Moiler v R

[2021] NSWCCA 73

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Moiler v R [2021] NSWCCA 73

Hearing dates:

12 April 2021

Date of orders:

12 April 2021

Decision date:

21 April 2021

Before:

Basten JA at [1];
Davies J at [3];
Button J at [4]

Decision:

1.   Grant the applicant leave to appeal from the sentence for reckless wounding imposed by the District Court on 24 April 2020.

2.   Set aside the sentence for reckless wounding.

3.   Resentence the applicant to a non-parole period of 19 months to date from 13 October 2019 and a balance of term of 17 months.

4.   The effect is that the applicant is entitled to release on parole on 12 May 2021, with the balance of term due to expire on 12 October 2022.

Catchwords:

SENTENCING — appeal against sentence — reckless wounding — offender on parole for identical offence — schizophrenia and intellectual deficits — drug abuse — whether head sentence of imprisonment for 4 years after application of 25% discount manifestly excessive — approach to mental illness when not relied upon as direct or immediate cause of offending — approach to mental illness when inextricably bound up with drug abuse — ground established and head sentence and non-parole period reduced — recommendation that State Parole Authority consider imposing further conditions of parole

Legislation Cited:

Crimes Act 1900 (NSW), ss 35, 58

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Crimes (Administration of Sentences) Act 1999 (NSW), ss 128, 158

Cases Cited:

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

Texts Cited:

Oxford Concise Medical Dictionary, 8th ed (2010)

Category:

Principal judgment

Parties:

John Moiler (Applicant)
The Queen (Respondent)

Representation:

Counsel:

P Coady (Applicant)
S Traynor (Respondent)

Solicitors:

Legal Aid (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/217755

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 April 2020

Before:

Noman DCJ SC

File Number(s):

2019/00217755

Judgment

1. BASTEN JA: I agree with Button J. I add the further brief observation.

2. In a recent affidavit, prepared for the purposes of this hearing, the applicant demonstrated a degree of insight into his condition and the fact that drugs had exacerbated his mental illness in the past, rather than ameliorating it. He will undoubtedly need assistance in the future from those he trusts to help him maintain a regime of appropriate medication and avoidance of illicit drug taking. I therefore support the recommendation of Button J that the Parole Authority provide assistance to him in giving effect to these insights.

3. DAVIES J: The reasons of Button J are also my reasons for having joined in the orders of the Court on 12 April 2021.

4. BUTTON J:

Introduction

5. On 12 April 2021, I joined in orders of this Court with regard to an application for leave to appeal against sentence brought by Mr John Moiler (the applicant), and founded on a single ground of manifest excess. Those orders were as follows:

1. Grant the applicant leave to appeal from the sentence for reckless wounding imposed by the District Court on 24 April 2020.

2. Set aside the sentence for reckless wounding.

3. Resentence the applicant to a non-parole period of 19 months to date from 13 October 2019 and a balance of term of 17 months.

4. The effect is that the applicant is entitled to release on parole on 12 May 2021, with the balance of term due to expire on 12 October 2022.

5. Reasons are reserved.

6. These are my reasons for doing so.

Objective features

7. The applicant had been sentenced by her Honour Judge Noman SC in the District Court for two offences. The first was reckless wounding, contrary to s 35(4) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for seven years, and there is also a standard non-parole period of three years. The second offence was resisting a police officer in the execution of his or her duty, contrary to s 58 of the Crimes Act. That offence carries a maximum penalty of imprisonment for five years, and no standard non-parole period.

8. Taken into account on sentence for the reckless wounding by way of a Form 1 was a single offence of damaging property. When dealt with on indictment, that offence carries a maximum penalty of imprisonment for five years.

9. The agreed facts of the offending were as follows. On 13 July 2019, the applicant was residing in a motel in Surry Hills. Shortly after midnight, he was heard to be screaming loudly and intermittently in his unit. The victim, who lived in the unit next door, attended outside the unit of the applicant, and told him to “shut up”. The applicant opened his door, a verbal argument ensued, the applicant threw a punch at the head of the victim, and the two men commenced to punch each other. Meanwhile, the motel receptionist promptly called 000.

