R v GbR
[2025] QCA 71
•16 May 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v GBR [2025] QCA 71
PARTIES:
R
v
GBR
(applicant)FILE NO/S:
CA No 6 of 2025
DC No 375 of 2024
DC No 384 of 2024DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 12 December 2024 (Loury KC DCJ)
DELIVERED ON:
16 May 2025
DELIVERED AT:
Brisbane
HEARING DATE:
17 March 2025
JUDGES:
Boddice and Brown JJA and Crowley J
ORDERS:
1. Leave to appeal be granted.
2. The appeal be dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant was sentenced to five years’ detention for malicious act with intent to cause grievous bodily harm – where the applicant submits the sentencing judge failed to have regard to relevant considerations regarding his mental health conditions – where submissions on such matters were not made at first instance – where the sentencing remarks indicate that the sentencing judge did take such matters into account – whether error in the sentencing judge’s discretion can be established where relevant considerations were not drawn to the sentencing judge’s attention at first instance
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
Romero v The Queen (2011) 32 VR 486; [2011] VSCA 45, cited
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44, citedCOUNSEL:
K M Hillard, with B E McKenzie, for the applicant
B M White for the respondentSOLICITORS:
Mulcahy Ryan Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
BODDICE JA: I agree with Crowley J.
BROWN JA: I agree with Justice Crowley.
CROWLEY J: The applicant seeks leave to appeal against a sentence of 5 years’ detention, with an order for supervised release after serving 60 per cent of that term, for an offence of malicious act with intent to cause grievous bodily harm imposed by a judge of the Childrens Court of Queensland.
The applicant was also sentenced by the judge to concurrent terms of six months’ imprisonment for two summary offences of serious assault police. The details of those latter offences are presently immaterial.
The single ground of appeal contained in the original application for leave to appeal was that the sentence was manifestly excessive. At the hearing of the appeal, the applicant abandoned that ground and was granted leave to argue the following amended grounds of appeal:
“The Sentence Judge erred in failing to have regard to relevant considerations, including one (1) or more of the following:
(a)The Applicant Child’s mental health diagnosis;
(b)That the Applicant Child’s offending had occurred while untreated for his mental health diagnosis and/or condition; and/or
(c)The Applicant Child’s actual and prospective rehabilitation arising from his mental health treatment.”
The applicant contends that leave to appeal should be granted, the appeal be allowed, and that he be resentenced.
For the reasons that follow, I would grant leave to appeal but would dismiss the appeal as none of the asserted specific errors by the sentencing judge are made out.
The offending
The offending took place sometime after 9.00 pm on 18 March 2024 at Keperra. The applicant, who was born on 20 January 2007, was thus 17 years old at the time.
Earlier that evening, at about 7.30 pm, the applicant met up with two of his friends at Mitchelton. The applicant was carrying a bag in which he had four knives, including a machete. He was also carrying another knife in the waistband of his pants. He showed the knives to his friends. The three of them caught the train from Mitchelton station to Grovely station and then went to the nearby McDonalds. Afterwards, they then began walking in the direction of Keperra station.
The complainant, a 32-year-old man, was previously unknown to the applicant. He had been to a friend’s house at Keperra earlier that evening, but had caught the train back to Mitchelton where he had parked his car. Once there, he realised he did not have his car keys. He thought he may have dropped them at Keperra station, so rode his bicycle back to look for them there.
The complainant first saw the applicant and his two friends as he approached Keperra station. He recognised one of the applicant’s friends as the son of one of his own friends and asked him if he had seen his car keys. The friend said he had not. The complainant then continued on to Keperra station, where he eventually found his keys. He then rode back the way he had come. As he did, he was confronted by the applicant, who was now alone. The applicant’s two friends were further down the street.
The applicant approached the complainant while he was still on his bike, and said, “What did you fucking say to me?”. The applicant then placed his bag on the ground, reached down and produced the machete, removing it from its sheath. The blade was approximately 30 cm long. The applicant swung the sheath of the machete at the complainant, striking him on the head and causing a laceration. He then swung the machete at the complainant, slicing the left side of his neck, causing him to fall from his bike. The applicant continued to strike the complainant about the body and head with the machete. The applicant’s friends saw what was happening and ran away.
The complainant got to his feet and tried to reason with the applicant. He told him that he was friends with the applicant’s friend. The complainant then began to run down the street but was pursued by the applicant, who continued to slice at him with the machete, connecting with his back, shoulders, neck and the back of his legs. The complainant thought he was going to die.
The complainant jumped over a fence into the yard of a house and took off his shirt to apply pressure to his neck wound. He called for help, but no-one answered. The applicant continued to look for the complainant for a short time, before running back towards the train station.
