Dulihanty v R

[2013] NSWCCA 275

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Dulihanty v R [2013] NSWCCA 275
Hearing dates:	23 October 2013
Decision date:	14 November 2013
Before:	Hoeben CJ at CL at [1]; Johnson J at [2]; Latham J at [84]
Decision:	Application for extension of time to appeal against sentence refused
Catchwords:	CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in June 2009 - Applicant convicted after trial of malicious wounding with intent to cause grievous bodily harm (s.33(1) Crimes Act 1900) - offence subject to a standard non-parole period - Applicant arranges for sex worker to attend unoccupied premises - Applicant attacks victim from behind with weapon inflicting grievous bodily harm - Applicant flees premises leaving victim behind - sole ground of appeal asserted Muldrock error - Muldrock error conceded by Crown - whether some lesser sentence warranted in law - held no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited:	Crimes Act 1900 Criminal Appeal Act 1912
Cases Cited:	Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Director of Public Prosecutions v England [1999] 2 VR 258 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 Duncombe v R [2013] NSWCCA 271 Lang v R [2013] NSWCCA 29 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Potts v R [2012] NSWCCA 229 R v Abdul [2013] NSWCCA 247 R v Wilkinson (No. 5) [2009] NSWSC 432
Texts Cited:	---
Category:	Principal judgment
Parties:	Michael Francis Dulihanty (Applicant) Regina (Respondent)
Representation:	Counsel: Mr D Barrow (Applicant) Ms N Noman SC (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2007/10548
Publication restriction:	---
Decision under appeal	Citation: --- Date of Decision: 2009-06-23 00:00:00 Before: His Honour Judge CJ Armitage File Number(s): 2007/10548

Judgment

1. HOEBEN CJ at CL: I agree with Johnson J and the order which he proposes.

1. JOHNSON J: The Applicant, Michael Francis Dulihanty, applies for an extension of time to appeal against sentence imposed at the Sydney District Court on 23 June 2009 for an offence (committed in December 2005) of malicious wounding with intent to cause grievous bodily harm contrary to s.33(1) Crimes Act 1900. The maximum penalty for this offence is imprisonment for 25 years and a standard non-parole period of seven years applies.

1. The Applicant was convicted following trial by jury which extended from 28 April 2009 to 5 May 2009. On 23 June 2009, his Honour Judge CJ Armitage sentenced the Applicant to imprisonment comprising a non-parole period of five years commencing on 30 March 2009 and expiring on 29 March 2014, with a balance of term of three years commencing on 30 March 2014 and expiring on 29 March 2017.

The Present Application

1. It appears that, on or about 1 July 2010, the Applicant filed a Notice of Intention to Appeal to the Court of Criminal Appeal. The Applicant sought legal aid for the purpose of his proposed appeal. On 20 August 2011, senior counsel provided an advice concluding that an appeal against conviction and/or sentence did not have reasonable prospects of success. Legal aid was refused.

1. The Notice of Intention to Appeal lapsed.

1. Following the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 ("Muldrock"), a review process was established within Legal Aid NSW concerning standard non-parole period cases.

1. On 28 June 2013, a Notice of Application for Extension of Time to seek leave to appeal against sentence was filed in this Court.

1. The sole ground of appeal communicated by the Applicant contends that the sentencing Judge erred in his approach to the standard non-parole period legislation in light of the principles in Muldrock.

1. The concept of Muldrock error was explained in R v Abdul [2013] NSWCCA 247 at [19]-[28].

1. The Crown concedes that Muldrock error is demonstrated in this case. However, the Crown contends that no lesser sentence is warranted for the purpose of s.6(3) Criminal Appeal Act 1912, and that the extension of time ought be refused.

1. In Abdul v R at [42]-[53], the Court considered the principles to be applied where application is made for an extension of time to appeal in a case such as this. This approach will be adopted in determining the present application.

1. As the s.6(3) question ought be addressed, it is appropriate to refer to the circumstances of the offence, the Applicant's subjective circumstances and factors relevant to the question of sentence.

The Applicant's Offence

1. The sentencing Judge made findings of fact by reference to evidence adduced at the trial. No challenge has been made to those findings of fact from which the following account is drawn.

1. In December 2005, the Applicant (then aged 42 years) was living alone in rented accommodation at 90 Mount Hay Road, Leura.

