Hunt v The Queen

[2017] NSWCCA 305

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hunt v R [2017] NSWCCA 305

Hearing dates:

9 October 2017

Decision date:

08 December 2017

Before:

Basten JA at [1];
Adamson J at [20];
Bellew J at [83]

Decision:

(1)   Grant leave to appeal.

 (2)   Appeal dismissed.

Catchwords:

CRIMINAL LAW – sentencing – alleged non-compliance with s 44(2A) of Crimes (Sentencing Procedure) Act 1999 (NSW) by pronouncing non-parole period first – error purely technical and of no operative effect or practical significance

 

STATUTORY INTERPRETATION – legislative history of s 44(2A) – significance of order in which components of sentence pronounced – formal requirement that aggregate sentence be pronounced first

  CRIMINAL LAW – sentencing – alleged failure to regard applicant’s temporary mental illness as a significant mitigating factor – weight to be given to factors to be determined by sentencing judge – no error demonstrated

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45, 48, 50, 53A, 54B; Pt 4, Div 1
Crimes Act 1900 (NSW), ss 61, 93GA, 114,
Firearms Act 1996 (NSW), ss 7, 36
Sentencing Act 1989 (NSW), s 5

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Aslan v R [2014] NSWCCA 114
Browne v Dunn (1893) 6 R 67
Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224
Eid v R [2008] NSWCCA 255
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Musgrove v R [2007] NSWCCA 21; (2007) A Crim R 424
Ngati v R [2014] NSWCCA 125
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Cramp [2004] NSWCCA 264
R v GDR (1994) 35 NSWLR 376
R v Gower (1991) 56 A Crim R 115
R v Hampton (1998) 44 NSWLR 729
R v Smith [2005] NSWCCA 19
The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131
Wilmot v R [2007] NSWCCA 278

Texts Cited:

New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010, 27866-27871

Category:

Principal judgment

Parties:

Dennis Henry Hunt (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Game SC/A Bonnor (Applicant)
T Smith (Respondent)

  Solicitors:
Sayad & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2016/33493

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 December 2016

Before:

Lerve DCJ

File Number(s):

2016/33493

Judgment

1. BASTEN JA: I agree with Adamson J that the applicant should have leave to appeal against the aggregate sentence imposed in the District Court by Lerve DCJ. I also agree that the appeal should be dismissed.

2. The first ground, alleging a failure to give proper weight to the applicant’s “mental condition”, should be dismissed for the reasons given by Adamson J. With respect to ground 2, concerning the alleged error in setting the sentence, I would dismiss the ground for the following reasons.

Operation of s 44 of the Sentencing Procedure Act

3. In its present form, s 44 is set out by Adamson J at [75] below, after outlining the legislative history.

4. In imposing a sentence on an offender, the court acts by giving judgment. The judgment, as in other exercises of the judicial function, contains two parts, namely a statement of the operative order of the court and, separately, a statement of the reasons for making the order. The Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) recognises the dichotomy. Thus, s 44 empowers the court to “set” a sentence, referring to the operative order made by the court. (Once complete, the sentence is said to have been “imposed”.) Separately, in various provisions, the Act requires the court to state, or make a record of, its reasons for aspects of its orders. Such a provision may be found in s 44(2) and s 44(2B). The purpose of reasons is to explain how a particular outcome or order has been fixed upon. The reasons thus set out the reasoning process of the court, which will include making findings of fact, and may include calculations appropriate to a sentencing exercise. As explained in R v GDR,[1] the specific statutory obligations to give reasons with respect to particular matters are not exhaustive of the content of the judge’s general duty to give reasons with respect to the steps taken in reaching the ultimate orders.

   1. (1994) 35 NSWLR 376 at 379F (Gleeson CJ, Mahoney JA, McInerney, Badgery-Parker and Dunford JJ).

5. Because most sentences will comprise two elements, a minimum mandatory term of imprisonment (the non-parole period) and the balance of term (during which the offender is required or will be eligible to be released on parole), and because the statute requires the sentencing judge to give attention to the relationship between the two periods, a sentencing exercise will involve a staged process. The same was true in relation to s 5(1) of the Sentencing Act 1989 (NSW), the predecessor of s 44 in the current legislation. The process of reasoning might become quite complex, as explained by Priestley JA in R v Gower. [2] In R v Hampton [3] Spigelman CJ said:

“Counsel submitted that the Court start first of all with the total sentence. I do not accept that submission. … The issue turns on whether s 5(1)(a) requires a sequential or two-step process, on the one hand, or whether the primary consideration is the total sentence on the other hand. In view of the affirmation in R v GDR that general sentencing principles guide all relevant steps in the process, it is not necessary to resolve the issue, which has a chicken and egg quality about it. The two approaches may go on simultaneously ….”

2. (1991) 56 A Crim R 115 at 120.

3. (1998) 44 NSWLR 729 at 732 (Powell JA and Newman J agreeing).

6. The critical passage in the judgment in the present case is set out by Adamson J, with appropriate emphasis, at [52] below. Having convicted the applicant, the judge then said “I impose an aggregate sentence of a non-parole period ….” He then stated that “[t]hereafter, there will be a balance of term of ….” He concluded:

“The total sentence is therefore, eight years and three months, with a non-parole period of five years.”

