Harkin v The Queen

[2020] NSWCCA 242

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Harkin v R [2020] NSWCCA 242

Hearing dates:

2 September 2020

Decision date:

30 September 2020

Before:

Hoeben CJ at CL at [1];
Button J at [87];
N Adams J at [88]

Decision:

(1)   Leave to appeal granted.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – reckless wounding causing grievous bodily harm committed in company contrary to s 35(3) of the Crimes Act 1900 (NSW) – affray contrary to s 93C(1) of the Crimes Act – two s 9 bonds revoked and sentences imposed – indicative sentence of 6 years and 6 months with a non-parole period of 4 years and 6 months provided – whether court took into account reduced moral culpability by reason of the applicant’s mental health – whether proper regard was had to the applicant’s disadvantaged early life – whether due regard had to the principles of remorse and provocation – whether the totality principle applied – whether sentence manifestly excessive – appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW) ss 35(3), 93C(1)

Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 9, 10(1)(b), 10A, 21A, 54B(4), 54B(7)

Cases Cited:

AK v Regina [2020] NSWCCA 194

Aslan v R [2014] NSWCCA 114

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v Regina (2007) 168 A Crim R 41; [2007] NSWCCA 1

Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194

Dungay v R [2020] NSWCCA 209

House v R (1936) 55 CLR 499; [1936] HCA 40

JJ v R [2020] NSWCCA 165

Kliendienst v R [2020] NSWCCA 98

R v De Simoni (1981) 147 CLR 383; [1981] HCA 31

R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120

R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184

Regina v Baker [2000] NSWCCA 85

Regina v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115

Category:

Principal judgment

Parties:

Benjamin John Harkin – Applicant
Regina – Respondent Crown

Representation:

Counsel:
P Segal – Applicant
B Hatfield – Respondent Crown

Solicitors:
Brock Partners – Applicant
Solicitor for Public Prosecutions NSW – Respondent Crown

File Number(s):

2018/323360

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 August 2019

Before:

Priestley SC DCJ

File Number(s):

2018/323360

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The applicant was committed for sentence on 16 May 2019 for two offences which were both committed in the early hours of the morning on 21 October 2018:

1. reckless wounding causing grievous bodily harm committed in company, contrary to s 35(3) of the Crimes Act 1900 (NSW) (Crimes Act) for which the maximum penalty is imprisonment for 10 years and which has a standard non-parole period of 4 years; and

2. affray, contrary to s 93C(1) of the Crimes Act for which the maximum penalty is 10 years imprisonment.

2. At the time of the offences, the applicant was on conditional liberty on the following bonds:

1. a s 9 bond imposed on 11 July 2018 at Waverley Local Court for an offence of common assault in 2016;

2. a s 9 bond imposed on the same occasion on 11 July 2018 at Waverley Local Court for another offence of common assault committed in 2018; and

3. a s 10(1)(b) bond imposed on 11 September 2018 at the Downing Centre Local Court for possession of a prohibited drug.

3. His Honour revoked the bonds and imposed the following:

1. for the 2016 common assault, a fixed term of imprisonment for 2 months to commence on 22 October 2018 (the date of the applicant’s arrest on the current matters) and to expire on 21 December 2018;

2. for the 2018 common assault, a fixed term of imprisonment of 4 months to commence on 22 December 2018 and to expire on 21 April 2019 (wholly cumulative on the fixed term for the 2016 assault); and

3. the applicant was convicted on the possess prohibited drug offence without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).

4. With respect to the reckless wounding causing grievous bodily harm in company and the affray offences, his Honour imposed an aggregate sentence of 6 years imprisonment to commence on 22 April 2019 and expire on 21 April 2025 with a non-parole period of 4 years to expire on 21 April 2023 (wholly cumulative on the fixed term for the 2018 common assault). The aggregate non-parole period was 66.7 per cent of the aggregate head sentence.

5. The indicative sentence for the reckless wounding causing grievous bodily harm in company offence, after the deduction for the plea of guilty, was 5 years. His Honour did not state an indicative non-parole period (which did not invalidate the aggregate sentence – CSP Act – s 54B(4), 54B(7)).

6. The indicative sentence for the affray, after the plea of guilty, was 18 months.

7. The effective sentence for all matters was a head sentence of 6 years and 6 months, commencing on 22 October 2018 and expiring on 21 April 2023, with an effective non-parole period of 4 years and 6 months expiring on 21 April 2023.

8. The applicant seeks leave to appeal against that sentence on the following grounds:

Ground 1 – The learned sentencing judge did not adequately take into account the reduced moral culpability of the applicant by reason of his mental health condition

Ground 2 – The learned sentencing judge did not adequately take into account the disadvantaged early life of the applicant

Ground 3 – The learned sentencing judge did not give adequate weight to the mitigating factors of remorse and provocation provided for in s 21A CSP Act

Ground 4 – The principle of totality ought to have been applied further in favour of the applicant

FACTUAL BACKGROUND

9. An agreed statement of facts signed by the applicant was placed before the court. In summary, the applicant and the victim, Mr Munro, were known to one another. They had been socialising in different locations on 21 October 2018. At 3:10am they were socialising together at the entrance to the Village Hostel on Orwell Street, Potts Point with two other men, Mr Duque and Mr Leonard, who had been in the company of the applicant.