The complainant took some towels from a clothesline and used them to attempt to staunch his wound. He continued to call for help. A neighbour eventually assisted him. Police and an ambulance were called. The complainant was transported to hospital for treatment. As a result of the applicant’s attack upon him, the complainant suffered the following injuries:
(a)a large open neck wound;
(b)a laceration to the left shoulder;
(c)a 10 – 15 cm laceration to right inner thigh;
(d)a 2 – 3 cm laceration to left knee;
(e)a laceration to left temporal/occipital region;
(f)a nasal bone fracture;
(g)a rib fracture; and
(h)bruising and abrasions to the left chest.
The complainant underwent surgery to repair the injury to his neck, which had transected paraspinal muscles causing several arterial bleeds. If left untreated, the complainant would have died as a result of blood loss. He was discharged from hospital several days later.
After the attack upon the complainant, the applicant went to the house of one of his friends that had been with him earlier. He bragged about “chopping” at the guy on the bike. The friend told him to leave.
The sentence proceedings
The relevant facts for sentence, as summarised above, were set out in a Statement of Facts tendered by the prosecution without objection.
The prosecution also tendered the applicant’s criminal history and transcripts of the sentencing remarks of Judge Lynch QC, who had sentenced the applicant to 18 months’ probation for two offences of robbery and serious assault police offences on 22 February 2022; and the sentencing remarks of Judge Rafter SC, who had sentenced the applicant to 18 months’ detention, with release on a supervised release order after serving 62 per cent, for an offence of unlawfully doing grievous bodily harm on 17 April 2023.
The circumstance of that latter offence bore some similarities with the malicious act with intent offence for which the applicant was to be sentenced. On that prior occasion the applicant deliberately slashed the face of a 15-year-old boy with a knife, in an unprovoked attack. The complainant in that matter had been walking towards an apartment complex at night with a female companion when they were confronted by the applicant. The applicant yelled out words to the effect of, “What the fuck are youse looking at?”. The female began arguing with the applicant and the complainant told her that they had to leave. They then walked to the apartment complex. The applicant also went there. He seemed to know one of the occupants of one of the units and, when he arrived, he ran past the complainant to the door of the apartment. When a male occupant slammed the door to deny him entry, the applicant began kicking the door. The complainant noticed the applicant was holding a large Bowie-style knife in his hand at the time and said something innocuous to him like, “Are you good?”. The applicant responded by saying, “Shut up, cunt” and slashed the complainant to the left side of the face, causing a large, jagged laceration. Without treatment, the complainant would have suffered a serious facial disfigurement.
Other matters relevant to the applicant’s background and antecedents were set out in a pre-sentence report prepared by a Department of Youth Justice caseworker. A report prepared by Ms Sheeba Sadeed, a clinical psychologist, was also tendered on behalf of the applicant.
The pre-sentence report
In her pre-sentence report, the caseworker noted that in addition to interviews with the applicant she had also spoken to Claudia Wilson, a psychologist from the Forensic Child and Youth Mental Health Service (“CYMHS”) and had received further information about the applicant from that service.
On the basis of the information she had received, the caseworker assessed the factors contributing to the applicant’s offences as exposure to parental substance misuse, law enforcement intervention resulting in disrupted attachment, exposure to domestic and family violence and antisocial behaviours and polysubstance misuse. When elaborating upon each of those factors, the caseworker noted that the applicant’s mother had become addicted to heroin when he was about four years of age; that over the next decade the applicant had been subjected to his mother often being under the influence and being removed from her care on multiple occasions due to police intervention and her being placed in custody; that in 2021, the applicant’s mother was involved in a violent altercation which resulted in her becoming a quadriplegic; and that between the ages of six and 14, when the applicant’s mother was in a relationship with her previous partner, he had witnessed significant levels of domestic and family violence, including witnessing his mother being rendered unconscious as a result of an assault.
In the caseworker’s view, the applicant’s early exposure to domestic and family violence “reduced his capacity in the areas of emotional and behavioural regulation”, and his anti-social behaviours were exacerbated by his substance misuse, specifically pharmaceutical misuse since the age of thirteen. The caseworker noted that the applicant had been hospitalised for polysubstance overdoses on three occasions since 2023 and that he had presented to the Prince Charles Hospital in relation to polysubstance misuse on 17 and 18 March 2024, with the date of the latter presentation being the same day he committed the Keperra offence.
