R v Dunn

[2004] NSWCCA 41

Reported Decision: 144 A Crim R 180

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v DUNN [2004] NSWCCA 41
HEARING DATE(S):	23 February 2004
JUDGMENT DATE:	5 March 2004
JUDGMENT OF:	Ipp JA at 1; Sully J at 2; Adams J at 3
DECISION:	(1) Appeal allowed (2) The sentences imposed below quashed and new sentences substituted (3) On the charge of assault occasioning actual bodily harm a sentence of one year and nine months to commence on 11 July 2002 and end on 10 April 2004 (4) On the charge of breaking and entering a dwelling house a sentence of four years and six months commencing 10 December 2002 and ending 10 June 2007 (5) The earliest date on which he will be eligible to be released on parole is 10 July 2005
CATCHWORDS:	Crown appeal against leniency - sentence - specially aggravated breaking and entering - domestic violence - seriousness - breach of apprehended violence order - seriousness of offence - nature of offence - sentence increased
LEGISLATION CITED:	Crimes Act 1900 s51A Crimes (Sentencing Procedure) Act 1999 s44(2)
CASES CITED:	Olbrich (1999) 108 A Crim R 464 R v Davis [2003] NSWCCA 79 R v Deluca [2002] NSWCCA 446. R v Flavell [2002] NSWCCA 220 R v Hellyer [2001] NSWCCA 384. R v Irving [2003] NSWCCA 127 R v LBK [2001] NSWCCA 248 R v Morrison (unreported NSWCCA 5 September 1997) R v Letteri (unreported, NSWCCA 18 March 1993 R v Prestwidge [2002] NSWCCA 439 R v Sassin [2002] NSWCCA 47 R v Talbot (unreported NSWCCA 19 December 1997) R v Thomson & Houlton (2000) 49 NSWLR 383 Scognamiglio (1991) 56 A Crim R 81 Veen v The Queen (No 2) (1998) 164 CLR 465 R v Zibelnik [2002] NSWCCA 317
PARTIES :	Regina v Peter Allan DUNN
FILE NUMBER(S):	CCA 60354/03
COUNSEL:	P Ingram (Crown) R Hulme SC (Respondent)
SOLICITORS:	S Kavanagh (Crown) S O'Connor (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/3468
LOWER COURT JUDICIAL OFFICER :	Moore DCJ

60354/03

IPP JA
SULLY J
ADAMS J

FRIDAY 5 MARCH 2004

REGINA v DUNN

Judgment

1 IPP JA: I agree with Adams J.

2 SULLY J: I agree with Adams J.

3 ADAMS J: The respondent pleaded guilty on 5 June 2003 to an offence under s51A of the Crimes Act 1900 of breaking and entering the dwelling of one Christine Power, being armed with an offensive weapon, namely a Stanley knife, with which he wounded Ms Power by inflicting three shallow lacerations to her neck. On the same day he also pleaded guilty to the offence of assaulting one Patrick Pitt, thereby occasioning actual bodily harm, this crime occurring in Ms Power’s home when Mr Pitt attempted to protect her from the respondent.

4 The first offence was also a breach of an apprehended violence order that had been made on 23 December 2000 by the Local Court for the very purpose of protecting Ms Power from the violent attentions of the respondent. He was also subject at the time to a bond to be of good behaviour imposed on 21 June 2001, one of the conditions of which was that he would not molest Ms Power. The respondent had been twice earlier convicted for assaults on Ms Power, one on 6 October 1993 for assault occasioning actual bodily harm, in respect of which he was placed on a recognizance for two years not to assault, molest, harass or threaten Ms Power and the other on 23 February 2001 when he was fined for assaulting Ms Power causing actual bodily harm, in circumstances described as “astonishing” by the learned sentencing judge but which involved truly terrifying behaviour.

5 The respondent was sentenced on 6 June 2003 on the first charge to a term of imprisonment for three years and nine months with a non-parole period of one year and nine months, and in respect of the second charge to a fixed term of imprisonment of one year and nine months. The respondent asked the court to take into account an offence on a schedule in Form 1 comprising the breach of the apprehended domestic violence order to which I have referred. His Honour did so, as I understand it, in assessing the sentence imposed on the first count, but without expressly saying so. The sentences were backdated to 11 July 2002, which was the date both of the offences and the respondent’s arrest. This brief synopsis is sufficient to indicate that, on the face of it, the sentence imposed on the respondent was lenient in the extreme. The Crown has appealed to this Court upon the ground that it is so lenient as to be manifestly inadequate. The only possible basis upon which such a submission could be resisted is the circumstance that the respondent suffers from Addison’s disease, which is a severe disorder of the adrenal gland which, amongst other things, has the effect – to a greater or lesser extent – of causing confused or disordered thinking, especially when the sufferer is emotionally stressed.

6 As I have mentioned, the respondent was sentenced on 6 June 2003. On 26 June 2003, the Director of Public Prosecutions wrote to the respondent informing him that consideration was being given to the filing of a Crown appeal in relation to these sentences. It is of considerable concern that the Notice of Appeal was not in fact filed and served until 4 September 2003. There is no explanation for the delay and, to my mind, it is unconscionable. I will return to this matter in due course.

7 Before dealing with the facts of this matter, it is useful to set out briefly the history out of which they arose, which is not in dispute.

