Wilkins v R

Court of Criminal Appeal (NSW)|2009-08-25|Before: Hulme J, Davies J, Clellan CJ

The applicant ran across the backyard and stopped near a trampoline then turned and ran towards Mr Martin. Mr Martin saw that the applicant had a hammer in his right hand and picked up a cricket bat lying nearby. The applicant raised the hammer as he approached Mr Martin who, fearing he would be struck with the hammer, swung the cricket bat and struck the applicant around the shoulder or head. The blow had no effect on the applicant and he grabbed Mr Martin and threw him to the ground. He then got on top of Mr Martin, kneed him in the chest and struck him numerous times to the head with the hammer. On a number of occasions Mr Martin grabbed the hammer but the applicant grabbed it back and continued to strike him.

A neighbour, Michael Hicks, saw the two men "wrestling" on the ground and heard one call out "Help me, help me, please someone help me". Mr Hicks then sought out another neighbour, Luke Watson, for assistance and the two ran back to Ms Baker's backyard. There they saw the applicant sitting on top of Mr Martin, holding the hammer in both hands, and striking him with full force. Mr Hicks saw at least three blows and heard the hammer strike Mr Martin's head with a "thud" sound. Mr Watson made similar observations. Mr Hicks and Mr Watson "barged" the offender off Mr Martin, and "reefed" the hammer from the applicant's grip. They caught the applicant as he tried to flee and detained him until police arrived.

The applicant and Mr Martin were conveyed to the John Hunter Hospital. The applicant had singed facial hair. He told the treating doctor that he had gone to his ex-partner's house and blown up her new partner's car using petrol (Form 1 offence 3). An examination of the vehicle in the garage revealed that the driver's side passenger quarter window had been smashed and the entire rear section of the vehicle had been destroyed by fire. Examination detected "traces of a hydrocarbon fraction containing the middle and high boiling components of petrol".

A number of foreign items were recovered from the backyard including a hammer, a torch, a set of bolt cutters, two Zenith brand padlocks which were of the exact type used to secure the garage and a 600ml bottle of Coke containing petrol.

Mr Martin was an inpatient at the John Hunter Hospital until 27 January 2007. He was found to have 4 lacerations over the scalp which were bone deep and required 30-40 stitches, a laceration to the left zygoma, a bruise over the left lower chest and a CT scan of the face demonstrated air in the right maxillary sinus indicative of a small blow out fracture of that sinus. There was also a fracture of the medial wall of the right orbit.

7 The applicant was born in 1962 and so at the time of the offence he was aged 44.

8 He has a criminal history which comprises multiple offences of culpable driving for which he was imprisoned in 1988. There are then the matters referred to earlier for which he was imprisoned for one month in December 2006.

9 The applicant did not give evidence in the proceedings before the judge but tendered on his behalf was a report by Dr Olav Nielssen, psychiatrist, dated 13 July 2008. Included in the history the applicant gave to Dr Nielssen was that he had lived most of his life around the area of Charlestown. His early development was normal and he reported a happy childhood. He was educated to Year 10 and claimed to have been an above average student. He then completed an apprenticeship as an electrician but then was employed by his father who owned trucks and he remained in that employment until 2003.

10 He told Dr Nielssen that he one previous long term relationship that ended when he was aged about 30 from which there were no children. He did not report any conflict around the time of the cessation of that relationship.

11 The applicant told Dr Nielssen that he was very distressed when Ms Baker terminated their relationship in March 2006. After she had moved in with Mr Martin he became anxious that she would try to prevent him seeing their two children who would then have been aged around eight and five. It would seem on his account to Dr Nielssen that at least initially he had reasonable access to the children but as time went on this reduced and there were repeated arguments about breaches of agreements concerning custody and access concerning the children, and in relation to maintenance arrangements. The applicant also claimed that he became concerned about inappropriate behaviour on the part of Mr Martin towards his daughter who was the younger of the two children. He told Dr Nielssen that Ms Baker had successfully applied for an apprehended violence order against him after an argument. He claimed that she had assaulted him but that the police did not accept his version of events. He claimed to have been unjustly accused of other forms of harassment, including damage to cars and stealing clothes. He said that when he was charged with the three breaches of the AVO that led to his imprisonment it was in reality the result of Ms Baker being violent towards him and subsequently complaining to the police that he was in breach of the orders.

