Ak v Regina

[2020] NSWCCA 194

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AK v Regina [2020] NSWCCA 194

Hearing dates:

10 June 2020

Date of orders:

5 August 2020

Decision date:

05 August 2020

Before:

Macfarlan JA at [1]
N Adams J at [2]
Lonergan J at [3]

Decision:

(1) Leave to appeal sentence granted

(2) Appeal dismissed

Catchwords:

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — complaint that sentencing judge failed to properly consider the applicant’s mental health

CRIME — appeals — appeal against sentence — misapplication of principle — complaint that sentencing judge failed to appropriately take into account the special circumstances of the applicant — complaint that sentencing judge erred by failing to appropriately vary the statutory ratio in recognition of the special circumstances and the mental health of the applicant

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Brennan v R [2018] NSWCCA 22

Briggs v R [2010] NSWCCA 250

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Etchell v R (2010) 205 A Crim R 138; [2010] NSWCCA 262

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Baker [2000] NSWCCA 85

R v Cramp [2004] NSWCCA 264

R v Engert (1995) 84 A Crim R 67

R v Fidow [2004] NSWCCA 172

R v GDR (1994) 35 NSWLR 376

R v GWM [2012] NSWCCA 240

R v Simpson (2000) 153 NSWLR 704; [2001] NSWCCA 534

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Wakefield v R [2010] NSWCCA 12

Category:

Principal judgment

Parties:

AK (Applicant)
Regina (Respondent)

Representation:

Counsel:
L Rowan (Applicant)
E Wilkins SC (Respondent)

Solicitors:
AC Law Group (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/147185

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

19 June 2019

Before:

Wilson SC DCJ

File Number(s):

2016/147185

Judgment

1. MACFARLAN J: I agree with Lonergan J.

2. N ADAMS J: I agree with Lonergan J.

3. LONERGAN J: The applicant, known as ‘AK’, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against a sentence imposed by Wilson SC DCJ in the District Court at Sydney on 19 June 2019.

4. AK’s trial, for a series of offences involving his wife and stepchild, commenced on 12 March 2018. Two days into the trial, and whilst the main victim, the applicant’s wife (known as ‘SM’) was giving evidence, the applicant entered pleas of guilty to four offences, these being Counts 2, 3, 4 and 5 as charged on Indictment.

5. At the sentencing proceedings, an additional offence was taken into account on a Form 1 and four additional and related offences were taken into account pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

6. The offences to which the applicant pleaded guilty were as follows:

1. Detain SM (his wife) with intent to obtain an advantage (psychological gratification) contrary to s 86(1)(b) of the Crimes Act 1900 (NSW) which carries a maximum sentence of 14 years imprisonment;

2. Detain PC (his step daughter) with intent to obtain an advantage (psychological gratification) contrary to s 86(1)(b) of the Crimes Act;

3. Do an act intending to persuade a witness in a judicial proceeding to withhold true evidence with intent to procure an acquittal for a serious indicatable offence (aggravated), contrary to ss 323(a) and 324 of the Crimes Act, which carries a maximum penalty of 14 years imprisonment;

4. Sexual intercourse without consent, contrary to s 61I of the Crimes Act which carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.

7. Taken into account on the Form 1 was one count of enter dwelling house with intent to commit a serious indictable offence contrary to s 111(1) of the Crimes Act which carries a maximum penalty of 10 years imprisonment.

8. The four offences on the s 166 Certificate comprised one count of contravene restriction of apprehended violence order (domestic), contrary to s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) with a maximum penalty of 2 years imprisonment or 50 penalty units or both; two counts of common assault contrary to s 61 of the Crimes Act which carries a maximum penalty of 2 years imprisonment, and one count of intimidation, in contravention of s 13 of the Crimes (Domestic and Personal Violence) Act, which carries a maximum penalty of 5 years imprisonment or 50 penalty units or both.

9. The indicative sentences, with discount applied for the guilty plea, were as follows:

• Sequence 1: (contravention of ADVO): 10 months;

• Sequence 2: (common assault):10 months;

• Sequence 3: (common assault): 10 months;

• Sequence 5: (stalk intimidate):12 months;

• Sequence 6: (take or detain person with intention of obtaining advantage - AK’s wife SM): 6 years;

• Sequence 7: (take or detain person with intention of obtaining advantage - AK’s stepdaughter): 5 years;

• Sequence 8: (sexual intercourse without consent): 5 years with a non-parole period of 3 years and 8 months;

• Sequence 9: (acting with intent to influence to potentially procure an acquittal): 5 years [1] .

