Henwood v The King

[2023] NSWCCA 154

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Henwood v R [2023] NSWCCA 154

Hearing dates:

9 June 2023

Date of orders:

23 June 2023

Decision date:

23 June 2023

Before:

Bell CJ at [1]
Wilson J at [2]
Sweeney J at [3]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIME — Appeals — appeal against sentence — manifest excess — mental health — purposes of sentencing — general deterrence — appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Aslan v R [2014] NSWCCA 114

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

Muggleton v R [2015] NSWCCA 62

Muldrock v The Queen (2001) 244 CLR 120; [2011] HCA 49

R v Fouani [2018] NSWCCA 230

The Queen v Kilic [2016] HCA 48

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:

Nil

Category:

Principal judgment

Parties:

David Henwood (Applicant)
Rex (Respondent)

Representation:

Counsel:
M Valentin (Applicant)
J Styles (Respondent)

Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2019/200522

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

25 February 2022

Before:

N Williams DCJ

File Number(s):

2019/200522

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Applicant appealed against the sentence imposed on him in the District Court for one offence of causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The Applicant doused the victim, his half-brother, in petrol and ignited it, causing significant injuries.

The sole ground of appeal was one of manifest excess. At sentence, the Crown and offender agreed there was a link between the Applicant’s mental illness and the offending, which the sentencing judge acknowledged in her Remarks on Sentence.

On appeal the Applicant argued that her Honour failed to adequately consider his mental illness and conflated principles of general deterrence and denunciation. He submitted that a close consideration of his mental illness at the time of the offence left it open to her Honour to impose a lesser sentence.

Granting leave to appeal but dismissing the appeal, the Court held, per Sweeney J (Bell CJ and Wilson J agreeing):

Her Honour carefully considered and balanced the evidence on sentence as it related to the Applicant’s mental health and purposes of sentencing. No error was demonstrated by the Applicant.

JUDGMENT

1. BELL CJ: I agree with the reasons of, and orders proposed by, Sweeney J.

2. WILSON J: I agree with the orders proposed by Sweeney J, for the reasons her Honour has given.

3. SWEENEY J: David Christopher Henwood, the Applicant, seeks leave to appeal against the sentence imposed upon him in the District Court by N Williams DCJ, for one offence of causing grievous bodily harm with intent to cause grievous bodily harm, which occurred on 27 June 2019, when he poured petrol over his half-brother and set him alight, causing severe and substantial injuries to him.

4. That offence, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW), has a maximum penalty of 25 years imprisonment and a standard non-parole period prescribed of seven years imprisonment. On 25 February 2022 her Honour sentenced the Applicant to 14 years imprisonment with a non-parole period of 10 years imprisonment, commencing on 27 June 2019. His sentence incorporated a 25% discount for his plea of guilty in the Local Court and a slight reduction of his non-parole period from the statutory ratio.

5. The Applicant seeks leave to appeal on the sole ground that the sentence imposed was manifestly excessive. In support of that ground he contends that the sentencing judge did not adequately consider his mental health at the time of his offence, and placed too much emphasis on general deterrence and the need to denounce his conduct.

6. The Applicant requires leave to appeal out of time. He relies on his having considered his position, been “locked in” in custody because of Covid restrictions and having been transported between correctional facilities before he sought legal advice and filed his Notice of Intention to Appeal, 42 days after he was sentenced, instead of 28.

The Remarks on Sentence

7. The Agreed Facts and other material taken into account by the sentencing judge are summarised from her Honour’s sentencing remarks, as follows.

Facts

8. The Applicant and the victim, Colin McGuire, are half-brothers.

9. In June 2019 the Applicant, having lost his job, was staying in his car at the house in Wellington where Mr McGuire, their mother and the Applicant's 11-year-old son lived. He washed and prepared meals for himself in the house.

10. On the day of the offence, the Applicant's mother asked his son to deliver a note to him with a message she had received. The Applicant screwed up the note. He then went into the house, crying and with his voice raised. He said to his mother "You and that fat fuck in there (indicating Mr McGuire) have been ignoring me over the past two days. I really need you when I'm like this". His mother tried to calm the Applicant, but he walked out the door, slammed it shut and kicked it. He walked up to Mr McGuire, who was engaged in a task near the front gate, and yelled he would burn the house down and he was going to get petrol from the service station. He picked up a five litre petrol container, walked to a nearby service station and returned with petrol.