With respect to the circumstances of the applicant’s offending, the caseworker recorded the following:
“When questioned as to the motive behind the Acts Intended to Cause Grievous Bodily Harm or Transmit Serious Disease offence, [the applicant] reported that the victim was known to himself and contributed to [the applicant’s] perception of acting protectively of himself, using violence when reporting to have felt threatened or unsafe. Whilst [the applicant] reported that he did not want to speak about the history between himself and the victim, [the applicant] described his encounter with the victim as him being 'spooked' by the victim's sudden appearance. [The applicant] described his actions as being immediate, comparing his actions as a reactive response similar to the 'fight or flight' response, which is an automatic physiological reaction to an event that is perceived as stressful or frightening.
…
Ms Wilson provided some insight to [the applicant’s] substance misuse as being linked with [the applicant] feeling unsafe and demonstrating risk-taking behaviours with minimal help-seeking behaviours. Records show that [the applicant] had two presentations to The Prince Charles Hospital occurring on the 17 and 18 of March 2024 related to [the applicant’s] polysubstance misuse. On both occasions, due to [the applicant’s] prior trauma and discomfort with medical environments, [the applicant] became agitated and aggressive, reportedly resistant for medical examination. The offence in Keperra had occurred in the evening that [the applicant] had presented to hospital for polysubstance misuse. During this time, [the applicant] was described by [his mother] and [his grandfather] to have apparently needing [sic.] medical attention due to his declining mental health and self-destructive behaviours, mainly referring to [the applicant’s] polysubstance misuse.”
In summarising the factors related to the applicant’s offending, the caseworker noted:
“[The applicant’s] disrupted attachment to [his mother] as a result of her ongoing substance use and subsequent periods of incarcerations, coupled with his exposure to domestic and family violence from a young age are assessed to have directly contributed to [the applicant’s] anti-social behaviours. Consequently, when presented with a perceived threat or in stressful situations, [the applicant] is observed to respond with poor emotional regulation and psychosocial adjustment presented in the form of physically and verbally aggressive behaviours which are further compounded by [the applicant’s] substance misuse. It is the authors assessment that these behaviours have contributed to the offences before the court.”
As to the applicant’s attitude to the offences and the victims of his offences, the caseworker further noted:
“[The applicant] engaged appropriately with the author during the interviews as well as demonstrating an acceptance of his involvement in the commission of the offences before the court. Whilst discussing the offence in March 2024, [the applicant] identified the primary victim and reported that the victim was known to himself as there was 'history' which [the applicant] did not want to elaborate further. [The applicant] indicated that discussing it further would conflict with his morale [sic.] code, indicating a 'gang-mentality' of shared anti-social beliefs such as not disclosing conflict with authoritative figures. [The applicant] had stated that what he did was horrible and that it was not self-defence but a reaction that had caused the individual victim harm. [The applicant] described feeling regret afterwards but did not provide any further details of how he felt regret.”
In concluding her assessment of the consequences experienced by the applicant as a result of his offending, the caseworker reported that since his remand in custody he had engaged with Forensic CYMHS in relation to his mental health and to reduce the risks of his reoffending. She noted he had been undertaking weekly one-hour sessions to gain insight into his patterns of substance use and the consequences and risks involved with these behaviours. She observed that this was a positive as the applicant had previously demonstrated resistance with engaging in interventions to address his substance abuse while in the community and considered he appeared to be at a “stage of change to address his mental health and subsequent substance misuse.”
The psychologist’s report
In addition to outlining the applicant’s prejudicial and dysfunctional background and upbringing, the psychologist’s report contained the following matters relevant to his mental health and an explanation for his offending.
In terms of his psychiatric history, the psychologist noted that the applicant had reportedly been referred to CYMHS when he was younger over concerns of self-harm but the applicant had stated “nothing came of it”; that he had apparently been taken to the Prince Charles Hospital on one occasion because he had thought of hurting people; and that he was currently engaging with a mental health clinician through the youth detention centre, where he had been attending weekly individual sessions and had been told he had anxiety, depression and post-traumatic stress disorder (“PTSD”).
As part of her assessment of the applicant, the psychologist administered the Firestone Assessment of Violent Thoughts (“FAVT”) psychometric screening tool. She noted the FAVT is a self-report assessment of thoughts considered to predispose individuals to violent behaviour. The psychologist recorded the applicant scored above average and elevated scores across a number of sub-scales.
In interpreting his FAVT scores, the psychologist noted the following:
Under a heading “Paranoid/Suspicious”:
“Scores reflect the intensity of paranoid/ suspicious thoughts that [the applicant] is experiencing. Individuals who obtain high scores on this scale demonstrate a great deal of social mistrust. They feel that they need to protect themselves from perceived danger from others who are 'doing them harm.' This perceptual filter colours how [the applicant] responds to others and predisposes him to aggressive violent responses. As a result, his violent reactions seem justified in response to the threat or deception he perceives from the other. In addition, these thoughts attribute negative qualities to those 'others,' acting as a justification for directing aggression toward them.”