7. Simpson J in Eid v R [4] identified the relevant exercise required to comply with the directive of s 44(1) as the pronouncement of orders and not the reasoning process by which those orders were fixed upon. That being so, it may be said in the present case that the judge has had it both ways; however, for the applicant to succeed on what is, on any view, a highly technical point, he must demonstrate that the setting of the sentence occurred in the first two highlighted sentences in the reasons, rather than the third, as the last states the sentence in accordance with the directive in s 44(2A).

   4. [2008] NSWCCA 255 at [31] (McClellan CJ at CL and McCallum J agreeing).

8. I am not persuaded that there has been non-compliance with that provision on the basis of the manner in which the judgment was delivered. There was no attention paid in the course of the application for leave to appeal to the formal orders recorded in the District Court records. However, it may be significant that the particulars of trial recorded by the Solicitor for Public Prosecutions identified the aggregate sentence in the following terms:

“Imprisonment for 8 years and 3 months commencing on 1.2.16 and expiring on 30.4.24 with a non-parole period of 5 years expiring on 31.1.21.”

Indeed, in the notice of appeal, the sentence was identified as one of “8 years and 3 months (aggregate sentence)” and the non-parole period as 5 years.

9. If, contrary to the view expressed above, there had been a contravention of s 44(2A), two further questions would have arisen.

10. The first is whether the error would require correction. In Eid, Simpson J noted the statement by Spigelman CJ in R v Cramp [5] that such an error was “a technical error of little or no practical significance”. [6] Applying the reasoning in Cramp, Simpson J then stated that there had been no error which affected the exercise of discretion, nor had there been any doubt about the intention of the sentencing judge. She concluded that there was “no error which this Court is called upon to correct”. [7]

    5. [2004] NSWCCA 264.

    6. Eid at [32].

    7. Eid at [33].

11. However, that was not quite what happened in Cramp; Spigelman CJ stated:

“[43] It is necessary to correct the sentence imposed so it conforms with the structure required by s 44 in the form in which it is applicable.

[44]   The Applicant submitted that by reason of this error the Court was entitled to set aside the sentence and proceed to determine the sentence which it believed should be imposed. The error that has been identified did not affect the exercise of discretion by the trial judge. The Court is able to, and should, resentence the Applicant. However, unless some other aspect of the sentence warrants the Court proceeding to sentence afresh, I would not do so. The error identified is a technical one and does not justify this Court proceeding as if his Honour’s exercise of the sentencing discretion miscarried.”

The orders made were as follows:

“(1)   Leave to appeal granted.

(2)   Appeal allowed.

(3)   Sentence of Knight DCJ passed on 3 October 2003 set aside.

(4)   The Appellant is sentenced to a term of imprisonment of seven years with a non-parole period of five years.”

In other words, the sentence, improperly expressed, was reimposed, although the Court did not trouble with details as to the dates of commencement and eligibility for parole.

12. If persuaded of error, I would undertake the course adopted in Cramp, unless the language of the relevant provisions is distinguishable.

13. That raises the second matter to be considered. The applicant relied on the statement in s 44(3) that a “failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.” As senior counsel pointed out, there is no reference to failure to comply with subs (2A), nor indeed the other operative provision, subs (1).

14. There is much to be said for the view that, to avoid what may be difficult exercises in statutory construction,[8] the legislature should specify the consequence of failure to comply with a statutory requirement. However, the fact that a failure to comply does not “invalidate” a sentence leaves open a question as to whether, on an appeal, the court should nevertheless set aside a sentence where the sentencing judge has failed to comply with a particular provision and resentence the offender.

    8. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [41] (McHugh, Gummow, Kirby and Hayne JJ).

15. Such provisions occur in a number of sections, most of which require a record of reasons for not taking a particular step or identifying particular dates which may assist in understanding the outcome of the sentencing process. [9] Other such provisions apply where the failure of the court may have substantive consequences, such as a failure to direct the release of an offender on parole when setting a term of 3 years or less,[10] and failing to comply with the requirement to take a standard non-parole period into account, pursuant to s 54B. [11] Yet these errors would routinely lead to correction on appeal.

    9. See, eg, in Pt 4 of the Sentencing Procedure Act, s 45(4) (failure to record reasons), s 48(3) (failure to specify relevant dates).

    10. Sentencing Procedure Act, s 50(3).

    11. Sentencing Procedure Act, s 54B(7).

16. If the absence of a non-invalidity statement carried any particular implication, it must be that failure to comply with the provision rendered the sentence “invalid”. What would that mean? Perhaps that the resultant imprisonment was unlawful? Such an implication is so implausible, especially if it applied to sentencing by a superior court, that it cannot be accepted. The better view is that there has been legal error which can be corrected on appeal.

17. So far as the terms of s 44 are concerned, the subsections to which the non-invalidity provision applies are those which are expressed in the negative; that is, imposing a limit on the powers otherwise conferred on the court. Thus, subs (2) states that the balance of term of the sentence “must not exceed” one-third of the non-parole period unless the court decides there are special circumstances; subs (2B) makes similar provision with respect to an aggregate sentence; subs (2C), by way of an exception, requires the court to specify the non-parole period which would have been imposed for individual offences where a standard non-parole period applies. Accordingly, the failure to refer to subs (2A) implies that that provision did not impose a limitation on a power, but rather conferred a power, or at least recognised and confirmed its existence.

