Quinn v R

[2018] NSWCCA 297

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Quinn v R [2018] NSWCCA 297
Hearing dates:	17 August 2018
Decision date:	14 December 2018
Before:	Hoeben CJ at CL at [1]; White JA at [296]; Fagan J at [297]
Decision:	(1)   In relation to the applicant’s appeal against conviction, leave to appeal granted but appeal dismissed. (2)   In relation to the application for leave to appeal against sentence, leave to appeal granted but appeal dismissed.
Catchwords:	CRIMINAL LAW – murder – trial by judge alone – appeal against conviction – applicant stabbed ex girlfriend – applicant immediately stabbed himself in chest and neck afterwards – evidence of applicant that stabbing accidental – common ground that evidence of applicant should be rejected – applicant also raised defence of substantial impairment – Crown case circumstantial – necessity to consider all circumstances established by evidence – Crown established deceased broke relationship off with applicant and applicant distressed by breakup – only rational inference that applicant intended to kill deceased – substantial impairment – applicant affected by Obsessive Compulsive Disorder and Borderline Personality Disorder – applicant established abnormality of mind due to underlying condition – failure to establish substantial impairment of capacity to understand events or judge whether actions right or wrong – absence of reliable narrative from applicant – whether impairment of capacity to control himself established by applicant – whether trial judge gave determinative weight to the importance of planning – whether trial judge failed to properly assess the opinions of Dr Nielssen and Dr Furst and adequately explain why he did not accept their opinions – whether error in trial judge’s finding that in the absence of a credible narrative from the applicant as to when he formed the intention to kill and what steps he took to give effect to that intention, the applicant had not discharged the onus on him under s 23A Crimes Act 1900 (NSW) – whether guilty verdict unreasonable – trial judge correct to find that applicant had failed to establish substantial impairment of capacity to control himself – failure to make out partial defence of substantial impairment – conviction appeal dismissed – SENTENCE APPEAL – murder – applicant convicted following judge alone trial – applicant rendered himself quadriplegic following murder of his girlfriend – applicant suffering from Borderline Personality Disorder – applicant suffering from Obsessive Compulsive Disorder – contribution of mental state to offending – whether error in sentencing judge’s consideration of the need for general deterrence – whether sentencing judge fettered his discretion when considering extra curial punishment – whether sentencing judge should have taken into account the applicant’s self-inflicted injuries as a mitigating factor – whether his Honour erred in failing to find special circumstances – whether his Honour erred in failing to take into account the applicant’s abnormality of mind and his diminished moral culpability when assessing the objective seriousness of the offending – whether sentence manifestly excessive – application for leave to appeal against sentence allowed but appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – s 23A Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 21A Criminal Appeal Act 1912 (NSW) – ss 5(1)(b),(c), 6(1) Evidence Act 1995 (NSW) – s 8 Mental Health Act 2007 (NSW)
Cases Cited:	Ali v R [2010] NSWCCA 35 ASIC v Vines [2003] NSWSC 1095 Baines v R [2016] NSWCCA 132 Betts v R [2015] NSWCCA 39 Betts v The Queen [2016] HCA 25; 258 CLR 420 Biddle v R [2017] NSWCCA 128 Caristo v R [2011] NSWCCA 7 Christodoulou v R [2008] NSWCCA 102 Cvetkovic v R [2013] NSWCCA 66 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Director of Public Prosecutions (NSW) v Quinn [2015] NSWSC 1326 Engert v R [1995] 84 A Crim R 67 Elturk v R [2014] NSWCCA 61 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Glynn Kaderavek v R [2018] NSWCCA 92 Hughes v R [2018] NSWCCA 2 Jiang v R [2010] NSWCCA 277 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McLaren v R [2012] NSWCCA 284 Mulato v R [2006] NSWCCA 282 Munda v Western Australia [2013] HCA 38; 244 CLR 600 Parente v R [2017] NSWCCA 284 Patsan v R [2018] NSWCCA 129 Potts v R [2012] NSWCCA 229; 227 A Crim R 217 R v Byrne [1960] 2 QB 396 R v Cramp [2004] NSWCCA 264 R v Fidow [2004] NSWCCA 172 R v Israil [2002] NSWCCA 255 R v Maglovski (No 2) [2013] NSWSC 16 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pearson [2004] NSWCCA 129 R v Quinn (No 2) [2016] NSWSC 1244 R v Quinn (No 3) [2016] NSWSC 1699 R v Riley [2008] NSWSC 1477 R v Simpson [2001] NSWCCA 534 R v Smith (1987) 44 SASR 587 R v Trotter (1993) 35 NSWLR 428 R v Wong [2018] NSWCCA 20 Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; 139 A Crim R 398 Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461 Trad v R [2009] NSWCCA 56 The Queen v Kilic [2016] HCA 48; 259 CLR 256 Yun v R [2017] NSWCCA 317
Category:	Principal judgment
Parties:	Michael James Quinn – Applicant Regina – Respondent Crown
Representation:	Counsel: S Buchen SC/G Westgarth – Applicant E Balodis – Respondent Crown   Solicitors: C Cole – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2013/275908
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Quinn (No 2) [2016] NSWSC 1244 R v Quinn (No 3) [2016] NSWSC 1699 Date of Decision: 08 September 2016 Before: Beech-Jones J File Number(s): 2013/275908

JUDGMENT

1. HOEBEN CJ at CL:

Nature of proceedings

The applicant seeks leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal from his conviction for murder. The applicant was convicted after a trial before his Honour Justice Beech-Jones sitting without a jury in the Supreme Court of NSW on 8 September 2016 (R v Quinn (No 2) [2016] NSWSC 1244).

2. The applicant also seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act to appeal against the sentence imposed by his Honour on 2 December 2016 (R v Quinn (No 3) [2016] NSWSC 1699). The applicant was sentenced to imprisonment for 20 years with a non-parole period of 15 years, commencing 9 September 2015.

3. In summary, the trial judge found that the applicant deliberately stabbed Ms Cherie Vize and that he did so with an intent to kill her (Principal Judgment [PJ] at [6], [7], [226], [232]). He then stabbed himself intending suicide. He was unsuccessful and the resulting injury caused him quadriplegia.

4. The applicant relied upon the defence of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW).

5. In the conviction appeal, the applicant relied upon two grounds as follows:

Ground 1 – His Honour erred in his consideration of whether the applicant’s capacity to control himself was substantially impaired pursuant to s 23A of the Crimes Act 1900 by:

a)   giving determinative weight to the importance of planning;

b)   failing to properly assess the opinions of Dr Nielssen and Dr Furst and to adequately explain why he did not accept their opinions;

c)   failing to make the relevant findings of fact in relation to the applicant's attempted suicide; and

d)   finding that, in the absence of a credible narrative from the applicant as to when he formed the intention to kill and what steps he took to give effect to that intention, the applicant could not discharge the onus on him under the section.

Ground 2 – The verdict is unreasonable

Summary of the Crown case and that of the applicant

6. The applicant, who was aged 24 at the time of the offence, and Ms Vize had been in a relationship for a number of years. Ms Vize was fatally stabbed at 10.30am on 22 July 2013 while she was in the front yard of premises occupied by the applicant, his brother and their parents.

7. The Crown case was substantially circumstantial. By 14 July 2013 Ms Vize told the applicant that their relationship was over, or coming to an end, and that she had commenced another relationship. On 17 July 2013 the applicant sent a message acknowledging this and regretting the fact that it would happen. He could not accept it and repeatedly telephoned and messaged her, despite the fact that she did not often respond.

8. On the evening of Saturday, 20 July 2013 Ms Vize and the applicant argued over the breakup of the relationship. He threatened self-harm in front of the victim’s mother, Ms Evansueda Vize. He had expressed thoughts about committing suicide in the context of the relationship breakup before that time.

9. On Sunday, 21 July 2013 the applicant saw a text that Ms Vize sent to a Mr Meyers at around 3.26pm referring to the morning after pill. This distressed him and he told his mother and his brother, Thomas, that Ms Vize was sleeping with somebody else.

10. On the evening before Ms Vize’s death, she stayed at the applicant’s house. She and the applicant argued over the breakup. The applicant was despairing. The Crown alleged that the combination of the applicant being told the relationship was over and a text message about Ms Vize’s new relationship, led him to deliberately stab Ms Vize in the neck with the intention of killing her on the morning of 22 July 2013. Just after he stabbed her, he stabbed himself in the chest and neck, rendering himself quadriplegic.

11. It was the applicant’s case that the killing was accidental. In the alternative, he raised the partial defence of substantial impairment.

12. The applicant gave evidence that he had instituted the breakup with the deceased, that ultimately she wanted to resume the relationship and he was suicidal because he saw no way out of the relationship. He said that he took a knife from the kitchen with the intention of killing himself and went outside. Whilst attempting to stab himself, he accidentally stabbed Ms Vize in the neck when she intervened as she tried to grab the knife.

13. The applicant gave a similar account to each of the three psychiatrists who examined him to the effect that the killing of Ms Vize was accidental.

14. It was common ground in the trial that the applicant’s evidence concerning the stabbing of Ms Vize was false. The psychiatric evidence was that he suffered from “an abnormality of the mind arising from an underlying condition”. The psychiatrists approached the matter on the basis that the stabbing of Ms Vize by the applicant was deliberate. Accordingly, the case put on behalf of the applicant was that pursuant to s 23A(1) of the Crimes Act, he had available the partial defence of substantial impairment by abnormality of mind, pursuant to that section.

Evidence at trial

15. The evidence relevant to the applicant’s state of mind in the period before the killing and immediately after the killing came from the applicant’s mother, Joanne Quinn, his brother, Thomas Quinn, Ms Vize’s mother and friends of Ms Vize, Medina Hasic, Melody Loke and Andrew Meyers.

Evansueda Vize

16. His Honour summarised the evidence of Evansueda Vize at PJ [135]-[141]. She said that the applicant often brought her daughter home and stayed late at her house. About three months before she died, her daughter was upset and told her that she was “suffocated” by the relationship with the applicant and that all they did was argue. About a month before she died, she said that she had broken up with the applicant and that she had met someone else.

17. On the afternoon of 20 July 2013, the applicant drove Ms Vize from her work to her home and he slept there. About 1 or 2am on 21 July Mrs Vize heard her daughter and the applicant arguing. She heard her daughter say “We are not together. …” When Mrs Vize told the applicant to go home, he replied “I'm going to crash the car”. Ms Vize then intervened and told the applicant to come back into her room. The next morning the applicant drove Ms Vize to work at Bondi Junction. They returned that afternoon and that was the last time Mrs Vize saw her alive. Mrs Vize received a phone call on the morning of 22 July from her daughter who said “Mum, I’m coming home soon”.

