Mercael v R

[2010] NSWCCA 36

New South Wales
Court of Criminal Appeal

CITATION:	MERCAEL v R [2010] NSWCCA 36
HEARING DATE(S):	18 February 2010
JUDGMENT DATE:	4 March 2010
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Davies J at 93
DECISION:	1. Grant leave to appeal against sentence. 2. Dismiss the appeal against sentence.
CATCHWORDS:	CRIMINAL LAW — Sentencing — mental illness — causal connection between mental illness and commission of offence
LEGISLATION CITED:	Crimes Act
CASES CITED:	Engert v R (1995) 84 A Crim R 67 House v The King (1936) 55 CLR 499 Kalemusic v R [2009] NSWCCA 178 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 R v Mulato [2006] NSWCCA 282 Wilmot v R [2007] NSWCCA 278
PARTIES:	MERCAEL, Suren Hurmez - Applicant The Crown
FILE NUMBER(S):	CCA 2008/18957
COUNSEL:	C Nash / D Kang - Applicant S Dowling - Crown
SOLICITORS:	Ford Criminal Lawyers - Applicant S Kavanagh - Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/18957
LOWER COURT JUDICIAL OFFICER:	Sides DCJ
LOWER COURT DATE OF DECISION:	1 June 2009

2008/18957

McCLELLAN CJ at CL
JAMES J
DAVIES J

THURSDAY 4 MARCH 2010

MERCAEL, Suren Hurmez v R

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: Suren Hurmez Mercael applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Sides for an offence of maliciously wounding with intent to do grievous bodily harm, to which he had pleaded guilty. The victim of the offence was the applicant’s estranged wife Aneta Mercael (to whom I will refer to as “the victim”).

3 On 27 February 2009 the applicant was arraigned on an indictment containing three counts, namely:-

1. Wounding the victim on 21 November 2007 with intent to murder her

2. Alternatively to 1, maliciously wounding the victim on 21 November 2007 with intent to do grievous bodily harm

3. Taking and driving the victim’s motor vehicle on 21 November 2007 without her consent

4 The applicant pleaded not guilty to the charge in count 1 but guilty to the charges in counts 2 and 3 and the Crown accepted the pleas of guilty in full discharge of the indictment.

5 For the offence of maliciously wounding with intent to do grievous bodily harm the sentencing judge imposed a head sentence of twelve years nine months with a non-parole period of eight years, commencing from 23 November 2007, the date on which the applicant had been arrested and from which he had remained in custody. For the offence of driving and taking a conveyance without consent his Honour imposed a head sentence of eight months with a non-parole period of four months, also commencing on 23 November 2007 and hence to be served fully concurrently with part of the non-parole period of the sentence for the principal offence.

6 The application for leave to appeal was directed solely to the sentence for maliciously wounding with intent to do grievous bodily harm and it is unnecessary to make any further reference to the sentence for the offence of driving and taking a conveyance without consent.

7 Maliciously wounding with intent to do grievous bodily harm is an offence under s 33 of the Crimes Act. The maximum penalty for the offence is imprisonment for 25 years and there is a standard non-parole period of seven years.

Facts

8 In the proceedings on sentence a set of agreed facts was tendered and admitted. The agreed facts included information about the history of the relationship between the applicant and the victim as well as information about the events of 21 November 2007. The sentencing judge’s statement in his remarks on sentence of the history of the relationship between the applicant and the victim and of the events of 21 November 2007 were based on the agreed facts. I will now summarise the sentencing judge’s statement of the facts.

9 The applicant and the victim were married in Iraq in 1990. At the time of the marriage the applicant was 19 (almost 20) years old. The victim was only 16 years old.

10 The applicant and the victim came to Australia in 1992. In Australia four children, all boys, were born to the marriage, including the third son who was born in 1999.

