Hurkmans v The King

[2024] NSWCCA 126

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hurkmans v R [2024] NSWCCA 126

Hearing dates:

24 April 2024

Date of orders:

12 July 2024

Decision date:

12 July 2024

Before:

Davies J at [1]
N Adams J at [52]
R A Hulme AJ at [65]

Decision:

(1) Grant leave to appeal.

(2) Allow the appeal.

(3) Quash the sentence imposed in the District Court on 25 November 2022.

(4) In lieu sentence the applicant to imprisonment for 10 years commencing 11 March 2021 and expiring 10 March 2031 with a non-parole period of 6 years expiring 10 March 2027.

Catchwords:

CRIME – appeals – appeal against sentence – two drug and proceeds of crime offences – possess commercial quantity of cocaine – where primary issue before the sentencing judge was non-exculpatory duress – duress found in favour of the applicant – moral culpability reduced by reason of duress – whether sentencing judge required to separately consider mental health – applicant diagnosed with persistent depressive disorder and trauma/stress related disorder – connection between mental health and offending raised in applicant’s written and oral submissions – held sentencing judge overlooked evidence concerning mental health – failed to consider the issue of moral culpability by reason of mental health – direct nexus between applicant’s mental health and the offending – appeal allowed – applicant resentenced to a lesser sentence

Legislation Cited:

Crimes Act 1914 (Cth) s 16A

Criminal Code Act 1995 (Cth) ss 307.5, 400.4

Cases Cited:

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

Cherdchoochatri v R [2013] NSWCCA 118

DB v R [2023] NSWCCA 323

Craft v R [2021] NSWCCA 131

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Lee v R [2016] NSWCCA 146

Masters v R [2019] NSWCCA 233

Ney v R [2023] NSWCCA 252

Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365

Whipp v R [2024] NSWCCA 79

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

YM v R [2023] NSWCCA 75

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jake Laurens Hurkmans (Applicant)
The King (Respondent)

Representation:

Counsel:
T Game SC and R McMahon (Applicant)
A Williams (Respondent)

Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2021/69961

Publication restriction:

Suppression and non-publication orders of Traill DCJ made on 15 September 2022 remain unchanged.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

25 November 2022

Before:

Traill DCJ

File Number(s):

2021/69961

Judgment

1. DAVIES J:   The applicant pleaded in the Local Court to two offences as follows:

Sequence 4: Possess commercial quantity of border controlled drug contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is life imprisonment and/or 7500 penalty units.

Sequence 5: Engage in conduct in relation to proceeds of general crime contrary to s 400.4(2A) of the Criminal Code Act. The maximum penalty for this offence is imprisonment for 10 years and/or 600 penalty units.

2. On 25 November 2022, the applicant was sentenced by her Honour Judge Traill in the District Court to an aggregate sentence of imprisonment for 11 years commencing 11 March 2021 and expiring 10 March 2032 with a non-parole period of 6 years 6 months expiring 10 September 2027.

3. The indicative sentence for sequence 4 was imprisonment for 10 years and for sequence 5 imprisonment for 3 years.

4. By consent, an order was also made forfeiting to the Crown the $520,000 which was the subject of sequence 5.

The offending

5. The conduct the subject of the two offences was for the most part agreed and set out in an Agreed Statement of Facts. An issue of non-exculpatory duress was raised by the applicant, and was the subject of a disputed facts hearing. That duress was ultimately found in favour of the applicant.

6. The facts may be summarised as follows. The applicant purchased a boat in 2020 which was registered in his name. The boat was paid for by unknown persons making cash deposits into the bank account of the vendor. In early March 2021, the applicant rented a hire car, checked in to a cabin at a holiday park in Kurnell, and leased a storage unit, all in his own name.

7. In the early hours of 11 March 2021, the applicant drove the hire car, towing the boat he had purchased, to a boat ramp at Sylvania Waters. He then drove the boat out beyond the heads of Botany Bay where a large container ship called the MSC Joanna, was passing. Unknown persons threw 11 buoyant containers into the ocean. Those containers were collected by the applicant and loaded onto his boat.

8. At approximately 8:10am, police intercepted the boat and arrested the applicant. The police executed a search warrant, and 199 bricks of cocaine were located within the containers. Their gross weight was 199.1kg and their pure weight was 155.1kg. Investigators executed a search warrant on the storage unit leased in the applicant’s name, and located a suitcase containing $520,000 in cash.

9. The applicant seeks leave to appeal on one ground only as follows:

The sentencing judge erred in failing to make a finding in relation to whether the applicant’s mental condition reduced his moral culpability and failed to have regard to other principles applicable to mental health conditions.

Evidence before the sentencing judge

10. A psychological report from Dr Kala Ram dated 6 March 2022 was tendered without objection. The history obtained by the psychologist came not only from the applicant but also from both of his parents and from his partner of three years.

11. The applicant told Dr Ram that he had had no formal diagnosis of mental illness but he had previously experienced “low moods”. He said he felt depressed in his mid-twenties after his first relationship broke down and his former partner commenced a relationship with his best friend at the time. He told Dr Ram that his emotions tended to stay the same most of the time, “Not sad and not happy, just very neutral”.