12 The applicant told Dr Nielssen that upon his release from prison he resolved to keep away from Ms Baker. However he said that someone broke into his shed and stole some bicycle equipment and he was told by an acquaintance that he could find the missing equipment in Mr Martin's shed. (One assumes that this was intended to be an explanation for his going to that place. It does not explain why he went to Ms Baker's home on the night of 22 January 2007).

13 The applicant claimed that around the time of the offences he was feeling very depressed and had felt so since Ms Baker moved out. He said that he had experienced difficulty sleeping and had lost 30 kilograms in weight over a period of six months. He said that following his arrest and going into custody he was still feeling depressed but had not received any psychiatric assistance nor had been prescribed any medication. He told Dr Nielssen that this depression had since resolved.

14 The applicant told Dr Nielssen that his main wish for the future was to see his children. He said that he hoped to learn from his mistakes and do things differently in the future. He claimed that he had been under pressure at the time of the offences and reacted the wrong way. He claimed that he now had insight and would not let the same thing happen again.

15 Based upon what he was told by the applicant, with some support by information provided by the applicant's father, Dr Nielssen made a diagnosis of "adjustment disorder with depressed mood, now in remission". The judge quoted from Dr Nielssen's report in part as follows: "At the time of the offence Mr Wilkins was affected by an adjustment disorder, a clinically significant level of depression arising from a life event, in this case the breakdown of his relationship. The diagnosis was made on the basis of Mr Wilkins' account of symptoms of depression, including weight loss, sleep disturbance and pervasively depressed mood after the breakdown of his relationship with Ms Baker, and the corroborative information provided by his father.

Mr Wilkins' depressive illness is likely to have affected his judgment at the time of the offence and contributed to his inability to accept the change in his circumstances, deal with conflict in a more adaptive way or control his anger".

16 In expressing his findings concerning the applicant's subjective circumstances the judge said that he was not satisfied that he was a person of good character having regard to the apprehended violence order offences in 2006 and the offences he was required to take into account listed on the Form 1 document. However he did allow that up until those matters in 2006 the applicant "probably was a person of good character". The judge said that he could not say that the applicant was unlikely to re-offend or that he had good prospects of rehabilitation. The basis for that was that there was no evidence upon which he could base any such findings apart, perhaps, for the opinion of Dr Nielssen that the applicant seemed to have come to terms with the break-up of his relationship. The judge was also uncertain as to the level of remorse demonstrated by the applicant. He noted in this regard that there was no evidence given by the applicant and also that his plea had been a late one. To reflect the utilitarian value of that plea, however, he indicated that he would allow a discount of 15%. The judge accepted a concession by the Crown prosecutor that there could be a finding of special circumstances "because of the offender's need to deal with the problems regarding access to his children and the like." The judge also took into account that this would be the applicant's first significant full-time custodial sentence in more than twenty years".

17 Because a standard non-parole period is prescribed for the offence the judge was required to direct attention to whether that non-parole period should be imposed or whether there were reasons for departing from it. As to the objective seriousness of the offence the judge said: "I am of the view that the offence, objectively speaking, falls to be determined at the mid-range of seriousness. The unprovoked attack on a person by hitting him over the head with a hammer on numerous occasions must be regarded as extremely serious conduct indeed. Had more serious injuries been inflicted upon the victim, I would have thought that, objectively speaking, the offence fell to be determined at the upper range of seriousness. In this regard I have had some assistance from the decision of the Court of Criminal Appeal in R v Mitchell; R v Gallagher [2007] NSWCCA 296 where Howie J deals with the problems of assessment of the objective seriousness of offences under this section and where it seems to be made clear that the degree of harm will be, in part, determinative on that issue. Fortunately for Mr Martin his injuries and disabilities were not as great as one might expect from an attack such as this."

