Brayden Peter Donnelly v The Queen
[2021] VSCA 109
•30 April 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0001
| BRAYDEN PETER DONNELLY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH, KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 April 2021 |
| DATE OF JUDGMENT: | 30 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 109 |
| JUDGMENT APPEALED FROM: | [2019] VSC 777 (Tinney J) |
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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Applicant stabbed victim in abdomen causing life-threatening injuries – Intellectually disabled offender – Sentenced to 5 years and 9 months with non-parole period of 3 years and 6 months – Whether judge erred by rejecting contention that element of fear informed applicant’s offending – Whether judge erred by finding that offending was committed ‘principally out of anger and annoyance’, ‘for reasons of anger and aggression’ and without justification.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Camerons Lawyers |
| For the Respondent | Mr J C J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
KAYE JA
NIALL JA:
On 24 February 2018, the applicant stabbed the victim, Bradley Hayman, four times with a filleting knife. The first wound deeply penetrated the abdomen and the injuries were life-threatening. The applicant pleaded guilty to a single charge of recklessly causing serious injury before a judge in the Trial Division of the Supreme Court.[1]
[1]The applicant originally faced a charge of attempted murder which explains why the matter was heard in the Supreme Court.
Following a plea in mitigation, the applicant was sentenced to a term of imprisonment of 5 years and 9 months.[2] The judge fixed a non-parole period of 3 years and 6 months.
[2]R v Donnelly [2019] VSC 777 (‘Reasons’).
The applicant seeks leave to appeal on a single ground, which is in the following terms:
The sentencing judge erred by:
1.1rejecting the contention that an element of fear informed the applicant’s offending, a contention that the prosecution submitted was ‘clear’ from video evidence and the circumstances that unfolded before the offending;
and (in a related but separate way) by:
1.2finding that the offending was committed ‘principally out of anger and annoyance’, ‘for reasons of anger and aggression’ and without any justification;
errors that in turn infected the assessment of the applicant’s moral culpability, the assessment of the nature and gravity of the offending and the weight that fell to be given in deterrence.
It can be seen immediately that the proposed ground seeks to challenge two related findings of fact made by the judge as to the factors motivating the offending. Those factors concern whether the applicant was in fear at the time he stabbed the victim or, as the judge found, whether he was principally motivated by anger and annoyance directed towards the victim.
The state of mind of the applicant, including the identification of the factors that led the applicant to stab the victim, were relevant to an assessment of the culpability of the applicant. The applicant submits that, if made out, the errors of fact meant that the judge misapprehended a significant aspect of the offending which vitiated the sentence.
For the reasons that follow, the judge did not make the errors of fact attributed to him. The findings made by the judge were open to him. The application must be refused.
The circumstances of the offence
It is convenient to commence by setting out the judge’s findings on the circumstances of the offence. They were largely drawn from the prosecution summary of opening, and no challenge is made to any of these findings.
The applicant was 25 years of age at the time he was sentenced. As will appear, he has an intellectual disability with a very low IQ. He is virtually illiterate and has very limited independent life and social skills.[3] In 2006, when he was 12 years old, he met Kelly McLean, the mother of a friend. From the time they met the applicant regularly stayed over at her house and smoked cannabis.[4] They commenced a sexual relationship when the applicant was 13 or 14 and have two children together, aged eight and six.[5]
[3]Ibid [9].
[4]Ibid [10].
[5]Ibid [11]–[12].
The relationship has been associated with drug use and family violence.[6] There have been periods of separation and intervention orders.[7]
[6]Ibid [13], [15].
[7]Ibid [15].
At the time of the offence the applicant and McLean were separated, and an intervention order prohibited the applicant from going within 200 m of her house.[8] On the morning of 24 February 2018, the applicant went to McLean’s house; she was not there and he waited for her to return. At some point during the day McLean returned home and spoke to the applicant briefly before leaving.[9]
[8]Ibid [16].
[9]Ibid [17].
That afternoon, McLean visited another house where the victim and another woman, Ms Quirk, were present. McLean told them about the history of animosity between her and the applicant and said that she was afraid to return to her house to get her belongings. The victim said that he was against violence towards women and that he would assist her to get her belongings and protect her if necessary.[10]
[10]Ibid [18]–[19].
