R v Hamid

[2006] NSWCCA 302

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Hamid [2006]  NSWCCA 302

FILE NUMBER(S):
1371/2006

HEARING DATE(S):               11 September 2006

DECISION DATE:     20/09/2006

PARTIES:
Regina (Appellant)
Azzam Abdul Hamid (Respondent)

JUDGMENT OF:       Hunt AJA Johnson J Latham J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          05/11/0812, 05/41/0148

LOWER COURT JUDICIAL OFFICER:     Judge Charteris SC

COUNSEL:
Mr P Barrett (Crown)
Mr C Craigie SC; Ms J Healey (Respondent)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission of New South Wales (Respondent)

CATCHWORDS:
SENTENCING - Crown appeal - domestic violence offences - pleas of guilty to multiple offences committed against three victims over eight-year period - offender with record for offences of violence - principles applicable in sentencing repeat domestic violence offenders - importance of specific and general deterrence - relevance of mental illness - whether sentence manifestly inadequate

LEGISLATION CITED:
Criminal Appeal Act 1912
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Bail Act 1998

DECISION:
Crown appeal allowed, sentences increased (see paragraph 152 of judgment).

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

1371/2006

HUNT AJA
JOHNSON J
LATHAM J

20 September 2006

Regina v Azzam Abdul Hamid

Judgment

1. HUNT AJA:  I agree with the orders proposed by Johnson J, and with the reasons he has given for those orders.

2. JOHNSON J: This is an appeal by the Director of Public Prosecutions under s.5D Criminal Appeal Act 1912 alleging manifest inadequacy of sentences imposed upon the Respondent, Azzam Abdul Hamid, by his Honour Judge Charteris SC at the Sydney District Court on 5 May 2006 for a number of serious domestic violence offences.

   Sentences Imposed in District Court

3. Following pleas of guilty, the Respondent was sentenced for the following offences:

   (a)Count 1 - on or about 5 July 1996, at Cringila, assault Kristie Lee Coombs (s.61 Crimes Act 1900 - maximum penalty two years’ imprisonment) - imprisonment for fixed term of six months to date from 25 June 2004 and expire on 24 December 2004;

   (b)Count 2 - between 1 March 1997 and 7 June 1997, at Cringila, assault Kristie Lee Coombs thereby occasioning to her actual bodily harm (s.59 Crimes Act 1900 - maximum penalty five years’ imprisonment) - imprisonment for nine months comprising a non-parole period of six months to date from 25 July 2004 and to expire on 24 January 2005, with the balance of term to expire on 24 April 2005;

   (c)Count 3 - on or about 7 June 1997, at Cringila, assault Kristie Lee Coombs thereby occasioning to her actual bodily harm (s.59 Crimes Act 1900) - imprisonment for 15 months comprising a non-parole period of six months to date from 25 August 2004 and to expire on 24 February 2005 with the balance of term to expire on 24 November 2005;

   (d)Count 4 - between 1 January 2002 and 1 January 2003, at Warrawong, detain Rosemary Vasconcelos without her consent and with intent to obtain an advantage, namely, to avoid detection for assaulting her (s.86(1)(b) Crimes Act 1900 - maximum penalty 14 years’ imprisonment) - imprisonment for two years and nine months comprising a non-parole period of nine months to date from 25 March 2006 and expire on 24 December 2006 with the balance of term to expire on 24 December 2008 (14 offences on a Form 1 were taken into account in passing sentence for this offence - one count of malicious wounding (s.35(1)(a) Crimes Act 1900 - maximum penalty seven years’ imprisonment), nine counts of assault occasioning actual bodily harm (s.59(1) Crimes Act 1900) and four counts of assault (s.61 Crimes Act 1900));

   (e)Count 5 - on or about 18 March 2004 at Cringila, assault Rosemary Vasconcelos thereby occasioning to her actual bodily harm (s.59(1) Crimes Act 1900) - imprisonment for 15 months comprising a non-parole period of eight months to date from 25 June 2005 and expire on 25 February 2006 with the balance of term to expire on 24 September 2006;

   (f)Count 6 - on or about 18 March 2004, at Cringila, maliciously wound Rosemary Vasconcelos (s.35(1)(a) Crimes Act 1900 - maximum penalty seven years’ imprisonment) - imprisonment for 15 months comprising a non-parole period of eight months to date from 25 September 2005 and to expire on 24 May 2006 with the balance of term to expire on 24 December 2006;

   (g)Count 7 - between 1 December 2003 and 1 January 2004, at Cringila, assault Rachael Hanna Meades (s.61 Crimes Act 1900) - imprisonment for fixed term of six months to date from 25 October 2004 and to expire on 24 April 2005;

   (h)Count 8 - between 1 February 2004 and 19 June 2004, at Cringila, assault Rachael Hanna Meades thereby occasioning to her actual bodily harm (s.59(1) Crimes Act 1900) - imprisonment for nine month comprising a non-parole period of five months to date from 25 December 2004 and to expire on 24 May 2005 with the balance of term to expire on 24 September 2005;

   (i)Count 9 - between 1 January 2004 and 15 June 2004, at Cringila, assault Rachael Hanna Meades thereby occasioning to her actual bodily harm (s.59(1) Crimes Act 1900) - imprisonment for 15 months comprising a non-parole period of seven months to date from 25 February 2005 and to expire on 24 September 2005 with the balance of term to expire on 24 May 2006.

4. The total effective sentence imposed upon the Respondent for these offences comprised a non-parole period of two years and six months commencing on 25 June 2004 and expiring on 24 December 2006 with a balance of term of two years commencing on 25 December 2006 and expiring on 24 December 2008.  The Respondent has been in custody with respect to these matters since 25 June 2004.

5. In addition to the sentences imposed, his Honour Judge Charteris SC made an order pursuant to s.562BE Crimes Act 1900 that, in relation to each of the victims, the Respondent must not engage in conduct that intimidates the victim (“the protected person”) or any person having a domestic relationship with the protected person.  A further order was made that the Respondent must not assault, molest, harass, threaten or otherwise interfere with the protected persons.  His Honour directed that these orders operate for a period of 10 years from 5 May 2006.

6. Following imposition of these sentences on 5 May 2006, the Director of Public Prosecutions gave notice in writing to the Respondent on 19 May 2006 of his intention to appeal against the inadequacy of sentence. On 14 June 2006, a Notice of Appeal under s.5D Criminal Appeal Act 1912 was filed by the Director of Public Prosecutions.

   Facts of Offences

7. A Statement of Agreed Facts was tendered in the sentencing proceedings together with a skeletal Outline of Facts for the Form 1 offences.  They reveal the following criminal conduct.

8. The Respondent met the victim, Kristie Lee Coombs, at Wollongong during 1994.  The Respondent was 22 years old at that time.  About three months after they met, the Respondent and Ms Coombs moved into a house together.  They married in 1997.  There are three children of the relationship.  A daughter, Nazmieh, was born on 8 July 1996.  A second daughter, Yasmin, was born on 10 July 1998 and a son, Jacob, was born on 11 August 1999.

   Offences Against Kristie Lee Coombs

9. On 5 July 1996, three days before the birth of Nazmieh, Ms Coombs was talking with a friend of hers in their home at Cringila.  The Respondent came into the room in a rage and said “You fucking bitch, Social Security wouldn’t pay me”.  He then grabbed the victim around the throat, lifted her against the wardrobe and punched her in the right eye.  When the Respondent went to leave the house, he was confronted by police who had been called by staff from Centrelink following an earlier incident at that office.  Ms Coombs was taken to hospital by her friend and, upon arrival, she told the treating doctor she had been hit by a friend (Count 1). 

10. On or about 18 February 1997, at Cringila, the Respondent held Ms Coombs’ left arm over the sink and poured boiling coffee over her forearm, causing it to blister (Offence 1 (s.59(1) Crimes Act 1900), Form 1).

11. On a windy evening, between 1 March and 7 June 1997, Ms Coombs went outside to check on some pups as their kennel had blown over.  At this time, the Respondent was asleep.  After fixing the kennel, the victim walked back into the house through the rear door and was confronted by the Respondent.  He said “Where have you been?”.  She replied “Fixing the kennel”.  He said “Come here”.  When the victim approached the Respondent, he punched her in the mouth causing a bottom-row tooth to break (Count 2).

