Munn v R

[2009] NSWCCA 218

New South Wales
Court of Criminal Appeal

CITATION:	Munn v R [2009] NSWCCA 218 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 August 2009
JUDGMENT DATE:	30 September 2009
JUDGMENT OF:	Spigelman CJ at 1; McClellan CJatCL at 9; RA Hulme J at 10
DECISION:	Leave to appeal be allowed. The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence - attempt to strangle with intent to inflict grievous bodily harm - relevance of nature and extent of injuries caused - moderation of sentence by reason of offender's mental condition - whether sentence manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Mitchell; R v Gallagher [2007] NSWCCA 296 R v MW [2007] NSWCCA 291 R v Woods [2009] NSWCCA 55
PARTIES:	Darren Munn (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/14876
COUNSEL:	Mr P Strickland SC (Applicant) Mr D Arnott SC/Ms Ms Cinque (Respondent)
SOLICITORS:	Legal Aid Commission Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0802
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ
LOWER COURT DATE OF DECISION:	17 October 2008

- 1 -

2007/14876

SPIGELMAN CJ
McCLELLAN CJ at CL
R A HULME J

30 September 2009

DARREN MUNN v REGINA

Judgment

1 SPIGELMAN CJ: I agree with the judgment of R A Hulme J which I have read in draft. No error in the exercise of the sentencing discretion has been identified.

2 I wish to add some observations with respect to the long period of offending by the applicant which her Honour Judge Ainslie-Wallace set out in the following summary:

“The offender … has an extensive criminal history commencing with convictions in the Children’s Court in 1995 for assault and malicious damage. He was convicted of those two offences again on two occasions in March 1996. He has many convictions for crimes of dishonesty, commencing in 1996. Offences in October 1996 were dismissed under the provisions of the Mental Health Act and the offender was placed on a good behaviour bond. He breached that bond in March 1997 he was convicted of larceny. He has other convictions for offences involving dishonestly driving and possession of drugs.
In November 1998 the offender was convicted of assaulting an officer in the execution of his duty and was convicted of assault in February 2001 and assault occasioning actual bodily harm in May 2001. Both of these offences were dismissed under the Mental Health Act . In December 2001 the offender was again convicted of assaulting a police officer and placed on an eighteen months good behaviour bond with conditions that he attend a programme conducted by the St Vincent’s Mental Health Service. In January 2002 he was convicted of assault and placed on a s 9 good behaviour bond. In May 2002 he was again convicted of assaulting an officer. This too was dismissed under the Mental Health Act . In September 2002 he was convicted of robbery with an offensive weapon and placed on a four year good behaviour bond. This criminal history, is to some extent, illuminated by the offender’s psychiatric history.
The offender has had a number of admissions to psychiatric units, either as a voluntary patient or has been retained involuntarily. On a number of occasions his condition has been assessed as a drug induced psychosis. He has refused to remain in hospital for drug detoxification.”

3 Expert evidence was given before her Honour as to the psychiatric condition of the applicant and the professional medical assistance that may be available to him. Her Honour noted:

“Dr Reid was not particularly optimistic that the offender could learn to modify his behaviour and cited his inability to control his use of drugs and his criminal history as support. He said that the offender has had no intensive intervention which Dr Reid said would involve extensive one on one therapy over an extended period of time.
That the offender has a brain injury which has caused him to lack appropriate impulse control gives a context to his criminal history and would not necessarily mean that his past criminal offending indicated a continuing attitude of disobedience to the law.
It was also submitted on behalf of the offender that given his acquired brain injury he is not as an appropriate vehicle for general deterrence as other offenders.
I accept those submissions and find that to the extent that his conduct stemmed from the brain injury it acts to moderate, to a degree, the objective seriousness of the offences. However, as his counsel quite properly conceded Dr Reid’s evidence squarely raises the serious concern of the protection of the community to which the offender’s criminal history speaks. Indeed Dr Reid suggested that the most appropriate way to protect the community from the offender would be to keep him in custody until he learned, through therapy, to control his impulses.”

4 Clearly her Honour was correct to say that a person should not be held in custody for the purpose of therapy. Her Honour was also equally correct to say that the psychiatric condition of the applicant was such that he was not an appropriate vehicle for the purposes of general deterrence.