That evening, McLean, the victim and the other woman left the house by car. Before leaving, the victim grabbed a small, silver-coloured pocket knife that was on a table in the house. The woman asked him why he had picked up the knife, and he said to her: ‘I don’t know, why not?’ In response to her assertion that he did not need a knife, he said: ‘You never know’. It seems that the victim attached the knife to his waist.[11]
[11]Ibid [20].
After they left, McLean asked to be driven to her house so that she could collect some clothes. When they got there, at about 7:40 pm, the three of them went inside. McLean walked down the corridor, followed by the other two. The applicant was in McLean’s bedroom.[12]
[12]Ibid [21]–[22].
McLean entered the bedroom, and the applicant said to her: ‘What the fuck do you think you’re doing?’ She replied: ‘I’m just grabbing my stuff then leaving’. The applicant said to her: ‘You’re not going anywhere’, to which she replied: ‘I’m leaving you Brayden, you’ve got no choice’.[13]
[13]Ibid [23].
McLean began packing some of her belongings. The applicant stood close by her while she did so, continually asking her why she was doing so. At one point there was an altercation about an item and the applicant pushed her back a little, without much force. At this point, the victim said: ‘Don’t make it physical, mate, leave it alone. If you want to make it physical, we will step outside’. The applicant told him to stay out of it because it had nothing to do with him.[14]
[14]Ibid [24].
At about this time, the victim started recording events on his mobile phone. The judge said that he had carefully viewed the recording a number of times, observing that it was of great assistance in showing the dynamic between the applicant and the victim.[15]
[15]Ibid [27].
The judge’s description of the recording is as follows:
The first two minutes of the recording showed you in the bedroom, close to Ms McLean while she sorted through her possessions on the floor. On several occasions, you raised your voice at her. At 2:02, Mr Hayman told you to let Ms McLean go through her own possessions. You responded, firmly, ‘Don’t tell me what to do’.
About two minutes and twenty seconds into the recording, Mr Hayman warned you not to touch Ms McLean again, and told you he was recording you for the police. He warned you that if you touched her again, he would beat you. He then handed the phone to Ms Quirk and she recorded events from then onwards for a time.
You moved closer to Mr Hayman and asked him why he was recording you. He said it was because you were pushing Ms McLean around, which you denied. When he told you not to touch Ms McLean, you said, ‘I am talking to my woman’. By this time you were standing close in front of Mr Hayman, and raising your voice at him.
Mr Hayman made it clear to you at this time that he was there to stop you assaulting Ms McLean.
At 3:41, Ms McLean passed an item through the doorway to Mr Hayman. You grabbed the item, and a fight then ensued between you and Mr Hayman. At the start of proceedings, you pushed him forwards and appeared to grab at his throat. During the struggle, Mr Hayman at one point, said, ‘Grab my throat again, fuck head. I’ll snap your neck’. After about a minute, Mr Hayman having got the better of you, asked if you were going to stop, and said that if you didn’t, he would knock you out. You said you would stop, and he released you.
During the course of the fight, Ms McLean yelled abuse at you, threatened you, and punched you a number of times. It should be noted, however, that Mr Hayman himself did not deliver any blows to you, and seemingly did no more than endeavour to control you, which he successfully did.
On being released by Mr Hayman, you went and stood right in front of him and stared at him. After about a minute of this, Mr Hayman said to you, ‘You can’t stand over me’, and you replied, ‘It’s not about standing over you, bro. I’m sitting here thinking’.
At this point, Mr Hayman asked you to pick his sunglasses up. They had apparently been knocked from his head during the scuffle. Upon your refusal to do so, he asked you to move over so that he could look for them. You complied with this request. He found the sunglasses after looking for a minute.
Shortly after Mr Hayman located his sunglasses, he received his phone back from Ms Quirk.
About 9 minutes and 25 seconds into the recording, Mr Hayman proceeded down the hallway and apologised to Mr Cavallaro who was still seated in the lounge room. He also asked for a cigarette but Mr Cavallaro did not have any. Mr Hayman then walked back to the doorway leading to the bedroom.[16]
[16]Ibid [28]–[37] (citations omitted).