Under a heading “Persecuted Misfit”:
“Scores on this scale indicate that individuals view themselves as persecuted or victimised by others. [The applicant’s] score suggests he may perceive others as trying to discount, blame, or humiliate him. This victimised attitude can play a role in justifying his violent behaviour because he believes he has been provoked by another's behaviour or attitude toward him.”
And under a heading “Hostile/Reactive Violence Subscale”:
“The thoughts on this subscale increase the likelihood that [the applicant] will overreact to misconstrued threats. These thoughts represent a perception that the world is threatening and alarming, and they have an agitated, panicky feeling to them, causing the individual to react violently from a distressed, hostile, and painful emotional state. Violent behaviour resulting from this type of thinking is usually spontaneous (e.g., unrestrained outbursts, lashing out). There is no perceived gain from the violent behaviour and there is no consideration of the consequences. An individual who has a high score on this subscale may be intermittently explosive. Treatment for an individual in this group requires that he or she learn to tolerate and manage negative emotions in a healthy manner. [The applicant’s] score was elevated.”
With respect to the applicant’s version of the offending, the psychologist recorded:
“In relation to the charge of acts intended to cause grievous bodily harm, [the applicant] largely agreed with the Statement of Facts and did not wish to review the facts in detail. He reported that there was "history" between him and his victim; however, he preferred not to discuss this in detail. He stated that despite the "history," he felt "terrible" about his actions.”
Based on her interview of the applicant and the results of the various psychometric assessment tools employed, the psychologist stated that the applicant appeared to meet the DSM-5-TR criteria for the following diagnoses:
(a)Post-Traumatic Stress Disorder
(b)Generalised Anxiety Disorder
(c)Major Depressive Disorder
The psychologist further opined that a review of collateral information and clinical observations suggested that the applicant was also impacted by Complex Post-Traumatic Stress Disorder (“CPTSD”) as a result of his prejudicial upbringing. She noted that persons who experienced CPTSD often had limited adaptive coping skills, limited awareness of emotions, difficulties articulating distress, and difficulties understanding internal experiences, which resulted in unhealthy ways of expressing and managing emotions, such as self-harm, associating with negative peers, and substance misuse.
The psychologist considered that the applicant’s offending was best understood within the context of multiple adverse childhood experiences that “converged across time resulting in his own serious mental health issues, conduct/antisocial behaviour and substance abuse”. She further observed:
“It is well documented that early exposure to repeated violence results in a hypersensitised nervous system, whereby the child/adolescent becomes highly attuned to real or perceived threat from others and often responds from a primitive survival instinct (i.e., fight or flight). Across time without modulation or if the young person is exposed to more adversity, these responses tend to become hard wired such that the person will anticipate harm or threat from others. As an adult, and particularly in males, this may manifest as a propensity for violence, aggression and substance use, and tendency to over respond to perceived threat or harm. This appears to have been [the applicant’s] early developmental trajectory.
[The applicant’s] adverse childhood experiences appear to have resulted in a hostile attribution bias in which he is likely to automatically interpret situations and behaviours of others as threatening and/or aggressive.
…
His hostile attribution bias increased his predisposition towards constantly feeling under threat, being easily triggered, responding as if traumatic events are not over and responding in a manner aimed at survival even in the absence of actual danger.
…
By virtue of [the applicant’s] early exposure to abuse, violence and victimisation, he has internalised the use of aggression and violence as a problem-solving mechanism. This has occurred via an implicit learning process. Consequently, [the applicant’s] responses can be reactive and impulsive. The use of aggression/violence is used to neutralise a perceived threat or distance himself from a perceived threat (i.e., others may retreat when he is aggressive).
…
In relation to his specific offending behaviours, [the applicant] reported to be under the influence of substances at the time. Although the statement of facts does not suggest the presence of severe or disabling intoxication, he may still have been intoxicated enough to affect his judgement, reasoning and impulse control at the time. Further, results of the FAVT suggested that [the applicant] was at risk of proactive and reactive violence, and that thoughts around victimisation and self-depreciation/pseudo-independence likely underlie his violence. These thoughts appear to be the accumulative effect of [the applicant’s] severely prejudicial upbringing.”
As to the applicant’s rehabilitation prospects, the psychologist noted that he presented with reasonable insight into his difficulties; that he was receptive to accessing ongoing mental health support; and that he acknowledged his need for professional support, recognising his areas of recovery included mental health and substance abuse. The psychologist thought the applicant would benefit from tailored, individual, long-term treatment with a particular focus. She considered that the applicant’s offending appeared to be linked to his active trauma symptomatology and substance use, both of which could be managed with psychotherapy and medication.