8 The respondent and Ms Power commenced a de facto relationship in about 1990. They have a daughter. The relationship ended in mid 2000, when Ms Power moved out of the house which they then occupied and moved to Sadlier. The respondent was convicted of assault occasioning actual bodily harm and, as I have mentioned, placed on a bond for two years from 21 June 2001, which included a specific requirement that he would not assault, molest, harass or intimidate Ms Power. About six months later, in December 2000, Ms Power was driving her motor vehicle in Greenfield Park with her two children as passengers. The respondent caused a collision between his vehicle and hers and the two vehicles became stationary at the kerb and both drivers alighted. The respondent was disguised in a black wig with a baseball cap and mirror sunglasses and was not recognized by Ms Power until he spoke. The respondent grabbed Ms Power by the arm and forced her towards his car. She broke free and ran to her car, opening the passenger door. The respondent followed and entered the driver’s side. When Ms Power reached over to collect her keys the respondent punched her nose, her right eye and on the right side of her head. Ms Power left the car with the children and the respondent then drove it away. To describe this attack as “astonishing” is, in my respectful view, to understate its true character. The disguise may well have been effective to conceal the respondent’s identity, although in the result it was not. The important point to my mind is that the attack must have been planned and was clearly intended both to punish and frighten Ms Powers. The violence was disgraceful and even worse because it was inflicted in the presence of the children. Moreover, this offence was itself a breach of an apprehended violence order made on 18 December 2002, that is to say only three days previously, which probably explains the ultimately ineffectual disguise. According to the respondent’s interview with police, the respondent and Ms Power had resumed their relationship at least to some extent in November 2001 but Ms Power told the respondent a few days before the offences that she had a new boyfriend, Mr Pitt. The respondent started pestering Ms Power by calling her mobile telephone to ask her about Mr Pitt. On 5 July 2002, the respondent came to Ms Power’s home and knocked on the door, asking questions about Mr Pitt. She refused to let him in, telling him that she had called the police. The respondent then left. Ms Power told the police that she did not want any action taken because she did not want to aggravate the situation. However, she left her home, picked up the children and went to stay with some friends in Newcastle. Whilst she was there the respondent called her a few times and told her that he attempted to commit suicide by drinking weed killer. Whether this was true or not is unknown but he repeated the claim to the interviewing police officers after his arrest. Ms Power returned to Sydney on 9 July, leaving the children behind as she needed to go to work, staying at Mr Pitt’s house because she was too frightened to return to her own home. On 11 July, however, after dinner at a nearby hotel, Ms Power and Mr Pitt returned to Sadlier. Unbeknown to them, at about 6am that morning the respondent had entered the Ms Power’s residence by cutting an entrance hole in the floorboards under a cupboard in the kitchen, replacing the removed timber and covering the space with household items so that the hole was not apparent to casual observation. He spent the day in his daughter’s bedroom either idle or asleep. He did not know that Ms Power was to return that night and claimed to be asleep when she and Mr Pitt entered the house. The respondent claimed that he had entered the house only to speak to Ms Power as she had refused to talk with him on his earlier attempts. I mention, in parenthesis, that it is very difficult indeed to accept that this was indeed his motive, given the extent to which he went to conceal his entry and the events which subsequently transpired. There is also the rather obvious point that he did not need to enter the house at all if all he wanted to do was to attempt to speak to her. It cannot be doubted that he knew that she did not wish to speak to him and would have rejected any attempt by him to engage in a conversation. The objective facts inevitably require the conclusion, to my mind, that (at the very least) the respondent decided that being in the house would make it more difficult for Ms Power’s to repulse him. The overwhelming likelihood is that he intended in some way to restrain or threaten to restrain her. I will return to this issue in due course.

9 When Ms Powers and Mr Pitt arrived at the Sadlier premises, the latter went to the lounge area whilst Ms Power, after a short time, went to her daughter’s bedroom, having noticed the bed was unmade. As soon as she turned on the light the respondent came out from behind the door and lunged at her with the Stanley knife. He swung his hand over his head towards her head. The knife cut her right ear. He then swung the knife again cutting the right side of Ms Power’s neck and then used the knife again, cutting her on the top of her breast.

10 As this occurred, Ms Power screamed for help and Mr Pitt came running down the hallway. The respondent then lunged at him with the Stanley knife, but missed. Mr Pitt struggled with the respondent, who fell to the ground. He attempted to rise, still holding the knife. The struggle between him and Mr Pitt continued, the respondent keeping his hold on the knife, despite Mr Pitt’s telling him to drop it. It was not until Mr Pitt kneed him and pinched his wrist hard that the respondent was forced to drop the knife. Mr Pitt picked it up, let go of the respondent and then went out to assist the victim, who had called the police. Mr Pitt said that, when he first saw the Stanley knife, the blade was out about a quarter of an inch. These knives, as is well known, have a very sharp blade capable of being extended for perhaps 20 centimetres, so that it was not fully extended when Mr Pitt first saw it. Assuming that the extension of the blade was the deliberate act of the respondent, it would support the contention that he did not intend to inflict serious injuries. On the other hand, it would also justify the inference that his capacity for reasoning was not significantly reduced, in other words, that he was acting quite deliberately. When Mr Pitt grappled with the respondent for the second time, he said that he heard three distinctive clicks from the knife and noticed, when he took the knife from him, that the blade was then out “about an inch”. This indicates, as it seems to me, that the respondent was aware that the blade had not been fully extended and that he intentionally extended it for the purpose of defending himself from (or, which is much the same in the circumstances, attacking) Mr Pitt. In the result Mr Pitt was not hit with the knife and suffered only two small lacerations.

11 The respondent left the premises through the laundry door. He was followed by Mr Pitt, who eventually restrained him in a neighbouring unit block. Police arrived and arrested the respondent who was taken to Green Valley Police Station, where he was interviewed. When the respondent was searched, police found a roll of grey duct tape and a receipt for the purchase on 10 July 2002 of a saw and batteries in his pockets. When they searched under the house in the vicinity of the hole in the floorboards, a cordless drill and a tenon saw was also found. The respondent’s motor vehicle was discovered about one kilometre from Ms Power’s house and a search of it discovered packaging for the tenon saw and a receipt.

