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[2026] NSWCCA 81
Court of Criminal Appeal (NSW)
2026-06-17
Ward P; Cavanagh J; Weinstein J
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Walpole v R [2026] NSWCCA 81
Hearing dates: 18 May 2026
Date of orders: 17 June 2026
Decision date: 17 June 2026
Before: Ward P; Cavanagh J; Weinstein J
Decision: 1. Leave to appeal against sentence granted.
2. Appeal dismissed.
Catchwords: CRIME — Appeals — Appeal against sentence —where there was unchallenged expert evidence as to the causal nexus between the applicant’s mental illness at the time of offending and the offending conduct — whether the sentencing judge denied the applicant procedural fairness in rejecting that evidence — where the applicant developed PTSD as a result of the offending — whether the sentencing judge failed to take into account the applicant’s PTSD as a form of extra-curial punishment when sentencing
CRIME — Appeals — Appeal against sentence — leave to appeal granted — re-sentence — above mid-range objective seriousness of the offence — whether the applicant’s depressive state and its causal link with the offending reduced moral culpability — no lesser sentence warranted
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 44(2) Crimes Act 1900 (NSW), s 46 Criminal Appeal Act 1912 (NSW), ss 5(1), 6(3)
Original judgment source is linked above.
Cases Cited: Alameddine v R [2006] NSWCCA 317
Aslan v R [2014] NSWCCA 114
Baldwin v R [2026] NSWCCA 39
Betts v R [2015] NSWCCA 39
Casey v R [2015] NSWCCA 142
Christodoulou v R [2008] NSWCCA 102
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McLaughlin v R (2025) 393 FLR 349; [2025] NSWCCA 13
Melville v R [2023] NSWCCA 284
Nguyen v R [2025] NSWCCA 42
Quinn v R [2018] NSWCCA 297
R v Clampitt-Wotton [2002] NSWCCA 383
R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398
R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167
Smith v R [2024] NSWCCA 59
Weir v R [2011] NSWCCA 123
Wonj v R [2026] NSWCCA 4
Category: Principal judgment
Parties: Corbie Jean Walpole (Applicant)
Rex (Respondent)
Representation: Counsel:
P Boncardo with M Malaney (Applicant)
M Knowles (Respondent)
Solicitors:
Kell Moore Lawyers and Conveyancers (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)
File Number(s): 2024/00017206
Publication restriction: Nil
On 22 May 2025, following a plea of guilty in respect of an offence contrary to s 46 of the Crimes Act 1900 (NSW), the applicant was sentenced to a term of imprisonment of seven years and six months, with a non-parole period of four years and six months. The non-parole period will expire on 21 November 2029, with the head sentence due to expire on 21 November 2032. The applicant is presently serving her sentence in custody with her earliest release date being 21 November 2029.
The applicant was charged on 7 January 2024 with the offence of burn/maim/disfigure/disable a person using a corrosive fluid/destructive matter by dousing the victim in petrol and setting him alight in the early morning of 7 January 2024, after excessive drinking and consuming illicit substances the night before. The applicant entered a plea of guilty on 3 December 2024.
At the sentencing hearing on 8 May 2025, the applicant adduced evidence from forensic psychologist Dr Roger Blake, as to the applicant’s “clinical level depressive disorder” at the time of the offending. Dr Blake opined as to the causal connection between the applicant’s mental illness and the commission of the offence. Dr Blake also opined that the applicant had experienced debilitating psychological impacts as a result of her offending, identifying that as post-traumatic stress disorder (PTSD).
The sentencing judge rejected that the applicant’s mental state in any way contributed to the offending or her decision making; rather, finding it was the result of intoxication and the use of the drug cocaine that resulted in her aggression and impaired decision making.
The applicant sought leave to appeal against the sentence imposed on her. The applicant raised two grounds of appeal: first, that the primary judge denied the applicant procedural fairness in her Honour’s rejection of the unchallenged evidence of forensic psychologist Dr Blake as to the causal nexus between the applicant’s mental illness at the time of the offending and the offending conduct (Ground 1); and second, that the primary judge failed to take into account a relevant consideration that the applicant had developed, as a result of the offending conduct, a serious mental illness (Ground 2).
The Court held (Ward P, Cavanagh J and Weinstein J), granting leave to appeal and dismissing the appeal:
1. There is no obligation on a sentencing judge to accept unchallenged evidence even where there has been a concession by the other party. However, a judge is not entitled to reject uncontested expert evidence without some rational basis for doing so ([93]).
GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 and Nguyen v R [2025] NSWCCA 42 considered and cited.
3. The Court did not accept that there was a conflict in the expert evidence so obvious on the face of the reports that the applicant would have been on notice of the possibility that Dr Blake’s evidence as to causal connection would be rejected ([94]).
4. In determining what sentence it should impose, a sentencing judge can properly take into account that the offender has already suffered some serious loss or detriment, as a result of having committed the offence, including self-inflicted injuries.
R v Daetz; R v Wilson (2003) 139 A Crim R 398; [2003] NSWCCA 216; Alameddine v R [2006] NSWCCA 317 and Betts v R [2015] NSWCCA 39 considered and cited.
5. However, the Court found that the development of PTSD, consequent upon the applicant’s realisation of what she had done and the impact it has had upon her, should not be considered a form of extra-curial punishment. While the development of an illness, whether physical or mental can be taken account of, in the sense that the time spent in prison might be more onerous than it otherwise might have been, the development of PTSD consequent upon the offending would not generally, or in this case, be viewed as a form of extra-curial punishment. The Court noted that there may be exceptional cases where the development of a psychiatric illness, such as PTSD, since the offending is considered a form of extra-curial punishment.
Baldwin v R [2026] NSWCCA 39; Melville v R [2023] NSWCCA 284; Alameddine v R [2006] NSWCCA 317; Casey v R [2015] NSWCCA 142; Christodoulou v R [2008] NSWCCA 102; Betts v R [2015] NSWCCA 39; Quinn v R [2018] NSWCCA 297; R v Clampitt-Wotton [2002] NSWCCA 383; R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167 considered and cited.
6. The Court found that no lesser sentence than that imposed by the sentencing judge was warranted at law.
7. The Court found that the objective seriousness of the offence was above mid-range. While the Court accepted that the offending was not pre-meditated and was impulsive, it found that the applicant’s actions were deliberate which led to very significant consequences. This was a matter involving serious offending, calling for strong denunciation.
8. As to the applicant’s moral culpability, the Court accepted that the applicant’s depressive state and its causal link with the offending may impact on her moral culpability. The Court accepted that the applicant’s depressive disorder does result in a reduction of her moral culpability, at least to a certain extent, however, the Court found that it does not reduce the significance of general deterrence, retribution and denunciation in the exercise of the sentencing discretion in this case.
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; Aslan v R [2014] NSWCCA 114; Wonj v R [2026] NSWCCA 4 considered and cited.
9. The Court found that the offending conduct requires strong denunciation and weight must be given to general deterrence in the exercise of the sentencing discretion. The Court accepted that there is no need for special deterrence in this case.
