Walsh v R

Court of Criminal Appeal (NSW)|2020-06-16|Before: Johnson J, Wright J, Wilson J

Judgment

JOHNSON J: I agree with Wilson J.
WRIGHT J: I agree with Wilson J.
WILSON J: On 13 September 2019, the applicant, Joshua Walsh, was sentenced by her Honour Judge O'Rourke SC in the District Court at Sydney for an offence of wounding with intent to cause grievous bodily harm. Her Honour imposed a sentence of 9 years and 4 months imprisonment with a non-parole period of 7 years imprisonment. The sentence commenced on 5 June 2018, and expires on 4 October 2027; the non-parole period ("NPP") expires on 4 June 2025.
The applicant seeks leave to appeal the sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). Despite a Notice of Intention to Apply for Leave to Appeal against sentence ("NIA") having been filed on 25 September 2019, no Notice of Appeal was filed until after the expiration of the NIA. Thus, an application for an extension of time is made, as well as an application for leave to appeal.

The Proceedings before the District Court

On 4 March 2019, the applicant stood trial having entered pleas of not guilty to an indictment charging him with wounding with intent to cause grievous bodily harm and, in the alternative, reckless wounding. On 12 March 2019, he was found guilty by the jury of the principal count. That is an offence contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), and it carries a maximum penalty of 25 years imprisonment with a standard non-parole period ("SNPP") of 7 years. The matter was adjourned for sentence.
On 23 August 2019, the matter came before the sentencing judge and her Honour heard evidence and submissions. The matter was then adjourned until 13 September 2019, when sentence was imposed.

The Facts Found by the Court

The matter having gone to trial, the facts of the offence were determined by the sentencing judge. The applicant takes no issue with her Honour's conclusions.
The victim of the offence was Mr Reed. On the afternoon of 1 January 2018, a little after four o'clock, Mr Reed was in his Hunters Hill unit, asleep in his bed. The applicant entered the unit, probably through the back door.
The applicant approached Mr Reed as he slept and, using a knife he either brought with him or obtained inside the unit, stabbed the victim at least three times. Mr Reed suffered further, defensive, wounds to one of his hands.
There was a struggle, and Mr Reed was able to escape through the front door of his unit. His condition was such that he could only make it as far as some steps nearby. At this point other residents of the unit complex came to his aid.
A resident called triple-0 and soon afterwards police and ambulance officers arrived. Police searched the unit complex for the applicant and the knife but neither was found.
Mr Reed was taken to Royal North Shore Hospital, arriving there at 5.50pm. Medical staff noted three principal puncture wounds consistent with a stabbing, being, a wound to the chest, a wound to the neck, and a wound to the temple.
Emergency doctors attended to the chest and neck wounds, successfully operating on Mr Reed and cleaning and suturing the wounds. A neurosurgeon carried out necessary surgery on the wound to the temple sustained by Mr Reed, cleaning it and removing bone fragments. This wound was consistent with a traumatic brain injury. Without the treatment Mr Reed received there was a risk to his life, and a risk of significant impairment.
At about 11.40am on Friday 5 January 2018, police were patrolling the Ashfield area and located the applicant in Liverpool Road in Ashfield. The police approached the applicant and asked for his name, and he replied. He was arrested and taken to Burwood Police Station.
The following day the applicant was interviewed by police. He denied any involvement in the offence.