  1. Remarks on Sentence of Wilson SC DCJ, 19 June 2019, at [83]-[90].

10. The applicant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 7 years dating from 20 June 2016.

11. The applicant seeks leave to appeal against the aggregate sentence. For the reasons that follow, I propose that leave to appeal should be granted but the appeal should be dismissed.

Facts

12. The facts were agreed between the parties and set out in the remarks on sentence as follows:

“… [14] SM (the victim) and AK (the Offender) were married in 2013.

[15] Together they had a child NK in July 2013. That child was two years old at the time of the offences in May 2016. The victim had two children from a previous marriage, who will be referred to as NC and PC. NC was around 20 years of age and PC 15 years old at the time of the offences in May 2016.

[16] Around August/September 2014, the victim and NK moved to Australia to be with the Offender. They lived in a home in Bonnyrigg. NC lived with them for a time but moved out in April 2016. PC then moved separately from Fiji into the premises in or about April 2016.

[17] In December 2014, the Offender assaulted the victim and pleaded guilty such that he was convicted and fined in relation to that matter.

[18] In April 2016, the Offender assaulted the victim again causing actual bodily harm and also intimidated her. He was granted bail but obliged to abide by the terms of an AVO which included a condition that he not enter the premises to which I have previously referred. Following the incident, the victim did not remain at the premises during the evenings. She would attend the premises during the day but returned to stay at the home of a friend at night with NK and PC.

[19] In February 2017, the Offender pleaded guilty to the April 2016 assault and he was at that time sentenced to a short term of imprisonment.

[20] On 10 May 2016, three weeks after his release to bail for the April 2016 offences and three days before the matter was next due before the Court the Offender attended the premises contrary to the conditions of the AVO. Initially when he arrived NK and PC were not present. At around 7:30am, the victim arrived at the premises with NK and PC.

[21] A short time later, the victim was in the kitchen when she saw the Offender standing by the door in the nearby sunroom. She was scared when she saw him. The Offender entered the dwelling intending to intimidate the victim. That is the charge which forms the basis of the matter on the Form 1.

[22] The victim was scared and tried to run away from the Offender towards the front door of the property. She yelled to PC to open the door. The Offender caught up with the victim before she could leave and grabbed her by the back of the head around her hair so she could not run.

[23] The victim told PC again to open the door. The Offender told PC that if she opened the door he would kill her and grabbed PC by the hair as well. PC said to the Offender “don’t hurt us, don’t hurt us”.

[24] The Offender then walked the victim and PC into the dining room area of the property. The Offender sat the victim on a dining room chair and at the same time pushed PC into a wall causing a fingernail to break. The Offender told PC to sit on a chair. PC asked the Offender if she could go to the bathroom and after some time she was permitted to do so. She returned thereafter.

[25] Over the ensuing hours the Offender spoke further with the victim about the impending court case. The Offender said words to the effect of “save me from the Court, I will lose my licence, I will lose my job, if you call the Police I will suicide”. In fear, and feeling guilty, the victim said she would say whatever the Offender wanted her to say in court. Whilst the Offender was inside the premises he did not allow the victims to leave. Both SM and PC were detained without their consent for the Offender’s psychological gratification. That is the basis for Counts 2 and 3 on the original Indictment.

[26] By virtue of the conversations with the victim the Offender was intending to persuade SM, a witness in judicial proceedings, to withhold true evidence with intent to procure his acquittal for a serious indictable offence. That is Count 4 on the Indictment.

[27] During the time in the premises the Offender led the victim to a bedroom. He told her that he wanted to talk to her in private. NK followed them into the bedroom. The door was closed and locked for approximately two hours. Inside the bedroom the Offender said “I’m sorry I hit you, I love you.” He told he loved her and that he wanted to sleep with her. The Offender guided the victim’s body around so that she was facing away from him on the bed in the room. He pulled her pants and underpants down and inserted his penis into her vagina. The Offender had penile/vaginal sexual intercourse with the victim without her consent knowing that she was not consenting. During this incident the victim did not scream or make a lot of noise as her children were nearby. Those are the facts which pertain to Count 5.