11 In 1994 the applicant was convicted of assaulting the victim and was fined.

12 On a number of occasions the victim left the applicant but returned to him as a result of pressure she perceived as coming from the children of the marriage and the Orthodox Christian Church to which the applicant and the victim belonged.

13 In 2006 the applicant was convicted of assaulting the victim and entered into a bond not to assault, molest, harass or otherwise interfere with her. It would appear that this bond had expired before the s 33 offence was committed. The court also made an apprehended violence order, which contained a condition that the applicant not come within 100 metres of premises at which the victim was residing or working. Notwithstanding this condition, the applicant returned to live with the victim within two to three months of the making of the order.

14 In early January 2007 the victim left the family home, after she had been subjected to an episode of verbal abuse by the applicant. The third child of the marriage chose to live with the victim. The other three children of the marriage remained living with the applicant. The victim began family law proceedings seeking custody of all four children.

15 After the victim left the family home she obtained employment at a shop. The victim would often see the applicant near her place of work, near the home unit in which she was living and near the home of a friend of the victim’s at Fairfield, while she was visiting that friend.

16 About two weeks before 21 November 2007 the applicant appeared outside the friend’s home, while the victim was there, and yelled abuse at the victim.

17 In early 2007 police charged the applicant with knowingly contravening the apprehended violence order and the applicant was fined for this offence. Subsequently, police again charged the applicant with knowingly contravening the apprehended violence order and the applicant entered into a bond. The commission of the s 33 offence was a breach of this bond.

18 After the s 33 offence was committed the oldest child of the marriage told police that in the year 2007 the applicant had become angry that the victim had not returned to the family home, that the applicant had taken to walking past the block of units where the victim was living almost every night, the applicant had asked the children living with him “should I just go and smash her?” and on one occasion the applicant had said “what if I go and hurt her now. How would you feel?”

19 On the evening of 21 November 2007 the victim and the child who was living with her went to the victim’s friend’s home at Fairfield for a visit. Near the entrance to the block of units where the friend lived, the applicant approached the victim and the child and asked the child to come and live with him. He said to the child “what are you doing with your mother, look at her, she’s a slut…look what she’s wearing, that’s not suitable in the street”.

20 The child told the applicant not to talk to his mother like that and that he did not want to live with the applicant. The applicant turned to the victim and said “you slut, you whore, you destroyed our family” and then walked away.

21 Later that evening the victim and the child returned to the victim’s home in the victim’s car. The child got out of the car to open the door of the garage. The victim remained sitting in the driver’s seat of the car. The driver’s side door was locked but the window was about half opened to enable the victim to speak to her son.

22 The applicant appeared near the driver’s side window, looking breathless and angry. He was holding a small knife with a blade about 10 cm long. He demanded that the victim open the driver’s side door. The victim did not comply. The applicant then reached through the partially opened window, unlocked the door and opened it.

23 In his remarks on sentence the sentencing judge then quoted at length from part of a statement which had been made by the victim, giving an account of what then happened. In summary, the applicant brought the knife close to the victim’s face, pushed the victim towards the front passenger seat and himself got into the car and sat in the driver’s seat. The applicant pushed the child away, when he tried to intervene. The victim used her arms and legs to try and push the applicant away from her.

24 The applicant then struck the victim a number of times with the knife. The applicant pulled the victim out of the car and the victim felt another blow. The victim fell to the ground. She said in her statement “I could see blood everywhere, all over my body and I couldn’t feel the left (side) of my body and my right side was hurting a lot”. She was having difficulty breathing. The applicant drove off in the victim’s car.

25 Neighbours, police and ambulance officers arrived at the scene. Police observed a large pool of blood next to the victim and a number of open wounds on the victim’s upper body which were bleeding profusely, that her face looked very pale and that she was moving in and out of consciousness. The victim was transported to Liverpool Hospital.

26 At the hospital tubes were inserted in the victim’s chest and surgery was performed on her on 23 November 2007. The victim was in the intensive care unit at the Hospital for five days and was then released into a general ward. She made a good recovery and was discharged from the Hospital on 5 December 2007.