10. After the exchange of blows, the applicant grabbed a fire extinguisher and struck the victim with it to the head. That action caused a picture frame in the hallway of the motel to fall on top of the victim. It smashed, and its glass also fell on top of him. The offender used the extinguisher to strike the victim some more times, and he began to bleed heavily from the head. The receptionist left the scene for a short time in order to provide entry to the police. When he returned, he saw the offender “standing over” the prone victim.

11. Police informed the applicant that he was under arrest. He would not comply, became aggressive, and the police ended up placing his arm behind his back to restrain him.

12. Thankfully, although he had been attacked to the head with a heavy item, the victim suffered no injury greater than a laceration to one of his ears. Having said that, it was “full thickness”, and he required hospital admission and surgery.

13. In short, the mental element of the reckless wounding was foresight of the possibility of the infliction of actual bodily harm; the wounding itself was a serious cut to one ear; the resistance to arrest was overcome with little difficulty; and the Form 1 offence encapsulated damage to the fire extinguisher, the picture frame, and, separately, the destruction of a television set (I infer in the motel room of the applicant) worth $1,000.

Subjective features

14. The applicant pleaded guilty to both offences in the Local Court, and the individual sentences were discounted by 25% for the utilitarian value of those early pleas.

15. The following is largely derived from a detailed psychiatric report tendered on sentence authored by an eminent forensic psychiatrist, and the criminal and custodial records of the applicant.

16. The applicant was born in April 1990, and was accordingly 29 years of age when the offences were committed. He will shortly turn 31. An Aboriginal man, he was born into a family with a history of mental illness. His parents separated when he was two years of age. He grew up in the outer western suburbs of Sydney and in country towns. At school he showed signs of low intellectual functioning, found it hard to learn to read and write, and was placed in special classes. He was also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), and was prescribed medication for it.

Prohibited drugs and mental illness

17. The applicant commenced smoking cannabis when he was aged 13 or 14, and he abused it heavily until he was about 21. He eventually ceased because of side-effects that included paranoia. He used LSD in 2016, and had commenced to inject “ice” the year before, though it seems that he had used methylamphetamine in other forms well before that.

18. Although he has worked in a factory and as a labourer at various times over the years, he has endured periods of homelessness, isolation and impoverishment.

19. In accordance with the above features, the forensic psychiatrist diagnosed the applicant with substance use disorder with regard to a dependence upon methylamphetamine, borderline intellectual functioning, and childhood ADHD. But, in my opinion, the most compelling diagnosis provided by that expert underpinning all that has gone wrong in the life of the applicant is that of the chronic and serious mental illness, schizophrenia.

20. The psychiatric report speaks of the applicant first being admitted to a mental hospital in late 2009, a decade before the offences under consideration. Since then he has been treated as an in-patient on many occasions. He has also been under the care of the Redfern Community Mental Health Team. A sketch of his admissions, symptoms, diagnoses and treatments, both in custody and in the community, follows.

21. From November to December of 2009, the applicant presented with symptoms that included “persecutory delusions, delusions of reference, tactile and olfactory hallucinations, increased sexual preoccupation, insomnia and dysphoric mood [dissatisfaction or restlessness]”.

22. An opinion expressed in the discharge summary on that occasion was that his mental state had been precipitated by abusing methylamphetamine for the first time, and that his chronic abuse of cannabis in large amounts over many years was by no means irrelevant.

23. In December 2009, only three days after that previous presentation, the applicant presented with anxiety and thoughts of self-harm. It was noted that he was not tolerating the conditions at Odyssey House (to which he had been admitted three days earlier, for the purpose of drug and alcohol rehabilitation).

24. In 2016, the applicant was admitted to St Vincent’s Hospital in Darlinghurst on three occasions.

25. From March to April 2016, the applicant was admitted to hospital after he was “found naked in front of a church, thought disordered and behaving bizarrely”. He believed that a “drone” was “after him”. Mental state features on admission included perplexed and disorganised thinking. He was diagnosed with psychosis, but it was noted that his signs and symptoms were indicative of schizophrenia. The applicant’s treatment was changed back to Risperidone, an antipsychotic medication.