12. He told Dr Ram that following his arrest he reported experiencing symptoms consistent with trauma including flashbacks, nightmares and severe anxiety, as well as uncontrollable thoughts about the offences.

13. The applicant’s parents told Dr Ram that the applicant experienced low moods during his formative years. They also noted that, following the applicant’s arrest, he had significant anxiety in relation to the threats made towards his family.

14. The applicant’s partner told Dr Ram that the applicant suffered from low moods accompanied by low self-esteem. She said that he had struggled with his mental health, and that at the end of 2020 the applicant consulted his general practitioner for a mental health care plan in order to engage in psychological treatment. However, he was arrested before this occurred. She said that he struggled with feelings of self-hatred and worthlessness.

15. Dr Ram concluded that the applicant appeared to suffer from low self-esteem and an overall feeling of inadequacy. She said that that was consistent with the results on his Personality Assessment Inventory and what the applicant’s partner had said. Dr Ram said that the applicant’s depressive symptomology was consistent with a continuous long-term form of depression. She said that reports from family members and his results on the Depression Anxiety and Stress Scale supported that assessment. Dr Ram said that the applicant’s presentation was consistent with undiagnosed Other Specific Trauma/Stress Related Disorder.

16. Dr Ram concluded:

Holistic and collateral information suggest that during the commission of the index offence (and currently), Mr Hurkmans satisfies the DSM-5 diagnostic criteria for:

300.4 (F34.1) Persistent Depressive Disorder (Dysthymia)

309.89 (F43.8) Other Specific Trauma-and-Stress Related Disorder

While Mr Hurkmans discloses that his motivation to engage in the offending misconduct was initially related to deriving money to support himself during a time where he was not able to work due to the COVID pandemic, he reports (and there are grounds to accept) that his motivation subsequently changed to fear and a need to protect his family from harm. From this standpoint it appears that there is a direct nexus between Mr Hurkmans’ mental health/trauma and stress symptoms and his engagement in the index offence.

17. The applicant gave evidence at the sentence proceedings, chiefly in relation to the matter of non-exculpatory duress. However, he also said that he had told Dr Ram the truth when he consulted her. There was no challenge to that evidence. Indeed, the applicant was not cross-examined at all about matters other than non-exculpatory duress.

18. An affidavit by the applicant’s partner was read at the sentence hearing. In that affidavit the partner said, consistently with what she had told Dr Ram, that the applicant had struggled with his mental health and had just obtained a mental health care plan in the months prior to his arrest. She said he struggled with feelings of self-hatred and worthlessness. Although the partner gave oral evidence, she was not cross-examined on any matter except issues concerned with the non-exculpatory duress.

Submissions to the sentencing judge

19. In the applicant’s written submissions to the sentencing judge the following appeared:

38.   Dr Ram, psychologist, opines that the offender met the diagnostic criteria for persistent depressive disorder and trauma and stress related disorder at the time of the offending. It is noted that he sought the assistance of a mental health care plan close to the time of the offending. Dr Ram further opines that there was a connection between these mental conditions and the offending behaviour, particularly in the context of fears the offender held… This evidence serves to somewhat reduce the offender’s culpability. The offender is assessed as having a positive prognosis …, which bears favourably on his prospects of rehabilitation.

20. In oral submissions senior counsel for the applicant said:

Under the heading, Mental Condition, I’ve referred to what Dr Ram has opined [in] her report about a connection between depression, trauma and stress disorder and the circumstances in which he came to be involved in the offending.

One way of looking at that connection in a way is that if he was under pressure like duress then those types of mental states means (sic) that he is going to be less equipped than others might be in terms of a robust response. I don’t want to overstate this evidence but it does have an impact given that the psychologist has opined that there is a connection, a nexus between his mental conditions and the offending behaviour, that in conjunction with the duress evidence will have an impact on his moral culpability, in my submission.

Remarks on sentence (ROS)

21. The sentencing judge made a number of findings including the following:

• The applicant acted under duress “which therefore will have a significant reduction on his moral culpability and corresponding objective seriousness of the offending.”

• A discount of 25% for the early plea was accorded to the applicant.

• The applicant played an essential but confined role in the enterprise.

• The absence of his attempts to conceal his identity was consistent with his lack of knowledge of the true nature and gravity of the conduct. It was only the day before the offending that he realised that what he was collecting was probably drugs.

• The applicant was motivated initially for money, but when he sought to withdraw, his primary motivation was the threats and his concerns for his family and himself.

• Sequence 4 falls just below the mid-range of objective seriousness and sequence 5 fell at the lower end of objective seriousness.

• The applicant had shown extreme contrition and remorse.

• He has extremely good prospects of rehabilitation.

• He was at a low risk of reoffending.

• General deterrence was important in matters such as the possession of significant quantities of cocaine.

• The applicant had no relevant prior convictions and was otherwise of good character.

• He was relatively young at the time of the offending and under financial strain due to COVID-19 and the nature of his employment.

• He had been incarcerated during the COVID-19 pandemic.

• The sentencing judge said that she also took into account the psychologist’s report in respect of the applicant’s mental health.

