Melbom v R

[2013] NSWCCA 210

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Melbom v R [2013] NSWCCA 210

Hearing dates:

2 August 2013

Decision date:

09 September 2013

Before:

Simpson J at [1]
Price J at [3]
R A Hulme J at [4]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - sentence appeal - reckless wounding and threatening to use an offensive weapon - appellant a housemate of victims - offences committed in shared premises - sentencing judge considered the location of crime at a "home" as an aggravating feature of the offence - s 21A(2)(eb) Crimes (Sentencing Procedure) Act considered - special geographic vulnerability of victims of domestic violence - no overstatement of objective seriousness - relevant matters in consideration of circumstances of offending

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment Act 2007

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
DJM v R [2013] NSWCCA 101
DS v R [2012] NSWCCA 159
EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740
Essex v R [2013] NSWCCA 11
Ingham v R [2011] NSWCCA 88
NLR v R [2011] NSWCCA 246
OH Hyunwook v R [2010] NSWCCA 148
R v BIP [2011] NSWCCA 224
R v Engert (1995) 84 A Crim R 67
R v Gazi Comert [2004] NSWCCA 125
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v MH [2011] NSWCCA 230

Texts Cited:

New South Wales Legislative Council, Parliamentary Debates, Hansard, 17 October 2007

Category:

Principal judgment

Parties:

Peter Melbom (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms A Moen (Applicant)
Ms T Smith (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s):

2011/95605

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-03-01 00:00:00

Before:

Syme DCJ

File Number(s):

2011/95605

Judgment

1. SIMPSON J: I have read in draft the judgment of R A Hulme J. I agree with his Honour's analysis and the orders he proposes. In relation to Ground 1, I note that the Crown initially sought to challenge the correctness of previous decisions of this Court that hold that the aggravating feature specified in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (that the offence was committed in the home of the victim or any other person) does not extend to offences committed in the home of the victim if the offender lives in the same home. The Crown expressly abandoned that challenge. Why that course was taken is not apparent.

1. I understand R A Hulme J to have expressed some reservations about the principle stated. I share those reservations. It is, perhaps, time for re-examination by this Court of those previous decisions.

1. PRICE J: I agree with R A Hulme J and the additional remarks of Simpson J.

1. R A HULME J: Peter Melbom ("the applicant") stabbed a man in the chest. Then when the man's partner said she was going to call the police, he held a knife at her throat and said, "I'll slice your throat too" and "I'll kill you too".

1. The applicant pleaded guilty to offences of reckless wounding (count 1) and threatening to use an offensive weapon with intent to commit an indictable offence (count 2).

1. Reckless wounding is an offence against s 35(4) of the Crimes Act 1900 (NSW). The prescribed maximum penalty is imprisonment for seven years and there is a standard non-parole period of three years. Threatening to use an offensive weapon with intent to commit an indictable offence is an offence against s 33B(1)(b). The maximum penalty is imprisonment for 12 years and there is no standard non-parole period.

1. The applicant was sentenced by her Honour Judge Syme in the Sydney District Court on 1 March 2012. For the offence of threatening to use an offensive weapon he was sentenced to a fixed term of imprisonment for 2 years and 4 months to commence on 25 March 2011. For the offence of reckless wounding he was sentenced to imprisonment for 4 years with a non-parole period of 2 years 10 months and 15 days. The latter sentence was specified to commence on 25 September 2011. Accordingly, the total effective sentence was one of 4 years and 6 months with a non-parole period of 3 years 4 months and 15 days. The applicant will become eligible for release on parole on 8 August 2014.

1. Leave is sought to appeal on the following grounds:

1. The learned judge erred in law in taking into account as aggravating factors that the offences were committed in the residence of the offender and the victims.

2. The sentence imposed in relation to Count 1 is manifestly excessive.

Facts

1. There were agreed facts before the sentencing judge from which I draw the following.

1. The victims were Mr Neil Barbar and Ms Lorna Hines. They had been in a relationship for quite some time and had four children together. Mr Barbar had known the applicant for a considerably longer period of time. In late February 2011, he was permitted to move in to the victims' unit in Waterloo.