The plea in mitigation
Amongst other things, the applicant’s counsel referred the sentencing judge to aspects of each of the pre-sentence report and the psychological report. In particular, she raised the psychologist’s opinion that the applicant’s test results and features were consistent with a diagnosis of PTSD. When she did, the sentencing judge interjected, observing that the psychologist had not actually diagnosed PTSD. The sentencing judge further observed that although the applicant was in contact with Forensic CYMHS there was no material in the pre-sentence report with respect to any diagnosis of PTSD, which, the sentencing judge observed, would have been expected had there been such a diagnosis. Relevantly, the sentencing judge also remarked, “But it’s not really what the label is, in any event.”
In seeking to provide an explanation for the applicant’s offending conduct, the applicant’s counsel emphasised that both the pre-sentence report and the psychological report spoke of the way that the applicant was likely to automatically interpret situations and behaviours of others as being aggressive. In response to that submission, the sentencing judge queried what behaviour on the part of the complainant could have given rise to such a suggestion, having regard to what was set out in the agreed statement of facts. In reply, the applicant’s counsel submitted:
“Yes. There’s certainly no allegation that the complainant did anything on that night or ever to warrant what happened to him. However, as [the applicant] has said to the report writers, his perception is that he was reacting or he was triggered by the complainant.”
The sentencing judge again challenged the proffered explanation, remarking that there was simply no behaviour on the part of the complainant that could possibly have given rise to any such reaction by the applicant and, if it did, it was of “enormous concern”. The sentencing judge stated the real reason for the applicant’s offending conduct was simply not known. In that respect, the sentencing judge noted that the circumstances of the present offence of malicious act with intent bore similarities with the applicant’s previous offence of grievous bodily harm, as on each occasion there was the same sort of “confrontation” initiated by applicant with an unknown victim.
In response to those observations, the applicant’s counsel acknowledged that it was “unfortunate” but went on to submit that the sentencing judge would nevertheless accept that the applicant was suffering from mental health conditions at the time of the offending. When the sentencing judge queried the basis upon which such a finding might be made, the applicant’s counsel submitted that the sentencing judge would make the finding on the basis of “the diagnoses in Ms Sadeed’s report that he has those three mental health conditions, and the pre-sentence report which says that the records show he’d been hospitalised for an overdose…the night before.”
With respect to the applicant’s prospects of rehabilitation, the applicant’s counsel submitted that the applicant wanted to be able to care for his mother; that he had an interest in becoming a personal trainer and a musician; that he would continue to engage in therapy with CYMHS; and that Youth Justice would refer him to an outreach service for further support regarding his substance use. She further submitted that the applicant was willing to engage in a six-week anger management course for adolescents; that he was ashamed and remorseful for his offending; and that he had insight into the effects of his offending.
Sentencing remarks
When recounting the pertinent facts of the offences for sentence, the sentencing judge reiterated that for the malicious act with intent offence the applicant confronted the complainant, who was not known to him.
With respect to the applicant’s subjective features, the sentencing judge noted that a pre-sentence report and a psychological report had been prepared and that she had had regard to the contents of both reports. The sentencing judge outlined the applicant’s background and his prejudicial upbringing and noted that he had been exposed to significant levels of domestic violence, which had contributed to shaping the way in which he managed and resolved conflict. The sentencing judge further noted that the writer of the pre-sentence report had opined that the applicant’s disrupted attachment to his mother and exposure to domestic violence from a young age directly contributed to his anti-social behaviour and that when presented with a perceived threat or in a stressful situation he was likely to respond with poor emotional regulation and engage in physically and verbally aggressive behaviours, which were further compounded by his substance abuse. The sentencing judge accepted that the applicant was a product of the prejudicial environment in which he had been raised.
As to the applicant’s motivation for the commission of the malicious acts with intent offence, the sentencing judge said:
“You claimed to have known your victim – that is, the victim of the malicious act with intent – but he did not know you. You have not provided any account of the event which might explain your conduct, other than by saying you were spooked by his sudden appearance. As I said, he was riding away from a train station and knew one of the boys that you were with. It is really impossible to know what your motivations were on this night.”
The sentencing judge noted the applicant’s problem with substance abuse and observed that he had been twice hospitalised in 2023 for overdoses and that on the day he committed the malicious act with intent offence he had been taken to hospital in relation to an overdose.
As to the applicant’s present circumstances and prospects of rehabilitation, the sentencing judge noted that the applicant had engaged with Forensic CYMHS whilst in detention, that he had reportedly shown some insight into his patterns of substance abuse and the consequences and risks of such behaviours, and that he had expressed some motivation to change how he lived his life, which was perhaps a reflection that he was beginning to mature. The sentencing judge further noted the applicant’s future goal to become a personal trainer and that he had expressed an interest in services designed to assist in repairing relationships and supporting the improvement of home environments and family communication.