10. At about 3:16am, the conversation between the victim and the applicant became heated with the victim being heard to yell “F--- off, f--- off” and “I’m gonna kill you mother---er” and the applicant telling the victim “F---off, get, get away from me ... don’t come anywhere near me”.

11. The victim was holding onto the applicant’s hoodie when the applicant punched him in the face and shoulder and swung another punch towards his face before they moved onto the road some distance apart. The victim picked up a beer bottle and threw it in the direction of the applicant. Mr Duque stood in front of the victim and kicked out at him. The victim threw a second bottle towards the applicant which struck him on the side of the head causing a deep wound that later required sutures. The victim pleaded guilty in the Local Court to reckless wounding. (Hospital notes from the following day of the applicant noted a deep laceration to the right temporal area requiring sutures and a dislocated right shoulder).

12. Bystanders kept the two men apart and the victim was led into the Village Hostel. The applicant yelled at the victim that the victim had just tried to kill him. The applicant looked through the windows of the hostel but walked away at 3:18am (Mr Leonard and Mr Duque stayed at the entrance to the hostel). Much of that incident and the subsequent incident were captured on CCTV.

13. The applicant then entered the Central Sydney Backpackers Hostel at 3:24am, used a towel to wipe the floor and then obtained a box-cutter knife from his belongings before re-emerging onto the street and talking with Mr Duque about half way back to the Village Hostel.

14. The victim emerged from the Village Hostel at around 3:24am and picked up a mug and threw it at the applicant. Mr Duque approached and kicked the victim. The applicant said “All right, let’s go, c---.”

15. The affray then took place with Mr Duque and Mr Leonard assisting the applicant by holding the victim. The applicant threw one punch towards the victim’s head and Mr Leonard threw two punches towards his head. The applicant tried to hold the victim and attempted to kick him after taking a running jump at him. The scuffle moved down the street and around the corner, until the applicant slashed at the victim with the box-cutter. More punches and kicks were administered to the victim by a number of people. When bystanders tried to wrestle the box-cutter away from the applicant he told them “No f--- off, I’m not dropping anything”. The applicant and his two companions ran off towards the Central Sydney Backpackers Hostel.

16. Police attended a short time later and observed a large amount of blood on the kerb, the wall and coming from the victim’s head, neck, chest and back. He was treated at hospital and sutured for the following injuries, which were consistent with the use of a sharp object:

1. an 8cm laceration to the face;

2. a 1cm laceration to the scalp with underlying haematoma which was noted as being “down to the skull” (the other lacerations to his face, neck, chest and shoulder were through skin and fat only);

3. a 5cm laceration to posterior of the neck;

4. a superficial 25cm laceration to the chest; and

5. two 5cm lacerations to the back, noting “breach of fascia with muscle visible inferiorly”, i.e. the box-cutter had cut through the skin and fat across the entire back, in an “X” pattern, with the laceration breaching the covering layer over the muscle on his lower back.

17. The victim’s face, chest, shoulders, scalp and back required sutures. He was discharged after three days and was left with significant, permanent scarring together with ongoing pain in his back. Colour photographs of the victim’s injuries were provided to the sentencing court and to this Court. They were extremely graphic and showed extensive wounding.

18. The applicant later contacted police and gave a version in which he claimed that he was provoked by the victim.

19. The applicant claimed in evidence during the sentencing proceedings when questioned by the sentencing judge, that he carried the box-cutter just to add more weight to his fist, to make a more damaging punch. As can be seen from the sentencing judgment, his Honour rejected this explanation and found “that it's very, very obvious that he has repeatedly used that tool not to add weight to his fist, but to slice open the victim in various parts of his body” (Sentence judgment [41]). His Honour concluded that the reckless wounding was “beyond the mid-range of objective seriousness” (Sentence judgment [42]). He assessed the affray as “below the mid-range of objective seriousness” (Sentence judgment [43]).

20. The Crown tendered the fact sheets relating to the breaches of bond. These can be summarised as follows.

Common assault at Chatswood on 31 March 2016

21. The assault took place at Chatswood train station. The applicant abused the victim who attempted to dismiss the applicant and push him away. The applicant became enraged and pushed the victim with both hands. When the victim attempted to punch the applicant, the applicant grabbed hold of him, swung him around and pushed him onto the ground. The applicant kicked him twice in the stomach and punched him with a closed fist several times before the victim ran away.

Common assault at Coogee on 11 February 2018

22. This offence took place at a bus stop at Coogee when the applicant assaulted a 17 year old female who was not known to him. At about 12:30am she was seated at the bus stop with a group of friends. The applicant approached the victim and told her how pretty she was and moved his face to within 20cm of her. His speech was slurred and he was obviously intoxicated. When the victim gently placed her hands on his shoulders and attempted to guide him away saying “Please go, I don’t want to talk to you” the applicant yelled at her and punched her in the forehead. The victim fell to the ground and her friends held the applicant until police arrived.