Although not shown in the footage, the applicant grabbed a filleting knife that was in a scabbard under a blanket on the bed. The applicant charged past McLean and into the victim, pushing him against the wall of the hallway. At this point the phone was dropped and was pointed away from the incident but it continued to record audio. The victim can be heard to yell out: ‘Oi, dude, dude, don’t cunt, fuck off dude, don’t fucking stab me cunt … I swear to God, don’t stab me’, as he ran away from the applicant and the applicant advanced upon him.[17]
[17]Ibid [38]–[39].
Despite the victim retreating, the applicant stabbed him with the knife to the upper abdomen, causing blood to squirt out of the hole in his chest. The victim yelled out: ‘Don’t cunt, don’t, you’ve already fucking got me, yeah?’. The applicant continued his attack, stabbing the victim twice to the right bicep and a slashing wound to the face.[18]
[18]Ibid [40]–[41].
The victim ran into the lounge room with the applicant in pursuit. The victim then ran from the house.[19] Once outside, the victim was struggling for breath and had pulled out his pocket knife.[20] The applicant walked towards him, still armed with the filleting knife. When confronted by a witness, the applicant said that he was trying to help the victim. McLean got into the car and drove it at the applicant who was struck by the car and fell to the ground, uninjured.[21] A witness asked the applicant to drop the knife and described the applicant as being angry and aggressive as he paced around.[22] The applicant approached two of the witnesses with the knife in his hand and said: ‘I have to get rid of this or I’m going back to gaol’. The applicant then fled the scene.[23]
[19]Ibid [42].
[20]Ibid [47].
[21]Ibid [49].
[22]Ibid [50].
[23]Ibid [52].
The reasons for the offending
After setting out the details of the offence the judge turned to the reasons for the offending. It is these findings that form the centrepiece of the present application.
The judge commenced this part of his reasons by recording the competing contentions of the parties. Before the judge, counsel for the applicant submitted that he was guilty of the charge on the basis that the stabbing entailed ‘excessive self-defence’ and the applicant had been put in fear by the victim’s actions and the surrounding circumstances, in the context of the applicant’s intellectual disability and compromised thinking processes. The applicant’s conduct was described as ‘a notch above self-defence’ and that the first wound was inflicted ‘in the belief that [the applicant’s] conduct was necessary in self-defence, although it was acknowledged that the conduct was not a reasonable response in the circumstances as [he] perceived them’.[24] Self-defence was not available because the applicant’s response, although motivated by fear, had been disproportionate.[25]
[24]Ibid [58].
[25]Ibid [61].
Counsel for the applicant submitted that the applicant attacked the victim with the knife because he feared he was about to be attacked and believed that his life was in danger.[26] That submission was said to be based on the following factors. First, there was a physical confrontation between the applicant and the victim, during which McLean, who had been both a partner and a parent figure, struck the applicant, goaded him and threatened that he was going to get stabbed and killed.[27] Second, the victim was a large, muscular stranger, who had a knife visible in his waistband. Third, the victim ‘exerted physical dominance over [the applicant]’ and freed his right hand by transferring his mobile phone to his left hand, which would enable him to grab his knife, at the same time as saying, in an aggressive tone: ‘Fuck this’.[28]
[26]Ibid [60].
[27]Ibid [59].
[28]Ibid.
It was submitted that these factors would have instilled a fear of being attacked in a reasonable person but the impact on the applicant was distorted due to his intellectual disability and impaired decision-making ability. The applicant submitted that the mobile phone footage showed the applicant to have been ‘somewhat overwhelmed’.[29] The applicant also sought to rely on the victim’s criminal history, which included convictions for violence, and also on the fact that once the victim had been incapacitated, the applicant’s aggression towards him ceased.[30]
[29]Ibid.
[30]Ibid [62]–[63].
In the course of sentencing submissions, the prosecutor accepted that there would have been ‘an element of fear’ but also ‘an element of violence, anger or aggression’.[31]
[31]Ibid [64].
