VORHAUER v R

Court of Criminal Appeal (NSW)|2006-11-10|Before: McClellan CJ, Hulme J, Rothman J, Sheahan J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 66; Rothman J at 67

DECISION: 1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence but dismiss the appeal

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - application for leave to appeal against sentence - attempt by local council to enter appellant's property - purpose of entry to carry out court order - use of weapon to prevent lawful apprehension - malicious wounding of police officers to avoid apprehension - whether self-defence considered by the jury - whether orders of the Council and Land and Environment Court were valid - whether police had authority to enter premise

Companion Animals Act 1998 (NSW) Judiciary Act 1903 (Cth) LEGISLATION CITED: Mental Health Act 1990 (NSW) Criminal Appeal Act 1912 (NSW) Jury Act 1977 (NSW)

Adams v Kennedy (2000) 49 NSWLR 78 Maxwell v R (1996) 184 CLR 501 CASES CITED: R v Macks and Ors; Ex Parte Saint (2000) 204 CLR 158 R v Presser [1958] VR 45 R v Vorhauer [2002] NSWCCA 483 University of Wollongong v Metwally (1984) 158 CLR 447

PARTIES: Florence Amelia Vorhauer (Appl) The Crown

COUNSEL: Appellant in person J Dwyer (Crown)

SOLICITORS: Appellant in person Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2004/1772

McCLELLAN CJ at CL HULME J ROTHMAN J

MONDAY 14 MAY 2007 VORHAUER, Florence Amelia v R Judgment 1 McCLELLAN CJ at CL: The appellant, Florence Vorhauer, was convicted after trial before a jury of three offences:

Use of an offensive weapon, namely a Molotov cocktail, to prevent lawful apprehension.

Maliciously wound Stuart Crawford [a police officer] with intent to prevent lawful apprehension.

Maliciously wound Colin MacDonald [a police officer] with intent to prevent lawful apprehension. 2 The appellant represented herself at the trial. She was sentenced on 18 December 2003 to a total of 4 years imprisonment, commencing 4 May 2003, with a non-parole period of 2 years. The appellant was 64 at the time of sentence. She was released to parole on 14 July 2005, following assessment of her mental heath. The full term of the appellant's sentence will expire on 3 May 2007. 3 She now appeals her conviction and seeks leave to appeal against her sentence. 4 Before addressing the grounds of appeal it is necessary to provide some background and outline the complex and extensive history of this matter.