The Crown Case on Sentence

The Crown tendered the applicant's criminal and custodial histories, together with documents relevant to three previous appearances for sentence the applicant had made before other courts: on 13 April 2006 before the Sydney District Court; on 25 May 2017 before the same court; and on 7 April 2019 before the Newcastle District Court.
The applicant's criminal history commenced in 1999 with dishonesty offences that were dealt with by fine. In 2002, he was convicted of using a carriage service to menace; resisting and assaulting police in the execution of duty; common assault; and destruction of property. The following year the applicant was fined in relation to possession of a prohibited drug, possession of a restricted substance, destruction of property, and contravening an apprehended domestic violence order ("ADVO").
In 2004, the applicant was again before the courts, for possessing and supplying a prohibited drug, both offences being dealt with by way of fine.
He served a term of imprisonment of three months in 2006 for possessing a prohibited drug, and two further terms, of six months each, for common assault and failing to appear. Three other offences were dealt with in the Local Court that year: assault occasioning actual bodily harm, common assault, and contravene ADVO, attracting concurrent terms of 12 months imprisonment.
The applicant also appeared in the District Court at Sydney in 2006, on 13 April, for an offence contrary to s 97(1) of the Crimes Act of robbery whilst armed, and break enter steal. A sentence of 5 years imprisonment commencing on 21 March 2006, with a 2 year NPP, was imposed for the former offence, with a term of 18 months imprisonment with a 12 month NPP imposed concurrently for the latter. On the same day, 13 April 2006, another count of robbery whilst armed was dealt with, by way of sentence of 3 years imprisonment commencing on 21 March 2007 and concluding on 20 March 2010, with a NPP of 1 year, expiring on 20 March 2008.
On 4 April 2009, the applicant was sentenced before the Newcastle District Court for a further offence of robbery whilst armed. A term of 5 years imprisonment commencing on 19 November 2008 and expiring on 18 November 2013, with a NPP of 3 years expiring on 18 November 2011, was imposed. Parole was to be subject to supervision.
In 2015, further fines were imposed upon the applicant for destruction of property and using offensive language. In July 2017, an offence of common assault resulted in the applicant being placed upon a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 15 months, conditional upon him accepting supervision directed to educational development, drug and alcohol rehabilitation, and compliance with a medication regime.
In May 2017, the applicant was convicted before Sydney District Court of an offence of robbery and, taking into account an offence of destruction of property on a Form 1 document, sentenced to a term of 2 years imprisonment, with a NPP of 12 months, the latter expiring on 29 July 2017, and the former expiring on 29 July 2018. He was directed to accept supervision as a condition of parole, and accept psychiatric treatment.
The applicant's custodial history showed that parole relevant to the 5 year sentence imposed on 13 April 2006 was revoked in September 2008 due to a breach of parole. Similarly, parole relevant to the May 2017 conviction was breached by the applicant, and revoked.
The other documents tendered by the Crown related to those earlier, serious, offences, and included factual material, a pre-sentence report, and a number of psychological and psychiatric reports.