The sentencing judge noted the Youth Justice Act applied to the sentencing of the applicant and that meant that her Honour was required to have regard to the principle that a sentence of detention was a sentence of last resort and that it should be for the least time that is justified in the circumstances. However, the sentencing judge further noted that it was conceded by the applicant’s counsel that no other option other than a period of detention was properly available. In the circumstances, the sentencing judge was satisfied that none of the sentencing options that did not involve actual incarceration would be likely to serve their intended purposes of preventing the applicant from reoffending and of punishment.
In assessing the seriousness of the malicious act with intent offence, the sentencing judge stated:
“That offence is particularly serious because it left an innocent member of the community with life-threatening injuries, and made all the more serious because at the time you injured him, you intended to cause life-threatening or permanent injury to health. That intention is of significant concern in circumstances where you have not explained in any real way why you did as you did.
The seriousness of the offending is demonstrated not only by the menacing nature of the weapon you used, but that you targeted the complainant’s neck, a vulnerable area of the body, with that machete; that you pursued him despite him being significantly injured; and continued to strike him with the machete as he fled you. He posed no threat to you at any time. You did not cease until you simply could not find him. The seriousness of that offence is an important feature in determining the appropriate penalty. The psychological report suggests that you are predisposed to aggressive, violent responses, which means that protection of the community is an important feature to my sentencing of you.”
Whilst the sentencing judge determined that the appropriate sentences to impose were five years’ detention for the malicious act with intent offence and concurrent sentences of six months’ detention for each of the two serious assault offences, her Honour was satisfied that there were special circumstances such that the applicant would be released on supervision after serving 60 per cent of his sentence. Amongst other reasons, the sentencing judge found special circumstances because the applicant’s inability to control his emotions and his predisposition towards violence were a product of the neglect by his mother of his needs as a young child by her choice to use drugs and of the applicant’s exposure to serious domestic violence when he was a young boy.
Ground (a) - Failure to have regard to the applicant’s mental health diagnosis
The applicant’s central argument under this ground of appeal is that the absence of any reference to the applicant’s diagnosis of PTSD in the sentencing judge’s sentencing remarks indicates that it was not taken into account by the sentencing judge as a mitigating factor.
The short answer to the applicant’s complaint under this ground, and indeed to each other ground of appeal, is that there was no mental health diagnosis in the material before the sentencing judge. The applicant wrongly asserts otherwise.
Nevertheless, that the applicant may have experienced an adverse mental health condition or impaired mental health functioning at the time he committed the offences, regardless of any diagnosis, was potentially relevant to the sentencing exercise as a matter in mitigation. As the sentencing judge correctly observed, it was not the “label” that mattered. Rather, it was the nature, extent and effect of any such conditions experienced by the applicant at the time he committed the offences that was important.[1]
[1]R v Verdins (2007) 16 VR 269, [8]; [13] (Verdins).
In R v Verdins[2] the Victorian Court of Appeal summarised the relevant principles that apply to the sentencing of an offender who experiences impaired mental functioning, either at the time of the offending or at the time of sentence. Those principles are:
“1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
[2]Verdins, [32].
It should be noted that counsel who appeared for the applicant at sentence did not directly refer to Verdins or any of these principles during the sentence hearing. Irrespective, the applicant contends that his reduced mental functioning was a relevant mitigating factor that the sentencing judge failed to take into account. The applicant argues that his mental health condition was linked to the subject offending by the psychologist; that it explained the apparently unprovoked nature of his offending; and that it legitimised his statements of a perceived threat or slight having been made by the complainant. In these ways, the applicant submits his impaired mental functioning, as it related to his offending, reduced his moral culpability.
In seeking to make good those submissions, the applicant argues that the exchange between the sentencing judge and the applicant’s counsel at sentence shows that the sentencing judge wrongly rejected the “medical opinions” of the psychologist, notwithstanding that the psychological report had been tendered without objection and that the psychologist’s opinions were consistent with the applicant’s accepted trauma background and the results of the psychologist’s psychometric testing. Further, the applicant argues that the reference in the statement of facts to him saying to the complainant, “What did you fucking say to me”, ought to have been construed by the sentencing judge as evidence that he had in fact perceived the complainant as a threat, which explained his violent reaction.
