Lunn-Reid v The Queen

[2018] NSWCCA 110

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Lunn-Reid v R [2018] NSWCCA 110
Hearing dates:	27 April 2018
Decision date:	08 June 2018
Before:	Hoeben CJ at CL at [1] Rothman J at [2] Button J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal allowed with regard to the sentence for wounding with intent to cause grievous bodily harm imposed by Judge McLoughlin on 18 August 2016. (3) That sentence is quashed. (4) With regard to that offence, the applicant is sentenced to a non-parole period of four years, eleven months and nine days to commence on 17 June 2017 and expire on 25 May 2022. That will be followed by a parole period of three years, four months and 21 days, to commence on 26 May 2022 and to expire on 16 October 2025. (5) The first date upon which the applicant is eligible for possible release on parole is 25 May 2022.
Catchwords:	CRIMINAL LAW – appeal against sentence – asserted error in applying discounts for pleas of guilty – asserted failure to give effect to finding of special circumstances due to cumulation – ratio between the non-parole period and total head sentence beyond the “statutory ratio” of 75% – appeal upheld – countervailing considerations on re-sentence regarding violent schizophrenic applicant
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Engert (1995) 84 A Crim R 67 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104 Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465
Category:	Principal judgment
Parties:	Jesse John Lunn-Reid (Applicant) Regina
Representation:	Counsel: C Wasley (Applicant) B Baker (Crown)   Solicitors: Archbold Legal (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2013/46830
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 18 August 2016 Before: McLoughlin DCJ File Number(s): 2013/46830

Judgment

1. HOEBEN CJ AT CL:  I agree with Button J and the orders which he proposes.

2. ROTHMAN J: I agree with the orders proposed by Button J and with his Honour’s reasons.

3. BUTTON J:

Introduction

4. This is an application for leave to appeal with regard to two sentences imposed upon Jesse John Lunn-Reid (the applicant) by Judge McLoughlin (the sentencing judge) on 18 August 2016 in the District Court at Sydney.

5. The two grounds relied upon are as follows:

Ground 1: The sentencing judge erred in his application of discounts for the pleas of guilty.

Ground 2: The sentencing judge erred by failing to give effect to his finding of special circumstances.

6. Because of the way in which the second ground was argued, it is necessary to set out briefly the criminal and custodial context in which the sentencing judge proceeded. A diagram annexed to this judgment seeks to set out the following conspectus in readily comprehensible form. Because of the “cascading” sentence structure, I shall discuss the offences in the order in which their sentences were imposed, rather than in chronological order of the commission of the offences.

Offence of 24 October 2011

7. The following is largely derived from the remarks on sentence of the late Judge Toner SC of 7 August 2013.

8. On that day, the applicant was sentenced for one count of recklessly causing grievous bodily harm in company. Judge Toner recorded that the maximum penalty for the offence was fourteen years, and the standard non-parole period was five years.

9. In a nutshell, on 24 October 2011 at Nambucca Heads, the applicant and a confederate arrived at the home of a young couple who were known to them. The applicant was armed with a timber axe handle, and was attempting to disguise himself by way of a jumper over his head. The other man was also wearing a hooded jumper, and was carrying a metal baseball bat. The two offenders rushed past the female occupant with their weapons raised.

10. The applicant and the other offender entered the home and attacked the defenceless male victim. The applicant struck the male victim with the axe handle to the side of the face, with sufficient force to knock him unconscious.

11. When the female entered the home, the applicant held the axe handle a few inches from her face and said, in an aggressive voice, “You didn’t see anything”. The applicant and the other offender departed. Later, the applicant sought to establish a false alibi.

12. The victim suffered multiple fractures to the left side of his face, eye socket, and nose. Numerous plates and rods were inserted during surgery. Notably, he lost the sight in his left eye. Inevitably, he suffered psychologically as a result of his physical injuries.

13. The victim informed police that, in the period leading up to the attack, the applicant had accused the victim of providing information to police, and had threatened him with violence.