Medina Hasic

18. Medina Hasic’s evidence is summarised at PJ [142]-[151]. She considered herself to be Ms Vize’s best friend. She said that Ms Vize was a friendly, caring person who was capable of great empathy. Ms Hasic formed an adverse view of the applicant. She said that Ms Vize continually complained that he was regularly at her place and she had hardly any time to herself. In 2011 Ms Vize became pregnant and had an abortion. Ms Vize had ended her relationship with the applicant and Ms Hasic did not learn that the relationship had resumed until 2013. Ms Hasic did not know whether Ms Vize was seeing the applicant specifically, but she knew that she was seeing other people.

19. In the weeks before her death, Ms Vize told Ms Hasic that the applicant was saying that he was going to kill himself if they did not get back together and she felt guilty and concerned for him so she was spending time with him. On 1 July 2013 Ms Vize told her on Facebook that she and Mr Meyers were officially boyfriend and girlfriend.

20. Ms Vize told Ms Hasic on 14 July 2013 that the applicant found a message on her Facebook account about Mr Meyers. She told Ms Hasic that she had a “very long conversation” with the applicant and they “officially said goodbye to each other”.

21. On 20 July 2013 Ms Vize posted a picture on Facebook of Mr Meyers sleeping with a sketch next to him, and posted “something about seeing beauty in the things around you and will give you inspiration for artwork”. Ms Hasic did not believe that after July 2013 Ms Vize was sleeping with both Mr Meyers and the applicant.

Melody Loke

22. His Honour summarised the evidence of Melody Loke at PJ [152]-[154]. Ms Loke became friends with Ms Vize when they both studied visual arts at Sydney University. Ms Vize told her on 19 July 2013 that she had broken up with the applicant. She was very worried about him because he was threatening suicide. She told Ms Loke that the applicant “told her that he was OK with - he could handle her sleeping with somebody else but not being in a relationship with someone else”.

23. On 21 July 2013 Ms Loke noticed that Ms Vize posted a photograph and sketch of Mr Meyers sleeping on Facebook. At about 7.30pm that evening she spoke to both Ms Vize and the applicant on the telephone. Ms Vize sounded emotionally drained and very tired. Ms Loke also spoke to the applicant whom she thought was in a “particularly low mood.” She could not really understand what he was saying “it was very faint”. He asked if Ms Loke knew about the situation with him and Ms Vize to which Ms Loke responded “it's not exactly going swimmingly”. The applicant replied “you can say that again” and, after heaving a deep sigh he said, “I don't know what I'm going to do”. Ms Loke said that he was mumbling and hard to understand and that he “sounded exhausted and really emotionally drained”. The applicant hung up abruptly without saying goodbye.

Andrew Meyers

24. The evidence of Andrew Meyers is summarised at PJ [155]-[156]. He met Ms Vize through an online dating site in 2011 and they became friends. About three weeks before her death, she told Mr Meyers that her relationship with the applicant was over and they began seeing each other. His Honour found that she spent the evening of 19 July 2013 with Mr Meyers at his house and the next morning he drove her to Bondi Junction for work. At 2.28am on Sunday 21 July 2013, he received a text from her which stated “good and perfect man. Sweet dreams”. He received a further text from her at 3.56pm on 21 July where mention was made of her using the ‘morning after’ pill.

Joanne Quinn

25. The evidence of Joanne Quinn was summarised by the trial judge at PJ [39]-[59] and [127]-[129]. She was the mother of the applicant. Mrs Quinn objected to giving evidence under s 8 of the Evidence Act 1995 (NSW) and her version of events was adduced by the Crown from a short interview with police on 22 July 2013, a statement prepared on the same day, a recording of a walkthrough of her home on 24 July 2013 and the transcript of her evidence at committal (PJ at [127]).

26. Mrs Quinn said that the applicant had obsessive compulsive disorder (OCD) which manifested itself in a desire to be clean and obsessive washing. He would not use or go near garbage bins for fear of contamination. He took one Lovan tablet a day for this condition. The night before the killing, the applicant told her that about a week before he found out that Ms Vize had been seeing someone else, and the previous day he had found out that she had slept with whomever she was seeing.

27. Mrs Quinn said that when Ms Vize woke up on 22 July 2013 she went to the toilet and then went to the front of the house for a cigarette. She went back into the bedroom. The applicant came out of the bedroom, went to the toilet and went back to the bedroom. Later they both came out of the bedroom and had some orange juice. Ms Vize said that they were both going to do some painting and she rang her mother. Mrs Quinn said that while Ms Vize was speaking everything seemed fine but that she had heard her crying the night before.

28. Mrs Quinn did not see the applicant stab Ms Vize. She said in her statement that she heard Ms Vize call out “Michael, don’t do that”. When she went out the front, she saw the applicant standing in front of Ms Vize and they appeared to be struggling. She tried to get between them. She noticed blood and the applicant with a knife.

29. The trial judge found that Mrs Quinn did not know whether the applicant had a knife in his hand when she saw him struggling with the victim. Mrs Quinn tried to assist Ms Vize and stop the flow of blood from her neck. As she was helping her, she saw the applicant holding a small paring knife and he was either trying to cut his neck or stab himself in the chest. After the police and ambulance arrived, Mrs Quinn walked to the front footpath and saw the applicant on the ground and a neighbour holding a towel to his neck. The applicant said that he could not feel his arms and legs and that “I can't believe I missed my heart”.

30. Mrs Quinn said that when she told the applicant to call the police, he did not do so because “he was just blank” and she “could not get any response out of him whatsoever”.

Thomas Quinn

31. The trial judge summarised the evidence of Thomas Quinn at PJ [67]-[74]. He was the applicant’s brother. He took part in a short video recorded interview on 22 July 2013 and a walk through on 24 July 2013. He gave evidence at trial. Thomas also described the applicant’s compulsive behaviour. He recalled that from about 15 years of age, the applicant became obsessive about cleanliness. He insisted that Thomas wash his hands before using his game console. The applicant would shower at least two times a day.

32. Thomas said that some years before 22 July 2013, he witnessed the applicant cut himself with a razor blade in the bathroom. He recalled that the applicant turned to him and “seemed to show a level of relief ... with the damage to his body”. Thomas described the applicant as a “cutter” in that he appeared to cut around the knuckles of his hand with a maths compass.

33. Thomas told police that his brother “had found out that Cherie was cheating on him and I’d spoken to my brother and he was pretty devastated about it”.

34. On the morning of 22 July 2013, Thomas was in his room watching television when he heard his mother shout “Thomas”. He ran to the front of the house and saw his mother holding up Ms Vize with one hand and trying to hold her neck from where blood was starting to flow with the other. His mother told him to get towels and he went into the house to get them. When he returned to the front yard he handed her some tea towels. A neighbour assisted to apply pressure to Ms Vize’s neck.

31. Thomas said that at this point he noticed the applicant in the front yard. He had a knife in his right hand and was slowly walking backwards towards the road. There was blood on his hands and he saw him stab himself in the chest at least twice. After he stabbed himself, he “continued to walk backwards, perhaps a couple of steps, and then took the knife up to his neck and began to drag it across his throat”. Thomas screamed out to him to stop. When the applicant collapsed on the driveway, Thomas ran over to him and said “Why have you done this?” Thomas initially got no response. However, at some point the applicant said words to the effect of “leave me alone, I'm ok” and “[D]on't help me, I can't feel anything”.

32. In cross-examination Thomas said that when he screamed at the applicant to stop, it was the loudest scream he could make. There was no visible response from the applicant and the expression on his face was “blank”. He seemed to have no emotional intelligence at all. Thomas said that he “couldn't get a read on what [the applicant] was thinking or what potentially could be running through his mind” and that he couldn't see any sign of distress” in him. He had never seen him like that in any circumstances.

Sheree Broad

37. The trial judge summarised the evidence of Ms Broad, a neighbour, at PJ [75]-[81]. She gave evidence that she heard screaming and went out to the front of her house. She saw Ms Vize bleeding from the neck and Mrs Quinn holding her neck. Mrs Quinn said to call an ambulance and she dialled triple O. She put her phone on loudspeaker and held it towards Mrs Quinn. When the operator asked what had happened Mrs Quinn said “She's been stabbed with a knife”. Thomas yelled at the applicant “What have you done? What have you done?” She saw the applicant walking “downstairs” towards them and she saw a knife sticking out of his stomach. Ms Broad told the operator to send another ambulance because the perpetrator at the scene had stabbed himself. Ms Broad ran back into her house and continued to talk to the operator.

Gerhard Warth

38. The trial judge at PJ [82]-[84] summarised the statement of Mr Warth, which was tendered. He lived two houses away and heard screaming. He heard a voice say “Stop Michael, stop it, stop it”. He walked towards the applicant’s house and saw Thomas in the front yard and the applicant lying on the nature strip. He asked Thomas to get some towels. He spoke briefly to Mrs Quinn and knelt down beside the applicant. He saw a knife sticking out of his neck and the applicant told him that he could not move his legs or feel anything from the neck down. When police and ambulance personnel arrived, Mrs Quinn was asked what happened and she replied “He found out she was cheating on him with one or two men”.

Police and paramedic response

39. The trial judge summarised the evidence of the police and paramedics at PJ [85]-[92]. In a statement Constable Zwickl recalled that the applicant said when he was lying on the nature strip “[Y]ou should just shoot me”, [h]ow hard is it to hit your own heart, I can't feel anything and [i]s she all right?”. Mrs Quinn told her that the applicant had just found out that Ms Vize was cheating on him.

Post mortem analysis

40. The trial judge summarised the post mortem analysis at PJ [99]-[212]. Ms Vize died as a consequence of blood loss arising from a laceration to the carotid artery and jugular vein. His Honour accepted Dr Bailey’s evidence that the fatal wound inflicted on Ms Vize was between 5 and 10cm deep and that the length of the wound was 1cm x 3cm.

41. The trial judge accepted the evidence of the police and paramedics. He was satisfied that the knife located in the front yard was the knife that cut Ms Vize. He was satisfied that the applicant used the knife, that was taken from the block in the kitchen and later found in the ambulance, to stab himself. He did not accept the applicant’s assertion that after his mother came to the front yard he returned to the kitchen and washed blood from his hands. The trial judge was uncertain as to whether or not the applicant re-entered the house to obtain a knife to stab himself.

Phone and SMS records

42. Records from Ms Vize’s mobile phone carrier, although incomplete, indicated 29 messages between the applicant and her, including five missed calls on 19 July 2013. On 17 July 2013 at around 5pm, the applicant messaged Ms Vize stating:

“Im sorry for all the troubles .... I loved you so much that the one thing i always feared was losing you. In the end i pushed u away and its that which ultimately proved my greatest mistake. We have been through much together that dispite the pain i have and will always love you. I wish nothing but the best for u ... Live by ur own design and be happy. Love u always …”

43. Spreadsheets prepared from the telephone carrier Optus showed that in the period 10 July to 21 July 2013, 227 contacts, or attempted contacts were made by the applicant to Ms Vize and only nine contacts, or attempted contacts, were made by her to the applicant.