12 Ms Power was taken by ambulance to Liverpool Hospital. Fortunately, she was not seriously injured: the lacerations on her right ear and right breast were superficial; the laceration on the right side of her neck was five centimetres long, with only the central part of the wound extending through the dermis and epidermis. The wounds did not need sutures; that on the neck was closed by using an adhesive dressing.

13 The respondent did not give evidence. In so far as he gave any account, this was by way of answers to police questioning on the night of his arrest and a transcript of that interview was tendered in evidence. In such circumstances, self-serving statements and explanations given by an offender must necessarily be treated with scepticism, especially where those explanations appear to be at odds with the objective facts. Although findings of fact by the tribunal at first instance should be treated with deference on appeal in such circumstances, the appeal court is in no worse position than the judge in drawing conclusions from the evidence, since demeanour is immaterial to an assessment of the credibility of the witnesses.

14 It is obvious that, in assessing the seriousness of the respondent’s offence, it is critical to determine, if possible, the reason that the respondent broke into and entered Ms Power’s home, that is, what he intended to do when Ms Power returned to find him in her home and the reason that he used the knife as he did.

15 In considering these questions, it is relevant in this case also to consider the possible effect on the respondent’s state of mind and ability to act rationally of the adrenal gland disorder known as Addison’s disease from which he has suffered for many years and in respect of which he was taking medication at the time of the offence. In certain circumstances, this disorder can adversely affect what the medical witness, Dr Greenaway, the respondent’s treating specialist, called “cerebration”, which I understand to be the ability to reason and exercise self-control. Dr Greenaway, gave evidence and was extensively cross-examined by the Crown prosecutor. At the end of the day, it became clear that it was very difficult to measure the extent to which the respondent’s illness contributed to his actions although the clear import, I think, of Dr Greenaway’s opinion is that, at the time the respondent broke into the house, it was only minimally significant. At the time when the attack occurred, on the other hand, it is fair to accept that the respondent’s emotional stress would have been great and, if so, this would have rendered the maintenance dose of medication which he was taking inadequate for the purpose of ensuring that his functioning, in particular the ability to make value judgments, would have been unimpaired. Dr Greenaway said that he thought the connection between the respondent’s Addison’s disease and what the respondent did was more than minimal but that it was not the major component and, accordingly, there was some distortion in his ability to reason. Part of the difficulty with assessing the significance of this evidence is that the circumstances suggested to the Doctor as evidence of irrational behaviour, and which the Doctor accepted were bizarre, such as breaking into the house as he did rather than waiting on the front doorstop for Ms Power to come home or entering by breaking a window, rather depended upon the assumption that, as the respondent said, he wished only to talk to Ms Power. This assumption, to my mind, is unwarranted.

16 Mr Pitt and Ms Power arrived at Sadlier at about 10.15 pm. The respondent’s attack on Ms Power occurred only a few minutes later and only lasted a few minutes. The police were called at 10.30 pm and arrived at the house about 10.35 pm and arrested the respondent shortly after. The interview with police commenced just after midnight. The respondent was able to understand the questions directed to him and answer them coherently and rationally. His brief account of the incident itself was given as follows –

“Well, I was laying on the bed and I was asleep and I heard a car and Christine come in. I don’t know, she done a few things, went to the toilet, something like that and, and she’s opened the door and started screaming and going back. And I had this Stanley knife that I use the, with the duct tape, for work and that, you know, I’m working on trailers and stuff. And anyway, I’ve stuck it in her and her friend, Patrick, got me and that was it.”

17 He was asked why he had gone to the house and stated –

“I went there to see her ‘cause she, every time I try to see her, like, she won’t let me see…we only stopped going together a few days ago, and I found out she was having an affair with someone else, and, we’ve been in a bit of trouble before, but we started going together again in November, even though I live at Park Street, Ryde I was coming up there three or four nights a week … then going back to Park Street and we, we started getting good and she had someone else, and, only the other day, and I found out. And then I’ve tried to talk to her and so on, see, see if I can get in the house. I didn’t expect her to bring her boyfriend there and that.”

18 The respondent repeated that he and Ms Power had “only just broken up again…only a few days ago”. Ms Power said that their only contact had been in the course of his access visits to their daughter. I do not think that much depends on this, but I do not accept that there was an adequate basis for accepting the respondent’s statements on this point. The learned sentencing judge said that Ms Power and the respondent had resumed their relationship early in 2002 but that it had terminated at some time between one and three months before the incident. The respondent’s assertions about this in his police interview, which were not repeated to Dr Lennings, a psychologist who examined the respondent for the purpose of the proceedings were, in my view, rather equivocal and, in substance, contradicted by Ms Power. Objectively, her account is by far the more likely to be true. The respondent said that he broke into the house because it was the only way he was “going to get to see her is for her to come home and I can talk to her you know”. The officer, however, did not ask why this was the “only way”. He explained how he cut through the floorboards using a cordless drill and a chisel, using that method because it was “the only way I knew to get in”. He was asked again why he wanted to get in and answered –

“Because I wanted to have a talk to Chris, like, you know, like, we’ve got kids and that together and I wanted to try and talk some sense into her”.

19 He said that he knew that Ms Power would not be home because he understood that she would be in Newcastle. Indeed, he did not expect her home that night. He said –

“I was just going to wait for her until she got home. I mean, I didn’t know any other way of talking to her. Ring her up, she, you know, just hangs up on me and, you know.”

Of course, the crucial question – on which he made no statement (perhaps because the officer did not ask it) – is what did he intend to do if Ms Power refused to speak with him. He said that he stayed in the house all day and about 8 pm or 9 pm he thought that Ms Power was not going to return home that night so he went to bed. He said that when –

“they’ve come home and they woke me up and it started … I could hear them outside. I could hear Chris’s voice and Patrick’s, whatever his name is. And I was, I was laying in one of the kid’s rooms and I sought of hid behind the door. I didn’t know what to do. Bloody, you know, I had no shoes, nothing on you know. I got, I wish I could have run out the back door and got out of there ‘cause I got scared then, that they were in there, they were in there too quick”.