18 After announcing the reasons for his finding of special circumstances the judge proceeded to say that there were reasons for departing from the standard non-parole period. He said that they involved, in particular, the offender's plea and the finding of special circumstances. He noted, correctly with respect, that the standard non-parole period still had relevance as a reference point.

Ground 1 The learned sentencing judge erred in failing to properly take into account the evidence of the applicant's mental disorder in the determination of the sentence

19 The judge noted that the applicant had not given evidence and then summarised the version he had given to Dr Nielssen as to factors that influenced his commission of the offences. The judge observed in relation to one specific aspect that it was not supported by independent evidence. He then said: "Indeed, in the absence of any evidence from the offender, it is difficult to be satisfied, and I could not be indeed, that his slant on the situation as set out in the history obtained by Dr Nielssen, was accurate."

20 The judge then quoted the entirety of that part of the report that set out the "Opinion" of Dr Nielssen, including the passages I have earlier set out. The judge then said: "So far as the opinions of Dr Nielssen are concerned, with due respect to him, as I say they are unsupported by evidence, particularly from the offender. In any event, this was the culmination of a protracted course of conduct on the part of the offender which started with the breaches of the apprehended violence orders and subsequent imprisonment in 2006 which should have been a significant warning for him at that stage and then leading up to the commission of the first of the Form One offences. In my view, whilst it may well have been the case that he was depressed at the time of the commission of the offence on the indictment, this should have little if any part to play in sentencing considerations. There is no evidence, in my view, which would support a conclusion that it was of such a degree as to deprive the offender of his ability to realise the serious nature of his actions which were, in respect of the Form One matters in particular, premeditated and without any excuse."

21 It was submitted by Mr Dhanji that the judge accepted the opinion of Dr Nielssen that the applicant was depressed at the time of committing the offence on the indictment. Accordingly, it was submitted that the judge should have found that this reduced the applicant's moral culpability for the offence, thus reducing the objective gravity of the offence. It was also submitted that this was a factor that warranted less weight to be given to the need for general deterrence.

22 These "errors" were likened to those which were found to have occurred in Benitez v R [2006] NSWCCA 21; (2006) 160 A Crim R 166. In that case the applicant had been sentenced for soliciting a person to murder his estranged wife and her new partner. The offences comprised a course of conduct over a period of eight months. An eminent psychiatrist expressed the opinion that the applicant had experienced depression following the breakdown of the marriage and that "his judgment and his actions in relation to the offending behaviour were significantly affected". The sentencing judge accepted that the applicant was depressed but held that it was not a causative factor and so "the sentence does not reflect in any way the fact that he was depressed". Simpson J referred to well known authorities on the subject: R v Fahda [1999] NSWCCA 267, R v Letteri, unreported, NSWCCA 18 March 1992, R v Engert (1995) 84 A Crim R 67, R v Scognamiglio (1991) 56 A Crim R 81, R v Champion (1992) 64 A Crim R 244 and R v Wright (1997) 93 A Crim R 48. She then stated: [39] In my opinion it was an error for his Honour to direct himself in terms that suggested that the applicant's depression, if not causative of his offences, was irrelevant to the sentencing process. The result was unduly to confine the sentencing discretion. There can be no doubt that he excluded it as a relevant sentencing factor; he said so explicitly. Applying the balancing considerations proposed by Gleeson CJ [in Engert ] to the present case, it can be seen, on the facts of this case as found by the sentencing judge, that protection of the community is not a consideration suggesting a greater rather than a lesser sentence. The finding concerning rehabilitation establishes so much. In my opinion the applicant was entitled to have his mental state taken into account as a relevant sentencing consideration, and one going to mitigation, not exacerbation, of sentence.

[40] That is so even if the finding of fact, that the depression had no causal connection with the offence, is accepted as correct. The correctness of the finding of fact was the basis of the first ground of appeal as pleaded and as originally argued. It is a finding of fact with which I have great difficulty. It is true that Dr Westmore accepted that it was difficult to make a retrospective diagnosis, but a fair reading of his report makes it quite clear that he did consider that the applicant was depressed; and the circumstances of the case are such that the depression arose directly from his matrimonial and family circumstances.