The judge rejected the applicant’s submission, concluding that there was nothing at all which supported the contention that the applicant was in fear of the victim at the time of the attack and had a belief that the attack was necessary in self-defence.[32] The judge gave nine reasons for that conclusion. He said:
[32]Ibid [66].
First, I note that you must have been well aware that Mr Hayman’s purpose in being at the premises was to offer physical protection to Ms McLean rather than to present a physical threat to you. He made that clear to you from the start. It is true that Mr Hayman spoke to you in an aggressive tone at times, and offered to fight you, but this was in the context of his seeking to control your aggressive and intimidating behaviour towards Ms McLean. The only physical altercation between the two of you before you stabbed him was instigated by you. Mr Hayman quickly quelled your conduct, and then, from that time onwards, offered no more physical force towards you.
Secondly, throughout the minutes leading up to your attack upon Mr Hayman, there was nothing about your appearance or your words that supports the contention that in any sense, you were in fear of him. Quite to the contrary. Before the physical altercation, you questioned Mr Hayman’s right to be there, you challenged his right to film and record you, and you forcefully denied his assertions that you were standing over and being violent towards Ms McLean. After he quickly bested you in the physical altercation, you stood up very close to him for an extended period, looking directly at him. When Mr Hayman said that you could not stand over him, you denied that you were doing so, claiming, instead, ‘It’s not about standing over you, bro. I’m sitting here thinking’. When asked by Mr Hayman to pick up his sunglasses which had been knocked off his head during the scuffle, you immediately and assertively answered, ‘You pick them up’.
Your conduct after the scuffle between you and Mr Hayman, in standing right up in his face as you did, and the other aspects of your behaviour, are inconsistent with your claim of having been in fear of him. In fact, your appearance and demeanour was that of someone who was put out and potentially embarrassed at having lost the physical confrontation, and was still unwilling to take a backward step.
Thirdly, the ten minutes or so of footage filmed by the mobile phone of Mr Hayman before you stabbed him shows that he had ample opportunity to take the folding knife from his waist if he had any intention of doing so. It is perfectly apparent that he felt, with some justification, that he could take care of you physically without resort to a weapon, and that he had no intention whatsoever of using that knife. From your perspective, you, also, were aware of the physical mismatch between you and Mr Hayman, and would have had no reason at all to suppose he might resort to use of the knife he had.
In the five-and-a-half minutes from the time Mr Hayman released you at the end of the physical confrontation to the time you armed yourself with the boning knife and moved towards him, you had ample opportunity to leave the scene if you wanted to. You had no reason to fear any attack from Mr Hayman in circumstances where he had shown you his concern was to protect Ms McLean from attack. At no time during this period did Mr Hayman physically attack you, or move towards you, or make any move to arm himself with the knife at his waist.
Fourthly, when you armed yourself with the boning knife, you did so surreptitiously and rapidly, giving Mr Hayman little time to respond or retreat.
Fifthly, you advanced quickly upon him, causing him to retreat. You stabbed him to the abdomen with that dangerous weapon in spite of the fact that he was retreating from you and repeatedly asking you to desist.
Sixthly, you continued to advance upon him, and to stab him three more times, even after you had inflicted the very substantial stab wound to his abdomen which had punctured his lung and damaged other vital internal structures.
Seventhly, you followed Mr Hayman as he retreated outside, intent, I am satisfied beyond reasonable doubt, on further attacking him. There was no other sensible reason why you would have gone outside at that time. That you did not carry out any further attack upon Mr Hayman outside, and that you apparently helped him into Ms McLean’s vehicle, does not change the fact that your following him outside was inconsistent with the claim you now make that your attack upon him was motivated by a belief in the need for self-defence. You only helped Mr Hayman in circumstances where he was clearly and obviously seriously incapacitated at that time, and many people were present who could observe your conduct towards him.
Eighthly, your statement to Mr Lammon, ‘I have to get rid of this or I’m going back to gaol’, and your conduct in then secreting the boning knife in the wall cavity of the house, are items of incriminating conduct inconsistent with a belief that you had acted in self-defence in stabbing Mr Hayman.