1. Some time during the day on Wednesday 23 March 2011, a lengthy argument commenced between the applicant and the victims in relation to a mobile phone that he offered to Ms Hines for sale. The argument continued into the night. At about 1.00am the applicant told the victims that he was going to visit somebody "just down the road" and that, "I'll be able to get on". He returned to the unit at about 5.00am and it was noted that his eyes were bloodshot and he could not stand still. He lay on the lounge and went to sleep.

1. At about 10.30am on 24 March, the applicant and Mr Barbar began to argue, again about the phone. The argument became physical and there was some punching. It culminated in the applicant telling Mr Barbar that he did not want to fight anymore. He also mentioned that he would pack his things and leave.

1. Mr Barbar went to the kitchen to get a drink and whilst his back was turned the applicant obtained a pocket knife from his bum bag. Ms Hines called out, "he's got a knife". The applicant rushed at Mr Barbar and stabbed him to the left rib cage. Ms Hines told the applicant that she was going to call the police and he said, "Do it you dog. You're a dog. ... You ring the dogs and I'll slice your throat too. ... Stay out of my way or I'll kill you too".

1. Ms Hines ran to a neighbour's unit and called the police and they attended a short time later. The applicant still had the knife in his hand. The police found it necessary to spray the applicant with capsicum spray and wrestle him to the ground before he was handcuffed and taken into custody. He was taken to Redfern Police Station. He declined to participate in a recorded interview, but did state, "I had a blackout. I don't remember nothing".

1. Mr Barbar was taken to the Royal Prince Alfred Hospital for treatment. A chest drain was inserted to the left chest which drained two litres of blood. He became unstable and required immediate transfer for emergency surgery where a left thoracotomy was performed. It was found that the single stab wound had traversed his chest wall and entered into the pleural space around the lung. A chest wall artery had been transected and was bleeding briskly. The bleeding was stopped and no injury to the lung was found. Mr Barbar was transferred to the Intensive Care Unit for postoperative recovery. He was discharged from hospital five days later.

Subjective features

1. The applicant was aged 32 at the time of the offence. He had a criminal history which commenced at the age of 18. The history includes a variety of offences but notably two of carrying a cutting weapon or knife, two of possessing or using a prohibited weapon without a permit, as well as offences of assault, assault occasioning actual bodily harm and robbery. There are also multiple entries for possessing prohibited drugs or prescribed restricted substances. The applicant had served a number of periods of imprisonment, the longest being a term of 18 months with a non-parole period of 12 months.

1. In 2004, the applicant was placed on a good behaviour bond with a condition requiring him to comply with the requirements of the Salvation Army Bridge Program. Later that year he was placed on another good behaviour bond, this time requiring him to complete the WHOS Methadone To Abstinence Residence program. In 2005, he was placed on yet another good behaviour bond pursuant to a suspended sentence of imprisonment and on this occasion he was required to comply with all reasonable directions in relation to counselling; educational development; or drug and alcohol rehabilitation. When sentenced to his longest term of imprisonment in 2006, it was a condition of his parole that he be "subject to supervision, particularly in respect to drug use".

1. The applicant was refused bail when he was charged with robbery in April 2010. He was almost immediately referred for assessment by a mental health clinical nurse consultant because of his "agitated presentation". A short report by the nurse indicated that the applicant presented with residual effects of methamphetamine intoxication and opiate withdrawal. There was no evidence of mental illness. Documentation available to the nurse indicated previous psychiatric admissions due to mental disorder in the context of amphetamine intoxication and Borderline and Dependent Personality Disorder.

1. A report by Dr Olav Nielssen, forensic psychiatrist, was in evidence. The history the applicant gave to Dr Nielssen included that he had been a regular cannabis user since about the age of 16. He commenced using heroin at about age 17. He had been taking methadone for 10 years. The applicant also reported the abuse of stimulant drugs, mainly methamphetamine (ice) from the age of 16. He told Dr Nielssen that ice "was probably his drug of choice".

1. He recounted to Dr Nielssen his various past attempts at drug rehabilitation programs. In that context he said that although he did not complete the WHOS program, it had helped him to stay free of drugs for six months and out of gaol for three years.