14. His Honour remarked that “the attack was brutal and the injuries were very substantial”.

15. Subjectively, his Honour allowed a discount of 15% for the utilitarian value of the plea of guilty.

16. As at the date of sentence, the applicant was 23 years of age. Although he had never been incarcerated previously, his criminal record already contained two counts of common assault, and one count of assault occasioning actual bodily harm.

17. Prior to his arrest, the applicant had been residing at Benelong Haven, a well-known drug and alcohol rehabilitation centre, though not continuously.

18. Judge Toner referred to the “principal focus” of the defence case on sentence; namely, that the applicant was suffering from schizophrenia. A forensic psychiatrist expressed the opinion that, at the time of the commission of the offence, the applicant “was on the balance of probability acutely psychotic”. Judge Toner referred to the schizophrenia of the applicant having made his late adolescence and early adulthood “terrible for him and also terrible for those who are doing their best to support him” (remarks on sentence (ROS) page 11).

19. Judge Toner came to the view that the applicant was not a proper vehicle for demonstrating general deterrence. On the other hand, his Honour referred to the need to reflect carefully upon the future dangerousness of the applicant.

20. Judge Toner found special circumstances. A non-parole period of two years to commence on 24 March 2012 and to expire on 23 March 2014 was imposed, with a parole period of three years, to expire on 23 March 2017. To express that more simply, Judge Toner imposed a head sentence of five years with a non-parole period of two years. The sentence was backdated, in accordance with a concession by the Crown, to commence on 24 March 2012, in order to reflect various periods of custody or quasi-custody.

Offence of 8 November 2011

21. The following is largely based on the remarks on sentence of Judge Maiden of 25 March 2014.

22. The applicant pleaded guilty to one count of recklessly causing grievous bodily harm to a male person. He was accorded a 15% discount on his sentence for the utilitarian value of that plea of guilty.

23. Again, Judge Maiden recorded the maximum penalty of imprisonment as being 14 years, and noted that there was a standard non-parole period of five years.

24. Objectively, on 8 November 2011 the applicant absconded from the mental health section of Coffs Harbour Hospital, where he was being involuntarily detained as a patient. He made his way to Newcastle, and contacted his father. The two of them travelled to a home with the intention of confronting the male victim. The father of the applicant assaulted the victim, and threatened him with death. The victim was hit to the forehead with a glass bottle by the father of the applicant, causing injury, and also suffered a number of stab wounds to his shoulder, his back, and the side of his torso.

25. The applicant involved himself by obtaining a wooden paling from a fence, and using it to hit the victim. It split in two, and the applicant attempted to use a sharp point of it to injure the victim to the groin. The wounds inflicted by the applicant by way of the paling upon the victim resulted in the victim spending eleven days in hospital. The use of the paling caused, amongst other wounds, penetrating wounds to the lungs of the victim.

26. The motivation for the offence was seemingly a combination of the belief on the part of the applicant that he had been sexually assaulted by the victim when he was a child, along with the belief that the victim had had sex with the mother of the applicant, the wife of the co-offender.

27. Subjectively, Judge Maiden recorded that the applicant, whilst speaking to police prior to his apprehension, spoke of the victim as “that bloke I’ve been dreaming about”, and of having “got a bit of justice, I have sorted the problem out”.

28. Again, the judge referred at length to the psychiatric history of the applicant. Judge Maiden noted the opinion of Dr Westmore, forensic psychiatrist, that the applicant was psychotic at the time of the offending, although the applicant had not claimed that he had been responding to auditory hallucinations. Dr Westmore also spoke of the applicant having provided a history of smoking cannabis and consuming a large amount of beer before the commission of the offence.

29. Dr Steele, a forensic psychiatrist qualified by the Crown, tended to the view that the applicant was not guilty on the grounds of mental illness at the time of the offence, on the basis that he did not appreciate that what he was doing was morally wrong.

30. Both psychiatrists, along with a forensic psychologist, took the view that the chances of rehabilitation of the applicant were greatly improved if he were able to abstain from drugs and alcohol.

