R v Burton

[2020] NSWDC 246

District Court

New South Wales

Medium Neutral Citation:	R v Burton [2020] NSWDC 246
Hearing dates:	26 May 2020
Date of orders:	26 May 2020
Decision date:	26 May 2020
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 40
Catchwords:	CRIMINAL LAW – severity appeal – assault occasioning actual bodily harm offence – impact of appellant’s mental health on the offending and the sentence imposed
Legislation Cited:	Crimes Act 1900 (NSW), s 59 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8, 21A Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 Khoury v R [2011] NSWCCA 118 Muldrock v The Queen (2011) 244 CLR 120
Category:	Principal judgment
Parties:	Director of Public Prosecutions Mr J Burton
Representation:	Solicitors: Solicitor for the Director of Public Prosecutions Peninsula Law for the appellant
File Number(s):	2019/327888
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 12 February 2020 Before: Magistrate C M Franklin File Number(s): 2019/327888

Judgment

INTRODUCTION

1. This is a severity appeal from the sentence imposed upon the appellant by the Wyong Local Court on 12 February 2020 that he serve a Community Correction Order (‘CCO’) for a period of 2 years.

2. The appellant entered a plea to the charge that on 18 October 2019, at Killarney Vale, he assaulted Catherine Britt, thereby occasioning actual bodily harm to her, to wit, pushing her to the ground causing laceration to her right elbow (requiring 5 stitches) and a graze to her right ankle; this conduct being contrary to s 59(1) of the Crimes Act1900 (NSW).

3. The maximum punishment for this offence, if tried on indictment, is 5 years’ imprisonment. In the Local Court, the maximum punishment is 2 years’ imprisonment and/or $5,500 fine.

CIRCUMSTANCES OF OFFENDING

4. Before the Court was the Facts Sheet before the learned Magistrate. It was included in the Crown’s severity appeal bundle (Exhibit 1). No objection was taken to its contents. There were no other facts before the Court – agreed or otherwise – to establish the circumstances of the offending.

5. The Facts Sheet discloses that:

1. the appellant is a self-employed owner or operator of a building company and has 4 dependent children;

2. the appellant pays $530 weekly rent and has variable income typical of a small business operator;

3. the appellant has no prior violent history;

4. the appellant and Ms Britt, the victim of the assault, were neighbours. Prior to 18 October 2019, they had had a range of prior arguments and neighbourly disputes;

5. at about or shortly up to 1:40pm on 18 October 2019, the victim accused the appellant of moving tree branches from his driveway onto her driveway. They were situated upon the roadway of their respective premises, outside their homes. This caused a heated verbal argument about the tree branches;

6. suddenly, when only 1 or 2 metres away from the victim, the appellant suddenly moved towards the victim and pushed her with his two outstretched arms. This caused her to fall back onto the roadway. She landed on her right elbow; causing her immediate pain to her elbow, ankle and lower back;

7. the appellant walked away towards his residence. The victim was assisted by other neighbours, with ambulance and police officers attending her residence a short time thereafter. It was suggested that the victim attend hospital. She attended hospital later that day when her wound was cleaned and stitches applied to close the laceration; and

8. about an hour later, the police arrived and they approached the appellant. After introducing themselves, the appellant was cautioned and elected not to make any comment, referring to his having received legal advice by his solicitor not to comment. He did, however, say “It’s been going on for years, it just escalated today. I’m not usually a violent guy”.

6. I find that the conduct was not pre-meditated or impulsive. The assault involved no weapon, but simply involved a push. The circumstance that the conduct was violent plainly inheres in the offence.

7. The victim’s injuries were not overtly serious, but she suffered pain and the distress and inconvenience associated with being pushed as well as having to attend hospital. If it was not technically an aggravating circumstance, the fact that it occurred in the vicinity of her home, in a suburban street, would have also caused a degree of humiliation if not indignation.

8. The appellant did not invoke the circumstance of provocation as a mitigating factor, as per s 21A(3)(c) of the Crimes (Sentencing Procedure) Act1999 (NSW) ( ‘the Act’).