26. In July 2016, over a period of three days, the applicant presented “in the context of aggression” towards residents of the local homeless shelter, where it was said that he was threatening them with a knife. It was noted that the applicant was agitated and was responding to internal stimuli. A urine drug screen conducted at the time revealed that the applicant tested positive to methylamphetamines, which suggested that his drug use had caused his relapse into psychosis.

27. In September 2016, over one week, the applicant presented to police reporting auditory hallucinations which were commanding him to stab other people. A complex delusional system was noted: the applicant experienced passivity phenomena (whereby “a patient has the impression that his or her feelings or actions are those of another or others, usually an unknown outside power”) and thought broadcasting (a psychotic symptom whereby the patient feels that their thoughts “are being distributed into other people’s thoughts”): see Oxford Concise Medical Dictionary, 8^th ed (2010).

Offending in 2017, and incarceration

28. The criminal record of the applicant commenced in 2007, with an offence against property. Since then there have been a number of violent but less serious interactions with police, further offences of dishonesty or damage, and offences of possession of prohibited drugs. He was in and out of custody for short periods from early 2009 until mid-2016.

29. The most important part of the prior criminal record of the applicant is that he committed a reckless wounding on 22 October 2017. In a nutshell, he had asked the male victim, who was sitting outside a suburban railway station eating his lunch, for a cigarette. When the request was declined, the applicant stole a knife from a nearby shop, and used it to stab the victim to the upper part of his left arm. Thankfully, the wound was able to be treated by way of six sutures.

30. When arrested a few days later, the applicant told the police that he had been under the residual influence of ice, and that the victim, along with everyone else at the railway station, had been “pissing him off”.

31. The commission of that offence led to a head sentence of imprisonment for 2 years that commenced on 25 October 2017, and concluded on 24 October 2019, with a non-parole period of one year that concluded on 24 October 2018.

32. It follows that, when he committed the offences under consideration, including a dangerous reckless wounding, the applicant was on parole for the identical offence, committed in circumstances that were equally dangerous and completely irrational. That was not only an obvious aggravating feature of the current matters; it also raised a question about protection of the community.

33. In November 2017, in custody, the applicant was again assessed as experiencing psychosis, auditory hallucinations, and apparent delusions. He had admitted to using ice, which exacerbated the auditory hallucinations that told him to do “both ‘good’ and ‘bad’ stuff”. The applicant reported that he was fearful for his safety around inmates; he was reviewed in a hospital wing. It was noted that his symptoms were not being controlled by medication, prompting the treating doctor to change the medication. Around that time, the treating nurse indicated that the applicant was “laughing and giggling to himself throughout the period of assessment and report[ed] ongoing voices”.

34. From November to December 2017, the applicant was managed in “safe-cell conditions” due to his chronic psychotic symptoms and unstable mental state. He continued to report hearing voices, and his mood and affect were observed as labile. It was opined that he was suffering from schizoaffective disorder, as well as disorganised thinking and elevated mood. The applicant at this stage was prescribed various anti-psychotic medications.

35. In January 2018, ongoing auditory hallucinations were noted. Separately, the applicant was assaulted at a wing in Long Bay Hospital. On the day after the assault, a mental health review indicated that the applicant remained disorganised and paranoid in his thinking. He was subsequently transferred to the Mental Health Screening Unit (MHSU). It was recorded that the applicant remained “distractible and thought disordered” following admission to the MHSU.

Events since release to parole in late 2018

36. In October 2018, the applicant was released on parole and was living on the streets. He continued to present as paranoid and anxious. He was able to stay free of prohibited drugs for a short time. Unfortunately, he relapsed, and was using prohibited drugs again by mid-2019, and indeed in the immediate lead up to the offences.

37. By the evening in question, he had been living in the inner city motel for only a matter of days. Bearing in mind the intermittent screaming and the destruction of the television set, it is noteworthy that, in early 2020, the applicant had expressed ideas of reference with regard to a television.