31. With regard to deterrence, Judge Maiden said (ROS page 7):

“In respect of the question of general deterrence, this is again a case because of the medical history that does not require specific deterrence and it would be wrong to use the sentence of this offender as one which could be used as an example to others in the community.”

32. Judge Maiden went on to remark that it was obvious that the applicant needed to take his prescribed medication, and to refrain from alcohol and drugs.

33. His Honour had no difficulty in finding special circumstances, and referred to the fact that the applicant would serve any sentence in protection.

34. In the event, his Honour imposed a non-parole period of two years with a parole period of two years three months, to date from 24 December 2013. To express that another way, the sentence was a head sentence of four years three months with a non-parole period of two years.

35. As the diagram shows, the sentence imposed by Judge Maiden commenced one year and nine months after the sentence imposed by Judge Toner.

Offence of 10 April 2015

36. On 7 October 2015, Magistrate Huntsman sentenced the applicant for an offence of affray. That is an offence that carries a maximum penalty of imprisonment of ten years, and no standard non-parole period. The proceedings on sentence and remarks on sentence pertaining to that offence are not part of the appeal papers, although there is a warrant of conviction and the facts sheet, from which the following is derived.

37. On Friday 10 April 2015, the victim, an inmate of Goulburn Correctional Centre, was walking across a compound within the gaol when another inmate approached him and punched him to the left side of his face. That caused the victim to fall to the ground, where he remained unconscious. The applicant and a co-offender then continued the attack on the victim. The applicant spat on the victim, and kicked him in the face several times. The co-accused inflicted further violence on the victim. The applicant and co-accused then dragged the victim to a gate, demanding that prison officers “Get him out of here”. The victim suffered a number of lacerations, bruising and swelling.

38. Magistrate Huntsman imposed a head sentence of one year eight months with a non-parole period of one year four months, to commence on 2 December 2015. As can be seen from the diagram, that sentence commenced 21 days before the expiry of the non-parole period imposed by Judge Maiden. It also extended the “cumulative” non-parole period of the applicant from 23 December 2015 to 1 April 2017.

Offences of 14 February 2013

39. The following is derived from the remarks on sentence of Judge McLoughlin of 18 August 2016. It is the two sentences imposed by Judge McLoughlin on that occasion that are the subject matter of this appeal.

40. The applicant had pleaded guilty to two counts. The first was wounding with intent to cause grievous bodily harm, which carries a maximum penalty of imprisonment for 25 years and has a standard non-parole period of seven years. The second was assault occasioning actual bodily harm, which carries a maximum penalty of imprisonment for five years and has no standard non-parole period. I shall refer to the victim of the more serious offence simply as “the victim”, and to the victim of the second offence as “the victim’s sister”.

41. The background of the offending was as follows. The applicant commenced a romantic relationship with the victim in about 2008, when she was about 16 years of age, and he was no more than 19 years old. They had a child together, who was born in January 2011.

42. In 2012, the applicant was at a drug and alcohol rehabilitation centre, and the victim and their child lived with him there for some time. Whilst at the rehabilitation centre, the applicant became friends with a male member of staff.

43. In January 2013, the victim told the applicant that she wished to end their relationship. The applicant did not accept her decision. The following month, he travelled to Western Australia, and made threatening phone calls to the victim and her younger sister. He questioned the victim about an alleged sexual relationship with the male staff member. The applicant also telephoned the staff member and accused him of having had sexual intercourse with the victim, a proposition that the staff member denied.

44. On the afternoon of 13 February 2013, the offender telephoned the victim at home. When he asked why the staff member was at her home, the victim explained that she was minding his child whilst he was at an appointment. The applicant wished to know of the victim whether the staff member would be staying the night. In the event, the staff member did so, but slept in the bedroom of the victim’s sister.