12. Between 1 March and 7 June 1997, the Respondent made Ms Coombs sit in a chair in their tobacconist shop and poured lighter fluid over her head and body.  The Respondent sat opposite Ms Coombs with a lighter and threatened to kill her if she moved (Offence 2 (s.61 Crimes Act 1900), Form 1).

13. Between 1 March and 7 June 1997, at Cringila, the Respondent struck Ms Coombs with a metal part of a vacuum cleaner across the back of her shoulders and down to the back of her legs (Offence 3 (s.61 Crimes Act 1900), Form 1).

14. On or about 7 June 1997, Ms Coombs was preparing to leave the house at Cringila to open the shop operated by the Respondent and her when she was confronted by the Respondent in their home. Without warning, the Respondent grabbed her and started punching her in the face.  She struggled to get away, but the Respondent had hold of her top.  He continued punching her in the hallway and the two ended up in the bedroom.  There, he straddled the victim on the bed and repeatedly punched her to the face, causing blood to spatter onto the walls.  He then stopped and left to go to the shop.  Ms Coombs was treated at the Wollongong Hospital by Dr Eng Lee, who diagnosed her as suffering from an undisplaced fracture of the nasal bones (Count 3).

15. On or about 11 July 1998, about a day after Ms Coombs had given birth to their daughter, Yasmin, the Respondent hit Ms Coombs across the head and punched her in the stomach (Offence 4 (s.61 Crimes Act 1900), Form 1).

    Offences Against Rosemary Vasconcelos

16. In December 1999, the Respondent separated from Ms Coombs.  In about September 2000, Rosemary Vasconcelos met the Respondent.  They commenced a relationship which continued until about December 2002.

17. Between 1 October 2000 and 31 December 2001, at Warrawong, the Respondent slapped Ms Vasconcelos across the face (Offence 5 (s.61 Crimes Act 1900), Form 1).

18. In early 2002, the Respondent and Ms Vasconcelos were living in a house at Warrawong.  They had purchased a tobacconist store in Cowper Street, Warrawong in which they both worked.  One evening during 2002, the Respondent and Ms Vasconcelos argued, culminating in the Respondent punching her and thereby causing a black left eye and a lump above her right eye.  The next morning, the Respondent took Ms Vasconcelos to the tobacconist store and put her in the safe.  He told her to stay there all day because he did not want the customers to see her.  Ms Vasconcelos sat in the safe all morning.  Later in the morning, around 11.30 am, the victim’s mother and daughter came into the shop and the Respondent ran to the safe and told Ms Vasconcelos “Don’t come up, your Mum and Tanisha just walked in the shop”.  Ms Vasconcelos was allowed out later in the day to clean the shop.  The safe door was closed, but not locked, throughout the period during which she was left in the safe (Count 4).

19. Between 1 January 2001 and 30 June 2002, at Warrawong, the Respondent threw a pair of haircutting scissors at Ms Vasconcelos.  The scissors hit her forehead on the right-hand side, stabbing her and causing her head to bleed (Offence 6 (s.35(1)(a) Crimes Act 1900), Form 1).

20. Between 1 January 2001 and 30 June 2002, at Warrawong, the Respondent hit Ms Vasconcelos on the right ankle with a broom handle causing the ankle to swell.  The victim was unable to walk on her right foot (Offence 7 (s.59(1) Crimes Act 1900), Form 1).

21. Between 1 and 28 February 2002, at Warrawong, the Respondent hit Ms Vasconcelos twice in the mouth with his left fist closed (Offence 8 (s.59(1) Crimes Act 1900), Form 1).

22. Between 1 January 2002 and 1 January 2003, at Warrawong, the Respondent punched Ms Vasconcelos with closed fists in the left eye and then in the right eyebrow, causing her to sustain two black eyes (Offence 9 (s.59(1) Crimes Act 1900), Form 1).

23. Between 3 January and 17 February 2003, at Cringila, the Respondent hit Ms Vasconcelos with closed fists on both of her ears, causing her ears to throb and the victim to suffer headaches (Offence 10 (s.59(1) Crimes Act 1900), Form 1).

24. In late 2003, the relationship between the Respondent and Ms Vasconcelos came to an end.  In October 2003, the Respondent commenced a defacto relationship with Rachael Hanna Meades.

25. On 15 March 2004, Ms Vasconcelos contacted the Respondent to arrange to pick up some of her belongings from his house.  The Respondent and his new girlfriend (Ms Meades) picked up Ms Vasconcelos and took her back to his house where she stayed for four days.  Whilst staying at the house, Ms Vasconcelos indicated to the Respondent that she wanted to go home.  An argument developed and both ended up standing in the kitchen.  The Respondent grabbed a large knife and said to Ms Vasconcelos “Put your hand on the bench”.  She asked “Why?”.  The Respondent said “Just do it”.  She did as she was told and the Respondent said “Do you want me to chop your finger off or just cut you?”.  Ms Vasconcelos said “Just cut me”.  The Respondent took hold of the victim’s wrist and she fell to the floor.  He then cut the back of her hand.  As a result, her hand bled.  When she saw that her hand was bleeding, she called the Respondent a “mother fucker” and crawled out of the kitchen into the hallway (Count 5).

26. When Ms Vasconcelos had crawled into the hallway, the Respondent approached her with a wooden meat tenderiser and yelled “You fucking slut”.  Ms Vasconcelos covered her head with her hands and the Respondent struck her left hand causing it to split open and bleed.  Later hospital examination revealed a fracture to the middle phalanx of the left-index finger requiring a “Zimmer” splint (Count 6).

27. On or about 18 March 2004, at Cringila, the Respondent hit Ms Vasconcelos with a pool cue on her right knee and left thigh, causing a large bruise on her left thigh (Offence 11 (s.59(1) Crimes Act 1900), Form 1).

    Offences Against Rachael Hanna Meades

28. Ms Meades met the Respondent in about August 2003 and commenced a defacto relationship with him in October 2003.  The Respondent and Ms Meades attended a Christmas 2003 function at the house of Ms Meades’ grandmother.  Upon returning to their own house, the Respondent was expecting his children to arrive for a pre-arranged contact visit.  When the children didn’t arrive, the Respondent became upset and angry and asked Ms Meades to make him a cup of coffee.  He then grabbed Ms Meades, pushed her on the chest, punched her to the head with his fist and punched her to the arms (Count 7).

29. On or about 23 December 2003, at Cringila, the Respondent punched Ms Meades in the face and around the head, causing her left ear to pop and numbness to the left side of her face.  The victim had a stabbing ache in her ear for about two weeks after this incident (Offence 12 (s.59(1) Crimes Act 1900), Form 1).

30. Between 1 February and 19 June 2004, Ms Meades and the Respondent had an argument in their bathroom during which a glass hallstand was knocked over and broken.  The Respondent grabbed Ms Meades by the hair and dragged her across the floor which had broken glass on it.  The victim’s pants had slipped down during the fight and as a result of this, she suffered cuts and scratches to her right buttock as she was pulled across the glass (Count 8).

31. Between 1 and 30 April 2004, at Cringila, the Respondent punched Ms Meades in the face causing her mouth to bleed (Offence 13 (s.59(1) Crimes Act 1900), Form 1).

32. Between 1 January and 19 June 2004, the Respondent kept a stick in the bedroom of their house.  Ms Meades was using the stick in an endeavour to break a window.  The Respondent entered the bedroom and asked for the stick.  When the victim gave him the stick, the Respondent pushed her onto the bed and commenced to hit her around the body and head with the stick until she lost consciousness.  When she regained consciousness, the victim noticed bruising and swelling to her face and she suffered severe headaches (Count 9).

33. On 19 June 2004, at Cringila, the Respondent hit Ms Meades around the head with a cue ball, causing pain and numbness (Offence 14 (s.59(1) Crimes Act 1900), Form 1).

34. The Respondent was arrested on 25 June 2004 and has remained in custody since that time.

35. The Respondent was committed for trial in the District Court following committal proceedings.  A trial date was fixed but, following negotiations, he pleaded guilty on 22 November 2005 to the offences contained in the present indictment, and requested that the further 14 offences be taken into account on a Form 1 document.  The sentencing proceedings continued, from time to time, between 22 November 2005 and 28 April 2006, with his Honour passing sentence on 5 May 2006. 