18. In my view that reading should be accepted. That is because subs (2A) does not in fact confer the power to set a non-parole period, but merely states that the court may set one non-parole period for all offences if imposing an aggregate sentence. Interestingly, both s 44(2A) and s 53A (providing for aggregate sentences) assume that the power (and obligation) to set a non-parole period may be found elsewhere in Pt 4, Div 1. That provision is probably s 44(1), on the basis that the opening words of subs (1), “[u]nless imposing an aggregate sentence”, do not wholly disapply the power when imposing an aggregate sentence, but only so much as is varied by the express terms of subs (2A). If this reading is correct (and it is not necessary to determine the issue in the present case) it is relevant that the terms of s 5(1) of the Sentencing Act 1989 in issue in Cramp varied substantially from s 44(2A). This means that the reasoning in Cramp may not apply and the approach adopted in Eid may be accepted.

19. In any event, I would reject ground 2.

20. ADAMSON J: The applicant seeks leave to appeal against an aggregate sentence imposed on him by Lerve DCJ after he pleaded guilty. The offences, maximum penalty, standard non-parole periods (if applicable) and indicative sentences are as follows:

OFFENCES	MAXIMUM PENALTY/ STANDARD NON-PAROLE PERIOD	INDICTATIVE SENTENCE following discount of 25% for plea
Fire Firearm at Dwelling House with disregard for the safety of a person (s 93GA(1) Crimes Act)	14 years/ 5 years	6 years 4 months with non-parole period of 3 years 9 months
Possess Unauthorised Prohibited Firearm – SKS self-loading rifle (s 7(1) Firearms Act)	14 years/ 4 years	3 years 4 months with non-parole period of 2 years
SECTION 166 MATTERS
Armed with Intent to commit Indictable offence (intimidation) (s 114(1)(a) Crimes Act)	7 years (Jurisdictional Limit: 2 years)	2 years
Common Assault (s 61 Crimes Act)	2 years	12 months
Intimidation (s 13(1) Crimes (Domestic and Personal Violence) Act 2007)	5 years (Jurisdictional Limit: 2 years)	2 years
Possess Unregistered Prohibited Firearm (SKS self- loading rifle) (s 36(1) of Firearms Act)	14 years (Jurisdictional Limit: 2 years)	2 years

21. If leave is granted, the applicant relied on the following grounds of appeal:

1. The sentencing Judge erred by failing to apply correctly to the applicant's case, established principles on the relevance of an applicant's mental condition to sentence, particularly in relation to moral culpability, general deterrence and specific deterrence; and

2. The sentencing Judge erred in setting a non-parole period for all the offences before setting the term of the aggregate sentence.

22. These grounds will be considered in turn after setting out the relevant facts and aspects of the sentencing judgment and sentence imposed. All references to legislation in these reasons are references to the Crimes (Sentencing Procedure) Act 1999 (NSW), except where otherwise indicated.

The facts

23. The following narrative is derived from the agreed facts at the sentence hearing and the evidence adduced at that hearing.

24. The applicant and the victim, had been together for approximately 30 years at the time of the offending, were married and had a son who was 19 at the time of sentence. The couple lived on a property 'Sandbank' which is some 4,000 acres in size, located on the Newell Highway at Coonabarabran. The house was located at the back of the property, approximately 5 kilometres from the gate that faces the Newell Highway. The victim worked as a farmer. She took care of the day-to-day management of the property. The applicant resided there from time to time, but was frequently away attending to business interests on the Central Coast.

25. The applicant returned to the property on 1 February 2016 after some time away. He told a psychologist, Ms Hubner, whom he had seen for the purposes of the sentence hearing that he engaged in sexual intercourse with the victim before spending the afternoon completing chores around the farm. Upon his return to the house, the couple discussed an overseas holiday. The victim suggested that a male neighbour could help them care for the farm and look after the stock whilst they were away. The applicant became angry and accused the victim of infidelity which resulted in a heated argument. The applicant told Ms Hubner that the victim’s suggestion led him to believe that she had been having an affair with this neighbour, and that this touched on his deep-seated fears of abandonment. He also reported that his fears increased as a result of her recent requests for cosmetic surgery and her blossoming peer relations within the local farming community and were intensified by the victim's refusal to kiss him during times of intimacy.

26. The applicant left the house and when he returned a short time later, he told the victim that their relationship was over. He called the victim “whore”, “slut” and “cunt” and pushed a lamp off the table into a wall which caused the lampshade to break. He packed a bag and took a pillow and told her he would see her the following day. The victim commented that the applicant needed help. The applicant stormed out of the house through a sliding door, opening it with such force that it came off the rails. He walked towards a vehicle parked about 30m from the house. The victim followed and stood out on the back verandah of the house.

27. The applicant retrieved a .222 calibre Remington rifle, which was a repeating rifle fitted with a scope (the rifle), from the vehicle. He positioned the rifle on a fence gate post 25.5m from the house, aimed it towards the victim and bent down to look through the scope. The victim froze. The applicant discharged the weapon and the round passed through a 90x90mm wooden verandah post. A stable and intact bullet entered the verandah post 1.148m above the ground. As the bullet travelled through and exited the verandah post, it broke into at least 10 fragments which hit the wall and windows of the sunroom (the room immediately adjacent to the back verandah). This conduct was the subject of the charge of fire firearm at dwelling house with reckless disregard for the safety of a person.