Possess prohibited drug in 2018

23. The possess prohibited drug offence took place on 4 July 2018 at Kings Cross train station when the applicant appeared to police to have deliberately avoided their sniffer dog. After being questioned by police, the applicant was found to have 1.9g of cannabis in a small plastic bag.

24. As indicated, the applicant gave evidence in the sentence proceedings. He said that he had stopped his medication before the offences and was smoking cannabis. He said that he had not drunk to excess on the night. He said that he was living at the Central Sydney Backpackers Hostel and was working part time. He explained that his attack on the victim was due to fear and that the fear had taken over. He told the court that this was his first time in custody.

25. The sentencing judge found that the applicant lacked insight into his offending and had no remorse for the earlier assaults and for what had occurred on the night in question. In relation to the box-cutter, his Honour said:

“Even accepting his version ... given the injuries there can be no doubt that it was used as a knife. So again there is a lack of acceptance on the part of the offender for his wrongdoing”. (Sentence judgment [22]).

26. As well as the applicant’s own testimony, there was a considerable amount of medical material placed before the sentencing judge. There was a report prepared for the 2016 common assault charge, dated 23 November 2016, by a psychologist, Professor Hayes. In that report, Professor Hayes referred to an earlier assessment in 2004. The applicant told Professor Hayes that he drank alcohol occasionally and smoked marijuana in order to relax.

27. He told Professor Hayes that his prescribed medications were “not doing enough”. She opined that the applicant had a “long term history of cannabis use”. She referred to a 2004 diagnosis of severe anxiety disorder, severe depression and post traumatic stress disorder. She did not identify the author of that diagnosis but it appears that it was her diagnosis in relation to a victim’s compensation proceeding. Professor Hayes noted that the applicant claimed self-defence for his actions and “demonstrated little insight into the incident”. Professor Hayes further found that he had “not demonstrated a high level of motivation to participate in and persist with, appropriate mental health interventions” in previous years. She diagnosed a continuing “mild anxiety disorder with panic attacks, mild depression and mild PTSD which were under control and for which he receives medication”.

28. There was a pre-sentence report of 21 February 2017 by Mr Issenmann in which the applicant referred to having undergone psychiatric treatment since 2012 (Dr Henson). He admitted to the historical use of cannabis, methamphetamines and cocaine but said he had not consumed any of those substances for over 12 months.

29. There were reports prepared for the 2018 common assault offence at Coogee. One of those was a breach report by Ms Ross, dated 26 June 2018. In that report, the applicant accepted that he had been drinking heavily, he intended to significantly reduce his alcohol intake and said that he had not consumed cannabis, methamphetamine or cocaine for some time. He said he was not on his medication at the time of the offence because his psychiatrist had taken him off medication for a trial period.

30. There was a psychiatric report to the applicant’s solicitor setting out a proposed management and treatment regime by Dr Henson, a psychiatrist, dated 15 June 2018. Dr Henson recorded that he had first seen the applicant in 2012 and that he had discussed this incident at Coogee with him. Dr Henson referred to “a history of psychiatric illness and significant psychological disorder as a result of emotional and physical abuse from his step-father, and an earlier diagnoses (again without referring to the author) of “Major Depression, Anxiety Disorder, Complex Post Traumatic Stress Disorder, Psychiatric Illness/Mental Illness with Recurring Paranoid Thinking and that he had undergone hospital care and treatment with medication and psychological therapies”. Dr Henson was of the opinion that as of the date of his report, the applicant had a mental impairment (depression, anxiety, post traumatic stress disorder, psychiatric illness and limited social capabilities).

31. There were also reports prepared for the current proceedings. There was another short letter from Dr Henson, dated 3 December 2018, addressed to the applicant’s solicitor, in which he referred to “significant childhood psychological trauma and abuse”, and that “this had led to difficulties in his adult life”. Dr Henson referred to the applicant’s close relationship with his mother and to his adverse experiences in adult life. He established that “these adverse experiences had added to his anxiety levels, lack of trust and fear arising from some of his inter-relations with others” and these had continued in recent years. There was no opinion from Dr Henson that any psychiatric or other mental condition was a causative factor in the commission of the current offences.

32. There was a psychological report from Ms Dombrowski, dated 6 August 2019, addressed to the applicant’s solicitors. The applicant told her that on the night of the current offences he had “consumed four beers and one vodka throughout the course of the evening but did not feel intoxicated”. He had not taken his medication for two months before the current offences because his script ran out and he was regularly smoking cannabis. He claimed that the victim had engaged in intimidatory behaviour for two days leading up to the offences. He told Ms Dombrowski that when the victim had thrown the bottle at him and injured him, and he saw his own blood, he was reminded of his mother being assaulted by his step-father. He wanted to detain the victim for injuring him with the bottle and believed that he was using the box-cutter in self-defence when his shoulder became dislocated during the affray. The applicant conceded to Ms Dombrowski that he may have been paranoid and had “acted like a vigilante”. Ms Dombrowski referred to the psychological report of Dr Hayes, dated 5 July 2004, and to his history of the use of substances, primarily cannabis, and his consumption of alcohol before the present offences. Ms Dombrowski stated that “his Post Traumatic Stress Disorder and his alcohol use are key to understanding his behaviour at the time of the subject offences”. Ms Dombrowski did not otherwise opine that any psychiatric or psychological condition was a causal factor in the commission of the present offences.