5 Nevertheless, as her Honour’s summary of his sentencing history shows, the application to him of the provisions of the Mental Health Act on many occasions has had the consequence that the community has not been adequately protected by the administration of criminal justice in his case. Perhaps because of a refusal to address his drug problem, or to otherwise seek out appropriate medical assistance, he has committed a litany of violent crimes of which those for which he stood to be sentenced are simply the most recent.

6 As the High Court made clear in Veen v The Queen (No 2) (1987) 164 CLR 465 at 473, the principle of proportionality, whilst preventing the Court from increasing a sentence “merely by way of preventive detention”, permits a Court to have regard to “the protection of society”. As the Court went on to say the manifestation of a “continuing attitude of disobedience of the law” indicate that retribution, personal deterrence and protection of society are entitled to significantly increased weight. (See also R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 esp at [26].)

7 Considerations of retribution, personal deterrence and protection of society in a case such as the present indicate that a longer period of incapacitation is appropriate. Personal deterrence considerations encompass establishing an incentive for an offender to address his mental health issues, both in terms of drug dependence and generally.

8 Although her Honour did not refer to these matters in this way, reference to them reinforces my conclusion that the sentence imposed upon the applicant was well within the range of the proper exercise of the sentencing discretion.

9 McCLELLAN CJ at CL: I agree with R A Hulme J.

10 R A HULME J: Daniel Leslie Munn (“the applicant”) applies for leave to appeal against one of two sentences imposed upon him by her Honour Judge Ainslie-Wallace (“the judge”) in the District Court on the 17 October 2008. He was sentenced for an offence of assault occasioning actual bodily harm, for which pursuant to s59(1) of the Crimes Act 1900 there is a maximum penalty of imprisonment for 5 years, and an offence of attempt to strangle with intent to commit an indictable offence, namely maliciously inflict grievous bodily harm, for which pursuant to s37 there is a maximum penalty of imprisonment for 25 years.

11 The learned judge sentenced the applicant for the first offence mentioned to a fixed term of imprisonment for 18 months to commence on 29 March 2008 and for the second offence to imprisonment for 9 years with a non-parole period of 5 years 6 months to commence on 29 March 2009. The non-parole period expires on the 28 September 2014 and the total sentence expires on 28 March 2018. The overall sentence is thus one of 10 years with a non-parole component of 6 years 6 months.

The proceedings

12 The applicant was arraigned before her Honour on the 21 May 2008 upon an indictment containing four counts. Count 1 alleged an offence of attempting to strangle with intent to murder (s 29). Count 2 alleged, in the alternative, an offence of attempt to strangle with intent to commit an indictable office, namely maliciously inflicting grievous bodily harm (s 37). Count 3 alleged, further in the alternative, an offence of maliciously inflicting grievous bodily harm (s 35). Count 4 alleged an offence of assault occasioning actual bodily harm (s 59(1)). The applicant pleaded guilty to count 4 but not guilty to each of counts 1 to 3 so a jury was empanelled and a trial ensued. The principle issue in the trial was the state of mind of the applicant at the time he committed the acts which were the foundation for the counts which were before the jury.

13 On the 3 June 2008 the jury returned a verdict of not guilty in respect of count 1 but guilty in respect of count 2. There was then, of course, no need for the jury to return a verdict on count 3.

Facts

14 The judge’s carefully reasoned remarks on sentence disclose the following as to the facts of the offences.

15 The applicant and the victim had been in a relationship for some time in which there had been a number of occasions when he and the victim had argued and she had attempted to end the relationship and the applicant had threatened to do some harm to himself. On each occasion the victim had agreed to resume their relationship. She described the applicant as being possessive and persistent in making contact with her.

16 There was telephone contact between the two on the evening of 9 July 2007. They argued and she told him that she did not want to continue the relationship with him. The next day the applicant rang the victim and said that he was coming to see her. She did not want him to come to where she was living because she lived with her parents and was anxious that he not make a scene and embarrass her or her family. She went to leave and got into her car. As she drove away from her home she saw the applicant standing in the street in a way that blocked her passage. She opened the car door and told him to get in. Her intention was to drive him away from where she lived and drop him off. She was very angry with him and shouted at him as she continued to drive.