20 The respondent said that “apart from that, it’s all blurry, you know”. The respondent told police that the sequence of events was that Ms Power opened the door, turned the light on, saw him and screamed, her boyfriend was coming towards them and the respondent then hit Ms Power with the knife, saying that he was scared because Mr Pitt was a big man. This sequence of events is quite different from that in the statement of agreed facts, the substance of which I have already set out.

21 The respondent said that he bought the knife together with the duct tape in the previous day or so for the purpose of repairing a trailer on behalf of a friend, the lighting and the wiring of which was faulty. He wore a pair of overalls and the duct tape and Stanley knife just happened to be in the pocket when he broke into the house. He said that the tenon saw was purchased specifically for the purpose of breaking into the house. He said that, when he pulled out the knife, he was only thinking about escaping from the house. He said that he did not know if he had cut Ms Power with the knife but, shortly after his arrest, and before he had been taken to the police station, he was asked, “What happened to the girl?” and said, “I cut her”. The respondent was asked about his medication and said that he had taken it on the morning of the entry into the house and that it made him feel “normal”.

22 The respondent told the police that he had intended to work on the trailer before he went to see Ms Power on 5 July but he “didn’t get round to starting it”. He decided that he would to the repairs on the weekend, plainly meaning the weekend immediately following the incident, which occurred on a Thursday. When he was asked why, then, he had the duct tape and the Stanley knife with him went he went to the house, he said, “They were just in my pocket. Don’t know. That’s all there is to it”. His case, accordingly was that the saw, the drill and the chisel were taken to the house for the purpose of breaking in but that the knife and the duct tape were with him by accident, though they had been purchased at the same time as the saw only days before.

23 The respondent said that, he found out about Ms Power’s relationship with Mr Pitt on the day before he went to her house on 5 July and was refused entry, to which I have already made reference. He was asked how he felt and what did he want to do when he learnt this and answered –

“Well, what I didn’t do. Fucking, at the time, I probably could have killed, you know.
Q. Why, what makes you say that …
A. Probably not kill her, kill me. I mean, I tried suicide after that and I’ve just been a wreck ever since”.

24 The respondent said that he drank weed killer but the only effect that it had was to cause him to vomit. Asked how he felt towards Christine, he answered –

“I’ve been just so depressed and, I just wanted to talk. We seen what we had too good a thing just to, yeah, kids and everything. That was it …
Q. But the fact that you, you found out that this Patrick and Christine were in a relationship, how did that make you feel?
A. I didn’t care about that, I just wanted fucking her back. I didn’t bloody, I just wanted to talk to her and think of the kids and you know. We were having a good time and that. The kids were having fun, you know. That’s it”.

25 The respondent was asked if he was angry and answered –

“No, I wasn’t. No. I wasn’t angry. No. I think I was more scared than angry. I was too scared to be angry. It come to the time, you know, I bloody, I just wanted to be out of that house.”

26 In his account to a consulting psychologist, Dr Lennings, the respondent said that he had not expected Ms Power to return to the house with her boyfriend, that he had fallen asleep and was woken by them coming inside and that, although he then realised that he did not want to confront “his wife”, at least with her boyfriend present, “he was unable to escape”, that his victim entered the bedroom and “it appears he panicked, cutting her with a Stanley knife”. This was the case put by defence counsel below, “on instructions”.

27 I now return to the issues which I have identified above. In relation to the respondent’s reason for taking the knife with him, his Honour said –

“I am satisfied that Dunn had not taken the knife to the house for the purpose of inflicting any injury with it or using it in any way. It is common ground in the statement of facts which are agreed – although it is my duty of course to find the facts and I am not bound by the agreement – but it is common ground that he used the knife in the way I am about to say, he was using it because he wanted to get out. I further find that he had taken the knife with him because it happened to be in his overalls for a job which he was about to perform.”

28 Evidence was given by a Mr Anderson, a good friend of the respondent, that shortly before the incident in question, he gave the respondent some jobs to do for him whilst he was away, one of which was to repair the wiring and the lights on his trailer. Mr Anderson said that the use of duct tape and a Stanley knife was consistent with the work that needed to be done on the trailer. This strikes me as somewhat unlikely, but Mr Anderson was not cross-examined to suggest that he was not being entirely truthful and I think that he ought to be accepted as a witness of truth for the present purposes.

29 It is clear, therefore, that there was an evidentiary basis for the findings of the learned sentencing judge which I have quoted above. For the reasons that I have already mentioned, I think that this finding was scarcely justified. The emphatic statement by the respondent referred to above to the effect that he did not care about the fact that Ms Power had another relationship but he wanted her back adds considerably to my scepticism that the presence of the knife and tape were accidental. However, the Crown Prosecutor did not submit to his Honour that the respondent’s statement to this effect should not be accepted. Nor was it submitted in this Court by the Crown that his Honour erred in this respect. It does not seem to me that it can now be re-examined. On the other hand, it was undisputed that the entry into the victim’s house was carefully planned with tools brought there for the purpose. His mode of entry was cunningly hidden so that no one coming to or entering the house would be forewarned of the possibility that an intruder was inside. The suggestion that he only wanted to talk to Ms Power, so that if she told him to go he would have complied, is to my mind absurd. If there is one thing demonstrated beyond debate by the evidence, it is that the respondent was not prepared to take no for an answer so far as Ms Power’s wishes were concerned.