10. As to the applicant’s subjective case, the Court did not accept that the offending was an uncharacteristic aberration and entirely out character. However, the Court accepted that the applicant is otherwise a person of good character, is genuinely contrite and remorseful, has made significant efforts to rehabilitate herself, has excellent prospects of rehabilitation, is unlikely to re-offend and has experienced and continues to experience PTSD which arose as a result of the offending which may make her time in custody more onerous.
11. The Court accepted that a finding of special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be made, given that it is the applicant’s first time in custody, the applicant has experienced difficulties in custody including due to her mental health, the applicant needs an extended period to re-integrate into the community, the applicant’s relatively young age and the need for rehabilitation.
THE COURT: The applicant, Ms Corbie Jean Walpole, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) to appeal against the sentence imposed on her by English DCJ on 22 May 2025, following a plea of guilty on 3 December 2024 in respect of an offence contrary to s 46 of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 25 years’ imprisonment. There is no standard non-parole period.
The applicant was sentenced to a term of imprisonment of seven years and six months, with a non-parole period of four years and six months. The non-parole period will expire on 21 November 2029, with the head sentence due to expire on 21 November 2032. The applicant is presently serving her sentence in custody with her earliest release date being 21 November 2029.
The applicant seeks leave to appeal on the following two grounds:
- The primary judge denied the [applicant] procedural fairness in her rejection of the unchallenged evidence of forensic psychologist Dr Blake as to the causal nexus between the [applicant’s] mental illness at the time of the offending and the offending conduct.
- The primary judge failed to take into account a relevant consideration that the [applicant] had developed, as a result of the offending conduct, a serious mental illness.
A Statement of Agreed Facts was tendered (Ex A) during the sentencing hearing. An affidavit by the applicant was also tendered (Ex 2) and read without objection from the Crown. What follows is largely drawn from the Statement of Agreed Facts, to which the paragraph references relate unless otherwise indicated.
The applicant was 23 years old at the time of the offending (24 years at the time of sentence) and lived at a property in Howlong with her then de facto partner ([1]). The victim, Mr Jake Loader, was 22 years old at the time of the offending and worked as a musterer on a cattle station in North Queensland ([2]) but during his childhood had lived in the Albury region.
The applicant and the victim had been friends since school and were part of the same friendship group; they had been friends for about nine years ([4]). At the time of the incident, the victim and his partner were visiting friends in the area ([3]).
About 8pm on 6 January 2024, the victim and friends were at the Howlong Golf Club having some drinks when the applicant and her partner arrived. They continued to catch up and drink. Members of the group, including the applicant, also took cocaine ([5]).
The applicant and the victim, with various friends, attended a number of parties in the Albury area throughout the evening ([6]-[8]).
At about 4am on 7 January 2024, the applicant and the victim, with others, arrived at the applicant’s house in Howlong where the group continued to chat and drink alcohol in the back outdoor entertaining area. At some stage, some of the group went inside to sleep ([9]).
Around 5am, the victim and the applicant, with two others were sitting out the back; the victim and the applicant were antagonising each other, as they had been doing all night ([10]).
The applicant has deposed (see her affidavit affirmed 22 April 2025 – Ex 2) that the victim had been antagonising her during the night; that he was telling her that she needed to get back to the kitchen and that she was just a girl (Ex 2 at [43], [46]). The applicant said that she “gave it” back to the victim as she thought he was being a misogynist (Ex 2 at [43]). The applicant also deposed that when they were at one of the parties that evening (a 21st birthday party) the victim had attempted to wrestle her and she had to use a pool stick to push him away (Ex 2 at [44]).
The applicant deposed (Ex 2 at [49]) that the victim was “really pushing [her] buttons” and that at one stage she sent a text message to his girlfriend pretending to be him and asking her to come and get him (Ex 2 at [49]).
The applicant deposed that by about 5am she was outside with the victim and two other men sitting around a table and that the victim kept telling her that she should be in the kitchen and making scones for them and that she “shouldn’t be out drinking with boys” and that he told her that she “was stupid” (Ex 2 at [51]).
In response to the victim antagonising her, the applicant walked to the garage area before returning outside holding a red plastic container of petrol (approximately 5 litres). The victim was sitting on a chair at the outdoor table setting. The applicant opened the container and poured the petrol over the victim’s head, upper torso and lap, soaking the victim ([11]).
The applicant reached over the table and grabbed a cigarette lighter; held the lighter out; and said words to the effect “I’ll do it! I’ll do it!” ([12]). The victim said words to the effect “go on, do it!” ([13]). In her affidavit, the applicant deposed that the victim looked at her and smiled when he said that (Ex 2 at [52]).
The applicant struck the lighter, igniting the petrol that was covering the victim, immediately engulfing the victim in flames ([14]-[15]). The victim ran around the yard attempting to remove his shirt; however, the shirt was melting on him as he attempted to get it off ([15]). A male who was there grabbed a dog bed and attempted to put the fire out but was unsuccessful; he then yelled at the victim to get into a portable pool in the yard; he grabbed the victim and dragged him to the pool and, with the help of another man they threw the victim in the pool and held him there to quench the flames ([16]). The screams from the victim were heard by several neighbours ([18]).
The applicant watched with her head in her hands saying “[w]hat the fuck have I done, what the fuck have I done, he just wouldn’t stop. He was telling me to do it” ([17]). The applicant was very distressed and soon afterwards left the house ([17]).
In her affidavit, the applicant deposed that she remembered being in the garage and a friend hugging her and trying to calm her down but that she did not really know what was happening or what she was doing (Ex 2 at [59]); and that she had a memory of running into her then partner, and then grabbed her keys and went down to the river, where three of her friends came and found her and tried to calm her down (Ex 2 at [60]).
The victim was suffering from shock and did not realise the severity of his burns; and he initially refused to be taken to hospital ([19]). After staying in the pool for about 30 minutes, the victim was driven by a couple of others to the mother’s house of one of the members of the group. The mother, who had experience with burn victims as an enrolled nurse, removed the remaining clothes from the victim and put him in a cold shower where he stayed for about 30 minutes until an ambulance arrived ([20]-[21]).
At about 9am, the victim was taken by ambulance to Albury-Wodonga Emergency Hospital; soon after, due to the nature and seriousness of the injuries, the victim was air-lifted to the Alfred Hospital in Melbourne ([22]).
The victim was put into an induced coma for eight days and underwent ten surgical operations treating the significant burns he suffered ([23]).
At about 3pm on 7 January 2024, the applicant sent an email message to the victim’s girlfriend, stating “I wanted to let Jake know I’m really sorry for everything that’s happened. I made a really stupid decision and I own that. It was a mistake and I wish I could go back in time. I hope he is okay. I am really sorry” ([24]).