9. Noting the admission – apparently unsolicited - made by the appellant, after he had been cautioned, I find that the appellant was aware of the significance of his action. This has implications below when considering the appellant’s reference to his mental health.

10. I would assess the conduct as falling at above the low end of the range of objective gravity.

SUBJECTIVE CIRCUMSTANCES

11. The appellant was born in October 1980. He was 39 years of age at the time of the offending.

12. The main thrust of the appellant’s submissions to the Local Court centred upon his mental health condition. He unsuccessfully brought an application under s 32 of the Mental Health (Forensic Provisions) Act1990 (NSW) to dismiss the charge and discharge the appellant on the ground that he was suffering from a mental illness. To that end, he relied upon a report by Ms Susan Wojciechowski, a clinical psychologist.

13. Even if, as occurred here, the Magistrate refused such application, it remains the position that the appellant’s mental illness, such as it may be, may support a more lenient sentence by reducing the seriousness of the offence (Muldrockv The Queen (2011) 244 CLR 120), the weight accorded to general deterrence and reduced need for subjective deterrence (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]). That said, it may work in the opposite direction by heightening the need for community protection.

14. In Ms Wojciechowski’s opinion, dated 6 February 2020, the appellant is experiencing a Major Depressive Episode and has a mild alcohol use disorder.

15. Ms Wojciechowski noted that the appellant has a stable family, although had difficulties since about the middle of 2018 associated with the appellant’s business.

16. She noted that his childhood had been marred by the divorce of his parents when he was young (aged 6). He experienced a sense of rejection by his parents. He consumed alcohol and took illicit substances for a number of years. But he ‘reformed’ when he met his wife, when he was 19 years of age.

17. Ms Wojciechowski appears to attribute the appellant’s difficulties with his mental health to business concerns following the non-payment by certain customers, ensuing litigation expenses (presumably to recover debts) and, in particular, his anxiety that he may need to close his business.

18. There was also a certificate from the Mingara Medical Centre suggesting that he had been attending that centre in relation to ongoing mental health and general health treatment since December 2014 – over 5 years before the offending. It appears he has been taking medication prescribed for him; but that has occasioned some side-effects causing him to decrease his dose of medication. It was said that it was in this period, in which he was reducing his dosage, that the offending occurred.

19. I do not accept that alcohol disorder played any contributing factor in the offending.

20. There is no particular reason why the appellant has been unable to manage any mental health issues he has apparently had for well over 5 years prior to his engaging in violent conduct towards a neighbour with whom he was not on friendly, but rather adversarial, terms. As the appellant said to the police himself, he was “not usually a violent guy”.

21. Nor was it suggested that a person carrying a diagnosis of a Major Depressive Episode was more naturally prone or susceptible to engage in the offending conduct than a person who did not suffer from that diagnosis. Depression does not strike me as being a predictor of personal violence.

22. Such difficulties as he has with depression are not constitutional, but appear more to be situational – linked to concerns about his business and the consequences that flowed from that business pressure. True it is that he felt a sense of rejection from his parents, but at least from his late teens, he has experienced the emotional stability of a caring spouse and the joy of rearing 4 children. I do not consider that the circumstance that he had a family history of depression were particularly significant given that for most of his life, the appellant has functioned effectively and certainly has not exhibited any violent tendency.

23. In the circumstances, if depression played any contributory role at all in the appellant’s violent conduct, then it was not a significant role. I do not consider that his mental condition significantly reduces his culpability. I consider that it is in only to a small degree that considerations of general and specific deterrence are moderated.

24. The appellant had submitted to the learned Magistrate that his conduct was, at least partly, the result of his mental illness; that he is willing to engage in court-ordered treatment for his mental illness; that he does not demonstrate any evidence of a propensity to reoffend and has no prior history of violence.

25. The circumstance that the appellant entered a plea entitles him to the 25% discount.

26. The appellant himself did not give evidence directly to the Magistrate. Nor did he do so in this Court. Such evidence of his attitudes as he expressed to the expert relating to the offending conduct is entirely indirect.