30 It is otherwise so far as the respondent’s actual use of the knife is concerned. With respect to the learned sentencing judge, it was not common ground that that the respondent used the knife in order to escape. The prosecution submitted that the knife was used on Ms Power before Mr Pitt came to bedroom and that the statement that he was defending himself from the boyfriend was false. Even if the respondent attacked Ms Power in an attempt to escape, that does not reduce his culpability in any significant way. On his own account, he had hidden behind the door and he knew the identity of his victim. Moreover, the respondent had been in the house for some sixteen hours before Ms Power returned. It is simply impossible to accept that he was unaware of the knife’s presence in his pocket until shortly before her entry. He took the knife out of his pocket. He did not attempt to push her out of the way. He did not attempt merely to threaten. There were three distinct blows. He never suggested at any time that these blows were accidental or unintended and it is abundantly clear that they were not. The only reasonable conclusion available on the evidence, in my respectful view, is that the respondent decided that he would attack Ms Power with the knife from the moment that he removed it from his pocket and extended its blade and that he intentionally did so the moment that she turned on the light.

31 The learned sentencing judge concluded from the medical evidence that it was likely that the respondent was suffering from disturbances of cerebration as a result of his Addison’s disease to a more than minimal though not a major extent. With respect, this was an appropriate finding. His Honour held, also rightly in my view, that there should a real, though not substantial, amelioration of the requirement that the sentence reflect the need for general deterrence. This consideration also applies to the culpability of the attack, since it was to some extent affected by his illness. However, the finding of the learned sentencing judge that “the wounding was committed in hot blood when Dunn was simply anxious to get away from the much larger man, Mr Pitt” is not, with all respect, justified by the evidence. The assertion by the respondent to the psychologist that he “panicked” does not seem to me to provide an adequate evidentiary basis for a finding in the respondent’s favour that he acted in “hot blood”, in the face of the objective evidence to which I have referred. His Honour concluded that “this matter stands low on the level of criminality” for offences of its type, namely that of specially aggravated breaking and entering with the commission of a serious indictable offence, namely malicious wounding, which carries a maximum sentence of twenty five years imprisonment.

32 Although the learned sentencing judge did not expressly state that the facts that the respondent was on a bond at the time of the offence for assaulting Ms Power and also subject to an Apprehended Violence Order in respect of her were circumstances of aggravation, I do not doubt that his Honour took them into account.

33 The learned trial judge accepted that the respondent had come to accept that his relationship with Ms Power is over and that he had made significant progress in his rehabilitation. His Honour also accepted that the respondent was otherwise a person of good character, being normally a quiet and hard-working man. These findings are not sought to be controverted. As to his illness, the judge stated his concern that it is incurable and that, if the respondent were again subjected to severe stress, there was a risk of his re-offending. His Honour took this matter into account. The respondent was given a twenty-five per cent discount for his early admissions to the police and pleas of guilty. This also is not controversial.

34 Ms Power made a victim impact statement, which was tendered without challenge and accepted by the learned trial judge, who summarised its main points as follows: Ms Power is very fearful because she believes that when the offender is released he will return; she believes she will need to take steps to evade him; even now she frequently checks the house when she returns to it because she is frightened he will be there; she is easily startled and suffers from panic attacks; she has difficulty with concentration; her daughters are also frightened and, unable to sleep in their own beds, they sleep with her; she has scars from the cuts, one of which is numb at one end; she has had an episode of shingles; she has a twitch in her cheek that may never go away; and she is struggling to get her life back together. His Honour found that these consequences applied on the date of the statement in February 2003 and were likely to continue.

35 The learned trial judge referred to a number of cases heard in this Court dealing with home invasions that, his Honour said, “go towards supporting the view which I have reached” although he noted that none of them gave any direct indication as to how the matter should be decided. I briefly summarise these cases below.

36 R v Morrison (unreported NSWCCA 5 September 1997). The victims’ home was invaded by a large group of eight or ten or more men, some wearing balaclavas and some armed with baseball bats. Prior to the entry a number of windows were smashed. Two men who were in the house were assaulted. There was a melee. This invasion was apparently a response to an incident involving some violence involving one of the occupants and the offender that had occurred outside the premises three days previously. The offender was convicted of the crimes of breaking and entering a dwelling house and assaulting one of the occupants occasioning him actual bodily harm and also of assaulting another occupant. The offender was sentenced to a minimum term of eighteen months and an additional term of six months. He appealed from both his conviction and sentence. No argument was addressed to the sentence and counsel for the appellant accepted that the sentence was within the range open to the judge, a view with which the court concurred without analysing the circumstances either of his involvement in the offence or his subjective circumstances. On the face of it, the sentence seems to be extraordinarily lenient but the lack of facts prevents further analysis. In no sense, as it seems to me, can this case be regarded as part of any pattern of sentencing established in this Court. To suppose that it provides any guidance at all for the present case is manifestly mistaken.

37 R v Talbot (unreported NSWCCA 19 December 1997). The respondent was one of four offenders armed with knives, a tomahawk and a shotgun who broke into a farmhouse near a village. They intended to rob the owner but he was absent. A twenty-year-old employee at the residence was wounded by a shotgun discharge. A fifteen-year-old girl who was caring for three small children was violently abducted and subject to what Grove J described as “serial sexual depredations”. The offender pleaded to breaking and entering a dwelling house and wounding the employee, taking away a female with intent to carnally know her and sexual intercourse without consent in circumstances of aggravation. On the third charge the offender was sentenced to a sentence of seven years, comprising a minimum term of four years with an additional term of three years, on the second charge of abduction the sentence was a fixed term of three years and on the first charge a fixed term of two years, all sentences being concurrent. Not surprisingly, the Crown appealed. Subjectively, the offender was an Aboriginal man of twenty-five years from a deprived background, with a long record not including serious violence or sexual offences. He had pleaded guilty and agreed to give evidence against his accomplices. The extent to which these last factors reduced the sentence was not quantified but was obviously substantial. The offender was sentenced, in the result, to penal servitude for ten years, of which the minimum term was seven years on the sexual assault charge, a fixed term of four years on the abduction charge and a fixed term of four years on the breaking and entering charge. All sentences were concurrent. As is the practice, these sentences were less than should have been imposed at first instance. I would agree that this case should be considered in the present context but with obvious qualifications especially that arising from the significance of the offender’s offer to give evidence against his co-offenders. I do not see this judgment as supporting the sentence imposed here.