[41] But the influence of the depression must remain in perspective. In Wright , Hunt CJ at CL (as the presiding judge then was) said: "But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation [in sentence] need not be great." [42] Here, it must be accepted that the applicant, although acting out of depression, also acted with knowledge of what he was doing and of the gravity of his actions. That gives some guide to the extent to which his depression ought to have been taken into account in mitigation of sentence. In the circumstances of this terrible crime, it cannot weigh too heavily.

23 The Crown submitted that the judge was not bound to accept the diagnosis of Dr Nielssen and that this was so regardless of whether the Crown Prosecutor took issue with it or not. It was contended that the decisions of this Court in Sayin v R [2008] NSWCCA 307 and CAR v R [2009] NSWCCA 138 lent support to the submission.

24 Mr Dhanji's submission depends upon an interpretation of the judge's remarks that I do not believe is warranted. It turns on the last two sentences of the passage set out above at [20] and requires an understanding that what the judge was saying was that the applicant's depression should "have little if any part to play in sentencing considerations" because "there is no evidence ... which would support a conclusion that it was of such a degree as to deprive (him) of his ability to realise the serious nature of his actions". The submission also depends upon an assumption that the judge was unaware of, or forgot about, the various ways in which a mental condition may be relevant to the sentencing exercise. Authorities, such as those referred to by Simpson J in Benitez, are frequently cited and are well known to criminal law practitioners and judges. The judge in this case has extensive experience in presiding over criminal cases. I would not readily interpret the judge's remarks in the manner suggested. Nor would I readily assume the judge neglected to consider basic principles.

25 A fair reading of the entirety of the judge's remarks leads me to conclude that he was not convinced that the applicant was suffering from depression at the time of the offence because the opinion of Dr Nielssen was based upon matters not established in the evidence before him. The judge considered nevertheless, even if there was depression, whether it had any bearing upon the sentencing exercise and concluded that it did not. In the circumstances of the case this was a view that was open to his Honour. As Gleeson CJ stated in Engert (supra at 68) it is "erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances".

Ground 2 The learned sentencing judge erred by failing to properly apply Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (the standard non-parole period provisions) in sentencing the applicant

27 In the written submissions there is reference to the judge having said: "In sentencing for this offence, it must be borne in mind that the maximum penalty for it is 25 years imprisonment but the standard non-parole period is only seven years imprisonment".

28 It was then submitted that the judge did not elaborate on the significance he gave to the standard non-parole period and that, in particular, he "did not refer to the fact that the standard non-parole period was of greater significance than the maximum penalty in a case such as the present". Reference was made to some observations made in R v Way (2004) 60 NSWLR 168 at [53] as to what was likely to happen in the future (the focus shifting more towards the standard non-parole period than the maximum penalty) and some remarks by Howie J in R v Mitchell; R v Gallagher [2007] NSWCCA 296 at [37] (that in a case that falls well above the mid-range of offending the standard non-parole period will have less significance as a guidepost and more attention should be directed to the maximum penalty). It was submitted that the judge in the present case "may have given excessive weight to the maximum penalty and failed to have proper regard to the (standard) non-parole period" because of the length of the sentence he imposed. This is how it was asserted that the judge had erred in the manner set out in the ground.

29 In my view it is not possible to infer any error from the correct statement by the judge of the applicable maximum penalty and standard non-parole period. There is nothing in the judgment that indicates that the judge had too much regard for one as opposed to the other. The argument in support of this ground is really an attempt to divine some reason for the sentence being, as it is asserted under ground 4, "manifestly excessive". No patent error is demonstrated under this ground which I would reject.

Ground 3 His Honour erred in finding the offence to be "at the mid-range" of objective seriousness for the purposes of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (the standard non-parole period provisions) in sentencing the applicant

30 Two errors were asserted by the applicant in support of this ground. The first is that dealt with in ground 1 that there was error in not finding the applicant's moral culpability was reduced because of his mental condition. I have expressed my reasons for rejecting that contention. The second is that the offence is one of malicious wounding with intent, not malicious infliction of grievous bodily harm with intent, and, so it was submitted, it was erroneous for the judge to take into account injuries that were not woundings and were more serious than woundings: McCullough v R [2009] NSWCCA 94 at [35] - [38].