27. He did inform his expert that he ‘regretted’ the incident and ‘blamed himself’. There has been no apology to the victim; or any consideration for the harm his offending conduct caused her. He referred his expert to ‘vexatious’ claims made by the victim. He claimed that the victim (and the victim’s husband) had a ‘vendetta’ against him. The appellant even suggested that the incident which led to the offending had been orchestrated by the victim. I am far from convinced that, on the basis of what he said to his expert, he considers that he did anything wrong.

28. There is no other evidence of remorse. Sometimes, an offender’s plea might be regarded as betokening some remorse. However, in the circumstances, I consider that the plea served utilitarian purposes; and not much more.

29. He has no prior record of offences for violent conduct. But there was no evidence to indicate that he was a person of prior good character.

30. Ms Wojciechowski’s reasoning featured the consideration of a range of factors, or variables, as applied to the appellant’s presentation.

31. When considering one of the predictors of offending, that of ‘antisocial personality traits’, Ms Wojciechowski identified ‘aggression’ as an indicator but she assessed the appellant as having “no indication of impulsivity… disregard for others or poor self-control”. He was rather “disciplined”. This, she thought, suggested that the anger directed towards the victim was more the product of mental health issues rather than a personality trait.

32. On one view, this assists the appellant in the sense that the offending conduct might be viewed as something of a one-off. However, a difficulty with Ms Wojciechowski’s opinion is that there is no room in her general methodology for factoring in, as a variable or factor, the circumstance that he lives next to a neighbour who he rightly or wrongly perceives has continually embarked on a vendetta against him. In the circumstances, I am not as sanguine as Ms Wojciechowski about his prospects for re-offending; particularly if he does not keep up with his medication; which, I am informed, occurred prior to the offending. There does not appear to be any likelihood of the appellant being able to re-locate soon, so as to remove what the appellant perceives is a constant source of vexation to him.

33. It may be hoped that the better management of the appellant’s medication for his depression might prevent a reoccurrence of the offending conduct seen here. But there is a risk, which materialised here, that his medication may prove ineffective.

34. I would classify his prospects of re-offending as being above the level of ‘low’ classified by Ms Wojciechowski.

35. For similar reasons, I am also concerned about his prospects of rehabilitation. In addition, although Ms Wojciechowksi has laid out a treatment plan for him, there is no clear indication in the evidence about the appellant’s willingness to undertake it. This is linked to the Court’s concern about the lack of insight into the offending and absence of genuine remorse.

ASSESSMENT

36. I have regard to the considerations under s 3A of the Act. General deterrence, retribution and denunciation are only moderated to a small degree because of the appellant’s depression. On the other hand, having regard the objective gravity of the offending and the appellant’s apparent lack of insight (which I do not attribute to be significantly affected by those mental health issues), there is a role to play for subjective deterrence. Of particular significance in these circumstances is the need to hold the appellant accountable and the protection of society – most especially, protection of the victim who is a neighbour.

37. Having regard to the maximum punishment for this offence (as a legislative guidepost), even where circumstances were above the low range of objective gravity, in my view it would have been open for the learned Magistrate to closely consider a full-time custodial sentence.

38. As it is, the learned Magistrate ultimately was not satisfied that the s 5 threshold was passed and made a CCO under s 8 of the Act. That is a sentencing option that, as has been described, embraces punitive and denunciative, as well as rehabilitative, elements (Khouryv R [2011] NSWCCA 118 per Simpson J at [11] (Davies J and Grove AJ agreeing).

39. Although it is not necessary on an appeal of this kind to establish error – the sentencing discretion is exercised afresh – I do not see any error in the imposition of this penalty. I regard that option, myself, as being entirely appropriate. It is, for example, consistent with the treatment plan suggested by his clinical psychologist. The supervision that the appellant is to be made subject to will, hopefully, assist with that rehabilitation.

40. The appeal against sentence is dismissed.

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Decision last updated: 28 May 2020