The victim suffered third-degree burns to 55% of his body and second-degree burns to 6% of his body, with a total body surface area of 61% being affected by flame burns ([25]). Treatment included debridement of his back, left arm, chest/abdomen, right arm and bilateral legs; as well as skin grafting to his back, torso, left leg and bilateral arms ([26]). The victim has extensive skin damage to his back, chest, bilateral arms, legs and face, resulting in compromised mobility in his shoulders due to skin tissue contraction ([27]).
The applicant had consumed a substantial amount of alcohol leading up to the offending and had also consumed approximately 0.33g of cocaine in that period (the defence tendered on sentence a report dated 27 March 2025 of a consulting pharmacologist, Professor Macdonald Christie, in which Professor Christie was of the opinion that the applicant must have been very severely intoxicated by alcohol at the time of the offence because of her very high estimated blood alcohol concentration – in the range from 0.220 to 0.386 g%, “compounded by some additive impairing, and antagonistic effects of cocaine”).
The applicant was charged on 7 January 2024 with the offence of burn/maim/disfigure/disable a person by the use of a corrosive fluid/destructive matter.
In the aftermath of the offending, the applicant was in a state of distress and experienced suicidal ideation; was unable to leave her house; and lost six kilograms in a week as she was unable to eat. The applicant experienced flashbacks of the offence and of the victim burning. After some time, following consultations with a counsellor, Mr Kelvin Mui, the applicant was able to return to work (as an electrician) and eventually worked full-time.
At the time of the offending, the applicant was regularly consuming alcohol in excess and taking cocaine and other drugs. The applicant attributed her excessive alcohol consumption and illicit drug use to difficulties she was experiencing in her relationship with her then partner. After the offence, the applicant consumed no alcohol nor illicit drugs. The applicant had good support from her family and maintained her employment as an electrician but otherwise lost the bulk of her friends and had a somewhat isolated existence in Albury.
The applicant was committed for sentence from the Albury Court on 3 December 2024, having entered a plea of guilty to the sole count charged.
The sentence hearing took place on 8 May 2025 during the District Court sittings in Albury.
The applicant had filed and served an outline of submissions and a number of reports and character references, which comprised what was tendered on sentence as the defence tender bundle.
The applicant adduced evidence from Dr Roger Blake, a forensic psychologist, who had prepared a report dated 14 April 2025. Dr Blake was provided with the police facts and other documentation (though not, it seems, Professor Christie’s report, insofar as there is no reference to it in Dr Blake’s report).
In his report, Dr Blake expressed the opinion that at the time of the offence, the applicant was experiencing a “clinical level depressive disorder” and was masking the symptoms of depression through her use of illicit drugs and alcohol “due to feeling trapped in a highly dysfunctional relationship”. Dr Blake went on to opine that:
In my opinion, at the time of the commission of the offences to which these proceedings relate, [the applicant] was suffering from a mental health impairment. It is also highly likely that [the applicant] was experiencing an ongoing disturbance of thought, mood and volition during the commission of these offences. In my expert opinion, her mental health conditions and crisis would dramatically impair [the applicant’s] judgment, so as to create poor consequential thought processes and impaired foresight of risk of harm to the victim.
… there is a diagnosis of a mental health impairment that [the applicant] was suffering from at the time of the offence. There is a causal connection between this diagnosis and the commission of the offence. Due to her mental health condition as exacerbated by excessive alcohol and drug use [the applicant] has been unable to assess risk accurately and unable to make a rational decision on the night in question.
Dr Blake had earlier opined that, while excessive alcohol and use of illicit drugs was “contributory” to the escalation of tensions between the victim and the applicant, the applicant’s poor emotional state (referred to as “depression”) in the months prior to the offence was also contributory. He considered that, from his discussion with the applicant, it was likely that a misdirection of long repressed emotion including anger and frustration at her unloving relationship had occurred, culminating in her dangerous actions.
Dr Blake also opined that the applicant had experienced a definite mental health impairment as resulting from her offending, identifying that as PTSD, unable to assess risk accurately and make a rational decision. Dr Blake’s opinion was that the applicant had experienced debilitating psychological impacts as a result of her offending, which had changed the course of her life. Dr Blake expressed the opinion that the impact of a full-time custodial sentence would be highly adverse and said that full-time imprisonment would be more burdensome on the applicant (a highly vulnerable young person) than on an offender without her mental health issues.
Dr Blake was not required for cross-examination and his report (together with those of Mr Mui and Professor Christie – see below) were tendered at the sentence hearing without objection from the Crown Prosecutor.
The applicant also tendered a report dated 30 January 2025 of the counsellor, Mr Mui, who had been treating the applicant since she was referred to him on 18 January 2024. Mr Mui is an accredited mental health social worker, trained, among other things, in trauma-focused cognitive behaviour therapy. At the time of his report, Mr Mui had had 15 sessions with the applicant since the offending. Mr Mui explained that he had been providing the applicant with therapeutic support aimed at reducing and managing symptoms of PTSD, anxiety and depression, arising from the incident involving the victim. Mr Mui said that the applicant had demonstrated strong engagement with the treatment and had made significant progress managing her PTSD symptoms, particularly those associated with trauma triggers related to the offending, though the applicant continued to experience distress when recalling the events of that night.
In Mr Mui’s view, the applicant required at least a further 12 months of treatment to consolidate the progress she had made and address residual distress and trauma. Mr Mui considered that discontinuance of treatment would likely cause the applicant’s mental health to deteriorate and result in a regression in progress.
Professor Christie’s report dated 27 March 2025 addressed the likely level of intoxication of the applicant at the time of the offence (as noted above) and the impact, if any, that level of intoxication would have had on her cognitive functioning, including decision-making competence and capacity for reasoning at the time of the offence.
Professor Christie stated that a likely blood alcohol concentration that he estimated the applicant had is associated with profound intoxication and severe impairments of cognition, reasoning, mood and self-control, as well as motor functions and reactions; and that this may affect the ability to control behaviour and can cause decisions to be made and actions performed that would otherwise not have been undertaken. Professor Christie observed that it was likely that the applicant’s self-control and self-evaluation of the consequences of her actions were severely impaired at the time of the offence.
As to the use by the applicant of a substantial quantity of cocaine in the morning of the offence, Professor Christie explained that cocaine is a psychostimulant drug that produces characteristic patterns of signs and symptoms of intoxication; and that cocaine also produces increased violent behaviour. Professor Christie considered that the applicant’s use of cocaine almost daily in the weeks before the offence would increase the probability of irrational episodes during periods of use.
Relevantly, in light of the Crown’s submissions on Ground 1, Professor Christie said that the “[u]se of psychostimulants in combination with severe intoxication by alcohol was likely to counteract the depression of and somewhat counteract the general depressant effects of alcohol intoxication on arousal and alertness, while simultaneously increasing alcohol-induced disinhibition, or inability to control behaviour, and erratic behaviour”. Professor Christie said that the applicant would still have suffered from the severe impairment due to the use of cocaine and her impairment of rational self-control would have been exacerbated by the combination with alcohol.