44. Telephone records for the landline at Ms Vize’s home showed 61 calls from the applicant’s mobile phone to that home phone in the period 10 July to 21 July 2013.

Wollongong University incident in 2009

45. The trial judge summarised the evidence relevant to the applicant’s suspension from Wollongong university at PJ [194]-[203]. When giving evidence, the applicant said that the incident giving rise to his suspension occurred in the context of an extreme OCD reaction in relation to a banana skin in a bin. He denied any further incident relevant to his suspension. However, material from Wollongong University suggested that he had intimidated another student by physically blocking her path and touching her, although not in a sexual way. He was referred to counselling, with the requirement that there be a psychologist’s report before he could resume studies. He did not return to Wollongong University, but enrolled at Sydney University. The trial judge found that the manner in which this evidence unfolded was highly damaging to the applicant’s credibility.

Substantial impairment

46. There was no dispute at trial as to the legal principles relating to the application of s 23A. That section relevantly provides:

“23A    Substantial impairment by abnormality of mind

(1)    A person who would otherwise be guilty of murder is not to be convicted of murder if:

(a)    at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b)    the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2)    For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.

…

(4)    The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.

…

(8)    In this section:

underlying condition means a pre-existing mental or physiological condition, other than a condition of a transitory kind.”

47. As was accepted at trial, the partial defence provided by s 23A can be conveniently broken down into three elements:

1. The accused must demonstrate that at the time they committed the act causing death, they were subject to an “abnormality of mind arising from an underlying condition” within the meaning of subs 23A(8).

2. The accused must establish a substantial impairment of at least one of three capacities at the time and “by” [reason of] that abnormality. The three capacities are the accused’s capacity to understand events, judge whether his actions were right or wrong and control himself.

3. The tribunal of fact must be persuaded that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter (s 23A(1)(b)).

48. The parties agreed as to the relevance of the following extract from the judgment of Lord Parker CJ in R v Byrne [1960] 2 QB 396 (Byrne) at 403 as explanatory of the concept of abnormality of mind and its interrelationship with an impairment of an accused’s capacity:

““Abnormality of mind," which has to be contrasted with the time-honoured expression in the M’Naughten Rules “defect of reason”, means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression “mental responsibility for his acts” points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.

Whether the accused was at the time of the killing suffering from any “abnormality of mind” in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.

The aetiology of the abnormality of mind (namely, whether it arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence.”

49. As set out in Byrne, Lord Parker CJ described the concept of control as the “ability to exercise willpower to control physical acts in accordance with a rational judgment” formed about whether an action is right or wrong. Further, in Byrne Lord Parker CJ stated at 404:

“… In a case where the abnormality of mind is one which affects the accused's self-control the step between “he did not resist his impulse” and “he could not resist his impulse” is, as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common-sense way.”

50. In R v Trotter (1993) 35 NSWLR 428 Hunt CJ at CL summarised the issues to be decided in relation to the s 23A defence at p 430:

“(1)   Was the accused at the relevant time suffering from an abnormality of mind of the type described in the section.

(2)    Did that abnormality of mind impair his mental responsibility for his act.

(3)    Was that impairment substantial.

Each issue is one of fact to be determined by me as the relevant tribunal of fact.

The particular aspects of mind to which attention is usually paid in relation to this defence are the accused’s perception of events, his ability to form a rational (or sensible) judgment as to whether his actions were right or wrong, and his capacity to exercise willpower to control his physical actions in accordance with rational (or sensible) judgment. Such perception, ability and capacity vary widely in normal people. An abnormality of mind exists where there is a deviation from the range over which they may vary in normal people or persons’ mental responsibility for his actions concerns the extent to which his mind is answerable for his physical acts and it too involves the extent of that person’s ability to exercise willpower to control his physical actions: R v Byrne [1960] 1 QB 396 at 403. That mental responsibility is impaired if it is diminished by reason of that abnormality of mind.

Whether the cause of the abnormality of mind falls within the terms of s 23A requires expert medical evidence: R v Byrne (at 403), and such evidence is relevant to the other matters as well. Although the word “responsibility” in the phrase “mental responsibility” appears to introduce a non-medical value judgment, an expert medical witness would in my view be able to give evidence that, for example, the accused's perception of events or his capacity to exercise willpower to control his physical actions was impaired. But the tribunal of fact is not bound to accept the medical evidence where there is other material before it which, in its judgment, conflicts with it and outweighs it: ibid (at 403). Such material includes the nature of the killing, the conduct of the accused before, at the time and after the killing and any history of mental abnormality: Walton v The Queen [1978] AC 788 at 793.

The tribunal is in any event entitled to consider the quality and the weight of the expert medical evidence: ibid (at 793).

The “crucial” question in the defence of diminished responsibility is, however, whether the impairment of the accused's mental responsibility for his act was substantial: R v Byrne (at 403). Some impairment is not sufficient; if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial: R v Simcox (Court of Criminal Appeal of England, The Times, 25 January 1964, unreported), quoted in R v Lloyd [1967] 1 QB 175 at 181. To be substantial, the impairment may be less than total, but it must be more than trivial or minimal: R v Lloyd (at 178-179).

It was held in R v Byrne (at 404) that medical evidence is relevant to this

question as well, but not decisive of it. The Court of Criminal Appeal pointed out (at 403-404) that the question involves matters of degree, and that it is one which is essentially for the jury. And, as the question is not merely a medical one of whether there was an impairment but also whether that impairment can “properly” be called substantial, it was pointed out (at 404) that this is a matter upon which juries may quite legitimately differ from the medical experts: see also R v Lloyd (at 179). It is often put to juries that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: R v Ignjatic (1993) 68 A Crim R 333 at 346.

Those criteria demonstrate why expert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is substantial. The doctors are obviously qualified to say whether the extent of the particular impairment to the accused's perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused's mental responsibility for his actions may “properly” be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession. That is a task for the tribunal of fact, which must approach that task in a broad common-sense way: R v Byrne (at 404); Walton v The Queen (at 793). It involves a value judgment by the jury representing the community (or by a judge where there is no jury), not a finding of medical fact.”

Psychiatric Evidence

Obsessive compulsive disorder

51. The trial judge identified relevant features of OCD and Borderline Personality Disorder (BPD) at PJ [236]-[237]. The trial judge described OCD as an anxiety disorder which creates a level of dysfunction in an affected person. Dr Furst stated that individuals affected by OCD typically fear contamination and may have intrusive thoughts which manifest in a compulsive need for order. Their obsessions, which are experienced as unpleasant, unwanted and intrusive thoughts are relieved by their compulsions, such as cleaning, which is time-consuming and impairs feelings of wellbeing and psychosocial function.

Borderline personality disorder

52. The trial judge described BPD as typically involving a prolonged disturbance of personality function characterised by “depth and variability of moods”, unusual levels of instability in mood, chaotic and unstable interpersonal relationships, self-image problems, identity problems and behaviour, as well as a disturbance of the individual’s sense of self. In extreme cases, this disturbance in the sense of self can lead to periods of dissociation.

53. Dr Furst said that attempted and completed suicides were possible outcomes for persons with BPD. Dr Furst said that one of the diagnostic criteria for BPD was a “fear of abandonment” and rejection, and that “being abandoned or left behind by someone in an interpersonal relationship could be a devastating thing for someone” with the disorder. Dr Allnutt and Dr Nielssen’s descriptions of OCD and BPD were consistent with that of Dr Furst.

Dr Allnutt

54. The trial judge summarised Dr Allnutt’s evidence at PJ [238]-[255]. His report was dated 12 February 2016 (Exhibit JJ).

55. Before the preparation of this report, Dr Allnutt was provided with the report of Dr Nielssen, the Crown case statement, the ERISP, interview and statement of Thomas Quinn, statements and walk through interview of Joanne Quinn, statements from Anthony Quinn and Sheree Broad and triple 0 emergency documents. He did not have the statements from Evansueda Vize, Ms Hasic or Ms Loke which contained references to aspects of the applicant’s behaviour consistent with his BPD, nor did he have evidence of the incident at Wollongong University or the telephone records.

56. Dr Allnutt gave evidence that based on the information provided, the applicant would be regarded as manifesting an abnormality of mind derived from an underlying condition in that he manifested a depressive disorder, obsessive compulsive disorder and histrionic and borderline personality traits. During his evidence he accepted that it was probable that the applicant suffered from BPD, as well as OCD.

57. Dr Allnutt’s initial opinion that the applicant’s abnormality of mind was not of a nature or severity that would have impaired his capacity to judge events, know right from wrong or control his actions was based on his acceptance of the applicant’s account that the killing was accidental. He gave evidence that if the court excluded the applicant’s account of the circumstances of the killing, any opinion provided in relation to what motivated him at the time was speculative. When asked to assume that the applicant deliberately stabbed Ms Vize in response to rejection by her, Dr Allnutt maintained his earlier opinion as to the applicant’s capacity to understand events and judge whether his actions were right or wrong.

58. When asked whether the applicant’s capacity to control himself was substantially impaired, assuming that the applicant deliberately stabbed Ms Vize in response to his rejection by her, Dr Allnutt said:

“People with borderline personality disorder ... are more prone to react to rejection, in other words, they can get upset very easily, they engage in recurrent self harm behaviour, for example, they may engage in reckless behaviour, get in the car, drive recklessly, so they may engage in reckless behaviour to deal with that emotional response of rejection which may be what we might formulate here.

The question is was it a loss of control? It’s difficult for me to know if it’s a loss of control because I think it requires a forensic analysis of the behaviour that he engaged in in the time leading up to the alleged offending. If it was a sudden reaction to something she said, then that may go towards a loss of control. If it was a planned event in order to seek revenge or to find retribution, then that may go against a loss of control” (PJ [249])

59. Dr Allnutt emphasised the importance of a narrative by the individual concerned. He said that when this does not exist, one cannot “test” things and “clarify” the decision making process, or why people decide to do things or their “exact” emotional state at the time.

60. Dr Allnutt believed that impairment of the applicant’s capacity to control himself was the central issue in the case. He said that the loss of control that came with overreaction to rejection would not necessarily be spontaneous, and that this could develop over a period of time.

61. The trial judge found that interrelated points emerged from Dr Allnutt’s comment, namely the connection between the amount of planning or pre-meditation involved and the difficulty of undertaking “forensic analysis of the behaviours” the applicant engaged in during the time leading up the stabbing, in the absence of an account from him that was consistent with him deliberately stabbing Ms Vize.

62. When asked about the applicant stabbing himself in the chest, neck and spinal cord in terms of his psychiatric background, Dr Allnutt said:

“A. Well, I think that was an impulsive response to what had happened. I think that entire incident would have been experienced by him as a very emotional experience and I would regard that as an act of impulse driven by emotional distress. Feelings of guilt. So that might be regarded as a loss of control, in my view, post offence.”