Submissions

22. The applicant drew attention to what was said in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 about how a person’s mental health might impact on any sentence they receive, making reference to a number of cases including DB v R [2023] NSWCCA 323 and DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 dealing with the causative connection between a mental health condition and offending. The applicant also submitted that the failure of a sentencing judge to consider whether moral culpability was reduced arising from the impact of an offender’s mental health has been held to be an error in cases such as YM v R [2023] NSWCCA 75 and Masters v R [2019] NSWCCA 233.

23. The applicant submitted that the Crown did not object to the tender of Dr Ram’s report or challenge her opinions, nor did the Crown address the applicant’s mental condition in written or oral submissions. The applicant drew attention to what had been said in written and oral submissions on his behalf at the sentence hearing (set out at [19]-[20] above). The applicant submitted that the sentencing judge did not consider those submissions at any point in her sentencing remarks.

24. The applicant drew attention to three occasions in the sentencing remarks where the sentencing judge said that she would reduce the applicant’s moral culpability by reason of the duress under which he was acting, but otherwise did not refer to the applicant’s mental condition apart from saying that she had taken into account the psychologist’s report in respect of his mental health. The applicant submitted that there was no reference to the relevant principles from De La Rosa. Nor did her Honour make any reference to s 16A(2)(m) of the Crimes Act 1914 (Cth) which required the Court to take into account the mental condition of the applicant.

25. The Crown submitted that much of the battleground at first instance appeared to have been on the resolution of the question of non-exculpatory duress, with that issue being found in the applicant’s favour. The Crown submitted that one consequence of that focus on duress was that there were few areas of dispute as fact or principle for the sentencing judge to resolve. The Crown submitted that it was far from clear from the record of the sentence proceedings that it was apparent to anyone involved that there was the disputed issue relating to the nature of the treatment to be given to the mental health conditions of the applicant. The applicant’s mental conditions were not treated as a matter of emphasis or contest, and the issue was not one of any apparent importance in the proceedings.

26. The Crown submitted that the ROS were more than adequate to explain to the offender and the community what sentence was being imposed and why, and for the purpose of facilitating appellate review. In that way the ROS were adequate to demonstrate the absence of a “real possibility” that the judge failed to apply correct legal principle, relying on what was said in Lee v R [2016] NSWCCA 146 at [26].

Consideration

27. There is no doubt that the principal focus at the sentence hearing was on the issue of non-exculpatory duress. Ultimately the sentencing judge found that the offender acted under duress. Her Honour made that finding because she said:

I accept the veracity of the offender’s evidence in relation to non-exculpatory duress.

28. The result was that her Honour said that the finding that the offender acted under duress:

…will have a significant reduction on his moral culpability and corresponding objective seriousness of the offending.

29. Her Honour repeated that statement in the following paragraph, and again when her Honour was assessing the objective seriousness of the offending.

30. The applicant’s senior counsel at the sentence hearing dealt separately with the applicant’s mental condition. Although, as Mr Game of senior counsel for the applicant at the hearing of the appeal made clear, the issue of the applicant’s mental condition was associated with the issue of non-exculpatory duress, an entirely separate point was being made arising from Dr Ram’s diagnosis of the applicant suffering from a persistent depressive disorder and other specific trauma and stress related disorder at the time of the commission of the offence.

31. Nor was the matter simply left as a paragraph in the written submissions. That paragraph was highlighted by the applicant’s senior counsel in his oral submissions to the sentencing judge (set out at [20] above).

32. The Crown’s written submissions in reply before the sentencing judge and the Crown’s oral submissions did not engage with the submissions made on behalf of the applicant about his mental health.

33. One of the matters that a court must take into account under s 16A(2) of the Crimes Act 1914 is:

(m)   The character, antecedents, age, means and physical or mental condition of the person.

34. Although her Honour said that she had to take into account the matters listed in s 16A(2) and said also that she had taken into account the psychologist’s report in respect of the offender’s mental health, her Honour did not say how she had done so and whether, in particular, the issue of the applicant’s mental health had any further bearing on his moral culpability, separate from the finding of non-exculpatory duress.

35. The significant portion of Dr Ram’s report is set out at [16] above. That was precisely the portion of Dr Ram’s report that was identified by the applicant’s senior counsel in his written submissions to the sentencing judge. The point about the connection between the mental health and the offending was made again in the oral submissions.

36. In Ney v R [2023] NSWCCA 252, ground 2 of the appeal asserted that the sentencing judge had erred by failing to take into account that a custodial sentence was likely to be more onerous for the applicant by reason of his mental health. While the majority (Campbell and Weinstein JJ) did not find error in that regard, Beech-Jones CJ at CL said:

[2]   In relation to ground 2, I agree that, in his otherwise careful remarks on sentence, the sentencing judge did not expressly address the contention that the applicant’s conditions in custody are likely to be rendered more onerous by reason of his mental illness. The contention was made in clear terms and was supported by evidence (see [69]).