33. The sentencing judge’s assessment of the medical reports was as follows:

“29   The current diagnosis as seen by Ms Hayes as at November 2016 is to say therefore he currently has diagnoses of mild anxiety with panic attacks, mild depression and mild PTSD for which he is receiving treatment. There was some reference in the material of Dr Henson relating to paranoia, but there is no mention of that as being a current matter as at 2016. As noted above there is no opinion offered as to any connection between the offending and these conditions. Indeed at p 5 of this report it was said that:

“Mr Harkin demonstrated little insight into the incident which is the subject of these charges. He tends to demonstrate an external locus of control, that is the belief that events are not controlled by him, but are related to the behaviour of others and environmental factors. Individuals with this personality trait tend to believe that their lack of success in areas of their lives is related to external factors which are beyond their control and therefore tend to take little responsibility for events in their lives.”

30   My view is that is a fair description of this offender which does not bode well when considering questions of remorse and the likelihood of reoffending.

...

32   There was then a report by a psychologist Ms Dombrowski. She is the first person so far as I can determine from all this material who makes a reference to anti-psychotic medication, but yet there is no suggestion of any psychotic episode. And she also again refers to [him] being fearful on the night. She suggests that this is impulsive behaviour and paranoia associated with the PTSD. Whilst I have noted already that there is some reference to paranoia, that is very early on and I would not make any conclusion that this offender was suffering from paranoia at the time of this offending, and I do not actually understand it being put to me to that effect in submissions. In so far as it might be impulsive behaviour, that is exactly the sort of behaviour that is sought to be deterred, punished and denounced.

33   In relation to these mental health issues which seem to be the main focus of this case, in terms of material presented, as I have just recounted, there is significant material addressing the question of the offender's mental health. In the Henson report of 15 June 2018 the opinion was stated that the offender might be a person whose charges could be dealt with under the Mental Health (Forensic Provisions) Act, that did not happen. That report shows the offender was seen by Dr Henson in 2012 and 2018. It states “The offender was diagnosed with PTSD, major depression, anxiety disorder, psychiatric illness, and mental illness with recurring paranoid thinking and had hospital care and treatment with medication and psychological therapies.” It does not say that Dr Henson made that diagnosis. Nor is there any detailed reasoning to support it, either clinically, pathologically or by testing.

34   Dr Hayes’ report says she saw the offender in 2004 and 2016. It refers to the same 2004 diagnosis, presumably by her, but not expressly stated to be so, and I note she is a psychologist, not a psychiatrist. There is no basis given here for that 2004 diagnosis. But for the purpose of the 23 November 2016 report it was, like Dr Henson's report, to give an opinion as to s 32. The mental conditions referred to as existing in 2004 are said to still exist but apart from recounting the history, no reasoning is given.

35   It is in the report of Ms Dombrowski that we first see the mention of psychosis as I have just mentioned, yet there is none, and I have dealt with that above.

36   It is not submitted that there is some causal link between this mental health state and the offending or that the material supports an argument for lesser moral culpability. What it amounts to is a wealth of material setting out the offender’s personal circumstances. The offender clearly needs to undergo behavioural change and hopefully undertaking steps as referred to in Dr Hayes’ report may achieve this. Ultimately what I take from the reports is a full briefing of the offender’s background, further material to show his lack of insight. I am not persuaded by the material to reduce my assessment of the objective seriousness of the matter, nor of the offender's culpability therefor, which findings I will set out momentarily. The material does give some basis for special circumstances to later assist with treatment.” (Sentence judgment [29]-[36])

34. In reaching his decision as to the objective seriousness of the offending, his Honour noted that it was no part of the applicant’s subjective case that the offending occurred in the course of any psychotic episode or paranoid state. His Honour further noted that if such a submission was made, he would reject it. His Honour was, however, satisfied that the offences occurred late at night at a time when the applicant was not intoxicated. His Honour rejected the suggestion that the wounding was the result of fear. His Honour found that apart from the almost unfounded, if not totally unfounded, suggestion in Ms Dombrowski’s report as to psychosis and impulsivity, none of this material excused his behaviour. His Honour specifically rejected the suggestion of psychosis in Ms Dombrowski‘s report because of the absence of support for it in any of the other reports.

35. In relation to the other aspects of the applicant’s subjective case, his Honour found that he did have an abusive childhood. His Honour accepted that the applicant had pleaded guilty at the earliest opportunity and was entitled to the benefit of a 25 per cent discount for the utilitarian value of the plea of guilty. His Honour noted that at the age of 37 the applicant had a criminal history such as would deny him leniency. This was appropriately conceded by his counsel.

36. His Honour found that there was no readily apparent significant remorse expressed by the applicant. His Honour found because of what the applicant had said in the witness box that there was an overall lack of insight into his behaviour. As a result, his Honour concluded that there was a strong likelihood of the applicant re-offending.