45. The following morning, the victim was running a bath for her two year old child. She heard footsteps approaching the rear of the house. On turning, she saw the applicant running towards her, holding in his right hand a knife with a 15 centimetre blade. The applicant entered the home, and said “You haven’t been fucking him are you?” He proceeded to stab the victim repeatedly to the head, face, and throat. She suffered at least one defensive wound to her arm. When she fell to the ground and rolled over, she was stabbed at least once to the back. Of course, she was in great pain and terror.

46. The victim’s sister, aged 19 years at the time, was also present in the home. She saw the applicant approach the house and heard her sister screaming. She saw the applicant standing over the victim, swinging the knife at her, whilst the victim had her hands up in an effort to protect herself. The victim’s sister placed herself between the applicant and the victim, and yelled at him. The applicant swung the knife and cut the victim’s sister to the face. The sister fled the kitchen, calling out to the staff member who was in the bedroom as she did so.

47. The victim had taken the opportunity to flee the home, but she was pursued on foot by the applicant. Eventually she reached a building site where workmen were present. She turned to find the applicant behind her, about a metre away, and she saw that he was holding the knife upright in a stabbing position. Eventually, the workmen were able to persuade the applicant to drop the knife. Later, one of the workmen described the victim as being of slight build, no more than five foot four inches tall, and having “blood all over her”. After the applicant had dropped the knife, that workman heard him to say to the victim – who had collapsed on the ground – “I love you”.

48. The applicant took steps to flee, but was eventually apprehended by police.

49. Medical examination of the victim showed that she had a large number of lacerations caused by the knife, including two to her neck. Exploratory surgery was required. The victim spent four days in hospital. Photographs placed before us show the extent and the gravity of her wounds.

50. As for the victim’s sister, there was a small laceration to her face below her left eye.

51. A victim impact statement from the victim detailed the ongoing physical and psychological injuries that she had suffered. As for the former, they included scarring to her head, neck, arm, and back. As for the latter, entirely as one would expect, the consequences of the offending of the applicant were very profound. The same may be said of the psychological injuries inflicted upon the victim’s sister by the applicant.

Subjective features

52. The applicant pleaded guilty to both offences. As for the lesser, second count, his Honour remarked:

“As to the assault occasioning actual bodily harm, a conviction after trial would result in my view in a sentence of some three years and two months’ imprisonment. I take into account your plea of guilty and some evidence of contrition and reduce that to two years and eight months, something a little greater than 10%.” (ROS page 26)

(In fact the discount is approximately 15%).

53. As for the greater offence, Judge McLoughlin said:

“As to the count of wounding with intent to commit grievous bodily harm, in my view subsequent to trial you would have been sentenced to some nine years and four months’ imprisonment. I reduce that because of the plea of guilty as having some evidence of contrition and I accept that which Mr Evers [defence counsel] has put that the lateness of the plea had a lot to do with obtaining the appropriate psychiatric evidence.

I accept that in addition to some evidence of contrition that the pleas have public utility and I reduce that to a period of eight years and four months.” (ROS page 26)

(I interpolate that that is a discount of approximately 10%).

54. As one might expect, yet again much of the remarks on sentence of Judge McLoughlin was a discussion of the psychiatric illnesses of the applicant.

55. His Honour referred to the report of Dr Westmore to the effect that the applicant had suffered a schizophrenic illness since he was 15 years of age; that the applicant had had multiple and extended admissions to psychiatric hospitals; and that his opinion was that the use of prohibited drugs by the applicant exacerbated his psychiatric problems. The sentencing judge also recorded that Dr Westmore had ruled out the defence of mental illness with regard to the two offences under consideration.

56. A psychiatrist qualified by the Crown expressed the opinion that there was no doubt that the applicant suffered from chronic paranoid schizophrenic illness; that he possessed a genetic vulnerability in that regard; that childhood trauma would have exacerbated that vulnerability; and that habitual excessive use of cannabis would have played the same role. That psychiatrist also considered that the applicant had suffered from chronic auditory hallucinations.