17 The victim drove to the intersection of Alfred and Warringah Roads at Narraweena. The argument between the two had progressed to a point where the applicant had hold of the victim’s hair, he was shaking her head and was screaming at her and calling her a “fucking bitch”. The victim was in tears. As she was making a left turn, the applicant grabbed the steering wheel and immediately started to punch her. He delivered five to ten hard blows to the left side of her head with his closed fist. These facts comprised the offence of assault occasioning actual bodily harm to which the applicant pleaded guilty.

18 As a result of the assault the victim lost control of her car and it slewed between lanes, collided with another car and came to stop at the median strip on Warringah Road. As soon as the car stopped the applicant put both his hands around her throat and started to squeeze. The victim said that it felt like unceasing pressure on her neck and she was scratching at him, trying to make him stop. She said that she could not breath and she thought she was going to die. She described everything going dark and hearing glass breaking and the applicant then loosened his grip on her throat.

19 A number of people who were driving along Warringah Road at the time were witnesses to the applicant’s actions. One man said that he and his workmate had seen the applicant punching the victim and they decided to stop. As they drove past the victim’s car the man said the victim’s head was on the passenger’s seat and the applicant had twisted around and was holding her by the neck choking her. Her eyes were black and swollen over completely. She had blood frothing out of her nose. The witness described the applicant’s hands around the victim’s throat at about the level of the Adam’s apple with his thumbs crossed over in front of her throat. It appeared to him that the applicant was pushing down on the victim’s throat.

20 The witness’ workmate tried the car door but it would not open. He then knocked on the passenger’s side window and the applicant turned to him and told him to “fuck off”. He said that the victim’s face was purple and swollen. He kicked in the car window and reached in and opened the passenger door. All the while the applicant continued in his attempt to strangle the victim. As the door opened the applicant tumbled out onto the road. Another witness to the incident said the victim had tears of blood running down her face.

21 The victim was taken to hospital where she was examined and later released. Her immediate injuries included bruising to both eyes and cheeks, bleeding in her eyes and headaches which persisted for some time.

22 The judge described the injuries sustained by the victim as a result of the attempted strangulation as follows:

“The victim’s injuries from the attempted strangling included loss of consciousness or approaching loss of consciousness. She said:

“Then I just gave up, like fighting. Like, it was that’s it. I’d scratched and fought and then I just gave up. The scratching it was just like I hadn’t breathed for such a long time and everything went dark. Then I heard glass breaking. It was just like a shattering noise. Then I was breathing.”

There is an issue as to whether this amounted to an actual loss of consciousness or a state approaching it. The medical evidence in the trial on the issue, directed to the issue of intent to murder, was to the effect that what the victim described was most likely her lapsing into or going towards a state of unconsciousness, rather than having in fact lost consciousness.

The victim had facial petechiae, pinpoint haemorrhages, to her face from the neck up that the experts said was consistent with compression of blood vessels. Equally she had subconjunctival haemorrhages to both eyes, giving them a completely red appearance. They too are caused by disruption of the small blood vessels in the conjunctiva of the eyes. The purplish colour of her face observed by one of the witnesses standing outside the car was cyanosis, a reference to deoxygenated blood being prevented from returning by blood flow from her face and head area. Again consistent with compression of the blood vessels.”

23 The applicant’s behaviour in the immediate aftermath of the offence was somewhat bizarre. After falling out of the car he quickly got to his feet, looked back at the victim and became upset. He screamed, “I can’t believe what I’ve done” and paced back and forwards before turning and walking into the oncoming traffic. He was seen to throw himself in front of a car which was speeding down the road. He bounced off that car, landed on the road, picked himself up again and threw himself in front of another car. When police arrived on the scene he told them he had a gun and invited them to shoot him.