63. The trial judge did not accept Dr Allnutt’s opinion that the applicant stabbing himself was an impulsive response to what had happened. He was satisfied beyond reasonable doubt that, at least from the time the applicant obtained a knife from the kitchen, he not only intended to stab Ms Vize, he also intended to kill himself. His Honour reached this conclusion because the evidence suggested that he had been brooding over that possibility for several days. His discussions with his mother and Ms Loke on the evening before the killing revealed a state of despair. His Honour found that the events immediately after the killing revealed a lack of hesitancy, consistent with a determination to end his own life.

64. Dr Allnutt considered that if the applicant's “behaviour was driven by an underlying condition”, it derived more from his personality disorder and depression than from OCD.

Dr Furst

65. Dr Furst prepared a report dated 5 January 2016. The trial judge summarised his evidence at PJ [256]-[270]. The trial judge noted that the history the applicant provided to Dr Furst was largely consistent with his evidence at trial, except that he told Dr Furst that his obsession with cleanliness commenced after he was sexually abused by a school counsellor.

66. Dr Furst diagnosed the applicant as suffering from OCD and BPD. He said that the applicant “is probably best regarded as a mentally disordered offender owing to his reported and observed mental state at the time of the offence”. (The trial judge said that this appeared to be a reference to his unresponsiveness at the scene of the stabbing.) Dr Furst concluded that the applicant was “probably unable to control his actions as a consequence of his acute mental disorder and his underlying mental conditions (i.e. BPD and OCD)”. He said that his apparent lack of self-control was consistent with his actions in stabbing himself in a life threatening manner immediately after the offence.

67. Dr Furst did not accept that the applicant’s capacity to understand events was substantially impaired. He was of the view that the disorder from which he suffered was not of such severity that he wasn't aware of events. He was also of the view that the applicant’s capacity to judge right from wrong was not substantially impaired.

68. The trial judge noted the following about the evidence of Dr Furst.

1. The factual basis of Dr Furst’s opinions. Dr Furst took into account information additional to the applicant’s account to base his opinion as to impairment. He said that in preparing his report, he had given more weight to the descriptions in the Crown witness statements, in particular his mother and brother talking about the breakup, and how he came to learn about the text message.

2. Dr Furst assumed that the applicant was suicidal before he stabbed the victim. This was based on the proximity in time between the two stabbings and the statement he made to his family about killing himself. Dr Furst said that the applicant may have been suicidal for “at least several minutes” before stabbing the victim. The trial judge observed that this aspect of Dr Furst’s opinion was consistent with his finding at PJ [230].

3. Dr Furst addressed the effect of the applicant’s OCD. When questioned by his Honour about what impulse the applicant was unable to control assuming the stabbing was deliberate, Dr Furst said that it was not washing or cleaning:

“... it’s more a borderline personality disorder structure of the accused and the more rapid mood swings and anxiety around that. I appreciate there’s an overlap of anxiety of OCD and anxiety of borderline personality but in my view it’s probably more this overwhelming sense of rejection, abandonment and basically becoming disordered and losing it in that sense rather than the need for a control and contamination …” (PJ [262])

His Honour also noted that Dr Furst stated that the OCD “probably gave the applicant a baseline level of dysfunction” and that interacted with his BPD and narcissistic traits in relation to interpersonal relationships. He identified the excessive number of telephone calls to Ms Vize as “probably related to the OCD”.

4. Dr Furst said that BPD made a person both more inclined to be jealous and fear abandonment and affected the ability to temper or control their response to fear. He said that if the applicant was motivated by jealousy, this was not necessarily inconsistent with his capacity to control himself being impaired by BPD:

“A. So the jealousy and fear of rejection or abandonment, classic description, is an underlying tendency they have by virtue of their personality structure. But if sufficiently stressed, they might tip over and go into crisis of generally self harming or cutting oneself or attempting suicide and getting in to what we call a mentally disordered state under the Mental Health Act type description.” (T.331.35)

5. Dr Furst accepted that that the taking of the knife by the applicant from the kitchen indicated a “degree of planning” but said that a person can be in a “disordered state” “for several minutes or hours before or after an event” such that it is variable in terms of the degree of disorder, degree of planning and degree of loss of control” (PJ [264]). Dr Furst acknowledged the interplay of potential inconsistency between the applicant planning to stab Ms Vize and whether his capacity to control himself was impaired.

69. The trial judge found that it was unlikely that Dr Furst’s reference to a “disordered state” equated to a state where the applicant lacked the capacity to control his actions. The trial judge referred to Dr Furst’s evidence that it was a reasonable possibility that the arguments on 20 and 21 July 2013 between the applicant and Ms Vize and viewing the text message were precipitating factors to the stabbing. Dr Furst said that the arguments and the phone calls demonstrated an “unstable mental state” for at least some days leading up to the killing. The trial judge said that he understood this to be a reference to heightened agitation which made the applicant more susceptible to a loss of control on the morning of 22 July 2017. The trial judge referred to the evidence of Thomas that the applicant was non-responsive to screams and pleas the morning of the 22 July 2013.

70. The trial judge noted that Dr Furst considered this to be “consistent with him being highly disturbed emotionally and in some type of abnormal state emotionally” (PJ [270]).

Dr Nielssen

71. Dr Nielssen prepared a report dated 21 July 2015. He gave evidence after the applicant and had the benefit of reviewing a transcript of his evidence. For the preparation of his report, Dr Nielssen also had the benefit of the statements from all the independent witnesses. The trial judge summarised his evidence at PJ [271]-[284]. The account the applicant gave Dr Nielssen was generally consistent with his evidence, although the applicant did not mention that he was sexually assaulted by a counsellor when he was 11 or 12.

72. Dr Nielssen concluded that the applicant had an abnormality of mind arising from an underlying condition, being his chronic OCD and mood disorder. He also concluded that the applicant’s capacity to understand events and judge whether his actions were right or wrong was substantially impaired by his abnormality of mind. Dr Nielssen concluded that the applicant’s capacity to control himself was substantially impaired by his abnormality of mind. Dr Nielssen described the applicant’s impairments as “moderate to severe”.

73. Dr Nielssen conceded that the applicant met the accepted criterion for a diagnosis of BPD. He said that one of the features of BPD, or personality traits, is sudden fluctuations of mood, including sudden severe depression in response to setbacks such as rejection. One of the core features is a fear of rejection and an acute reaction to perceived rejection, and that is typically a state of severe depression often followed by impulsive self harm.

74. His Honour noted four matters about Dr Nielssen’s conclusion as to the applicant’s capacity control himself.

1. In diagnosing the applicant with OCD and depressive illness, Dr Nielssen did not place much reliance on the applicant's account, but said there was "ample additional information" to confirm the presence of chronic mood disorder.

2. Dr Nielssen gave this evidence:

"His combination of disorders are likely to have had a significant effect on his ability to control his actions. His severe mood swings producing states of severe depression and also anger, and also the impairment in impulse control that goes with OCD in those situations, between the combination of the two were likely to have affected his capacity for self-control and significantly affected his capacity for self-control." (T.505.15)

3. Dr Nielssen stated that the "emotional disturbance" involved in a loss of control "can last for sort of minutes, hours and days, depending on the individual person and in the way they respond to setbacks, minor or major setbacks".

4. The trial judge determined that the various questions put to Dr Nielssen concerning the level of planning involved in the stabbing of the victim, exposed the limits on the making of an assessment of the impairment of the applicant's capacity to control his actions in the absence of a reliable narrative from him. The limitation referred to by his Honour was Dr Nielssen's inability to say what was in the applicant’s mind when he took the knife from the house, or know precisely when he formed the intention to kill Ms Vize (PJ [282]-[283]).

The trial judge’s findings

75. The trial judge rejected the applicant’s evidence that the killing was accidental and said that he did not accept the applicant’s evidence unless it was confirmed or corroborated by other evidence. His Honour found the applicant’s evidence to be implausible, internally inconsistent and inconsistent with that of other witnesses and the telephone and SMS records. He found that the applicant intended to kill Ms Vize and that the Crown had proved beyond reasonable doubt that he deliberately stabbed her. Those findings were not challenged in the appeal.

76. The trial judge also found that before the stabbing, the applicant had formed the intention to kill himself. That finding has been challenged.

77. The trial judge accepted the opinions of each of the psychiatrists that the applicant had “an abnormality of the mind arising from an underlying condition” being a “pre-existing mental or physiological condition other than a condition of a transitory kind”, i.e. OCD and BPD.

78. His Honour found that the rejection of the applicant’s evidence as to how the killing took place created a difficulty for the psychiatrists in reaching a diagnosis. His Honour articulated that difficulty as follows:

“235   …  particular difficulty for the psychiatrists was identifying a factual basis upon which to opine in circumstances where substantial impairment only arises it if it was found that the accused deliberately stabbed Ms Vize, yet he denied doing so and the onus of proof on this issue rested upon him (s  23A(4)).” (PJ [235])

79. His Honour noted that senior counsel for the applicant at trial sought to overcome that difficulty by relying on the evidence of the observation witnesses to demonstrate the applicant’s state of mind, both before and on 22 July 2013. While his Honour accepted much of that evidence, including that which had been relied upon by the three psychiatrists to make their diagnoses, the problem identified by his Honour still remained. This was because while the evidence of the observation witnesses was capable of justifying the conclusions of the psychiatrists, the extent to which that material supported a finding of substantially impaired capacity, remained a problem.

80. His Honour’s conclusion was that in the absence of a reliable narrative from the applicant as to his state of mind leading up to the killing of Ms Vize, when he formed the intention to kill and what steps he took to give effect to that intention, he was not persuaded on the balance of probabilities that at the time the applicant stabbed Ms Vize, his capacity to control himself was substantially impaired. For similar reasons, his Honour was not satisfied that it was demonstrated on the balance of probabilities that the applicant’s capacity to understand events or judge whether his actions were right or wrong was substantially impaired. It was for that reason that his Honour concluded that the applicant had failed to satisfy s 23A(1) of the Crimes Act.

81. As his Honour pointed out, both Drs Allnutt and Furst did not accept that the applicant’s capacity to understand events was impaired. Dr Allnutt’s opinion was that the applicant’s account was not consistent with a delusional belief and that while the applicant might have misjudged his actions at the material time, he had capacity to judge events (T.276.49; T.279.23).

82. Dr Nielssen was of the opinion that the applicant’s capacity to understand events was impaired because he clearly had “quite a distorted world view” and because the effect of his severe mood swings would also alter his perception of events. The “distorted world view” to which Dr Nielssen referred was the applicant’s evidence that it was he who wished to terminate the relationship.