28. The victim ran inside the house. When she reached the sunroom, the applicant discharged a second round from the firearm. No projectile or part thereof from the second round struck the house. The victim ran into the lounge room and tried to call the police on her mobile phone. The applicant returned to the house and went into the lounge room with the rifle in his hands. The victim could see that the bolt on the rifle was down in a position ready to fire and that the applicant's face was red and his eyes were bulging. The applicant approached the victim and tried to take the phone from her. The victim held it tightly and a physical struggle between them took place in the course of which the applicant pointed the rifle towards her body and said "You're finished you're nothing." The victim, believing she was going to be shot, was terrified. During the struggle the victim used her right hand to try and push the muzzle of the firearm so that it was not pointing at her.

23. At some point the applicant stopped and walked towards the sunroom. As he left the lounge room he said, “If you ring the police I'll get them before they get me.” The applicant walked to the back verandah, saying as he did “I'm going to end it all.” Within minutes of the applicant leaving the victim heard a gunshot. She did not know whether the applicant had shot himself.

24. A few minutes later the applicant called the victim on her phone. He was abusive towards her, calling her names and repeatedly telling her that the relationship was over. The victim terminated the call and telephoned the police around 9pm and informed them what had happened and what was currently happening. The victim took her dog and hid behind a large pine tree in her back garden because she was frightened that the applicant might return.

25. The applicant continued to phone the victim. On one of these calls he told the victim that he had opened all the farm gates. The victim believed this to be a ploy to get her to go out in the open to close the gates to prevent the stock escaping. The victim told the applicant that she had called the police. She later became aware that the gates had not in fact been opened. The victim remained in hiding until the police arrived.

26. The police arrived at about 9.43pm. They donned ballistic vests and drove along a dirt road for approximately 5kms, passing through a number of closed gates. By the time they arrived at the homestead the applicant had returned there without the firearm. He was eating at a table in the sunroom when the police approached him. The victim came out of hiding. When the applicant saw her he said to her, “You're gone, you are finished. This is all over now.”

27. The police directed the applicant to stop talking to the victim and arrested, handcuffed and cautioned him. He was taken into custody.

28. The applicant took part in an electronically recorded interview, where he made certain admissions as to assaulting and intimidating the victim. He declined to comment when asked about shooting towards the house and the victim. He refused to disclose to police the whereabouts of the firearm. He also refused to inform police of the whereabouts of the key to his firearm safe. About two hours later while in custody, the applicant agreed to tell police where the firearm was and sketched a mud map of its location. He also told police the weapon was still loaded. He later disclosed to police that he had an unregistered AK 47 assault rifle with bayonet attached (which turned out to be a SKS Chinese manufactured type 56 carbine self-loading rifle (SKS)) in his firearm safe. He said that he obtained that weapon from a skydiving friend and did not want his wife to get in trouble. He told police where they could find the key to the firearm safe.

29. Police located the rifle on the property. Its magazine contained four bullets. Police also found the SKS which is a prohibited firearm.

30. On 1 February 2016, when the applicant first went into custody after his arrest, he was tearful and distressed. He cut his left arm superficially on 9 February 2016. However a few days later, on 12 February 2016, he was reported to be bright, reactive and joking with staff. He was referred to Dr Cox, a consultant psychiatrist, for psychiatric review. Dr Cox’s report was not in evidence but his opinion was summarised in the Justice Health report referred to below as follows:

“Overall Dr Cox considered that Mr Hunt had an Adjustment Disorder with depressed mood and anxiety (a relatively minor and self-limiting disorder). He suggested monitoring of his risks for suicide and referred him for psychological treatment.”

37. On 1 April 2016 Dr Gordon Elliott, consultant psychiatrist, prepared a Justice Health Report following an assessment of the applicant on 23 March 2016. He did not consider the applicant to be displaying features of any major mental illness. Although his view was that the applicant’s description of his mental state prior to his arrest was suggestive of a major depressive disorder, he considered that it was more likely that he had an Adjustment Disorder with depressed mood which had resolved following his incarceration.

38. The applicant’s solicitors arranged for him to be assessed by Emma Hubner, psychologist, for the purposes of sentencing. In her report of 28 April 2016 she recorded the following history:

“Mr. Hunt and his current partner, Sue, met at a party. He said that their relationship had been marred by his persistent belief that Sue would be unfaithful. He said that he coped with this by working excessively and drinking

alcohol.”

39. Mr Hunt is also recorded as having given Ms Hubner the following background to the offences:

“When provided with the opportunity to discuss his feelings regarding the index offence, Mr Hunt said ‘I lost it and went off my head’ and ‘I should have been more in control but for some years I've had an anger problem’. Mr. Hunt also said that he was glad that he had been incarcerated because it had given him the opportunity to reflect on his life and to focus on his problematic behaviour.”