    The Respondent’s Subjective Circumstances

36. The Respondent was born at Port Kembla, of Lebanese parentage, on 29 August 1972 and was 33 years of age at the time of sentence.  He is the eldest child in a family of eight.

37. The learned sentencing Judge summarised the Respondent’s education and employment history in the following way (ROS, pages 13-14):

    “The offender was educated until the middle of Year 11 or thereabouts.  He commenced a motor mechanic apprenticeship but was retrenched after six months.  He then commenced operating small businesses - he would seek to make those businesses profitable with a view to selling them.  The businesses that he has operated in that way have included a tobacconist, a fruit and grocery shop and a café.  The offender appears to be a person who has capacity in that he is able to either commence businesses or restore them to profitability for his financial advantage.”

38. The Respondent has a record of previous convictions, including offences of violence. On 17 July 1991, he was placed on a two-year recognisance in the Port Kembla Local Court for offences of assault and stealing. On 1 April 1992, he was sentenced in the same Court to three months’ imprisonment for stealing, a sentenced confirmed on appeal to the District Court. On 11 June 1992, he was fined in the Wollongong Local Court on two counts of assault. On 13 January 1994, a breach of an apprehended violence order was found proved in the Wollongong Local Court, but the information was dismissed under s.556A Crimes Act 1900.  On 23 September 1994, the Respondent was fined and disqualified in the Sutherland Local Court for driving whilst licence cancelled.

39. On 24 June 1997, the Respondent was fined and placed on a two-year recognisance in the Wollongong Local Court for assault (two counts) and resist arrest (two counts). On 17 July 2000, the Respondent was placed on an 18-month bond under s.9 Crimes (Sentencing Procedure) Act 1999 in the Wollongong Local Court for contravening an apprehended domestic violence order. On 4 June 2002, he was placed on a 12-month s.9 bond in the Wollongong Local Court for resisting an officer in the execution of his duty. On 4 December 2002, the Respondent was placed on a two-year bond under s.9 for offences of assault police, resist arrest, malicious damage to property and intimidating a police officer.

40. It will be apparent from this criminal history that a number of offences for which the Respondent was sentenced on 5 May 2006 were committed whilst he was subject to conditional liberty (Offences 4, 5, 6, 7, 10, 11, 12, 13, 14, Form 1; Counts 5, 6, 7 and 8).  The learned sentencing Judge stated that he took into account, as an aggravating factor on sentence, the fact that a number of offences were committed whilst the Respondent was subject to conditional liberty (ROS, pages 11-12). 

1. His Honour Judge Charteris SC observed with respect to the Respondent’s criminal history (ROS, page 12):

   “It is clear from the offender’s record that he has a problem in relation to controlling his temper and has a tendency to resort to violence.”

2. The Respondent has a history of illegal drug use, including use of cannabis and the amphetamine-based drug known as “ice”. 

3. The Respondent has a history of mental illness.  The reports of a number of psychiatrists were tendered in evidence in the sentencing proceedings, including a report of Dr Samuels dated 19 July 2004, a report of Dr Bruce Westmore dated 21 July 2005 and a report of Dr Gordon Davies dated 23 February 2006. 

4. His Honour Judge Charteris SC summarised the psychiatric evidence with respect to the Respondent (ROS, pages 17-21).   

5. When the Respondent came into custody in June 2004, he was referred for psychiatric examination by Dr Samuels.  The Respondent gave a history to Dr Samuels including the suggestion that Ms Meades was giving him cups of coffee into which she was “putting drugs and lacing his cigarettes with crystal methamphetamine”.  He told Dr Samuels that he had set up a surveillance system in his house on the advice of the Australian Federal Police.  Dr Samuels concluded that the Respondent was suffering from a paranoid psychotic illness although he was unclear whether it involved drug-induced psychosis or a paranoid schizophrenic illness.  Dr Samuels was of the view that the Respondent presented with paranoid delusions and was a danger to others.  He observed that the Respondent’s mental state had settled whilst in custody, but that persecutory delusion was still evident.

6. Dr Westmore examined the Respondent in July 2005 to assess his fitness to be tried.  He concluded that the Respondent was fit to be tried.  Dr Westmore diagnosed polysubstance abuse arising from long-term use of illicit drugs.  There was a provisional diagnosis of psychotic illness.  He agreed with Dr Samuels that it was not possible to conclude whether the Respondent suffered from drug-induced psychosis or a schizophrenic illness, although Dr Westmore thought that drug-induced psychosis was more likely. 

7. Dr Davies had seen the Respondent on some 70 occasions commencing in October 1995.  He expressed the view in 1998 that the Respondent was suffering post-traumatic stress disorder as a result of an assault in 1995 and described persistent overactive and paranoid behaviour on the Respondent’s part.  In 1999, it was noted that the Respondent had a history of paranoid schizophrenia.

8. In a report dated 23 February 2006, Dr Davies adhered to the view that the Respondent originally suffered from post-traumatic stress disorder following an assault in 1995 and noted that he had been using cannabis, allegedly for analgesic purposes to reduce the effect of pain upon him.  Dr Davies considered that the Respondent’s use of amphetamines contributed to him becoming “floridly psychotic” and remaining in that condition until his arrest in June 2004.  Dr Davies expressed the opinion that, the Respondent was suffering from psychosis at the time of the 2004 offences.  With respect to the earlier offences, Dr Davies stated that, although the Respondent was then suffering from mental illness with paranoid symptomatology, it is not possible to say whether he was psychotic at that time.  Dr Davies noted that the Respondent’s condition had significantly improved in custody where he had been taking his anti-psychotic medication consistently and abstaining from use of illicit drugs.

   Some Findings of the Sentencing Judge

9. His Honour found the following aggravating factors for the purposes of s.21A(2)(c), (f) and (j) Crimes (Sentencing Procedure) Act 1999 (ROS, page 22):

   “I have already observed that there are aggravating factors in respect of some of the matters that I have taken into account, namely the fact that some of the offences were committed whilst the offender was on conditional liberty, a number of the offences of course involved the threatened use or actual use of a weapon, whether it be a knife or a meat tenderiser or the like.  I do accept the submissions of the Crown that some of the offences involved gratuitous cruelty.”

10. His Honour took into account a number of mitigating factors under s.21A(3)(h), (k) and the general law (ROS, pages 22-23):

    “There are a number of mitigating features to take into account.  I have referred to the mental illness of the offender.  I accept that he was mentally unwell during the currency of all of the offences and that his condition deteriorated over years.  I do not accept that his presentation in 2004 was consistent with his presentation in earlier years.  In that regard his mental illness is a mitigating feature more in the later offences than in the earlier offences.

    I consider that the offender has good prospects of rehabilitation if he addresses the requirement that he regularly take the medication prescribed for him and also importantly, that he abstain from taking illicit drugs.  I have had regard as I have already observed to the offender’s pleas of guilty, and as I have recorded I will discount sentences by 20% to reflect that behaviour.”

11. The learned sentencing Judge made the following findings with respect to the Respondent’s offences (ROS, page 23):

    “The law requires me to arrive at a sentence in respect of each of the individual offences - I am then to address issues of the totality of the penalties to be imposed.  Each of the offences involve violence upon young women, either his wife or partners.  As I have already recorded the behaviour extends over a lengthy period of time.  The Courts and the community deplore the use of physical force against other citizens and, I think, particularly involving young women vulnerable in a relationship.  The offender’s behaviour can in some instances be explained by his own mental problems, but his behaviour cannot be excused in my view.  His offences involve considerable cruelty and in my view cowardice.  Although the issue of general deterrence does not loom as large in those offenders who are suffering from mental illness, as the many cases of the superior courts have recorded, the need for protection of the community can be a more important issue in imposing penalties for offences in those circumstances.”

12. His Honour found special circumstances, observing that the offender and the community would be advantaged if there was a longer period of supervision on parole than would normally be the case and “a minimum period of about 50% of the total sentence” was identified for this purpose (ROS, page 24).  His Honour’s finding of “special circumstances” included the need for the Respondent to be subject to a lengthier period of supervision so that it can be ensured that he is complying with his medication regime in respect of mental illness, his youth and his prospects for rehabilitation (ROS, pages 27-28). 