83. The trial judge rejected this opinion of Dr Nielssen because he did not accept that it had been established, on the balance of probabilities, that at the time he stabbed Ms Vize the applicant generally held this “distorted world view”. His Honour in his findings had already rejected the proposition that the applicant had that “world view” at the time he stabbed Ms Vize. In the course of his evidence on this issue Dr Nielssen responded to questions from his Honour as follows:

“Q. Doctor what events that morning was he distorted about?

A. Well the perception of rejection which may have been real, but that way he’s viewed it, the effect of his behaviour on the likely consequences of his behaviour, how it might affect his family and other people who might have witnessed what’s going on, of course, how it might affect Ms Vize, that he’s somehow – that somehow that he should kill her, that she wanted to die perhaps that …

Q. Sorry, just going back, where is there evidence that he had a distorted view that killing himself wouldn’t, in the front yard, wouldn’t have caused distress to his family?

A. Well it’s more in the effect of his behaviour, the fact that he’s set out to do it, without considering the full consequences of it. If he’d been able to calmly reflect on the possible consequences he might reconsider his behaviour. But in his frame of mind at the time it seemed the right thing to do; I would call that a distortion of reality.” (T.504)

84. His Honour noted that those responses by Dr Nielssen were predicated on an acceptance that as at 22 July 2013 the applicant correctly perceived that he was being rejected by Ms Vize, which accorded with his Honour’s findings. However, his Honour found that in the balance of the answer Dr Nielssen reverted to either making assumptions or drawing inferences about the applicant’s mental state which were not established on a balance of probabilities. In particular, his Honour did not accept that as at 22 July 2013 the applicant generally believed that Ms Vize wanted to die. There was no independent evidence to that effect and there was no independent evidence that the accused believed that she wanted to die.

85. The trial judge also rejected Dr Nielssen’s opinion that the applicant set out to kill Ms Vize and then himself “without considering the full consequences” of his behaviour. His Honour did so on the basis that there was no evidence to that effect. This was to be contrasted with his Honour’s finding that the applicant intended to kill Ms Vize and he intended to kill himself. That finding was supported by the evidence that the applicant had ruminated on killing himself for some time. In those circumstances, his Honour considered that it was plausible that the applicant thought about the distress his actions might cause to others but was indifferent to it. His Honour concluded that in the end result there was no satisfactory evidentiary material capable of demonstrating that as at 22 July 2013 the applicant’s “capacity to understand events” was impaired, let alone substantially impaired.

86. In relation to whether the applicant’s capacity to judge whether his actions were right or wrong was substantially impaired, his Honour noted that Dr Allnutt did not accept that borderline personality traits or depression impaired a person’s capacity to know right from wrong (T.279.27). Dr Allnutt considered that the applicant’s infliction of self harm after the deceased was stabbed was a reaction of “guilt that he had done the wrong thing” (T.272.29).

87. His Honour also noted that when Dr Furst was referred to the opinion expressed by Dr Nielssen that the applicant’s impaired capacity to know right from wrong derived support from his preparedness to harm himself in the presence of his mother and brother, Dr Furst responded:

“A. I think that I would probably have a different interpretation or a different grade, if you like of judging right from wrong, so I tend to see judging right from wrong as being driven by some moral justification or delusional thinking for example that the victim is possessed by a demon and its right to kill the victim. That would be a clear example where one can’t judge right from wrong. Once you get into someone being mentally disordered and suicidal, suicide is wrong clearly in a moral sense and by community standards and it may be that his capacity to judge right from wrong is impaired that way but I wouldn’t necessarily reach that threshold from my understanding of judging right from wrong. Others might, it’s really up to the individual as to how they assess that.” (T.327.4)

88. On the same issue, his Honour had regard to the following evidence in chief of Dr Nielssen:

“Q. If I could take you please to ability to judge right from wrong and I appreciate there might well be an overlap in your view relating to the respective capacities in s 23A(1), but do you have anything to say specifically about an impairment he may have suffered to his ability to judge right from wrong?

A. Yes. Well again from his point of view at the time his behaviour was the right thing to do and that demonstrates an impairment in his ability to judge right from wrong.

Q. But you understand that people deliberately commit offences such as murder?

A. Of course.

Q. And that does not necessarily mean that they are substantially impaired in their ability to know right from wrong?

A. Yes.

Q. So how do you see the difference here?

A. Well I mean from the point of view of a person who has no regard for their own safety and for their own life, and that he’s already spoken about wanting to kill himself, from that point of view he wouldn’t care perhaps about the consequences of his actions because he doesn’t care about his own safety and in that sense, his ability to judge right from wrong is impaired from his point of view.” (T.504.31)

89. In relation to that evidence, his Honour observed:

“299 This extract again highlights the difficulty in determining what version of the events the psychiatrists, in this case, Dr Nielssen , were opining upon. The last answer suggests that Dr Nielssen was directing his attention to the accused’s act of stabbing himself. However, the issue presented by this part of s 23A(1)(a) of the Crimes Act concerns the accused’s capacity to judge whether his actions in deliberately stabbing Ms Vize were right or wrong. Section 23A(1)(a) refers to the impairment existing “at the time of the acts or omissions causing the death concerned”. Given the proximity in time between the accused’s action in stabbing himself and stabbing Ms Vize, it follows that an impaired ability to judge whether stabbing himself was right or wrong might throw some light upon whether his capacity to judge whether stabbing Ms Vize was right or wrong was impaired, but it is far from determinative. The fact that the accused may have showed no regard for his own safety in stabbing himself may or may not mean that he thought harming himself was capable of being morally justified. He might have thought he deserved it. He might have known that stabbing himself was wrong but did not care. However, except perhaps in the respect identified by Dr Allnutt in [295], none of this says much in this case about whether the accused’s ability to judge whether deliberately stabbing Ms Vize was right or wrong was impaired. In terms of an assessment of what is right and wrong, there is a qualitative difference between harming yourself and harming others.”

90. The trial judge took into account the importance of assessing an individual’s thought process to determine if their capacity to judge whether their actions were right or wrong was impaired. The problem identified by the trial judge was, however, that there was no evidence from either the applicant or any other source capable of establishing on balance that his capacity in that respect was impaired.

91. In relation to whether the applicant had established on balance that his capacity to control himself was substantially impaired, the trial judge concluded that the applicant’s OCD did not make any significant or substantial contribution to any loss of control on his part at the time he stabbed Ms Vize. There was no evidence that his actions in stabbing her arose from his giving effect to any impulse, or from frustration, or from being prevented from carrying out any such impulse. The trial judge found that there was no evidence that his actions were connected to any intrusive thought that weighed upon him. His Honour found that the only suggested connection between his OCD and his conduct towards Ms Vize was his evidence that he had some “ritual” or “compulsion” related to his OCD to contact her in the morning or at night that replaced his compulsion to clean or turn the light switches off. His Honour did not accept that his telephoning Ms Vize involved him giving effect to any impulse relating to his OCD. His Honour found that although the applicant was emotionally dependent on Ms Vize, there was insufficient evidence to suggest that she was part of the focus of his OCD.

92. His Honour accepted, as Dr Furst stated, that the applicant’s OCD was a contributor to a level of dysfunction and agitation on his part. This finding was qualified because none of those close to him observed any significant amount of compulsive behaviours in the weeks before Ms Vize’s death. As a result his Honour was not persuaded that the OCD made much of a contribution to any such level of dysfunction at the time of and leading up to the stabbing.

93. His Honour accepted the diagnosis that the applicant was affected by BPD and that during the period when a relationship was ending or under strain, the applicant’s BPD had the capacity to increase his feeling of abandonment and reduce his capacity to control his responses. His Honour accepted that the applicant was distressed about the breakup with Ms Vize and was refusing to accept that it would occur. His Honour accepted that the applicant was emotionally dependent on Ms Vize and was desperate to contact and be with her. His Honour accepted that the applicant might have been “unstable” in the immediate period before the stabbing in the sense described by Dr Furst at PJ [268] and so, vulnerable to an impairment of his self-control.

94. While the trial judge was prepared to accept those matters, he identified the fundamental question as “Has a substantial impairment of his capacity to control himself at the time he stabbed Ms Vize been demonstrated on the balance of probabilities?” (at PJ [306]).

95. His Honour set out his conclusions on this issue as follows:

“307   I have discussed the concept of control at [28] to [31]. While there is not necessarily an inconsistency between planning to kill someone and possessing a substantially impaired capacity for self-control, I accept the approach stated by Dr Allnutt, namely, that the “more planning is involved the less likely” it will involve a loss of control. Applying a “common sense” approach, a spontaneous, random killing is more likely to be the product of an impaired capacity for self-control than a planned killing. In fact, the greater the level of planning and the longer the period between the formation of the plan and its implementation, the more likely it is that the accused “did not resist his impulse” as opposed to “could not resist his impulse”.

308   There is no reliable direct evidence of the accused’s thought processes from the evening before Ms Vize’s death to the time he stabbed himself. At best, they can only be determined by drawing inferences from what has been demonstrated about his mental state generally, from the apparently calm period from when he woke up until he when he seized the knife and his violent actions thereafter. It is not clear how long the former period was, but the latter lasted no longer than 4 to 5 minutes.

309   From those actions it can be deduced that the killing involved some elements of planning, namely, the seizing of a knife some minutes before Ms Vize was stabbed, the selection of her neck as the place to administer a fatal wound and the plan to kill himself. Of itself, that level of planning is not necessarily inconsistent with the accused possessing a substantially impaired capacity for self-control. However, what is not known is his thoughts and actions prior to his seizing the knife.

310   The analysis of the psychiatrists’ evidence set out above highlights the significance in this case of obtaining some form of reliable narrative from the accused as to when he formed the intention to kill Ms Vize and what steps he took to give effect to it. Dr Allnutt stated that it required a “forensic analysis of the behaviours that he engaged in in the time leading” up to the stabbing. When he was asked about the significance of the accused seizing the knife and the possibility that he formed an intention to kill Ms Vize the night before, Dr Nielssen understandably said that he could not “really know what’s in [the accused’s] mind” and “he’s the only one who really knows exactly what was going through his mind” respectively.

311   Further, for the reasons explained at [267], Dr Furst’s approach assumed or inferred that the accused became “suicidal and/or homicidal when arming himself”. However, in the absence of a reliable narrative from the accused, especially one that describes when he formed the intention to kill and what steps he took to give effect to that intention, why should it be assumed or inferred that the accused did not form a suicidal or homicidal intention before he seized the knife? Did the accused decide to kill Ms Vize in the days before but plan to do it at his home when his family were present? What was the accused thinking during the period from when he woke up to when he armed himself? Was he steeling himself to carry out a plan he had already formed or was he ruminating over his rejection and losing his capacity to control himself? None of these questions can be addressed yet each are of potential significance to an assessment of whether his capacity to control himself was impaired and, if so, whether any such impairment was substantial.