Ninthly, in a consultation you had with Carla Lechner preceding her report to the Court dated 9 September 2019, you falsely claimed that you stabbed Mr Hayman because he stabbed you first and you were scared of him. You asserted that he had hurt you and that you wondered why he did not get locked up himself. When asked what injuries you had sustained in the stabbing attack upon you, you could not outline the injuries, and pointed out that the police had not photographed them.
When asked by me what I should make of the lie told by you to Ms Lechner about having been stabbed by Mr Hayman, in circumstances where it was central to the account you gave to her of having carried out your crime because you were fearful of your victim, Mr Anderson urged me not to attach any significance to it in view of your intellectual disability. It did not follow, he submitted, from your telling of that lie, that all you had said about being in fear should be ‘out the window’. That may be so, but it seems to me in the circumstances that it was a very telling lie for you to have told, and was something inconsistent with you having had any real reason to fear Mr Hayman at the time you stabbed him.
In conclusion on this matter, I do not accept that you stabbed Mr Hayman because you feared that he was about to attack you. Nor do I accept that fear had any significant input into your conduct. Specifically, I do not accept that there was any aspect of self-defence behind your conduct.[33]
[33]Ibid [67]–[79].
The judge observed that, in order to rely on the existence of the fear as the motivation for the conduct, the applicant had the burden of establishing the necessary facts. The judge concluded that the applicant had not discharged that burden.[34] In fact, the judge was satisfied beyond reasonable doubt that in stabbing the victim, the applicant ‘acted principally out of anger and annoyance’.[35] The judge added that ‘[f]rustration and embarrassment may also have had a part to play.’[36]
[34]Ibid [80].
[35]Ibid [81].
[36]Ibid.
The victim’s injuries
Having arrived at the Goulburn Valley Hospital, the victim was airlifted to Royal Melbourne Hospital in a critical condition. On presentation he was observed to have penetrating injuries to the breast-bone area of the abdomen, the face and two to the right bicep. He went into cardiac arrest due to his injuries. He required resuscitation before being intubated. He had sustained damage to the right lower lobe of his lung, the outer lining of his heart (the pericardium), his diaphragm, his liver, and the pulmonary artery, all consequent upon the stab wound to the abdomen. All of these areas of damage required emergency surgery. He had air and fluid in his pleural space. He had a collapsed lung, massive blood loss and hypovolemic shock. There was bleeding to the brain. Complications included acute renal failure and sepsis. After multiple life-saving surgical interventions, involving teams from numerous surgical areas, he spent five weeks in the Intensive Care Unit receiving a vast array of specialist medical treatment.[37]
[37]Ibid [56].
The applicant’s mental state
The judge addressed the applicant’s mental state.[38] In that respect, the applicant relied on the opinions of two clinical psychologists: Dr Jennifer McDowall[39] and Ms Carla Lechner.[40]
[38]Ibid [82]–[97].
[39]Report dated 22 July 2019.
[40]Report dated 9 September 2019.
Dr McDowall concluded that the applicant has an intellectual disability that was likely ’mild’. She noted that as a rule, people with that level of disability require a supportive environment and significant training to function effectively. As tested by Dr McDowall, the applicant has a full-scale IQ of 51 which is extremely low, falling below 99% of the applicant’s peers.
Dr McDowall concluded that his intellectual disability impacted upon his general functioning and behaviour. The applicant has limited capacity to process information. She noted that he struggled to process more than three pieces of information at the one time and did so at a profoundly slow speed. He was overwhelmed when he was presented with complex information and had significant difficulty learning and retaining information. His impaired reasoning skills meant that his capacity to understand complex information and situations was impaired and he lacked the ability to monitor and adjust his behaviour in response to cues in the environment. She noted that the applicant would have an impaired capacity to negotiate physical threats through non-violent behaviour.
Dr McDowall concluded that the applicant’s ability to process verbal information is severely impaired, he easily becomes overwhelmed with even moderate amounts of information and has severe difficulty processing material of any complexity.
The applicant impressed Ms Lechner as being cognitively, socially and emotionally immature, with a limited capacity to think reflectively or consequentially, the latter on account of genuine cognitive limitations. She believed that the applicant will often react reflexively or in a ‘flight/fight’ manner.