13. His Honour identified the individual sentences for the various offences and then turned to the issue of totality (ROS, pages 25-26):

    “I intend to then have regard to principles of totality.  Considering all the criminal behaviour involved, it seems to me appropriate that the offender should serve a minimum period of two years and six months from the date of his arrest with an additional period of two years on strict conditions of parole.  Therefore the sentences will be so structured as to achieve a total period of custody of four and a half years imprisonment with a minimum period of two and a half years imprisonment.  The offender has been in custody since 25 June 2004, he will eligible [sic] for release on parole on 24 December this year.  His parole will be strictly supervised and I will impose additional conditions.”

14. His Honour then imposed the sentences set out earlier in this judgment.  With respect to parole conditions, his Honour said (ROS, page 28):

    “The effect of those sentences is that the offender is to be released to parole on 24 December 2006.  I direct that his parole be conditioned with the ordinary terms of parole, and additional terms:  firstly that he live with his father or at such other residence approved by the Probation and Parole Service, secondly that he place himself under the supervision of the Mental Health Team at the Illawarra Area Health Service at Shellharbour and abide by all reasonable directions of that service concerning his prescribed medication and other treatment.  As I have observed the totality of the effect of those nine sentences is a four and a half year period of imprisonment with two and a half years non-parole.”

15. As required by law, his Honour made orders for the protection of the victims under s.562BE Crimes Act 1900 as referred to in paragraph 5 above.

    Principles Governing a Crown Appeal on Sentence

16. The constraints on Crown appeals, and the discretion which is inherent in their disposition, were summarised by Wood CJ at CL (Meagher JA and Bell J agreeing) in R v Wall [2002] NSWCCA 42 at paragraph 70:

    “(a)       The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong v The Queen (2001) 207 CLR 584 at 605 [58] and 624 [109].

    (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

    (c) A Crown appeal against sentence is concerned with establishing matters of principle ‘for the governance and guidance of courts having the duty of sentencing convicted persons’: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299, Dinsdale v The Queen (2000) 202 CLR 321 at 340 [61] and [62] and Wong v The Queen (at 624 [109]).

    (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247 and Wong v The Queen (at 624 [110]).

    (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston [1983] 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen (at 340 [62]).”

    Submissions on the Appeal

17. The Crown submitted that the sentences imposed upon the Respondent were manifestly inadequate.  It was submitted that:

    (a)a number of individual sentences were themselves inadequate given the objective seriousness of the crimes involved;

    (b)in particular, this was so with respect to Count 4, the s.86(1)(b) offence, in relation to which, as well, 14 further offences were to be taken into account on the Form 1;

    (c)his Honour’s approach to accumulation and totality produced both individual and total sentences which did not reflect the objective seriousness of the Respondent’s crimes, which involved multiple serious acts of violence against three different victims over an eight-year period;

    (d)too great an adjustment had been made to the ratio between the non-parole period and the balance of term upon the basis of “special circumstances”.

18. Whilst the Crown did not dispute that the evidence revealed a psychiatric condition in the Respondent, it was submitted that the condition was not so serious as to have explained or mitigated the offences, nor so serious as to warrant such a significant reduction in both the proper penalty and the non-parole period for the offences.

19. Mr Craigie SC, for the Respondent, did not dispute that the sentences imposed, both individually and in totality, were lenient.  He submits, however, that even manifest leniency does not provide a basis for this Court’s intervention unless accompanied by patent or latent error.  He submits that no such conclusion ought be reached in this case. 

20. The Respondent submits that no error has been demonstrated with respect to accumulation and totality.  Although the sentences are structured in such a way as to result in a particularly lenient outcome, he submits that the sentencing Judge carefully considered the proper balance between rehabilitation of the offender and the protection of the community after receiving evidence of the offender’s mental illness.  The Respondent submits that the principal of totality may require that a sentence be less than it would have been if considered alone:  R v Holder (1983) 3 NSWLR 245. It was submitted that his Honour properly accumulated the sentences, recognising that there were different victims and offences that occurred over a long period of time. However, the sentences are said to be sufficient having regard to relevant sentencing principles, particularly those applying to offenders with mental illness.

21. Mr Craigie SC submits that the sentence imposed with respect to Count 4, taking into account the Form 1 offences, was not manifestly inadequate.

22. The Respondent submits that no error has been demonstrated in the finding of “special circumstances” and the consequential adjustment as between the non-parole period and balance of term.  In this regard, Mr Craigie SC places particular emphasis, once again, upon the psychiatric evidence.  Reliance is placed upon R v Israil [2002] NSWCCA 255 and R v Hemsley [2004] NSWCCA 228 with respect to the relevance of psychiatric illness to the imposition of sentence.

23. In the event that the Court found error, Mr Craigie SC submits that delay in bringing the appeal in the present case would operate as a discretionary factor for a refusal by the Court to intervene.  Although the Director of Public Prosecutions gave notice to the Respondent of an intention to appeal 14 days after sentence was passed, and the appeal itself was filed within a month thereafter, it is submitted that the delay in the circumstances of this case provides a discretionary reason for the Court refusing to intervene:  R v Hernando (2002) 136 A Crim 451 at 459-460.

24. In the event that the Court determines to resentence the Respondent, Mr Craigie SC calls in aid the principle of double jeopardy applicable to resentencing on a Crown appeal.

    Sentencing for Domestic Violence Offences

25. In approaching the resolution of the present appeal, it is appropriate to refer to statements of this Court with respect to sentencing for domestic violence offences.  At the outset, it must be observed that these statements have been made in the context of cases involving a single victim and, usually, a single serious offence.  The present case involves three separate victims against whom the Respondent committed serious offences of violence in the course of relationships over an eight-year period between 1996 and 2004.  Before and during this period, the Respondent was appearing before Courts and being dealt with for a range of offences of violence, including breaches of apprehended violence orders. 

26. This case brings into sharp focus the challenges facing a sentencing court where an offender has committed repeated serious offences of violence against different domestic partners over an extended period of time.

27. In R v Glen (Court of Criminal Appeal, 19 December 1994, BC9403423), Simpson J stressed the importance of general deterrence in cases of domestic violence.  Her Honour stated that victims of domestic violence will “receive the full protection of the law, insofar as the courts are able to afford it to them”. 

28. Since Glen, this Court has emphasised repeatedly the importance of general deterrence in domestic violence cases, given the prevalence of violence by men against women in domestic relationships:  R v Rowe (1996) 89 A Crim R 467 at 472-3; R v Berry [2000] NSWCCA 451 at paragraph 32; R v Greene [2001] NSWCCA 258 at paragraph 16.

29. In R v Ross (Court of Criminal Appeal, 20 November 1996, unreported), Adams AJ (Newman J agreeing) observed, in the context of a sentence appeal concerning an offence of assault occasioning actual bodily harm committed upon a domestic partner:

    “This was an act of frightening violence meted out to a woman [who] was entitled to the protection of the law.  Until men such as the applicant understand that the law will treat with real seriousness cases which hitherto have been dismissed as having ‘domestic’ significance, this appalling series of violent acts meted out continuously to women in this community by men who suppose they have the right to do so will not stop.”

30. In R v Fahda [1999] NSWCCA 267, Simpson J (Studdert J agreeing) said at paragraph 26:

    “Domestic violence is a problem of considerable proportions in this community and the courts must be strong to ensure that it is adequately punished.”

31. In R v Edigarov (2001) 125 A Crim R 551, Wood CJ at CL (Studdert and Bell JJ agreeing) said at 558 [41]:

    “As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.”

32. In R v Dunn (2004) 144 A Crim R 180, Adams J (Ipp JA and Sully J agreeing) said at 195 [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.”

33. Unsurprisingly, similar views have been expressed in other jurisdictions with respect to sentencing of domestic violence offenders. 

34. In R v Devine (Tasmanian Supreme Court, 5 July 1993, unreported), Underwood J (as Underwood CJ then was) said, in the course of sentencing an offender who had assaulted his estranged wife, in the presence of small children, causing multiple bruising to her face and body and threatened her with a knife:

    “Domestic violence is a profound problem and it is the duty of the courts to denounce offences such as these and attempt to deter its recurrence by you and other men.  The relationship of husband and wife, albeit estranged, is an aggravating factor for violence of this kind constitutes a breach of trust.  It is also an abuse of power and control on one who, in the circumstances, was in a position of vulnerability.”