[28] After the sexual act the Offender and the victim ended up back in the lounge room. The Offender continued to talk to the victim about the upcoming court case and their relationship telling her to “please save me, I’ll be good to you, we won’t fight anymore”.

[29] During the day the Offender spoke to his brother over the telephone, then in Fiji. The Offender told his brother that he was going to send him $3,000. He then turned to the victim and said “I sent him $3,000, if anything happens to me that money is for you, for him to kill you.”

[30] The Offender asked PC what time her brother was coming home, she said “around 5:30”. The Offender waited until it was dark before leaving saying to the victim “if you report this to the Police I will suicide”. At around 5.50pm the victim contacted her friend who I will refer to by the initials AS. AS then collected the victim and PC, and I assume also the young child previously referred to as NK who at that time was just two years of age.

[31] AS took the victims to Green Valley Police Station where they spoke to Police. The victims went home with AS where the victim showered and the clothes she had been wearing at the time of the incident were washed. The following day at around 9:42am the victim spoke with her domestic violence social worker Melanie Thompson who took the victim to Fairfield Police Station.

[32] The victim then attended Liverpool Hospital where a SAIK was conducted. A medical forensic examination was conducted on the victim’s genital area and swabs were taken for analysis. Semen was detected on the high vaginal smear. A mixed DNA profile was recovered from the high vaginal swab. The major component of the mixture had the same DNA profile as the Offender. The minor component of the mixture is consistent with originating from SM, the victim. Police then took the victim back to the premises where they conducted a recorded walkthrough.

[33] At around 11:45am on 12 May 2016, Police attended the Offender’s workplace; they informed him of the allegations, cautioned him and placed him under arrest. The Offender was conveyed to Fairfield Police Station. During that journey the Offender told Police that he had attended the premises contrary to the AVO. He said he arrived at around 6am and had gone there to “see his boy”. He said he left at around 5:30pm and the victim had not wanted to let him go in case he was seen at the property. He agreed that he had breached the AVO by attending the premises but denied sexually assaulting the victim, stating “no, I did not rape her, my two‑year‑old boy was there, how could we have sex?”

[34] He told Police he entered the premises through the back sliding door of the property. Upon arrival at the Fairfield Police Station, the Offender was introduced to the Custody Manager and informed of his rights. He participated in a short recorded interview with the Police with the assistance of an interpreter. He told the Police that he did not want to answer questions about the allegations. Police asked him about the conversation with Police on the journey to the Police Station and the Offender adopted the content of that conversation”.

Findings

13. The sentencing judge made specific reference to the context of domestic violence and what the High Court had said about that in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 (“Munda”) at [54]-[55], noting:

“…the longstanding obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence…”.

14. Reference was also made to The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [21], recognising the societal shift in relation to domestic violence and that current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence, because of changes in societal attitudes to domestic relations.

15. His Honour concluded that counts 2, 3, and 4 were all in the mid-range of objective seriousness for that type of offending and that count 5 was slightly above the mid-range, given the presence of the young child. He placed the objective seriousness of the breach of the AVO at above the mid-range given that it involved detention and sexual violence, the two counts of common assault at the mid-range, and the stalk and intimidate at about the mid-range. No issue has been taken regarding any of those assessments.

16. His Honour listed the aggravating features of the offending at [61] as follows:

“…[61] Other considerations affecting the sentence to be imposed in this case include the following aggravating factors:

(a) the actual or threatened use of violence. I mention that only to the extent that it does not involve double counting in respect of the assault matters which include as an element of the offending an act of violence;

(b) the offences were committed in the presence of children, namely NK aged two and PC who was then aged around 15 years of age. Of most concern is the fact that not only was PC present but she was also the subject of violence, and also of concern to the Court and an aggravating factor in relation to the sexual intercourse count being count 5 on the Indictment, that offending occurred in the presence of the two year old child;

(c) it is also an aggravating factor that the offences were committed in the home of the victims, a place where they are entitled to expect to be safe and free from this type of conduct, particularly in view of the fact that an AVO had been taken out with conditions which precluded the attendance of the Offender at those premises; and

(d) the offending is aggravated further by the fact that the offences were committed whilst the Offender was the subject of conditional liberty”.