As noted by the judge, the applicant told Ms Lechner that he had stabbed the victim because the victim had first stabbed him and he was scared of him. When asked by Ms Lechner what injuries he had sustained, the applicant could not outline those injuries and pointed out that the police had not photographed them. The judge regarded this account as a lie.[41]
[41]Reasons [78].
The judge noted that Ms Lechner accepted the applicant’s claims at face value and, in that context, opined:
No doubt his high level of emotional distress would have adversely affected his judgment and problem-solving skills in what appears to have been a fairly emotionally charged and volatile situation.[42]
[42]Ibid [87] (citations omitted).
Ms Lechner went on to say:
[The applicant] is finding his time in custody difficult on account of his cognitive, social and emotional immaturity. He is particularly vulnerable to being stood over, intimidated or manipulated on account of these reasons.[43]
[43]Ibid [88] (citations omitted).
Based on the evidence of the psychologists, the judge accepted that the applicant’s moral culpability was reduced because of his intellectual disability.[44] However, that finding was qualified as the judge considered that the applicant’s moral culpability was not low, as notwithstanding his mental impairment, the applicant retained the capacity to reason and to understand that attacking the victim was seriously wrong.[45] The judge accepted that the applicant’s disability meant that both general and specific deterrence should be ‘sensibly moderated’.[46] The judge did not accept that the applicant’s intellectual disability rendered him an inappropriate vehicle for a sentence which had, as a component, general deterrence contained within it.[47] Similarly, specific deterrence was not irrelevant given that the applicant was capable of understanding the sentence and being personally deterred from future offending.[48] The judge also accepted that incarceration would be more onerous for the applicant because of his intellectual disability.[49]
[44]Ibid [93].
[45]Ibid.
[46]Ibid [95].
[47]Ibid.
[48]Ibid.
[49]Ibid [96].
Applicant’s submissions
In support of the proposed grounds of appeal, the applicant submits that it was not open to the judge to find that the applicant was not in fear of the victim at the time of the offending but had acted ‘principally out of anger and annoyance’ and ‘for reasons of anger and aggression’ and that the offending was committed with no justification.
The applicant submits that these findings were critical to the judge’s assessment of the applicant’s moral culpability, the nature and gravity of the offending and the weight to be given to deterrence and R v Verdins.[50]
[50](2007) 16 VR 269; [2007] VSCA 102.
The applicant submits that the findings of the judge were not open having regard to:
(a) the physical differences between the applicant and the victim;
(b) the victim was in possession of a knife which was visible to the applicant;
(c) the victim had a long history of violent offending; and
(d) the interactions between the applicant, McLean and the victim leading up to the offending.
In relation to this last matter the applicant noted that McLean had attempted to take electrical items, including items owned or part-owned by the applicant, for the purposes of selling them to purchase drugs. In this context, there was a physical confrontation between the applicant and the victim in which the victim quickly gained the upper hand. In the course of that confrontation, McLean told the applicant: ‘You’re going to get killed cunt’ and punched him multiple times. McLean also told the applicant: ‘I’ll stab you again cunt, this time it will be in the guts’.
The applicant placed particular focus on his intellectual disability which impaired his decision-making ability.
The applicant also relies on the fact that the prosecutor had told the judge:
It is clear, in my submission, that there would have been an element of fear for [the applicant]. I can say that because of the video and the circumstances as they unfold prior to the stabbing. However, equally — in my submission, your Honour, it’s equally clear that there’s an element of violence, anger or aggression.
Respondent’s submissions
The respondent submits that the issue of the applicant’s motivation, and the extent to which the stabbing was induced by fear on the part of the applicant, was the subject of extensive discussion between the judge and the applicant’s counsel, and that the findings made by the judge were well open on the evidence.
Consideration
As already noted, the applicant seeks to overturn the judge’s findings as to the applicant’s motivation. Those findings were findings of fact. In Willis v The Queen,[51] this Court said:
… a challenge to a finding of fact made by a sentencing judge in the course of sentencing an offender will involve an appeal in the strict sense. An appellate court will not substitute for any such finding its own view of what the facts disclose unless it concludes that the finding made below was not reasonably open.[52]
[51](2016) 261 A Crim R 151; [2016] VSCA 176.