Subjective circumstances

24 The applicant was born in 1980 and so at the time of the offence he was 27 years of age.

25 He has an extensive criminal history which began in the Children’s Court in 1996 when he was aged 16. The majority of the previous offences involved either violence or dishonesty. They include assaulting police officers, destruction of property, and an offence of robbery whilst armed with an offensive weapon. On many occasions the applicant was discharged pursuant to s 32 of the Mental Health (Criminal Proceedings) Act 1900 (now the Mental Health (Forensic Provisions) Act 1990). The criminal history document that was before the judge recorded that the offence of robbery whilst armed resulted in the imposition of a 4 year bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 on 21 July 2003. If that information is correct, the applicant would have still been subject to that bond at the time of the offences the subject of this application. At the hearing of the application it was put that this offence was in fact an offence of robbery (s 94) and that the bond was for 3 years, not 4. The parties have since checked the relevant records. It has been confirmed that the offence was one of robbery (not whilst armed) but the information as to the length of the bond is somewhat confusing. However, the judge did not take into account that the applicant was on conditional liberty as an aggravating factor pursuant to s 21A(2)(j) Crimes (Sentencing Procedure) Act so if there is an error it had no effect upon the sentence. Moreover, the applicant's record is so extensive that whether the offence was robbery or armed robbery is of no real significance.

26 The applicant has had a number of admissions to psychiatric units as both a voluntary and involuntary patient. On a number of occasions his condition has been assessed as a drug induced psychosis. He has refused to remain in hospital for drug detoxification.

27 Dr Wayne Reid, a clinical neuropsychologist, gave evidence before the judge concerning the applicant’s mental condition. When the applicant was aged 9 he was hit by a car and sustained a severe closed head injury for which he was hospitalised. Behavioural changes ensued and he was reportedly aggressive and disruptive. Psychometric testing conducted in the past showed that the applicant retained a high level of cognitive functioning but had deficits which pointed to frontal lobe dysfunction. In 2001 a clinical psychologist expressed an opinion that the applicant was clinically depressed and had a psychotic illness. In August 2007 the applicant was assessed as having an organic personality disorder and a borderline personality disorder. The applicant gave a history to Dr Reid which included that he had been in and out of psychiatric institutions since he was aged about 14. He told Dr Reid that he was sexually assaulted when he was 13 or 14, although the judge noted that in other reports he had said that this occurred when he was 7. The applicant said that he began taking drugs at the age of 15, and was using heroin on and off between the ages of 16 and 22. He had many unsuccessful attempts at drug rehabilitation.

28 Tests conducted by Dr Reid revealed no clear evidence of neuro cognitive deficits through brain injury and the doctor said that the history of behavioural change was supportive of frontal lobe impairment. This conclusion was supported by the applicant’s poor impulse control, poor ability to evaluate his actions before taking them, poor ability to delay gratification and an inability to learn from or modify his behaviour based on past events. Dr Reid acknowledged that the sexual abuse of the applicant might have impacted on his behaviour but said that his conduct was more attributable to impulsiveness.

29 The judge observed that Dr Reid was not particularly optimistic about the applicant learning to modify his behaviour and that the doctor cited the applicant’s inability to control his use of drugs and his criminal history in support of this.

30 The judge accepted submissions made on behalf of the applicant that his brain injury which had caused him to lack appropriate impulse control gave a context to his criminal history and did not necessarily mean that his past criminal offending indicated a continuing attitude of disobedience to the law. She also accepted that he was “not as an appropriate vehicle for general deterrence as other offenders”. The judge also found that to the extent the applicant’s conduct in committing the offences stemmed from the brain injury it acted to moderate, to a degree, the objective seriousness of the offences. However, as the applicant’s then counsel conceded before the judge, Dr Reid’s evidence squarely raised the serious concern of the protection of the community.

31 The judge accepted that the applicant had expressed remorse for having assaulted his victim and for having hurt her in his attempt to strangle her. She based this finding on a reference tendered in the sentence proceedings and upon the evidence of the applicant’s behaviour immediately after the offence.

32 One particular matter the judge took into account in the applicant’s favour was some assistance he had provided to authorities. There is no issue in relation to this upon the present application so it is unnecessary to set out the detail. The judge indicated that she would discount the sentence that she would impose to reflect this assistance “in the order of 15%”.

33 The judge regarded the plea of guilty to the charge of assault occasioning actual bodily harm as having little utilitarian value but nevertheless indicated that she would discount the sentence she imposed in respect of that offence “in the order of about 10%”.