Whilst the sentencing judge did not specifically refer to the psychologist’s “medical opinions” with respect to the reasons for the applicant’s offending behaviour, there was an obvious explanation for not doing so. The psychologist’s opinions in that respect were ultimately based upon factual assumptions that were contrary to the agreed facts. As the sentencing judge had observed during the course of submissions, the applicant’s suggestion that he was reacting to, or triggered by, the complainant was unfounded and was contrary to the agreed statement of facts that had been tendered. So too, were the second-hand assertions recorded by the psychologist that the applicant knew the complainant and they had “history”. The sentencing judge found that it was impossible to really know the motivations for the applicant’s offending. The applicant does not directly challenge that finding.
The relevant sections of the psychological report that the applicant specifically relies upon as evidence that the psychologist linked the subject offending to his mental health condition were general sections that sought to explain his offending as a product of his traumatic childhood experiences of domestic and family violence. They did not seek to draw any causal connection between his offending and his “diagnoses”. Further, whilst those sections of the report provided a theoretical basis for understanding the applicant’s general propensity for violence and aggression in particular situations, without the necessary factual foundation they did not explain his unprovoked use of violence on this occasion in any way that might reduce his moral culpability in accordance with the principles in Verdins.
I do not accept the applicant’s submission that the reference in the statement of facts to the applicant saying to the complainant, “What did you fucking say to me”, provided the factual basis to conclude that the applicant must necessarily have perceived the complainant posed a threat to him. No such submission was made during the sentence hearing. The agreed facts showed that it was the applicant who physically approached the complainant and that he was the aggressor and instigator of the confrontation, which commenced with his provocative statement to the complainant. In my view, there was simply no basis to conclude that the applicant reacted with violence in response to some perceived threat posed by the complainant.
Although it is true that the sentencing judge did not refer to the psychologist’s opinion that the applicant appeared to meet the diagnostic criteria for various mental disorders under the DSM-5-TR, I am not prepared to infer that the sentencing judge did not take the psychologist’s report into account in determining the appropriate sentence. On the contrary, it is clear that the sentencing judge did so, as her Honour expressly noted early in her sentencing remarks that she had had regard to it and later said:
“In determining the appropriate penalty, I must have regard to the seriousness of the offence, your previous offending history, and the material contained in the pre-sentence report, and indeed, in the psychological report.”
Furthermore, the sentencing judge noted that the applicant’s exposure to domestic violence had contributed to shaping the way in which he managed and resolved conflict and recorded the psychologist’s report suggested that the applicant was predisposed to aggressive, violent responses.
In my opinion this ground of appeal is not established.
Ground (b) - Failure to have regard to the fact that the offending occurred while the applicant was untreated for his mental health diagnosis and/or condition
There is no merit in this ground.
I again observe that no specific submission was made on behalf of the applicant during the sentence proceedings that the sentencing judge should consider this feature to be a matter in mitigation in the way the applicant now contends.
In any event, the applicant’s argument under this ground relies substantially on the erroneous contention that the applicant has now been diagnosed with PTSD, which, as explained under the reasons given for rejecting Ground (a), is wrong. Furthermore, the argument again wrongly proceeds on the unfounded contention that the applicant reacted to a perceived threat posed by the complainant as a result of his mental health condition. As I have already explained, there was simply no basis for such a contention as it was clearly contrary to the agreed facts.
A similar position pertains to the applicant’s further argument that his “diagnosis” of PTSD was a factor that also reduced the adverse weight to be attached to his criminal history. In my view, the applicant impermissibly attempts to provide an ex post facto rationalisation of the motivation for his previous offending which is simply not open.
In sentencing the applicant for the grievous bodily harm offence in 2023, Judge Rafter SC had noted that although the pre-sentence report tendered to the court on that occasion seemed to indicate that the applicant may have perceived there was a threat to himself at the time of the offence, his attack upon the victim there was entirely unprovoked, as had been expressly conceded by the applicant’s counsel.
In sentencing the applicant for the robbery offences in 2022, Judge Lynch QC noted that two victims were young persons who had previously been known to the applicant and that he had inflicted violence upon them to steal some of their property. There was no suggestion in the sentencing remarks on that occasion that the applicant was somehow provoked or was reacting to any perceived threat from either of the victims, as opposed to acting with gratuitous violence to threaten and bash his victims.
In any event, the sentencing judge was obviously aware that the applicant had not previously received treatment for his mental health conditions as her Honour noted in her sentencing remarks that the applicant was presently engaging with the Forensic CYMHS on a weekly basis but had previously been resistant to accessing mental health services.
Ground (c) - Failure to have regard to the applicant’s actual and prospective rehabilitation arising from his mental health treatment
Again, the applicant’s argument proceeds on the flawed premises that he had been diagnosed with the mental health disorders referred to by the psychologist; and that his mental health condition, however described, was a cause of his violent offending on this occasion. As explained, neither of those propositions are correct.