[3]   Some precision is required in identifying the reason why the absence of any reference to this matter in the remarks on sentence might vitiate the sentencing exercise. If the complaint is that the relevant error is the failure to address the submission, then I am doubtful that that amounts to a failure to take into account a material consideration as referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. There is nothing in the relevant legislative regime that makes every component of a party’s submission a matter a sentencing judge is, per se, obliged to take into account. Instead, in a case where a contention supported by evidence such as this is not expressly referred to in the sentencing remarks it may mean that the submission was not addressed, or it was addressed but not included in the judgment. Either of those possibilities may or may not yield an error, being either a failure to comply with the judge’s “paramount judicial duty” to consider a party’s case (Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [62]‑[63]; Baker v David [2015] NSWCA 235 at [24]) or, if it was considered, the judge’s duty to provide reasons for the rejection of the argument (Baker v David). However, both of those possibilities must be approached on the basis that “a judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon at [62] per Gleeson CJ, McHugh and Gummow JJ). Ultimately, these matters are approached by considering, inter alia, the clarity with which the argument was raised and the significance of the point to the party’s overall case (see for example Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [121]).

[3]   It is unnecessary to consider this further because the absence of any express reference to the submission in his Honour’s remarks and the absence of any reference by his Honour to the applicant’s likely experience in custody, especially in light of what was accepted concerning his medical condition, yields a conclusion that his Honour failed to take into account a material consideration for the purposes of House v King.

37. A similar view had been reached in Masters v R at [22], [24]-[26] and WM v R at [67]-[68], where it was held that when a submission is clearly made to a sentencing judge that an offender’s moral culpability ought to be reduced by reason of mental health issues and there is evidence of a connection between those issues and the offending, it is an error for a sentencing judge not to deal with the submission. As Lonergan J (Simpson AJA and Dhanji J agreeing) said in DB v R at [59]:

Consistently with De La Rosa and Aslan [Aslan v R [2014] NSWCCA 114] there is of course no assumption that taking the applicant’s mental health condition into account necessarily will affect moral culpability, but it still needed to be considered in a way consistent with the available evidence and principle and it appears that it was not.

38. In Lee, Basten JA and McCallum J (Davies J agreeing) said:

[24]   While the obligation to give reasons “is a normal but not a universal incident” of the judicial function, more importantly it is variable in its content. Further, if reasons are inadequate according to the legal standard, there will have been a failure to exercise properly the judicial function. As was said in a civil case:

“When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.”

[25]   In the criminal context, on an appeal from a trial conducted by a judge alone, Douglass v The Queen, the High Court referred with approval to the explanation given by Doyle CJ in R v Keyte as to why a judge is required to give reasons for a verdict following trial:

“These included that in the absence of reasons, the appellate court is unable to determine whether the judge has correctly applied the relevant rules of law. In this case, the failure to record any finding respecting the appellant’s evidence left as one possibility that the judge simply preferred [the complainant’s] evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error.”

[26]   Two propositions may be derived from this reasoning. First, the failure to give proper reasons is an error of law. Secondly, the reasons must be adequate to demonstrate the absence of a real “possibility” that the judge failed to apply correct legal principle. In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied.

(citations omitted, emphasis added)

39. The sentencing judge found the non-exculpatory duress based on believing the applicant’s evidence and not for any reason connected with his mental health issues. The reduction in moral culpability accorded for the non-exculpatory duress was said clearly to be related to that acceptance of the applicant’s evidence.

40. General statements that the matters in s 16A(2) and the account in the psychologist’s report in respect of his mental health had been taken into account did not deal with the applicant’s submission concerning a reduction in his moral culpability of those mental health issues. Regard must be had to what was said by Button J (Davies and Sweeney JJ agreeing) in Whipp v R [2024] NSWCCA 79 at [61]:

Finally, in considering more broadly the forensic context of this ground, I do not believe that sentencing has devolved to the point where a sentencing judge is required to deal ritualistically, by way of a “tick a box” process or rote recitation, with every single written and oral submission — without discrimination as to its significance or triviality — made on behalf of an offender or the Crown, for fear of an appeal by one party or the other. That would be a victory of form over substance. It would also be an intellectual debasement of what should be a process of considered reflection. It would also impose an intolerable, unworkable burden on sentencing judges. That would be especially so in the District Court, bearing in mind its combination of extreme busyness with error-based appeals from that court in criminal matters.

However, s 16A(2)(m) was a mandatory consideration where there was evidence of an offender’s mental health issues.

41. In the present matter, a clear submission was made both in writing and orally, on the basis of a thorough psychological report, backed up by other evidence of the applicant’s mental health at the time of the offending. In my opinion, the sentencing judge in an otherwise very thorough judgment appears to have overlooked the submission that was made and the evidence which amply supported the submission.

42. The ground of appeal was in two parts. It first complained of the failure to deal with the reduction of moral culpability by reason of the mental health issues. That aspect of the ground is made out. It otherwise complained that the sentencing judge did not deal with other issues arising from the mental health problems such as a reduction in the weight to be given to specific and general deterrence, and to the fact that custody would be more onerous for the applicant. Those matters were never put to the sentencing judge, and there can be no criticism of her Honour for saying nothing about them. Indeed, as to general deterrence, senior counsel for the applicant submitted (referring to Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365):

In [49] it remains for your Honour to determine what weight will be given to the evidence having relation to the form and duration of the offender’s conduct, the nature of the threats, consideration of opportunities to report the matter for example to the authorities and the Court identified at para [50] what it said was a policy consideration which is why general deterrence still has a very substantial role to play on sentence and that is because it’s a relatively frequent matter that people are groomed and pressured into offences of this kind.