The facts 5 The appellant resides on a standard size suburban block in Tamworth. She lives with her daughter, Lisa, who suffers significant medical difficulties. 6 The offences were committed when local council officers and police attempted to carry out a Land and Environment Court order, made by Sheahan J on 22 March 1999, which required the number of chickens being kept on the property to be reduced from three hundred to fifteen. The appellant was required to comply with the order by 30 June 1999. Failing her compliance the Council was authorised to carry out the orders. 7 On 9 July 1999, the Council advised the appellant that they would be seeking compliance with the order and attending the premises to ensure it was carried out. 8 The appellant had previously fortified her property by using steel reinforcing on the fences and had put up a steel gate, placing sheets of corrugated iron over the gate. The premises were found by the judge to have been constructed as "a fortress." 9 On 14 July 1999, which was the day on which the offences occurred the council officers commenced to remove the galvanized iron from the appellant's property. The appellant was in possession of a large crowbar which apparently had a sharpened end. She was advised by a police officer not to interfere with the council officers. The appellant ignored the request and thrust the bar in the direction of the council officers through the fence, missing one of them by a small distance. 10 This action was repeated after the appellant had been asked by Det Insp Steele, an Inspector of the NSW Police, to put the bar down. He then informed the appellant that she was committing an offence and she was going to be arrested. The appellant responded by again pushing the bar towards the council officers. 11 The appellant then approached a 44-gallon drum where she had some blue liquid stored in kerosene bottles. She used a match to light a firelighter/wick in one of the bottles and threw it over the fence. The appellant, in response to a statement by the police officer saying that she would be arrested, said that she had not broken any law, obtained another bottle, lit it and threw it over the fence. The bottle landed on a tree in the median strip. 12 A police negotiator showed the appellant the court order from the Land and Environment Court and sought her co-operation with the Council to allow the order to be carried out but the appellant said she was not complying with the order. Another police officer observed the appellant's actions, in particular, her actions in using the crowbar and the Molotov cocktails and told her that she was under arrest. She was also informed that if she did not come out, police would enter her premises and she would be arrested. 13 Shortly thereafter, three police officers entered the premises. The appellant's daughter was confronted and arrested. The appellant approached the officers through a side alley carrying a metal spike which she pointed towards the police. 14 One police officer, Snr Const Crawford, saw the appellant and approached her. He grabbed hold of the bar and pushed the appellant to the ground. 15 Sgt MacDonald, an operation support officer, assisted Snr Const Crawford and pinned the appellant to the ground while calling for Snr Const Crawford to handcuff her. Snr Const Crawford attempted to handcuff the offender but noticed that she had a Stanley knife in her hands. Sgt MacDonald was then on top of the appellant. He knocked the knife out of her hand with his police baton. However, the knife was attached by an elastic band to a tunic the appellant was wearing and she was able to retrieve the knife. The appellant then slashed Sgt MacDonald's arms cutting him deeply around the area of his wrist. 16 Snr Const Crawford attempted to kick the knife out of the appellant's hands. In that process he received a cut through his pants and into his leg. The appellant was arrested and removed from the scene. 17 The appellant had no prior criminal convictions and was dealt with as a person of prior good character.

The appellant's case 18 At her trial the appellant contended that the order of the Land and Environment Court was not a valid order. She said that it did not give any authority to break in to the appellant's premises. The order said, "may enter", which she said meant that the Council had to ask for permission to enter, as the order did not authorise entry and certainly did not mean that they could break-in. The order said "may enter" not "break and enter" and that means you ask for permission to come in. The order did not name a date for entry, which she said meant there was no authority to enter on that date, or any other date. 19 The appellant argued that the Companion Animals Act 1998 (NSW), referred to in a circular issued to the councils in 1998, provided no limit on the number of animals that a person can own provided that the animals are properly cared for and do not pose a nuisance, health or safety risk to other members of the community. Tamworth City Council did not have a policy on poultry numbers, and as there was no adverse RSPCA report on the health of the poultry, the appellant said there was no basis for the Land and Environment Court order. 20 The appellant submitted that the Land and Environment Court did not have the constitutional authority to make the order, and had no jurisdiction to make orders limiting animal numbers. The order said that if she did not comply she would be involved in contempt proceedings and the appellant said that she presumed that the Council would have to take her to the Supreme Court for contempt, not break in to her property. 21 The appellant argued that there was no basis for the assembly of police or the Council outside her property that day. She had instigated legal action at the Council for putting fluoride and chlorine in the water and she feared an attempt on her life, as the Council wanted to do anything to stop her. Local councils are not authorised by the Constitution and have no legal authority. She submitted that the only valid law in Australia is the Constitution and any law enacted by the state of New South Wales is invalid. 22 The appellant claimed that she had acted in self-defence, defence of her property, and her daughter. She was trying to protect her property when the Council came to take her poultry. The police should have stopped the Council breaking in. The police had no warrant to authorise their break and enter that day and they must have a warrant to enter anyone's property. When she was being arrested she felt that the police were trying to kill her and she was fighting for her life. She heard her daughter screaming loudly but could not see what was happening to her and feared the worst. She could only see police wearing riot shields. She forgot she was carrying a crowbar and ran to where Lisa was but was stopped and knocked down by the police. She did not wound the police officers consciously and she had no memory of inflicting the injuries. She just remembered thinking of the Stanley knife but she did not remember anything else. 23 The appellant submitted that the evidence concerning the injuries received by Sgt MacDonald was not supported by the position of the cuts on the sleeves of his jacket. His jacket was very unlikely to have ridden up that far exposing his forearms. She said that she would not have been able to reach Snr Const Crawford's leg as she was lying on her back when he said she inflicted the injuries on him. The Crown did not produce any fingerprints or blood samples to link her with any of the exhibits. 24 She said that she could not hear what Det Insp Steel was saying to her that day because she has hearing difficulties. However, she said it was clear from the videotape that she was raising legal issues as the basis and reason she would not let the Council in. She believed that a sheriff is the only officer authorised by the High Court to enforce court orders and therefore only the sheriff could break-in. She was not told she was under arrest and neither was her daughter. The allegation of resisting lawful arrest cannot stand because they were not told they were under arrest, to have the allegation of resisting arrest made against them. 25 With so many police and an ambulance present she said that she feared the ambulance could only be there for her and her daughter's injuries and they genuinely feared for their lives. The injuries she received that day from the police arresting her supported the validity of her fears. She did not throw the lighted bottles directly at police or at anyone else. They were not thrown to prevent arrest. She threw the lighted bottles of kerosene in an attempt to set the tree on the verge alight and bring the fire brigade in, who would act as a voice of reason and restraint in the situation.