38 R v Zibelnik [2002] NSWCCA 317. The offender appealed from the sentence imposed for the offence of aggravated breaking entering and stealing whilst armed with an offensive weapon and maliciously causing damage. Two offences of assault which were committed on the two male occupants of the house were taken into account. The offender, who was thirty-three years of age, and his older brother broke into the house by breaking through the locked front door with a baton and an axe. They terrorised the occupants, two adult males, an adult female and two very young children. They inflicted extensive property damage. The offender had pleaded guilty at the earliest opportunity and had exhibited contrition. He was a long term drug addict and the attack arose out of a grievance to do with the sale of drugs by the occupants. The offender did not have a serious criminal record and had not served a term of imprisonment. The offender appealed from his sentence. As one would expect, the appeal failed. This case is of no assistance.

39 R v Sassin [2002] NSWCCA 47. This also was an unsuccessful appeal by an offender in respect of a sentence of three years with a non-parole period of two years for breaking and entering a home with four others, who were armed with baseball bats, and brutally assaulting a male occupant and assaulting his wife. The offender did not enter the premises and had not actually inflicted any violence. The ground of appeal was parity rather than harshness. This appeal is also of no assistance for present purposes.

40 R v LBK [2001] NSWCCA 248. The offender was sixteen years old. He broke into the victim’s house to steal and was surprised by the owner whom he punched several times during a struggle. He picked up a knife which he had earlier placed in that position against the need to use it and stabbed the victim several times as the victim retreated in face of the threat. The offender was convicted on his plea of breaking entering no stealing in circumstances of special aggravation, namely inflicting grievous bodily harm. He appealed from his sentence of a minimum of three years with an additional term of thee years. There were strong subjective features arising from his seriously deprived children with no support from an appropriate adult. There was some basis for rehabilitation. The Court dismissed the appeal but ordered that the whole of the sentence should be served in a Juvenile Detention Centre. Children are sentenced by reference to considerations of considerable significance that have no analogue in relation to someone in the appellant’s position. Furthermore, the court held no more than that the sentence below was not excessively harsh. With great respect, I am unable to see how this case could reasonably be seen as providing any guidance in the present circumstances.

41 R v Prestwidge [2002] NSWCCA 439. The offender, a thirty-two year old woman, was convicted on her plea of guilty of the offence of breaking, entering and stealing from a dwelling in circumstances of aggravation, being the malicious infliction of actual bodily harm. She asked the court to take into account an offence of larceny and four offences of attempted break and enter. The offender was sentenced to a term of five and a quarter years with a non-parole period of three and a half years and appealed to this Court. She and a co-offender broke into a suburban dwelling occupied by an eighty-six year old man. He was awake and, when he went to investigate a dog’s barking, was confronted by the offenders. The male was armed with a screwdriver which he held to he victim’s throat, demanding money. The offender stood nearby. When, shortly after, the victim cried out for held the male offender placed a pillow over the victim’s face which made it difficult for him to breathe. The screwdriver cut his forehead, causing him to bleed. He was terrified for his life. The home was then ransacked and a number of items stolen. The male warned the victim that, if he endeavoured to contact the police, they were return and kill him. The offences taken into account appear to have formed part of the same criminal spree. The two grounds of appeal were, first, the suggested inappropriate disparity between the offender’s sentence and that imposed on her co-offender and, second, that insufficient recognition was given to the plea of guilty. The Court accepted that both these grounds were made out. In re-sentencing the offender, the Court was therefore obliged to give proper significance to the co-offender’s sentence and to apply an appropriate discount in accordance with R v Thomson & Houlton (2000) 49 NSWLR 383. Apart from evidence of contrition, the appellant was suffering from depression at the time of the offence and thereafter and, of course, she was not the principal offender. There was evidence that showed that, since incarceration, the offender had made significant progress towards rehabilitation. The offender’s sentence was amended to a head sentence of four years two months; there being special circumstance, the non-parole period of two years and nine months. Insofar as this case provides some useful guidance on he appropriate level of sentencing in cases such as this (which I doubt) it rather suggests that, apart from the relevance of the appellant’s Addison’s disease, the sentence here was significantly too lenient. I point, in particular, to the appellant’s breach of his bond and the apprehended violence order, his prior assaults on the victim and that he inflicted three lacerations on her, one of which was a wound.

42 R v Davis [2003] NSWCCA 79. The appellant pleaded guilty in the Local Court to two offences: first, aggravated breaking and entering of a dwelling and the commission therein of a serious indictable offence; and second, assault occasioning actual bodily harm. The second offence was the aggravation on which the first offence depended. The offender (then aged nineteen years) and his accomplice broke into the victims’ home disguised with balaclavas and armed with baseball bats. The sixty-one year old male victim left his bed to investigate and was confronted by the offenders, who assaulted him with the baseball bats, causing bruising and lacerations. They made their escape by taking the victim’s car. The victims both suffered continuing emotional problems as a result of the attack. The applicant was on a bond for assault at the time of the offence and had been convicted of other offences of dishonesty and violence. He was sentenced on the first count to a term of six years’ imprisonment with a non-parole period of three and a half years and on the second count to a fixed term of twelve months, to be served concurrently. He appealed to this Court upon two grounds, namely parity with his co-offender, a juvenile and in respect of the discount given for his plea of guilty. His appeal was dismissed. This case provides no support for the sentences imposed here.