In any event, there is simply no basis to conclude that the sentencing judge failed to have regard to the applicant’s rehabilitation in the ways the applicant contends.
The only evidence that the applicant had actually sought or received mental health treatment was contained in the pre-sentence report, referring to the weekly sessions with a psychologist through Forensic CYMHS. The sentencing judge expressly referred to those matters in her Honour’s sentencing remarks.
Whilst the sentencing judge did not make any express finding as to the applicant’s prospects of rehabilitation, her Honour otherwise noted in her sentencing remarks the various matters that were positive in terms of the applicant’s ongoing and future rehabilitation, including that since his most recent period of detention the applicant had engaged with the Forensic CYMHS on a weekly basis; that he had gained insight into the patterns of his substance abuse and the consequences and risk involved with those behaviours; that he had expressed some motivation to change how he lived his life and to appreciate the significance that substance abuse had on his offending, which was perhaps a reflection of beginning to mature; that he had obtained his white card, first aid certificates, RSA and RSG certificates; that he wanted to become a personal trainer and was focused on obtaining certificates in fitness; that he was using physical activity as a positive and therapeutic outlet to manage his emotional health; that he had expressed an interest in services designed to assist in repairing relationships and supporting the improvement of home environments and family communication; and that he had an interest in music and a music producer had been mentoring him in music production.
Further, in determining that the applicant would be released on supervision after serving 60 per cent of his sentence, as opposed to the 70 per cent ratio that would otherwise apply by virtue of s 227(1) of the Youth Justice Act, the learned sentencing judge took into account, amongst other factors, the importance of strengthening the applicant’s family connection with his mother.
I do not consider the fact that the sentencing judge did not expressly refer to the applicant’s apparent willingness to undertake an anger management program or the psychologist’s opinion that the applicant’s mental health conditions and substance abuse were capable of being treated demonstrates error of the kind asserted by the applicant.
With respect to the sentencing judge’s supposed failure to take into account the applicant’s “prospective rehabilitation” arising from his mental health treatment, I observe once more that the applicant’s argument under this ground of appeal asserts that the sentencing judge failed to have regard to a material consideration, yet no submission was made to the sentencing judge at first instance that this particular matter should be taken into account in the way now suggested. I think it is timely to now say something more on this point.
Each of the applicant’s grounds of appeal assert that the sentencing judge failed to have regard to a relevant consideration when sentencing the applicant. Each thus asserts specific error was committed by the sentencing judge in the exercise of the judge’s sentencing discretion. Error of this kind was identified in the well-known passage from House v The King,[3] where the High Court, when considering the limits of an appellate court’s review of a discretionary decision, stated:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[3](1936) 55 CLR 499, 504-505, Dixon, Evatt and McTiernan JJ.
In this case, it is the supposed failure by the sentencing judge to take into account some material consideration that founds each of the present grounds of appeal. It may be readily accepted that in some cases the nature and importance of the material consideration not taken into account by a sentencing judge will be so fundamental or obvious that error of this kind will be established, regardless of whether the matter was drawn to the attention of the sentencing judge at first instance. In such a case, the sentencing discretion will have miscarried. However, in other cases, that may not necessarily be so.
In Romero v The Queen,[4] the Victorian Court of Appeal observed:
“In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.”
[4](2011) 32 VR 486, [11], Redlich JA (Buchanan JA and Mandie JA agreeing).
The New South Wales Court of Criminal Appeal made similar observations in Zreika v R[5] in respect of what it then described as the regular and increasing trend of sentence grounds of appeal raising matters for consideration where the point had not been taken below. That Court has since consistently reiterated that there is a difficulty in asserting error on the part of a sentencing judge for failing to take a matter into account when no submission about the matter was made at first instance.[6]
[5](2012) 223 A Crim R 460, [75]-[83], (Johnson J, McClellan CJ at CL and Rothman J agreeing).
[6]See for example: Can v R [2023] NSWCCA 179, [77] (Chen J, Beech-Jones CJ at CL and Rothman J agreeing); Mbele v R [2021] NSWCCA 182, [77]-[81] (N Adams J, McCallum JA and Cavanagh J agreeing); Korovou v R [2021] NSWCCA 28, [74], (Wright J, Hoeben CJ at CL and Bellew J agreeing).
In my view a similar approach should be taken in this case. Given the nuanced argument the applicant seeks to advance under this ground of appeal had not been put to the sentencing judge, without more, I would not be prepared to find error on the part of the sentencing judge simply because the sentencing judge did not refer to the applicant’s “prospective rehabilitation” arising from his mental health treatment.
In my view, this ground fails.
Orders
As none of the grounds of appeal have been established, I would order:
1. Leave to appeal be granted.
2. The appeal be dismissed.
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