38. Shortly after having returned to custody, bail refused, on the matters under consideration, in July 2019, the applicant voiced beliefs that he was being poisoned by other inmates. He also noted command auditory hallucinations telling him to hurt others and reported “seeing things”. The applicant commenced treatment with anti-psychotic medication and was under observation in the clinic at Parklea Gaol over the following weeks. He was later placed in a camera cell for Risk Intervention Team (RIT) observation.

39. In August 2019, while under RIT observation, the applicant was observed self-harming by cutting his left wrist.

40. As for the future, the forensic psychiatrist recommended a treatment plan involving ongoing case management; appointments with his case manager and treating psychiatrist; and engaging in drug and alcohol treatment services and other appropriate social and therapeutic interventions.

41. In short, the applicant has obviously been chronically and severely mentally ill for years, though one can readily infer that there is a complex inter-relationship of cause and effect and exacerbation between his mental illness, his intellectual deficits, and his abuse of prohibited drugs. And there is also an obvious issue about the protection of the community once he re-joins it.

Aspects of sentencing judgment

42. In the sentencing judgment, her Honour noted that the applicant did not speak of command hallucinations preceding these offences, in contrast to the offence at the railway station in 2017. Her Honour also expressed the view that, although mental illness undoubtedly played its part, so did abuse of prohibited drugs. In the event, she determined that mental illness had not “operated in isolation or a material way”. Having said that, her Honour felt that the psychiatric illness and limited intellectual functioning of the applicant reduced his moral culpability to a moderate degree.

43. As for remorse, her Honour referred to a concise letter from the applicant. The judge was not satisfied that “the remorse is fulsome or demonstrative of insight or that he has accepted responsibility for his actions”.

44. The applicant had been in custody since 13 July 2019. His parole was revoked, and he “owed” a little over three months before the full term of the sentence would expire on 24 October 2019.

45. In the event, the following sentence structure was adopted. A fixed term of imprisonment for six months for the resist arrest was imposed that commenced on 13 September 2019, and expired on 12 March 2020. For the reckless wounding, taking into account the property damage offence on the Form 1, a head sentence of imprisonment for 4 years was imposed, to commence on 13 October 2019 and expire on 12 October 2023. Special circumstances were found, and a non-parole period of two years was imposed, to expire on 12 October 2021.

46. In other words, the applicant spent a period of two months in custody solely referable to the balance of parole. Furthermore, he spent one month in custody solely referable to the resist arrest, before the sentence for the reckless wounding commenced.

Submissions in this Court

47. Counsel for the applicant submitted that, in all the objective and subjective circumstances, the sentence for the reckless wounding was patently beyond the bounds of the sentencing discretion reposed in her Honour.

48. He made five admirably focused submissions: (i) the starting point of that sentence must have been 5 years 4 months, in the context of a maximum penalty of seven years; (ii) the finding that the offence fell within “the mid-range for a reckless offence” was open, but directly or indirectly must be tempered by the significant reduction in the moral culpability of the applicant; (iii) the inevitable vulnerability of the applicant in custody is not sufficiently reflected in the ultimate sentence; (iv) the Form 1 offence could not have operated markedly to increase the sentence for the reckless wounding; and (v), the finding about remorse, bearing in mind that the applicant by the time he tried to express it was medicated, blunted by schizophrenia, and of low intellectual functioning, did not find expression in the outcome.

49. For the Crown, it was said with similar conciseness that it was open to her Honour to find that abuse of prohibited drugs played a significant role in the offences, even allowing for the mental illness of the applicant. It was also said that the applicant having been on parole for a similar offence was not only an aggravating feature, but also gave rise to a need to reflect upon the protection of the community. It was noted that, according to the psychiatric report, the applicant had ruminated about harming others more generally.

50. The respondent submitted that the starting point of the head sentence was not plainly unjust, bearing in mind that the applicant had attacked another man to the head, leading to a significant wound, and done so whilst on parole for the same offence.

47. It was said that mental illness and intellectual deficits were certainly taken into account in the sentencing judgment, as was the reduced moral culpability of the applicant.

48. It was also said that the analysis in the sentencing judgment of the question of remorse showed that her Honour was not satisfied that had it had been established, in accordance with s 21A(3)(I) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

49. It was submitted that, despite the subjective case, there remained a need for specific deterrence in this case, and for the protection of the community.

