Picciolo v The Queen

[2011] NSWCCA 180

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Picciolo v R [2011] NSWCCA 180

Hearing dates:

1 August 2011

Decision date:

10 August 2011

Before:

McClellan CJ at CL at [1]
Simpson J at [52]
Fullerton J at [61]

Decision:

1. Grant leave to appeal.

2. Appeal upheld in part.

3. Quash the sentence imposed in the District Court in relation to the offence of aggravated break and enter and for that offence sentence the applicant to an non-parole period of 2 years commencing 14 August 2009 and expiring on 13 August 2011 and to a total term of 4 years expiring on 13 August 2013.

Catchwords:

CRIMINAL - sentence appeal - effect of mental illness on applicant's reasoning capacity and culpability - responding to treatment - appeal upheld - sentence adjusted.

Legislation Cited:

Crimes Act 1900
Crime (Domestic and Personal Violence) Act 2007
Crimes Sentencing Procedure Act 1999

Cases Cited:

Ali & Hussain v R (2010) NSWCCA 184
Bajouri v R [2009] NSWCCA 125
Crook v R [2008] NSWCCA 84
Fajloun & Fajloun v R [2011] NSWCCA 41
Palijan v R [2010] NSWCCA 142
The Queen v Heine [2008] NSWCCA 61
R v Pham [2005] NSWCCA 314
R v Way [2004] NSWCCA 131; 60 NSWLR 168

Category:

Principal judgment

Parties:

Kai Daniel Picciolo (Applicant)
The Crown

Representation:

K H Averre (Applicant)
C Maxwell QC (Crown)
Legal Aid Commission of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/198257

 Decision under appeal 

Date of Decision:

2010-10-28 00:00:00

Before:

English DCJ

File Number(s):

2009/198257

Judgment

1. McCLELLAN CJ at CL: The applicant pleaded guilty to three counts on an indictment. They were:

1. Break and enter a dwelling house and commit a serious indictable offence whilst armed with an offensive weapon contrary to s 112(2) of the Crimes Act 1900.

2. Taking or detaining a person without their consent and with the intention of obtaining an advantage namely psychological satisfaction contrary to s 86(1) of the Crimes Act 1900.

3. Common assault contrary to s 61 of the Crimes Act 1900.

1. Prior to committing these offences the applicant had been apprehended and charged with an offence of stalking or intimidating his estranged wife contrary to s 13 of the Crime (Domestic and Personal Violence) Act 2007. He pleaded guilty and was sentenced for this offence at the same time as he was sentenced for the other matters.

1. The offence of stalking or intimidating occurred on 21 May 2009. The other offences all occurred on 14 August 2009.

1. The applicant was sentenced to an overall term of 5 years imprisonment with a non-parole period of 3 years. For the offence contrary to s 13 of the Crime (Domestic and Personal Violence) Act 2007 the applicant received a bond to be of good behaviour for 3 years. In respect of the offence contrary to s 112(2) of the Crimes Act the applicant was sentenced to 5 years imprisonment with a non-parole period of 3 years. The maximum penalty for this offence is 20 years imprisonment and there is a standard non-parole period of 5 years.

1. With respect to the offence contrary to s 86(1) the applicant was sentenced to a fixed term of 2 years which was made wholly concurrent with the non-parole period for the s 112(2) offence. The sentencing judge dealt with the offence of common assault pursuant to s 10 of the Crimes Sentencing Procedure Act 1999.

1. The sentencing judge was provided with an agreed statement of facts.

1. The victim, Emily Picciolo, and the applicant, were involved in a relationship from 2003 until May 2009. As a result of that relationship they have two children.

1. On 20 May 2009, the victim and the applicant formally separated as a result of a violent confrontation during which the applicant forced the victim's arm behind her back, twisting it as he did so.

1. On 21 May 2009, the victim went to a friend's house to watch a DVD. When the DVD finished, she left and she walked to her car. The victim was met by the applicant who immediately began yelling abuse at her about being involved in a sexual relationship. The victim denied the allegation and the applicant grabbed her by the waist and pulled down her tracksuit pants. She managed to pull the tracksuit pants back up, pushed past the applicant and got into her vehicle. She had no idea how the applicant knew she was at her friend's place, given that the person was not one of their usual group of friends, and it was the first time that she had gone there. The victim had never been to that house before. She assumed that the applicant must have followed her.

1. Since that incident, the applicant had been sighted hiding in the victim's yard, peeping through the windows. The applicant telephoned the victim at all times throughout the night to find out what she was doing or where she had been. Over time, the occasions increased in frequency to the point that the victim expected to see the applicant upon her return home each evening and felt apprehensive about doing so.