1. At that time, the victim was working as an escort providing sexual services in the Leura and Katoomba areas. She advertised her services by placing her working name and a mobile telephone number in a local newspaper, the "Blue Mountains Gazette".

1. At about 10.30 am on 7 December 2005, the Applicant telephoned the victim and arranged to meet her at 71 Mount Hay Road, Leura at 7.00 pm that day. He told her that his name was "Michael". He used his own mobile phone to make this call.

1. The property at 71 Mount Hay Road, Leura was owned by other persons, who did not usually live there, but used the property as a weekender. They were not at the property on 7 December 2005.

1. At about 7.00 pm on 7 December 2005, the victim arrived at the house at 71 Mount Hay Road, Leura. The house is situated in a relatively secluded location. She was met at the door by the Applicant. She noticed that the Applicant was wearing what she assumed to be work clothes, with "some sort of tool" hanging from his belt area.

1. The Applicant led the victim into the house and, according to the victim, there was some small talk. She declined his offer of a drink.

1. According to the evidence of the victim, clearly accepted by the jury and the sentencing Judge, she said to the Applicant, "Are you just staying here?" and he replied, "Something like that". The victim said, "Well I will just go where you'd like me to be, I'll follow you" and the Applicant said, "Well we'll go into the big bedroom then".

1. The victim commenced to walk in the direction of the bedroom with the Applicant behind her. When about half way across the lounge room, she felt an "incredibly hard blow to the back of [my] head". The victim said that she was struck "about two or three hits". She turned and almost fell over, saying to the Applicant, "What are you doing? Stop". She kept saying, "Please stop".

1. The victim stated that when she turned and looked at the Applicant's face, "It was just absolutely, just enraged, just full of, just absolute rage and I looked at his eyes and when I spoke to him he seemed to stop suddenly and then he said, 'Oh sorry, I must have had a flashback'".

1. The victim did not understand what he meant. She was feeling dizzy with "a loud ringing in the ears". The victim then noticed "lots of blood" and put her hand up and touched her head and realised that her "hair was sopping" with blood. The victim said to the Applicant, "Oh I'm bleeding ... please help me".

1. The Applicant left the house. He disposed of the weapon, which was never located by police. The victim had difficulty finding a door that she could open. She eventually climbed out of a broken window at the back of the property. She made her way to the street and flagged down a passing driver, who observed that she was bleeding from the head and was very distressed. He took her to Katoomba Hospital where she was seen in the Emergency Department.

1. The victim received three bruises to the head - a three-to-four centimetre occipital bruise with a three centimetre laceration requiring three stitches, a 1.5 x 1.5 centimetre bruise behind her right ear, with a third bruise and a one centimetre laceration requiring a stitch. The victim also received bruising to her right shoulder blade area and to two fingers of her left hand. She was discharged from hospital after four hours.

1. Investigating police interviewed the Applicant on two occasions. On 23 February 2006, he participated voluntarily in an interview and on 15 March 2006, he was arrested and agreed after caution to participate in an interview. The Applicant made a number of references to a poor memory, memory loss, blackout periods and said on a number of occasions that he "could not recall" going to 71 Mount Hay Road, Leura or committing the offence.

1. On 8 March 2006, the victim selected the Applicant from a photographic line up and identified him as her attacker.

1. The Applicant remained in custody following his arrest on 15 March 2006 until his release on conditional bail on 8 June 2006. He remained on conditional bail until sentence on 23 June 2009.

1. The Applicant was convicted at trial. He did not give evidence at the trial. It appears that the issue at trial was whether the Applicant was the assailant. It is unsurprising that the jury was satisfied that the Applicant attacked the victim given, amongst other evidence, the fact that he had used his own mobile phone to call on the morning of the crime. No medical evidence was adduced at trial concerning the Applicant or any proclivity on his part to experience blackouts, or how that would affect his criminal liability for this offence.

Impact of the Offence Upon the Victim

1. A victim impact statement was tendered at the sentencing hearing, together with medical and psychological reports concerning the effects of the offence upon the victim.

1. The sentencing Judge observed that "on any view the victim found the experience an extremely frightening one, quite apart from her physical injuries" and that "she has suffered considerable psychological damage as a result", although the Crown conceded "that some of her psychological state at the present time can be attributed to past events other than the offender's behaviour on the day in question" (ROS4-5).