27 In the attack by the applicant the victim sustained a number of stab wounds in areas on her chest, near her collarbones and on her shoulders, lacerations to one of her hands and arms and injuries to her lungs, including a pneumothorax, a haemothorax and an emphysema and she also sustained some hematomas.

28 On the evening of 23 November 2007 police who were on patrol saw the applicant and approached him. The applicant asked the police “is my wife OK?”. The applicant was arrested. He later declined to be interviewed by police.

29 On 24 November 2007 the victim’s car was found abandoned at Manly. The front interior of the car was extensively bloodstained and blood spattered. The applicant’s banking records showed that the applicant had caught a taxi from Manly to Fairfield at about 4 o’clock in the morning of 22 November 2007.

30 An issue which the sentencing judge considered in his remarks on sentence was whether the commission of the offence had been premeditated.

31 Counsel for the applicant in the proceedings on sentence had contended that the sentencing judge should find that the offence had been unpremeditated. It was submitted that, on the victim’s own account, the applicant had stabbed her with the knife, only after the victim had started kicking at the applicant, and that the applicant had not continued with the attack after the victim had fallen to the ground outside the car, even though she would then have been at her most vulnerable.

32 The sentencing judge rejected these submissions by counsel for the applicant.

33 As to the second submission his Honour found that, by the time the applicant desisted, the victim had received at least 13 stab wounds and that by that time the applicant had achieved what he had intended to achieve, accepting (in the applicant’s favour) that he had not had the intention of killing the victim.

34 The first submission was rejected by the sentencing judge on grounds including that the sentencing judge was satisfied that there were no wounds to the victim’s legs, all the wounds being to her upper torso or arms; that at the time of committing the offence the applicant was angry with the victim because she had left him, splitting the family and leaving him to care for three of the children; the applicant disapproved of the victim adopting certain aspects of a western lifestyle; the applicant had attempted to get the victim to change her ways but had failed and his attempts had brought him into conflict with the criminal justice system; the applicant had accosted the victim earlier that evening; and the applicant had armed himself with a knife. The sentencing judge made a finding that the applicant had formed the intention to punish the victim by causing her physical harm by stabbing her.

35 On the hearing of the application it was not submitted that the sentencing judge had made any error in finding that the commission of the offence had been premeditated.

Some subjective features of the applicant

36 I have already referred to some of the subjective features of the applicant. In his remarks on sentence the sentencing judge recorded a number of subjective features.

37 The applicant had been born in Iraq in 1971 and was accordingly 35 years old at the time of committing the offence.

38 The lives of the applicant and of the other members of his family had been dramatically affected by the various wars and unrest in Iraq. An uncle of the applicant had been killed in an explosion and his father had been injured.

39 As already noted, the applicant and the victim had been married in 1990, when the applicant was almost 20 years old and the victim only 16.

40 In 1992 the applicant’s immediate and extended family left Iraq and resettled in the Netherlands. The applicant’s family had not approved of his marriage to the victim and he did not join the rest of his family in the Netherlands.

41 In 1992 the applicant and the victim came to Australia.

42 In 2006 the applicant travelled to the Netherlands to visit his family. He made an application to the Dutch Authorities to be allowed to migrate but his application was refused.

43 The applicant returned to Australia and then the marriage broke up. The applicant has no relatives in Australia and few, if any, friends. He had been very dependent on the victim.

Grounds of appeal

44 The grounds of appeal against sentence were as follows.

Ground 1 —

i. The sentencing judge erred in failing to properly take into account the evidence of the applicant’s mental illness in the determination of the sentence.
ii. The sentencing judge erred by finding that it was appropriate to reflect general deterrence.


Ground 2 — The learned sentencing judge erred by finding that the offence fell “well above” the mid-range of objective seriousness.