The Applicant's Case

The applicant did not give evidence.
He was assessed by Dr Richard Furst, forensic psychiatrist, on 18 April 2019, and relied upon Dr Furst's report of that assessment.
In his report, Dr Furst noted that the applicant was (at that time) a 38 year old man who had been residing in Hunters Hill supported by a disability pension due to his chronic mental illness.
Born in Sydney in 1981, the applicant's formative years were characterised by disruption and trauma. His father was murdered, or committed suicide, within weeks of his birth, and his step-father was convicted of murder and incarcerated for much of the applicant's younger years. He and his mother and three half-siblings lived a peripatetic lifestyle, moving between New South Wales and other states, and within New South Wales frequently. Although the applicant enjoyed primary school and was an average student, he was not encouraged to attend school, and did not do so after Year 7. Prior to that he had truanted a good deal.
In 1999, one of his half-brothers, who was at home for a night's leave from a psychiatric facility, stabbed his other half-brother to death in the family home. The brother was later found not guilty on the grounds of mental illness. The applicant was at home at the time of the killing and traumatised by the violence, which devastated his family. His half-sister went on to develop schizophrenia and was institutionalised.
Dr Furst saw evidence of a persistent trauma reaction, with the applicant often visualising his brother's death, and frequently experiencing nightmares.
The applicant's step-father was imprisoned between 1991 and 2008 and, although the applicant had formerly respected him, upon his release the applicant came to see him as a violent man. The applicant intervened to prevent his mother being beaten on an occasion in 2012, and was himself assaulted. His mother and brother ostracised him for opposing his step-father.
The applicant's mother died in 2018 and, although his brother was released from forensic hospitalisation some years ago, he does not have contact with him. The applicant feels distressed at what he perceives to be his rejection by his family.
He also suffers as a consequence of sexual abuse when he was a teenager.
The applicant was diagnosed with schizophrenia in his late teens and has frequently been admitted to psychiatric facilities for anxiety, depression, and psychotic symptoms. He has been prescribed a range of different medications over time. When in the community the applicant was, on one occasion, made subject to a community treatment order for at least six months. He has a history of panic attacks and has attempted suicide on a number of occasions.
The applicant has a long history of multi-drug abuse, using cannabis daily from about age 13 until 2013 or 2014; amphetamines for about 18 years from 1999; and heroin and methadone from around 2000 to about 2015. He has occasionally used other drugs such as cocaine.
He has some issues with his physical health.
Of the offence before the sentencing court, Dr Furst observed that the applicant was using drugs and alcohol regularly, and experiencing severe paranoia at around the time when Mr Reed was stabbed, with unprovoked occurrences such as an offence of that nature "often associated with people with psychotic symptoms". From the history given by the applicant to Justice Health on entering custody, he had not taken prescribed medication to treat his schizophrenia since 2017 or early 2018.
Dr Furst concluded that the applicant suffered from schizophrenia, a substance use disorder, and a borderline personality disorder or complex post-traumatic stress disorder. He has had a history of childhood trauma and loss, and experienced many years of emotional instability. The long term effects of his exposure to trauma have resulted in: "a pattern of high levels of anxiety, re-experiencing phenomena, including frequent memories and nightmares, and panic attacks, consistent with a borderline personality disorder and / or chronic post-traumatic stress disorder."
The severe neglect of his childhood years has also left him dependent on drugs, exacerbating his schizophrenia.
Dr Furst was not aware of any motive for the attack upon Mr Reed, and thought it was likely that it was driven by psychotic symptoms, consistent with the applicant's history of acting aggressively when acutely psychotic. His use of "ice" (or methylamphetamine) would have worsened his state. Dr Furst concluded that the applicant's illness probably had an adverse impact on his judgment and consequential thinking.
His mental condition would mean that his experience of a custodial environment will be more onerous than for other, mentally well, prisoners.
In the future, the doctor opined that the applicant will require assertive treatment in custody and, upon his release to the community, a community treatment order to ensure that treatment continued. Regardless, he is likely to remain functionally impaired due to his schizophrenia into future years and: "He is capable of serious offending when mentally ill […] and has limited insight into his illness and treatment needs […]. Mr Walsh remains at risk of having further relapses of his illness and further offending behaviour if not adequately treated".
Dr Furst was required for cross-examination. In his oral evidence on 23 August 2019, the doctor conceded that the information in his report as to the applicant's circumstances at the time of the offending had all come from the applicant, there being no information available to him that was independent of Mr Walsh concerning that period of time.
The doctor said that he had no information as to the nature of any dealings between the applicant and Mr Reed, and so had speculated in his report that it was psychosis that caused the applicant to attack the victim. He accepted that drug use may well have been a factor contributing to the applicant's history of violent offending.
Dr Furst assessed the applicant as posing a medium risk of re-offending, and thought it was likely that the applicant would in the future both fail to comply with a medication regime, and use illicit drugs, the latter in the context of a "chronic and relapsing drug addiction history". He thought that there would be benefit in the applicant being made subject to a forensic treatment order when in custody, and a community treatment order upon his eventual release from prison.