37. The sentencing judge had regard to s 3A of the CSP Act and formed the opinion that all of the purposes of sentencing were engaged on this occasion, i.e. the need to ensure that the offender was adequately punished, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions and to denounce the conduct while also recognising the harm done to the victim and the community.

38. His Honour noted that it was clear from the bonds and the circumstances which gave rise to them that the applicant had had the benefit of considerable leniency in the past. His Honour further noted that the applicant’s response to such leniency had been to continue to offend in not only a similar way but in a more serious and heightened fashion.

39. In fixing the sentences, his Honour had regard to the maximum penalty for each charge and in the case of the wounding offence, the standard non-parole period. His Honour was conscious of the fact that he should not punish the applicant twice for the same conduct, given that the affray and the wounding offences both occurred in the course of the same event. His Honour was also conscious of the need to have regard to the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 in relation to the wounding charge.

40. His Honour rejected the applicant’s submission that provocation operated as a mitigating circumstance in respect of the wounding offence. This was because on the agreed facts the applicant had left the place where he had been struck by the bottle, armed himself and then returned. In other words, the applicant having managed to extricate himself from a difficult situation did not do what a law abiding citizen would have done, i.e. to stay away from the scene and not arm himself and come back to attack the victim. His Honour concluded that the amount of time available to the applicant to consider his conduct dissipated any suggestion of justification even if it were permissible by way of provocation to attack the victim in the way in which he had.

THE APPEAL

Ground 1 – The learned sentencing judge did not adequately take into account the reduced moral culpability of the applicant by reason of his mental health condition

41. The applicant submitted that the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194; at [177] (De La Rosa) applied so that the applicant’s mental illness was to be regarded as a mitigating factor. Specifically, the applicant relied upon the following propositions:

• where the state of a person’s mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in sentence;

• mental illness may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction of the sentence which would otherwise be imposed.

42. The applicant submitted that the medical reports, tendered on his behalf, established that he was suffering from a number of mental illnesses, including post traumatic stress disorder and that he was experiencing increased emotional reactivity (including anger and anxiety), impulsivity and paranoia associated with his PTSD at the time of the subject offending.

43. The applicant submitted that it followed that he was entitled to a significant reduction in sentence in order to take into account the principles in De La Rosa and that his Honour had erred in not giving effect to those principles by significantly reducing the sentence imposed on him.

Consideration

44. There is a threshold difficulty in not only this ground of appeal but in the other grounds of appeal in that they all refer in varying degrees to “not adequately taking a matter into account”, “not giving adequate weight to a factor” and “failing to further apply the principle of totality in favour of the applicant”. Implicit in all of those grounds of appeal is an acceptance of the fact that the relevant principle was applied by the sentencing judge and that the complaint made is that insufficient weight was given to it.

45. The effect of pleading grounds of appeal in that way was to convert the appeal to one raising manifest excess and to require the establishment of House v R (1936) 55 CLR 499; [1936] HCA 40 error before the particular ground or grounds could be made out.

46. It follows from the above observation that the principles applicable to a claim for manifest excess apply to these grounds of appeal. Those principles were recently summarised by this Court in JJ v R [2020] NSWCCA 165 at [14] as follows:

1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3. it is not to the point that this Court might have exercised a sentencing discretion differently;

4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

47. With those principles in mind, and having regard to the focus in Ground 1 on moral culpability being affected by mental health, the statement of principle by Simpson J (with whom Adams and McCallum JJ agreed) in Aslan v R [2014] NSWCCA 114 (Aslan) is dispositive:

“33   This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows:

“[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...

[Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ...

[Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...

[Principle 4] It may reduce or eliminate the significance of specific deterrence ...

[Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...”

34   It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.

35   A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2).”

48. The clear effect of that statement of principle is that none of the principles in De La Rosa are absolute and the existence of a mental condition affecting a person does not lead to automatic favourable consequences for that person on sentence. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether in the specific case the mental condition has the consequence contended for.

49. What is significant in the present case, and which was highlighted by his Honour’s analysis of the medical reports, is that there was no statement of opinion either by Dr Henson or Ms Dombrowski that any mental condition of the applicant was causative of his offending behaviour. Nor was there any submission from the applicant’s counsel in the sentence proceedings to the effect that his moral culpability should be reduced because of a causative mental condition.

50. The written submissions of the applicant’s counsel, dated 14 August 2018, at [8] under “Subjective Features of the Offender” refer to the reports and quoted from Ms Dombrowski that “his PTSD [and alcohol consumption] is key to understanding his behaviour at the time of the offending”. Having said that, there was nothing in her report nor was it submitted on behalf of the applicant, that any of the mental conditions referred to by her played any causative role in the offending. In oral submissions, counsel for the applicant referred to his “mental condition” and a “combination of a number of mental conditions” without submitting that there was such a causative role, or that it was relevant in any other particular way as outlined in either De La Rosa or Aslan.