Ground 3 — The learned sentencing judge erred by finding that the offender’s prospects of rehabilitation and not re-offending (were) “no higher than reasonable”

Ground 4 — The sentence was manifestly excessive.

45 I will deal with these grounds of appeal in turn.

Ground 1
i. The sentencing judge erred in failing to properly take into account the evidence of the applicant’s mental illness in the determination of the sentence.
ii. The sentencing judge erred by finding that it was appropriate to reflect general deterrence .

46 Before he was sentenced the applicant had been seen by two psychiatrists, Dr Canaris who made a report dated 19 May 2008 and Dr Westmore who made three reports dated 8 October 2008, 4 December 2008 and 11 May 2009. The main purpose of Dr Canaris’ report and Dr Westmore’s first report was to provide expert opinion on whether the applicant was fit to stand trial. Both psychiatrists found that the applicant was fit to be tried. In his report Dr Canaris said that the applicant might be suffering from depression and an anxiety disorder and possibly morbid jealousy.

47 In his report of 8 October 2008 Dr Westmore made the following diagnosis:-

““Probable post-traumatic stress disorder — this diagnosis to be confirmed would require me to have extensive contact with Mr Mercael but if his brief account of his experiences in Iraq are true and correct ones, then it is likely those experiences have had a significant and detrimental effect on his mental state.
Depression — my provisional diagnosis is that this man suffers a moderate to severe adjustment disorder with depressed and agitated mood. The differential diagnosis would include a major depressive illness.
I note that Dr Canaris has raised the possibility of morbid jealousy and that condition does need to be considered. At this time however I am of the view that his attitudes towards his wife, his marriage and the break up of his relationship are generated by his cultural background and personality factors rather than a mental illness such as morbid jealousy.”

48 Dr Westmore concluded this report by saying:-

“At this time I believe Mr Mercael to be fit to be tried. He does not have a metal illness defence to the charges but the court might take into account his very difficult background history and his likely severely depressed mood at the time the incident occurred by way of mitigation.”

49 In this report Dr Westmore said that access to the applicant’s Justice Health file might shed more light on his mental state shortly after he was detained and at other times.

50 In his report of 4 December 2008 Dr Westmore reviewed the Justice Health records of the applicant to which he had been given access. Dr Westmore expressed the following opinions:-

“The additional material indicates that Mr Mercael’s overall presentation was that of an anxious, depressed man. He demonstrated a range of behavioural disturbances and he expressed various ideas of a social and cultural nature which probably reflect his background. Those ideas appear to have brought him into conflict with the views of the Australian community and caused him to become agitated and at times persecuted in his thought content.
…………
He is obviously a very troubled man, he appears to have been very unhappy in Australia and he may have had difficulties adjusting to the social and cultural values which he reports are so different from those of his upbringing.”

51 Dr Westmore said in his report of 4 December 2008 that the diagnostic opinions he had offered in his previous report remained unaltered.

52 In his last report Dr Westmore said:-

“There has obviously been some progress in Mr Mercael’s legal case since I last assessed him and I believe some progress in his mental state as well. While he remains depressed, he is less agitated and certainly less angry. He has stopped a hunger strike and while his insight into the wrongness of his actions still appears to be compromised he was able to acknowledge that he was sorry for what he had done.”

53 In his remarks on sentence the sentencing judge said that he accepted that at the time of the offences the applicant had been suffering from a major depressive illness. The sentencing judge said that he also accepted that the applicant had had difficulty in adjusting to changes in his life.

54 The sentencing judge quoted the parts of Dr Westmore’s second report which I have quoted. His Honour observed that the summary of the Justice Health records in Dr Westmore’s second report tended to support a tentative opinion Dr Westmore had expressed in his first report that the applicant might have a narcissistic personality trait.