So you don’t lose sight of general deterrence in the sentencing process and I’m not going to urge upon your Honour that you would. In any serious drug matter general deterrence is going to be a feature of the sentencing exercise…

43. In my opinion, this ground is made out in respect of the part of it dealing with reduction in moral culpability only.

Resentence

44. From my own examination of the evidence, subject to what follows, I would not differ from the findings made by the sentencing judge (set out at [21] above).

45. Although general deterrence is a significant consideration in drug importation offences, the amount of weight to be given to general deterrence in the present case should be reduced by reason of the applicant’s mental health conditions at the time of the offending. Further, although specific deterrence is also of significance in this type of offending, the applicant was otherwise of good character and the findings in relation to remorse, rehabilitation and the likelihood of reoffending make specific deterrence of less significance.

46. The report of Dr Ram makes clear that there is a direct nexus between the applicant’s mental health and his engagement in the offending. Dr Ram explains how that derives from his fragile self-concept and his inability to compete adequately with his high-achieving sister. This lack of self esteem and his motivation to succeed appears to have contributed to his initial involvement in the offending to make money. I would allow a further modest reduction in his moral culpability for the offending by reason of this nexus.

47. Evidence received on the usual basis shows that the applicant has used his time in custody profitably. He has undertaken a number of courses and has most recently been in a select group of prisoners involved in the Defence Community Dog Program which is run out of Bathurst Correctional Centre.

48. The evidence discloses that the applicant is having ongoing problems with his shoulder which dislocates from time to time. His movements are restricted, he has pain, and he has been told he will require shoulder reconstruction surgery, although that will not take place until he is released from custody. That makes custody more onerous.

49. Despite the applicant’s very favourable subjective case, he engaged in serious offending initially for financial reward, and a very significant amount of drugs was involved.

50. In my view the undiscounted sentence for sequence 4 should be 12 years’ imprisonment resulting in an indicative sentence for that offence of 9 years’ imprisonment. The undiscounted starting point for sequence 5 should be 4 years’ imprisonment leading to an indicative sentence of 3 years’ imprisonment. There should be a measure of notional accumulation resulting in an aggregate sentence of imprisonment for 10 years commencing 11 March 2021 and expiring 10 March 2031 with a non-parole period of 6 years expiring 10 March 2027.

Conclusion

51. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed in the District Court on 25 November 2022.

4. In lieu sentence the applicant to imprisonment for 10 years commencing 11 March 2021 and expiring 10 March 2031 with a non-parole period of 6 years expiring 10 March 2027.

52. N ADAMS J:   I have had the advantage of reading the reasons of both Davies J and R A Hulme AJ in draft. The determination of this appeal turns on the narrow question of whether two submissions made by the applicant to the sentencing judge concerning the relevance of his mental condition at the time of the offending were made in the alternative addressed at the same finding, or whether they comprised two separate submissions requiring separate findings. Davies J has concluded that they were made as separate submissions warranting separate consideration. He would allow the appeal. R A Hulme AJ, on the other hand, has concluded that the submissions were made in the alternative such that a finding on the first of them rendered it unnecessary to address the second. He would dismiss the appeal. Having carefully considered the relevant expert evidence and submissions, I ultimately agree with the orders proposed by Davies J.

53. The expert evidence regarding the applicant’s mental health was contained in the report of Dr Kala Ram dated 6 March 2022. For the purposes of considering the ground of appeal, the parts of Dr Ram’s report concerned with the applicant’s mental health issues which arose following his arrest are not relevant.

54. I do not propose to set out the expert evidence regarding the applicant’s condition at the time of the offending; Davies J has summarised that evidence at [11]-[18] and R A Hulme AJ has summarised it at [73]-[78]. As for the relevant submissions on this issue, they are set out in Davies J’s reasons at [19]-[20] and those of R A Hulme AJ at [80]-[83]. I note that in addition to conferring with the applicant, Dr Ram relied on information provided to him by the applicant’s partner and parents and noted that the applicant had consulted with his general practitioner for a mental health care plan shortly before his arrest. Although the applicant was cross-examined, the only aspects of his account provided to Dr Ram which were challenged concerned the issue of non-exculpatory duress.

55. Dr Ram’s report provided two bases to make a finding of reduced moral culpability. First, the expert evidence supported a finding that the applicant’s mental health condition at the time of the offending was relevant to the mitigating factor of non-exculpatory duress (“the primary submission”). Secondly, Dr Ram’s opinion was that the applicant’s mental health condition was also relevant on the question of his offending generally such as to reduce his moral culpability (“the second submission”).

56. The sentencing judge accepted the primary submission concerning non-exculpatory duress and made a finding that this “will have a significant reduction on his moral culpability”. The issue in dispute is whether having made that finding, her Honour was required to also address the applicant’s second submission regarding moral culpability. To some extent this question turns on the clarity with which the second submission was put to the sentencing judge as a separate submission.

57. Having considered the terms in which the second submission was put to the sentencing judge, I am respectfully unable to accept Davies J’s categorisation of it (at [41]) as being put “clearly”. The applicant submitted in writing that the connection between the applicant’s mental condition and the offending was “particularly in the context of fears” the applicant had (which could only have been relevant to duress). It was further submitted that this evidence serves to “somewhat” reduce the applicant’s culpability. As for the oral submissions on this issue, senior counsel appearing on sentence conceded that he did not want to “overstate” the evidence but went on to note a nexus between the applicant’s mental conditions and the offending behaviour “that in conjunction with the duress evidence will have an impact on moral culpability” (emphasis added).