51. These were the very things which his Honour was looking for when he carefully examined the medical reports. His Honour specifically raised with counsel for the applicant what he thought Ms Dombrowski meant when she used the expression “his PTSD is key to understanding his behaviour at the time of the offending”. His Honour also raised with counsel that there was nothing contemporaneous with Ms Dombrowski’s diagnosis which supported a connection between that condition and his offending. While counsel for the applicant referred his Honour to the report of Dr Henson of 2018, there was nothing in that report which identified any psychiatric or other mental condition which was a causative factor in the commission of the offences.

52. In the sentencing judgment, his Honour specifically referred to the difficulty for the applicant in arguing that he acted in fear when he looked through the windows of Village Hostel, armed himself and returned to the scene of the earlier confrontation and sought to again engage with the victim. His Honour was not able to reconcile somebody being genuinely in fear with that conduct.

53. His Honour noted that Dr Henson’s 2018 report was little more than a bare statement of the history and of a conclusion without any critical analysis. His Honour then observed:

“... Whilst it may be accepted that the offender has these conditions, the question is to what purpose is it being used in this hearing. There was no real submission that it impacts on the causing of the occurrence of the offence, and it does not really seem to be put forward to explain his actions on the evening. So it does not seem to go to the issue of culpability.” (Sentence judgment [24])

54. On that state of the evidence, and in the absence of any relevant submissions, the conclusion arrived at by his Honour that there was no link between the mental conditions and the offending was well open to him. Most particularly, there was no statement of opinion from either the psychiatrist or psychologist that the applicant’s mental condition played a causative role in the offending or reduced his moral culpability.

55. As has already been raised, the form of this ground of appeal has its problems. The difficulty which has arisen here was referred to by Spigelman CJ in Regina v Baker [2000] NSWCCA 85 (Baker) at [11] when he observed:

“11   The use of terminology such as “sufficient weight” highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined.”

Baker has been cited by this Court with approval on many occasions. In AK v Regina [2020] NSWCCA 194 at [35] Lonergan J (with whom Macfarlan JA and N Adams J agreed) said in relation to a similar ground of appeal:

“35   The criticism made is, in effect, that his Honour should have given more weight to the mental health issue in reducing moral culpability. The question of weight is part of the instinctive synthesis that has to be undertaken by the sentencing judge.”

56. It follows from the above that this ground of appeal has not been made out.

Ground 2 – The learned sentencing judge did not adequately take into account the disadvantaged early life of the applicant

57. The applicant relied upon the principle enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 where the Court said at [44]:

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

58. There was no doubt, as the applicant submitted, that there was evidence in the medical reports that the applicant had experienced a relatively happy childhood but that the situation deteriorated when at the age of eight or nine, his mother re-partnered to a man who was very physically and emotionally abusive and controlling and who had instilled a great deal of fear in the applicant. The attacks were often physical and were said to have occurred three times a week. The applicant submitted that in those circumstances, it was not sufficient for his Honour to simply say at [63] of the sentence judgment that he “takes into account the subjective circumstances of the offender”.

Consideration

59. The criticism of his Honour’s approach is not entirely fair. His Honour did specifically deal with the applicant’s abusive background when he said in the sentencing judgment at [59]:

“59   ... The plea of guilty will be taken into account, as too the offender's childhood trauma for which he is in no way responsible, I have discussed that above in connection with the various reports and how I treat it in these reasons.”

60. There is no basis for submitting that his Honour did not do as he said he would, i.e. take those matters into account.

61. Another problem for the applicant is that there was no specific submission made in the sentence proceedings which relied upon Bugmy v The Queen. Despite the absence of any specific submission to that effect, his Honour did in fact take the matter into account.

62. The respondent in submissions also made the point that while the applicant had a difficult background, particularly after his mother re-partnered, there was also evidence in the report by Ms Dombrowski that the applicant primarily lived with his mother and five step siblings, that she worked in an administrative role “and ensured her children were adequately cared for”. The applicant appears to have had a close and loving relationship with his mother. Accordingly, although the applicant had a difficult childhood, which from time to time involved the infliction of violence, the level of violence and disadvantage was not anything like that experienced by such persons as Mr Bugmy.

63. This ground has not been made out.

Ground 3 – The learned sentencing judge did not give adequate weight to the mitigating factors of remorse and provocation provided for in s 21A CSP Act

64. The applicant submitted that his Honour failed to have regard to the following mitigating factors associated with the offending:

1. the applicant was provoked by the victim; and

2. remorse was shown by the applicant.

The applicant accepted that remorse was to be taken into account only if he provided evidence that he had accepted responsibility for his actions and acknowledged any injury, loss or damage caused by his actions.

65. The applicant noted that his Honour’s findings as to remorse were adverse to him:

“He shows a lack of insight and no remorse for the earlier assault. He has a version in regard to the box-cutter which is difficult to accept, and is contrary to what he told police, or it is certainly inconsistent with it. Even accepting his version namely that he was taking it as a weapon to heavy the blow of any fist to the person of the victim, given the injuries there can be no doubt that it was used as a knife. So again there is a lack of acceptance on the part of the offender for his wrongdoing.” (Sentence judgment [22].)