The Submissions in the District Court

Whilst acknowledging that the "prison sentence [the sentencing court] will impose will be significant" the applicant argued that his trial had been conducted economically, with the only issue litigated being that of identity, and there should thus be some mitigation of sentence pursuant to s 21A(3)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Further, the offence was spontaneous and likely linked to his psychotic symptoms, such that his moral culpability was reduced. His background of deprivation was a feature of further relevance in that regard, consistent with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [40]. A finding of special circumstances was submitted to be appropriate, as the applicant would require significant assistance upon release.
The Crown pointed to the maximum sentence and the SNPP as the relevant legislative guideposts on sentence. It was submitted that the attack on Mr Reed, although apparently one without planning, was an offence involving a high degree of unprovoked and ferocious violence committed upon a man who had been going about his ordinary activities at the time. It occurred in the victim's home and put Mr Reed at grave risk of death. It was committed when the applicant was on conditional liberty, having been released to parole. His criminal history was lengthy with numerous convictions for offences of violence.
The Crown conceded that the applicant had a mental illness and it was open to the court to find his moral culpability reduced, and the applicability of the principle of general deterrence lessened. However, it was submitted that the applicant's limited insight into his condition and his tendency to cease taking prescribed medication whilst consuming illicit drugs heightened the danger he posed to the community.

The Conclusions of the Sentencing Judge

Her Honour imposed sentence on 13 September 2019.
Referring to the applicant's custodial history, her Honour noted that the applicant had been in custody with respect to the offence for sentence since arrest on 5 January 2018 although, upon the revocation of his parole, part of that time - from 6 January 2018 to 10 October 2018, or a period of 9 months and 5 days - was spent serving the balance of parole ("BOP").
She found the facts of the offence as summarised above.
Her Honour observed that the attack upon the sleeping victim was "vicious, cowardly, and unprovoked" and no motive for it had been proffered. The injuries were substantial and placed Mr Reed's life at risk. She said that the attack upon Mr Reed: "required the offender to make the conscious decision to attend the victim's home, arm himself with a knife, and stab the victim repeatedly in a life threatening way, when the victim was utterly unable to offer any resistance to the ferocious attack".
She concluded that the offence fell above the mid-range of objective gravity for an offence of its type, with the maximum sentence applicable to offences contrary to s 33 of the Crimes Act - 25 years imprisonment - indicating the seriousness with which such offences are viewed. The mental element proved at trial, an intention to cause grievous bodily harm, is the same as that for murder: R v Zoef [2005] NSWCCA 268 at [113]; R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [27]. Noting that the extent of injuries inflicted upon the victim was a feature of great, if not exclusive, significance in assessing the gravity of the offence, her Honour concluded that the infliction of a brain injury as a result of a direct and sustained attack to the head elevated the gravity of the offence: Mitchell at [28]; R v Kirkland [2005] NSWCCA 130 at [36]; R v Bobak [2005] NSWCCA 320 at [32]. Mr Reed's life was at serious risk but for "urgent and substantial and protracted medical intervention".
Here, although there was no evidence of any planning or pre-meditation, that was a feature of lesser weight having regard to the mental element of the offence, and the sustained nature of the attack, which ended only because Mr Reed managed to escape. Her Honour observed that: "In an horrific assault like this, together with the offender's record for violence, general deterrence and specific deterrence assume particular importance".
Her Honour set out the applicant's subjective circumstances, drawing on Dr Furst's 2019 report, but also upon the documentary material from earlier sentencing proceedings, being reports from 2006, 2009 and 2017. That material established that the applicant came from a family with a significant history of serious mental health issues. Her Honour described the applicant's childhood and adolescence as one characterised by: "significant trauma, upheaval, and exposure to violence, pro-criminal attitudes, and drug use in his family home".