1. After referring to the psychological report, the sentencing Judge concluded that the victim's "psychological condition of chronic PTSD and anxiety and depression is jointly the result of her previous sexual abuse throughout her early childhood ... and also of the attack perpetrated by the accused upon her" (ROS6).

1. His Honour concluded that the attack played "a considerable causal role in the ongoing PTSD but it is not the sole cause of it", and that these matters were to be taken into account on sentence "when determining the degree of harm, both physical and psychological, which the victim suffered as a result of the offence" (ROS6).

The Applicant's Subjective Circumstances

1. The Applicant was 42 years of age at the time of the offence and 46 years of age at the time of sentence. He is now 50 years' old.

1. The Applicant's criminal antecedents were limited to two traffic matters and the sentencing Judge regarded him as a person with no prior criminal history.

1. A presentence report was made available to the sentencing Judge. The Applicant informed the author of this report that he had two children from different relationships, but that he had no contact with either child.

1. The Applicant had worked on and off as a labourer over the years. When interviewed in May 2009 for the purpose of the presentence report, the Applicant was unemployed and in receipt of Centrelink benefits.

1. According to the presentence report, the Applicant was reluctant to divulge personal details. He maintained his innocence to the author of the report, although he acknowledged that he had no recollection of the events.

1. A reference was tendered at the sentencing hearing from Ian McWolfe, who had apparently given character evidence for the Applicant at his trial. Mr McWolfe had known the Applicant for over 15 years in the context of bushwalking and canyoning, and stated that the Applicant performed volunteer search and rescue duties from time to time.

1. Also tendered at the sentencing hearing was a report of Dr Stephen Allnutt, psychiatrist, dated 30 April 2008. Dr Allnutt had examined the Applicant a year before his trial. He had arranged for the Applicant to return for a further appointment on 1 July 2008, but the Applicant did not attend. Accordingly, Dr Allnutt's report was based upon a single evaluation conducted on 11 April 2008.

1. The Applicant told Dr Allnutt that he had been taking Efexor for depression for a year, commencing after his arrest.

1. The Applicant told Dr Allnutt that he had first seen a psychiatrist some years before, in the context of a Family Court matter, and was assessed as normal. He denied any family history of mental illness.

1. The Applicant informed Dr Allnutt that he had been in two relationships, the last relationship being in about 2000. The Applicant said he had lost interest in relationships because he was looking for the right person.

1. Dr Allnutt noted that the Applicant had told police that he had periods of blackouts. The Applicant conceded to Dr Allnutt that he might have committed the offence. He said that he had experienced probably less than five periods of blackouts of a similar nature in the past, and he attributed them to stress and lack of sleep.

1. Dr Allnutt noted that the Applicant believed that there was "a conspiracy by police to have him arrested, that the police have broken into his house and stolen his property and that the entire arrest was a 'set up'". Having regard to the evidence, whilst Dr Allnutt could not definitively rule out the presence of a delusional disorder, he believed (based on the information provided) that it was, on balance, unlikely.

1. Dr Allnutt considered the Applicant fit to stand trial. As the Applicant stated that he had a poor memory for the alleged offence, Dr Allnutt noted that it was difficult to offer any significant opinion with regard to the relationship between his psychological state and the alleged offence. Although the Applicant stated that he experienced blackouts, Dr Allnutt noted that he had been unable to find an underlying cause for them.

1. As mentioned earlier, the Applicant failed to attend a follow-up evaluation with Dr Allnutt on 1 July 2008.

1. There is no evidence that any further medical or psychiatric evaluation was undertaken. No updated report from Dr Allnutt, or any other medical practitioner, was tendered at the sentencing hearing. The sentencing Judge was left with the victim's description of the offence (and what that may indicate about the Applicant's state), the Applicant's claim of experiencing blackouts and Dr Allnutt's understandably qualified views, not assisted by the Applicant's failure to attend for further evaluation.

Some Findings of the Sentencing Judge

1. The sentencing Judge accepted a Crown submission that, at the time of the attack, the victim was alone in a secluded location with the Applicant in circumstances where she found it difficult to escape and seek assistance for her injuries, and that after the attack, the Applicant left the victim alone in the premises without knowing whether she was seriously injured or not. The victim had clear injuries to the head, causing blood flow, and she pleaded with the Applicant to help her, with his response being to depart the premises (ROS10).

1. However, his Honour considered that the Applicant's motives in leaving the scene were mixed and not particularly premeditated, resulting from a degree of panic, but that this did not alter the fact that he left a seriously injured person without assistance, rather than calling for help (ROS11).