[52]Ibid 170 [94] (Weinberg and Beach JJA, Priest JA agreeing at 191–2 [222]); R v O’Donoghue (1988) 34 A Crim R 397, 401 (Hunt J, Carruthers and Wood JJ agreeing).
That reasoning follows from the fundamental premise underlying appeals against sentence under s 278 of the Criminal Procedure Act 2009 that an appeal is an appeal in the strict sense and this Court’s ‘authority to intervene is dependent on demonstration of error’.[53]
[53]Kentwell v The Queen (2014) 252 CLR 601, 615 [35]; [2014] HCA 37 (French CJ, Hayne, Bell and Keane JJ) (citations omitted); Carroll v The Queen [2011] VSCA 150, [16]–[18] (Maxwell P, Buchanan JA agreeing).
As set out above, the judge set out nine reasons why he was persuaded beyond reasonable doubt that the applicant was not motivated by fear and was principally motivated by anger and annoyance. It is important to observe that the applicant does not contend that any of the nine matters were irrelevant or contain any error. Rather, he says that when regard is had to all of the facts, including the applicant’s compromised mental ability, the judge’s findings were not open to him.
In considering the judge’s findings a few introductory points should be made.
First, the context in which the issue of fear was raised on the plea is important to an understanding of the judge’s reasons. The applicant submitted that he was in fear of his life and satisfied the subjective aspect of self-defence. In other words, the applicant’s fear was not raised as some general moderating factor that in part explained his conduct, but that it was the reason why he had attacked the victim. Had that submission been accepted, it might have provided a very powerful factor in mitigation. However, it was rejected by the judge and the submission that this was a notch above self-defence was, understandably, not relied on in this Court. The applicant does not contend that the judge erred in rejecting the specific submission that was put to him.
Second, had the judge accepted that the applicant attacked the victim out of fear, he would not have found that the applicant’s conduct was principally motivated by anger and annoyance. On the other hand, the judge’s affirmative finding as to anger and annoyance and perhaps frustration, did not necessarily entail a finding that the applicant did not experience any fear during the incident. Indeed, given the circumstances, including the differences in physical size and the heightened atmosphere as revealed by the language and posture of the participants, it would be very surprising if the applicant did not experience some level of fear at the time. And the judge’s findings do not go so far as to say that the applicant was entirely without fear during the whole encounter. However, as noted, the judge did record his view that there was nothing at all which supported the contention that the applicant was in fear of the victim at the time of the attack.[54]
[54]Reasons [66].
Third, the prosecutor’s submission that there was ‘an element of fear’ on the part of the applicant was a somewhat indeterminate submission. Certainly, the prosecutor strongly resisted the applicant’s primary submission that this was a notch above self-defence, and her submission could not be taken as a concession that the existence of ‘an element of fear’ was a significant matter in mitigation. In this context, it must also be recognised that the judge was not bound to accept the submission of the prosecutor and there is no complaint that the applicant was not given a fair opportunity to address the topic. Nevertheless, in our view, the judge’s findings did not include an express rejection of the prosecutor’s concession that there was an element of fear at any point of time. As already noted, that was not the purport of the applicant’s submission in any event.
Once the primary submission of the applicant was rejected, the existence of some fear on the part of the applicant was not obviously a powerful factor in mitigation. Moreover, the rejection of the submission meant that it was necessary to consider the presence of other motivations, to the extent that they could be discerned from the evidence. It was in that context that the judge went on make his findings on the principal reasons for the offending.
It is clear from his reasons that the judge placed great weight on the video recording. The judge was able to observe the respective postures of the protagonists and the ebb and flow of the encounter. The video also gives a sense of the time which elapsed as the events unfolded. We have also watched the video but remind ourselves that it was the judge who had the primary role of finding the facts on which the applicant was to be sentenced.
The video and sound are tolerably clear. The footage was taken from a close vantage point and the applicant and the victim are clearly in frame for most of the duration. The video shows McLean and the applicant in a room at the house, with the victim taking up a position near the door of the room. For much of the encounter, the victim and the applicant are facing each other in close quarters. The victim is obviously of a much larger build. He is wearing shorts but no shirt and the applicant says that the knife in the victim’s belt was clearly visible.