He had a long history of mental illness, with over 20 admissions to psychiatric facilities following psychotic episodes and suicide attempts; and a lengthy history of drug abuse. At the time of the commission of the offence the applicant was on parole but, without any family support, he had become homeless and relapsed into drug use, two or three months prior to arrest. He had stopped taking prescribed medication, and was using significant amounts of "ice" daily. In the two or three days before the stabbing he had not slept, and he consumed a large amount of tequila in the period immediately prior to the offence.
Her Honour referred to the applicant's extensive criminal history, and the many convictions for offences of violence, a feature which, whilst not treated as an aggravating feature, she found disentitled the applicant to leniency. The fact that the applicant had been on parole at the time of the offence, and thus at conditional liberty, was an aggravating feature.
Other features found to aggravate the offending were that a weapon was used, and that the offence was committed in the victim's home.
As to mitigating features, her Honour accepted that the applicant had conducted his trial efficiently, taking issue only with such of the evidence as went to the identity of the perpetrator, this being the only issue. She also accepted that the applicant's "traumatic, disturbing, and sad childhood" engaged the principles given in Bugmy v The Queen and her Honour found: "his moral culpability to be reduced to some degree because of this".
The sentencing judge also accepted that the applicant had a significant mental illness, noting both the past and current diagnoses of those whose reports were before the sentencing court. She concluded that: "it is overwhelmingly clear from the material before the Court that the offender suffers from a mental illness but appears to cope better in gaol where he is appropriately medicated and abstains from illicit drugs. During his periods of incarceration, it appears he behaves, he is compliant, and on all accounts a rather model prisoner. Unfortunately however, as soon as he is released he becomes more at risk to himself and others in the community due to his lack of familial and / or peer support, his difficulty in finding a permanent place to reside [and] employment, and the temptation of illicit drugs and recurring failure to medicate."
Referring to Kandemir v R [2018] NSWCCA 154 at [90]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], and Aslan v R [2014] NSWCCA 114 at [34], her Honour accepted that there was some causal connection between the applicant's mental illness and drug use and his offending conduct, and his moral culpability was also reduced to some extent on this basis.
Conversely, she also accepted that there were "good reasons for being concerned regarding the risk he poses to the community", whilst being conscious that a consideration of that nature could not lead the court to impose a sentence greater than was required to appropriately reflect the offence: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
Her Honour thought that the applicant's prospects of rehabilitation were "relatively poor". She accepted that the applicant was regretful for what had happened, but distinguished regret from genuine remorse, there being no evidence of the latter.
As to the applicant's submission that there should be a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act, her Honour said: "It is well established that a sentencing judge's opinion upon whether the standard non-parole period should be adjusted for special circumstances depends upon discretionary considerations: see R v Cramp [2004] NSWCCA 264 at [31]; R v Fidow [2004] NSWCCA 172 at [19]; CM v R [2013] NSWCCA 341 at [39]. I do not find special circumstances. The offender has had this finding made on his behalf on several occasions. I also consider the period of time he will be on parole as being sufficient to achieve the purposes outlined for the sought after finding".
Noting the period in excess of nine months served by the applicant as BOP, her Honour concluded that it was appropriate to take account of some part of that period by backdating the commencement date of the sentence she imposed to 5 June 2018, thus giving the applicant credit for over half of that period.