55 The sentencing judge said that he accepted Dr Westmore’s opinion “that this is not a case of morbid jealousy”. His Honour continued:-

“It (the Court) also accepts that, at the time of the offence, the offender was experiencing a significant level of depression and having difficulties adjusting to the separation from his wife, having to care for three sons and the Dutch authorities rejection of his migration application.”

56 The sentencing judge also said in his remarks:-

“The premeditation, his inquiry to the police about his wife and the abandonment of the vehicle so far away from the scene of the stabbing satisfies the court that, at the time of the stabbing, he knew what he was doing, that it was wrong and its consequences. The history of domestic violence deprives him of any claim that this assault was an isolated aberration.”

57 In his remarks the sentencing judge noted the submission which had been made by counsel for the applicant in the proceedings on sentence that the applicant’s culpability was diminished because of the state of his mental health at the time of the offences. Counsel had referred to the conclusion to Dr Westmore’s first report which I have already quoted. Counsel had submitted that in this part of his report Dr Westmore had expressed an opinion that there was a causal connection, a “link”, between the two matters referred to, and particularly the applicant’s “likely severely depressed mood at the time the incident occurred”, and the commission of the offence.

58 The sentencing judge rejected these submissions. In doing so his Honour referred to the decision of the Court of Criminal Appeal in Wilmot v R [2007] NSWCCA 278.

59 Dr Westmore had also provided evidence in the proceedings for the sentencing of the offender in Wilmot. In that case Dr Westmore had expressed the opinion that the offender “was mentally ill at the time of the offending behaviour and it is probable that his mental illness played an immediate or direct role in his offending behaviour”.

60 In Wilmot the sentencing judge accepted that the offender had been suffering from a mental illness and took that into account as a subjective factor. However, notwithstanding Dr Westmore’s opinion, the sentencing judge declined to find that the applicant’s mental illness had played a role in the commission of the offence.

61 The Court of Criminal Appeal rejected a submission made on behalf of Wilmot that the sentencing judge had erred in not finding a connection between the mental illness and the commission of the offence. The leading judgment of the Court of Criminal Appeal was delivered by Hidden J. In par 32 of his judgment his Honour said:-

“I must say that this aspect of the matter has troubled me. However, as I have said, the question of a link between the applicant’s mental illness and his offences was a matter for expert evidence. Whilst acknowledging the undoubted expertise of Dr Westmore, his second report was wholly inadequate to establish that link. The bare assertion of a link, without elaboration, was insufficient: cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 . It was open to his Honour to find that the connection had not been established.”

62 In the present case Judge Sides noted that the decision of the Court of Criminal Appeal in Wilmot had been handed down on 28 September 2007, that is before Dr Westmore made any of his three reports about the present applicant. His Honour further noted that Dr Westmore had not in his later reports expanded or added to any opinion expressed in the conclusion to his first report.

63 It would seem to be implicit in Judge Sides’ remarks on sentence that it can be inferred that Dr Westmore, as a leading forensic psychiatrist, would have soon become aware of the judgments of the Court of Criminal Appeal in Wilmot, including the remarks by Hidden J about his own evidence, and in the present case could be taken to have acted advisedly in expressing himself as he had in the conclusion to his first report and in not expanding or adding to that conclusion in his subsequent reports. This was an inference that it was open to his Honour to draw.

64 The sentencing judge concluded:-

“In the Court’s view, as in the case of Wilmot and for the reasons given therein, the passage quoted above (the conclusion to Dr Westmore’s first report) was “wholly inadequate to establish that link.” In addition, in this case, the court is satisfied that the offender wanted to punish the victim because he was angry with her. In the court’s view, that anger goes a long way to explaining his crimes but, in the absence of evidence of a causal connection between it and his depression and adjustment problems, does not provide an excuse for them. Although his levels of anger appear to have subsided since he has been taking his medication, Dr Westmore does not identify a causal connection between his depression and his anger. His anger may have arisen entirely because of his displeasure that his wife had not behaved in Australia and/or during the break up in accordance with cultural norms that the offender still adhered to and was not in any way a symptom of his depression.”