Subjective case

17. The applicant was 56 years old at the time of offending and is now 60. He has a criminal history which includes previous assaults of SM. He was convicted of assault involving slapping SM in the face and pulling her by the hair on 26 December 2014. He was fined. He was charged for assault occasioning actual bodily harm and breach of an AVO for his conduct on 21 April 2016. The facts of that offending were before the sentencing judge. The applicant was sentenced in 2017 for the April 2016 offending to imprisonment for 2 months and 16 days commencing 22 February 2017 and ending on 7 May 2017.

18. The applicant chose not to give evidence but provided a letter stating that he “accepted responsibility” for his actions and that what he did was “inappropriate”. The sentencing judge gave the letter very little weight, because the applicant was provided with the opportunity to give sworn evidence of remorse, but refused and had initially pleaded not guilty and in doing so, subjected his wife to giving evidence.

19. The sentencing judge noted the medical reports from Dr Adams and Dr Chew, both psychiatrists. Dr Adams was retained to assess the applicant’s fitness for trial. He assessed the applicant on 22 September 2016 and 21 October 2016. Dr Adams stated that the applicant found it difficult to provide an accurate account of his mental health history and that the applicant reported to him that he was “worried” he was “losing his memory”. He had no history of alcohol or drug abuse. He had worked as a bus driver in Australia. Dr Adams concluded that at that point, the applicant did not satisfy the Presser minimum standards and was not fit to plead. Dr Adams diagnosed a neurocognitive disorder with possible dementia type illness and psychotic symptoms.

20. On reassessment on 5 June 2017, Dr Adams noted that the applicant’s mental state had improved with medication and that he was fit for trial.

21. Dr Chew reviewed the applicant in March 2019 by AVL. He took the view that the applicant suffered a serious mental illness, likely major depression with psychotic features and prominent cognitive features. He also stated that in his view it was likely that the applicant had suffered from that condition at the time of the offending.

22. The sentencing judge noted that there was controversy as to the source of the information Dr Chew has included in his report regarding medical records and medications, although this was clarified in a subsequent report from Dr Chew to indicate that the information came from Justice Health Records.

23. His Honour analysed the effect of the medical reports at [67]-[69] of the remarks on sentence:

“[67] Given the medical conditions that have been referred to in the evidence the Offender’s mental condition could have the effect of reducing his moral culpability and matters such as general deterrence, retribution and denunciation may as a result have less weight in the sentencing process. This is especially the case where the mental condition, according to the evidence, contributed to the commission of the offending in a material way.

[68] Without going through the authority in detail I note the observations of the McClellan CJ at CL in the matter of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177], where his Honour listed a number of propositions that may arise in circumstances such as these. I have had regard to those observations, and I find that, by reason of his mental condition, the Offender’s moral culpability is slightly reduced.

[69] I also find that by reason of his mental condition and the need for treatment a custodial sentence may weigh more heavily upon the Offender. I decline to find that it reduces the need for specific deterrence and I find that by reason of the mental condition from which the Offender suffers he may present more of a danger to the community than others who do not suffer from those conditions resulting in specific deterrence being a matter which looms large in the sentencing exercise”.

24. The issue of special circumstances was discussed at [74]-[76]. His Honour noted that issue was taken by the Crown as to whether special circumstances existed such as to justify a departure from the statutory ratio for parole. The Crown argued that the only relevant basis would be that this is the applicant’s first time in custody for any lengthy custodial sentence, however the standard statutory ratio of parole to non-parole was sufficient to deal with any need for rehabilitation.

25. The applicant submitted that in addition to this being his first time in custody, the Court should also consider his age and his health issues.

26. His Honour approached the issue this way:

“[74] It is not agreed between the parties that special circumstance exist so as to justify a departure from the statutory ratio for parole. As to non-parole the Crown does not accept that special circumstances exist, this is based on the primary factor going to special circumstances in this case it is said it will be the Offender's first time of any lengthy custodial sentence.

[75] It was submitted on behalf of the Crown that due to the fact that he will face a lengthy sentence even with the application of the standard statutory ratio of parole to non-parole any need for rehabilitation will be accommodated by the standard period on parole. The Offender submitted that special circumstances would be found on the basis that it is the Offender's first time in custody, his age and also his health issues.