The history of legal proceedings 26 The trial and appellate process in relation to this matter has been lengthy. On 14 July 1999 the appellant was taken into custody and refused bail. On 6 September 1999 bail was granted. On 20 March 2001 the appellant issued a s 78B notice in respect of her pending District Court trial. 27 On 5 September 2002 the appellant filed an application for removal of the District Court trial to the High Court. 28 On 9 September 2002 the appellant's trial was listed before Payne DCJ in the District Court at Tamworth. The Attorney General for NSW intervened and Payne DCJ made various interlocutory orders. On 11 September 2002 the trial was adjourned by Payne DCJ. 29 On 27 November 2002 the Court of Criminal Appeal (Spigelman CJ, Sully and Kirby JJ) heard the appellant's application for leave to appeal). The application was dismissed by the court in an ex tempore judgment: R v Vorhauer [2002] NSWCCA 483. 30 On 2 January 2003 the appellant filed applications in the High Court for special leave to appeal against the decision of the Court of Criminal Appeal. 31 On 26 March 2003 Gleeson CJ heard the appellant's application to remove her District Court trial to the High Court (made under s 40 of the Judiciary Act 1903 (Cth)). The application was dismissed. On 19 May 2003 the appellant filed an application for leave to appeal against the decision of Gleeson CJ. 32 On 2 June 2003 the trial began before Blackmore DCJ and a jury of twelve. The appellant pleaded not guilty. On 27 June 2003 the jury found the appellant guilty on all three counts and on 18 December 2003 Blackmore DCJ sentenced her to a fixed term of 18 months imprisonment to commence on 4 May 2003 and expire on 3 November 2004 in respect of count 1 (use offensive weapon); imprisonment for 3 years to commence 4 May 2003 and expire 3 May 2006 with a non-parole period of 18 months to expire 3 November 2004 in respect of count 2 (malicious wound); and imprisonment for 4 years to commence on 4 May 2003 and expire on 3 May 2007 with a non-parole period of 2 years to expire 3 May 2005 in respect of count 3.