43 R v Flavell [2002] NSWCCA 220. The applicant pleaded guilty to aggravated break and enter with the commission of assault occasioning actual bodily harm whilst armed with an offensive weapon and aggravated break and enter with the commission of affray whilst armed with an offensive weapon, both offences carrying a maximum of twenty years imprisonment. There was one offence of malicious damage on a Form 1, to which the sentencing judge made no reference. He was sentenced on the first offence to imprisonment for six years and five months with a non-parole period of three years and six months and, on the second to imprisonment for four years and six months with a non-parole period of two years. These sentences were effectively concurrent. The applicant was 33 years old with a relatively minor criminal history when he committed the offences. He had been drinking on the night in question, threatened (genuinely) to hang himself and then to kill his sister and brother-in-law. He went to their home, broke a window with a length of timber, then started hacking as a security door with a large carving knife, threatening to kill everyone in the house. He attacked his brother-in-law who had armed himself with a baseball bat. Fortunately the knife blade broke and he was subdued. Aside from some evidence of a falling out some time previously, the attack had no apparent cause. The applicant was affected by alcohol. The applicant appealed against his sentence, principally relying on the rejection by the sentencing judge of evidence of a severe psychiatric illness. Further evidence was tendered in the appeal that supported the evidence at first instance and demonstrated that the applicant had a long-standing severe depressive illness and may well even have been delusional at the time of the offence. The Court allowed the appeal and, confirming the head sentence on the first count, imposed a non-parole period of two years and six months, taking into account the Form 1 offence. The sentence on the second count was reduced to two years and six months, concurrent with no non-parole period. I do not consider that this case provides any real support, except in the most general way, for the sentence in the present case. If anything, it suggests that the sentence here is too lenient, having regard to the extreme character of Flavell’s psychiatric illness and the fact that it operated during the whole of the relevant period and that the maximum applicable sentence was less severe.

44 R v Hellyer [2001] NSWCCA 384. The applicant and a co-offender entered the seventy-one year old female victim’s home, tied and gagged her, stealing rings that were taken forcibly from her hand, and cash. She eventually freed herself and called the police. Five days later the applicant and a co-offender, armed with knives, broke into the home of an elderly couple, manhandled and threatened the male and stole cash and jewellery. The applicant pleaded guilty to with two counts of aggravated break and enter, the first with the commission of actual bodily harm, and the second, whilst armed with an offensive weapon. Both of these offences carried a maximum term of twenty years. He was sentenced to three years with a non-parole period of two years on the first count and four years cumulative on the non-parole period, with an additional two years non-parole period, effectively a term of six years with a non-parole period of four years. The appeal was dismissed. This case provides no significant guidance in respect of the present sentence.

45 R v Irving [2003] NSWCCA 127. The applicant pleaded guilty to charges of with assault occasioning actual bodily harm and break enter and steal. He was sentenced to a fixed term of two years imprisonment on the first charge and a concurrent sentence of four years and six months imprisonment with a non-parole period of three years on the second. The applicant had broken into the very elderly victim’s room in a nursing home victim and assaulted him with a chair. The sentencing judge had mistakenly not taken into account the applicant’s pre-trial custody of seven days. The sentence was adjusted accordingly. A further limited complaint concerning the sentencing judge’s allowance for special circumstances was rejected. The report, not surprisingly, does not set out the details of the applicant’s personal circumstances and the account of the crimes is sparse. This case has no present relevance.

46 R v Deluca [2002] NSWCCA 446. The applicant pleaded guilty to a charge of aggravated break enter and steal with the infliction of corporal violence and robbery whilst armed with an offensive weapon. An offence of entering a vehicle without the consent of the owner was taken into account on a Form 1. He was sentenced on the first charge (maximum fourteen years) to four years imprisonment with a non-parole period of three years and, on the second, four years and six months imprisonment to commence at the expiration of the non-parole period on the first count with a non-parole period of two years and six months, so that the effective term of imprisonment was seven and one half years with a non-parole period of five and one half years. The first charge arose when the applicant who was the look-out) and three others, to get money for drugs, broke into a home which was then empty but were surprised by the occupiers’ return. The occupiers were elderly but attempted to detain two of the female offenders. The applicant went to their aid and struck one of the victims with a broomstick, causing some injuries. The four made good their escape. In a nearby car park, the applicant approached a woman (then accompanied by her six-year old daughter) and, threatening her with a knife, stole money and a mobile telephone from her. The four then approached a car stopped at traffic lights and, distracting her, entered her car. Police, who had been called in the meantime, attended and arrested them. At the time of sentence the applicant was just short of his 26th birthday. He had a slight criminal history. The grounds of appeal related to the errors of the sentencing judge in applying the admittedly applicable utilitarian discount for the pleas of guilty. The sentence on the first charge was reduced to three years and six months with a non-parole period of two years and four months and that on the second to three years and nine months cumulative upon the first non-parole period, with a non-parole period of two years and two months. The objective character of the first charge was not by any means as serious as that of the present respondent: the crime was impulsive, the house was empty and it was not intended to confront any occupiers, no knife was used; the maximum penalty was significantly less. Moreover, the applicant was not in breach of a bond or an Apprehended Violence Order at the time. If anything, this case strengthens the Crown submission as to excessive leniency.

47 Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind. I have come to the conclusion, with respect, that the learned sentencing judge did not give adequate weight to these factors. Moreover, Ms Power and, to a lesser extent, her children suffer from continuing severe emotional injury. The criminal law has always regarded the extent of injury committed by the offender as an important factor in assessing the appropriate measure of punishment. I have concluded, also, that the respondent’s sentence did not sufficiently reflect the pain and suffering inflicted by him. It may well be that he did not realize the extent of the injury he would cause but, if this is so, it is not because he did not wish it but because he was not really concerned with consequences to Ms Power: he was concerned only with what he wanted combined, at least by the end, with an intention to hurt her quite seriously. Even with the blade of the knife protruding by a centimetre or so, nasty injuries were very likely.