[76] Whilst I accept the Crown's submission that the standard period on parole would ordinarily be sufficient to address such issues I do find special circumstances such that there will be a minor adjustment to the statutory ratio.” [2]

2. Remarks on Sentence of Wilson SC DCJ, 19 June 2019.

The application

27. The applicant raised four grounds of appeal:

1. The sentencing judge erred by failing to properly consider the mental health of the applicant;

2. The sentencing judge erred by failing to appropriately take into account the special circumstances of the applicant;

3. The sentencing judge erred by failing to appropriately vary the statutory ratio in recognition of the special circumstances and the mental health of the applicant;

4. The sentence is manifestly excessive.

28. No written submissions were provided on behalf of the applicant in support of ground 4. In oral submissions, counsel for the applicant informed the Court that ground 4 was only pressed to the extent it “embodies or encompasses” grounds 1 to 3. It was not pressed as a separate ground, and so is not dealt with as a separate ground in this judgment.

Ground 1: Failure to properly consider the mental health of the applicant

(i) The Applicant’s submissions

29. Counsel for the applicant asserted that the conclusion that the sentencing judge should have reached, given the mental health evidence, and in particular Dr Chew’s 2019 report, was that the applicant’s moral culpability was significantly reduced, not, as his Honour found, only slightly reduced.

30. There was no apparent exercise of the necessary “sensitive discretionary decision” as required by R v Engert (1995) 84 A Crim R 67 at [67] that explained how his Honour applied the facts and circumstances of the case to the purposes of criminal punishment.

31. There was inadequate explanation for the conclusion that the applicant “may present more of a danger to the community than others who do not suffer from those conditions”. [3] It was argued that this approach led to an increase in sentence, because more weight was placed on specific deterrence. The factual basis for that conclusion should have been properly set out in the ROS, but was not. [4]

    3. Remarks on Sentence of Wilson SC DCJ, 19 June 2019, at [69].

    4. Applicant’s Written Submissions at [10].

32. The evidence supports a finding that this applicant was not an appropriate vehicle for the expression of the full weight of general deterrence, given his mental health problems based on Dr Chew’s opinion that the applicant was suffering from a mental disorder or disability at the time of the commission of the offence.

33. The sentencing judge gave no consideration to the risk that imprisonment will have a significant adverse effect on the applicant’s mental health. (I interpolate however that no evidence from the expert psychiatrists’ evidence was cited to support this proposition, and the evidence tendered suggests the applicant’s mental health has significantly improved whilst in custody).

(ii) The Crown’s Submissions

34. The Crown submitted that it is apparent from [67]-[69] of the ROS that his Honour expressly applied the relevant considerations from the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”):

“…[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at [71]; R v Wright (1997) 93 A Crim R 48 at [50]-[51]; Israil at [22]; Pearson at [42]; Henry at [28].

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at [400]; Jiminez at [25]; Israil at [26]; Henry at [28].

It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at [400]; Israil at [25]; JW at [192].

Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23]-[24].

35. The criticism made is, in effect, that his Honour should have given more weight to the mental health issue in reducing moral culpability. The question of weight is part of the instinctive synthesis that has to be undertaken by the sentencing judge. As stated by Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11]:

“Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined”.

36. Here the assessment of the applicant’s moral culpability had to be considered in the context of his history of domestic violence towards his wife, his ability to enter the home, forcibly detain both victims, and keep control of them for many hours notwithstanding his asserted mental condition. He threatened his wife, including a threat he would kill her and her daughter, he pressured her in relation to the court case - the subject matter of which was previous serious domestic violence on his part - in close proximity to the next listing of that case. The applicant also acknowledged to police a few days later that he knew that he was in breach of the AVO that was in place at the time of this offending.

37. Contrary to what was submitted on behalf of the applicant, his Honour in fact made a finding that a custodial sentence “may weigh more heavily” [5] on the applicant, despite Dr Adams noting in the his second report that the applicant’s mental health had improved and that the applicant himself had commented that he was “fine”, he was “very well” and that he “felt safe”. The applicant told Dr Chew in March 2019 that he was now “all better” on treatment, and denied any mental health symptoms. His Honour’s finding was, in the circumstances, a generous one.

    5. Remarks on Sentence of Wilson SC DCJ, 19 June 2019, at [69].

38. The sentencing judge was obliged to carefully consider the applicant’s criminal record and prior behaviour towards his wife. The 10 May 2016 offences were not isolated. There had been other incidents of violence during the relationship. The Court was required to take into account that the present offences were committed in breach of bail and in breach of an AVO. Dr Adams referred specifically to the possible danger posed by the applicant to others based on his assessments in 2017 [6] before the improvement in the applicant’s condition whilst in custody and on medication.