1. The applicant's parents separated when he was three years old and he had little contact with his father since. His mother remarried into a stable relationship. He reported having a happy childhood and being well cared for. After leaving school he was trained as a screen printer and graphic designer. However, he told Dr Nielssen that his main interest in life was substance abuse and that he had not worked for a long time.

1. Dr Nielssen made a diagnosis of "substance dependence and abuse disorder" on the basis of the applicant's longstanding opiate dependence and pattern of daily use of cannabis. He noted a history of abuse of stimulant drugs and anxiety-relieving sedative medication. Dr Nielssen also made a diagnosis of a probable underlying relapsing psychotic illness. That was based on a history of five admissions to psychiatric wards in the previous three years for treatment of psychosis; the applicant's account of experiencing symptoms of psychosis or delirium in the weeks after his reception into prison; and the long-term treatment with antipsychotic medication. There was also a diagnosis of probable hypoxic brain injury on the basis of the applicant's account of drug overdoses for which he required resuscitation; his reported decline in mental performance in the last three years; and aspects of his presentation during his interview with Dr Nielssen. He had exhibited slurred speech and a slowing of responses consistent with some form of brain injury.

1. Dr Nielssen said it was of concern that, while abusing drugs that had the effect of increasing suspicion and reducing inhibition, the applicant seemed to have a habit of carrying knives. He recommended that the applicant complete a drug rehabilitation program and have close monitoring of his abstinence from methamphetamine and benzodiazepine drugs after his release.

1. Dr Nielssen concluded his report by noting that it carried the limitation that it was based solely upon the history provided by the applicant and did not take into account documentation as to medical observations made at the time of the applicant's reception to prison or during admissions to psychiatric hospitals in the community.

1. Clinical notes from the applicant's Justice Health file were also in evidence. They include a history given by the applicant soon after coming into custody for the present offences of extensive substance use in the immediate past: Xanax, ice, cocaine and cannabis. It was noted that he was on a relatively high level of methadone and there was a history of heroin overdosing. There was also recorded a history of paranoia, depression and suicidal ideation. The notes record an "impression" of substance dependence but that the applicant was "not currently psychotic".

1. The applicant did not give evidence in the sentence proceedings.

The remarks on sentence

1. The sentencing judge noted the terms of the charges, the applicable maximum penalties, and the standard non-parole period for the wounding offence.

1. Her Honour recounted the facts and then turned to an assessment of the objective seriousness of the offence. She noted features such as that there was single punch with a pocket knife after an argument but in a completely unprovoked attack; that the degree of foreseeability that a wounding would occur was high; and that the consequences of the conduct were serious in that they could have been life threatening, although her Honour noted that there was no evidence of residual damage. Her Honour noted that there was nothing that would suggest the applicant did not understand what he was doing. She noted that he was intoxicated by drugs, and had claimed that he had a blackout and could not remember what had happened. Her Honour also noted from her close reading of Dr Nielssen's report that there was nothing to suggest that the applicant was experiencing a psychotic reaction as a result of drug induced intoxication.

1. Her Honour took into account, as what she termed an "aggravating feature", that the offence was committed in the home of the victims. That reference is the subject of the first ground of appeal and will be discussed in that context. In the applicant's favour her Honour took into account that the offence appeared to have been a relatively spontaneous event and not the subject of any planning or premeditation. Ultimately, her Honour announced her view that the wounding offence was "in the midrange of seriousness or very close to it".

1. Her Honour said there was no evidence of mental illness and no evidence to suggest that the applicant did not understand that the offence was a serious one and that his behaviour was criminal. The applicant's record demonstrated that the offence was not out of character but she did not regard this as an aggravating circumstance. It did, however, have the effect that leniency could not be extended to him as it had been in the past by way of imposition of s 9 good behaviour bonds or good behaviour bonds pursuant to suspended sentences of imprisonment.

1. Her Honour observed that, "the tragedy of Mr Melbom's position is that he appears to be overwhelmed by his use of drugs and powerless or completely unmotivated to do anything about it". In relation to what the applicant told Dr Nielssen about the interaction of drug abuse and the offences, she observed, "It seems that the offender uses his drug use as an excuse for his behaviour".