48 I commenced this judgment with the observation that the only consideration that was capable in the circumstances of justifying the leniency of the sentence imposed on the respondent was his Addison’s disease and the effect it may have had on his conduct. There seems to me to be little doubt that the disease had no role in the respondent’s decision to enter Ms Power’s house, either in respect of his reasons for doing so or the cunning mode by which it was effected. Nor did it play a part in his lying in wait. In so far as it played any part at all in the violence the respondent inflicted on Ms Power, this was relatively minor. In particular, I do not consider that the evidence permitted the conclusion on the balance of probabilities (see Olbrich (1999) 108 A Crim R 464) that the attack would not have occurred had it not been for the disease, although it is not unreasonable to conclude that its ferocity was increased because of some level of irrationality induced by his disorder.

49 Well established principle requires some reduction in the impact of the need for general deterrence in the presence of a mental disorder or related conditions: Scognamiglio (1991) 56 A Crim R 81; R v Letteri (unreported, NSWCCA 18 March 1993). At the same time, there may be a greater need for personal deterrence: Veen v The Queen (No 2) (1998) 164 CLR 465. This need is all the more evident in the respondent’s case by the fact that he was subject to two Court orders at the time which specifically prohibited his behaviour, in addition to the general criminal law of which, it cannot be doubted, he was well aware. I might add here that, although the learned sentencing judge said that that he took the Form 1 offence into account, he did not identify the particular relevant offence. At all events the fact that the respondent was in breach of two orders, and the breach of one of them was a crime in itself, is a significant aggravating feature of the entry into Ms Power’s house and the attack upon her. To avoid any suggestion of double punishment, I would not impose an additional punishment on him in respect of the Form 1 charge.

50 The Crown submitted in this Court that the sentences should have been partially accumulated. I consider that there should have been some accumulation to reflect the fact that the respondent persisted in his violence when Mr Pitt attempted, quite justifiably and lawfully, to restrain him, even extending the blade of the knife to enable him more effectually to injure Mr Pitt. There is a distinct difference between assaulting one victim and assaulting two. Each was intentionally injured with the knife. The learned sentencing judge did not articulate his reasons for making the sentences wholly concurrent. Merely that the offences occurred in the course of a single extended episode does not justify such a conclusion. In my view the two attacks were distinct and separate instances of considerable violence and required distinct punishment, although they were so closely related in time and proximity as to require a significant degree of concurrency. Of course, it is also important to ensure that the effective sentence thus derived does not exceed the respondent’s criminality considered as a whole.

51 Making every just allowance for the possible imbalance in the respondent’s reason brought about by the impact of his adrenal gland disorder on his heightened emotional state, I am nevertheless of the view, with respect to the learned sentencing judge, that the Crown’s submission that the sentence imposed on the respondent was manifestly too lenient is made good, having regard to the objective circumstances of the crimes. I consider also that his Honour erred in making the sentences for the two offences wholly concurrent.

52 It is necessary to consider, however, the relevance of the Crown’s delay in instituting this appeal to the exercise by this Court of its discretion to vary the sentence, even where it has determined that the sentence below is manifestly inadequate. As I have already mentioned, the Director of Public Prosecutions informed the respondent on 26 June 2003, that a Crown appeal on the ground of leniency was being considered but the appeal was not instituted until 4 September 2003. In an affidavit of the respondent read without objection, he says that, when he was told of the institution of the appeal, I was very surprised and not very happy because, after three months had gone by, I did not think a Crown appeal was going to happen”. The respondent’s classification was changed from C2 to C1 and he was transferred from Mannus to Junee Correctional Centre, where the conditions are less favourable for prisoners and further classification will await the outcome of this appeal. Furthermore, the respondent is eligible for release on parole on 10 April 2004, a little under a month’s time. His progress has been such that he has every reason to expect that the Parole Board will order his release. I have come to the view, however, that despite this most regrettable chronology, justice requires that the respondent’s sentence must be increased. However, the overall sentence (which is itself reduced by the application of the practice of this Court, where a Crown appeal is successful, to impose a significantly lower sentence than would have justified at first instance) has been further significantly reduced by adjusting the extent of the accumulation to allow for this consideration. It follows that the correct starting point at first instance would have been significantly above that reflected by the proposed regime.

53 I have taken into account the respondent’s general good character and his contrition, and am prepared to accept that there has been a measure of rehabilitation, though I do not think that it is possible to say much more than that it is probable that he will not offend again. Having regard to the respondent’s age, his medical condition, the support he will need on his release, the accumulation of the sentences and the circumstances in which this appeal was brought, I find special circumstances justifying a departure from the statutory calculation provided for by s44(2) of the Crimes (Sentencing Procedure) Act 1999.

54 In my view the appeal should be allowed, the sentences imposed below quashed and new sentences substituted. The proposed sentences have each been reduced by 25% to reflect the utilitarian value of the respondent’s pleas of guilty. I have taken the offence contained in the Form 1 into account on the first charge. Since there was no appeal (except as to concurrency in respect of the charge involving Mr Pitt) I have not adjusted that sentence, but propose that the sentence imposed in respect of Ms Power should be accumulated in part upon it. On the charge of assault occasioning actual bodily harm I propose a sentence of one year and nine months to commence on 11 July 2002 and end on 10 April 2004. On the charge of breaking and entering a dwelling house in circumstances of special aggravation, namely the wounding of Ms Christine Power, I propose that the respondent be sentenced to a term of imprisonment of four years and six months commencing 10 December 2002 and ending 10 June 2007. I would order that, in respect of this sentence, the earliest date on which he will be eligible to be released on parole is 10 July 2005. I would recommend that the respondent’s classification should be reconsidered by the relevant authorities as a matter of urgency.

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Last Modified: 03/08/2004