50. The ultimate submission was that, on careful analysis, neither the head sentence nor the non-parole period was manifestly excessive.

Determination

55. I respectfully came to the view that the sentence for the reckless wounding had been shown to be manifestly excessive, for the following reasons.

56. Objectively, the offence was serious, featuring as it did blows to the head with a heavy object. It could obviously have had a catastrophic outcome. But it did not: the wound itself was a significant cut to one ear.

57. Furthermore, the offence was spontaneous, and occurred after a heated confrontation that developed into an exchange of blows between two adult men.

58. Subjectively, the offence was aggravated by the conditional liberty of the applicant for a very similar offence. And abuse of prohibited drugs – pursuant to statute, not a mitigating feature – certainly played a causative role. Even so, all of that had to be seen through the prism of why it was that the applicant was leading a deprived, isolated, disturbed life in an inner-city motel, seeking relief through prohibited drugs, intermittently screaming alone in his room after midnight. The answer, in my opinion, is that his longstanding schizophrenia, if not a direct or immediate cause of the offending, was undoubtedly a significant indirect or contextual cause.

59. It is well known that the assessment of the extent of a mental condition, its causative connection (if any) with offending, and any concomitant reduction in moral culpability and sentence to be imposed are all very much a matter for a sentencing judge: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. Even so, in my opinion care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph speaks of material contribution to offending, not singular or direct causation of it.

60. I accept that the applicant on this occasion did not assert that command hallucinations had “told” him to use the fire extinguisher. But that is hardly to say that his chronic and severe mental illness could not play a significant contextual and causative role in how it was that this offence came to be committed. After all, one could reflect that, if the applicant had not been suffering from a longstanding mental illness and intellectual deficits, and all that has flowed from them, by the age of 29 his life might have turned out very differently.

61. In similar vein, whilst it is true that abuse of prohibited drugs played a role in the commission of the offence, and that abuse of such substances is not a mitigating feature on sentence except in unusual circumstances, care needs to be taken not to permit that statutory prohibition to lead to insufficient weight being given to a closely related mental illness, especially when that illness and the abuse of prohibited drugs are so tightly bound up with each other.

62. In short, the offending in its consequence was not of the greatest seriousness. It was committed by a man with a compelling subjective case that in my opinion greatly reduced his moral culpability. And yet the starting point of the sentence for the reckless wounding was only a little over 18 months short of the applicable maximum penalty. In my respectful opinion, that bespoke error.

Resentence

63. It seemed to me appropriate to replicate the commencement date of the sentence adopted by her Honour, whereby the applicant will have spent two months in custody referrable to the balance of parole, and one month referable to the resist arrest.

64. It also seemed appropriate to replicate the 25% discount, and the finding of special circumstances.

65. But in my opinion a not insignificant starting point of imprisonment for four years was appropriate on resentence, which reduced to a head sentence of three years. Pursuant to statute, a head sentence of that length leads to automatic release at the end of one’s non-parole period.

66. As it happened, if the ratio of non-parole period and head sentence of 50% adopted by her Honour had been replicated precisely by this Court, that would have meant that the applicant would suddenly have been released on the day of the hearing. He would almost certainly have been bereft of social support, a place to live, arrangements with regard to medication, or any other rehabilitative help. That would not only have “set him up to fail”; it could very well also have endangered the community. It was for that reason that I agreed that the non-parole period should expire precisely one month after the date of the hearing of the appeal.

67. Finally, in light of the head sentence imposed, this Court was not empowered to impose any conditions of parole above and beyond those automatically imposed by statute: see s 158 within Division 3 of Part 6 of the Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”). But I respectfully request that the State Parole Authority urgently consider the imposition of further conditions, with the intention of maximising not only the chance of success on conditional liberty of the applicant in the future, but also the protection of the community pursuant to s 128(2)(a) within Division 1 of Part 6 of CASA.

68. It was for the foregoing reasons that I agreed with the orders set out at the commencement of this judgment.

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Decision last updated: 21 April 2021