57. Dr Allnutt, forensic psychiatrist, also provided reports and oral evidence. He recorded that the applicant had provided a history of auditory hallucinations in the period leading up to, and at the time of, the commission of the offences. (I interpolate that, in the proceedings on sentence, the Crown prosecutor submitted that that history should be rejected; that the offences were motivated by simple jealousy; and that the applicant showed no sign of being divorced from reality when he committed them). Dr Allnutt also spoke of paranoid schizophrenia, in all likelihood aggravated by substance abuse.

54. After having discussed the psychiatric evidence at length, the sentencing judge remarked:

“I am of the view that his underlying condition has contributed to some degree to the commission of the offences. I am not of the view that voices told him to do the crimes that he has committed. I am also of the view, bearing in mind the offender’s subsequent history, that untreated medically and psychiatrically he is a danger to the community, bearing in mind the offences to which he committed and for which Judge Toner sentenced him, these matters and a subsequent matter which occurred when he was in Goulburn prison, which I do not take into account in relation to any other aspect apart from his continual history of violence.” (ROS page 20-21)

59. Later in the remarks, his Honour went on to say:

“I accept that there was limited planning and that jealousy, and a belief in infidelity, played heavily on the offender’s mind.

I am satisfied that the offender was partially psychotic at the time of the offence and I come to this conclusion by accepting Dr Allnutt’s evidence, and the effect, as I have said, of him taking himself off medication and the amount of alcohol and drugs ingested in the journey to and from Perth, and the effect of seeing [the staff member]’s car.

This does not reduce the seriousness of the offence, nor minimise the offence, but renders the offender not in my view a proper vehicle for general and in part specific deterrence, and as I have said in relation to specific deterrence the offender is a threat to society when he is released if he is not treated and medicated.” (ROS page 23)

60. Judge McLoughlin proceeded to review the criminal record of the applicant, and noted that, even before the sentence of imprisonment imposed by Judge Toner, the applicant had been dealt with, by way of non-custodial options, for at least three offences of actual or threatened violence. His Honour also referred to the sentence imposed by Magistrate Huntsman, and confirmed that that offence had occurred at Goulburn Gaol, whilst the applicant was serving the sentence that had been imposed by Judge Maiden.

61. As for the wounding offence, his Honour said:

“I find special circumstances being a prospect of rehabilitation which because of the success of Benelong Haven and the need for a lengthy period of supervision to ensure adherence to medication and regular attendance on psychiatrists.”

62. In the event, for the assault occasioning actual bodily harm, Judge McLoughlin imposed a non-parole period of two years to commence on 17 April 2016 with an eight month parole period (in other words, a head sentence of two years eight months with a non-parole period of two years).

63. For the wounding offence, the sentencing judge imposed a non-parole period of five years eight months with a parole period of two years eight months, to commence on 17 June 2017 (in other words, a head sentence of eight years four months with a non-parole period of five years eight months).

Aspects of sentence structure

64. With regard to the lesser offence, his Honour spoke of a starting point of head sentence of three years two months, and ultimately imposed a head sentence of two years eight months. As I have said, it can be seen that the discount applied was 15.79%.

65. With regard to the wounding offence, however, the starting point head sentence adopted was nine years four months, and the head sentence ultimately imposed was eight years four months. As a matter of arithmetic, the sentencing judge must have applied a discount of 10.71% with regard to the greater offence.

66. Separately, as the diagram shows, the sentence for the assault occasioning actual bodily harm commences about four and a half months after the commencement of the sentence imposed by Magistrate Huntsman for the affray. The ratio between the non-parole period and the head sentence of this sentence is 75%.

67. The sentence for the wounding commences one year and two months after the commencement of the sentence for the assault occasioning actual bodily harm. The ratio between the non-parole period and the head sentence of this sentence is 68%.

68. The combined sentence imposed by Judge McLoughlin is nine years six months, with a non-parole period of six years ten months. The ratio between the combined non-parole period and the combined head sentence imposed by Judge McLoughlin is just under 72%.