40. In the Pre-Sentence Report dated 18 July 2016 Bruce Pearce recorded that the applicant had told him that he was experiencing periods of extreme stress and anxiety in the period leading up to the offending. Mr Pearce recorded that the applicant told him that these stressors included “concerns regarding the viability of his various businesses and marital/family problems [which] had triggered an emotional response so intensive [sic] that he had experienced a ‘brain snap’.” Mr Pearce recorded that there “appear to be no ongoing mental health issues, which would preclude the applicant from participating in community service work, or other community based orders”.

The sentence hearing

41. The applicant gave evidence at the sentence hearing. The applicant said that he had not been “very good emotionally for many years” but he was particularly exhausted by work in early 2016. He described his return home on 1 February 2016. He said that “Sue and I spent a bit of time together, which we always – I always looked forward to” and then he went to the paddock to cut logs. He returned to the homestead to find that the dinner was ready. The television was on and there was a programme about Fiji which prompted the applicant to suggest that they go on a trip. The victim responded, “That’d be a good idea.” When the applicant asked her who would look after the farm and suggested two people, she responded, “No, the bloke next door, he’s been looking after the stock.” According to the applicant, “I just went off my head and had a brain snap and . . . I just had enough.” He admitted that “in [his] head” there was some impropriety between the victim and the neighbour although he did not actually think it was happening.

42. One of the applicant’s daughters, Kelly Taylor; his business partner, Ms Lyons; and a flying instructor, Wayne Young, also gave evidence. Ms Taylor deposed that in late 2015 she noticed that her father was becoming “depressive” and used to call her and have “bizarre” conversations. He used to tell her that he could not keep working the way he had been. Ms Taylor spoke to the victim about the applicant’s mental state. The victim was also concerned about his wellbeing. Ms Taylor also deposed that there was a period when she could not get hold of her father and later found out that he had been in hospital with chest pains.

43. Ms Lyons deposed that the applicant’s behaviour was becoming “very erratic” in about Christmas of 2015 in that he was “trying to rake in as much money as he could”. When he was on the Central Coast working in the business (Radley’s Produce) he lived in a shed at the back. She said that he worked on the Central Coast for a few weeks at a time and then returned to the farm at Coonabarabran for a few days to see his wife and the farm.

44. Mr Young said of the applicant that he was a very hard worker. Mr Young had never known the applicant to raise his voice.

45. Each of these witnesses deposed to their shock when they heard about the offending conduct which they each regarded as entirely out of character for the applicant. None of the expert witnesses gave oral evidence; none was required for cross-examination.

46. In the course of submissions, Mr Walsh, who appeared for the applicant, submitted that the supposed infidelity was suspected at a time when the applicant was at a “low ebb” and “going downhill, mentally and physically”. Mr Walsh urged the sentencing judge to read the two expert reports, being those of Ms Hubner and Dr Elliott. The following exchange ensued:

“HIS HONOUR: I've had them for a couple of days. I've read them each three times. Again, what happened on 1 February is so out of character. That's why I look through the reports to try and find some explanation.

WALSH: The explanation, I think, from the experts is that he was in a depressed state. It's interesting that the witnesses who have given evidence today speak of the deterioration of this man's mental and physical state in that period of time.

HIS HONOUR: On that issue of depressed state, is there a diagnosis of a depressed state and is there evidence of a causal connection between the depressed state and the offending? That's one of the reasons I've read the reports a number of times. I do not see that causal connection.

WALSH: I must say, I don't think they make the actual causal connection, but it's clear that they say that he was suffering from - the psychiatrist says he had an adjustment disorder with a depressed mood and that this resolved rapidly following his incarceration. There's no doubt he was suffering a mental

disorder at the relevant time, no risk about that.”

47. Notwithstanding this exchange, the applicant did not seek leave to adduce further evidence on the issue of causation, whether by calling oral evidence from his own expert, Ms Hubner, or cross-examining Dr Elliott.

The sentence judgment

48. The sentencing judge referred to the need for general deterrence in the following passage:

“This matter is yet again another example of serious domestic violence of which this Court is getting heartily sick and tired. It is no exaggeration or hyperbole when I say that barely a day let alone a week goes by that this Court does not have to deal with an applicant for serious domestic violence either on appeal from the Local Court, or on indictment. This is the fourth sentence matter I have dealt with this week and each one of them have involved serious domestic violence. There is a very real issue of general deterrence to be factored into a sentence involving domestic violence such as this.”

49. The sentencing judge also considered that it was necessary to include an element of general deterrence in the sentence relating to the firearm which he described as “a very high powered firearm, self-loading, manufactured for military purposes”.

50. His Honour noted that the applicant had believed at the time of the offending that his wife was having affairs but recorded his understanding of the applicant’s evidence to be that he “now accepts that that was not the case”.

51. The sentencing judge referred to the reports of Mr Pearce, Dr Elliott and Ms Hubner. He summarised the reports and extracted the explanation given to Ms Hubner which is set out above about the applicant losing his head. His Honour continued:

“Clearly I am able to find, given the totality of those reports that leading up to the offending on 1 February 2016, the applicant was suffering some type of depressive illness or depressive conditions. However, as I indicated in the course of taking submissions, there is no evidence in any of those reports upon which I could rely to find there was a causal connection, between that depressive illness and the behaviour and the offending on 1 February 2016. That material relating to the depressive condition, is very much part of the subjective mix. But that is as far as it can go it seems to me, given the effect

of the decisions of Aslan [2014] NSWCCA 114 and Ngati [2014] NSWCCA.”