History of this appeal 33 The Notice of Appeal against conviction and notice of application to appeal against sentence was filed in this Court on 1 June 2004. However, it has had a troubled history. 34 The appeal was listed on 1 October 2004 when the Crown was ready to proceed. The appellant was in custody at the time and sought an adjournment on two grounds, firstly that she wished to file a notice of motion in the High Court to transfer the appeal on the basis that the proceedings raised a Constitutional matter; and secondly that access to trial transcript and her legal papers was restricted by her incarceration and she was not properly prepared. It came to the court's attention at this time that the appellant had been scheduled in accordance with the provisions of the Mental Health Act 1990 (NSW). The appellant was transferred from Mulawa Correctional Centre to Long Bay Hospital as a forensic patient on 26 August 2004. The court agreed to grant an adjournment and his Honour Justice Dunford made orders that the parties place before the court on the next occasion such material as was available on the issue of the appellant's fitness and capacity to conduct the appeal. 35 The appeal was listed again on 6 April 2005 when the Crown was ready to proceed. A report had been commissioned by the Crown from Dr Wong regarding the appellant's fitness to conduct her appeal. A report from the Mental Health Review Tribunal dated 19 October 2004 expressed the opinion the appellant was properly detained as a forensic patient and should continue to receive ongoing care and treatment. The hearing was vacated on the basis that the appellant had lodged a late application for Legal Aid representation. Legal Aid was ultimately refused. On 5 May 2005 a Notice of Discharge of Person under s 100A of the Mental Health Act 1990 (NSW) was signed and when suitable accommodation was approved the appellant was released to parole on 14 July 2005. 36 On 24 November 2005, the appeal again came before this Court. The appellant applied for an adjournment for at least six months to allow her time to consider the trial transcript and add transcript references to her extensive written submissions. She complained of her own ill health and that of her daughter. It was apparent at this hearing that the appellant found it difficult to travel to Sydney for the hearings and was content to have the appeal considered on written submissions. Simpson, Adams and Hoeben JJ granted the adjournment. 37 As it happened, after several call-overs, the matter was adjourned for almost twelve months and came before this court, as presently constituted, on 10 November 2006. At this hearing, the appellant applied by letter for a further adjournment on the grounds of ill health and stated that she needed to prepare further submissions. At that time the Court expressed the view that there was a need for these proceedings to be brought to a conclusion. This Court nevertheless adjourned the hearing and provided for any further written submissions to be filed by the appellant by 8 December 2006. Any submissions in reply were to be filed by 15 December 2006. The Court indicated that it would thereafter proceed to determine the matter having regard to all the written material before it. No further submissions have been received.

Grounds of appeal 38 The appellant's statement of grounds of appeal, filed on 1 June 2004, was extensive, comprising 71 paragraphs. The Crown, in its submissions, grouped these grounds under convenient headings. Those groupings are appropriate. The Crown also submitted, and I accept, that paragraphs 14, 19, 20, 21, 26, 29, 33, 40, and 41 do not raise matters of relevance or do not disclose grounds of appeal. I have not repeated them in these reasons.

Constitutional issues 39 The appellant submitted, in paragraphs 39, 44, 45, 50, 51, 65.1-65.7, 67-70 of her statement of grounds of appeal that State courts cannot conduct trials because the Constitution requires trials to be in Commonwealth courts. She also submitted that State laws cannot be valid because there is no Constitutional authority for them. The appellant made several submissions in which she alleged that the local government laws, which required her to remove her chickens were "treason." The appellant further asserted that because the trial judge was Jewish, s 25 of the Australian Constitution meant he had no authority to conduct a trial as he could not sit as a judge. 40 Most of these issues have been agitated as grounds of appeal against interlocutory judgments or orders under s 5F of the Criminal Appeal Act 1912 (NSW). Leave to appeal was refused by Spigelman CJ, Sully and Kirby JJ (See R v Vorhauer [2002] NSWCCA 483). With respect to the appellant's submission made to that court that University of Wollongong v Metwally (1984) 158 CLR 447 had the effect of removing authority from the State court, Spigelman CJ noted at [11] the following: "The Applicant also referred to covering cl 5 of the Constitution as binding all courts and relied on the "self-executing nature of the Constitution", for which proposition she relied on the High Court judgment in University of Wollongong v Metwally (1984) 158 CLR 447. This judgment, again "in conjunction with" s73 of the Constitution had, she said, direct effects on the validity of orders made in the proceedings, particularly by the respective District Court judges. Nothing in s73 of the Constitution has the effect of entrenching what the Appellant referred to in her Notice of Motion as "common law rights". None of the respects in which she relied on this chain of "reasoning" can be upheld." 41 Likewise, the appellant's submission that Local Government is invalid following the failed referendum of 1988, was addressed by Spigelman CJ at [14] in the following terms: "The Appellant contends that local councils are unconstitutional by reason of the failure of the constitutional referendum which would have included a reference in the Australian Constitution to local government. There is no logic in this. Local governments are created by State legislation under the respective State Constitutions. The absence of any reference to local government in the Australian Constitution is just irrelevant." 42 In so far as these issues are raised by the appellant in this appeal they may be rejected for the same reasons as provided by Spigelman CJ. In relation to the appellant's submission that the Commonwealth Parliament is the only lawmaker permitted by the Constitution, the Attorney General submitted, in my opinion, correctly that sections 106-108 preserve State legislatures, s 80 only provides for trial by jury for offences against Commonwealth laws, and s 120 provides for the detention of Commonwealth prisoners in State prisons. None of these sections have the effect of making the Commonwealth Parliament the exclusive lawmaker. 43 In relation to the submission regarding the trial judge's authority and his alleged religion, the appellant's submissions are completely without foundation. Section 25 of the Constitution concerns voting rights and has no relevance to this matter. Gleeson CJ also rejected these arguments when these points were raised in support of a special leave application.