1. In addition to calling her and visiting her, the applicant started confronting the victim whenever and wherever she was out in public to the point of turning up at a bingo game at the Wagga Wagga RSL Club, an event which the victim had never previously attended.

1. On 13 August 2009, the victim returned home after attending a dance class. The victim walked through her front door at about 10pm. She put a few things down and her phone started to ring. She answered the phone and spoke with a friend for about twenty to thirty minutes. Whilst the conversation was initially of a general nature, at one point the victim went into some detail about wanting to start a relationship with the caller but both the victim and the caller felt it was best to wait until things between the victim and the applicant had settled down.

1. At the conclusion of the conversation the victim started using Facebook, talking to a number of friends using the instant message facility. The victim continued to chat on Facebook and some time later her phone rang. She answered it to be met with a barrage of abuse from the applicant.

1. The abuse was directed at the victim's alleged sexual involvement with a male friend with whom she had been talking to on the phone earlier that evening. She became upset and continually denied any such relationship. The applicant retaliated by quoting portions of her conversation she had had with her friend. From the quotes given, it was clear to the victim that the applicant had been listening to the victim's side of the conversation. That greatly concerned her and she hung up.

1. During the conversation the victim and the applicant discussed issues in relation to custody and access to the children and the applicant threatened to commit self-harm. The victim made sure the house was all locked and continued chatting on Facebook.

1. The applicant continued to ring the victim, each time unleashing a torrent of abuse towards her. The applicant refused to accept that the victim was not involved in a relationship and kept blaming the victim for everything wrong in his life.

1. The victim told him she was hanging up and was going to talk to a mutual friend whose wife had died recently. The applicant changed his attitude immediately and responded, "Tell him that I'm thinking of him," and hung up.

1. Some time later the victim got ready for bed and went to bed at around 1am. She fell asleep straight away and was woken up a short time later. The victim could hear floorboards creaking. The victim was frozen with fear and lay in her bed. Slowly she opened her eyes and she saw the applicant walking out of her bedroom into the hallway where a light was still on.

1. When the victim first saw the applicant he was carrying a stainless steel knife with a twenty centimetre blade in his right hand. The victim screamed out in fear hoping the neighbours would hear.

1. The applicant turned around and walked towards the bed. The victim grabbed the phone and she dialled triple-0. Whilst panicking the victim pressed "end" instead of "send" and was not connected to the triple-0 call centre. The applicant grabbed the phone, removed the battery and threw the phone on the ground.

1. The applicant stood by the foot of the bed holding the knife and looking at the victim. The victim yelled at the applicant to "Get out", but he held the knife saying, "I just want the truth, then I will go." The victim did not leave the bed for fear of the applicant who was still holding the knife.

1. The victim could feel her mobile phone under her back and she tried to dial triple-0. The applicant saw the victim do so and grabbed the phone. The applicant then threw the phone against the wall and struck the screen of the phone with the knife.

1. The applicant started interrogating the victim about her sexual relationships and asking why she had ruined his life. The victim denied having any sexual relationships. At that point the victim was only dressed in underwear and a singlet. The applicant was holding the knife, which he waved around, telling the victim to sit back down on the bed and she remained on the bed.

1. She felt for her tracksuit pants under the doona and she carefully put them on. She then jumped up and ran towards the bedroom door, trying to push past the applicant. He stepped in front of her whilst still holding the knife. He struck her in the chest, blocking her passage and stopping her dead in her tracks. She returned to the bed and sat down. She was crying and begging him to leave.

1. As the victim sat on the bed sobbing, the applicant continued to stand at the end of the bed and to shout questions at her, all the while he was still holding the knife.

1. He moved away from the victim, turning his back on her. She jumped up and tried to open the window. She pulled up the wooden blinds and began screaming for help. The applicant walked over and pushed her away. He closed the window and cut the drawstrings on the blinds so she could not open the blinds again.

1. She picked up a chair and tried to throw it out the window but it failed to reach the window. The applicant continued to hold the knife.

1. The victim backed away into a corner. The applicant walked towards her holding the knife to his throat. She pushed herself as far as she could into the corner of the room and then tried to shield herself. She was sobbing and asking the applicant what he wanted from her. The applicant replied, "Nothing. I don't want to sleep with you. Just sit on the bed. Just tell me the truth and I'll go."

1. The applicant took a step back, held the knife against his throat, pushing it against his skin and started to pull the knife across his throat. He then said, amongst other things, "Don't worry about the kids, they are at mum and dad's."

