Lynch v The Queen
[2007] NSWCCA 268
•4 September 2007
New South Wales
Court of Criminal Appeal
CITATION: LYNCH v R [2007] NSWCCA 268 HEARING DATE(S): 8 August 2007
JUDGMENT DATE:
4 September 2007JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 21; Harrison J at 22 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – Appeal against sentence – assault, malicious damage to property and use of offensive instrument – application to tender medical evidence not before sentencing court – reports available at the time of sentence hearing and reports not available – whether evidence should be received – whether counsel failed to seek evidence now available LEGISLATION CITED: Crimes Act 1900 CASES CITED: R v Deng [2007] NSWCCA 216 PARTIES: David Brian Lynch (Appl)
The CrownFILE NUMBER(S): CCA 2007/3219 COUNSEL: I Todd (Appl)
N Adams (Crown)SOLICITORS: AKN & Associates (Appl)
Director of Public Prosecutions (Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/41/0049 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 1 August 2006
2007/3219
TUESDAY 4 SEPTEMBER 2007McCLELLAN CJ at CL
HOWIE J
HARRISON J
1 McCLELLAN CJ at CL: The applicant pleaded guilty to three charges as follows:
· On 9 September 2004 at Sussex Inlet in the State of New South Wales did assault Shane Botterill.
· On 9 September 2004 at Sussex Inlet in the State of New South Wales did maliciously damage property, namely, the dwelling house at 14 Glanville Road.
· On 9 September 2004 at Sussex Inlet in the State of New South Wales did use an offensive instrument, namely a motor vehicle, with intent to commit a serious indictable offence, namely intimidation.
2 The first charge was an offence contrary to s 61 of the Crimes Act and carries a maximum penalty of 2 years imprisonment. The second charge was an offence contrary to s 195(1)(a) of the Crimes Act for which the maximum penalty was 5 years imprisonment. The third charge was an offence contrary to s 33B of the Crimes Act for which the maximum penalty is 12 years imprisonment.
3 In relation to the third charge an offence of breach of an apprehended violence order was included on a Form 1 and taken into account by the sentencing judge.
4 In relation to each of counts 1 and 2 the applicant was sentenced to a fixed term of imprisonment of 9 months the sentences to be served concurrently. The sentencing judge declined to set a non-parole period because of the more lengthy sentence imposed in relation to count 3. In relation to that count the applicant was sentenced to a non-parole period of 1 year and 3 months with a total term of 2 years and 6 months imprisonment.
The facts
5 The sentencing judge found the following facts:
- “The prisoner had spoken to his daughter. It was her seventeenth birthday; he wanted to see her to give her a present. There had been a previous history in this matter.
- The prisoner had been married to Karina Lynch. They had three children. They had separated at least five years previously. Katrina had formed a partnership with Shane Botterill. They have three children. Karina Lynch and Shane Botterill lived at 14 Glanville Road, Sussex Inlet.
- On 9 September 2004 the prisoner met his daughter down the road. He was prevented from entering the premises as a result of an AVO. He then inquired of her what she was doing. She said that her mother and Mr Botterill were taking her and the others out to dinner. He became very agitated. It may be that he had in his mind that he was going to take them out to dinner. He then drove to the premises at Glanville Road, got out of his car; he had in his hand a large bowie knife at waist level. He knocked on the door. Mr Botterill came to the door. ‘The prisoner said don’t be a coward come out and fight.’ The prisoner’s fifteen year old son stepped between them. The prisoner walked back to his car. Mr Botterill was standing in the front yard, in front of the door of the house. The prisoner got in his car and drove it directly towards Mr Botterill with the wheels spinning. Mr Botterill turned and ran back into the house through the front door. The prisoner followed in his car driving the front of the car into the front of the house with force just as Mr Botterill ran through the door. A three year old and a four year old were playing in the front yard at the tie. The house was damaged. The screen door was ripped off its hinge.
- The prisoner then reversed his car back onto the street. Mr Botterill walked back outside. The prisoner again accelerated quickly, driving his car towards Mr Botterill and the house. Mr Botterill ran behind a gum tree in the front yard to avoid being hit.
- The prisoner turned right in the direction of Mr Botterill and drove in between gum trees and the house missing Mr Botterill. He then drove away. The prisoner was eventually arrested and declined to be interviewed.”
6 Five grounds of appeal were filed including a ground that the applicant should be allowed to reopen his plea. The latter ground was not pursued and before this Court the argument has been confined to a challenge to the sentences which were imposed.
7 The applicant gave evidence before the sentencing judge. His account of the relevant facts differed significantly from the facts which had been agreed by counsel and provided to his Honour. His Honour concluded that the applicant’s version of the events was a fabrication. His Honour was satisfied that the applicant had gone to his former wife’s home with the intention of doing harm to Mr Botterill. He carried a knife for this purpose. His Honour was in no doubt that the applicant harboured ill feeling towards Mr Botterill.
8 At the time of sentencing, the applicant was 37 years of age. He had been married and has 3 children. Although he has worked as a labourer and truck driver he had a motor cycle accident in 2003 when he suffered a traumatic injury to his brain which has resulted in cognitive impairment. He has difficulty in remembering information and has impaired organisational skills.