69. However, when one considers the entirety of the continuous period of potential incarceration of the applicant; that is, a total head sentence of 13 years and almost seven months, from 24 March 2012 until 16 October 2025, with a total non-parole period of ten years and almost eleven months, expiring on 16 February 2023, one can see that the ratio between the “continuous” non-parole period and the “continuous” head sentence is over 80%.

Ground two

The sentencing judge erred by failing to give effect to his finding of special circumstances

70. In my opinion, it is convenient to discuss this ground first.

71. The submission for the applicant before us was as follows. At first instance, defence counsel explicitly invited the attention of the sentencing judge to the need to consider the two sentences to be imposed in the context of all preceding sentences. Defence counsel also spoke of the need to avoid the well-known phenomenon of full or partial accumulation of sentences leading to an unintended increase beyond the “statutory ratio” of 75% between the non-parole period and the head sentence (proceedings on sentence transcript 14.37).

72. And yet, it was said before us, although the ratio of the wounding sentence is 68%, the ratio within the two sentences imposed by the sentencing judge is 72%, thereby approaching the statutory ratio. And the ratio between the total non-parole period and the total head sentence is more than 80%, significantly beyond the statutory ratio.

73. The point was also made that, although the sentencing judge did indeed find special circumstances, his Honour gave no indication in the remarks on sentence that the latter result with regard to the total sentence was intended. It was submitted that the outcome must be seen as merely a mathematical oversight brought about by the effects of accumulation within a complex pre-existing sentence structure. That error, it was said, should be corrected by reduction in the non-parole period of the wounding sentence.

74. The first point made before us by the Crown in response was that the correct starting point for consideration of the total sentence is 14 February 2013 (that being the date upon which the applicant came into continuous custody), as opposed to 24 March 2012 (that being the date to which Judge Toner backdated his Honours sentence, bearing in mind broken periods of custody and quasi-custody before 14 February 2013). Having said that, it was accepted before us that there were “bits and pieces” of custody prior to 14 February 2013, along with periods during which the liberty of the applicant was substantially restricted by way of his residence at the rehabilitation centre.

75. More fundamentally, it was submitted that the sentencing judge was well aware of the pre-existing sentences – after all, they were referred to explicitly in the remarks on sentence – and one can infer that the commencement date of 17 April 2016 for the sentence for the aggravated assault was not arbitrarily or capriciously chosen.

76. The point was finally made that the result of the sentences imposed by the sentencing judge is a period on parole of two years eight months. Not only is that a significant period, it was said, it is also in the order of the parole periods imposed by Judge Toner and Judge Maiden.

77. In short, it was said that the resultant overall structure was not the product of inadvertence; quite apart from that, it was said that there is nothing inherently erroneous about that structure.

78. Turning to my determination of this ground, it is quite correct that the sentencing judge referred in his remarks on sentence to the sentences imposed by Judge Toner and Magistrate Huntsman. There is no reference, however, to the sentence imposed by Judge Maiden.

79. It is also correct that the sentence for the wounding features a significantly reduced ratio of 68%, and the “combined sentence” imposed by the sentencing judge features a somewhat reduced ratio of 72%.

80. I think it is tolerably clear, however, from the extract at [61] of this judgment, that his Honour found special circumstances upon which his Honour intended a reduction in the statutory ratio for subjective reasons that were nothing to do with the effects of cumulation.

81. And yet the accumulation of the longer of the two sentences upon the shorter imposed by the sentencing judge led to a ratio that was very close to the statutory ratio. And the position of the two new sentences within the pre-existing structure has led to a “total ratio” well beyond the statutory ratio.

82. Furthermore, that has occurred in the context of the sentencing judge referring at length to the compelling subjective features of the matter, the foremost of which was undoubtedly the schizophrenia of the applicant. It has also occurred in the context of the sentencing judge saying nothing to suggest that a total ratio well beyond the statutory ratio was intended, as opposed to an arithmetical consequence of accumulation.

83. On balance, I think that a slip occurred in the context of the imposition of sentences for two grave offences in the context of a complex pre-existing sentence structure for similarly grave offences. In other words, I respectfully think that the total ratio is the result of inadvertence, and is in that sense an error.