The Application before this Court

Since the question of an extension of time depends in part upon the likelihood or otherwise of the success of a proposed appeal, that matter will be considered last.
Grounds 1 and 2 make the same complaint, differently expressed. Ground 3 relies heavily on the arguments advanced in support of grounds 1 and 2. There is thus a degree of interdependence between the three grounds of appeal that the applicant seeks leave to advance. Given that interdependence, after setting out the arguments of the applicant and the Crown, I propose to consider the three grounds together.

Ground 1: "The sentencing judge erred in failing to find special circumstances"

Ground 2: "The sentencing judge erred in not lowering the non-parole period below the statutory ratio"

Although conceding that a finding of special circumstances is a discretionary matter for the sentencing judge, the applicant argues in support of ground 1 that the refusal of the sentencing judge to make such a finding was inconsistent with his history of severe childhood trauma and abuse, and his chronic and serious mental illness. It is submitted that, in referring to previous variations in the sentencing ratio allowed by other sentencing courts, her Honour used the applicant's criminal history and breach of parole to deny him the benefit of a finding of special circumstances.
He argues that, in not lowering the NPP, as ground 2 complains, the sentencing judge ignored the opinions expressed by Dr Furst that the applicant would find a custodial environment more onerous because of his mental illness, and that he would have less access to therapeutic services in custody than in the community. It is submitted that her Honour wrongly assumed that the applicant would have access to appropriate treatment in custody, despite the evidence that he had not been medicated since his arrest, and wrongly assumed that a period of 2 years and 4 months on parole would be adequate to advance his rehabilitation.
The Crown pointed to the discretionary nature of a finding of special circumstances, and the fact that the presence of features that could support such a finding do not mandate that the finding is made. Only where the NPP is manifestly inadequate or manifestly excessive should the Court intervene: R v Simpson (2001) NSWLR 704; [2001] NSWCCA 534 at [73]; R v Fidow [2004] NSWCCA 172 at [19].
The Crown submits that her Honour had regard to all of those features that the applicant contends she ignored in determining that his moral culpability was reduced to a degree; to also rely upon them as a basis for a finding of special circumstances would be to "double-count". There was no reason to conclude that a period of 2 years and 4 months was not adequate to assist the applicant to reintegrate: Magro v R [2020] NSWCCA 25 at [77].

Ground 3: The sentence is manifestly excessive

Having regard to all of the subjective features of the case, and even acknowledging the gravity of the offence, the applicant submits that the sentence imposed upon him was unfair and unjust, and a lesser sentence is warranted in law.
The Crown points to the statutory guideposts provided by the maximum penalty and SNPP for an offence contrary to s 33 of the Crimes Act, and to the assessment of the gravity of the crime made by the sentencing judge (with which no issue is taken) to submit that the sentence imposed was within the range of sentence that could be justly imposed.