In written submissions dated 22 April 2025, which were filed and served before sentence, it was contended for the applicant, in reliance on Dr Blake’s report, that: there was a causal connection between the applicant’s depressive disorder and the offending; that causal nexus attenuated the objective gravity of the offending; and the causal nexus diminished the applicant’s moral culpability for the offending and entailed that she was not an apposite vehicle for general deterrence, and that the sentencing purposes of retribution and denunciation should carry appreciably less weight.
The applicant also relied upon the development of PTSD as a result of the offending, pointing to this as a psychiatric injury occasioned in connection with the offending that the applicant submitted could be taken into account as a species of extra-curial punishment on account of the debilitating impact it had had and Dr Blake’s opinion that it would change the course of her life.
Further, the applicant noted that, for the purposes of s 21A(3)(e) of the *Crimes (*Sentencing Procedure) Act 1999 (NSW) (CSP Act), she did not have a record of previous convictions and that this was a matter in mitigation. (The applicant accepts that she had committed a single prior offence of assault occasioning actual bodily harm on 9 May 2021 for which she had been sentenced to a conditional release order for 12 months without conviction by the Local Court in Albury on 13 September 2021. In the sentence judgment, her Honour noted that the facts upon which the applicant was sentenced in 2021 had been tendered and that it was an episode of alcohol fuelled violence.)
In his address on sentence, the applicant’s senior counsel relied upon the PTSD she had developed as a “psychiatric condition of some severity” occasioned by the offending (08/05/25; T 36.47).
The applicant’s senior counsel noted that, apart from the issue of provocation, which had been raised as a mitigating factor, and his submission that an intensive correction order was available and appropriate, there was no great difference between the Crown and defence.
In his address on sentence, the Crown Prosecutor referred to the reasoning in DS v R*;* DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 (DS v R) in light of the expert reports before the sentencing judge and the evidence “here from the psychiatrist that there was a causal connection” between the impairment and the offence. The Crown Prosecutor submitted that the Court should not be satisfied that the applicant’s depressive disorder operated to diminish the objective seriousness of the offending. However, by analogy with the reasoning in DS v R, the Crown Prosecutor said that the circumstance of a diminution in the capacity for judgment and consequential thought as a result of the applicant’s depressive disorder would warrant a reduction in her moral culpability and have a correlative impact on the weight to be given to other sentencing factors (08/05/25; T 31-32).
No issue was taken by the Crown as to the applicant’s reliance on her development of PTSD as a species of extra curial punishment.
The applicant was sentenced before English DCJ on 22 May 2025 on which occasion her Honour delivered ex tempore remarks on sentence.
Her Honour observed at the outset that this was a tragic case in so many ways, referring to the impact on the young persons and their families. Her Honour then set out the facts and circumstances of the offending, about which there is here no complaint.
Her Honour held that the applicant’s acts in dousing the victim in petrol and setting him alight were deliberate, observing that the acts were committed in the presence of others who were exposed to the risk of being burned themselves, particularly those who went to the victim’s aid. Her Honour observed that the scene must have been truly horrific for those present to witness and noted that the applicant did not render assistance but left the scene.
Her Honour characterised the applicant’s act as one of immediate destructive and horrifically painful violence, with serious consequences for the victim.
Her Honour rejected the submission that the offending was provoked, observing that the extent of that provocation was misogynistic comments (something the applicant had heard before) and which did not warrant the level of violence and injury inflicted on the victim.
Her Honour returned later to the submission that the applicant was provoked and expressly found to the contrary, that the assault was unprovoked and “particularly violent”. Her Honour said that if she was wrong in that regard, the extent of provocation (the misogynistic words) did not warrant the extent of the response of the applicant.
Her Honour held that the consequences of the acts were “clearly foreseeable” even in the applicant’s intoxicated state. Her Honour rejected out of hand, the assertion that the applicant was not aware that the petrol would ignite if she lit the lighter, noting that the applicant had threatened to set fire to the victim and did exactly that. Her Honour also noted (in the context of the applicant’s claim to Dr Blake that her intention was to scare the victim not to harm him), that the applicant had the opportunity to stop after she poured the petrol on him and had the opportunity to do so when she reached for the lighter.
Her Honour found that the victim’s injuries were towards the upper end of the range for injuries of a like nature.
Her Honour said that the offending was not an “uncharacteristic aberration”, referring to the applicant having previously engaged in “alcohol fuelled violence”.
Her Honour rejected the submission that the offence fell below the mid-range and said that she was not prepared to find that the applicant’s mental state in any way contributed to the offending. Her Honour gave reasons for that last conclusion later in the sentence judgment. Her Honour concluded that the offence fell above mid-range, expressly concurring with the Crown’s contention that the offending fell “above mid-range”. (The applicant notes that the Crown Prosecutor had submitted that the offending was “just above” the middle of the hypothetical range – see 08/05/25; T 34.10.)
Her Honour accepted that the applicant was entitled to the statutory 25% discount for her plea of guilty and observed that the plea demonstrated the applicant’s contrition and had significant utilitarian value. Her Honour found that the applicant was extremely remorseful and contrite; and that the applicant had excellent prospects of rehabilitation and was unlikely to reoffend.
Relevantly for present purposes, her Honour had earlier in the reasons, outlined Dr Blake’s opinion that at the time of the offence the applicant was experiencing a clinical level depressive disorder and masking the symptoms of depression through the illicit use of drugs and alcohol, due to the applicant feeling trapped in a highly dysfunctional relationship. As to Dr Blake’s opinion on the causal link between that mental illness and the offending, her Honour said (22/05/2025; T 9):
It is his opinion, at the time, she was suffering from a mental health impairment and likely experiencing disturbance of thought, mood, and volition, which dramatically impaired her judgment so as to create poor consequential thought processes and impaired forethought of the risk of harm to the victim. Dr Blake says her mental disturbance would be regarded as significant for a clinical diagnosis under the DSM V, that the mental disturbance impaired her emotional wellbeing judgment and behaviour.
He says the combined effects would be dis-inhibiting, aggression and irrational behaviour. Such a profound level of intoxication would result in an impairment of cognition, reasoning, mood and self-control, and is likely to have affected the ability of the offender to understand the severity of her planned activity, control her behaviour, and would cause her to make decisions and perform actions that she would not otherwise have undertaken. It is his opinion that her ability to perceive clearly, think rationally, and control emotional reactions, would have been severely disrupted regardless of any tolerance she might have had to the alcohol.
In his expert opinion cocaine is a psychostimulant drug that produces a characteristic pattern of signs and symptoms of intoxication, generally lasting for up to two to three hours during an episode of use but longer-term adverse effects such as psychostimulant induce psychosis can also be common. He says cocaine typically causes agitation, aggression, and disorganised behaviour along with increased alertness, wakefulness, insomnia, and self-confidence. The psychiatric behavioural and physical signs and symptoms include paranoia, and hallucinations, and irrational inappropriate behaviour and responses to circumstances.
The use of psychostimulants in combination with severe intoxication by alcohol, is likely to counteract the depression of, and somewhat counteract the general depressant effects of alcohol intoxication on arousal and alertness, while simultaneously increasing alcohol induced disinhibition or an inability to control behaviour, and in particular erratic behaviour.