11. He kicked in the side door of the house and walked up the hallway to Mr McGuire. He doused Mr McGuire's torso with petrol. He said "I told you I’d do it". He then lit Mr McGuire's petrol soaked shirt with a cigarette lighter.

12. Mr McGuire caught fire. Parts of the house also caught fire, as did petrol on the Applicant's hands.

13. Mr McGuire ran out of the house and struggled to remove his shirt. His stomach length beard was entirely burnt off.

14. The Applicant ran to a tap and extinguished the flames on his arms and legs. He sat on the ground crying and said repeatedly "I didn't mean it". Mr McGuire told him "fuck off". The Applicant walked away from Mr McGuire and house.

15. The Applicant’s and victim’s mother called 000. Neighbours came and helped extinguish the house fire. The Applicant was arrested and taken to hospital where he was treated for burns to his hands and lower left leg. His mental health was assessed and he was released into police custody. He declined to answer police questions, but in a later interview, on 15 October 2019, he said he was planning to burn cars in the front yard and Mr McGuire "all of a sudden burst into flames". In his evidence in the sentence proceedings he admitted that was an inaccurate version of events.

16. The house in which Mr McGuire and the family lived was rendered uninhabitable by the fire.

Injuries to the victim

17. Mr McGuire was flown to hospital in Sydney. He suffered full thickness burns to 68% of his body – both legs, both hands, his abdomen and back. A doctor specialising in burns said that full thickness burns, which destroy all layers of skin, are life-threatening when over 50%. They cannot heal without surgical intervention and result in severe and permanent scarring. Mr McGuire had seven surgical procedures from June until August 2019, in which damaged skin was removed and skin grafted to 68% of his body. He was in intensive care, a burns unit and then a rehabilitation centre. The doctor said he will never regain full function and will never be able to undertake gainful employment following his severe burns. He has a reduced life expectancy. He will be unable to control his body temperature in severe heat and is more prone to sun damage, including the development of skin cancer. He will need lifelong support for his normal living requirements.

18. Mr McGuire was 52 when he was burned.

Victim Impact Statement

19. In his Victim Impact Statement he said the assault by the Applicant has permanently changed his life, and the physical and emotional impacts affect him every day. He remained hospitalised for 12 months after the attack. He spent four weeks in an induced coma, followed by weeks breathing through a tracheotomy tube and unable to speak or move. He experienced pain from the burns, the treatment and dressing changes. He had multiple surgeries and skin grafts, numerous infections and skin graft failures, and cardiac and respiratory problems. He spent months relearning basic bodily functions, including standing and walking a short distance because of burns scarring to his legs and feet. He had been told he requires further surgeries because of the scarring, contracting and thickening of his skin. He can no longer regulate his body temperature, because scarred skin cannot sweat, so he overheats and cannot cool down, and has to be inside in air-conditioning, even in winter. He said every day he has to stretch to maintain movement of his body through scarred skin. His skin requires ointments to prevent infection. He has difficulty holding a pen because of burns to his hands. He cannot move his feet from the ankles and must wear braces to hold his feet up. He needs crutches or a walking frame to walk. He is at high risk of falling because of his problems with his feet. He will never be able to drive again and so has lost his independence. He grieves the loss of his independence, his health, his old life, his freedom, confidence and trust. He is angry and sad. He requires a carer because of his risk of falls and to help with tasks of living. He lost everything he owned in the house fire.

20. Her Honour was satisfied Mr McGuire had suffered substantial injury.

Assessment of objective seriousness

21. In assessing the objective seriousness of the offence her Honour took into account the severity and extent of the injuries to Mr McGuire and the consequences of them for him, that the attack on him, in his home, was unprovoked, that the Applicant used petrol, that he walked to the service station to obtain petrol and back to the house, time in which he could have reflected on what he was about to do and desisted. Her Honour assessed the offence as of high seriousness, though not the highest.

Subjective case

22. Her Honour described the Applicant's subjective case as "compelling".

23. She noted his criminal history, including prior matters of personal violence, but stated they did not invoke the principles in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

24. Her Honour took into account some personal references and programs the Applicant had undertaken in custody.

25. She referred to the Applicant's evidence in the sentence proceedings. He was 48 when he gave evidence, and 46 when he committed the offence. He said he needed plastic surgery for burns to his hands and legs he suffered in the commission of the offence. He said he had been sexually assaulted and assaulted in gaol and was in protective custody.

26. He said he was born from his mother's extramarital relationship. He had very little to do with his father and he felt his mother was distant with him and he came to resent her. He experienced sexual abuse as a child by two adults and a half-brother. He left school at 15. The victim, Colin McGuire, was his older brother and protected him when they were children.