35. In Parker v The Queen (Tasmanian Court of Criminal Appeal, 21 July 1994, BC9400423), Underwood J at page 11 said:

    “In my opinion sentencing for crimes of domestic violence should proceed in accordance with the following principles expressed by the Alberta Court of Criminal Appeal in R v Brown (1992) 73 CCC (3d) 242 at 249:

    ‘When a man assaults his wife or other female partner, his violence toward her can be accurately characterised as a breach of the position of trust which he occupies. It is an aggravating factor. Men who assault their wives are abusing the power and control which they so often have over the women with whom they live. The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape’."

    See also Gallegos v R [1999] WASCA 191 at paragraphs 11, 28; Ugle v R [2001] WASCA 268 at paragraph 37; Attorney-General for Tasmania v O [2004] TASSC 53 at paragraph 18; Warner, “Sentencing in Tasmania”, 2002, 2nd edn, paragraph 11.325. 

1. In the context of cases concerning “battered woman syndrome”, reference has been made to the notions of dominance, control and justification surrounding acts of domestic violence:  Osland v The Queen (1998) 197 CLR 316 at 372, 407.

2. These judicial statements are complemented by criminological research concerning domestic violence.  An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control:  J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pages 6-7. 

3. Although domestic violence is a criminal offence in Australia, it has been reported that many young Australians still evince attitudes that essentially condone it, and many people still believe that it is a private and personal matter rather than a crime:  J People, “Trends and Patterns in Domestic Violence Assaults”, NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin, No. 89, October 2005, page 2.  Domestic assaults accounted for 35%-40% of the assaults recorded by police each year from 1997 to 2004:  J People, above, at page 11.

4. Statutory responses in New South Wales to the problem of domestic violence have taken a number of forms. An exception to the presumption in favour of bail exists with respect to certain domestic violence offences and offences of contravening apprehended domestic violence orders: s.9A Bail Act 1998.

5. The manner in which the New South Wales Parliament has sought to confront the problem of domestic violence is not confined to traditional criminal law remedies.  Although contained in the Crimes Act 1900, the provisions of Part 15A relating to apprehended violence serve a different purpose which complement the criminal law. In John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512, Spigelman CJ (Mason P and Beazley JA agreeing) said at 519 [20]:

   “The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking, intimidation and harassment. Apprehended violence orders constitute the primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct from those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce the criminal law.”

6. The Chief Justice, in John Fairfax Publications at 519 [22], referred to the objects of Division 1A of Part 15A concerning apprehended domestic violence orders. Section 562AC, enacted in 1999, provides as follows:

   “Objects of Division

   (1)         The objects of this Division are:

   (a)to ensure the safety and protection of all persons who experience domestic violence, and

   (b)to reduce and prevent violence between persons who are in a domestic relationship with each other, and

   (c)to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women.

   (2)         This Division aims to achieve its objects by:

   (a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, and

   (b)ensuring that access to courts is as speedy, inexpensive, safe and simple as is consistent with justice.

   (3)         In enacting this Division, Parliament:

   (a)recognises that domestic violence, in all its forms, is unacceptable behaviour, and

   (b)recognises that domestic violence is predominantly perpetrated by men against women and children, and

   (c)recognises that domestic violence occurs in all sectors of the community.

   (4)A court that, or person who, exercises any power conferred by or under this Part in relation to domestic violence must be guided in the exercise of that power by the objects of this Division.”

7. In Vukic v Edgerton [2001] NSWCCA 2, Dowd J (Mason P and Austin J agreeing) observed at paragraph 47 that the legislative structure of Part 15A is designed to deter people from carrying out certain inappropriate conduct or harming persons and to protect people from future harm.

8. There is an overlap between ordinary criminal proceedings and the protective and preventative provisions in Part 15A, in s.562BE Crimes Act 1900 which provides:

   “Order must be made on guilty plea or guilt finding for certain offences

   (1) If a person pleads guilty to, or is found guilty of, an offence against section 562AB or a domestic violence offence, the court must make an order under this Part for the protection of the person against whom the offence was committed, as if a complaint for an apprehended violence order had been made under this Part.

   (1A) If a person pleads guilty to, or is found guilty of, an offence against section 562AB or a domestic violence offence, the court may vary an order under this Part for the purpose of providing greater protection for the person against whom the offence was committed, as if an application to vary an apprehended violence order had been made under this Part.

   (2) However, the court need not make an order under this section if it is satisfied that it is not required (for example, because an order has already been made against the person or the person for whose protection the order would be made opposes the making of the order).

   (3) A reference in this section to a court extends to the District Court when exercising jurisdiction apart from under section 562G.

   (4) Without limiting the interpretation of the expression, a reference in this section to a finding of guilt includes a reference to the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 .”

9. This provision was applied in the present case.  As the Respondent’s offences fell within the definition of “domestic violence offence”, the sentencing court was required to make orders under s.562BE for the protection of the persons against whom the offences were committed. Such an order was made for a 10-year period.

10. The objects contained in s.562AC emphasise the serious approach taken by Parliament and the community to the issue of domestic violence.  Although contained in a Part of the Crimes Act 1900 which does not relate directly to sentencing, these objects illuminate the purposes of sentencing with respect to domestic violence offences. Those general purposes are contained in s.3A Crimes (Sentencing Procedure) Act 1999:

    “Purposes of sentencing

    The purposes for which a court may impose a sentence on an offender are as follows:

    (a)to ensure that the offender is adequately punished for the offence,

    (b)to prevent crime by deterring the offender and other persons from committing similar offences,

    (c)to protect the community from the offender,

    (d)to promote the rehabilitation of the offender,

    (e)to make the offender accountable for his or her actions,

    (f)to denounce the conduct of the offender,

    (g)to recognise the harm done to the victim of the crime and the community.”

11. In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s.562AC. 

12. As some of the provisions in Part 15A of the Crimes Act 1900 have been touched upon in this part of the judgment, it is appropriate to note a further development concerning those provisions.  The Crimes Amendment (Apprehended Violence) Bill 2006 was read a second time in the Legislative Assembly on 6 September 2006. The object of the Bill is to repeal and re-enact Part 15A with changes flowing from the New South Wales Law Reform Commission Report 103 (2003), Apprehended Violence Orders. If enacted, the Bill will renumber s.562AC as s.562E and expand the provision in a number of respects. Section 562BE will be renumbered as s.562ZU. In determining to leave this statutory scheme in Part 15A of the Crimes Act 1900, the Government appears to have accepted the Law Reform Commission’s view that “the decision to leave AVOs to be governed by Part 15A of the Crimes Act is a policy one, based on the view that the underlying rationale of the AVO scheme is to stop or prevent criminal behaviour, and to send a clear message that any form of violence, intimidation or harassment is a crime” (paragraph 2.1, Report 103). If the 2006 Bill is enacted, the continuing presence of Part 15A (including new ss.562E and 562ZU) in the Crimes Act 1900 will emphasise the significance of these provisions for a number of purposes, including sentencing domestic violence offenders. 

13. This is not to say that promotion of rehabilitation of the offender is not an important factor.  It remains necessary to provide individualised justice in the circumstances of the particular sentencing decision.  Nevertheless, the factors to which reference has been made above assume particular significance in the case of a domestic violence offender who has committed a series of offences over an extended period of time against different victims. 

    Are the Sentences Imposed Upon the Respondent Manifestly Inadequate?

14. Before turning to broader questions arising in the Crown appeal, it is appropriate to consider the significance of the psychiatric evidence concerning the Respondent.

    The Mental Illness Issue

15. It is apparent from the findings of the learned sentencing Judge and the submissions made to this Court that the principal factor operating in the Respondent’s favour on sentence was that relating to mental illness. 

16. The evidence before the District Court demonstrated that the Respondent had been receiving psychiatric treatment since 1995.  The learned sentencing Judge gave substantial weight, in the Respondent’s favour, to the psychiatric evidence concerning the Respondent. 

17. In approaching this issue, it is necessary to bear in mind the observation of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 68:

    “It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances.  In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”

18. The relevance of mental illness to sentence has frequently been considered by reference to four factors.  It is useful to consider the present case in this way.  As will be seen, there are overlapping considerations as between these factors.

    The Respondent’s Moral Culpability

19. The existence of a mental illness or other psychiatric condition, where causally related to the offence committed, can be relevant to the assessment of the offender’s moral culpability.  Where mental illness contributes to the commission of an offence in a material way, the offender’s moral culpability may be reduced and there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced:  R v Israil at paragraph 23; R v Hemsley [at paragraph 33; Apps v R [2006] NSWCCA 290 at paragraph 53.