In his opinion the combination of the psychostimulants with alcohol increases the acts of violence, aggression, and irrational behaviour. It is his opinion it is likely that the offender looked and felt less intoxicated by the alcohol in the hours before the offence despite her ongoing heavy alcohol use than she otherwise would have, but she would still have suffered from a severe impairment of her rational self-control which would have been exacerbated by, in combination with, the use of the cocaine.
…the self-induced intoxication and drug affection are not matters upon which she can rely in mitigation. At best, it may explain why she offended as she did, that is that she was angry, and like many who are heavily intoxicated they become particularly more aggressive. Her mental impairment is said to have been a depressive illness and whilst a mental impairment may affect an assessment of the objective seriousness of an offence, it would not necessarily do so even if it said that there is a causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. I find it difficult to accept that it was the offender’s depression that impaired her decision making but rather I find it was as result of her intoxication and use of the drug cocaine that resulted in her aggression and impaired decision making.
Her Honour was thus not prepared to find that the applicant’s mental state in any way contributed to the offending or her decision making; rather, finding it was the result of intoxication and the use of the drug cocaine that resulted in her aggression and impaired decision making. Her Honour noted that the applicant was not particularly young (at 23) and found that she was mature enough to make decisions in her life regarding matters such as employment and financial security and that she should have had the “wherewithal” to realise that when she doused the victim in petrol the consequences could well be catastrophic.
Her Honour explained that it is never easy to send a young person to gaol, but that the need for public (i.e., general) deterrence would usually outweigh the fact that the offender had learned his or her lesson. Her Honour said that the offending was nothing short of alcohol and/or drug fuelled violence and that retribution remained an important purpose of sentencing.
Her Honour said that the requirements of general deterrence in particular, were such that no other sentencing option other than a full-time custodial sentence would be appropriate. Her Honour rejected the applicant’s submission that an intensive correction order could be imposed, noting that for that to occur, there would have to be a head sentence of two years or less, equating to a starting point of two years and eight months imprisonment. Her Honour observed that such a sentence would not reflect the objective seriousness of the offence committed nor the principles of sentencing and in particular that of retribution.
Her Honour made a finding of special circumstances based on the applicant’s “obvious need” to be afforded a longer period of supervision. Her Honour found that the applicant’s time in custody will be more onerous and specifically took that into account in significantly varying the ratio.
But for the discount, her Honour would have imposed a head sentence of 10 years’ imprisonment.
The applicant’s complaint raised by Ground 1 is that she was not on notice, and could not reasonably have been on notice, of the prospect that her Honour would reject Dr Blake’s opinion as to the causal nexus between her clinically significant depressive disorder and the offending. The applicant submits that she was deprived of the opportunity to address that matter either by further submissions to seek to persuade her Honour that the opinion should be accepted or by calling further evidence from Dr Blake. Hence, the applicant contends that she was denied procedural fairness.
The applicant says in this regard that, at the sentence hearing, the Crown: took no issue with Dr Blake’s opinion about the existence of a causal nexus between the applicant’s depressive disorder and the offending; accepted that this could warrant a reduction in the applicant’s moral culpability, and thus could reduce the weight to be accorded to other sentencing factors; and argued that, in the circumstances, the depressive disorder did not ameliorate the objective seriousness of the offending.
It is noted that the Crown did not cross examine Dr Blake and made no submission that his opinion should be rejected. Rather, the applicant says that the Crown’s submissions proceeded on the premise that the evidence would be accepted (the Crown Prosecutor contending that it should not be accepted that the causal nexus between the depressive illness and the offending diminished the objective seriousness of the offending). The applicant says that the Crown Prosecutor accepted that the causal connection was relevant to an assessment of moral culpability and entailed that “other sentencing factors” (which the applicant says was, read in context, plainly a reference to general deterrence, retribution and denunciation) would carry less weight.
The applicant says that the sole issue between the parties in respect to her mental health at the time of the offending concerned whether the causal link found by Dr Blake operated to attenuate the objective seriousness of the offending. It is noted that her Honour said nothing during the sentencing hearing to indicate that she was contemplating rejecting Dr Blake’s unchallenged evidence on the causal nexus.
In the circumstances, the applicant says that it was not reasonably foreseeable that Dr Blake’s evidence as to the causal nexus might be rejected. The applicant says that so much is apparent from the fact that her senior counsel did not address the issue during his oral address and said that, apart from the issue of provocation and whether an intensive correction order was available or appropriate, there was “no great difference” between the parties.
The applicant accepts that, if a breach of the requirements of procedural fairness is established, that breach must be demonstrated to have been material. The applicant says that materiality will be shown if the applicant lost a realistic possibility of a more favourable outcome; thus, the applicant must show that the result could (not would) have been different had the breach of procedural fairness not occurred. The Crown accepts that once a breach of procedural fairness is found to be “material” (that is, a factor affecting the outcome) it cannot be disregarded unless the conclusion reached by the judge was inevitable (Smith v R [2024] NSWCCA 59 (Smith v R) at [44]).
The applicant submits that the denial of procedural fairness was material in the requisite sense for the following reasons.
First, the applicant says that it is apparent that the rejection of Dr Blake’s evidence impacted the sentence her Honour imposed. The applicant says that nowhere in her comprehensive reasons did her Honour consider moral culpability; nor did her Honour conclude that general deterrence, retribution and denunciation were factors deserving of lesser weight on sentence. Rather, it is noted that her Honour placed significant weight on general or “public” deterrence, as well as the imperative for retribution. The applicant says that the rejection of Dr Blake’s evidence thus had a material impact on the sentence imposed.
Second*,* as adverted to above, the applicant says that she was deprived of a chance to make submissions about this issue or to adduce further evidence from Dr Blake to deal with the matter. The applicant contends that the outcome could have been different had she been given such an opportunity.
The Crown accepts that it did not object to the tender of Dr Blake’s report, nor did it require him for cross examination. The Crown also accepts that it did not directly join issue with the contention that there was a causal link between the offending and the applicant’s mental health issues sufficient to warrant a reduction in her moral culpability. However, the Crown says that neither did it expressly concede the point. Rather, the Crown says that its submissions on sentence were focussed on the question whether the applicant’s mental health issues were such as to reduce the objective seriousness of the offence (about which there is here no challenge).
The Crown also accepts that her Honour did not raise with the parties, during the sentence proceedings, the possibility that she might reject Dr Blake’s evidence of a causal connection between the applicant’s depression and the offence. The Crown accepts that by the finding made by her Honour (in the last sentence of the extract at [65] above) implicitly rejected Dr Blake’s opinion as to that issue.
The Crown accepts that there will be a risk of procedural unfairness if a judge rejects evidence or a submission without advance warning, if that step is taken in relation to evidence or submissions which constitute common ground between the parties who have, based on that common understanding, not addressed that aspect of the case (referring to Smith v R at [41]) or where counsel is led to understand that a certain course would be taken but ultimately it is not, to the detriment of the offender (see McLaughlin v R (2025) 393 FLR 349; [2025] NSWCCA 13 at [117]).