Assessment of the seriousness of the s 37 offence

34 In addition to the influence of the applicant’s brain injury, in assessing the seriousness of the s 37 offence the judge took into account that it occurred immediately after the applicant had inflicted between five to ten extremely heavy punches to the victim’s head. The judge referred to the evidence of the victim holding up her hands and saying “I’m sorry, please stop, please stop”. She referred to the evidence of the attempted strangulation continuing for between twenty to thirty seconds during which time the applicant maintained constant hard pressure on the victim’s neck. She also noted that it continued notwithstanding that a bystander had knocked on the window who the applicant had told to “fuck off” and also continued when the bystander twice kicked the window in an attempt to break into the car. The judge observed that the applicant only desisted and released his hold on the victim’s throat when the bystander finally succeeded in opening the door. The judge also noted that when the applicant was pressing down on the victim’s throat he would have seen her face turn purple and the bleeding from her eyes and nose and yet did not release the pressure. She said, “that the applicant continued to exert constant hard pressure on the victim speaks loudly of his intention to inflict really serious physical injury on her as the medical evidence has indicated”.

35 Another matter that the judge took into account in her assessment of the objective seriousness of the offence was her finding that the injuries inflicted on the victim by the attempted strangling were “significant and serious”. More will be said about this when dealing with ground 1 of the proposed appeal.

Proposed grounds of appeal

36 Two grounds of appeal are proposed:

1. The learned judge erred in rejecting the applicant’s submission that the injuries suffered by the victim as a result of the offence under Crimes Act 1900 section 37 fell within the lower range of severity for this offence.

2. The sentence imposed in respect of the offence under Crimes Act 1900 section 37 was manifestly excessive in the circumstances.

37 As can be seen, the proposed appeal is only concerned with the sentence imposed for the s 37 offence. There is no complaint about the partial accumulation of that sentence by twelve months upon the sentence for the s 59 offence.

Submissions in relation to ground 1

38 The applicant’s counsel submitted to the judge that the injuries sustained by the victim “fell within the lower range of severity for this offence, notwithstanding it is open to find (the victim) was approaching a state of unconsciousness”. The judge rejected that submission. Earlier at [15] I have set out what the judge said about the immediate injuries sustained by the victim. In dealing with the submission the subject of this proposed ground the judge also said:

“In the longer term, as a result of the attempted strangling the victim said that her throat was sore, she had trouble swallowing for (some) time afterwards, her neck was sore. She suffered from headaches for six months after the event and a feeling of pressure in her head of sufficient intensity that she had to sit down until it passed. According to her this feeling of pressure in her head lasted for six months after the attempted strangling. The petechial haemorrhages and the subconjunctival haemorrhages took four months to resolve.

I am satisfied that the injuries inflicted on the victim by the attempted strangling were significant and serious and I do not accept the submission by counsel for the applicant that they fall towards the lower end (of the range) of injuries. In coming to that finding I take into account that the victim was taken to hospital and released the same night and a CT scan revealed no internal fractures or disruptions to the neck. The mechanism of attempted strangling was extensively canvassed in the evidence of the experts in the trial and I am satisfied that whether the bruising resulted from the attempted (strangling) does not drive a finding that the injuries were not serious or significant.”

39 Mr Strickland SC, who appeared for the applicant in this Court, pointed to the fact that s 37 is contained in Division 6 of Part 3 of the Crimes Act with the Part having the title “Offences against the person” and the Division having the title “Acts causing danger to life or bodily harm”. He then referred to s 33 which provides the offences now described as wounding or grievous bodily harm with intent to cause grievous bodily harm. The Court’s attention was then taken to the judgment of Howie J in R v Mitchell; R v Gallagher [2007] NSWCCA 296 where it was stated:

[27] A very important aspect of an offence under s 33 is the result of the applicant’s conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence.

40 It was submitted that the reasoning of Howie J in that case applied to the s 37 offence in the present case.

41 Mr Strickland submitted that the evidence at the trial supported the submission that the injuries sustained by the victim were at the lower end of the scale. He referred to the evidence in detail, including, for example, that a CT scan identified no fracture, dislocation or acute intracranial pathology; that there was no bleeding or bruising inside the brain; that photographs taken the day after the offence revealed no apparent bruising on the neck; and that there was no evidence of damage to the larynx.