1. Her Honour was unable to identify any evidence of remorse. She was unable to make a finding that the applicant was unlikely to re-offend due to a lack of evidence. She was similarly unable to make a finding that he had good prospects of rehabilitation. Her Honour found nothing in Dr Nielssen's report that gave any cause for hope that the applicant was motivated to address his drug use. She concluded that until he did address his drug use his prospects of rehabilitation were "not good".

1. Specific deterrence was mentioned and again her Honour noted the applicant's low prospects of rehabilitation unless he addressed his drug issue. Protection of the community was mentioned, with her Honour remarking that the applicant had an "escalating rate of offending".

1. Finally, her Honour referred to the second charge of threatening to use an offensive weapon. The weapon used was a knife and it was a threat to kill if a call was made to the police. She remarked that the first offence had shown that the applicant was capable of carrying out that threat, thus increasing the fear for the victim at the time: "the threat was real". Her Honour then said that the "fear would have been significant and the weapon and the proximity of the offender to the victim are all matters that increase the objective seriousness of that offence".

Ground 1: Error in taking into account that the offences were committed in the home of the offender and the victims

1. Relevant to this ground of appeal is the following from the remarks on sentence:

I also take into account when considering aggravating circumstances that this offence was committed in the home of the offender. Both offences were committed against both his housemates. There is an element of domestic violence therefore in this offence and offences which have domestic violence as a feature of them are considered more serious. That is because the victims of such an offence really had, in effect, nowhere to go because the domestic relationship, even between housemates, is such that there is a special geographical vulnerability for the victims, but also in infrequent occasions a vulnerability to assist their friends and housemates.

The personal relationship that existed between these people is not known. Therefore, the main aggravating feature is that the offence was committed in the residence of the victims where the offender had otherwise a right to be, which made him more dangerous. (Emphasis added)

1. It was submitted by counsel for the applicant that her Honour's approach was contrary to authority: Ingham v R [2011] NSWCCA 88 at [111]-[112]; EK v R [2010] NSWCCA 199; (2010) 79 NSWLR 740 at [79]; and R v Gazi Comert [2004] NSWCCA 125 at [29].

1. Counsel for the Crown contended that despite the judge using the expression "aggravating circumstances" her Honour should not be thought to have regarded the matter as falling within the list of aggravating features set out in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provision, relevantly, is in the following terms:

(2) Aggravating factors

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

...

(eb) The offence was committed in the home of the victim or any other person.

1. The Crown submitted that it was significant that the judge made no express reference to that provision. Accordingly, despite the terminology employed by the judge, she was in reality referring to this matter as a feature relevant to the assessment of the objective seriousness of the offences, it being a matter of significance because of the particular vulnerability of the victims, a vulnerability enhanced by the applicant's lawful presence in their home. On that basis, it was submitted that the judge did not fall into the error as asserted by applicant.

1. An alternative argument that, even if the judge had regarded the matter as being an aggravating feature pursuant to s 21A(2)(eb) her Honour would not have been in error, was set out at length in the written submissions but expressly abandoned shortly before the hearing of the application.

1. In oral argument, counsel for the applicant submitted that it was immaterial whether or not the judge had regard to the statutory provision. The common law also reflected the idea that it was an aggravating factor where an offender intruded into the home but not where the offender and the victim reside together: EK at [79].

1. When asked by the presiding judge to formulate the principle, counsel for the applicant responded to the effect that it can never be an aggravating factor where the offence is committed in the home in which both the offender and victim reside (T2.36). That extended to the not infrequently seen case of repeated sexual abuse of a child in the home in which both the child and the perpetrator lived (T3.24). (Aggravation in those circumstances was argued to flow from the relationship of trust.)

Determination of Ground 1

1. Subsection (2)(eb) was inserted in s 21A by the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) and took effect on 1 January 2008.