20. With respect to this issue, it is necessary to determine whether the relevant mental illness contributed to the commission of the offences in a material way.  In the present case, the learned sentencing Judge made a finding concerning the existence of psychiatric illness in the Respondent during the period of his offending.  A finding was made that his psychotic condition could be causally connected more readily to his offending in 2004. 

21. The foundation for these findings by his Honour appears to have been the psychiatric reports referred to earlier together with “extracts from the victim’s statements as to the offender’s unusual behaviour concerning, amongst other things, the presence of people in the ceiling and also the offender’s obsession with matters of security and video cameras” (ROS22).  The following examination of the portions of the statements relied upon for this purpose provides limited assistance to the Respondent. 

22. Reliance was placed upon parts of the statement of Ms Coombs dated 11 July 2004 describing the Respondent as being “in a rage” (paragraph 3) and that she could see that “the veins on his temple were popping out” (paragraph 4).  She said “someone had broken into the house in this time and he was paranoid about it happening again” (paragraph 13).  Ms Coombs observed that the Respondent had moved into premises in mid-2003 and that security cameras were located inside the house (paragraph 28).  She recounted a telephone call from the Respondent on 24 June 2004 (the day of his arrest) in which he alleged that Ms Meades had been drugging him and was “a hit girl” who was “sent to kill me” (paragraph 34).  On 4 July 2004, Ms Coombs received a telephone call from the Respondent in which he alleged that people had been living in his roof and that he had “it all on surveillance cameras” (paragraph 36).

23. In a statement dated 14 January 2005, Ms Coombs said that, in 1997, when the Respondent went to Port Kembla Hospital Rehabilitation Centre for treatment for a back injury, she spoke to a psychologist “about the assaults and the fear that I was in” (paragraph 6).

24. In a statement dated 19 January 2005, Ms Robyn Coombs (the stepmother of Kristie Lee Coombs) stated that in April-May 1996, there was “unsatisfactory behaviour” on the part of the Respondent - “he would go into a kind of stupor” and “would sit and stare and when he walked around he would be staggering” (paragraph 3). 

25. The statement of Ms Vasconcelos dated 11 July 2004 recounted that she was crying “and that was when he went psycho, he picked up his kitchen stool and threw it at the kitchen window” (paragraph 62). 

26. The statement of Ms Meades dated 25 June 2004 recounted the presence of surveillance cameras inside and outside the house when she moved in with the Respondent.  She said “in the last few weeks he has become super paranoid about things … he has a back injury that he smokes cannabis for but he also smokes ice” (paragraph 15).  She said that “for about the last month Azzam has become overly obsessed about people being on the roof of the house, and in the roof … he would go around the house with a samurai sword and stab the ceiling with it” (paragraph 16).  Ms Meades stated that, from about 11 June 2004, the Respondent had not slept - “this was due to his paranoia about people being in the house” (paragraph 17).

27. These extracts do not point to any cause or nexus between the Respondent’s offending in the period from 1996 to the end of 2003.  The observations of Ms Robyn Coombs that the Respondent, in April-May 1996, would “go into a kind of stupor … sit and stare and when he walked around … would be staggering” does not materially assist the Respondent.  There are a number of possible explanations for such behaviour, including drug use. 

28. With respect to events in 2004, the statements point to increased and overt paranoid activity, in particular in the weeks prior to 25 June 2004.  The statement of Ms Meades refers to the Respondent’s use of cannabis and “ice” in this period.  This provides support for the diagnosis of Dr Samuels and Dr Westmore of drug-induced psychosis. 

1. The psychiatric reports of Dr Davies, Dr Samuels and Dr Westmore refer, in some detail, to the Respondent’s psychotic behaviour in the period leading up to his arrest on 24 June 2004.  It is apparent from the psychiatric evidence, taken with the statements of Ms Coombs and Ms Meades that there was overt paranoid ideation on the Respondent’s part in mid-2004. 

1. It does not seem to me that the Respondent’s psychiatric condition can be causally linked to the commission of his offences in a way which reduced his moral culpability.  The evidence in the District Court pointed to the Respondent functioning as a successful small businessman in a number of ventures, including a tobacconist shop, a fruit and vegetable shop and a café.  It appears that the Respondent’s level of functioning for these purposes was not adversely affected, in any significant way, by his psychiatric difficulties.  Further, the Respondent was able to form relationships with women during this eight-year period including entering into relationships with his second and third victims. 

2. The psychiatric reports point to a level of paranoid ideation in the Respondent in mid-2004.  However, his violent course of conduct extended back to 1996.   The description of the various offences contained in the Agreed Statement of Facts, and the circumstances in which they occurred, do not suggest a causal nexus between a psychotic condition or paranoid ideation and the offences themselves.

3. It is not insignificant, in considering this question, to note the Respondent’s convictions for assault in 1991 and 1992 and a finding that he breached an apprehended violence order in 1994, all of this conduct pre-dating the present offences.

4. I am not satisfied that an evidentiary foundation was established to warrant a finding of reduced moral culpability flowing from the Respondent’s psychiatric difficulties.

   General Deterrence

5. Mental illness may render an offender an inappropriate vehicle for general deterrence and thereby moderate that consideration:  R v Scognamiglio (1991) 56 A Crim R 81 at 86; R v Engert at 71; R v Israil at paragraph 22; R v Hemsley at paragraph 34. Whether this principle applies, of course, depends upon the circumstances of the case. A finding of mental illness does not lead to an automatic reduction in the weight to be given to general deterrence in the particular case.

6. In R v Wright (1997) 93 A Crim R 48, Hunt CJ at CL (Gleeson CJ and Hidden J agreeing) at 51, elaborated upon the rationale for this principle and a number of other factors which are relevant to the present appeal:

   “The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great.

   The evidence that the respondent did not act with knowledge of what he was doing and with knowledge of the gravity of his actions is difficult, if not impossible, to find. The medical evidence before the judge was that the respondent suffered from a psychiatric illness with features of schizophrenia, which he was able to keep under control with medication prescribed for him but which flared up either when he failed to take the medication or when he abused drugs. This condition causes auditory hallucinations, when he hears a small man with a beard talking to another voice, who tells him what to do and who punishes him if he does not do it. The respondent was a user of both marijuana and amphetamines, and had been for many years. On the night in question, he had not been taking his medication for three days - having left his parents' home where he lived after a dispute - and he was intoxicated with both marijuana and amphetamines. These had led to a psychotic state at the time. The respondent told a psychiatrist that on that night the second voice had told him that it was a good idea to rob the person who delivered the pizza.”

1. Hunt CJ at CL concluded at 52:

   “But, even taking the history at its face value, two things become clear. First, although the respondent may have been encouraged by the voices which he heard to commit the armed robbery, he knew very well what he was doing and that what he was doing was gravely wrong. Secondly, the respondent quite deliberately had left home and his pills behind him and had either deliberately or recklessly become intoxicated by drugs, thereby bringing on the psychotic state which the doctors had diagnosed. He had been addicted to drugs for some years.

   Rather than mitigation, this conduct was really a matter in aggravation, but it is unnecessary to determine whether it was. It certainly was not a matter in mitigation. The judge was, in my view, in error in treating the psychotic state and the intoxication at the time of the offence as a matter which did go to mitigation. The circumstances of this crime, together with the respondent's criminal history, also demonstrated that, by his recklessness in bringing on these psychotic episodes, he is a continuing danger to the community, a matter which would in any event reduce - if not eradicate - the mitigation which would otherwise be given for the respondent's mental condition.”

2. It has been emphasised repeatedly by this Court that great significance should be given to general deterrence in sentencing domestic violence offenders.  The Respondent committed his repeated offences against different victims over a period of eight years.  Sixteen of the offences were committed in the period between 1996 and 2003 and seven in 2004.  During this period, he was receiving psychiatric treatment from Dr Davies.  Further, he appeared before the courts for offences of violence and breaching apprehended violence orders in 1991, 1992, 1994, 1997, 2000 and 2002.  He was dealt with leniently on each occasion. 

3. At relevant times in 2004, the Respondent was using cannabis and “ice”.  It seems clear, as Dr Samuels, Dr Westmore and Dr Davies have opined, that the Respondent’s psychosis in this period was induced by or, at least, exacerbated by his use of illegal drugs, in particular, amphetamines. 