1. The applicant walked past the victim whilst still holding the knife. The victim stood up and pushed the applicant aside. He lowered the knife and herded her out of the bedroom. Once in the lounge room, the victim got a cigarette out of her handbag and walked around pretending to light the cigarette. She made her way to the lounge room window. She pulled the drawstrings and opened the blind. The applicant ran across the room and cut the drawstrings. The victim then backed away from the window. She stumbled backwards but was able to run from the house, through the front door, onto the next door neighbour's front nature strip. The applicant grabbed the victim from behind, stopping her.

1. The victim fell to the ground landing on her back. She commenced to scream. The applicant slipped and fell over on top of the victim. He got up and walked away. The applicant stood there, pointing the knife at his throat and he said, "I hope the cunt's worth it. You did this to me. You caused this."

1. The applicant held the blade of the knife against his throat. The victim continued to scream as the applicant slit his own throat from left to right.

1. The victim got up off the ground. She watched as the applicant slit his throat for a second time, slicing it once again from left to right.

1. The victim ran inside the house looking for a way to call for help. As she ran through the front door she saw a key in the lock. That key did not belong to her but clearly unlocked the door. The victim grabbed the key and locked the front of the house and searched for a phone to call for help.

1. As the victim was trying to put her mobile phone back together, the applicant walked to the rear of the premises and tried to force entry through the backdoor. Fearing the applicant was going to gain entry, she ran out of the front door and sought help from the next door neighbours.

1. Police were called and attended. As the police got closer, the applicant walked outside and up the side of the house. He had lost a significant quantity of blood causing him to pass out at the side of the house.

1. An ambulance was summonsed. He was conveyed to Wagga Wagga Base Hospital and later underwent surgery to repair the cuts to his throat.

1. The applicant was 32 years of age at time of sentence and has no prior criminal record. He gave evidence at his sentence hearing. Evidence in support of his good character and care and affection for his children was provided to the sentencing judge.

1. A report from a neuro-psychologist, Dr Donald Rowe, was tendered. Dr Rowe reported that at the time of the relevant events the applicant was suffering from depression. There were a number of stressors in the applicant's life arising from the break down of his marriage, his concern for his children and his dedication to his work.

1. The sentencing judge accepted Dr Rowe's evidence and concluded that at the time the applicant committed the offences "he was suffering from a major depressive illness which clearly clouded his judgment and thinking."

1. Of significance, and of particular relevance for this application, her Honour found that "because of the extent of his mental illness, (the applicant) was not fully cognisant of the consequences of his actions on this particular evening." Although her Honour made this finding the applicant complains that it has not been reflected in the sentence which her Honour imposed.

1. Rather it was submitted that the sentence reflected her Honour's finding that she was:

"not persuaded that (his mental health) is such as to make him a totally inappropriate vehicle for general deterrence. Courts have a duty to signal to domestic violence offenders that victims will receive the full protection of the law in so far as the courts are able to afford it to them. This is a typical example of a brutal, cowardly and inexcusable display of anger by an ex partner who felt wronged because a marriage had been ended and he could not accept that his ex partner had taken such a course."

1. The applicant submitted that although her Honour accepted that the applicant was suffering from a significant depressive illness at the time he committed these offences her Honour disregarded this finding and sentenced the applicant on the basis that his offending was "typical" of this type of offence. It was submitted that if, as the applicant submitted, her Honour imposed a sentence for the "typical offence" that sentence does not reflect the disability under which the applicant suffered at the time it was committed.

1. In support of this submission the applicant drew attention to a number of decisions of this Court for similar offences which may have justified the sentence which her Honour imposed but for the applicant's mental illness. (see Palijan v R [2010) NSWCCA 142; Fajloun & Fajloun v R [2011] NSWCCA 41; Ali & Hussain v R (2010) NSWCCA 184; Crook v R [2008] NSWCCA 84; Bajouri v R [2009] NSWCCA 125). When appropriate regard is had to the applicant's illness it was submitted that by reference to these decisions the sentence imposed was excessive.

1. The principles which are relevant when sentencing an applicant who suffered from a mental illness at the time of the offence are well known. They were discussed by Hall J in R v Pham [2005] NSWCCA 314 where his Honour said at [35]:

"(a) First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Hemsley (supra) at [33]; Regina v. Henry (1999) 46 NSWLR 346 at [254]; Regina v. Jiminez [1999] NSWCCA 7 at [23]; Regina v. Tsiaras (1996) 1 VR 398 at 400; Regina v. Lauritsen (2000) 114 A. Crim. R. 333 at [51]; Regina v. Israil [2002] NSWCCA 255 at [23] and Regina v. Pearson [2004] NSWCCA 129 at [43].