52. Because of ground 2, it is necessary to set out the way in which the sentence was pronounced at the conclusion of the sentencing remarks, which followed a recital of the indicative sentences:

“As I indicated in the course of submissions, and at the commencement of these remarks I propose to impose an aggregate sentence, in an attempt to comply with s 53A of the Crimes (Sentencing Procedure) Act 1999. I now read from a document I have prepared.

I invoke s 53A of the Crimes (Sentencing Procedure) Act 1999 and impose an aggregate sentence. I give the following indicative sentences.

In respect of the substantive charges for which the applicant appears for sentence, fire firearm at dwelling house with reckless disregard for the safety of a person, contrary to s 93GA(1) of the Crimes Act 1900, a non-parole period of three years and nine months with a balance of term of two years and seven months, making a total sentence of six years and fourth months, with a starting point of eight-and-a-half years or 8.5 years.

The possession of the unauthorised unregistered firearm, contrary to s 7(1) of the Firearms Act 1996, a non-parole period of two years with a balance of term of one year and four months, making a total sentence of three years and four months with a starting point of 4.5 years.

In respect to the matters attaching to the certificate pursuant to s 166 of the Criminal Procedure Act 1986, armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act 1900, a fixed term of two years imprisonment.

The common assault, contrary to s 61 of the Crimes Act 1900, a fixed term of 12 months imprisonment. The intimidation, contrary to s 13(1) of the Crimes (Domestic andPersonal Violence) Act 2007, a fixed term of two years imprisonment. And the possession of the unregistered prohibited firearm contrary to s 36(1) of the Firearms Act 1996, a fixed term of two years imprisonment.

In respect of the matters to which the applicant has pleaded guilty, he is convicted. Consequent upon those convictions, I impose an aggregate sentence of a non-parole period of five years, to commence on 1 February 2016 and which will expire on 31 January 2021.

Thereafter, there will be a balance of term of three years and three months to commence on 1 February 2021 and which will expire on 30 April 2024.

The total sentence is therefore, eight years and three months, with a non-parole period of five years. The non-parole period is approximately 60 per cent of the total sentence. The reasons for the significant finding of special circumstances include, the age of the applicant, the fact that this is his first time in custody at the age of 65 years, and the need for extended period of supervision to ensure he properly reintegrates back into society upon his release. The applicant will be eligible for release to parole at the expiration of the non-parole, and I recommend that release.”

[Emphasis added.]

The first ground

53. Mr Game SC, who appeared with Ms Bonnor for the applicant, contended that the sentencing judge had erred both in failing to infer that the applicant’s mental condition had contributed to the offending conduct and in regarding proof of contribution as a necessary precondition to a finding of reduction of moral culpability or to the giving of lesser weight to specific and general deterrence. These will be addressed in turn.

The failure to find that the mental illness of the applicant had contributed to the offending conduct

54. The evidence extracted above showed that, while a diagnosis of mental illness (adjustment disorder with depressed mood) was made, no expert opined as to any causal connection between the applicant’s mental state and the offending conduct. The sentencing judge refused to find that the applicant’s mental state had contributed to the offending conduct in the absence of expert evidence. I do not understand his Honour to have found that no such finding could ever be made in the absence of expert evidence, but rather that he was not prepared to make such a finding in the present case in its absence.

55. I regard this approach as entirely within the purview of the sentencing judge. The material before the sentencing judge, which is referred to above, indicated that the applicant’s fears of his wife’s infidelity were longstanding. There was no suggestion that there was any basis for such fears. In the history the applicant gave to Ms Hubner he described his belief as “persistent” and that it “marred” his relationship with the victim. He admitted that he had an “anger problem” for “years”.

56. Expert evidence is not necessary for a finding that a particular mental or physical condition has caused or contributed to a particular outcome: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538. Where expert evidence is adduced on this question its admissibility and weight will depend on the validity of the basis of the opinion: Wilmot v R [2007] NSWCCA 278 at [28].

57. However, the circumstance that expert evidence was adduced by the applicant and the question of contribution was not addressed by Ms Hubner, who was apparently qualified to opine on the question, is relevant to the determination of whether a finding of contribution ought be made: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 (Handley JA, Kirby P agreeing). Moreover, the applicant could have required Dr Elliott to attend for cross-examination and put to him that the applicant’s mental state contributed to his offending conduct but did not: Browne v Dunn (1893) 6 R 67. These matters were relevant to the sentencing judge’s fact-finding.

The relevance of the applicant’s mental condition in the absence of a finding that it contributed to the offending conduct

58. The applicant contended that it was not necessary for a finding of contribution between a mental illness and the offending conduct to be made before his mental condition could be taken into account in reducing his moral culpability, or in determining whether he was an appropriate vehicle for general or specific deterrence. He contended that the sentencing judge appeared to require such proof before his mental condition could be taken into account.

59. I do not accept that a fair reading of his Honour’s reasons supports this contention. For the reasons given above, I consider that it was open to the sentencing judge to refrain from finding that the applicant’s mental illness contributed in a material way to the offending conduct. However, his Honour otherwise took into account the applicant’s mental state. The sentencing judge referred to the applicant's difficulties dealing with the stressors of his business and his heavy workload, and also the heavy financial burden he bore in the time frame leading up to his arrest.