42 Mr Strickland developed his argument in relation to this ground at the hearing of the application by drawing a distinction between the psychological impact of the offence upon the victim and the physical injuries. He conceded that the psychological impact was “serious and significant” and also that it was “long lasting” but he contended that the physical injuries could not be described as of the same severity.

43 The Crown submitted that it was well open to the judge to find that the injuries resulting from the attempted strangulation “were significant and serious”. The Crown pointed to the fact that they involved both physical injuries and significant ongoing psychological problems. It was submitted that the seriousness of an offence contrary to s 37 is not confined to a consideration of the seriousness of the resulting injuries. Other factors which may be relevant include an applicant’s motivation, whether there was any provocation, whether the applicant desisted from choking the victim voluntarily or had to be pulled away by others and the vulnerability of the victim. Reference was made to the judgment of McClellan CJ at CL in R v MW [2007] NSWCCA 291 where at [43] his Honour said:

“There will be varying degrees of criminality in an offence contrary to s37. … It must be remembered that the offence itself is defined as “attempt to choke”. When that attempt results in the victim becoming unconscious the offence is one of considerable gravity.”

44 In relation to the applicant’s reference to R v Mitchell & Gallagher (supra) the Crown pointed to the fact that it is an element of an offence contrary to s33 that grievous bodily harm has been inflicted whereas that is not an essential element of an offence contrary to s37.

Consideration of ground 1

45 Mr Strickland conceded at the hearing of the appeal that he could not cavil with the judge’s finding that “the injuries inflicted on the victim by the attempted strangling were significant and serious”. In my view, that finding was well open to her Honour to make. Indeed, on any view, the injuries she found that were attributable to the s 37 offence could not be described as anything less than serious and significant. I note in this context that the judge was astute to exclude from consideration any injuries that were, or might be, attributable to the preceding assault. I also note that the judge’s finding of “serious and significant injuries” was confined to her consideration of the physical injuries. There was evidence of significant and enduring psychological trauma occasioned to the victim as well.

46 Notwithstanding this concession, it was contended nonetheless that the degree of harm occasioned was a significant matter in the assessment of objective seriousness. I take the references to s 37 being found in the same Division of Part 3 of the Crimes Act and to the judgment of Howie J in R v Mitchell & Gallagher (supra) to be intended to support this proposition. It was submitted that by comparison with the limited number of other cases involving s 37, the degree of harm in the present case should be characterised as being in the “lower range”. What “the range” is was not developed and no specific cases were cited in support of this submission.

47 The Crown submission that the infliction of bodily harm is not an essential element of the offence against s 37 is clearly correct. If it is established that “the injury, emotional harm, loss or damage caused by the offence was substantial” (s 21A(2)(g) Crimes (Sentencing Procedure) Act) then a court is required to take that fact into account as an aggravating feature (s 21A(1)(a)) unless it is an element of the offence. The absence of such an aggravating factor does not operate to mitigate the gravity of the offence: see, for example, R v Woods [2009] NSWCCA 55 at [53].

48 A review of the transcript of the trial which the applicant’s counsel invited the Court to receive reveals the genesis of the contention in the Court below that the injuries were in the “lower range of severity”. At the conclusion of the evidence and before closing addresses were made there was discussion between bench and bar as to whether there was sufficient evidence to make out the essential element of “grievous bodily harm” in count 3. It is unnecessary to delve into the detail of what transpired except to observe that the judge held that there was sufficient evidence for that count to go to the jury. Written submissions subsequently made by trial counsel to the judge on sentence erroneously referred to the judge having held that the injuries did amount to grievous bodily harm. It would appear to be this that prompted him to submit that her Honour should find that the injuries “would fall within the lower range of severity for this offence”. That would be an appropriate submission if grievous bodily harm was an element of the offence for which the applicant had been found guilty by the jury, but it was not.

49 The judge was not required to make any determination as to where within a “range” the severity of the injuries sustained by the victim fell. Her finding that they were serious and significant is not gainsaid. I would reject ground 1.