58. As Davies J has observed at [32], neither the Crown written submissions in reply nor oral submissions at the proceedings on sentence addressed the applicant’s “second” submission at all. On one view, this lends support to the conclusion that the “second” submission was not put clearly. The fact that the sentencing judge did not engage with the second submission during the proceedings on sentence nor in her Honour’s otherwise careful and detailed reasons lends further support to such a conclusion.

59. I accept the Crown submission that the focus of the proceedings on sentence was on the mitigating factor of non-exculpatory duress and that the applicant’s mental condition was not one of obvious importance other than as being relevant to that issue. Despite this, the fact remains that when the relevant portion of the applicant’s written and oral submissions are extracted and emphasised, as they have been in this appeal, a separate stand-alone submission can be identified which was not addressed by the sentencing judge.

60. Both Davies J and R A Hulme AJ have noted the observations of Beech-Jones CJ at CL in Ney v R [2023] NSWCCA 252 at [3]. It is to be accepted that a sentencing judge is not required to address every submission made addressing a relevant sentencing factor, but they are nonetheless required to address every relevant sentencing factor relied upon by an offender. It is pertinent to note that in Ney v R, Beech-Jones CJ at CL upheld the ground of appeal that the sentencing judge had failed to make express reference to a submission that the offender in that case would experience more onerous conditions in custody due to his mental illness.

61. I am not satisfied that the primary and second submissions concerning the relevance of the applicant’s mental condition at the time of the offending were made in the alternative or otherwise effectively comprised two ways of making the same submission. By way of analogy, it is not uncommon for offenders to seek a reduction in moral culpability on both De La Rosa principles ^[1] and Bugmy principles ^[2] . Although in some cases the relevant factors may be so entwined that there will be no error in failing to make separate findings, ^[3] in most cases a finding that, for example, Bugmy factors warrant a finding of reduced moral culpability, does not absolve the sentencing judge from addressing the De La Rosa factors even though both factors potentially lead to a reduction in moral culpability.

    1. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

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

    3. See for example Craft v R [2021] NSWCCA 131 at [50].

62. Similarly, the fact that the applicant submitted that there were two bases upon which moral culpability could be reduced in the present matter does not mean that one of them could be ignored if the other was found to be present. To so state does not mean that the sentencing judge was required to further reduce the finding of moral culpability based on the second submission, only that her Honour was required to address that second submission.

63. As for the second complaint made under the sole ground of appeal, (that the sentencing judge failed to have regard to the relevant sentencing principles in De La Rosa), I agree with Davies J that none of the complaints now made were ever put to the sentencing judge. There can be no criticism for failing to address a submission that was never put to her Honour.

64. For these reasons, I agree with the orders proposed by Davies J.

65. R A HULME AJ:   I am grateful for the summary of the evidence and submissions provided in the judgment of Davies J. I regret that I have come to a different conclusion.

Circumstances of the offence and the duress

66. It is first necessary to say more about the circumstances of the offence, including the non-exculpatory duress to which the applicant was subjected and his mental health condition.

67. The applicant’s evidence, which was accepted by the sentencing judge, was that he met a man he only knew as Alex in 2019. Alex expressed an interest in the applicant’s qualifications and experience with a view to the applicant doing some work for him. The first task he carried out for Alex was to provide a report about a proposed boat mooring near St Kilda, Victoria for which he was paid $3500. This was in about mid-2019 and involved no illegality.

68. Alex later contacted the applicant and offered him a task of taking a boat out to sea to deliver a bag of money to a ship. At this point the applicant became suspicious that Alex may have been up to something illegal. Initially he did not want to have anything to do with it but by around early 2020 he was beginning to experience financial difficulties coinciding with the onset of the pandemic.

69. Further discussions took place about the proposal including that the applicant might be paid up to $50,000 to carry out the task. The applicant’s source of income through work had dried up and he had recently purchased a house with associated financial commitments. Around middle to late 2020 he agreed to do the job. Alex told him that he had arranged for a boat to be used which would be purchased in the applicant’s name. The applicant said he became “quite scared”, wondering how Alex had obtained his personal details, such as his address and licence details. He said, “I was starting to think that I was getting in way over my head and that, you know, starting to get a bit scared of what was happening”. He decided he would perform this one task and then have no further involvement.

70. As the time approached the applicant travelled from his home in South Australia to Sydney in preparation. Alex arranged for him to be placed in phone contact with two other people who informed him that there had been a mistake or misunderstanding; now the task was to go out to sea in the boat and bring something back. The applicant had thought that the original proposal of delivering money was “a lesser crime” and he now refused to be involved. He commenced driving back to South Australia.

66. The applicant started to receive messages with photographs recently taken in South Australia of his parent’s house as well as one of his partner out walking their dog. One message said, “Accidents can happen at any point to those we care about and doing what we’re asking you to do would be a great way for you to avoid accidents happening to those you care about”.

67. The applicant said he “just froze”. He considered continuing to drive home but then thought the next photograph might be of his dog dead or his mother tied to a chair with a gun to her head. He was “petrified”. He sent a reply, “Fine, I’ll do it just don’t hurt anyone like, don’t hurt those I care about and I’ll do it”.