(b) Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Regina v. Pearce (NSWCCA, unreported 1 November 1996); Regina v. Engert (1999) 84 A. Crim. R. 67 at 71 per Gleeson, CJ.; Regina v. Letteri (NSWCCA, unreported 18 March 1992); Israil (supra) at [22]; Pearson (supra) at [52]; and Hemsley (supra) at [34].

(c) Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Hemsley (supra) at [35]; Tsiaras (supra) at 400; Jiminez (supra) at [25] and Israil ( supra) at [26]."

Also see R v Way [2004] NSWCCA 131; 60 NSWLR 168; The Queen v Heine [2008] NSWCCA 61.

1. The sentencing judge found that the break and enter offence, which her Honour described as the most serious, fell just below the mid range of objective seriousness. Her Honour was also of the opinion that the offence of detain for advantage also required a custodial sentence.

1. Her Honour found that the applicant's offending behaviour was out of character. She accepted that the applicant now understands that his victim would have been terrified. He now wishes he had not gone to her home that evening. He indicated to her Honour that should a similar situation arise in the future he would have insight into his depression and believes he would be able to take positive action to avoid an inappropriate response.

1. The applicant has responded well to treatment for his depression. The sentencing judge found that he is "truly remorseful and contrite." Her Honour found that he had excellent prospects of rehabilitation.

1. The standard non-parole period for the break and enter offence is 5 years. Bearing in mind that the applicant pleaded guilty and in her Honour's opinion for that reason was entitled to a full discount I am satisfied that, when proper regard is had to the impact of the depressive illness on the applicant's reasoning capacity and accordingly his culpability for the offence, a period of full time custody of 3 years was excessive. It is also relevant that he appears to have responded to treatment and her Honour was satisfied that the applicant will recover and be able to continue his life without offending again.

1. In my judgment a period of 2 years full time custody was appropriate and I would also reduce the overall term to a period of 4 years. I am not persuaded that the sentences imposed for the other offences were inappropriate. A finding of special circumstances is appropriate having regard to the fact that this is the applicant's first time in custody.

1. I would make the following orders:

1. Grant leave to appeal.

2. Appeal upheld in part.

3. Quash the sentence imposed in the District Court in relation to the offence of aggravated break and enter and for that offence sentence the applicant to an non-parole period of 2 years commencing 14 August 2009 and expiring on 13 August 2011 and to a total term of 4 years expiring on 13 August 2013.

1. SIMPSON J: I have read in draft the judgment of McClellan CJ at CL, and agree with the orders his Honour proposes, and, generally, with his Honour's reasons.

1. In order to explain my concurrence in a significant reduction in sentence for an extremely serious episode of criminality, which might otherwise appear to fail to give due recognition to that objective gravity, I wish to refer to some additional evidence. That evidence concerns the applicant's mental state at the time he committed the offences. It is contained in the report of Dr Rowe, to which McClellan CJ at CL has referred; it needs to be read in the context of the principles relevant to sentencing an offender suffering mental illness at the time of the commission of the offences, as summarised by Hall J in R v Pham [2005] NSWCCA 314, and extracted at [45] in the judgment of McClellan CJ at CL.

1. In a section of his report headed "Synopsis" Dr Rowe wrote:

"1. Mr Picciolo has displayed a cluster of psychiatric symptoms and history which can be described as a very severe Major Depressive Episode (MDE) with probably psychotic features ...

2. Mr Picciolo presented to a general practitioner and psychologist on a number of occasions prior to his offences due to suffering from increased depressed mood and marital problems. In my opinion, at the time of the offences on 13 August 2009 he was affected by the cognitive impairments that result from severe MDE and probably psychotic features as discussed in section 6 [of Dr Rowe's report]. His increasing severity of MDE was triggered by a series of unfortunate psychosocial stressors commencing with being a new father and then another expected birth of a second child, financial stressors, sleep difficulties, marital problems, and eventual separation and then perceived custody issues.

3. ...

4. The precise nature and manifestation of Mr Picciolo's mental illness had not been sufficiently identified or treated prior to his offences despite his presentation to a general practitioner and psychologist. It is remarkable that a telephone counsellor had acknowledged the severity of his disorder and was afraid that he was going to commit suicide. ...

5. It is my opinion that had Mr Picciolo been fully diagnosed and adequately treated, even with a simple medication change or hospitalisation, he would not have suffered from a severe deterioration in his mental health and he would most likely not have committed the offences on 13 August 2009.

6. ...

7. It follows that individuals such as Mr Picciolo who are afflicted with MDE are vulnerable to poor judgment, impulsivity and poor consequential thinking together with potentially thoughtless and aggressive acts that can lead to legal predicaments, particularly when they are suffering from extremely severe depressive symptoms and psychotic symptoms in the form of delusions.