4. There is no evidence that, in committing the offences, the Respondent acted without knowledge of what he was doing or the gravity of his actions.  The Respondent did not give evidence in the sentencing proceedings.

5. There were frequent reminders to the Respondent through his court appearances of the requirements of the law concerning offences of violence and a contemporaneous and ongoing opportunity to obtain psychiatric assistance from his treating practitioner.  In these circumstances, the fact that the Respondent engaged in serious and repeated offences of violence against three domestic partners (affected in 2004 by his use of illegal drugs) must, in my view, attract a substantial element by way of general deterrence.  The Respondent is an appropriate vehicle for application of the principle of general deterrence. 

   Imprisonment More Onerous for the Respondent?

6. A third consideration is whether a custodial sentence may weigh more heavily on the Respondent because of his mental condition:  R v Hemsley at paragraph 35. The reports of Drs Samuels, Westmore and Davies do not indicate that imprisonment is weighing more heavily on the Respondent because of his psychiatric difficulties. It is the unanimous view of the doctors that the Respondent’s condition has improved in custody as a result of compliance with his medication regime and forced abstinence from the use of illegal drugs.

   Dangerousness

7. A fourth and countervailing issue is the level of danger which an offender presents to the community and the relevance, in such a case, of specific deterrence.  Even where mental illness exists in a particular case, it does not follow that a different or lesser sentence should be imposed.  In Rigby v R [2006] NSWCCA 205, Kirby J (Studdert J and myself agreeing) said at paragraphs 74-77:

   “It does not follow from a finding that there was mental illness, that a different or lesser sentence should be imposed. Mental illness may diminish the culpability of an offender and may, at the same time, disclose the danger that the offender presents. In Veen v R (No 2) (1988) 164 CLR 465, the High Court said this: (at 476/7)

   The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is the factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.

   It is useful, in this context, to repeat the words of Malcolm CJ in R v Lauritsen (above) where the following was said: (para 48)

   … mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated.

   In R v Engert (1995) 84 A Crim R 67, Gleeson CJ (Allen and Sully JJ agreeing) said this: (at 68)

   Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision.

   The Chief Justice added: (at 71)

   … the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.”

8. In my view, the passages referred to by Kirby J in Rigby are pertinent to this case.  The Respondent has a history of mental illness but the most significant form, for present purposes, is drug-induced psychosis as a result of his use of illicit drugs in 2004.  Since 1995, he has received psychiatric treatment.  Despite the provision of that psychiatric treatment, he has demonstrated a pattern of serious and violent offending against his domestic partners.  At the same time, the Respondent has functioned at other levels in his life (involving his business) in an apparently satisfactory way. 

9. There is a further feature of the case to which reference should be made.  The report of Dr Davies on 23 February 2006 stated that “with a long period of abstinence from illicit drugs and consistent antipsychotic medication, Mr Hamid’s condition has significantly improved and he has gained a degree of insight” (page 8).  In a pre-sentence report dated 24 January 2006, Mr Peter Poole, Probation and Parole Officer, noted that the Respondent said that he “always seemed to pick the wrong women” and that he hoped that he would meet someone one day, settle down and have more children (page 2).  Mr Poole noted the Respondent’s denial of a number of the acts to which he had pleaded guilty.  Mr Poole concluded that the Respondent “tended to minimise his offending behaviour and portray himself somewhat as the victim in these most serious offences” (page 4). 

10. Dr Davies has provided a further report dated 30 August 2006 which was relied upon by the Respondent on the present appeal.  Dr Davies stated (page 7):

    “Mr Hamid was last seen on the 30th of August at which time he was substantially improved.  He appeared physically healthier and had gained some weight.  His level of insight had substantially improved and he said that he was now feeling healthier away from any drug use and that he now recognised that what he had done was wrong.  Mr Hamid said that prior to his offences he had not been taking his medication regularly and that he ‘had not been himself’.  Mr Hamid said that he intended to rebuild his life and to have [sic] seek counselling regarding his relationships.”

11. It appears that the Respondent, in his discussions with the Probation and Parole Officer in January 2006, was minimising his criminal conduct and tending to deflect blame onto the victims.  This was so even though he had been in custody, by that time, for more than 18 months.  In my view, considerable caution must be exercised in assessing Dr Davies’ statement that the Respondent has developed “insight” and that he now recognises that what he did was wrong.  Given the lengthy history of offending, and the Respondent’s attitude, expressed as recently as January 2006, of blaming the victims and minimising his own wrongdoing, a guarded assessment is required with respect to the risk of recidivism upon release.

12. The psychiatric evidence suggests that, when released, there are real concerns about the level of danger which the Respondent will pose to the community and, in particular, to any woman with whom he may form a relationship.

13. In my view, all of this suggests that the psychiatric evidence in this case operates as much against the interests of the Respondent on sentence as in his favour.  I consider that the learned sentencing Judge gave undue weight, in the Respondent’s favour, to the psychiatric evidence.

    Objective Criminality

14. The Respondent’s offences involve multiple offences committed against multiple victims.  Three counts on the indictment and four offences on the Form 1 were committed against Ms Coombs.  Three counts on the indictment and six offences on the Form 1 were committed against Ms Vasconcelos.  Three counts on the indictment and three offences on the Form 1 were committed against Ms Meades. 

15. The Respondent’s violence included the use of weapons, including a knife (Count 5), a meat tenderiser (Count 6), a stick (Count 9), boiling coffee (Offence 1, Form 1), a metal pipe (Offence 3, Form 1), scissors (Offence 6, Form 1), a broom handle (Offence 7, Form 1), a pool cue (Offence 11, Form 1) and a pool ball (Offence 14, Form 1).  The other offences were committed by use of the Respondent’s fists.

16. A number of the offences resulted in injuries to the victims, including fractures (Counts 3 and 6) and a broken tooth (Count 2).  The other offences (excluding Count 4 which was committed to avoid detection of an assault causing injury), caused soft-tissue injuries of varying degrees of seriousness and involved cuts, abrasions, bruising and swelling with resultant discomfort to the victims.  On top of this, of course, was the psychological effect of the acts of violence upon the victims revealed in the victim impact statements of Ms Coombs and Ms Vasconcelos which were before the District Court.

17. Given the seriousness of individual offences and the repetition of serious criminal conduct against each victim, I am satisfied that a number of the individual sentences imposed are manifestly inadequate.

18. In particular, I am satisfied that the sentence imposed on Count 4, the s.86 offence, was manifestly inadequate.  His Honour sentenced the Respondent to imprisonment for two years and nine months for this offence.  The maximum penalty for the offence is imprisonment for 14 years. 

    The Form 1 Offences

19. In fixing this sentence, his Honour was required to take into account 14 offences on the Form 1, comprising one offence of malicious wounding, nine offences of assault occasioning actual bodily harm and four offences of assault.  A number of these offences were of such seriousness that the Respondent may have been fortunate that they were included on a Form 1, and were not prosecuted separately: R v Morgan (1993) 70 A Crim R 368 at 371; Itaoui v R [2006] NSWCCA 273 at paragraph 33.

20. As the matters were included on the Form 1, however, it was necessary for the sentencing Judge to increase the penalty that would otherwise be appropriate for the s.86 offence, giving greater weight to the need for personal deterrence and the community’s entitlement to extract retribution for these serious offences:  Attorney-General’s Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 at 159 [42].

The s.86 Offence

1. With respect to the s.86 offence itself, the gravamen of the offence, for the purpose of sentencing, is the unlawful detaining of a person:  R v Newell [2004] NSWCCA 183 at paragraph 32; R v Falls [2004] NSWCCA 335 at paragraph 42. The s.86 offence was committed in the context of the Respondent’s controlling and violent relationship with Ms Vasconcelos. The fact that the advantage to the Respondent was confined to a form of self-protection does not reduce the seriousness of the crime. An assessment of the objective seriousness of the offence involves an examination of the immediate acts of the Respondent in the context of his violent control of the victim. In my opinion, the head sentence and non-parole period imposed for this offence were manifestly inadequate without having regard to the multiple Form 1 offences to be taken into account. Once regard is had to the Form 1 offences, the sentence imposed for this offence is clearly and manifestly inadequate.

2. The purposes of sentencing will be served in this case by setting aside the sentences imposed in the District Court and imposing sentences which reflect the objective seriousness of the Respondent’s offences.  In my view, the sentences imposed in the District Court do not achieve that result. 