However, the Crown submits that the fact that her Honour did not raise the potential rejection of Dr Blake’s opinion with the parties during the hearing did not give rise to a denial of procedural fairness requiring the intervention of this Court: first, because the evidence before the Court on the cause of the applicant’s offending behaviour was, at least to some extent, conflicting and, second, because the fact that this was not raised did not give rise to a practical injustice.
The Crown identifies the conflict in the expert evidence as being, first, that the experts appear to be operating on different understandings of the extent of the applicant’s intoxication and, second, that each expert comes to a different conclusion as to what contributed to the offending (Professor Christie identifying it as the combination of alcohol and drug use, Dr Blake, as both the applicant’s mental impairment and her intoxication (alcohol and drug use)).
The Crown points out that there is no indication in his report that Dr Blake had regard to the finding as to the applicant’s actual level of alcohol consumption (beyond referring to excessive consumption). The Crown says that, even if Dr Blake had reference to the agreed facts, the account of the alcohol consumption given to Professor Christie was well in excess of that contained in the agreed facts. Thus, the Crown submits that Dr Blake did not have the benefit of consideration of Professor Christie’s report as to the nature and extent of the applicant’s intoxication by alcohol and drugs and the potential nexus between her substance use and aggression.
The Crown submits that Dr Blake appears to have underappreciated the degree of the applicant’s intoxication by drugs and alcohol and overlooked matters raised by Professor Christie regarding the potential relationship between the concurrent use of cocaine and aggression.
The Crown submits that her Honour was obliged to consider the material and resolve the apparent conflict in the evidence and says that this is not a case where the conduct of the sentencing judge (for example, by giving an indication in the course of the proceedings either as to the likely sentence or as to a finding) or the Crown (by a concession) gave rise to an expectation that a particular course would be taken or a finding made which influenced how counsel for the applicant dealt with the issue (i.e., by choosing to make no further submissions or call further evidence). The Crown submits that the applicant’s counsel was, or should have been, on notice (based on the conflict in the expert evidence) that the sentencing judge would have to resolve that conflict and, in so doing, might reject the evidence of Dr Blake.
As to the applicant’s submission that steps might have been taken to make further submissions or call further evidence from Dr Blake, the Crown argues that it is not suggested that it is likely that any such submissions would have persuaded the Court nor that, had an adjournment to adduce further evidence been sought and granted, the applicant would have produced evidence supporting Dr Blake’s opinion (the Crown here citing Nguyen v R [2025] NSWCCA 42 (Nguyen v R) at [52]). The Crown submits that, given the evidence before the Court (particularly the evidence of Professor Christie about the extent of the applicant’s intoxication and the link with concurrent psychostimulant use and aggression and the deficiencies it identifies in Dr Blake’s report – see below), no sustainable argument has been put forward as to how her Honour might have been properly persuaded to accept the opinion of Dr Blake based on the available evidence (citing Nguyen v R at [51]).
Apart from the issue raised as to the level of intoxication (and the lack of reference to Professor Christie’s report), the Crown says that Dr Blake appears to have acted on the applicant’s own (unqualified) belief that the breakdown of her relationship played a part in how she acted on that night (referring to p 4 of Dr Blake’s report). The Crown says that this is speculative and overlooks the previous incident of alcohol fuelled violence prior to the breakdown of the applicant’s relationship and the consequent development of mental health issues that are relied upon as causally related to the offending.
Further, the Crown says that Dr Blake also did not expose any reasoning underlying his opinion that the applicant’s mental health condition (which arose out of the breakdown of her relationship) contributed to the offending in respect of the extreme level of violence deployed in the commission of the offence. The Crown argues that it is one thing to be “unable” to assess risk and make a rational decision due to a mental health impairment; quite another to act as the applicant did in response to misogynistic comments.
The Crown argues that what is ultimately in issue is whether unfairness has resulted from the process, noting that the concern of the law is to avoid practical and not merely theoretical injustice (Weir v R [2011] NSWCCA 123 at [66]; Nguyen v R at [54]).
The Crown submits that her Honour was correct to find that the offending was a result of the applicant’s intoxication and the use of cocaine that resulted in her aggression and impaired decision making. It is submitted that such a conclusion was inevitable in light of the compelling evidence before the Court in support of that conclusion (see Smith v R at [44]). The Crown submits that it follows that the applicant has not demonstrated that the failure of her Honour to foreshadow the potential rejection of Dr Blake’s opinion gave rise to a particular injustice.
As the Crown points out, there is no obligation on a sentencing judge to accept unchallenged evidence (GAS v The Queen*; SJK v The Queen* (2004) 217 CLR 198; [2004] HCA 22 at [31]) even where there has been a concession by the other party (DL v The Queen (2018) 266 CLR 1; [2018] HCA 26). However, as the Crown accepts, a judge is not entitled to reject uncontested expert evidence without some rational basis for so doing (see Nguyen v R at [39]), such as where the facts or assumptions on which the expert relied have not been satisfactorily established (again, see Nguyen v R at [39]).
In the present case, with due respect to the sentencing judge, we have concluded that there was a denial of procedural fairness in the failure to raise with Counsel, during the sentence proceedings, the possibility that Dr Blake’s opinion (which was unchallenged) as to there being a causal connection between the applicant’s depressive disorder and the offending would not be accepted. As the applicant points out, the Crown submissions proceeded on the basis that there was such a causal connection, albeit that it did not reduce the objective seriousness of the offence. The conflict between the experts to which the Crown points was not so obvious on the face of the reports as to mean that it was incumbent on the applicant to address that possibility (in submissions or evidence).
Both experts identified substance abuse as contributing to the offending. Professor Christie, a pharmacologist, understandably did not address the mental health conditions that Dr Blake, a forensic psychiatrist, did. The fact that Dr Blake may have underappreciated the level of intoxication does not gainsay that he was aware of excessive consumption of alcohol combined with the consumption of cocaine. The real area left untested was as to whether Dr Blake’s conclusion that the depressive illness contributed to the offending might have differed had he considered whether the likely effect of cocaine (as a psychostimulant) would have been to counteract the depressive effect of alcohol in the circumstances of the applicant’s clinical level of depression.
Without that issue having been tested with the experts (which of course could well be seen as a forensic decision of the applicant had the issue been appreciated on the face of the reports – as to which it appears likely that it was not), and without her Honour having raised the rejection of Dr Blake’s opinion as a possible conclusion to be drawn from the reports, the applicant was deprived of an opportunity to address the issue by submissions or by calling further evidence from Dr Blake. Whether those submissions would have been accepted, or what that evidence would have been, is not to the point. It is sufficient that the rejection of Dr Blake’s opinion has clearly had a material impact on the assessment by her Honour of the factors to be balanced in the instinctive synthesis process of sentencing. The fact that there was no express consideration in the reasons as to whether such a causal connection would operate to reduce moral culpability makes this clear.
