Binnie v R - [2010] NSWCCA 14

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Binnie v R [2010] NSWCCA 14

FILE NUMBER(S):
2008/3083

HEARING DATE(S):
14 December 2009

JUDGMENT DATE:
16 February 2010

PARTIES:
Michael Binnie (Applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL Simpson J Hidden J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
08/11/0170

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
29 August 2008

COUNSEL:
G Bashir (Applicant)
F Veltro (Crown)

SOLICITORS:
Uther Webster & Evans (applicant)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW
sentence
non-parole period or minimum term
aggravating or mitigating factors
CRIMINAL LAW
sentence
relevant factors
nature and circumstances of offender
mental disorder
CRIMINAL LAW
appeal
appeal against sentence
grounds for interference
sentence manifestly excessive or inadequate

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Du Randt v R [2008] NSWCCA 121
Leach v R (2008) NSWCCA 73
R v Anderson (1981) VR 155; (1980) 2 A Crim R 279
R v Fahda (1999) NSWCCA 267
R v Israil (2002) NSWCCA 255
R v Letteri (unreported, NSWCCA 18 March 1992)
R v Pitt [2005] NSWCCA 304

TEXTS CITED:

DECISION:
1. Leave to appeal granted and appeal upheld.
2. The sentence appealed from is quashed.
3. In lieu the applicant is sentenced to a period of imprisonment of 3 years and 6 months commencing on 6 October 2007 and expiring on 5 April 2011 with a balance of term of 2 years and 6 months to date from 6 April 2011 and expire on 5 October 2013.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/3083
McCLELLAN CJ at CL
SIMPSON J
HIDDEN J
TUESDAY, 16 FEBRUARY 2010