8. The problem arises when these patients are put in situations where clear thinking and important decisions must be made such as the decision to stay away from an antagonistic situation, or the ability to accurately evaluate the repercussions or consequences of a situation, particularly if they are suffering from very severe episodes of MDE and associated delusional symptoms.

..."

1. In s 6 of the report, headed "Opinion", Dr Rowe reiterated his diagnosis of very severe major depressive disorder and possible psychotic features. Under a sub-heading "Relevance of MDE to the offences committed", he wrote:

"11. The majority of people suffering from MDE do not participate in illegal activities. However, when such symptoms increase in severity, and potential delusional states result, these individuals can lose adequate control of their thoughts, their normal judgment and the control of their behaviours, particularly in the context of a potentially antagonistic situation such as a marital breakdown and custody issues."

1. It is, in my opinion, beyond question that the applicant's mental illness materially contributed (in this case, one could very nearly say caused) the commission of the offences. That circumstance diminished the weight that ought to be attributed to denunciation, punishment, and general deterrence. In that respect, I think her Honour brushed too lightly over the manner in which she treated the applicant's mental condition. Also relevant to the question of the extent to which his mental condition caused or contributed to the offences, is the applicant's past history. He had no criminal record. He had an impressive work history, in which he maintained the same employment (in a meatworks) for 12 years. Perhaps most graphically, during the course of the episode, he slit his own throat twice, once from left to right and once from right to left.

1. Although I have expressed the view that her Honour brushed too lightly over the mental illness, she did this in the course of an extremely difficult sentencing exercise. I reiterate, and as is plain from the account of facts given by McClellan CJ at CL, the offences themselves were objectively most serious. Her Honour was quite correct in her observations about the need for courts to demonstrate their recognition of the needs of victims of domestic violence (and, I would add, any kind of violence).

1. I do not for one moment underestimate the impact the offences must have had upon the victim, and this judgment ought not be read in any way as undervaluing that impact.

1. This is a case in which the need to recognise objective gravity collides with an extremely powerful case calling for a tempering of punishment by reason of quite extraordinary circumstances.

1. For those reasons, I concur in the sentences proposed by McClellan CJ at CL and with the orders, which would, in any but the exceptional circumstances of this case, be wholly inadequate to mark the objective gravity of the criminality.

1. FULLERTON J : I also agree with the orders proposed by McClellan CJ at CL. I am not however persuaded that there is any force in counsel's submission that when her Honour referred to the applicant's offending as "a typical example" of violent behaviour of a disgruntled former partner that she ignored the applicant's mental illness and imposed a sentence for a so called typical offence of that kind, any more than that the authorities to which counsel referred permit a typical offence to be identified. Properly understood the sentencing judge's reference to the applicant's conduct being "a typical example" of inexcusable violence by an ex partner was in the context of her assessing the degree to which general deterrence needed to be reflected in the sentence, given her apparent acceptance that there was no need for it to provide for specific deterrence. This approach was in accordance with established principle.

1. In Palijan v R [2010] NSWCCA 142, also a case involving the home of a former partner being broken into by a mentally ill offender/former partner armed with a knife, while it was submitted that insufficient weight had been given to the offender's mental condition in the calculation of sentence, Barr AJ (with whom McClellan CJ at CL and Hislop J agreed) said at [27]:

It is well established that persons suffering from an intellectual deficit or from a mental illness may be considered not to be suitable media for the imposition of sentences which pay ordinary regard to the need for general or personal deterrence: R v Engert (1995) 84 A Crim R 67; R v Scognamiglio (1991) 56 A Crim R 81; R v Letteri (NSWCCA 18 March 1992, unreported). However, such cases do not mandate the entire disregard by a sentencing judge of the need in any particular case for recognition of the need for general or personal deterrence. The degree to which the need for such consideration will be reduced is bound to depend upon the circumstances which attend each individual case...

1. Although her Honour took Dr Rowe's report into account in the sentencing exercise, I share the views of Simpson J that other than referring to the protection of the public and, in particular, the victims of domestic violence, she did not adequately explain why the applicant remained an appropriate vehicle for general deterrence such as might justify the sentence she imposed. While I accept that the applicant's mental illness did not completely negative the need for the sentence to take account of general deterrence, in this case it moderated its importance very considerably.

1. I am of the view that a period of 2 years in custody gives appropriate weight to the clear causal connection between the applicant's mental illness and his offending whilst preserving the need for the sentence to reflect established sentencing objectives, including, but not limited to, general deterrence.

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Decision last updated: 30 August 2011