1. It has been held in this Court that this provision, and the earlier common law, did not provide that it was an aggravating factor when an offence is committed in the home in which both the offender and the victim reside; it is only an aggravating factor when the offender is an intruder: see the authorities referred to by the applicant (above at [35]) as well as R v BIP [2011] NSWCCA 224 at [60]-[61]; R v MH [2011] NSWCCA 230 at [34]; NLR v R [2011] NSWCCA 246 at [22]; DS v R [2012] NSWCCA 159 at [144]-[148]; and Essex v R [2013] NSWCCA 11 at [72]-[73].

1. The Crown abandoned its proposed alternative argument in relation to this ground and conceded the correctness of those decisions. This is despite the fact that the plain words of s 21A(2)(eb) do not support the limitation that this Court has placed on their application. It is also despite the fact that it was never intended by Parliament that there should be the constraint upon their application that this Court has imposed: see the second reading speech of the Attorney-General, New South Wales Legislative Council, Parliamentary Debates, Hansard, 17 October 2007 (p 2667ff) where it was said that it would be "an aggravating circumstance when victims are assaulted in their own homes ... even if it is also the home of the accused". However, given the concession by the Crown, now is not the occasion for reconsideration of what has been said previously in this Court on the subject.

1. The sequence in which the sentencing judge referred to various potential aggravating and mitigating factors indicates to me that, whilst she did not refer to the statutory provisions, she must specifically have had regard to them because she referred to them in exactly the same order in which those factors are listed in ss 21A(2) and (3). In these circumstances it seems likely that her Honour had her eye on s 21A(2)(eb) when she made the remarks about the offences being "committed in the home of the offender". But there are some other features of the sentence proceedings and the sentencing remarks that should be noted.

1. The written submissions for the applicant to her Honour included under the heading "Vulnerability of Victim" that "the victims ... were in their own home at the time of the offence".

1. It must be borne in mind as well that her Honour received the evidence and heard submissions; retired to read some authorities that had been provided by the applicant's representative; and then delivered ex tempore remarks on sentence. There are frequent statements in the judgments of this Court about not taking an overly analytical approach to sentencing remarks delivered in this fashion: see, for example, R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [48] per Spigelman CJ.

1. It is also worth noting that one of the authorities provided to her Honour by the applicant's representative was OH Hyunwook v R [2010] NSWCCA 148. In that case the offence occurred in a home in which the offender lived and in which the victim was a temporary resident. The relevant ground of appeal asserted that the sentencing judge had erred in regarding the fact that the offence was committed at the home of the victim as "important". Kirby J, with the concurrence of Beazley JA (as her Honour then was) and Johnson J, said (at [39]):

Dealing with these submissions, his Honour, when he began his sentencing remarks, did describe the offence as "domestic violence related" (ROS 1). However, in the passage relied upon, his Honour did not say that he regarded the location (being within the victim's temporary home) as a matter of aggravation. Indeed, it is noteworthy that the ground of appeal does not assert that there was error in regarding the location as a matter of aggravation. It asserted error in regarding it as "important". In my view, it was clearly a relevant circumstance. It was open to his Honour to regard it as important. Instead of the victim being treated cordially in what had become his temporary home, he was subjected to violence. There was no error. (Emphasis added)

1. A not dissimilar analysis of how a sentencing judge regarded the fact that an offence was committed in a home occupied by both the offender and victim occurred in DJM v R [2013] NSWCCA 101. That case concerned sexual assaults by a stepfather of his stepdaughter in the family home. The relevant statement by the sentencing judge was set out in the judgment of Blanch J at [7]:

Each of the offences was committed in the home of the offender, but due to the nature of the custody arrangements, it was also the home of the complainant, for the period of access. Effectively the victim had no place have (sic) safely to escape to. This is an aggravating circumstance.

1. It was contended that the judge must have had in mind s 21A(2)(eb) and that taking into account that the offences were committed in the home was contrary to authority. However, Blanch J (with the concurrence of Basten JA and Simpson J) characterised what the judge said otherwise (at [9]-[10]):

In my view the statement by the sentencing judge did not have reference to this aspect of s 21A of the Crimes (Sentencing Procedure) Act at all. In the course of her remarks, the judge noted that it was an obvious aggravating feature where the offender was in a position of trust and that the abuse of trust is considered to be more serious where the offender is the father or family member. Her Honour quoted the judgment of Spigelman CJ in R v Hudson (Court of Criminal Appeal New South Wales, Spigelman CJ, Sully, Ireland JJ, 30 July 1998, unreported) at 3 that "... children in a family situation are virtually helpless against sexual attack by the male parent..." and a similar statement in R v BJW [2000] NSWCCA 60; 112 A Crim R 1 where Sheller JA at [21] referred to the fact that "... a child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent."