    6. Report of Dr Jonathon Adams, Forensic Psychiatrist, dated 11 November 2016, p. 11, [3].

(iii) Did the Sentencing Judge give proper consideration to the mental health of the applicant?

39. The conclusion in Dr Adams’ first report regarding the possible danger posed by the applicant to others is a significant consideration that his Honour was required to weigh in reaching an appropriate sentence to impose.

40. Contrary to the submissions made on behalf of the applicant, there is no evidence that in taking that matter into account, his Honour increased the sentence because of potential dangers presented by the applicant. He clearly weighed up the relevant factors as described in De La Rosa and gave some weight to the issue of the future dangerousness of the applicant. This is not at all surprising against a background of repeated, violent offending, where an AVO and bail conditions in place seem to have made no difference to this offender’s willingness to attack, detain, humiliate, terrorise and rape his partner in the presence of her children.

41. In some respects the mental health evidence was incomplete, but his Honour was required to take into account such evidence as was before him. It was open to him to find that the applicant presented as a risk, despite some demonstrated improvement in custody where he is under medication, supervision and the structured circumstances of custody away from his wife.

42. His Honour made a generous finding that the custodial sentence may weigh more heavily upon the applicant. He specifically declined to find that the applicant’s mental health could underpin a finding that the applicant was not an appropriate vehicle for the expression of general and specific deterrence, as is well within his discretion to so find, particularly given the High Court’s observations in Munda, and the nature of the offending.

43. There is no requirement based on De La Rosa, that where there is a finding by a court that a person’s mental health contributed to the commission of the offence in a material way, that the offender’s culpability must be reduced; only that it may be reduced. Having considered the relevant evidence, the sentencing judge concluded that the evidence warranted a slight reduction in the applicant’s moral culpability.

44. Such a finding was clearly open to him and was the result of weighing the various competing considerations, which is very much a matter within the province and discretion of the sentencing judge.

45. There is nothing in the sentence imposed that suggests no such reduction was applied. The offending was very serious, as reflected in the maximum sentences the legislature has chosen to impose for such offending.

46. His Honour’s approach was consistent with authority. No error has been demonstrated. Ground 1 must be dismissed.

Grounds 2 and 3: Special circumstances

(i) The Applicant’s Submissions

47. The applicant submitted that the Remarks on Sentence betray a lack of any clear finding of special circumstances, and the effect any such finding had upon the sentence imposed is not evident. Because of this approach, there was error in setting an excessive non-parole period. This had the effect of depriving the applicant of the benefit of any special circumstances his Honour may have found.

48. Alternatively, his Honour having made a finding of special circumstances failed to adequately alter the statutory ratio in a manner appropriately reflecting his finding.

49. As stated in R v GDR (1994) 35 NSWLR 376 at 381, an explicit addressing within the sentencing remarks of the length of the parole period as a proportion of the total, in circumstances where it is less than one third of the non-parole period, is required. Whilst it was acknowledged that there is no principle of law that requires that a parole period must not be less than one third of the non-parole period, it is desirable to address what approach has been applied, lest it be considered that there was an error of oversight or omission. In support of this submission reliance was placed on Wakefield v R [2010] NSWCCA 12 at [26]; Briggs v R [2010] NSWCCA 250 (“Briggs”) at [34]; Etchell v R (2010) 205 A Crim R 138; [2010] NSWCCA 262 at [49]-[50] and Brennan v R [2018] NSWCCA 22 (“Brennan”) at [69].

50. The sentencing judge’s silence on this aspect is submitted to be something that leads to a “sense of disquiet that he may have overlooked giving appropriate focus to the statutory ratio”, as was the case identified in Briggs per Fullerton J at [34].

51. Given the findings made about the applicant’s mental health and ongoing risk to the community, there is a recognised need for the applicant to undergo suitable rehabilitative treatment. That amounts to special circumstances which ought to have resulted in a variation of the statutory ratio to reflect that the applicant would benefit from treatment while in full-time custody, but he may not receive it due to factors out of his control: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [57]-[58].