The validity of the orders made by Tamworth City Council and the Land and Environment Court 44 This issue was raised in paragraphs 1-19 of the appellant's statement of grounds of appeal. The appellant submitted that the court's orders were beyond power and illegal. 45 There has been no appeal against the orders made in the Land and Environment Court. The Land and Environment Court is a superior court of record and its orders are valid until set aside (see R v Macks and Ors; Ex Parte Saint (2000) 204 CLR 158). The council officers' actions were undertaken for the purpose of carrying out the orders of the Court.

The entry of the police to the appellant's premises 46 The appellant submitted that the police had no authority to enter her premises or arrest her and that the actions of the police on 14 July 1999 were illegal. Specifically the appellant submitted that the police had planned the operation in advance, acted without a warrant and exceeded their authority to take action to keep the peace. The appellant also contended that since the council officers had no authority to enter the premises, the police had no authority to support their actions. 47 In my opinion the police were acting within their statutory powers. The appellant was notified in advance that the Council would be seeking compliance with the order. Following the attack on the council officers with the crowbar and the Molotov cocktails the words and conduct of Det Insp Steele made clear the basis for the arrest of the appellant and entry onto her premises to do so. The Crown submitted that, to the extent that this communication was not clear to the appellant, her behaviour substantially contributed to the difficulty (See Adams v Kennedy (2000) 49 NSWLR 78). I am satisfied that, given the exigencies of the situation, the police powers to arrest and force entry were appropriately utilised. 48 The appellant challenged the constitutional validity of the authority of the police. Spigelman CJ addressed this issue as part of his Honour's judgment on the s 5F appeal in the following terms at [15]: "The Applicant referred to s114 of the Constitution which prohibits the States from raising or maintaining any military force. The New South Wales Police Force is not a military force. She submitted, on the same basis, that no one other than a Sheriff could arrest her and that, accordingly, she was entitled to ignore the steps taken to arrest her. There is valid New South Wales legislation with respect to the process leading to her arrest. Section 114 is irrelevant to the charges which she now faces, even if everyone was a trespasser. Nor does s114 constitute some kind of excuse from the conduct leading to the charges which she faces, for example, the charge of unlawfully wounding. 49 For these reasons provided by Spigelman CJ I would reject this ground of appeal.