BINNIE, Michael v R

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to one count of maliciously inflicting grievous bodily harm with intent contrary to s 33 of the Crimes Act 1900. The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. The applicant was sentenced to a non-parole period of 4 years imprisonment with a balance of term of 2 years and 6 months. He seeks leave to appeal against that sentence.
The sentencing judge was provided with a statement of agreed facts which has been appropriately summarised in the respondent’s submissions as follows:
“Shortly after lunchtime on 5 October 2007 the applicant attended Dee Why RSL where he consumed a number of alcoholic drinks. He purchased a six pack of beer and took it home with him. He consumed more alcohol at home and returned to the RSL club at about 4 pm. Whilst at the Club he met up with his estranged girlfriend, ES, who worked there as a barmaid. Their relationship had ended some two months earlier. The applicant attempted to ‘patch things up’ with her and indicated to her that he wanted to resume their relationship.
The applicant left the Club to go home at about 8.30 pm. At the time the applicant lived within walking distance from the Club. He consumed some more alcohol at home and then returned to the Club a second time in order to drop some mail off to ES. He placed the mail on the windscreen of her car along with a letter he had written to her, and then waited in the carpark for her to finish work. ES finished work at 9.30 pm. As she reached her car the applicant approached her and they had a conversation. The applicant tried to convince her to go home with him, but she refused and told him that she was going home. The applicant became upset and returned home where he consumed more alcohol and watched television. He subsequently returned to the Club where he met a friend and returned home after midnight.
Sometime later he went for a drive and saw ES’ vehicle driving along Fisher Road, Dee Why. The applicant followed the car and observed two people other than ES were in the car. He flashed his lights in an attempt to attract her attention. ES rang him and told him to stop following her. The applicant wanted to know who was in the car with her. ES told him that she had collected her sister from Manly and the other person in the car was the victim. A number of telephone calls then ensued whereby the applicant attempted to persuade ES to pull over so they could talk. The applicant continued to follow ES’ vehicle. Eventually ES pulled over, got out of her vehicle and approached the applicant. An argument then took place where ES told the applicant to stop following her. She also told him that she intended dropping her sister off home and then the victim to his home, before going home herself. At one point during the argument, ES leaned into the applicant’s car. Her sister and the victim, thinking that she was being pulled towards the vehicle by the applicant, got out of the car and began to abuse the applicant. Eventually, ES, her sister and the victim returned to their car and drove off.
The applicant then drove off in the direction of the victim’s home. He parked his vehicle some 50 metres away. Once he saw ES’ vehicle park outside the victim’s home, he armed himself with a small knife which was in his car (which he had been carrying in his car for about 18 months) and ran towards the victim. A short fight then ensued during which the applicant stabbed the victim in the torso and to the side of his neck with the knife. The applicant ran from the scene with the knife.
The victim suffered extensive bleeding and was taken by ambulance to hospital. He sustained a deep wound to the left side of the neck and a 2½ cm wound about 5cm deep to the right side of his torso. He underwent a three hour operation to repair the deep wounds he had sustained. He was released from hospital on 17 October 2007.”
The applicant was aged 27 at the date of sentence. He has no prior convictions. The sentencing judge accepted that he was a person of good character who is unlikely to offend again. The applicant did not give evidence at the sentence hearing but his father did. His Honour accepted the father’s evidence that the family would continue to support the applicant both when in custody and on his release. Mr Binnie Snr described the offence as totally out of character.
The applicant was educated to the age of 17 and has been in regular employment since leaving school. He has been employed in a car accessory company for in the order of 10 years and at the time of his arrest was a work shop manager.
The applicant has suffered from mental health problems in the past and on one occasion was hospitalised when he attempted suicide. He has an identified need for counselling and since the offence has been seeing a private psychologist on a weekly basis which has been paid for by his father.
The Probation and Parole report confirmed that the applicant began binge drinking and using ecstasy occasionally at the age of 18. His use of illicit substances apparently increased as he struggled to deal with problems in the relationship with his de facto partner. The applicant reported to the interviewing officer that at the time of the offence he had been using cocaine on a daily basis and drinking approximately 4 to 6 bourbon and cokes per day.
Following the offence the applicant went straight to the police and reported the events. His Honour accepted that this was evidence of his “remorse and shame”.
The applicant pleaded guilty at the first available opportunity and his Honour determined that he was accordingly entitled to a discount of 25% for the utilitarian value of his plea.
The sentencing judge described the offence as “objectively serious”. The attack upon the victim was “vicious and unprovoked”. His Honour emphasised that the community has an abhorrence of crimes involving knives and that in addition to the need for retribution, the protection of society, rehabilitation and specific deterrence, general deterrence is very important.
There is one ground of appeal with two limbs.
The learned sentencing judge erred in failing to impose a sentence that took into account all of the undisputed mitigating subjective factors in his case, and in particular:
(a)the mental illness of the applicant warranting lesser weight being given to general deterrence and/or
(b) the applicant’s good prospects of rehabilitation.
The sentencing judge recorded a submission from counsel for the applicant that in this particular case general deterrence was not of the usual significance because of the psychological state of the applicant at the time of the offence. There were two relevant reports. One from the psychologist, Miss Duffy, and, the other from the psychiatrist, Dr Nielssen. His Honour did not suggest that their evidence should not be accepted. It confirmed that at the time of the offence the applicant was suffering significant mental health problems.
Dr Nielssen diagnosed the applicant as suffering from depression and found him at the interview to be “significantly depressed”. He reported that the applicant had “acute symptoms of depression at least before the offence following the separation of his girlfriend. His substance abuse during the period probably attributed to his feelings of depression.” The doctor was of the opinion that the applicant’s abuse of drugs complicated his mental condition.
The report from Ms Duffy indicated that in her opinion jealousy, emotional insecurity and a huge degree of intoxication from alcohol contributed to the behaviour of the applicant on the night of the offence. Ms Duffy said that after his relationship broke up he went into “suicidal mode. As medical records confirm he indulged in self harm cutting his left arm with a knife.”
In his remarks on sentence the sentencing judge considered the applicant’s mental problems in the context of general deterrence. He concluded that notwithstanding the medical evidence general deterrence remained of relevance.
The sentencing judge said:
“Whilst the authorities make it plain that mental illness in an offender at the time of an offence lessens the need for general deterrence, I am not satisfied on the basis of the medical evidence before me that the depression suffered by the offender was a cause or causally related to the offence. The offender was heavily intoxicated in the facts (sic) and emotionally charged by the breakdown of the relationship. But this is not a mental illness and was not causative of the offence, itself. General deterrence is, therefore, a relevant factor in this sentencing exercise.”
The applicant submitted to this Court that his Honour erred by not accepting that the applicant’s mental illness was relevant as a mitigating subjective feature when sentencing for the offence. The applicant emphasised that in R v Israil (2002) NSWCCA 255 Spigelman CJ had identified five factors which may make an offender’s mental illness relevant to the sentencing process. They were said to be:
less weight given to general deterrence [22].
reducing culpability for the offence where the injury has impacted on the ability to make reasonable judgments [23]-[24].
the conclusion that personal deterrence as well as general deterrence is entitled to less weight as it may be more difficult to achieve [25].
a custodial sentence may weigh on such a person more heavily and this may be a material consideration in determining the length of sentence to be served [26].
significance of rehabilitation [24].
Although the applicant accepted that the finding by the sentencing judge meant that the applicant’s mental illness was not relevant to his culpability for the offence it was submitted that it remained relevant for the other reasons identified by the Chief Justice. It was submitted that where an offender was suffering from serious depression, even if that illness was not causative of the offender’s actions in committing the offence, the applicant nevertheless may not be an appropriate person to impose a sentence which reflects general deterrence at least to the extent which may otherwise have been appropriate. His mental illness may mean that he is not an appropriate person to make an example to others R v Letteri (unreported, NSWCCA 18 March 1992); R v Anderson (1981) VR 155; (1980) 2 A Crim R 279; Leach v R (2008) NSWCCA 73 and Du Randt v R [2008] NSWCCA 121.
During the course of submissions before his Honour the sentencing judge did suggest that because of the applicant’s mental condition general deterrence may not be so important. Although invited to address on this issue the Crown did not submit that in this case the significance of general deterrence was not diminished by the applicant’s mental condition.
In his remarks on sentence the sentencing judge discussed the applicant’s mental illness only in relation to the issue of general deterrence. Having determined that general deterrence was a relevant factor his Honour summarised the other matters which he considered to be relevant in determining the appropriate sentence. In so doing his Honour said that the offence is “towards the mid range of objective seriousness but below it.” He then said: “taking all matters into account as to the objective seriousness of the offence and the need for general deterrence, together with the offender’s early plea, his remorse and otherwise good character I consider the appropriate period of non-parole to be 4 years …” (and fixed a balance of term of 2 years and 6 months).
The respondent submitted that it could not be concluded from his Honour’s remarks that he entirely ignored the issue and, accordingly may have recognised it by diminishing the significance of general deterrence. However, this is not apparent from his Honour’s remarks. I am satisfied that although his Honour acknowledged the applicant’s mental illness it played no part in his determination of the appropriate sentence.
As I have indicated there is no doubt that the applicant was at the time of the offence suffering from a significant mental illness. Although the sentencing judge found that the illness played no part in the commission of the offence, the applicant’s judgment and inhibitions being significantly affected by alcohol, this did not make it irrelevant when considering the matter of general deterrence. The question is always whether having regard to the circumstances of the applicant, including any mental illness from which he may be suffering, he is a suitable vehicle for general deterrence. In R v Letteri (unreported NSWCCA 18 March 1992) this Court determined that mental illness was of significance where it may have induced the offence but the need for general deterrence to be reflected in the sentence may be diminished even when it did not.
The principles are well understood and have been applied in many cases see eg: R v Pitt [2005] NSWCCA 304, Leach v R [2008] NSWCCA 73 and Du Randt v R [2008] NSWCCA 121. They were discussed in 1999 by Simpson J in R v Fahda (1999) NSWCCA 267:
40The authorities to which the judge referred include R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri unreported NSW CCA 18 March 1992; R v Engert (1995) 84 A Crim R 67. Also relevant is R v Champion (1992) 64 A Crim R 244 and R v Wright (1997) 93 A Crim R 48.
41In Scognamiglio Grove J noted that it was long established that mental handicap, falling short of providing a defence on the ground of mental illness, is a basis for reduction of sentence. He extracted and adopted remarks of Young CJ of Victoria in R v Mooney (unreported, 21 June 1978) as follows:
‘In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight … general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.’
42In R v Letteri (unreported, NSW CCA, 18 March 1992) Badgery-Parker J said:
‘There is ample authority for the proposition that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others: Moonie (sic) (CCA Victoria, unreported 21 June 1978); Anderson (1980) 2 A Crim R 379; Kilmartin (1989) 41 A Crim R 22; Man (1990) 50 A Crim R 79; Currie (CCA unreported 25 February 1992).
In Moonie, Anderson and Man, the offender was at the time of the offence suffering from a significant mental illness, indeed, such that in Anderson and Moonie the Court of Criminal Appeal was of the view that a defence of mental illness under the McNaughton Rules would have succeeded. In Kilmartin the same principle was applied where the offender was not mentally ill but very severely intellectually handicapped.
In each of those cases, it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle.’
43His Honour then went on to quote another passage from Mooney, as extracted in Anderson, to the following effect:
‘The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender’s responsibility for the offence should be regarded as having been reduced.’
44Badgery-Parker J then referred to Currie, a case in which the disability was an intellectual impairment. He stated the principle in the following terms:
‘…whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.’
45 Gleeson CJ and Sheller JA agreed.
46Both Scognamiglio and Letteri were in turn adopted by Gleeson CJ (with whom Allen and Sully JJ agreed) in Engert. His Honour said:
‘A moment’s consideration will show that the interplay of a consideration relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction relating to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No. 2) [(1988) 164 CLR 465]. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence might, at the same time increase the importance of deterrence of the offender. [p 68]
…
In truth, however, … the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system. [p 71]’
47In Wright Hunt CJ at CL (with whom Gleeson CJ and Hidden J agreed) said:
‘It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender’s mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great.’ (emphasis in original)
48It is to be noted that in the passage from Engert which I have extracted, Gleeson CJ pointed to two sentencing considerations that, in a particular case, might balance the diminished relevance of general deterrence. These were the protection of society and personal deterrence.”