The comments made by the sentencing judge that the victim had no place of safety to escape to was nothing more than a statement of the obvious in relation to these sorts of offences committed in the family home and it does not amount to an asserted double counting of the seriousness of the offence.

1. In the present case the judge did not simply refer to the bare fact that the offence was committed in the home occupied by the victims and the applicant as an aggravating factor. Her approach would clearly have been contrary to authority if that was all that she had said. But her Honour proceeded to say that the offence had "an element of domestic violence". That being so, the offence was more serious "because the victims of such an offence ... had ... nowhere to go because the domestic relationship, even between housemates, is such that there is a special geographical vulnerability for the victims".

1. Her Honour concluded the passage in question by referring to the applicant having a right to be in the residence of the victims "which made him more dangerous". She did not explain that remark. I think the best view of what her Honour meant was that the offender was armed and volatile and in a relatively confined space with the victims, who were cut off from people in the outside world who may otherwise have intervened.

1. These were all matters that were relevant to the assessment of the seriousness of the offence. If the introductory words "this offence was committed in the home of the offender" did not appear, the passage in question would be beyond criticism. The reasoning that followed those words provided the real explanation of her Honour's assessment of the circumstances that rendered the offences more serious. I do not believe that the introductory words had any material bearing upon sentence.

1. A final matter to note is that the impugned passage appeared in the context of her Honour's assessment of matters relevant to the objective seriousness of the offence in count 1. If she had erroneously taken into account an aggravating feature it would be expected to have led her to overstate the objective seriousness. But her assessment was that it was "in the mid-range of seriousness or very close to it". That was consistent with, or modestly less than, the assessment advocated on behalf of the applicant: "at least in the mid-range of objective seriousness" (AB 63.21).

1. In light of all these matters, if there was error, it had no real bearing upon the outcome.

Ground 2: The sentence for the reckless wounding offence was manifestly excessive

1. Counsel for the applicant referred to the judge having allowed a 20 per cent reduction on account of the applicant's plea of guilty before imposing a sentence of four years for the offence of reckless wounding. Accordingly, it was submitted, the nominal starting point for the sentence must have been five years. It was submitted that, against a maximum penalty of seven years, this indicated a sentence that was out of proportion, and manifestly excessive, when regard is had to the judge's finding that the offence was of midrange seriousness or very close to it.

1. It was submitted that the error asserted under Ground 1 "tainted" the assessment of objective seriousness and "must have had a significant impact on the determination of the appropriate sentence".

1. It was also submitted that the judge had mistaken the facts in finding that "there is no evidence of mental illness". It was submitted that this finding ignored the diagnosis made by Dr Nielssen. In oral submissions it was contended the applicant's mental condition was relevant in a general sense to his subjective case. It was "a circumstance of personal difficulty and disadvantage that has been ... a significant feature in his background" (T6.3). It warranted "some weight and some degree of compassion" (T9.10).

1. It was also submitted that in making adverse findings as to the applicant's motivation to address his drug dependency issues, the judge had not taken into consideration the history of past attempts at drug rehabilitation programs as set out in the report of Dr Nielssen. It also failed to have regard to the applicant's claim to Dr Nielssen that he had been drug free for the nine months that he had been in gaol and planned to make a further attempt at drug rehabilitation.

1. Finally, it was submitted that her Honour had not taken into consideration whether special circumstances warranted a variation in the usual parole/non-parole ratio. It was acknowledged that her Honour was not asked to make a variation but the submission was pressed nonetheless. The applicant's mental condition and his need for a longer period of supervision on parole to avoid relapsing into drug use were identified in oral submissions as relevant in this context.