The applicant’s mental condition

73. Dr Ram, the author of the psychological report, was told by the applicant that he experienced depressive symptomatology following the breakdown of a previous relationship when his former partner started dating his best friend. He said he was “mono-emotional” and told Dr Ram “I don’t feel much. I’ve gone with it.” He said his emotions stayed the same most of the time, “not sad and not happy, just very neutral. … I had a good childhood, I had no reason not to be happy”. He also reported fleeting suicidal ideation from time to time but denied any previous attempts.

74. Despite this prior symptomatology, there is no description of anything adverse occurring in the applicant’s prior life because of it. He had no issues with alcohol or drug abuse and had led a productive life with an ambition to “always strive to be the best at whatever I did”. He completed an apprenticeship in boilermaker welding which he had commenced while in Year 12 and completed a year earlier than scheduled. He then attained trade qualifications in commercial diving and underwater welding which involved working “for international companies offshore which took him to countries all over the world”. When the remuneration in that field diminished, he obtained qualifications in a different trade and then worked at various sites in Western Australia and South Australia. The onset of the COVID-19 pandemic brought a significant disruption to this, particularly with the restriction on travel to and from Western Australia where much of the work was available.

75. The history obtained by Dr Ram included the following:

Following his arrest in March 2021 and the days over which the offence/s took place, Mr Hurkmans reported experiencing symptoms consistent with trauma including flashbacks, nightmares and severe anxiety, as well as uncontrollable thoughts about the offence/s. He also advised that he has significant difficulties sleeping.

76. Dr Ram administered the Depression Anxiety Stress Scale during her consultation with the applicant on 18 February 2022. It revealed him to be in the “extremely severe” range for depression, “normal” for anxiety and “moderate” for stress. She said:

At the time of consultation with Mr Hurkmans, he reported experiencing stress and depressive symptoms related to his upcoming court hearing. Additionally, Mr Hurkmans described experiencing depressive symptomatology, including anhedonia, over the past few years for most his life [sic].

77. The applicant’s partner told Dr Ram that the applicant had “struggled with his mental health and advised that at the end of 2020 he consulted his General Practitioner for a Mental Health Care Plan (MHCP) in order to engage in psychological treatment”. He was arrested before this could occur. This coincided with the period in which the applicant had agreed to carry out the proposed task of delivering a bag of money to a ship at sea with a boat purchased in his name.

78. Dr Ram’s report concluded as follows:

Mr Hurkmans reported no formal history of major mental illness and has never taken prescribed medication. He describes, however, experiencing a low mood and general feeling of being down as well as apathy and anhedonia, both in childhood and as an adult. In addition, despite his achievements, Mr Hurkmans appears to suffer from low self-esteem and an overall feeling of inadequacy. This is consistent with PAI results and his partner's reports. His depressive symptomology is consistent with a continuous long-term (chronic) form of depression. Reports from family members and DASS results support same.

Mr Hurkmans' presentation is also consistent with undiagnosed Other Specific Trauma-and-Stress Related Disorder. Mr Hurkmans described experiencing significant distress at the time of his offending. This is supported by collateral information which suggests that Mr Hurkmans obtained a MHCP to seek psychological assistance around the initial set up of the offending misconduct (i.e.,when the boat was purchased in his name). This denotes that Mr Hurkmans was experiencing some cognitive dissonance and/or psychosocial stressor/s at this time. Additionally, Mr Hurkmans described extreme fear and panic at the time his family was threatened and reported experiencing ongoing symptoms consistent with trauma, including flashbacks, nightmares and severe anxiety as well as uncontrollable thoughts about the offence/s. Holistic and collateral information suggest that during the commission of the index offence (and currently), Mr Hurkmans satisfies the DSM-5 diagnostic criteria for:

300.4 (F34.1) Persistent Depressive Disorder (Dysthymia)

309.89 (F43.8) Other Specific Trauma-and-Stress Related Disorder

This assessment has indicated that Mr Hurkmans identity and self-esteem is related to a motivation to succeed as reflected by income and financial stability. While Mr Hurkmans discloses that his motivation to engage in the offending misconduct was initially related to deriving money to support himself during a time where he was not able to work due to the COVID pandemic, he reports (and there are grounds to accept) that his motivation subsequently changed to fear and a need to protect his family from harm. From this standpoint it appears that there is a direct nexus between Mr Hurkman's mental health/trauma-and-stress symptoms and his engagement in the index offence.

Mr Hurkmans' reported attempts to withdraw from the (criminal) task, coupled with the subsequent trauma symptoms (i.e., recurrent distressing memories and dreams, intrusive thoughts of what occurred, problems with concentration, and sleep disturbance) he endured thereafter, suggest genuine contrition for his actions. He accepts responsibility for his actions and has detailed sound insight into the impact his choices potentially had on society. Upon reflection, he identifies what he should and could have done in retrospect.

Protective factors identified during this assessment include: Mr Hurkman's strong support of his partner and family; stable accommodation; prosocial attitudes, friends and family; the absence of any acute clinical psychopathology; the willingness to engage in psychotherapy (as evidenced by obtaining a MHCP and his results on the PAI); the absence of any current drug or alcohol problems; plans to undertake further study and pursue a different (meaningful) career; no criminal history; accountability taken; genuine contrition and realistic direction for his future. The aforementioned factors, along with the LSI-R, support a positive prognosis and thus reduced risk of recidivism.

