology in Haines was this. The applicant killed the deceased on 3 March 2001. She was found unfit to be tried on 14 February 2013 and remained unfit until 4 November 2013 when she was found fit to be tried. She was arraigned on 7 March 2014 and entered a plea of not guilty on the basis of a defence of mental illness. The trial was set for 26 May 2014. On 29 April 2014 the psychiatrist provided a further report expressing an opinion that the applicant probably did not have available to her the mental illness defence. However, he sought access to other Justice Health material to resolve his doubts. That resulted in the trial being vacated. He subsequently provided a further report on 30 June 2014 in which he concluded that she probably did not have available a defence of mental illness. On 4 July 2014 she was re-arraigned and entered a plea of guilty.
6. The primary judge accorded her a discount of 15% for the utilitarian value of the plea. This Court held that in the exceptional circumstances of the case the reason for the delay in entering a guilty plea had to be taken into account. The Court held further that the applicant had cooperated in confining the issues to be dealt with at the judge-alone trial to the testing of the psychiatric evidence. In the circumstances the Court held that the utilitarian value of the plea, although late, remained high and a discount of 25% was appropriate.
7. In my opinion, the circumstances of the present case, detailed in Bathurst CJ's judgment, are sufficiently analogous. It was not reasonable for a decision to be made about a plea until the applicant's fitness to plead had been examined nor until it was ascertained whether he had a defence by reason of mental illness. Within a reasonably short period after Dr Nielssen's report was received the applicant pleaded guilty to the offence charged. I consider that the circumstances in the present case would lead to an unjust result if the delay for the purpose of obtaining Dr Nielssen's report and its consideration by the applicant was not taken into account in assessing the appropriate discount for the guilty plea.
8. I, therefore, agree with Bathurst CJ that a discount of 25% should be accorded to the applicant for the utilitarian value of his plea.
9. R S Hulme AJ: I agree with the orders proposed by the Chief Justice and with his Honour's reasons.

Amendments 04 August 2016 - pars [76] and [82] and coversheet change "Isrial" to "Israil" par [87] change "Crimes Sentencing Procedure Act" to "Crimes (Sentencing Procedure) Act" par [100] close bracket at end of paragraph 25 August 2016 - coversheet - added applicant's junior counsel DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2016