31 I accept that the judge took into account all of the physical injuries that were inflicted upon Mr Martin. He quoted from the statement of facts tendered by the Crown which set them all out.

32 The judge later mentioned twice that it was fortunate that Mr Martin did not suffer far more serious injury. At no stage did the judge say anything to the effect that he was limited in the nature of the injuries that he could take into account because the charge averred wounding rather than grievous bodily harm.

33 McCullough v R was a case concerned with an offence of malicious wounding, an offence contrary to s 35(1)(a). The applicant had inflicted a wound to the victim's finger that required three sutures. There were also minor lacerations of the head that did not require suturing. The sentencing judge had also taken into account that the victim, who was a sixty year old woman, had sustained a fracture of the wrist and severe bruising around the eyes. She spent five days in hospital. Howie J said that the judge was entitled to take into account the nature of the assaults that gave rise to the wounding and also to take into account other injuries inflicted in the course of conduct resulting in the wounding that were less serious than the wounding. She was not, however, entitled to take into account other injuries that were not wounds and were more serious than wounds, specifically the fracture of the wrist, and nor was she entitled to take into account the hospitalisation of the victim because that was not identified as being a result of the wounding or the other injuries less serious than the wounding. The reason for this was that it was held that malicious wounding and malicious infliction of grievous bodily harm, although offences within the one section of the Crimes Act and carrying the same penalty, were distinct offences. The Crown submitted that the judge was entitled to take into account all of the injuries because to do so was not in breach of the De Simoni principle. However, Howie J held that it was impermissible to take into account more serious injuries that had been inflicted but for which the applicant had not been charged.

34 The fact that McCullough v R was concerned with an offence against s 35(1) and the present case concerns an offence against s 33 is immaterial. The same reasoning applies equally to both. Howie J went on to observe that the two sections have been amended to remove the reference to "maliciously" and in s 35 there are now separate offences with different maximum penalties for reckless wounding and reckless infliction of grievous bodily harm. McCullough and the present case are concerned with the legislation prior to that amendment.

35 It is true, of course, that this Court will not normally interfere with a sentencing judge's findings in respect of the objective gravity of an offence: Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37] and Simpson J at [46]. The applicant concedes that review of such a finding is limited and based upon the principles in House v The King (1936) 55 CLR 499. I am satisfied that error of a House v The King type has been demonstrated. Taking into account the two facial fractures sustained by the victim was to take into account grievous bodily harm contrary to The Queen v De Simoni (1981) 147 CLR 383.

36 That leaves the question whether the offence should have been characterised as being in the middle of the range of objective seriousness. The relevant matters to be considered include the following. The offence was not planned but was a spontaneous reaction upon being caught in the act of fleeing the scene of an offence of arson. The applicant, however, chose to run towards Mr Martin as opposed to running away from him. The applicant used a weapon in his attack. It is likely that the hammer was taken to the scene by the applicant to use in connection with the arson offence and not for the purpose of physically attacking anyone. He repeatedly struck Mr Martin and continued doing so even after Mr Martin managed to take hold of the hammer on a number of occasions. He chose to aim his blows to the head, a most vulnerable part of the body. Witnesses described a "thud sound" that accompanied each blow. Mr Martin sustained four lacerations over the scalp which were said to be "bone deep" and required some 30 to 40 sutures as well as a laceration to the left zygoma. The psychological impact of the offence upon Mr Martin, even putting aside the facial fractures, can be accepted as being significant.

37 Consideration of the nature of the injuries inflicted by the commission of an offence against s 33 is an important aspect in assessing the objective seriousness of the offence, although it needs to be borne in mind that the offence also involves an intention to inflict grievous bodily harm: R v Mitchell; R v Gallagher (supra) at [27]. An offence against s 33 can involve injuries ranging from a small laceration up to anything short of death. The lacerations in the present case were quite significant and the circumstances of the attack most violent. However I have come to the view that the offence fell below the middle of the range of seriousness for a s 33 offence, although not by a great margin.