The rulings of the trial judge and the conduct of the trial 50 The appellant contended that the trial judge incorrectly relied on hearsay evidence. It is unclear as to which part of the summing up the appellant is referring. It may be that she is referring to the expert psychiatrist reports tendered on the sentencing hearing. The Crown emphasised that the appellant was provided with an opportunity to cross-examine the expert witnesses at the trial. No error has been demonstrated. 51 The appellant also submitted that the jury did not consider self-defence. This submission must be rejected. In relation to the first count, his Honour said to the jury: "You will recall, for example, that the accused, while she made some complaints of a legal kind, never suggested to the police at the time that she feared for her life. She apparently had no reason to fear the police prior to this day. If you find that the accused did have, or that it is reasonably possible that she may have had, the belief that she was about to be injured or killed, or that her property was about to be unlawfully entered by council officers, it matters not that her belief about these things may have been completely misconceived or mistaken. The question is whether she genuinely believed those things, and that she conducted herself in response to that belief. If the Crown establishes beyond reasonable doubt that the accused did not personally believe that her conduct was necessary for her defence, then the Crown will have succeeded in eliminating self defence. If you are satisfied that the accused had, or that it is reasonably possible that she may have had, a belief, personally held, that her conduct was necessary for her defence, either of herself or her property, then you turn to the next question, namely whether the Crown has nevertheless proved beyond reasonable doubt that the conduct of the accused was not a reasonable response in the circumstances in which she found herself. Here again, even if the accused was honestly mistaken about her perception of her circumstances, providing you are satisfied that was or might have been her perception of them, and that her response was a reasonable one in the circumstances, the Crown will have failed to eliminate self defence. The Crown will only succeed if it satisfies you beyond reasonable doubt that the conduct of the accused was not a reasonable response in the circumstances that the accused was seeking them to be at the time of the conduct in question. Now, the Crown himself has addressed you just recently about these issues. In that regard, it may be important to make a distinction about the beliefs that the accused had. What might be thought to be reasonable and necessary to protect one's life might not be reasonable if the only question is whether you are protecting against a trespass to your property or protecting one's chickens. So you may well have to consider both of these claims separately, and make an assessment of them separately. If you find each of the elements of the offence made out beyond reasonable doubt, and you do not accept that the accused was acting in self defence in the manner in which I have explained it to you, then you can find the accused guilty of the first charge. Otherwise, you should find the accused not guilty of the first charge. 52 In relation to the second count, his Honour made the following directions in relation to the issue of self-defence: "In relation to these two charges, number 2 and 3, again there is the issue of self-defence. I have already given you a detailed direction about this with respect to the first count and I will not repeat all of that. However, I remind you that although self-defence is often referred to as a defence it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the accused was not acting in self-defence. It may do this by proving beyond reasonable doubt one or other of two separate things; namely one, the accused did not believe at the time that she wounded the two officers, McDonald and Crawford; that it was necessary to do what she did in order to defend herself, her daughter or her property. Now I have added into this particular issue the question of her daughter. I have added it in because you will recall that her evidence was to the effect that she heard her daughter screaming and that when she proceeded from the side of her property towards the gate area of her property that was foremost in her mind. So I will repeat again the Crown needs to prove to your satisfaction beyond reasonable doubt two separate things. Firstly, that the accused did not believe at the time that she wounded the two officers, McDonald and Crawford; that it was necessary to do what she did in order to defend herself, her daughter or her property; or secondly, if it is reasonably possible that she did have such a belief that nevertheless that conduct of hers in so wounding was not a reasonable response in the circumstances as she perceived them to be. If the Crown fails to prove either one or other of those matters then the appropriate verdict again is one of not guilty. Now as I understand it the accused maintains that she was acting in self-defence when she injured the officers, McDonald and Crawford, even though she has no specific memory of committing the acts of wounding of those police officers. The accused, as I understand it, maintains that the police had no right to enter her property to arrest her and consequently she was entitled to defend herself, her property and her daughter. That claim is, as I have already said, in relation to the first count in the indictment based on some legal argument which she claims gave her the right to refuse entry to the police that came to arrest her. One might have thought that if the claim was based on some law then the appropriate way to resolve it was in a court. However, clearly the accused does not trust courts or the law and you need to factor that into her thinking at the time. Whilst I have left the issue of self-defence for you to decide the issue needs to be given critical analysis. If you accept that Inspector Letchford did inform the accused that she was under arrest and that she should peacefully surrender herself to avoid police coming into her property it would be difficult to accept that when she refused to come out peacefully it was then reasonable, that is a reasonable response from her perspective to use a knife to defend herself against the police when they are entering to arrest her. The same considerations apply to the claim for self-defence of her property and her daughter. Having said that the matter is entirely a matter for you to decide. If the Crown has not satisfied you beyond reasonable doubt that the accused was not acting in self-defence when she wounded the two officers then she should be found not guilty. The claim for self-defence is a complete answer to the charges. If you find that the Crown has not satisfied you beyond reasonable doubt that the accused was not acting in self-defence it is an answer not only to the charges in the indictment but also to the alternative counts. Again I repeat it is a complete answer to both charges if you find that the Crown has discharged its onus in relation to the self defence." 53 I am satisfied that the issue of self-defence was left with the jury but rejected by them. This ground of appeal fails. 54 The appellant also submitted that the discharge of a juror during the course of the trial made her conviction by a jury of eleven illegitimate. The juror, who had to leave to travel to Newcastle before the trial would be completed was discharged in accordance with the Jury Act 1977 (NSW), and no error or prejudice to the appellant occurred. 55 The decision in Maxwell v R is referred to in the appellant's grounds of appeal. However, as the Crown submitted, Maxwell v R (1996) 184 CLR 501 does not appear to be relevant to any issue. 56 The appellant also maintained that the transcript of the verdict was not available and the verdict was not transcribed or recorded. The Crown submitted that it is unclear as to which part of the proceedings the appellant referrs. In any case, the verdict was transcribed and entered on the court record. It is also clear from the transcript of the sentencing proceedings that the appellant was provided with the transcript of the trial. The Crown understood that the sentencing proceedings transcript and remarks on sentence were also provided to the appellant.