(emphasis added)

Consideration

79. In summary, the applicant was shown to have experienced depressive symptomatology in his life prior to the events leading to his offending but there is no description of this having any significant detrimental effect. It appears to be more the events directly associated with the offending and their impact upon the applicant that supported Dr Ram’s finding that he met the diagnostic criteria for the two disorders she identified and explains her opinion of there being a “direct nexus between Mr Hurkmans mental health/trauma-and-stress symptoms and his engagement in the index offence”. This is the context in which the case sought to be made for the applicant on sentence needs to be understood.

80. In written submissions prepared prior to the sentence hearing, Mr Buchen SC contended (at [19]):

Both the attempted withdrawal from the crime and the circumstances of non-exculpatory duress will be the subject of evidence. They operate to substantially reduce the offender’s culpability.

(emphasis added)

81. The submission continued with a reference to Cherdchoochatri v R [2013] NSWCCA 118 in which Simpson J said (at [38]) that non-exculpatory duress was “capable, if accepted, of impacting significantly on the assessment of the applicant’s moral culpability”. [Emphasis added]

82. In a later passage in the written submissions under the heading “Mental condition” (which is quoted in the judgment of Davies J at [19] above) there was reference to aspects of Dr Ram’s report, including that the applicant met the diagnostic criteria for persistent depressive disorder and trauma and stress related disorder at the time of the offending. It was then submitted, “This evidence serves to somewhat reduce the offender’s culpability”. [Emphasis added]

83. The oral submissions made before the sentencing judge have also been quoted by Davies J (at [20]) but for convenience will be repeated. (This is the entirety of what was said about the applicant’s mental condition, whereas the submissions on the issue of duress proceed over many pages of transcript.)

Under the heading, Mental Condition, I’ve referred to what Dr Ram has opined [in] her report about a connection between depression, trauma and stress disorder and the circumstances in which he came to be involved in the offending.

One way of looking at that connection in a way is that if he was under pressure like duress then those types of mental states means (sic) that he is going to be less equipped than others might be in terms of a robust response. I don’t want to overstate this evidence but it does have an impact given that the psychologist has opined that there is a connection, a nexus between his mental conditions and the offending behaviour, that in conjunction with the duress evidence will have an impact on his moral culpability, in my submission.

84. These submissions indicate that senior counsel for the applicant was seeking to persuade the judge to find reduced moral culpability and in doing so he relied upon two matters: duress and the applicant’s mental condition. Primary reliance was placed upon the first of those matters gauging by the extent to which the two issues were addressed as well as the nature of the finding sought. In the written submissions a “substantial” reduction of moral culpability was sought while the applicant’s mental condition was said to “somewhat” reduce moral culpability.

85. Having regard to those submissions it is notable that upon finding in the applicant’s favour on the primary issue her Honour concluded there would be a “significant reduction” in moral culpability (and objective seriousness of the offences). Later in her sentencing remarks her Honour referred to having “already found this [a reference to the duress] substantially reduces his moral culpability and objective seriousness”.

86. Having accepted that the findings as to reduced moral culpability (and objective seriousness) sought by senior counsel for the applicant should be made, it was unsurprising that her Honour did not also refer to his reliance upon his mental condition. She had made the finding he had sought in any event. Moreover, the applicant’s mental condition that was pre-existing (that is, not arising from his involvement in the offending conduct) was not to an extent that could, independently of the duress, have warranted any further diminution of moral culpability beyond “significant” or “substantial”.

87. It was submitted in this Court that it was insufficient for the judge to have stated later in her remarks that she had “also taken into account the psychologist’s report in respect of the offender’s mental health”. It was submitted that it was necessary for the judge to make findings on the subject. I respectfully do not accept this contention where the applicant’s mental condition was not a prominent feature in the sentence hearing and there was no controversy about it. There were no competing cases for her Honour to make a decision about. The submissions on behalf of the applicant were brief and the Crown made no submissions on the subject at all. In these circumstances, and having made the finding as to moral culpability in precisely the terms sought by the applicant, it was unnecessary for the judge to refer to the evidence concerning the mental condition anymore than she did and it was sufficient to indicate that she accepted it. For these reasons the cases of Masters v R [2019] NSWCCA 233 and YM v R [2023] NSWCCA 75 are distinguishable.

88. There was no error in the exercise of the sentencing discretion by the failure to take into account a material consideration. As Beech-Jones CJ at CL observed in Ney v R [2023] NSWCCA 252 at [3] with reliance upon Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [62], judges are “not required to mention every fact or argument relied upon by a losing party as relevant to an issue”. The present applicant could not even be characterised as a “losing party”. He sought a finding about reduced moral culpability. He provided the judge with two reasons to support the finding. The judge was persuaded the finding should be made based upon the primary reason. Having done so, the secondary reason was no longer material.

89. I agree with Davies J (at [42]) that the second part of the way the ground of appeal was argued should be rejected.

90. Leave to appeal should be granted but the appeal should be dismissed.

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Endnotes

Decision last updated: 12 July 2024