The error having in that sense been material, it cannot be concluded that the rejection of Dr Blake’s evidence would have been inevitable, and hence a practical injustice has been established.
Thus, Ground 1 is made good.
The second basis on which the applicant contends that the sentence imposed on her was vitiated is the alleged failure of her Honour to take into account a relevant consideration, namely that the applicant had developed, as a result of the offending conduct, a serious mental illness.
The applicant notes that injuries suffered in, or in connection with, the commission of an offence may be taken into account as a species of extra-curial punishment, particularly if the injury was not self-inflicted or was otherwise unintentional.
The applicant points to the unchallenged evidence of Dr Blake, supported by the evidence of Mr Mui, that the applicant had developed PTSD as a result of the offending and that this psychiatric illness has had a debilitating and life-changing impact on the applicant.
The applicant complains that her Honour failed to engage with or otherwise assess this injury as a matter relevant to the imposition of sentence. The applicant accepts that it was mentioned (the applicant says in passing) by her Honour in her summation of the applicant’s case but the applicant emphasises that it was not identified in the reasons as a potential species of extra-curial punishment nor was it (at least explicitly) weighed and considered as a matter that was apt to mitigate sentence.
The Crown accepts that the evidence before the sentencing judge established that the applicant suffers from PTSD which arose as a consequence of the offending and that her Honour did not use the phrase “extra-curial punishment” in the reasons. However, the Crown says that the mere failure to use that phrase is not indicative of error.
The Crown says that, while the health of the offender is relevant to the type and length of the sentence imposed, generally speaking, it will only be a mitigating factor when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on an offender, by reason of ill health, or where there is a serious risk that imprisonment will have an adverse effect on the offender’s health.
The Crown submits that her Honour both accepted that the applicant suffered from PTSD (noting that the applicant experienced ongoing symptoms associated with that condition) and took that into account as part of the applicant’s subjective case. The Crown says that, as a facet of the applicant’s mental health condition, the fact that she suffered from PTSD formed the basis of her Honour’s finding that it was “obvious” that the applicant would need a longer than normal period of time on parole. The Crown submits that a generous finding of special circumstances was made on that basis.
Thus, it is submitted that there was no error in the exercise of the sentencing discretion in this regard.
The Crown does not dispute that, in determining what sentence it should impose, a sentencing court can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence (citing R v Daetz; R v Wilson (2003) 139 A Crim R 398; [2003] NSWCCA 216 (Daetz; Wilson)). The Crown notes that this principle also applies to self-inflicted injury (Alameddine v R [2006] NSWCCA 317 (Alameddine) at [27]) but not necessarily to those injuries which are intentionally or deliberately inflicted or which are intrinsic to the offending itself rather than collateral to it (Betts v R [2015] NSWCCA 39 (Betts)).
Here, the fact that the sentencing judge did not use the term “extra-curial punishment” would not of itself indicate a failure to take into account, in sentencing, the applicant’s PTSD arising as a consequence of the offending. That matter appears to have been given weight in the finding of special circumstances.
Pausing here, we do not agree that the development of PTSD, consequent upon the applicant’s realisation of what she had done and the impact it has had upon her, should be considered a form of extra-curial punishment.
The development of an illness, whether physical or mental, can be taken into account, in the sense that the applicant’s time spent in prison might be more onerous than it otherwise might have been. It may also be taken into account as a factor to be considered in the assessment of whether there are special circumstances for the purposes of varying the statutory ratio.
However, we do not accept the proposition that the development of PTSD consequent upon the offending would generally, or in this case, be viewed as a form of extra-curial punishment.
As the name suggests, extra-curial punishment is a form of punishment that an offender might suffer in addition to that which is imposed by the court. As Muston J observed most recently in Baldwin v R [2026] NSWCCA 39, there is some tension in the cases as to the circumstances of what may be described as extra-curial punishment. The cases point in different directions.
In Melville v R [2023] NSWCCA 284, Wilson J (with whom Leeming JA and Davies J agreed) observed, at [80]:
It is important in determining this ground to be clear as to what may constitute extra-curial punishment and, conversely, what will not. Extra-curial punishment is ‘some serious loss or detriment’ suffered by an offender as a punishment upon him or her for committing the offence or offences, other than the punishment imposed by a court of law: R v Daetz; R v Wilson [2003] NSWCCA 216; (2003) 139 A Crim R 398 at 411; Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593 at [29]. It is not the public condemnation that follows conviction for serious crime.
In Alameddine, Grove J (with whom Kirby and Hislop JJ agreed) observed at [17]-[20], that there was a distinction between situations where extra-curial punishment was caused by external forces and those triggered by the offender’s own actions (see also Casey v R [2015] NSWCCA 142 at [49]).
A further distinction has been made between injuries which are self-inflicted or induced by the activity of the offender. In Christodoulou v R [2008] NSWCCA 102, Grove J (with whom Johnson J agreed) observed:
41 It is a step beyond Alameddine (and Haddara) to seek to extend the availability of a mitigatory element to a deliberately self inflicted injury as distinguished from occasions where the injury was, although self inflicted and in the course of crime commission, unintentional.
42 Insofar as the taking into account of extra curial punishment may be described as a principle, there is no authority for extending it to deliberately caused injury and such an extension should not, in my opinion, be recognised.
See also Betts at [31]-[35]; Quinn v R [2018] NSWCCA 297 at [261]-[265].
The cases that demonstrate the circumstances which might be described as extra-curial punishment are many and varied. These include:
where an offender sustained serious injuries from a vigilante attack which occurred shortly after commission of the offence (Daetz; Wilson);
where an offender and the offender’s family were subjected to alleged harassment and threats after commission of the offence, leading to the loss of the offender’s business and home (R v Clampitt-Wotton [2002] NSWCCA 383); and
where an offender was seriously injured by police in the course of being arrested after committing the offence and suffered significant, ongoing disabilities (R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167).
Whether there is extra-curial punishment, and the weight to be attributed to any, will depend on the circumstances of the case and in some cases, extra-curial punishment will attract little or no weight (Daetz; Wilson).
In the present case, we are asked to find that the development of a psychiatric illness subsequent to the offending is a form of extra-curial punishment and that it operates as a mitigating factor.
Dr Blake accepted that the symptoms outlined to him by the applicant are consistent with the criteria for PTSD. He describes her offending as the catalyst for the development of the disorder. Of course, the applicant did not intend to develop such an illness, but on the medical evidence, it is directly linked to that which she did.
We do not seek to cast any doubt on the expert opinion to the effect that the applicant suffered from depression at the time of the offending and has developed PTSD subsequent to the offending.
However, what we here address is whether the development of PTSD since the offending should be considered a form of extra-curial punishment.
There may be cases in which it might be, but we would view those cases as exceptional. This is because experience suggests that the development of a psychiatric illness, whether it be an anxiety disorder, depression or PTSD, consequent upon the commission of violent criminal offences and of course the impact that conduct has on an offender, is common. Indeed, it is neither unusual nor surprising. It may flow from the realisation of what the offender has done and the consequences for the offender.