Issue of mental illness in relation to conviction and sentence 57 The steps taken by the trial judge in relation to the assessment and consideration of the appellant's mental condition are also the subject of grounds of appeal. The appellant argued, in relation to the appeal against conviction, that the issue of mental illness was only considered after the verdict. In relation to the application for leave to appeal against sentence, the appellant submitted that the trial judge acted contrary to the Mental Health Act 1990 (NSW). 58 In his Honour's remarks on sentence, the sentencing judge noted that during the trial the appellant was "following the proceedings and was easily able to adapt her approach to circumstances as she found them." His Honour later in the remarks reiterated the finding that the appellant was "more than capable of following the proceedings and responding appropriately although at times she refused to do so." 59 The Crown submitted, and I accept, that the trial judge gave appropriate consideration to the appellant's mental illness, in accordance with the requirements of R v Presser [1958] VR 45 at 48. 60 In my opinion the appeal against conviction should be dismissed.

Application for leave to appeal against sentence 61 In relation to the application for leave to appeal against sentence, the trial judge's remarks clearly explain the course which was taken at the sentencing hearing. 62 In her various submissions the appellant raised a number of issues relating to her subjective circumstances, which she suggested were not given adequate weight by the sentencing judge. Chief among these are her own ill health and the need for her to care for her daughter, who suffers "encephalitis lethargica", which is apparently contagious and consequently means alternative care is unavailable. However, the appellant's family circumstances and ill health were included in Dr Giuffrida's report, which was considered in detail by the sentencing judge. 63 The Crown submitted that the offences were of a serious nature, requiring significant weight to be afforded to general deterrence, although it was acknowledged that the sentencing judge correctly took into account the appellant's mental illness. The Crown emphasised that the appellant made plans and preparations for the arrival of the council officers, used a knife to resist arrest and inflicted serious injury. 64 In my view, the Crown's submission should be accepted. The sentence of four years with a non-parole period of two years was appropriate. Although I would grant leave to appeal in relation to the sentence I would dismiss the appeal.

Orders 65 Accordingly, in my opinion the appropriate orders are:

Appeal against conviction dismissed. 2. Grant leave to appeal against sentence but dismiss the appeal. 66 HULME J: I agree with the orders proposed by McClellan CJ at CL and with his Honour's reasons. 67 ROTHMAN J: I agree with McClellan CJ at CL and the orders he proposes. **********

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Mental Health Act 1990(NSW)

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