312   In the absence of a reliable narrative from the accused, I am not persuaded on the balance of probabilities that at the time he stabbed Ms Vize the accused’s capacity to control himself was substantially impaired.”

THE APPEAL

Ground 1 – His Honour erred in his consideration of whether the applicant's capacity to control himself was substantially impaired pursuant to s 23A of the Crimes Act 1900 by:

a)   giving determinative weight to the importance of planning;

96. The applicant submitted that his Honour had erred in placing determinative weight on the importance of planning and the necessity of an account from the applicant as to his thought processes about this. The applicant submitted that his Honour’s acceptance of Dr Allnutt’s approach and his conclusion that a credible narrative from the applicant as to when he first formed the intention to kill was essential in order for him to discharge the onus on him resulted in his Honour failing to make a proper assessment of the opinions of Dr Nielssen and Dr Furst and the evidence from persons who had observed him and Ms Vize in the days leading up to her death.

97. The applicant submitted that the opinions of Dr Nielssen and Dr Furst were not dependent on an account from the applicant and they were not undermined by the absence of an account from him. He submitted that neither psychiatrist considered that it was necessary to know precisely what was going through the applicant’s mind before the killing. Both considered that the evidence of independent observers was sufficient to establish that the applicant's capacity to control his actions was substantially impaired at the time of the killing. The applicant submitted that both psychiatrists had taken into account the significance of planning and jealously as a motive, in the context of the applicant’s abnormality of mind. The applicant submitted that the opinions of those two psychiatrists stood to be examined in context on their own merits.

98. The applicant submitted that his Honour erred in placing greater weight on the opinion of Dr Allnutt than on the other two psychiatrists. This was because Dr Allnutt did not have all the material on which to make a forensic analysis of the applicant’s behaviour in the period leading up to the killing. In particular, he did not have the statements from Ms Vize’s mother, Evansueda, Ms Hasic or Ms Loke. Those statements provided important information concerning the applicant’s behaviour consistent with his BPD and the extent of his dependence on Ms Vize.

99. The applicant noted that it was also relevant that in preparing his report Dr Allnutt had accepted as genuine the applicant’s description of what had happened, i.e. that Mr Vize’s death was an accident. It was only when giving his evidence that Dr Allnutt was asked to express opinions based on a different assumption, i.e. that Ms Vize intended to leave the relationship and that the applicant had deliberately stabbed.

100. The applicant submitted that his Honour did not make a finding as to whether the evidence of observers of the applicant was capable of demonstrating that the applicant’s capacity to control himself was impaired to any degree and that his Honour had concluded only that the applicant’s BPD had the capacity to increase his feelings of abandonment and reduce his capacity to control his responses. The applicant submitted that the central issue under consideration was not when he first formed the intention to kill Ms Vize, or the extent of planning involved, but whether there was evidence that his capacity to control his actions was substantially impaired at the time of the killing by his abnormality of mind.

101. The applicant submitted that his Honour’s focus on the importance of planning and the lack of credible evidence of his [the applicant’s] thought processes about when he formed the intention to kill Ms Vize distracted his Honour from a proper assessment of the opinions of Drs Furst and Nielssen, and the consideration of whether all of the observer evidence was capable of establishing that the applicant’s capacity to control himself was impaired to any degree at the time of the killing and, if so, whether this impairment was substantial for the purpose of s 23A(1).

Ground 1 (b) – failing to properly assess the opinions of Dr Nielssen and Dr Furst and adequately explain why he did not accept their opinions

102. The applicant submitted that it was unnecessary to know precisely what was going through his mind at the time because taken as a whole, based on all of the evidence, the killing appeared to be an extreme over-reaction to perceived rejection consistent with his psychiatric vulnerability. The applicant submitted that his Honour did not assess Dr Nielssen’s evidence in context. He did not make any findings about Dr Nielssen’s opinion as to the link between the applicant’s psychiatric disorder, his motivation and his attempted suicide. The applicant submitted that his Honour did not properly explain why it was not open to Dr Nielssen to conclude on the evidence from observers that the applicant’s capacity to control himself was substantially impaired.

103. The applicant submitted that Dr Furst had considered the significance of planning and motivation in the context of his [the applicant’s] abnormality of mind. Dr Furst had agreed that if the stabbing was deliberate the applicant could have been motivated by jealousy, but that should be considered in the context of his mental disorders.

104. The applicant noted that his Honour had concluded that if his [the applicant’s] thought processes were known, this could affect an assessment of whether his capacity to control himself was impaired at the time he stabbed Ms Vize. The applicant submitted that this was contrary to Dr Furst’s view that it was unnecessary to know precisely when the applicant formed the intention to kill Ms Vize in order to determine whether his capacity to control himself was substantially impaired at the time of the killing. The applicant noted that Dr Furst did not assume that he [the applicant] had in fact formed the intention to kill both himself and Ms Vize at the time he picked up the knife but that he [Dr Furst] could not say what the applicant’s motivation was at that time and that he may have only intended to kill himself.

105. The applicant submitted that in circumstances where Dr Furst had clearly equated “many disorders” to a state where his [the applicant’s] capacity to control himself was substantially impaired, his Honour did not explain why it was not open to Dr Furst to find from the circumstances of the applicant’s attempted suicide and his demeanour at that time, that his capacity to control his actions was substantially impaired when he stabbed himself. This was in the context of his unstable state of mind leading up to the killing and the fact that he was suicidal at the time he seized the knife. The applicant submitted that his Honour did not explain how Dr Furst’s opinion was undermined by the absence of a credible account from the applicant as to his thought process at the time.

Ground 1(c) – Failure to make relevant findings of fact in relation to the applicant’s attempted suicide

106. The applicant submitted that the trial judge made no finding as to whether the evidence of the applicant’s brother and the other observer witnesses supported the inference that the applicant suffered an impaired capacity to control himself at the time he attempted to kill himself or at the time of the killing of Ms Vize. This was in a context where his Honour accepted that the applicant’s brother was a truthful and reliable witness. The applicant submitted that in particular his Honour did not give due weight to the evidence of Thomas Quinn to the effect that the applicant was non-responsive to screams and pleas on the morning of 22 July 2013 and that Dr Furst considered this to be consistent with him “being highly disturbed emotionally and in some type of abnormal state emotionally”.

107. The applicant submitted that the only finding his Honour made about the applicant’s attempted suicide was that it was indicative of a determination to kill himself. He did not make a finding as to whether the evidence of Thomas Quinn, and the evidence of the other observer witnesses, supported the inference that the applicant’s capacity to control himself was substantially impaired at the time he stabbed himself. The applicant submitted that his Honour did not give consideration to whether the proximity in time of this to the killing of Ms Vize, taken with the accepted evidence of his unstable state of mind in the days leading up to the killing, was capable of supporting Dr Furst’s opinion that the applicant’s capacity to control his actions was substantially impaired at the time of the killing of Ms Vize.

108. The applicant noted that Dr Allnutt was of the opinion that the applicant’s attempted suicide was an impulsive, emotional response to the stabbing of Ms Vize and might be regarded as a loss of control post offence. The applicant submitted that his Honour did not accept that the attempted suicide was impulsive if that was meant to suggest that the applicant only decided to harm himself after he stabbed Ms Vize. The applicant submitted that his Honour otherwise did not consider or make a finding as to whether the circumstances of his stabbing himself might be regarded as a loss of control relevant for consideration of whether his capacity to control his actions was substantially impaired at the time of the killing.

Ground 1(d) – Finding that, in the absence of a credible narrative from the applicant as to when he formed the intention to kill and what steps he took to give effect to that intention, the applicant could not discharge the onus on him under the section.

109. The applicant submitted that his Honour erred by placing undue weight on the lack of a credible narrative from the applicant as to his thought processes leading up to the killing and the importance of knowing when he first formed the intention to kill Ms Vize. In so doing, his Honour did not properly consider the opinions of Dr Nielssen and Dr Furst, nor whether the evidence of observers was capable of supporting them.

110. The applicant submitted that his Honour erred by failing to give adequate reasons for rejecting these opinions and accepting the opinion of Dr Allnutt. He did not explain why it was not open to infer that the applicant’s capacity to control himself was substantially impaired at the time of the killing, given his actions in attempting to kill himself, against the background of his accepted psychiatric vulnerabilities, unstable state of mind and behaviour in the period leading to the killing.

111. The applicant submitted that error has been established and that there had been a miscarriage of justice.

Ground 2 – The verdict is unreasonable

112. The applicant relied upon his analysis of the psychiatric evidence in support of Ground 1 to also support Ground 2.

113. The applicant noted that in Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at [97] Johnson J (with whom McClellan CJ at CL and Fullerton J agreed) said that there was no reason in principle why an unreasonable verdict ground cannot apply to a case where the applicant bore the onus of proof at trial, on the balance of probabilities, to establish the partial defence of substantial impairment. The applicant further noted that the partial defence under s 23A only arose when his account of accidental killing was rejected. Accordingly, the defence did not turn on his credibility, but on the evidence of the other witnesses, including the psychiatrists.

263. In this case, the applicant’s BPD contributed to his offending in the way described by the sentencing judge (Sentence judgment, [33]-[34]). The applicant’s assertion that there is no authority of this Court that deals with the self-inflicted injury of an offender with an abnormality of mind should be contrasted with the states of mind of the offenders in the cases that have been cited. The applicant in Christodoulou v R was in a “highly disturbed and emotional state”. The applicant in Cvetkovic v R was depressed when he stabbed his former wife. The applicant in Betts v R was motivated by jealousy. Self-inflicted injuries usually result from a highly emotional or disordered state of mind. Distinguishing an offender with an abnormal mind, as defined in s 23A of the Crimes Act does not take into account the reality of this type of offending. What is also common to these cases and to this case is violence committed by a male against a partner, former partner or, as in the case of R v Riley, the lover of the offender’s wife. Jealousy or a desire to control are common motives. The sentencing judge was well aware of this (Sentence judgment, [48]).

264. Allowing the applicant’s self-inflicted injuries to mitigate the sentence as extra curial punishment fails to take into account that, in the light of the judge’s findings, the applicant’s injury was at least in part his own choice. There is also something abhorrent and against public policy in murder/suicide cases where an offender who is unsuccessful in his suicide attempt can in some way be rewarded for that lack of success by the results of the failed suicide being taken into account by way of mitigation.

265. In that regard, the remarks of the sentencing judge in Betts v R (at [22]) are relevant:

“22   …

“It seems to me that in considering the circumstances in which these injuries occurred the crucial matter in determining whether any mitigation should be allowed in the sentence which otherwise would be imposed – in other words the circumstances themselves – here the undoubted injuries which the offender suffered were in circumstances where the injuries incurred were intrinsic to the commission of the offence itself, not collateral to it. I find that it was the offender’s ambition to kill himself, and to kill Ms Holland. To find that because he failed to do so, in other words failed to achieve that ambition and merely suffered injuries as a result of his attempts, either at his own hand, or as a result of his invitation to her to stab him, would in essence be most obscene, and would legitimately be seen not only by [the victim], but by the community, as subversive to the rule of law.”