Ground 4 The sentence is, in all the circumstances, manifestly excessive

38 It was submitted on behalf of the applicant that before the discount of 15% for the plea of guilty the judge must have had in mind a starting point for the total sentence of about 13½ years. Such a sentence would ordinarily involve a non-parole period in the order of 10 years, absent any "special circumstances". A comparison was then made to the standard non-parole period of 7 years which the judge said he was not imposing because of the plea and his finding of special circumstances. It was submitted that the need to take into account the offences on the Form 1 document could not account for a starting point 3 years longer than the standard non-parole period.

39 I am not convinced of the validity of this analysis but no determination is necessary. In finding that the offence fell below the middle of the range of objective seriousness it follows that I am also of the view that the sentence imposed is manifestly excessive. The sentence should be quashed and the applicant re-sentenced. That finding, the discount for the plea, and the finding of special circumstances (which should be maintained), all point to the imposition of a non-parole period less than the standard. The need to take into account the offences on the Form 1 is a significant matter but not such as to elevate the non-parole period to one equal to the standard.

40 I would take into account all of the subjective features of the applicant that were considered by the judge. It was submitted that if the Court did come to consider re-sentencing it should not maintain the finding of the judge that he was unable to find good prospects of rehabilitation. The judge's reason for coming to that view was that, "There is simply no evidence on which to base any such findings, except perhaps for the opinion of Dr Nielssen that the offender now seems to have come to terms with the break up of his relationship". This is one of the problems that arises when an offender does not give evidence in sentence proceedings. It was submitted that the inference that he has good prospects of rehabilitation should be drawn from the lack of relevant previous convictions prior to 2006, his age then being 43, and the offences being committed in the context of distress over the breakdown of a relationship. I am not persuaded that the applicant has discharged the onus which he bears of establishing this matter on the balance of probabilities. There was no evidence that he had undergone any programs, courses or counselling concerning relationships and anger management. It is difficult to forecast whether he would act differently in the future when under stress and in conflict with other people.

41 In the sentence I propose I have taken into account the offences on the Form 1 document in the manner suggested by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. They are serious offences in their own right involving substantial damage to property and were part of a campaign of revenge and harassment by the applicant towards his former partner and her new boyfriend.

42 Taking account of all relevant matters I would regard a sentence of 10 years as an appropriate starting point before deducting 15% for the applicant's plea of guilty. Against the resulting sentence of 8 years 6 months I would set a non-parole period of 5 years 6 months.

43 I propose the following orders: 1 Grant leave to appeal 2 Allow the appeal 3 Quash the sentence imposed in the District Court 4 Re-sentence the applicant to a term of imprisonment comprising a non-parole period of 5 years 6 months with a balance of the term of the sentence of 3 years. The sentence will commence on 22 January 2007 and the applicant will be eligible for release on parole on the expiration of the non-parole period on 21 July 2012. The total term will expire on 21 July 2015. 44 DAVIES J: I agree with R A Hulme J. **********

07/10/2009 - "he" changed to "she" - Paragraph(s) 33 29/10/2009 - - Paragraph(s)

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.

CITATION: Wilkins v R [2009] NSWCCA 222 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Benitez v R [2006] NSWCCA 21; (2006) 160 A Crim R 166 CAR v R [2009] NSWCCA 138 House v The King (1936) 55 CLR 499 McCullough v R [2009] NSWCCA 94 Mulato v R [2006] NSWCCA 282 R v Champion (1992) 64 A Crim R 244 CASES CITED : R v Engert (1995) 84 A Crim R 67 R v Fahda [1999] NSWCCA 267 R v Letteri, unreported, NSWCCA 18 March 1992 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v Scognamiglio (1991) 56 A Crim R 81 R v Way (2004) 60 NSWLR 168 R v Wright (1997) 93 A Crim R 48 Sayin v R [2008] NSWCCA 307 The Queen v De Simoni (1981) 147 CLR 383

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