65 Elsewhere in his remarks his Honour said:-

“The court considered whether, because of his depression and adjustment problems at the time of the offences, the offender is an appropriate vehicle to be used to deter others. The court has found that, out of anger, the offender decided to punish the victim and took the knife with him to achieve that end. It also found no causal connection between his mental illness issues and his crimes. In the court’s view, it is appropriate to reflect general deterrence in this case. In light of his failure to alter his ways in response to the criminal justice system’s earlier interventions, it is also appropriate to reflect personal deterrence in the sentences.”

66 On this application it was submitted that “his Honour took a selectively angled view in dismissing any causal connection between the applicant’s depression and the commission of the offences”. It was submitted that it had not been reasonably open to the sentencing judge to find that the applicant’s mental condition was of no relevance in the sentencing process.

67 I do not consider that Counsel for the applicant’s submissions should be accepted.

68 In Engert v R (1995) 84 A Crim R 67 Gleeson CJ said at 71:-

“The existence of such a causal relationship (between the mental disorder and the commission of the offence) in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case.”

69 However, the existence of such a causal relationship will often be a matter of some mitigation of penalty and in the present case the principal contention made on behalf of the applicant was that the sentencing judge had erred in not finding such a causal relationship.

70 As the existence of such a causal connection or relationship would be a matter of mitigation, the onus is on an offender to prove, on the balance of probabilities, that such a causal connection existed and, at least ordinarily, expert evidence will be required to prove the connection (see Wilmot at [26] and [32] per Hidden J).

71 In the present case the sentencing judge held that the evidence sought to be relied on in the conclusion to Dr Westmore’s first report was inadequate to establish the connection and the sentencing judge observed that Dr Westmore had not supplemented that evidence in his subsequent reports.

72 In the conclusion to his first report Dr Westmore had said that a court might take into account the applicant’s likely severely depressed mood at the time the offences were committed by way of mitigation.

73 It is unclear whether this statement by Dr Westmore amounted to expressing an opinion that there was a causal connection between the applicant’s depressed mood and the commission of the offences. The statement fell short of the clear opinion expressed by Dr Westmore in Wilmot that it was probable that the offender’s mental illness had played an immediate or direct role in the offending behaviour.

74 However, even if Dr Westmore should be taken as having expressed in his first report an opinion that there was a causal connection between the applicant’s depression and his offending, a bare assertion of a connection, without elaboration, would be inadequate to establish such a connection. See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 especially at 743-744.

75 The sentencing judge’s finding that no connection or link had been established was a finding as to a matter of fact and this Court is bound by such a finding unless it was not open on the evidence or unless error is demonstrated within House v The King (1936) 55 CLR 499 at 504-505. See for example Kalemusic v R [2009] NSWCCA 178 at [27].

76 In the present case I consider that the sentencing judge’s finding, for the reasons given by him, was open on the facts and no error has been established.

77 In the absence of the applicant establishing a causal connection between his mental illness and the commission of the offence, there was no error in the sentencing judge’s treatment of the evidence of the applicant’s mental illness. It is not correct to say that the sentencing judge held that the applicant’s mental condition was of no relevance in the sentencing process. His Honour did take into account, in the applicant’s favour, that his mental illness would make imprisonment more onerous for him.

78 It not having been established that there was any causal connection between the applicant's mental illness and the offending, there was no error in his Honour’s finding that the applicant was an appropriate vehicle for a sentence to be imposed which would give effect to the sentencing purpose of general deterrence.

79 I would reject the first ground of appeal.

Ground 2 — The sentencing judge erred by finding that the offence fell “well above” the mid-range of objective seriousness .

80 In his remarks on sentence the sentencing judge, after referring to the standard non-parole period for the offence, held that the offence fell well above the middle of the range of objective seriousness for offences under s 33 of the Crimes Act.