1. The Crown challenged the contention that a notional starting point of five years against the maximum penalty of seven years was out of keeping with a finding of objective seriousness of "in the mid-range of seriousness or very close to it". Such an approach was unduly mathematical; it is not axiomatic that a mid-range offence must attract a mid-range sentence.

1. The Crown submitted that it was not incumbent upon the judge to have found that there was a mental condition that was relevant to sentence in any of the ways identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. There was no evidence that established in a satisfactory way any of the propositions there listed. It was also submitted that even if the applicant was suffering from some mental condition it did not follow that consequences would automatically follow in the assessment of sentence: R v Engert (1995) 84 A Crim R 67 at 68 per Gleeson CJ.

1. In oral submissions, the Crown contended that her Honour's sentencing remarks demonstrated that she regarded the applicant's mental condition as being directly related to his drug use. The judge referred to Dr Nielssen's report as including that the applicant had experienced on several prior occasions a psychotic reaction as a result of drug-induced intoxication. And she assessed his rehabilitation prospects as "not good", "fairly low" and "dim" until he was motivated to address his drug use. That pessimistic view was consistent with a concession made by the applicant's representative, who accepted her Honour's suggestion during the course of submissions that "the information that I have before me is not hopeful in terms of rehabilitation" (AB 62.35).

1. The Crown submitted that it was evident that the judge did have regard to the question of whether there were special circumstances that would warrant a reduction in the non-parole period, notwithstanding that no submission was made on the applicant's behalf. She made specific reference to the need to make an adjustment because of the partial accumulation of sentences, showing that the provisions of s 44(2) of the Crimes (Sentencing Procedure) Act were not forgotten by her Honour.

Determination of Ground 2

1. It follows from what I have said about Ground 1 that I do not accept the submission that her Honour's assessment of the objective seriousness of the offence was "tainted" by the error there asserted.

1. Her Honour's statement "there is no evidence of mental illness" should not be read literally or out of context. It was open to her Honour to take the view that there was no standalone mental illness and that the difficulties the applicant faced in that respect were a direct result of his substance abuse over a lengthy period of his life. This was the critical feature of the applicant's subjective case. He had a number of opportunities in the past to engage with rehabilitation. He told Dr Nielssen that although he did not complete the WHOS program, it had helped him to stay free of drugs for six months and out of gaol for three years. But then he returned to serious offending when in April 2010 he committed the offence of robbery. He was on a methadone program at the time he committed the subject offences in March 2011 but was also continuing to abuse illicit substances.

1. In the light of this lengthy history of substance abuse and offending, particularly violent offending, it was well open to her Honour to view the applicant's prospects of rehabilitation as being poor.

1. There was very little else standing in the applicant's favour. Her Honour referred to him having family support and noted the presence of his mother in court. She referred to it being "important for a court to address the need for rehabilitation" but she also had regard to the need for specific deterrence and protection of the community. In relation to the latter she noted "his escalating rate of offending".

1. The seriousness of the offences cannot be gainsaid. The applicant stabbed the male victim in the chest and then threatened to kill the female victim when holding a knife to her throat. The stabbing resulted in a severed chest wall artery that brought a need for emergency surgery. Fortunately there was no damage to the lungs or other organs. Dr Nielssen was rightly concerned about the applicant abusing drugs that increased suspicion and reduced inhibition and, in that context, his habit of carrying knives.

1. In my view, the sentence for the offence of reckless wounding was at the upper end of the range of a permissible exercise of her Honour's sentencing discretion.

1. That is sufficient to deal with this ground of appeal but one further observation should be made. The offence of threatening to use an offensive weapon with intent to commit an indictable offence was a serious offence in itself. In fact, the maximum penalty for it was significantly higher than that for the wounding offence. The partial accumulation of the sentences has the result that the applicant was required to serve only an additional six months for it.

1. The sentence for the offence of reckless wounding, whilst severe, was ameliorated by the relatively modest degree of accumulation upon the sentence for the other offence committed in respect of a different victim. In the end, the overall sentence was well open to her Honour to impose in order to reflect the totality of criminality.

1. I would reject ground 2.

Orders

1. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

**********

Amendments

09 September 2013 - Amended representative

Amended paragraphs: Coversheet

Decision last updated: 09 September 2013