66. The applicant also had regard to a further finding:

“For reasons already discussed, there is no readily apparent significant remorse being expressed by the offender and in fact in my view, particularly given what he said in the witness box and also what he said to Ms Hayes, there seems to be an overall lack of insight into his behaviour. Which leads me to conclude that there is a strong likelihood of re-offending.” (Sentence judgment [45]).

67. The applicant submitted that it was not open to his Honour to rely upon the opinion of Ms Hayes, which was directed towards an incident which happened in 2016 and not these offences. The applicant also submitted that his Honour placed too much weight on the evidence which the applicant gave concerning his intention when he took the box-cutter with him. The applicant submitted that his Honour failed to take into account the possible effects of him having suffered concussion as a result of the blow to the head when the bottle struck him.

68. The applicant submitted that his Honour had failed to give weight to his expressions of remorse in the agreed facts and to the court when he was giving evidence. The applicant submitted that lack of insight on the part of an offender goes to rehabilitation but is not a necessary prerequisite for remorse and that his Honour erred in taking it into account in the way in which he did.

69. The applicant noted that his Honour dealt with provocation in the sentence judgment as follows:

“58   For reasons discussed above, I disagree. The offender submitted there were mitigating circumstances, firstly provocation. In respect to the wounding I reject the submission, given that the offender left, armed himself and then returned. On the facts of this case having managed to extricate himself from the situation what a law abiding citizen would have done is stay away from the scene. Certainly not armed himself and come back, and the time in which he has had to consider that dissipates in my view any suggestion of justification if that was even permissible by way of provocation or put more accurately in fairness to the offender, dissipating any mitigating effect it might have.

59   As to both offences, it is unclear if you consider provocation as to both offences, it is unclear who is provoking who. My view is that the style of conduct does not sit well with provocation. ...”

70. The applicant submitted that his Honour erred in not taking into account the effects on him of being hit on the head with the bottle by the victim, i.e. being lacerated and concussed. The applicant submitted that he was hit on the head by the bottle at about 3:17am and the wounding offence occurred at about 3:26am so that from a temporal point of view, the two were connected.

Consideration

71. In relation to provocation, there was no evidence either in writing or orally to the effect that the applicant suffered concussion when struck by the bottle thrown by the victim. In that regard, the applicant should be bound by the way in which his case was run in the sentence proceedings.

72. The fact that following the initial confrontation, the applicant returned to his accommodation, armed himself and then went looking for the victim, is quite inconsistent with the operation of the principle of provocation. Accordingly, it was well open to his Honour to reject, as he did, that submission on behalf of the applicant.

73. In relation to the finding as to remorse, his Honour noted (Sentence judgment [21]) that the applicant had made excuses in his evidence regarding the Chatswood offence in relation to which Ms Hayes had provided a report. When referring to Ms Hayes, his Honour was highlighting a mode of behaviour which the applicant had engaged in, both in relation to the Chatswood offence and in relation to the wounding offence. This behaviour involved rationalising his conduct and not accepting responsibility for it and its consequences. The applicant’s evidence made it clear that rather than give thought to the consequences of what he had done and its effect on the victim, he lacked insight in that he was continuing to justify his behaviour even though he had pleaded guilty to the wounding offences and affray.

74. To the extent that the applicant was relying upon the provisions of s 21A(3)(i) of the CSP Act, his Honour was entitled to reject the applicant’s protestations of remorse because they were inconsistent with his evidence and his failure to in any way acknowledge the injury, loss and damage caused to the victim. It was common ground that the applicant carried the onus of persuading his Honour that he was genuinely remorseful and that this should be taken into account as a mitigating factor.

75. This ground of appeal has not been made out.

Ground 4 – The principle of totality ought to have been applied further in favour of the applicant

76. The applicant submitted that he was subject to an accumulation of sentences by virtue of the breach of two bonds which added, in effect, an additional 6 months to his sentence. The applicant submitted that this additional 6 month period needed to be taken into account when considering the question of totality.

77. The applicant submitted that an effective 4 years and 6 months minimum sentence did not adequately take into account the principle of totality, given that this was his first time in prison. The applicant submitted that there should have been much more concurrency in the sentence. The applicant submitted that when one looked at the starting point before the deduction for the utilitarian value of the plea of guilty, this was a very heavy sentence for a person going to prison for the first time. The applicant submitted that the finding of special circumstances made by the sentencing judge should have been reflected by a significantly shorter non-parole period of imprisonment than was actually awarded.

Consideration

78. It was conceded by counsel for the applicant at first instance that there could be some degree of notional accumulation, even though there should be “a significant degree of concurrency”. Written submissions on that issue were put forward by both parties. His Honour was well aware of the issue and referred specifically to it in his sentence judgment at [69].

79. It is well established that sentencing courts have a discretion when applying the principle of totality as to how much concurrency and accumulation are to be allowed. This is particularly so when the sentence for one offence cannot comprehend fully the criminality involved in a separate offence.