Consideration

Each of the complaints made by the applicant relates to a matter that was within the discretion of the sentencing judge. It is not enough to argue that the discretion could have been exercised in a different way, or that a different result was open at first instance; to engage the jurisdiction of this Court to interfere with the sentence imposed, error of the nature identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 must be established. That is: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
The applicant does not specifically point to any House v The King error, and I am not able to identify any in her Honour's careful and thoughtful judgment.
The sentencing exercise that confronted her Honour was an extremely difficult one, with two significant features that pointed in very different directions in the determination of the sentence to be imposed: the objective gravity of the offence; and the applicant's mental illness and traumatic background.
The offence of its very nature was a most serious one, a fact illustrated by the maximum penalty of 25 years specified by the legislature. There is no higher maximum sentence found in the criminal jurisdiction other than the sentence of life imprisonment for murder, and some, if very few, other crimes. The maximum penalty specified, together with the SNPP of 7 years, were important guideposts that her Honour had to have regard to.
This was a serious example of a serious offence, for all of the reasons the sentencing judge identified. The attack occurred in the victim's home, at a time when he was both going about his ordinary business, and particularly vulnerable because of the nature of that business - sleeping. It was, her Honour concluded, a sustained and ferocious attack, committed without any provocation or justification, and it involved the use of a knife. The injuries, including a traumatic brain injury inflicted by a knife blow to the head, were life threatening. Although there was no evidence of pre-meditation, that consideration was of lesser weight in light of the sustained nature of the assault, which ended only because Mr Reed was able to get away from the applicant and find help. In making her assessment, her Honour was conscious of and properly applied the principles enunciated by Johnson J (with the agreement of McClellan CJ at CL and Garling J) in AM v R [2012] NSWCCA 203; (2012) 225 Crim R 481 at [67]-[74].
These features all demanded a heavy sentence.
Aspects of the applicant's subjective case, on the other hand, called for mitigation of sentence to reflect his distressing upbringing, and his profound mental illness, features which had an impact upon his descent into criminality. His background was very sad, and it was the trauma of it that had, at least in part, given rise to the applicant's drug use.
It was thus a matter for the sentencing judge to balance the objective gravity of the crime, and the tragic circumstances of the applicant's background and ill health, to arrive at a sentence that served the purposes of sentencing enumerated in s 3A of the Crimes (Sentencing Procedure) Act.
That was no easy task.
Her Honour had to balance the competing features of the case before her, to arrive at a just result. That result was one that could result in differing outcomes within a range of sentences that could be properly imposed.
The applicant's record did not assist him, containing as it did numerous previous convictions, including convictions for offences of violence. Favourably to the applicant, her Honour did not treat the criminal history as an aggravating feature, as it was open to her to do pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, but she did, correctly in my view, conclude that it disentitled the applicant to the leniency that a person of prior good character would have received.
I do not accept that the sentencing judge wrongly used the applicant's criminal history to deny him a finding of special circumstances, or to deny him a reduction in the NPP specified. The applicant's criminal history informed consideration of his future prospects, and her Honour properly took it into account in that regard.
As the sentencing judge observed, the applicant's record did not permit a positive finding to be made with respect to his prospects of rehabilitation. In the past, he has repeatedly been extended leniency by sentencing courts, including by findings of special circumstances, on the basis of which non-parole periods had been markedly reduced to allow for lengthy periods of parole. Those earlier parole orders required the applicant to submit to supervision, on occasion specified to involve drug and alcohol rehabilitation and compliance with recommended medical treatment.
Unfortunately, those longer periods of parole did not have the intended outcome of assisting the applicant to stabilise his psychiatric illnesses, and desist from taking illicit drugs. Instead, they had the effect of returning the applicant to the community earlier than would have been the case absent a finding of special circumstances, enabling him to commit further crime, resulting in his return to custody to serve out the BOP in prison.
The gravity of the crime required a stern sentence; the applicant's criminal history did not permit leniency to be extended to him, or provide a basis upon which it could be concluded that he had sound prospects for the future. It highlighted the need for specific deterrence and the protection of the community to be given some prominence in the determination of sentence.
As the sentencing judge noted, there were features of the applicant's subjective case that could have resulted in a conclusion that special circumstances existed such that the usual ratio of sentence could be varied to reduce the NPP below the usual 75% of the overall sentence. Whether they should have that effect was a matter within her Honour's discretion.
The applicant's deprived upbringing was one such feature; his mental illness was another; the risk of institutionalisation was relevant; as was the need for supervision. However, the sentencing judge had regard to each of those features, and carefully reflected her consideration of them in her remarks on sentence.
Consistent with the principles set out in Bugmy, her Honour concluded that the applicant's moral culpability was reduced because of the deprivation and abuse that characterised his formative years. That was a conclusion that mitigated sentence.