The video records a scuffle between the applicant and the victim which occurred after McLean passed an item to the victim and the applicant tried to grab hold of it. The victim quickly subdues the applicant, and while he holds the applicant, McLean punches him a few times to the torso. The victim, who was restraining the applicant, can clearly be heard saying that he would release the applicant if he stopped fighting. The applicant agreed, and the two separated.
As the judge observed, after the victim had quelled the applicant’s conduct, he offered no more physical force towards the applicant.[55] The applicant stood up to the victim, standing close to him, challenging his right to film. We agree with the judge that the video shows ‘[the applicant’s] appearance and demeanour was that of someone who was put out and potentially embarrassed at having lost the physical confrontation, and was still unwilling to take a backward step’.[56]
[55]Ibid [67].
[56]Ibid [69].
The extended duration of the encounter was relevant because it showed that the victim did not take the opportunity to deploy his knife against the applicant and gave the applicant ample time to retreat if he was afraid.[57] The taking up of the filleting knife, advancing quickly towards the victim and then chasing him out of the room and out of the house, revealed an aggressive and angry response by the applicant.[58]
[57]Ibid [70]–[71].
[58]Ibid [72]–[75].
Given the circumstances confronting him, the applicant was in a potentially vulnerable position, facing a more powerful man. However, the video and the agreed facts do not support a finding that, at the time of the attack, he thought that he was about to be attacked by the victim or was in fear. Indeed, they support the contrary conclusion. The applicant remained standing very close to the victim. At one point he can be seen turning his back on the victim. A number of minutes passed between the scuffle and the stabbing during which there is no physical interaction between the applicant and the victim.
It was well open to the judge to regard the footage as inconsistent with fear being a motivating factor and that the applicant was primarily motivated by anger and annoyance.
Further, apart from the video, there were other matters that bore on the question. As the judge noted, immediately before the stabbing, the applicant was able to obtain the knife from beneath a blanket and then approach the victim, stabbing him four times. The applicant ran towards the victim who was retreating. The applicant followed the victim into the street and approached him with the knife. He was observed to be angry and aggressive by a witness.
Undoubtedly, the applicant’s intellectual disability was an important matter that the judge was required to take into account. In that respect, the judge moderated both general and specific deterrence on account of the applicant’s mental state. However, the applicant submits that it was relevant to whether the applicant was motivated by fear at the time of the assault. In our opinion, the medical evidence does not assist the applicant in the present application.
The evidence showed that the applicant has very poor executive functioning and limited capacity to process complex information. Dr McDowall said that the applicant was easily overwhelmed and overloaded when presented with too much information, especially in stressful or rapidly changing circumstances.[59] For that reason, Dr McDowall considered that the applicant had far more difficulty than the average person coping in stressful, ambiguous or dangerous situations and an impaired capacity to negotiate physical threats through non-violent behaviour.[60] That evidence might help explain the ferocity of the applicant’s response to the posturing of the victim. The applicant’s intellectual disability may have made him aggressive, volatile and caused him to overreact. The judge took those matters into account in sentence. However, it does not readily support a conclusion that the applicant was afraid and responded out of fear.
[59]Ibid [84].
[60]Ibid.
There was no error in how the judge treated the psychological evidence. That evidence, and the applicant’s mental state, did not undermine the judge’s factual findings on the extent to which fear may have played a role in the offending. Nor was it inconsistent with the finding that the offending was principally motivated by anger and annoyance.
The reasoning process that led the judge to his conclusions is impeccably exposed in the reasons for sentence. Each of the nine factors identified by the judge was relevant to the issue of motivation, and as the applicant accepts, they contain no factual error. The assimilation of those facts into a conclusion as to the motivation for the offending, which was also largely based on the judge’s observations and assessment of the video, was, in the first instance, a matter for the judge. The judge’s conclusions were well open to him. In fact, having reviewed all of the material and watched the recording, the judge’s findings accord with our own.
The applicant has failed to establish the errors attributed to the judge. The application for leave to appeal must be refused.
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