27. He acknowledged a history of drug and alcohol abuse, but said it was intermittent and sporadic rather than a continuous problem. He said he had been using drugs, ice and cannabis, and alcohol before the offence and that they were risk factors in him becoming impulsive and violent. He acknowledged he needed to address his drug and alcohol problems and had begun with some courses in custody.

28. He said he had lost his job as a Council maintenance worker, which he enjoyed, in the months before the offence. He and his son then became homeless. The woman he was in a relationship with died by suicide. He began drinking and taking drugs.

29. He said he was not coping mentally and self medicated with drugs and alcohol. He sought help from his GP, and mental health teams at the hospital and mental health clinic at Dubbo. He said he felt helpless at not being able to get the help he was asking for.

30. He said that was one reason he wanted to burn down the house. He acknowledged it was illogical and irrational, but said he thought it would change or reset his and his family’s situation and make people listen to how hurt he was. He accepted that his ice use the day before the offence affected his behaviour.

31. He said his intention was to burn the house, not his brother. He said the victim had always looked out for him and been kind to him. He had struggled to accept what he had done to him, but having read Mr McGuire's Victim Impact Statement he felt ashamed of his act and wanted to apologise to him. Her Honour took into account the Applicant's remorse expressed in his evidence and to third parties.

Psychiatric reports

32. Her Honour referred at length to the reports of psychiatrists, Dr Sathish Dayalan, who had prepared a report for the Applicant, and Dr Kerri Eagle, who was retained by the Crown. She noted the history the Applicant gave to each of Dr Dayalan and Dr Eagle, which was similar to his evidence in the sentence hearing. Both doctors had reviewed the Applicant's mental health records of past treatments and assessments.

33. Her Honour referred to the following matters in Dr Dayalan’s report. The Applicant told him he had felt depressed in mood from an early age, he had flashbacks to previous traumatic experiences, he acknowledged a long history of poor impulse control, temper outbursts and being irrational. He reported admissions to psychiatric inpatient facilities as a child and adult and being treated with antidepressants for most of his life, from the age of 12.

34. The Applicant had told Dr Dayalan that his mental state deteriorated after he was made redundant from his Council employment in late 2017, because of Council mergers. He relapsed into crystal methamphetamine use after he lost his job. He said before the offence he was smoking crystal methamphetamine five days a week, and cannabis daily, and drinking daily. He told Dr Dayalan he had sought assistance from local mental health services, which help was declined. He reported low mood, sleep problems and poor appetite at the time of the offence, and in custody when he was interviewed by Dr Dayalan in 2020.

35. Dr Dayalan said the Applicant's childhood traumas, adverse experiences and lack of attachments to his parents impacted on the development of his personality, resulting in chronic emotional and behavioural dysregulation. He said the Applicant's history and presentation during interview would be consistent with a diagnosis of borderline personality disorder; he also had features of post-traumatic stress disorder and was predisposed to developing depressive disorders.

36. Dr Dayalan said the symptoms the Applicant described at the time of the offending, including low mood, low self-esteem and associated physical symptoms, impacted his functioning, and his use of alcohol and drugs would also have adversely affected his mood. His health records indicated he had been suffering depressive symptoms in early 2019. Dr Dayalan said based on his reported symptoms and attendances at mental health services in early 2019, it was probable the Applicant had been suffering a major depressive disorder at the time of the offence, and his history supported a diagnosis of alcohol, cannabis and stimulant use disorder.

37. As to the relationship between the Applicant's psychiatric conditions and offending behaviour her Honour stated, referring to Dr Dayalan's report:

“It was noted that the offender suffered from poor impulse control and had difficulty regulating his affect as a result of his psychiatric conditions. He was predisposed to temper outbursts which Dr Dayalan says is a feature common to both borderline personality disorder and PTSD. Around the time of the offending he was also probably suffering from a depressive disorder precipitated by the loss of employment and exacerbated by the use of illegal drugs. The depressive disorder probably exacerbated his emotional and behavioural dysregulation, also impacting on his cognition.

Based on that information, Dr Dayalan said that… the offending behaviour appeared to be an impulsive reaction by a highly stressed individual who had limited capacity to regulate his emotion and behaviour as a result of psychiatric conditions."