Submissions in relation to ground 2

50 Mr Strickland pointed to the fact that the sentence imposed for the s 37 offence was one of 9 years after allowance was made for a 15% discount for the applicant’s assistance to authorities. Accordingly, it was submitted that the judge’s starting point for the offence must have been in the order of 10 years and 8 months. It was submitted that this starting point, the sentence of 9 years, and the non-parole period of 5 years 6 months were each manifestly excessive having regard to four features of the case. First, the injury sustained indicated that the offence fell towards the lower end of the scale. Secondly, the judge found that the offence was committed impulsively and there was no planning. Thirdly, reference was made to the applicant having suffered the severe traumatic brain injury when he was 9 years old, and that he had been sexually abused in his early teenage years. Reference was also made to his subsequent admissions to psychiatric units, his exhibition of major behavioural problems, and his previous criminal convictions.

51 The Court was taken to the report of Dr Reid in which the doctor expressed the conclusion that the applicant’s brain injury:

“Had a significant role in his repeated offending since the age of 15 resulting in poor impulse control, lack of ability to evaluate situations before acting upon them, difficulties in delaying gratification, difficulties in utilising feedback on his behaviour, that is failing to learn to modify his behaviour from past experience, difficulties with anger management and mood swings”.

52 Reference was also made to other material that was before the judge concerning the effects upon the applicant of his brain injury. It was noted that the judge accepted these reports and accepted that the applicant’s brain injury caused him to lack appropriate impulse control. The judge found that the applicant was not as appropriate a vehicle for general deterrence as other offenders, and that “to the extent that his conduct stemmed from the brain injury it acts of moderate, to a degree, the objective seriousness of the offences.” It was accepted that the judge’s findings were consistent with authorities, specifically R v Engert (1995) 84 A Crim R 67 and R v Hemsley [2004] NSWCCA 228.

53 Finally, reference was made to the applicant’s immediate expression of remorse for having assaulted the victim and hurting her in his attempt to strangle her.

54 The Crown submitted that the submissions on behalf of the applicant underestimated the seriousness of the offence and, in turn, underestimated the moderation of the sentence the judge imposed by reason of the applicant’s psychological and emotional problems. Reference was made to the fact that the maximum penalty for the offence is imprisonment for 25 years. It was submitted that the objective seriousness of the offence was above mid-range but that the judge had taken into account the applicant’s psychological and emotional problems in three ways that were favourable to him. It was submitted that these findings operated to significantly reduce the sentence which might otherwise have been imposed for a very serious offence.

55 In oral submissions Mr Strickland argued that if the sentence was less than it otherwise might have been for the reasons identified by the Crown, then absent those factors the starting point would have been significantly greater than 10 years and 8 months. He submitted that this demonstrated his contention that the sentence was manifestly excessive.

Consideration of ground 2

56 The applicant relies upon four matters that, if accepted, would call for some amelioration of the sentence. I have earlier indicated my view about the first matter concerning the severity of the injuries sustained by the victim. The three other matters - impulsivity and no planning, brain injury sustained as a child, and remorse - were all addressed in the remarks of the judge and there is no contention that she erred in the manner in which she took them into account.

57 The circumstances attending the commission of the s 37 offence in this case are such that the judge was correct to impose a sentence of the order which she did. It was an offence committed in the context of the applicant not wanting to heed the wishes of the victim about their relationship being finished. He was persistent in his approaches to her and when it became clear to him on the day of the offence that she would not comply with his demands he first responded with a violent physical assault. He ignored her submissive pleas and persisted with an attempt to strangle her, intending in doing so to inflict upon her really serious bodily injury. He was undeterred by the attempted intervention of passers-by and maintained his hold of the victim’s throat as her face turned purple and she bled from her nose and eyes. She was left with “serious and significant” physical injuries. There was severe emotional trauma as well.

58 Absent the second, third and fourth matters relied upon by the applicant under this ground a more severe sentence was warranted.

59 I would reject ground 2.

Proposed orders

60 I propose the following orders:

1. Leave to appeal be allowed.

2. The appeal is dismissed.

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01/10/2009 - Corrections to draft judgment inadvertently omitted from first published judgment - Paragraph(s) 25,47,52,56