60. It does not follow that merely because an applicant suffers from a mental illness, there must be some reduction in the need for general deterrence or that the significance of specific deterrence is reduced: Aslan v R [2014] NSWCCA 114 at [34]; Ngati v R [2014] NSWCCA 125. I understand the sentencing judge’s reference to those authorities as indicating that, having considered those principles, he was not persuaded that it was appropriate to reduce the need for general deterrence and specific deterrence on the basis of the applicant's depressive illness. Such a conclusion is supported by the reference earlier in the judgment to the prevalence of domestic violence offences and the need for general deterrence.

61. It might be thought that general deterrence would be of little consequence in this area. Many perpetrators of domestic violence offences, whether or not suffering from a mental illness, may be thinking instinctively and emotionally rather than rationally (as in the present case) at the time of the offences. Nonetheless there are numerous authoritative statements about the need for sentences imposed on the perpetrators of domestic violence to give weight, in appropriate circumstances, to general deterrence. This Court has recently referred to the need for “rigorous and demanding consequences for the perpetrators for the purpose of protecting partners, family members and the wider community”: Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224 at [83] and [84]; see also The Queen v Kilic [2016] HCA 48; (2016) 91 ALJR 131 at [21]. Moreover the offences which were charged on indictment related to the use and possession of firearms. The possession of an unlawful firearm is a matter which particularly raises the need for general and specific deterrence.

58. The weight to be given to particular factors in sentencing is pre-eminently a matter for the sentencing judge. In the present case it was open to his Honour to find that the applicant’s mental illness was not such as to diminish his moral culpability or to render him an inappropriate vehicle for general deterrence. The material before his Honour on sentence indicated that the mental illness had quickly resolved after the applicant’s incarceration and that the applicant was assisting other inmates with their rehabilitation and education as a means of atoning for his own crimes. Accordingly there was no reason for his Honour to infer that the applicant’s mental illness would cause the custodial sentence to weigh more heavily on him. I do not regard his Honour’s refusal to find that the applicant’s mental illness contributed to his offending behaviour (which, for the reasons given above, revealed no error) as tantamount to a finding that the mental illness was irrelevant to the sentence.

59. The first ground has not been made out.

The second ground

The parties’ submissions

64. The applicant submitted that the sentencing judge failed to comply with s 44(2A) because his Honour set the non-parole period for the aggregate sentence before setting the (head) term of the aggregate sentence. Mr Game contended that s 44(2A) explicitly reverses the mandated order in which a court is required to set any non-parole period and head sentence where the sentence of imprisonment is not an aggregate sentence. He submitted that, for non-aggregate sentences, the combined operation of ss 44(1) and (2) requires the court to set a non-parole period first, and then the balance of term. He relied on the difference in language between ss 44(2) (relating to a sentence that is not an aggregate sentence) and 44(2B) (relating to an aggregate sentence) in support of the submission. He distinguished between s 44(2), which refers to the “balance of the term of the sentence", which must not exceed one-third of the non-parole period (which has already been set) unless there are special circumstances. By contrast, s 44(2B) states that the “term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence” is served must not exceed one-third of the non-parole period, unless there are special circumstances. For an aggregate sentence the head sentence is to be set first, and the non-parole period carved out from that. Whereas, the “balance of the term on the sentence” is added to the pre-determined non-parole period, where the sentence is not an aggregate sentence.

65. Mr Game accepted that a failure to follow the terms of s 44(1) by pronouncing the non-parole period first and then the balance of term is a technical error, which, if the only error, does not lead to the conclusion that the sentencing discretion miscarried: R v Cramp [2004] NSWCCA 264 at [38]-[44]. However, he contended that the requirement to set, or pronounce, a head sentence first for an aggregate sentence is not “merely technical”.

66. Mr Game relied on the Second Reading Speech where it was explained that aggregate sentences were introduced to “... effectively allow the court to choose to set one sentence for multiple offences, making the impact of the total sentence immediately clear”: (New South Wales Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 at 27870).

67. The applicant submitted that it is no mere technicality to determine the overall aggregate sentence first and then turn to the non-parole period. He relied on what Simpson J said in Musgrovev R [2007] NSWCCA 21; (2007) A Crim R 424 at [44], that to determine the non-parole period first is apt to lead to error because any finding of special circumstances, after the determination of the non-parole period, may create an extension, beyond proper limits, of the balance of term. Thus, Mr Game argued that it does not follow from authorities that have interpreted s 44(1), that the interpretation of s 44(1) necessarily applies to s 44(2A).

68. Further, Mr Game contended that non-compliance had different consequences depending on the subsection in s 44 which was not complied with. He submitted that while s 44(3) provides that the failure of a court to comply with ss 44(2), (2B) or (2C) does not invalidate the sentence, there is no such reference to s 44(2A) (and s 44(1)).

69. In response the Crown submitted that, while the sentencing judge erred in pronouncing the sentence, it ought not be assumed that the error was made in the determination of the sentence. It relied on the following passage from Kentwell v The Queen (2014) 252 CLR 601 at [42] where the High Court said:

“This is not to say that all errors in the sentencing of applicants vitiate the exercise of the sentencer’s discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an applicant to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an applicant to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer’s discretion.”