38. Her Honour noted that Dr Dayalan reported the Applicant appeared remorseful for having harmed his brother.

39. Her Honour noted Dr Dayalan's opinion that his childhood and adult assaults have contributed to his post-traumatic stress disorder, his sexual assault in custody would exacerbate his post-traumatic stress disorder symptoms, and his psychiatric conditions and history of traumatic experiences would make incarceration more onerous for him and he had had difficulty accessing psychiatric treatment in custody.

40. Her Honour noted that Dr Eagle, having taken a similar history and reviewed the Applicant's mental health records, expressed the opinion that he displayed:

"… a pervasive distorted attribution of responsibility, tending to attribute responsibility for all his actions to external events, and other parties. He had difficulty in reflecting on his own psychological vulnerabilities and behaviours… He suggested his conduct was related to the failure of others in providing the necessary support and assistance. He could acknowledge that the use of illicit substances had contributed to his offending behaviour".

41. Her Honour noted that Dr Eagle referred to Dr Dayalan's report and the Applicant's diagnoses of borderline personality disorder, post-traumatic stress disorder and depressive disorder, his depressive symptoms in the period leading up to the offence, and a severe substance use disorder, in remission at the time of her report. Her Honour noted that when asked to comment on the Applicant's mental state at the time of the offence, Dr Eagle said he had described:

"…experiencing a number of perceived psychosocial stressors in the months prior to the offence, resulting in a deterioration of his mood, mental state and associated functions, associating with the increasing use of illicit substances, including methamphetamine, cannabis and alcohol”.

42. Her Honour noted that Dr Eagle's opinion was that the deterioration of the Applicant's mental state would likely have been exacerbated by his use of illicit substances, and his intoxication by alcohol and cannabis and withdrawal from methamphetamine increased his propensity for anger and aggressive behaviour. Dr Eagle said that at the time of the offending the Applicant was highly agitated and angry, and appeared to have reacted angrily to a perceived rejection or provocation from his brother. Her Honour noted:

"Dr Eagle says it is not apparent that any specific psychiatric symptom contributed to the incident, although he did have pervasive difficulties regulating his emotional response to stressors, a tendency to perceive others as hostile or rejecting, and a propensity to respond in an aggressive manner which would have been exacerbated by his use of substances prior to and around the time of the incident".

Submissions in sentence proceedings

43. Her Honour stated that the Crown had conceded there was a limited causal connection between the Applicant's mental illness and offending that would lessen his moral culpability and make him a less suitable vehicle for general deterrence, but which should be offset by the danger he posed to the community.

44. Her Honour referred to counsel’s submissions that the court would find the connection between the Applicant’s diagnosed conditions and offending more than limited, and would reduce the weight given to general and specific deterrence and take into account that his experience of custody would be more difficult.

Her Honour's conclusions about the Applicant's mental health

45. Her Honour stated:

“With respect to the De La Rosa issues, the Crown has, in my view, properly conceded that there is a limited causal link between the well-established mental health issues, as outlined by both Dr Dayalan and Dr Eagle. They include post-traumatic stress disorder, the depression, the substance abuse disorders and the borderline personality disorder. Clearly, there were a number of mental health issues operating at the time of the offending behaviour that culminated in poor impulse control and difficulty with respect to impulse control and anger management.

I am of the view that there is a link between those combined mental health issues and the offending behaviour, which, in turn, reduces his moral culpability. I am also of the view that it will make his time in custody more difficult because I think it is accepted that, given what has been demonstrated already in the offender's time in custody and what this Court can take judicial notice of, the fact that the mental health services of Justice Health are clearly stretched, that accessing mental health assistance in custody will be more difficult and will make his time more onerous.

Accordingly, I accept that there is, first of all, a reduction in his moral culpability and that also, there can be a reduction in both general and specific deterrence. However, it is fair to say that the need for general deterrence, in my view, still looms large, given the serious nature of the offending and the need for community safety.

… I have addressed general and specific deterrence. In my view, this type of offending, where accelerants are used and thrown over another person, is so horrific to right-minded members of the community that there must, in spite of the finding that there is a need for a reduction in general deterrence because of the offender’s mental health issues, nonetheless, in my view, there still remains a real need for general deterrence, such is the nature of the offending”.

46. Her Honour said later:

“In my view, it is necessary to impose a sentence of adequate length to denounce the offence and to send a clear message that crimes involving this type of behaviour will simply not be tolerated.

I note the convictions for violence in the past. They have nothing to do with the nature of this offending. However I acknowledge that there is still a role for specific deterrence to play. In my view, there is necessarily to protect the community because somebody as impulsive and with such anger management issues, in my view, unless they are properly controlled, will pose a risk to the community".