It is sometimes associated with remorse. It is plain that, in this case, the applicant is remorseful. She thinks about what she did every day. She has intrusive thoughts relating to, and can be triggered by, petrol. Her sleep is disturbed and she has an entirely negative outlook about herself.
Violent crime has a significant impact on its victims, but it is also not unusual for the offender, on a full realisation of what he or she has done, also to be significantly impacted by the events.
In our view, unlike other cases dealing with extra-curial punishment, the offender (in this case, the applicant) is not suffering extra-curial punishment, as that term might be understood. Rather, she is suffering from an illness in a way which is a real and likely consequence of her actions. The development of such an illness, whether it be PTSD, anxiety or depression, or any other type of mental illness which often flows from the offending and its consequences, is not a form of additional punishment such as to operate as a mitigating factor. That illness might be taken into account in other ways but we do not consider that it should be considered as a form of extra-curial punishment, leading to discounting in the sentence.
No error has been shown in the exercise of the sentencing discretion in this regard. Thus, were it necessary to decide, we would have concluded that Ground 2 is not made good.
In light of the conclusion in relation to Ground 1, it is necessary to undertake afresh the exercise of the sentencing discretion and, in so doing, to determine whether the applicant’s depressive disorder materially contributed to the offending so as to warrant a reduction in the applicant’s moral culpability.
The objective seriousness of the offence was high. This was a deliberate act of violence inflicting serious harm on the victim and posing a risk to the others present at the time. It was unprovoked. To the extent that the applicant relies on the misogynistic comments or antagonism between the applicant and the victim as provocation, or as leading to the offending (see its submission that the offence did not arise in a vacuum), neither the fact that the applicant may have been upset at the language directed at her by the victim nor that she might even have been goaded by him provides any excuse or any real explanation for that which occurred. The applicant’s response was, on any view, wholly disproportionate to the comments made by the victim.
While the offending was not pre-meditated and was impulsive, the applicant’s actions were quite deliberate and there was time for the applicant to have refrained from taking the final step (of striking the lighter). We do not accept that the applicant did not foresee the consequences of striking the lighter after dousing petrol on the victim. The threat that she would “do it” can only have meant that she understood, even in her profoundly intoxicated state, the likely consequence of applying flame to petrol.
We do not accept that the offending fell below or within the middle of the range of such offences (as the applicant submits). This matter involved serious offending which calls for strong denunciation. The victim must have been in excruciating pain and suffered horrific injuries. Nor is the objective seriousness of the offence diminished by the depressive disorder from which Dr Blake has opined the applicant suffered and which he considers contributed to the offending. This was a deliberate act which led to very significant consequences. There may have been a causal link between her depression and her actions (as Dr Blakes opines) but the applicant knew what she was doing. Thus, we would assess the objective seriousness as above the mid-range for offences of this kind.
As to the applicant’s moral culpability for the offence, as noted above, Dr Blake’s evidence was that the applicant’s depressive condition was a contributing factor. Its contribution appears to have arisen by reference to the effect it had on the applicant’s ability to make rational decisions and that it was a factor leading to the consumption of alcohol and drugs (the applicant’s self-intoxication also playing a large part as a contributing factor in the offending). The applicant’s ability to make rational decisions was clearly affected by the excessive consumption of alcohol combined with her drug use. As to this, (the contribution played by the drug use) on Professor Christie’s evidence, seems likely to have been to increase a disposition towards violence (and, when combined with the alcohol consumption, to counteract to some extent the depressive effect of the alcohol).
It is accepted that the applicant’s depressive state and its causal link with the offending, may impact on her moral culpability (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa). Indeed, in the circumstances of a mental health condition such as depression and its well-known effects, it may generally do so (DS v R; DM v R at [96]).
We would accept that in this case it does result in a reduction in the applicant’s moral culpability, at least to a certain extent. As is well known (De La Rosa at [177]), in circumstances where there is a reduction in moral culpability, there may be less of a role to play for general deterrence, retribution and denunciation.
However, that is not always the case, and the particular circumstances of the matter may mean that those factors still should be given significance in the exercise of the sentencing discretion (Aslan v R [2014] NSWCCA 114 at [33]-[34] (Simpson J, with whom Adams J and McCallum J agreed). See also Wonj v R [2026] NSWCCA 4 at [41] (R A Hulme AJ, with whom Ward P and Adamson JA agreed).
In the present case, accepting that the applicant’s depressive condition had a part to play in causing the offending, we are not persuaded that this ameliorates or reduces the applicant’s moral culpability to any great extent. Not only was the applicant’s self-induced intoxication a factor in the offending but it cannot be said that this was an aberration (the applicant having previously been sentenced to conditional release on a charge involving alcohol-fuelled violence). The response to the victim’s misogynistic comments was wholly disproportionate. The offending conduct requires strong denunciation and weight must be given to general deterrence.
Therefore, we do not accept that the precepts of general deterrence, retribution and denunciation should be accorded appreciably less weight as a result of the applicant’s depressive disorder. That someone who is depressed indulges in excessive alcohol consumption and use of drugs, which leads to violence of the kind that had occurred does not significantly reduce that person’s moral culpability for such an objectively serious offence and does not in our opinion lead to a lesser sentence in this case.
As to the applicant’s subjective case, while we cannot accept that the offending was an uncharacteristic aberration and entirely out of character (having regard to the earlier charge to which we have referred for which she obtained a conditional release order), we accept that the applicant is otherwise a person of good character (see the various references tendered at the sentence hearing); that the applicant is genuinely contrite and remorseful; that the applicant has made significant efforts to rehabilitate herself and has excellent prospects of rehabilitation; and that the applicant is unlikely to re-offend. We also accept that the applicant has experienced and continues to experience PTSD which arose as a result of the offending which may make her time in custody more onerous.
We note that the applicant does not have a record of convictions for the purposes of s 21A(3)(e) of the CSP Act; that she was a young woman at the time of the offending, who was industrious and had all the hallmarks of a person who would be a productive and law-abiding citizen; and that she has the support of her family as well as having had support from her employer after the offence.
We accept that there is no need for specific deterrence.
We also accept that a finding of special circumstances for the purposes of s 44(2) of the CSP Act should be made given that: this is the applicant’s first time in custody; the difficulties that the applicant has experienced in custody including due to her mental health; the need for an extended period to re-integrate the applicant into the community; the applicant’s relatively young age; and the need for rehabilitation.
Finally, as her Honour observed the applicant is entitled to the statutory 25% discount for her plea of guilty.
Synthesising those matters, on re-sentence we have concluded that no lesser sentence than that imposed by her Honour is warranted at law.
**********
Walpole
R
(2010) 79 NSWLR 1
(2018) 266 CLR 1
(2022) 109 NSWLR 82
(2004) 217 CLR 198
(2014) 252 CLR 601
(2025) 393 FLR 349