80. The principle stated in Cahyadi v Regina (2007) 168 A Crim R 41; [2007] NSWCCA 1 (Cahyadi) at [27] remains valid and is frequently applied:

“27    In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

81. Cahyadi was cited with approval in Regina v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52] by Hall J (Tobias JA and Kirby J concurring). The summary of the case law relating to totality by Hall J is relevant in this case, especially subparagraph (8). Given the quite distinct instances of violence engaged in by the applicant on two occasions in public places, the sentence imposed did not offend the principle of totality.

82. The relevant principle as discussed by Hall J in Regina v XX is as follows:

“52   ...

(8)    In cases involving assault with violence where the offences involve two or more attacks of considerable violence and are distinct and separate (eg, see Regina v Dunn [2004] NSWCCA 41 at [50]) or in cases where there are separate victims of the attacks as in Wilson (supra), the closeness in time and proximity of the two offences will often not be determinative factors. See also Regina v KM [2004] NSWCCA 65. In Wilson (supra), having regard to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act, Simpson J observed at [38] that “… to fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims …” ...”

83. In relation to the initial discussion as to manifest excess, the following factors were relevant to the seriousness of the offending and well justified the sentence imposed. The coloured photographs which were made available to the sentencing judge and this Court were of particular importance. When they are correlated with the description of the wounds and their depth, it is clear that this was a very serious example of wounding.

84. Other relevant factors were:

1. the maximum penalty for each offence was 10 years imprisonment;

2. there was a second legislative guidepost of a 4 year standard non-parole period for the reckless wounding in company charge;

3. there was no challenge to any of his Honour’s factual findings, nor to the assessment of the objective seriousness of the offences;

4. there was a need for general deterrence for this kind of gratuitous violent offending, particularly in a public place in the early hours of the morning (R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184 at [66] (Price, Garling and Bellew JJ); R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120;

5. the offences were committed in breach of conditional liberty and the sentence needed to reflect the gravity of the criminality involved in all of the applicant’s offending against the victim;

6. the applicant had also received s 10 bonds in 2013 for intimidate police, custody of a knife in a public place and stalking/intimidate (domestic);

7. there was a real need for specific deterrence;

8. the applicant’s subjective case, including his evidence on sentence, was unpersuasive in terms of remorse, contrition and prospects of rehabilitation. His Honour also took into account the absence of good prospects of rehabilitation;

9. despite those weaknesses in the subjective case, his Honour made an allowance for special circumstances so that the aggregate, non-parole period was two-thirds of the aggregate head sentence and the overall effective non-parole period was 69.2 per cent of the effective head sentence; and

10. the two year parole period allows ample opportunity for the applicant to attempt to rehabilitate successfully into the community without further offending.

85. It follows from the above that this ground of appeal has not been made out.

86. The orders which I propose are:

1. Leave to appeal be granted.

2. The appeal be dismissed.

87. BUTTON J: I agree with Hoeben CJ at CL, and with the additional analysis of N Adams J.

88. N ADAMS J: I have had the advantage of reading, in draft form, the reasons for judgment of Hoeben CJ at CL. I agree, for the reasons given by his Honour that the appeal should be dismissed. I would add two brief observations to clarify the basis upon which I agree that Grounds 1 and 2 have not been made out. Those grounds contended that the sentencing judge erred in both “not adequately” taking into account the ‘reduced moral culpability of the applicant by reasons of his mental health condition (ground 1) and “not adequately” taking into account the applicant’s “disadvantaged early life” (ground 2).

89. As for Ground 1, a significant volume of material was placed before the Sentencing Judge setting out the applicant’s mental health history. As Hoeben CJ at CL has already observed, none of that material suggested that the applicant was in a psychotic or paranoid state at the time of the offending. The high point of the evidence, insofar as any causal connection between the applicant’s mental illness and the commission of the offences was concerned, was an observation by the psychologist Ms Dombrowski that the applicant’s “PTSD and alcohol abuse” is “key” to understanding his behaviour at the time of the offending. The difficulty with this assertion is that the nature of any causal connection is not identified. Nor does it explain why, at 3am in the morning, the applicant went back home, armed himself and went out again to the same area where the victim had been and where a confrontation then took place. It is to be accepted that a symptom of PTSD can be hyper vigilance but at no stage was any submission made on this issue, nor, it seems to me, did the expert evidence explain the significance of the applicant’s PTSD to his offending.

90. As for Ground 2, it was not submitted to the sentencing judge that his Honour should have regard to the principles in Bugmy v The Queen. Recently in Kliendienst v R [2020] NSWCCA 98 this court (Simpson AJA, Rothman J and I) upheld a similar ground of appeal where no Bugmy submission was made at first instance. But the facts in that matter were very different; the offending was a spontaneous act of violence. In circumstances where no submission was made that the Bugmy principles applied, this was not a case where failure to mention them suggests error. In any event, the sentencing judge observed at [59] that he proposed to take into account the applicant’s “childhood trauma for which he is in no way responsible” and noted that he had already set out the details of the applicant’s childhood earlier in his Reasons. His Honour approached the matter consistent with that adopted by the Court (Bell P, Davies and I) in Dungay v R [2020] NSWCCA 209 at [153]:

“….although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis”.

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Decision last updated: 30 September 2020