47. Her Honour noted that she had had regard to statistics and to some comparable decisions to which she was referred, including The Queen v Kilic [2016] HCA 48 and R v Fouani [2018] NSWCCA 230, both of which the Crown relied on in this appeal.

The Applicant's submissions

48. Counsel for the Applicant acknowledged that her Honour carefully and accurately summarised the Applicant's evidence about his mental health leading up to and on the day of his offence and carefully summarised the reports of Dr Dayalan and Dr Eagle.

49. He relied on the “well settled” principles that an offender's mental state at the time of committing an offence may reduce his moral culpability and the weight required to be given to general deterrence, retribution and denunciation, particularly when the mental condition contributes to the commission of the offence, and may make a custodial sentence more onerous for a mentally ill offender: Muldrock v The Queen (2001) 244 CLR 120; [2011] HCA 49, DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

50. He relied on the statement of Simpson J in Aslan v R [2014] NSWCCA 114 that:

"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.”: [33].

51. Counsel submitted that in her comments, which are set out at [45-46] above, her Honour did not adequately consider the Applicant's mental illness and conflated issues of general deterrence and the need for denunciation of his conduct, that a careful consideration of the Applicant’s mental illness at the time of the offence and which contributed to his offending was required by her Honour, such that it would have been open to her Honour to impose a lesser sentence or significantly reduce the non-parole period.

52. Counsel accepted that her Honour had a wide discretion and did not err in not quantifying the extent of the causal link which she accepted existed between the Applicant's mental health and his offence. Counsel submitted that despite having made findings about general and specific deterrence because of the Applicant's mental health, her Honour returned to those factors and decided that a lengthier sentence was to be imposed because of them, resulting in a sentence which became manifestly excessive.

The Crown’s submissions on appeal

53. The Crown relied on the principle that the weight to be given to the various, and at times conflicting, purposes of sentencing is a matter for the sentencing judge: Muggleton v R [2015] NSWCCA 62 per Adamson J, and that the principles relating to mental illness are not automatic: Aslan per Simpson J at [34].

54. The Crown submitted that her Honour closely considered the opinions from the two psychiatrists, especially as to the connection between the Applicant's mental health and his offence, and carefully balanced the Applicant's subjective case, including his mental illness, with the serious offence. The Crown submitted her Honour did take into account that the Applicant's mental illness reduced his moral culpability and affected his experience of custody, appropriately reduced the importance of general deterrence and specific deterrence but considered that general deterrence remained relevant in light of the very serious offence. The Crown challenged the Applicant's submission that her Honour placed too much weight on denunciation.

55. The Crown submitted that the Applicant’s strong subjective case could not lead to a sentence which was disproportionate to the seriousness of the offence, and submitted the sentence imposed was reasonable and not manifestly excessive.

Consideration

56. The question as to whether a sentence was manifestly excessive is whether it was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; Markarian v The Queen (2005) 228 CLR 357.

57. In Aslan, Simpson J, after reciting the principles restated by McClellan CJ at CL in DPP (Cth) v De La Rosa, stated, at [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 the 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)… 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".

58. N Williams DCJ gave careful consideration to the Applicant's evidence and the opinions of the two psychiatrists. Her Honour concluded there was a link between the Applicant's combined mental health issues and his offence, and found his mental health reduced his moral culpability for the offence and would make his time in custody more difficult. Her Honour stated there could be a reduction in both general and specific deterrence but went on to say that the need for general deterrence still “loomed large” given the serious nature of the offending. Her Honour stated:

"… in spite of the finding that there is a need for a reduction in general deterrence because of the offender’s mental health issues, nonetheless, in my view, there still remains a real need for general deterrence, such is the nature of the offending".

59. Her Honour also stated there was still a role for specific deterrence to play because the Applicant's impulsivity and anger management issues, if not properly controlled, would pose a risk to the community.

60. Her Honour stated that the offending conduct and the resultant severe injuries required "a sentence of adequate length to denounce the offence".

61. Her Honour demonstrably considered and balanced the evidence before her as it related to the Applicant’s mental health and purposes of sentencing.

62. The Applicant has not demonstrated that her Honour erred in her consideration of his mental illness or her consideration of the issues of general deterrence and the need for denunciation of his conduct. Nor has the Applicant demonstrated that the sentence imposed for his very serious offence was unreasonable or plainly unjust. I would grant leave to appeal, but dismiss the appeal.

63. The Orders I propose are:

1. Leave to appeal is granted.

2. The Appeal is dismissed.

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Decision last updated: 23 June 2023