271. The sentencing judge did not err in following Christodoulou v R and Betts v R and in rejecting the applicant’s contention that he had suffered extra curial punishment. No good reason has been put forward by the applicant as to why Christodoulou v R and Betts v R were wrongly decided. This ground of appeal has not been made out.

Ground 3 – His Honour erred in failing to find special circumstances

272. The applicant submitted that the fact that his psychological condition and physical disabilities were taken into account when fixing the head sentence did not obviate the need to consider whether in the unusual circumstances of this case his circumstances were “sufficiently special” to amount to special circumstances and for the non-parole period to be reduced. While the applicant accepted that a finding of special circumstances is a discretionary finding of fact, in respect of which this Court will be slow to intervene (Jiang v R [2010] NSWCCA 277 at [83]) the applicant submitted that given the evidence in the present case, his Honour’s discretion miscarried.

273. The applicant submitted that in this case the purposes of punishment were limited. His Honour found that the protection of the community and specific deterrence had no role to play in the sentencing. The applicant’s moral culpability for the offence was reduced because of his abnormality of mind. The extent and nature of his catastrophic injuries placed him in a unique situation in the prison population. The applicant submitted that mercy required that there be a variation in the statutory proportion. The applicant submitted that the non-parole period of 15 years was well in excess of the minimum period which was required in all the circumstances.

Consideration

274. The sentencing judge declined to find special circumstances because the applicant’s mental and physical condition had already been taken into account in determining the appropriate sentence. His Honour also determined that the term of the sentence which was imposed would provide for a long period of supervision on parole.

275. The variation of the statutory ratio between the head sentence and the non-parole period is a discretionary matter and is confined by the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender, including the objective gravity of the offence and the need for general and specific deterrence R v Wong [2018] NSWCCA 20 at [75]. In Caristo v R [2011] NSWCCA 7 R A Hulme J (with whom Giles JA and Adams J agreed) noted (at [27]) that the non-parole period is the minimum period of actual incarceration that the offender must spend in custody, having regard to all of the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender’s subjective circumstances. It is clear from his Honour’s conclusions (at Sentencing judgment [63]-[64]) his Honour had determined that 15 years was the minimal period of actual incarceration for the applicant, having regard to all of the matters which he had earlier set out in his review of the objective seriousness of the offending and the applicant’s subjective circumstances.

276. What his Honour was saying in [64] of the sentencing judgment was that “double counting” for matters already taken into account in reduction of the head sentence and therefore already reflected in the non-parole period, must be avoided. That was a legitimate explanation for why, having acknowledged the existence of special circumstances, his Honour did not make a finding to that effect so as to otherwise adjust the sentence (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [47]).

277. As was explained by Spigelman CJ, an adjustment for special circumstances “raises so many matters of a discretionary character that this Court should be very slow to intervene” (R v Cramp [2004] NSWCCA 264 at [31]). It is only if the non-parole period provided is manifestly inadequate, or manifestly excessive, that this Court should intervene: R v Simpson and R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]. Ultimately, the degree or extent of any adjustment of the “statutory ratio” is a matter for the discretion of the sentencing judge: R v Cramp at [31], Trad v R [2009] NSWCCA 56 at [33]. Just because there are factors which could amount to special circumstances does not mean that it is erroneous not to make such a finding.

278. This ground of appeal has not been made out.

Ground 4 – His Honour erred in:

(a)   failing to take into account the [applicant’s] abnormality of mind and his diminished moral culpability when assessing the objective seriousness, and

(b)   his assessment of the objective seriousness of the offence

279. The applicant submitted that when his Honour characterized this case as an example of extreme infliction of domestic violence and found that it fell in the mid-range of objective seriousness, he did not take into account the applicant’s abnormality of mind and his consequent diminished moral culpability. The applicant submitted that this did not have to amount to an excuse in law to be a relevant consideration.

280. The applicant submitted that his Honour had accepted Dr Furst’s evidence that “fear of abandonment” was one of the diagnostic criteria for BPD and that being “abandoned or left behind by someone in an interpersonal relationship can be a devastating thing for someone” with BPD. The applicant noted that his Honour had found that he was affected by his BPB, that he was distressed at the ending of the relationship and vulnerable to an impaired capacity to control his actions. The applicant noted that his Honour considered that this diminished his moral culpability to a small degree. In those circumstances, the applicant submitted that given the evidence of the extent of his unstable state of mind and his vulnerability, his moral culpability was diminished to a significant degree. The applicant submitted that taking into account all of the evidence of the effect of the applicant’s BPD on him, and his diminished moral culpability, the objective seriousness of the offence was below the mid-range.

Consideration

281. The sentencing judge made a finding of the objective seriousness of the offence, taking into account that the applicant may have been in an unstable mental condition at the time of the offence but that substantial impairment was not proven. His Honour’s reference to “relevantly impaired” should be construed as “not substantially impaired as per s 23A of the Crimes Act”. That being the case, his Honour took into account not only the objective circumstances of the offending but also the applicant’s mental state at the time of the offence. The way in which the applicant has sought to substantiate this ground in reality seeks to traverse his Honour’s finding that the applicant had not proved on balance that he was “substantially impaired as per s 23A of the Crimes Act”.

282. His Honour found that the applicant’s moral culpability was diminished but only to a small degree. His Honour’s finding of objective seriousness is consistent with that finding and with the authorities referred to by the applicant (Biddle v R [2017] NSWCCA 128 at [68], McLaren v R [2012] NSWCCA 284; Elturk v R [2014] NSWCCA 61 at [33]-[35] and Yun v R [2017] NSWCCA 317).

283. As has been stated by this Court on many occasions, the assessment of objective seriousness (and therefore moral culpability) of an offence is a discretionary matter for the sentencing judge (Mulato v R [2006] NSWCCA 282 at [37], [46]; Ali v R [2010] NSWCCA 35 at [33]; Baines v R [2016] NSWCCA 132 at [15]).

284. The applicant has not shown that his Honour erred in his assessment of the applicant’s moral culpability. The applicant’s submission goes no further than to assert that putting the argument at its highest, another conclusion might have been reached. His assessment of moral culpability and the objective seriousness of the offending was well open to his Honour. This ground of appeal has not been made out.

Ground 5 – The sentence is manifestly excessive

285. The applicant accepted that in order to establish manifest excess, it is necessary to establish that the sentence is unreasonable and plainly unjust (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6], Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]).

286. The applicant submitted that in this case, the head sentence and the non-parole period were unreasonable and plainly unjust in the light of the applicant’s abnormality of mind, his facilitation of the course of justice, his catastrophic injuries and the limited purposes of sentencing which apply to him.

287. His Honour did not find any aggravating factors but found five mitigating factors, pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). These were:

• The applicant had no prior convictions.

• Was a person of prior good character.

• Was unlikely to re-offend.

• Had good prospects of rehabilitation.

• Had facilitated the course of justice.

288. The applicant submitted that his Honour found that he was affected by his BPD, that he was distressed at the ending of the relationship, was vulnerable to an impaired capacity to control himself and that his moral culpability for the offence was reduced because of this to a small degree. His Honour found that specific deterrence had no role to play in the sentencing. This was because the applicant could not physically re-offend and considerations of rehabilitation did not arise. The applicant submitted that in those circumstances, full weight should have been given to the impact of his mental condition on him while in prison.

289. The applicant submitted that given his Honour’s findings and the nature of the applicant’s injuries relevant to his onerous conditions of custody, the sentence was unreasonable and plainly unjust. The applicant submitted that the extent of his injuries placed him in a unique situation in the prison system. He would remain in a hospital facility and would never be able to serve his sentence in the general prison population. The applicant submitted that given his reduced life expectancy, a 20 year sentence and a 15 year non-parole period would weigh particularly heavily upon him. In all the circumstances, the sentence was excessive.

Consideration

290. The relevant principles with respect to a ground asserting manifest excess were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86]:

“86   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

See Obeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].”

291. The applicant killed his partner with an intention to kill. She had wanted to end the relationship. The objective seriousness of the offence was in the mid-range. It was “a serious example of the infliction of extreme domestic violence upon women” (Sentence judgment, [63]). The applicant’s moral culpability was only diminished to a small degree because of BPD. The trial judge took into account the relevant mitigating factors, although remorse was not one of them because of the applicant’s attitude to how the offence was committed.

292. His Honour took into account the difficulties that the applicant has in custody from his BPD and from his quadriplegia and its effects which warranted “substantial leniency”. The applicant’s life expectancy was taken into account by his Honour (Sentence judgment, [52]).

293. As has already been stated, the sentence imposed by his Honour, given the seriousness of the offending, was in all the circumstances lenient. His Honour explained why. His Honour exercised his discretion in balancing the objective circumstances and the subjective factors so as to arrive at the sentence. No House v The King error has been established.

294. This ground of appeal has not been made out.

295. It follows from the above that the orders which I propose are:

1. In relation to the applicant’s appeal against conviction I would grant leave to appeal but dismiss the appeal.

2. In relation to the application for leave to appeal against sentence, I would grant the leave to appeal but dismiss the appeal.

296. WHITE JA: I agree with Hoeben CJ at CL.

297. FAGAN J: I agree with the Chief Judge, with respect to both the application for leave to appeal against conviction and that for leave to appeal against sentence.

298. On ground 2, the otherwise entirely general contention that the verdict of guilty of murder was unreasonable is narrowed by the applicant’s written and oral submissions. There is no challenge to his Honour’s findings beyond reasonable doubt that the applicant deliberately stabbed the deceased (PJ [226]) and that he intended to kill her (PJ [232]). The applicant only asks for reduction of liability to a conviction for manslaughter, contending that his Honour ought to have found that s 23A of the Crimes Act applied to that effect.

299. Even under s 23A the issue on ground 2 is narrowed by the submissions. His Honour accepted that the applicant suffered from an abnormality of mind at the time of the homicide (PJ [285]-[286]). For the purposes of s 23A(1)(a) there is no challenge on appeal to the findings that the applicant had not proved on the balance of probabilities that his “capacity to understand events” (PJ [294]) or his “capacity … to judge whether [his] actions were right or wrong” (PJ [302]) had been substantially impaired by his abnormality of mind. All that is in issue on ground 2, applying the law in Filippou v The Queen at [12], is whether it was reasonably open to the learned trial judge not to be satisfied on the balance of probabilities that the abnormality had substantially impaired the applicant’s “capacity … to control himself”.