84. I would uphold this ground of appeal.

Ground one

The sentencing judge erred in his application of discounts for the pleas of guilty.

85. This ground had two bases.

86. The first basis was the different discounts provided with regard to the two sentences. As I have said, with regard to the aggravated assault, the discount was 15.79%, but with regard to the wounding, it was 10.71%. And yet, it was submitted, there was no basis for drawing such a distinction, in that there was no distinction in the time at which the pleas of guilty were entered, or the usefulness of those pleas. That unfounded differentiation was submitted to be an error calling for correction.

87. The second basis of the ground was the proposition that, clearly enough, contrition was taken into account with regard to the utilitarian discount; so much is clear from the extracts from the remarks on sentence. That was said not only to be an error of principle, but also to be an error that could have operated disadvantageously to the applicant, as follows. The discounts were unremarkable, and appropriately reflected only the utilitarian value of the pleas of guilty. Accordingly, it is possible that contrition, which should have found separate implicit reflection in the instinctive sentencing synthesis, got “lost in the mix”.

88. In short, on two bases it was said that the approach by the sentencing judge to the pleas of guilty constituted error calling for intervention.

89. Before us, the Crown conceded that two different discounts of 10.71% and 15.79% had been applied. It was also accepted that no reason had been given for that distinction in the remarks on sentence.

90. The point was made, however, that the intended discount was, one can infer, 10%, and therefore the discount of 15% was an unearned benefit to the applicant. Reasons were given as to why this Court would find that the lesser discount was indeed the appropriate, and intended, one.

91. As for the question of the seeming inclusion of contrition in the utilitarian discount, it was submitted that the evidence placed before his Honour with regard to the question of contrition fell well short of the strictures of section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That subsection is as follows:

21A Aggravating, mitigating and other factors in sentencing

…

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…

92. In short, I understood the position of the Crown to be that the differentiation in discounts was a slip that unduly favoured the applicant. Furthermore, whatever error occurred with regard to the components within the discount is neither here nor there, for the simple reason that the seemingly wrongly included component should never have been found to be established to the benefit of the applicant in the first place.

93. Turning to my determination, because error has already been established with regard to the second ground, and re-sentence will need to be considered as a result, I shall not pause to analyse this ground to any great degree. I propose to take all that has been said for and against it into account in the process of re-sentence.

94. In summary, the significant distinction between the discounts – 10% on the one hand, and 15% on the other – in circumstances where no real distinction was to be drawn, and the sentencing judge referred to no such distinction in any event, is strongly suggestive of an arithmetical slip.

95. Separately, I respectfully think that it was an error to refer to contrition in the context of the utilitarian discount; an authority of longstanding confirming the sharp distinction between, on the one hand, the utilitarian value of the plea of guilty and, on the other hand, mitigating factors that may be evidenced by such a plea is R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104 at [116]-[118]; for a more recent discussion see R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32].

96. As well as that, I accept the proposition that, that erroneous approach having been adopted, it is possible that each of the sentences imposed did not achieve what his Honour intended: explicit reduction for the utilitarian value of the pleas of guilty, and implicit reflection of the finding of remorse, however generous that finding may have been.

97. In short, for a number of reasons, I would uphold this ground of appeal as well.

Re-sentence

98. I turn now to the question of re-sentencing, and of whether, error having been established, a lesser sentence is warranted in law.

99. Documentary evidence of events since the imposition of sentence on 18 August 2016 was placed before us by each party. Respectfully, in my opinion, there needed to be more discrimination with regard to that evidence, not only in terms of its bulk, but also its presentation in a readily comprehensible way. For example, much of it is illegible hand-written notes on various files of the Department of Corrective Services.

100. My understanding is that the submission of the Crown was that, whatever errors may have been established, no lesser sentence is warranted in law. That is because the applicant unquestionably manifests a serious danger to members of the community, and evidence since the imposition of sentence shows that that danger is unabated. Corrective Services documents reveal a number of incidents involving the applicant in custody that have resulted in disciplinary action. Our attention was specifically invited to the fact that, three weeks before the hearing of the appeal, on 8 April 2018, the applicant was found to be in possession of a home-made knife in his cell, and was punished for it within the system of prison discipline.