1. His Honour said that "but for the question of possible blackout, I would have regarded the offending as mid range, having regard to the extent of the psychological and physical damage to the victim, the latter being much more significant than the former" (ROS14-15).

1. His Honour concluded that, "The offence was not entirely premeditated, though there was planning to some degree because of its location, so that the proper finding is one of limited planning" (ROS18-19).

1. His Honour approached the use of the standard non-parole period in the following way (ROS18-19):

"I indicated to the Crown and the defence that it was my intention so to find, and therefore because of that fact, alongside the other circumstances of the offence, as set out above, to find that the offence fell slightly though not far below the midrange for offences of its type, from the point of view of objective criminality. I so find. I indicated that putting against that finding the offender's prior lack of criminal antecedents, and the rest of his subjective case, it seemed to me that the standard non-parole period should not be imposed."

1. The sentencing Judge was "left in a situation of uncertainty as to whether the offence is in character or out of character" (ROS15).

1. With respect to the Applicant's prospects of rehabilitation and risk of reoffending, his Honour said that he could not "confidently conclude on the balance of probabilities that the offender does have good prospects of rehabilitation and not reoffending" so that a finding was made that the Applicant's prospects in both respects were "moderate, depending on the outcome of such programs as he is subjected to, both in prison and hopefully at the direction of the Probation and Parole Service during his parole" (ROS19).

1. A finding of special circumstances was made upon the basis that this would be the Applicant's first time in custody and on the increased need for support and assistance from others when he leaves custody, both to reintegrate into society and to obtain employment (ROS16).

Muldrock Error is Conceded

1. The Crown concedes that Muldrock error has been demonstrated in this case.

1. It may be accepted that his Honour adopted a two-stage approach to sentencing, in accordance with the principles then applicable to sentence for a standard non-parole period offence after trial.

1. It is appropriate then to move to the question whether a lesser sentence is warranted in law for the purpose of determining whether an extension of time to appeal should be granted in this case.

Should the Court Grant an Extension of Time in this Case?

1. If the present application had been brought in time then, once error had been demonstrated, it would be necessary for the Court to consider whether the error was material and, if it was, whether some lesser sentence is warranted in law under s.6(3) Criminal Appeal Act 1912, in accordance with the principles in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284.

1. The Court re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles, with a view to formulating the positive opinion for which s.6(3) provides, by reference to evidence placed before this Court on appeal: Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 176-178 [119]-[124]; Baxter v R at 287 [17]-[19].

1. An affidavit of the Applicant affirmed 19 September 2013 was read in the Applicant's case. Given the point that has been reached on this application, it is appropriate to have regard to it. In that affidavit, the Applicant recounts his custodial experience and progress which has reached the point where he is allowed weekend leave. No doubt this is related to the fact that his non-parole period will expire in the not-too-distant future, on 29 March 2014. It is fair to observe that the Applicant has progressed in a satisfactory way whilst in custody.

1. There is one aspect, however, which calls for specific comment. It will be recalled that the sentencing Judge (at [55] above) described the Applicant's prospects of rehabilitation and not reoffending as being moderate, depending on the outcome of custodial programs and any programs in which he was involved following his release on parole.

1. The Applicant's affidavit contains the only evidence with respect to programs which he had undertaken in custody. The Applicant stated that he "had a few sessions with the resident psychologist, who taught me a really good relaxation exercise". He states that he also undertook the CALM program which he found "useful in parts". The Applicant observed that some of the exercises reminded him of the counselling he "had on the outside voluntarily before [he] was sentenced". I will return to this topic.

1. The offence is a most disturbing one. The Applicant arranged for the victim, a sex worker, to attend unoccupied premises. When the victim did so, for no apparent reason, the Applicant attacked her from behind with an implement in a cowardly fashion. Several blows were struck to the victim's head and, from her injuries, to her shoulder and hand as well. The blows were struck with sufficient force to cause injuries which the jury found constituted grievous bodily harm. The jury was satisfied beyond reasonable doubt that the Applicant struck the victim in this way with an intention to inflict grievous bodily harm.

1. The observations made by the victim immediately after the attack suggest that the Applicant was in a state of rage, which subsided before he fled the scene.

1. The Applicant did nothing to assist the victim, who remained obviously injured in unoccupied premises. The victim was left to her own devices to leave the premises and to reach the street where, fortunately, a stranger assisted by taking her to the hospital.