   Accumulation, Concurrence and Totality

3. I accept the Crown submission that the learned sentencing Judge’s approach to accumulation and totality has led to the imposition of manifestly inadequate sentences.  With respect to a number of the offences, there is, in reality, virtually no penalty at all imposed upon the Respondent.  Where there is a series of offences, some committed on one victim, others committed on another victim, there is a special need to ensure that concurrency of sentence does not gloss over that feature:  R v KM [2004] NSWCCA 65 at paragraph 56.

4. In R v Knight (2005) 155 A Crim R 252, the following was said, at 272 [112], concerning questions of accumulation, concurrence and totality:

   “It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM Snr at para 70; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at para 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at paras 36–37.”

5. A paramount principle for the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct.  This principle applies in all cases, including those where punishment is imposed for multiple offences:  R v Weldon (2002) 136 A Crim R 55 at 62 [46]. I am satisfied that the sentences imposed upon the Respondent, in their overall effect, fail to reflect the totality of the Respondent’s criminality.

6. I am satisfied that the sentences imposed upon the Respondent were manifestly inadequate.  The sentences imposed, and in particular the total effective sentence, lay outside the proper range of sentence for offences of the objective criminality that was here involved.

   Discretionary Factors

7. As mentioned earlier, Mr Craigie SC contends that delay on the part of the Crown in bringing the present appeal ought operate, on a discretionary basis, so that the appeal be dismissed.  In my view, there was no relevant delay in this case.  The Respondent was informed within 14 days after imposition of sentence that the Crown was to appeal.  Thereafter, the Notice of Appeal was filed promptly.  The appeal has been heard at a time when the Respondent’s current non-parole period is still some months from expiration. 

8. The Respondent has been in custody since June 2004.  It was not until November 2005 that he entered pleas of guilty to the charges contained in the indictment.  The sentencing proceedings took place, from time to time, between November 2005 and May 2006.  There is no feature of this delay which operates as a discretionary impediment to allowing the Crown appeal and resentencing the Respondent.

9. There is no discretionary basis arising from the decision in Hernando which should lead the Court to refrain from resentencing the Respondent. 

   Resentencing the Respondent

10. In resentencing the Respondent, I bear in mind that the sentence imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing Court and will generally be towards the lower end of the available range of sentence:  R v Wall at paragraph 70.

11. The s.86 offence is an objectively serious crime.  It was committed in the aftermath of a physical assault upon Ms Vasconcelos and for the purpose of the Respondent avoiding detection for that assault.

12. The Form 1 offences in this case, to be taken into account in fixing sentence for the s.86 offence, call for a significant additional level of punishment for the s.86 offence.  The Form 1 offences are not confined to further offences committed against Ms Vasconcelos only.  They include a range of serious offences of violence committed against all three victims over a period of seven years.  In the circumstances of this case, this is a significant factor operating to increase the sentence to be imposed on the Respondent for the s.86 offence. 

13. The objective criminality of the Respondent’s offences was of a high order.  It involved repeated acts of gratuitous cruelty.  An entrenched pattern of criminal conduct is revealed.  The conduct may be characterised, using the words of Wood CJ at CL in R v Edigarov, as brutal, cowardly and inexcusable.  The Respondent’s offences involved the exercise of power and control over his victims, on a recurring basis and involved a violation of trust by someone with whom the victims shared an intimate relationship.  As recently as January 2006, the Respondent was seeking to justify his crimes, blame the victims and minimise his own serious criminal conduct.

14. The Respondent has a prior criminal record containing several convictions for assault and contravention of apprehended domestic violence orders.  He was subject to conditional liberty by operation of several good behaviour bonds at the time of many of his offences.  The Respondent’s record of convictions does not assist him on sentence in this case.

1. The principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which  circumstances do not encompass prior convictions:  R v McNaughton [2006] NSWCCA 242 at paragraphs 24-25. However, the Respondent’s prior convictions are pertinent to an assessment as to where, within the boundary set by the objective circumstances, a sentence should lie by reference to his attitude of disobedience towards the law and increased weight to be given to retribution, personal deterrence and the protection of society: R v McNaughton at paragraph 26.

2. The Crown has not challenged the discount of 20% allowed by the learned sentencing Judge for the Respondent’s pleas of guilty and I will adopt this figure in fixing sentence in this case.

3. The learned sentencing Judge made a finding that the Respondent’s prospects of rehabilitation were good, conditional upon him complying with his medication regime and abstaining from the use of illicit drugs.  Given the Respondent’s history, there are substantial caveats to be placed upon an assessment of his prospects of rehabilitation.  The Respondent has a lengthy history of violence which continued despite appearances before Courts for offences of violence since 1991 and ongoing psychiatric treatment since 1995.  He has minimised his own criminality and blamed his victims as recently as January 2006.  Although Dr Davies reports the development of insight and acknowledgement of wrongdoing by 30 August 2006, this evidence must be viewed cautiously. 

4. In my view, a more guarded assessment is justified with respect to the Respondent’s prospects of rehabilitation than that formed by the learned sentencing Judge.

5. I have had regard to the questions of accumulation, concurrence and totality.  In doing so, of course, I have kept in mind the restraint of the double jeopardy principle applicable to a successful Crown appeal.  The sentences to be imposed are towards the lower end of the available range of sentence:  R v Wall at paragraph 70(e). I have determined that the total effective sentence to be imposed upon the Respondent ought be one of imprisonment of six years with a non-parole period of four years and three months, with both periods to date from 25 June 2004.

6. Given that the Respondent will not be eligible for release on parole until 24 September 2008, I do not propose to confirm the specific additional parole conditions set by the learned sentencing Judge with respect to residence and medical treatment.  It will be a matter for the State Parole Authority to consider any appropriate parole conditions having regard to the Respondent’s circumstances at the relevant time.

7. I propose to confirm the order made under s.562BE Crimes Act 1900 which was directed to operate for a period of 10 years from 5 May 2006.  No submission was made in the District Court or in this Court challenging the duration of this order.

8. I propose the following orders:

   (1)Crown appeal allowed with respect to sentences imposed by his Honour Judge Charteris SC in the Sydney District Court on 5 May 2006.

   (2)Sentences imposed in the District Court quashed and, in lieu thereof, the Respondent is sentenced as follows:

   (a)Count 1 - imprisonment for a fixed term of six months to date from 25 June 2004 and expire on 24 December 2004;

   (b)Count 2 - imprisonment for a fixed term of nine months to date from 25 September 2004 and expire on 24 June 2005;

   (c)Count 3 - imprisonment for 18 months with a non-parole period of 12 months, both periods to commence on 25 December 2004 with the non-parole period expiring on 24 December 2005 and the balance of term expiring on 24 June 2006;

   (d)Count 4 - imprisonment for a term of six years with a non-parole period of three years and nine months, with both periods commencing on 25 December 2004 and the non-parole period expiring on 24 September 2008 with the balance of term to expire on 24 December 2010 (in passing sentence for this offence, 14 offences contained on the Form 1 document have been taken into account);

   (e)Count 5 - imprisonment for a non-parole period of 12 months to date from 25 December 2005 and to expire on 24 December 2006 with a balance of term of six months to commence on 25 December 2006 and to expire on 24 June 2007;

   (f)Count 6 - imprisonment for a non-parole period of 15 months to date from 25 March 2006 and to expire on 24 June 2007 with a balance of term of six months to date from 25 June 2007 and to expire on 24 December 2007;

   (g)Count 7 - imprisonment for a fixed term of six months to date from 25 June 2005 and to expire on 24 December 2005;

   (h)Count 8 - imprisonment for a fixed term of nine months to date from 25 December 2005 and to expire on 24 September 2006;

   (i)Count 9 - imprisonment for a non-parole period of 12 months to date from 25 June 2006 and to expire on 24 June 2007 with a balance of term of six months to commence on 25 June 2007 and to expire on 24 December 2007.

   (3)The orders made by his Honour Judge Charteris SC on 5 May 2006 under s.562BE Crimes Act 1900 are confirmed.

9. For the purposes of s.48(1)(b) Crimes (Sentencing Procedure) Act 1999, I specify 24 September 2008 as the earliest date on which it appears that the Respondent will become eligible to be released on parole.

10. LATHAM J:  I agree with Johnson J.

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LAST UPDATED:               20/09/2006