300. It is inherent in the verdict that his Honour found the applicant had not proved that his capacity to control himself was substantially impaired. But his Honour’s finding in this respect was also explicit and supported by reasons (at PJ [303]-[312]). The verdict has “for all purposes, the same effect as a verdict of a jury”: s 133(1); Filippou v The Queen at [11]. It follows that ground 1 and its four sub-grounds must be regarded as particulars of why and how it is said that it was not open to the learned trial judge to find that substantial impairment of capacity for self-control was not proved.

301. Under any of those sub-grounds the question for this Court is whether it was reasonably open to his Honour to evaluate the particular sub-issue or sub-category of evidence in the way he did and, even if not, whether it was nevertheless reasonably open to his Honour to have decided the ultimate issue under s 23A adversely to the applicant. For the purposes of both grounds 1 and 2 I have reviewed the trial evidence so far as it bears upon this ultimate issue of substantial impairment of the applicant’s capacity to control himself at the time of the homicide.

302. That evidence includes the reports and oral evidence of the three psychiatric experts. It includes the evidence of the deceased’s mother and of her friends, Ms Hasic and Ms Loke, particularly as to the applicant’s behaviour and mood over the weeks and days prior to the homicide in apparent reaction to the ending of his relationship with Ms Vize. Evidence relevant to the appeal grounds also includes the telephone records of the applicant’s numerous and persistent attempts to contact Ms Vize over approximately 11 days prior to the homicide. A very important component of the evidence was that of his mother and brother who observed him in the hours before the attack on the deceased and who saw him in the immediate aftermath. The neighbour, Ms Broad, also saw him immediately after the stabbing. I consider it was well open to his Honour to find on all the evidence that substantial impairment of self-control was not proved on the balance of probabilities.

303. With respect to sub-ground 1(a), is not the case that his Honour gave “determinative weight to the importance of planning”. At PJ [307] his Honour identified that, in general, the level of planning for an act and the length of time over which the plan has been formed before being implemented will be relevant to determining whether or not the perpetrator carried out the act under an irresistible impulse. It was open to his Honour to regard any planning by the applicant as relevant in this way. This was, as his Honour said, common sense. But on the evidence his Honour could find only a limited level and duration of planning, “namely, seizing of a knife some minutes before Ms Vize was stabbed, the selection of her neck as the place to administer the fatal [wound] and the plan to kill himself” (PJ [309]). His Honour found it was only 4-5 minutes from when the applicant seized the knife to when he stabbed the victim.

296. Far from “giving determinative weight to the importance of planning”, his Honour said that the level of planning in these circumstances was “not necessarily inconsistent with the accused possessing a substantially impaired capacity for self-control” (PJ [309]). At the end of [309] and continuing to [312], his Honour attributed his lack of persuasion on this issue not to “the importance of planning” but largely to the absence of any reliable account from the applicant of his thought processes leading up to the killing. The Chief Judge has quoted (at [95] above) the learned trial judge’s reasons at [309]-[312]. They constitute the critical part of the judgment for the purpose of the limited issue on the grounds of appeal against conviction. Those paragraphs explain fully and cogently why his Honour concluded that the absence of such an account from the applicant left the Court without proof on the balance of probabilities that the applicant’s self-control had in fact been substantially impaired. The conclusion was reasonably open to his Honour on this analysis. It expressly took into account the psychiatrists’ opinions.

297. The applicant’s written submissions on sub-ground 1(a) conclude with the proposition (at par 126) that:

his Honour’s focus on the importance of planning and the lack of credible evidence of the [applicant’s] thought processes about when he formed the intention to kill Ms Vize distracted him from a proper assessment of the opinions of Dr Furst and Dr Nielssen, and the consideration of whether all the independent evidence was capable of establishing that the appellant’s capacity to control himself was impaired to any degree at the time of the killing and, if so whether this impairment was substantial for the purpose of s 23A(1)(a).

306. So far as this is directed to the learned trial judge’s “focus on the importance of planning”, there was no such focus for the reasons given above. The rest of the quoted submission is relevant to sub-grounds 1(b) and 1(d). It is correct that his Honour was significantly influenced by “the lack of credible evidence of the [applicant’s] thought processes about when he formed the intention to kill Ms Vize”. For reasons given below, that did not “distract” his Honour from assessing the opinions of Drs Furst and Nielssen or from considering the “independent evidence”. On the contrary, the inconclusiveness of the “independent evidence”, in his Honour’s assessment, led to the view that a reliable account from the applicant regarding his thought processes leading up to stabbing Ms Vize would be necessary to provide a proper foundation for those doctors’ opinions. No such reliable account was in evidence.

307. With respect to sub ground 1(b), which asserts failure properly to assess the opinions of Drs Furst and Nielssen, having read their reports and the transcript of their cross-examination on days 7 and 13 of the trial I consider his Honour’s assessment of their evidence (primarily at PJ [256]-[283], [305]-[306], and [310]-[311]) was open to him. The opinions which his Honour did not accept, referred to in sub-ground 1(b), were Dr Furst’s view that the applicant “was probably unable to control his actions as a consequence of his acute mental disorder and his underlying mental conditions (borderline personality disorder and [obsessive compulsive disorder])” and Dr Nielssen’s conclusion that “his abnormal state of mind … significantly affected his ability to control his actions, as it seems the alleged offence and his subsequent suicide attempt was committed on impulse, with little in the way of warning”.

308. The evidence of Drs Furst and Nielssen, from which the applicant has quoted extensively in written submissions in support of this sub-ground, reveals that their opinions on this issue were based primarily upon the clinical features of the applicant’s mental disorders as they diagnosed them and upon inference from the fact that the stabbing was an extreme reaction to the termination of the applicant’s relationship with the victim. By reviewing the applicant’s behaviour and his reported symptoms over a timeframe of years prior to the stabbing, the psychiatrists arrived at their diagnoses of obsessive compulsive disorder and borderline personality disorder. (In lieu of the latter, Dr Nielssen preferred depressive disorder). They were also able to opine, in medical terms upon the basis of their experience and expertise, as to the likely mental and behavioural responses of the applicant to the emotional stress of the end of his relationship with Ms Vize, under the influence of these disorders. But his Honour had to decide, on the balance of probabilities and taking into account all the evidence, whether substantial impairment of the applicant’s capacity to control himself had in fact occurred in this case. Opinions, based upon medical knowledge and experience, as to the likelihood of such substantial impairment were not determinative of his Honour’s application of the legal standard proof.

309. It was submitted that the opinions of Drs Furst and Nielssen were supported by “the independent evidence”, by which term the applicant referred to evidence which established that in the weeks preceding the homicide the applicant “was not coping with his feelings of abandonment and rejection” as a result of his relationship with the deceased having come to an end. This “independent evidence” did not compel that his Honour should have found substantial impairment of self-control at the time of the killing or that it was unreasonable not so to find.

310. His Honour took fully into account the “independent evidence” and made findings about the applicant’s distress concerning the breakup, his relentless attempts to contact Ms Vize by phone and his threat to the deceased’s mother, about 36 hours prior to the stabbing, to crash his car. His Honour had regard to the applicant’s extremely low mood when speaking to the deceased’s friend, Ms Loke, by phone on the evening before the stabbing and his expression to his own mother, also that evening, of upset concerning Ms Vize’s new relationship. It was well open to his Honour to regard this evidence as not sufficient to prove on the balance of probabilities that there was loss of self-control at the time of the attack upon Ms Vize.

311. It is self-evident that in explaining a mental state and its causal relationship to behaviour, psychiatrists will in many situations be highly dependent upon reliable reportage from the subject of what occurred within his or her mind. It was open to his Honour to regard this as such a situation, taking the view that the evidence of observations of the applicant in the weeks and hours before the stabbing and in its immediate aftermath were not sufficient to support an inference that self-control was impaired when Ms Vize was stabbed. The evidence of Dr Allnutt supported the conclusion that, in this case, a sound psychiatric opinion that the applicant’s disorders impaired self-control would depend upon reliable account from the applicant, which was not available.

312. Dr Allnutt’s evidence summarised by his Honour at PJ [254] was that, from a psychiatrist’s point of view, trying to determine whether or not the applicant acted impulsively and without ability to control his actions involved speculation “in the absence of a proper history from him and an account from him”. It was well open to his Honour to adopt and act upon that view. Dr Nielssen’s evidence that knowledge of what was going through the applicant’s mind could only come from the applicant himself (quoted by his Honour at PJ [282]-[283]) was to similar effect. It was open to his Honour to conclude that the absence of a reliable account from the applicant left the opinions of Drs Furst and Nielssen without a sufficient basis to justify reliance upon them. It was open to him not to be persuaded by their view that the applicant had been unable to control his actions, as he explained at PJ [310]-[311].

313. Sub-ground 1(c), asserting a failure to make relevant findings of fact in relation to the applicant’s attempted suicide, is primarily concerned with evidence of the applicant’s brother, Thomas. Thomas said the applicant was unresponsive when he screamed at him to stop stabbing himself, that the applicant’s expression was “blank” at this time and that Thomas “could not see any sign of distress”. The applicant complains that his Honour:

did not make a finding as to whether Thomas’ evidence, and the evidence of the other witnesses [who also saw the applicant when he was stabbing himself], supported the inference that the [applicant’s] capacity to control himself was substantially impaired at the time he stabbed himself.

314. His Honour expressly found beyond reasonable doubt that “at least from the time the [applicant] obtained a knife from the kitchen, he not only intended to deliberately stab Ms Vize he also intended to kill himself” (PJ [230]). Later, in referring to the opinion of Dr Allnutt that the applicant’s self-harm was “an impulsive response” to having killed Ms Vize, his Honour said (at PJ [253]):

I do not accept that the accused’s self-harm was an “impulsive response” to what happened, if that is meant to suggest that the accused only decided to harm himself after he stabbed Ms Vize.

315. The fact in issue was whether the applicant’s self-control was substantially impaired when he stabbed Ms Vize. It was open to his Honour to find that that was not proved on the balance of probabilities, without making any finding about loss of control after the event and with respect to the self-infliction of harm. It was not a critical step in fact-finding that his Honour should determine whether the applicant’s capacity to control himself was substantially impaired after the homicide, with a view to reasoning back in time.

316. Sub-ground 1(d) contends that his Honour erred in finding that, absent a history from the applicant of his state of mind leading to the deliberate killing of the deceased, he had not discharged his burden of proving that his control of his actions was substantially impaired by abnormality of mind. The applicant offered only brief written submissions in support of this sub-ground, recognising that it is substantially repetitive of sub-ground 1(b).

317. In support of ground 2 the applicant reiterated in more general terms the arguments made under the sub-grounds of ground 1.

318. In relation to the application for leave to appeal against sentence, I agree with what the Chief Judge has written. I agree with the orders which his Honour proposes for disposition of the applications for leave and the appeals pursuant to leave.

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Decision last updated: 25 January 2019