9 A report from Dr Jason Cusack, a clinical psychologist, was tendered at the sentencing hearing. This confirmed the applicant’s cognitive impairment. His Honour concluded that the applicant suffered from “subtle impairments in executive functioning, that is, the ability to draw together primary cognitive skills to generate high levels of abstract and creative thought.” Dr Cusack also indicated that the applicant “demonstrated impatience and frustration which appeared to exacerbate the current difficulties he experiences following his brain injury.”
10 Evidence before the sentencing judge disclosed that the applicant reacted badly to the break up of his marriage. He suffered depression and was prescribed anti-depressant medication. However, he has not consistently taken his medication. The evidence before the sentencing judge indicated that unless the applicant takes his medication aggressive and impulsive tendencies may emerge.
11 The applicant’s criminal record indicates that he was convicted of a driving offence in 1999 and in 2004 of a number of offences related to firearms. These offences appear to have arisen from his forgetting to renew the necessary licence. In 2004 he was convicted of breaching a domestic apprehended violence order and was placed on a bond for good behaviour. It was a breach of that bond which gave rise to the offence on the Form 1. The sentencing judge found that the applicant was the subject of an order that he not go to or near the premises where his former wife was living. His actions in committing the present offences were a deliberate breach of that obligation.
12 It was submitted to the sentencing judge that the behavioural abnormalities of the applicant were as a result of his head injuries. His Honour did not accept that submission and concluded that, notwithstanding the applicant’s injury and psychological difficulties, he had deliberately committed “most serious offences.” His Honour determined that it was necessary to impose a sentence which reflected appropriate punishment and adequately recognised the need for specific and general deterrence. He determined that a term of full time imprisonment was required but was persuaded that special circumstances would justify a departure from the usual period on parole.
13 Before this Court an application was made for the tender of evidence from medical practitioners which was not before the sentencing court. One of those reports is from Dr Jason Cusack. As I have earlier indicated a report from Dr Cusack was tendered to the sentencing judge. That report was dated 30 March 2004. The report which is now sought to be tendered is dated 18 March 2004 and contains the conclusion that “in my opinion the current results indicate that whilst signs of cognitive impairment remain the pattern of brain injury demonstrated on assessment could not significantly prevent Mr Lynch from knowing the nature and quality of his current acts.” It is apparent that this report was obtained for the purposes of considering whether the applicant should plead guilty and was not related to sentencing. The conclusion being unhelpful to the applicant the report was never provided to the sentencing judge.
14 The applicant also obtained a report dated 23 July 2007 from Dr Darveniza a neurologist. Dr Darveniza concluded that as a result of the injury the applicant had been left with “some frontal lobe executive dysfunction, with impulsivity, poor temper control and evidence of deteriorating memory with increasing amounts of information, slow thinking and poor attention and concentration in matters requiring detail and planning.” The doctor also concluded that the applicant’s “frontal lobe damage would have contributed to his refusal to accept anger management, and take his anti-depressants on a regular basis.”
15 In my opinion the court should not receive this evidence. The relevant principles were recently discussed by James J in R v Deng [2007] NSWCCA 216 at [18] ff. I need not repeat them. The report from Dr Cusack was available at the time of the sentencing hearing. Because it did not assist the applicant, counsel, who appeared at that hearing, obviously made a decision that it not be tendered before his Honour. The report of Dr Darveniza is in a different category. It was not available at the time of the sentencing hearing. However, the reason that evidence of this type was not available at the hearing appears to be due to the fact that, although he was advised to do so by counsel, the applicant failed to attend Illawarra Brain Injury Service. This is made plain in a letter from counsel dated 16 July 2007.
16 It was submitted to this Court that the sentencing hearing miscarried because of the incompetence of counsel reflected in his failure to seek the evidence which is now available. To my mind this submission is entirely without substance. It seems to me that counsel acted appropriately and gave competent advice which the applicant failed to follow.
17 The offences which he committed were extremely serious and were committed for the purpose of injuring Mr Botterill. His driving of the motor vehicle was reckless and had the potential to incidentally harm the children who were playing in the yard at the time. Although his use of the motor vehicle in this manner may have been impulsive, the evidence made plain that the applicant went to the premises armed with a knife for the purpose of doing significant harm to Mr Botterill and with the possibility that he may kill him. His actions in going to the premises with the knife were the product of an unreasoning hatred of Mr Botterill and were clearly premeditated.
18 In my opinion a sentence significantly greater than that which his Honour determined could have been imposed in respect of each offence by the sentencing judge without error. A significantly greater total sentence would also have been justified. There is nothing in the further medical evidence, even if admitted, which would justify a reduction in the sentence which his Honour imposed.
19 His Honour accepted that the applicant’s behaviour may have been due to the fact that he had not taken his medication for depression. However, the applicant was aware that the medication had been prescribed and it is not suggested that his frontal lobe damage was such that he was not aware that it was necessary to take the medication in order to stabilise his mood. There is no suggestion that the applicant was not aware that he was deliberately breaching the apprehended violence order and committing serious crimes.
20 Although I would grant leave to appeal in my opinion the appeal should be dismissed.
21 HOWIE J: I agree with McClellan CJ at CL.
22 HARRISON J: I agree with McClellan CJ at CL.
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