(ii) The Crown’s Submissions

52. The Crown submitted that it is well-established that a finding of special circumstances is discretionary in nature and the degree to which the ratio of the non-parole period to the head sentence is varied is also discretionary and very much a matter for the sentencing judge. As noted in R v Fidow [2004] NSWCCA 172 (“Fidow”) at [18]-[24], particularly at [19] per Spigelman CJ (reiterating his earlier statement in R v Simpson (2000) 153 NSWLR 704; [2001] NSWCCA 534 (“Simpson”) at [73]):

“As a practical matter, there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive”.

53. As pointed out by Johnson J (with whom McClellan CJ at CL and Bellew J agreed) in R v GWM [2012] NSWCCA 240 (“GWM”) at [118]:

“As the decision of this Court in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 (at 718 [65]) makes clear, the adjustment of the statutory ratio, after considering factors relevant to the fettered sentencing discretion, must lead to the imposition of a non-parole period which constitutes the minimum period which the offender should spend in custody having regard to all objective and subjective circumstances, including the objective gravity of the offence and the need for general deterrence. The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36].”

54. Similar observations were made in Simpson at [65] per Spigelman CJ:

“In addition to the need to identify and articulate "special circumstances", in order to overcome the statutory constraint on the exercise of the discretion to fix a non-parole period, the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence - operates to confine the proper range for the exercise of the discretion. (See R v Maclay (1990) 19 NSWLR 112 at 122G-123A; R v Morrissey (supra); R v McDonald (NSWCCA, 12 October 1998, unreported); R v Henry & Barber [1999] NSWCCA 107 at [76] per Simpson J.) As the High court said in Power (supra) at 628:

‘To the extent to which deterrence is an object of imprisonment, then imprisonment without a chance of release for a longer time, rather than a shorter time, is within that objective.’”

55. It is evident that the sentencing judge expressly considered the submissions made about special circumstances and decided that there should be an adjustment made, as set out in his remarks at [74]-[76]. Contrary to the applicant’s submissions, the length of the adjustment is clear, being a reduction in the non-parole period of 6 months from the 7 years and 6 months that would have been 75% of the aggregate head sentence.

56. The Court was required to ensure that it did not “double count” mental health considerations already taken into account in imposing the sentence. As stated by Spigelman CJ in Fidow at [18]:

“In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s 44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the ‘decision' to be that the statutory proportion of one-third be “less”. ‘Double counting' for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur.”

(iii) Was there any error in the way the Sentencing Judge dealt with special circumstances?

57. As observed by Spigelman CJ in R v Cramp [2004] NSWCCA 264 at [31]:

“… the size of such an adjustment raises so many matters of a discretionary character that this Court should be very slow to intervene.”

58. There are many obvious reasons why this must be so. Aspects of the evidence led in the applicant’s subjective case had countervailing factors that had to be weighed. Treatment in custody had brought about an acknowledged improvement in the applicant’s mental state, both objectively and subjectively but he had been unwell in the community. He was not so unwell, however, that he could not plan and execute his crimes with some resourcefulness to avoid detection. He arrived and left in darkness, capturing SM and her children when he knew that they would be at home, 3 days before his previous domestic violence matter was listed before the court. All of these considerations are relevant to the criminality, and thus need to be reflected in the minimum period in custody, “having regard to all the purposes of punishment and not simply his rehabilitation” as observed by Johnson J in GWM.

59. These are the type of considerations that comprise part of the required instinctive synthesis. They are not matters capable of specific, “plus and minus” equations of the type that seems to be implied by the applicant’s submission are required to be set out in the ROS.

58. However, contrary to what was submitted by the applicant, his Honour’s approach to this task was clearly articulated. He accepted the Crown’s submissions and concluded that it would be appropriate to provide a “minor adjustment” to the statutory ratio. There was no need for him to provide lengthy reasons for doing so: Brennan at [40].

59. It is simply not correct to argue, as the applicant does, that there was “no effective adjustment made to reflect his finding of special circumstances”. There was clearly an adjustment of 6 months. Six months is a significant additional period of time to add to the potential time in the community under the assistance of parole supervision. There is no error, manifest or otherwise, in structuring the sentence as his Honour did.

60. Grounds 2 and 3 are not made out.

Orders

63. I propose the following orders:

1. Leave to appeal sentence granted

2. Appeal dismissed

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Endnotes

Decision last updated: 05 August 2020