The applicant's mental illness was a feature that her Honour also concluded must result in a lessening of the applicant's moral culpability because of the likely nexus between the offending behaviour and the applicant's illness. That conclusion also mitigated sentence.
Having taken those important features of the subjective case into account in determining the sentence to be imposed, it was not appropriate for her Honour to have regard to them a second time to reduce the NPP. As the applicant's counsel at first instance submitted on sentence, her Honour could not "double count by lowering moral culpability and then giving him special circumstances".
Other features relevant to a finding of special circumstances were the risk of institutionalisation and the applicant's need for supervision. Whilst those features could have resulted in such a finding, they did not mandate it.
Ultimately, the sentencing judge concluded that a period of 2 years and 4 months was a sufficient period to assist the applicant with successful reintegration into the community, thus diminishing the risk of institutionalisation and, if he took advantage of the assistance that would be offered to him, promoting rehabilitation. Having regard to the applicant's response to supervision in the past, that conclusion was well open to her Honour and consistent with authority: RLS v R [2012] NSWCCA 236 at [83]-[84]; DJM v R [2013] NSWCCA 101 at [4].
Although the applicant has had the benefit in the past of both supervised bonds and extended periods of parole with supervision, he has not been able to convert those opportunities into any meaningful steps towards rehabilitation. No doubt that is a consequence, at least in part, of his severe mental illness, and the entrenched nature of his drug addiction, but that does not alter the reality.
Whether the applicant had realistic prospects of rehabilitation if given a longer than usual period of parole is not an irrelevant consideration when determining whether a finding of special circumstances should be made.
Referring to R v Lulham [2016] NSWCCA 287, the applicant pointed to "controversy amongst the members of the bench as to what evidence a finding of special circumstances must be based on". In that decision, Bellew J considered it necessary that there should be evidence of "significant positive signs" pointing to a conclusion that rehabilitation is "likely to be successful as opposed to a mere possibility" at [54]. Bathurst CJ concluded, at [7], that a finding of special circumstances could be made where there was evidence that an offender "has prospects of rehabilitation and that those prospects would be assisted if a longer non-parole period was allowed". Beazley P, Hall J and N Adams J were generally in agreement with the Chief Justice.
I do not understand the judgment of the Chief Justice in Lulham to suggest that there could or should be a finding of special circumstances where there is no evidence of any prospects of rehabilitation. There must be some evidence to support a finding that an extended period of parole could promote rehabilitation. In R v Carter [2003] NSWCCA 243 that principle was expressed (at [19]) as requiring more than "a pious hope" for a finding of special circumstances to be found.
In the applicant's case, having regard to his history and particular difficulties, it was, arguably, no more than a "pious hope" that a longer than usual parole period would promote his rehabilitation. His history demonstrates that, upon release to parole, and with the freedom of choice that even supervised parole brings, the applicant has consistently fallen very quickly into a criminal lifestyle of drug use and violent crime. An even longer period of parole could have made no difference in promoting or assuring rehabilitation in the past; there was no reason to conclude that it would in this instance.
Although Dr Furst had opined that the applicant's mental illness would make custody more onerous for him than for other prisoners with good mental health, her Honour noted that the evidence was that the applicant had responded well to the structured nature of a custodial environment, having in the past ceased to take illicit drugs when in custody, and accepted treatment such that his schizophrenia and other conditions were stabilised by medication. Although the latter had not occurred when the applicant was in custody serving the BOP prior to sentence, that was as a consequence of the applicant's decision not to accept medication, the acceptance or refusal of treatment being, in custody as in the community, a matter of choice for the individual (in the absence of a forensic treatment order).
The sentencing judge concluded that, if the applicant availed himself of the treatment that was available to him in custody, and the assistance he would receive when released to parole, the parole period reflected by the usual ratio of sentence would be enough to aid in his successful reintegration into the community. That conclusion was open to her: Goodbun v R [2020] NSWCCA 77 at [74].
Her Honour had regard to those features that could have justified a finding of special circumstances in determining the length of the sentence to be imposed upon the applicant, ameliorating that sentence where principle and evidence permitted it. That too was an approach which was open to her.
In a very difficult sentencing exercise, where a range of possible outcomes were legitimately open, I cannot conclude that the sentence imposed by her Honour fell outside the available range, or that her conclusions with respect to special circumstances were not open to her.
The sentence imposed properly comprehended the gravity of the crime, mitigated insofar as that was possible by reference to the applicant's sad and dysfunctional personal circumstances.
Although, in the particular circumstances of this matter, and having regard to the applicant's mental illness, I would grant leave to appeal, none of the grounds has been made out.

Extension of Time

In his Notice of Application for Extension of Time, the applicant's solicitor explained the failure to file the Notice of Appeal within the time allowed by the Registrar principally by reference to the difficulties in securing legal aid for advice on merit, and then to bring an appeal. Noting the cumbersome and inefficient process he there outlined, I would grant an extension of time in which to file the Notice to 14 April 2020.

Conclusion

The orders I propose are as follows: 1. Grant an extension of time in which to file a Notice of Appeal to 14 April 2020; 2. Grant leave to appeal; 3. Dismiss the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2020

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