101. I understood the submission of counsel for the applicant to be that there is room for reduction to correct the errors that occurred at first instance, bearing in mind the compelling mitigating feature of a chronic and significant mental illness.

102. As for events subsequent to sentence, the point was made that the applicant has been unable to receive therapy about his tendency to violence, through no fault of his own.

103. Turning to my determination of the discrete question of re-sentence, this case is surely a paradigm of a person who suffers from a criminogenic mental condition, and who therefore, on the one hand, deserve sympathy and help, and who, on the other hand, presents an undoubted serious danger to members of the community. Certainly, the principle in Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465, is engaged in this case. And it is hard to think of a clearer example than this one of the countervailing factors that can arise from psychiatric illness and that were discussed by Gleeson CJ in R v Engert (1995) 84 A Crim R 67.

104. I readily accept that the applicant suffers from a significant and chronic mental illness (although not one of sufficient severity to free him of criminal liability entirely); that he is a less appropriate instrument for the expression of general deterrence to others as a result; that the importance of specific deterrence is also reduced (though it is not rendered negligible); and that it is in the interests of everyone that he receives as much psychiatric help as possible in the future.

105. On the other hand, as my summary in the first part of this judgment shows, the applicant regrettably possesses an entrenched tendency to commit acts of serious violence that do great physical and psychological harm to others.

106. As well as that, letters sent by the applicant from gaol after the commission of the two offences under consideration show a distinct lack of insight; there is nothing to suggest that that has changed since.

107. Furthermore, as for the new evidence, the recent finding of the “shiv” in his cell earlier this year sounds a profound note of pessimism and anxiety about the continuing danger that he presents to others, even when incarcerated.

108. In the circumstances, and having upheld both grounds put forward by counsel for the applicant, I propose that the non-parole period of the wounding sentence be reduced so that the relationship between the total non-parole period and the total head sentence is not more than 75%.

109. That would “solve” the accumulation problem, though admittedly not to the degree for which counsel for the applicant contended, and perhaps not in conformity with the intention of the sentencing judge.

110. But I cannot accept that the objective gravity of that offence, the moral culpability of the applicant with regard to it, and the need to protect the community permit one to reduce the non-parole period of the sentence for the aggravated wounding below that point.

111. The same may be said of the success of the ground with regard to the utilitarian discount and the question of contrition, with regard to both sentences: even so, I propose to reduce neither head sentence, and to reduce only the non-parole period of the wounding sentence. To be clear: exercising the sentencing discretion afresh, I would not impose a lesser sentence with regard to the assault occasioning actual bodily harm, and would not reduce the head sentence of eight years four months for the wounding offence.

112. My proposed reduction would lead to a new potential release date of 25 May 2022, as opposed to the current potential release date of 16 February 2023, an alteration favourable to the applicant of less than eight months. Whether the State Parole Authority will see fit to release the applicant on that day is, of course, another matter entirely.

Proposed orders

113. For the foregoing reasons, I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed with regard to the sentence for wounding with intent to cause grievous bodily harm imposed by Judge McLoughlin on 18 August 2016.

3. That sentence is quashed.

4. With regard to that offence, the applicant is sentenced to a non-parole period of four years, eleven months and nine days to commence on 17 June 2017 and expire on 25 May 2022. That will be followed by a parole period of three years, four months and 21 days, to commence on 26 May 2022 and to expire on 16 October 2025.

(To express the above in another way, the new sentence for the wounding offence is a head sentence of eight years four months with a non-parole period of four years, eleven months and nine days, to commence on 17 June 2016.)

5. The first date upon which the applicant is eligible for possible release on parole is 25 May 2022.

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Annexure

Lunn-Reid Sentence diagram (3.88 KB, pdf)

Decision last updated: 08 June 2018