81 Earlier in this judgment I summarised the sentencing judge’s statement of the facts of the relationship between the applicant and the victim and the events of 21 November 2007 and I held that the sentencing judge had not erred in finding that the commission of the offence had been premeditated.

82 In his remarks on sentence the sentencing judge summarised the objective facts of the offence as follows:_

“This was a prolonged and ferocious attack using a knife that was directed at the upper parts of the victim’s body. It involved multiple blows while she was effectively trapped within the confines of the vehicle. When he dragged her from the car there was one further blow to the back of the neck or shoulder before he fled, leaving her bleeding. Many wounds were to her upper torso area and at least some were life threatening. The lungs were punctured requiring drainage. The scarring indicates at least thirteen stab or slash wounds. He did desist but, in the court’s view, that was because he had achieved what he intended. Before then he fobbed off his son’s attempts to protect his mother and continued with the attack notwithstanding the victim and their son’s cries for help or to call the police. In the court’s view, he wanted his punishment of the victim to be severe and her to suffer as a consequence. She is left with significant disfigurement from the scarring. Not only did he show callous disregard for the victim, but also their ten year old son who witnessed the entire terrifying event.”

83 On the hearing of the application there was no criticism, nor could there have been any criticism, of any part of this summary by the sentencing judge.

84 In rejecting the first ground of appeal I held that the sentencing judge had not erred in finding that a connection or link between the applicant’s mental condition and the commission of the offence had not been established.

85 This Court has held on a number of occasions that determining the level of objective seriousness of an offence is a function involving either the exercise of a discretion or the making of an evaluation, such as to be classically within the role of a primary judge and that the Court of Criminal Appeal will be slow to set aside a determination of the level of objective seriousness of an offence made by the primary judge. See for example R v Mulato [2006] NSWCCA 282, especially per Spigelman CJ at [37] and Simpson at [46].

86 In my opinion, it was open to the sentencing judge to determine that the offence was well above the mid-range of objective seriousness for offences under s 33 and this Court should not intervene. I would reject the second ground of appeal.

Ground 3 — The sentencing judge erred by finding that the offender’s prospects of rehabilitation and not re-offending (were) “no higher than reasonable”.

87 In his remarks on sentence the sentencing judge said:-

“His characterisation of the crime as one of passion and, not like an armed robbery gone wrong, shows the lack of insight into the factors underlying his crime. His prior offending is limited to the victim, however, unless he addresses his pre-disposition to anger to address his displeasure, is more flexible in his attitude to western culture and respects the criminal justice system and orders, then he remains a risk to society. In all the circumstances the court can only place his prospects of rehabilitation and not re-offending no higher than reasonable.”

88 Counsel for the applicant relied on the fact that the applicant’s prior offending had been limited to the victim. Counsel also relied on parts of Dr Westmore’s final report in which Dr Westmore recorded the applicant as asserting that “I am not a risk to society” and that he was not a continuing risk to the victim because “she is out of my life” and in which Dr Westmore expressed the opinion that there had been some progress in the applicant’s mental state and that, in particular, he was less angry.

89 However, even after taking into account that the applicant’s prior offending had been limited to the victim and taking into account the parts of Dr Westmore’s last report to which counsel referred, it was clearly open to the sentencing judge, for the reasons which his Honour gave, to make a finding that the applicant’s prospects of rehabilitation were no higher than reasonable. Even in his last report Dr Westmore said that the applicant’s insight into the wrongfulness of his actions still appeared to be compromised.

90 I would reject the third ground of appeal.

Ground 4 — The sentence was manifestly excessive .

91 No independent submissions were made in support of his ground. Having rejected the first three grounds of appeal, I would also reject this ground.

Orders

92 Having rejected all of the grounds of appeal, I would, while granting leave to appeal against the sentence for the s 33 offence, dismiss the appeal against sentence.

93 DAVIES J: I agree with James J.

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