There is no doubt that at about the time of this offence the applicant’s mental health was significantly compromised. The break up with his former girlfriend had adversely impacted on him leading to a major depressive episode and an attempt at suicide. His mental health issues remained leaving him with a need for ongoing counselling and assistance. However, his prospects of recovery are good. The need for his sentence to reflect either general or specific deterrence or the protection of society are greatly diminished from those of a person who may typically commit the offence of which the applicant was convicted.
It was submitted that the sentencing judge failed to have regard when sentencing the applicant to his prospects of rehabilitation. I do not believe this submission can be accepted at least in its entirety. Although his Honour does not mention this issue in terms his Honour found that “the offender is unlikely to reoffend again”. When finally determining the appropriate sentence his Honour was mindful of the applicant’s remorse and otherwise good character. I would not conclude that his Honour has overlooked his earlier finding although the weight which he afforded this aspect of the matter cannot readily be identified.
It remains to consider whether the fact that his Honour determined that the applicant’s mental illness was of no significance the sentencing discretion has miscarried. If his Honour had determined that the offence was of mid range seriousness and the circumstances otherwise made it appropriate a non-parole period of 7 years imprisonment should have been imposed. This equates to a full term of 9 years and 4 months. His Honour imposed a full term of 6 years and 6 months which after allowing a discount of 25% would equate to a head sentence of 8 years and 7 months. Having regard to the fact that his Honour, in my view appropriately, concluded that the offence fell below the mid range of objective seriousness and mindful of the lesser significance of general deterrence and the applicant’s prospects of rehabilitation, in my opinion, such a sentence was excessive.
His Honour found that the offence was unplanned. As I have previously indicated the applicant was remorseful and his Honour concluded is unlikely to reoffend. He has no criminal record. Although the offence was serious, the applicant armed himself with a knife and pursued his former girlfriend and the victim until he was able to commit the stabbing. His Honour found that the offence fell below the mid range of objective seriousness although it was “towards the mid range.” This finding was not challenged by the Crown in this Court.
In these circumstances, in my view, this Court should intervene and resentence the applicant. The finding of special circumstances should be maintained. The applicant should be resentenced to a non-parole period of 3 years and 6 months with a balance of term of 2 years and 6 months.
The orders I propose are:
1. Leave to appeal granted and appeal upheld.
2. The sentence appealed from is quashed.
3.In lieu the applicant is sentenced to a period of imprisonment of 3 years and 6 months commencing on 6 October 2007 and expiring on 5 April 2011 with a balance of term of 2 years and 6 months to date from 6 April 2011 and expire on 5 October 2013.
SIMPSON J: I agree with McClellan CJ at CL.
HIDDEN J: I agree with McClellan CJ at CL.
**********

LAST UPDATED:
1 March 2010