70. In reply, the applicant contended that the words in the last sentence of the extract were significant and argued that there was “more” in the present case because setting the non-parole period of the aggregate sentence first is apt to confuse as to whether the fixed terms have contributed to the non-parole period of the aggregate or whether it only reflects those offences where a standard non-parole period applies.

Consideration

Legislative history

71. In the Sentencing Act 1989 (NSW) the sentencing court was required to set a “minimum term” first and then set an additional term during which the person may be released on parole: s 5(1). When the Crimes (Sentencing Procedure) Act 1999 (NSW) was passed, it required the term of the sentence to be set first before the non-parole period was set: s 44(1). When the Act was amended by Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) (the 2002 Amendment) the order changed again and sentencing courts were required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence) first. Standard non-parole periods were introduced by the 2002 Amendment and it can be inferred that the order of pronouncement was changed in order to give prominence to the minimum time required to be served.

72. The Crimes (Sentencing Procedure) Amendment Act 2010 (the 2010 Amendment) introduced, by s 53A, aggregate sentences in response to the difficulties highlighted in Pearce v The Queen (1998) 194 CLR 61; [1998] HCA 57 where several sentences were imposed for different offences.

73. The 2010 Amendment also added s 44(2A), (2B) and (2C). The Explanatory Memorandum for the bill that became the 2010 Amendment said, of present relevance:

“A court that imposes an aggregate sentence of imprisonment in respect of 2 or more offences on an applicant may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision) (proposed section 44 (2A) and (2B)—Schedule 2 [4]).”

74. The effect of the 2010 Amendment was to preserve the requirement to “set” (pronounce) the non-parole period first where sentences other than aggregate sentences were imposed: s 44(1) and to provide, by s 44(2A), that the non-parole period for the aggregate sentence be set “after setting the term of the sentence”.

75. Section 44 relevantly provided, at the time of the sentencing in the present case, as follows:

“44   Court to set non-parole period

(1)  Unless imposing an aggregate sentence of imprisonment, when sentencing an applicant to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the applicant must be kept in detention in relation to the offence).

(2)  The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2A)  Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an applicant may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.

(2B)  The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B.

(3)  The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.

. . .”

76. Throughout the period referred to above, from the enactment of the Sentencing Act 1989, the statutory ratio between the non-parole period and the total term was 75%, unless there were special circumstances.

Whether ground 2 has been made out

77. The starting point is that the statutory provisions set out above relating to the “setting” of terms or non-parole periods regulate the pronouncement of the sentence and not the reasoning process behind the determination of the sentence: Eid v R [2008] NSWCCA 255 at [31] (Simpson J, McClellan CJ at CL and McCallum J agreeing). As was confirmed by this Court in R v Hampton (1998) 44 NSWLR 729 the consideration of total and minimum terms was not regulated by s 5 of the Sentencing Act. Indeed, the debate about which should proceed first as a matter of judicial reasoning was said, at 732, to have a “chicken and egg quality about it” (Spigelman CJ, Powell JA and Newman J agreeing).

78. It can be seen from the summary of the legislative history set out above that the statutory requirement in s 44(1) for a non-parole period for a single sentence or a series of offences (that the non-parole period be set first) differs from the statutory requirement in s 44(2A) for an aggregate sentence (that the head sentence be set first). It is not immediately obvious what purpose is to be served by the distinction in the order in which the sentence is to be pronounced depending whether an aggregate sentence is imposed. However the legislative history set out above suggests that the legislative preference for prominence to be given to the non-parole period (by being pronounced first) arose from the introduction of standard non-parole periods; whereas, the preference for a total term to be emphasised (by being pronounced first) arose from the introduction of aggregate sentences which were designed to simplify sentencing for more than one offence.

79. I am not persuaded that an error in the pronouncement of the sentence, which is, as in the present case, confined to the order in which the non-parole period and total term were set, is other than a technical error which does not lead to invalidity. The Act does not provide, in respect of either ss 44(1) or 44(2A), that non-compliance does not lead to invalidity. It does make such provision for ss 44(2), (2B) or (2C): s 44(3). I do not infer from this circumstance that the legislature intended that non-compliance with ss 44(1) or 44(2A) would lead to invalidity. Rather, it may be that those sections were merely formal in that they prescribed how a sentence was to be pronounced, whereas the other sections provided for how it was to be constructed as a matter of substance.

80. In any event, the High Court in Kentwell v The Queen in the passage extracted above from [42], has confirmed that non-compliance with s 44(1) is a technical error which does not of itself lead to a miscarriage of the sentencing discretion. I am not persuaded that there is any relevant distinction between s 44(1) and s 44(2A) which would lead to a different result with respect to non-compliance with s 44(2A). I respectfully adopt the description of such an error in R v Cramp where it was described at [39] as “a technical error of little or no practical significance”.

81. For these reasons the second ground has not been made out.

Proposed orders

82. I propose the following orders:

1. Grant leave to appeal.

2. Appeal dismissed.

83. BELLEW J: I agree with Adamson J.

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Endnotes

Decision last updated: 08 December 2017