1. The Applicant's immediate departure from the premises, leaving the clearly injured victim alone with no apparent means of assistance, may properly be regarded as circumstances of aggravation of the offence: Director of Public Prosecutions v England [1999] 2 VR 258 at 263-264 [18]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].

1. It was appropriate for the sentencing Judge to adopt a guarded and qualified approach to an assessment of the Applicant's prospects of rehabilitation and his risk of reoffending.

1. This was a grave offence of violence committed against a woman whom the Applicant caused to be alone in the premises. An attack upon a sex worker who is vulnerable, as a result of attending a private dwelling at the request of the offender, constitutes a crime of very considerable gravity: Potts v R [2012] NSWCCA 229 at [8], [155]-[169].

1. There was no medical evidence to support the Applicant's claim of blackouts, and this continues to be the case. The only medical evidence adduced at the sentencing hearing was the report of Dr Allnutt dated 30 April 2008, to which reference has been made. Dr Allnutt wished to see the Applicant again to allow a complete assessment of him at a time well in advance of trial, but the Applicant failed to attend the appointment.

1. The Applicant informed Dr Allnutt that there was a conspiracy on the part of the police to charge him with this offence, a further disturbing scenario in assessing the reliability of the Applicant and the safety of the community, in particular with respect to women. In considering the risk of reoffending, and the question of future dangerousness, a sentencing court may have regard to the circumstances of the offence itself, and what the offence may indicate concerning future conduct of the offender: Potts v R at [168].

1. It is the case that the Applicant has no significant criminal history. It is also the position that he was on conditional bail for an extended period between 2006 and 2009, without any apparent problem manifesting itself. The character evidence from Mr McWolfe provided some general support, as well, for the Applicant with respect to his conduct in the community. In addition, it seems that the Applicant's conduct in custody has not manifested any signs of violence. Of course, to the extent that this offence suggests that the Applicant has a problem with women, then his interaction with women whilst in custody has been limited for obvious reasons.

1. The counselling and programs undertaken by the Applicant in custody appear to have been quite limited. It would be hoped, given the circumstances of the offence, that some custodial program may yet be utilised, as well as post-release counselling and assistance being made available to the Applicant to assist the protection of the community upon his release.

1. As the sentencing Judge found, there have been significant adverse consequences for the victim in this case in both a physical and psychological sense. The evidence before the sentencing court indicated that the attack had undermined her confidence in many aspects of life.

1. Given the nature of the offence, considerations of personal deterrence and general deterrence remain very significant on sentence.

1. The Applicant had a very limited criminal history which was taken into account appropriately by the sentencing Judge. However, the offence is a serious one, committed in disturbing circumstances, where there are significant outstanding issues with respect to the Applicant's prospects of rehabilitation and his risk of reoffending when he returns to the community.

1. I do not consider that the Applicant's reliance upon sentencing statistics for s.33 offences provides any real assistance on this application: Lang v R [2013] NSWCCA 29 at [25]-[27].

1. In Duncombe v R [2013] NSWCCA 271 at [49]-[53], this Court noted the wide gap between the two guideposts constituted by the maximum penalty and the standard non-parole period for offences under s.33(1) Crimes Act 1900. The Court said at [53]:

"Despite that wide gap, it is, of course, necessary for a sentencing court to have regard, and give appropriate weight, to both periods. Undue focus on the standard non-parole period may serve to distract from the proper role of the maximum penalty on sentence."

1. In my view, a sentence comprising a non-parole period of five years with a balance of term of three years for this offence remains appropriate, having regard to the objective circumstances of the offence and the subjective circumstances of the Applicant, and keeping in mind the relevant statutory guideposts and principles of sentencing, including the need for specific and general deterrence. This view has been reached having regard to all the evidence before this Court at the hearing of this application.

1. I am not satisfied that a lesser sentence is warranted in law for the offence committed by the Applicant, having considered matters relevant to s.6(3) Criminal Appeal Act 1912.

Conclusion and Order

1. The Applicant has not demonstrated a proper basis upon which this Court should intervene. In these circumstances, there is no question of substantial injustice occurring if the sentence imposed upon the Applicant remains in place.

1. I propose that the application for extension of time to seek leave to appeal against sentence be refused.

1. LATHAM J: I agree with Johnson J.

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Decision last updated: 14 November 2013