R v Lakin

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LAKIN
[2014] SASCFC 23
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
20 March 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
The appellant appeals against a sentence of seven and a half years imprisonment, imposed as a single penalty on the appellant’s conviction of offences of aggravated serious criminal trespass, aggravated causing serious harm with intent to cause serious harm and aggravated causing harm with intent to cause harm.
The appellant appeals against the sentence on the ground that it is manifestly excessive and on the further grounds that the Judge - (a) erred in failing to inform himself of the findings made by the Magistrate concerning the incident of 6 September 2009; (b) wrongly described the offending as unprovoked; (c) erred in finding that the appellant’s boxing career had ended as a result of injuries he received in 2007 and should have found instead that the injuries the appellant received on 6 September 2009 also contributed to the termination of his boxing career; (d) erred in failing to take into account the true extent of the appellant’s psychiatric condition.
Held per Kourakis CJ (Peek J agreeing) (allowing the appeal): Grounds of appeal (a), (b) and (c) are rejected. The Judge did not address the actual part played by the appellant’s mental illness in the commission of the offences. If the Judge had done so it would have been expected that his Honour’s finding on that issue would have been recorded in his remarks, given the significant effect those findings could be expected to have on the ultimate sentence. The exercise of the sentencing discretion has miscarried by reason of failure to have regard to the effects of the appellant’s serious mental illness on his conduct. Appeal allowed on the ground that the remarks failed to record the Judge’s finding on the important sentencing consideration; the role played by the appellant’s mental illness in the offending. The head sentence imposed is reduced by one year to six years and six months and the non-parole period reduced to four years.
Held per Gray J (dissenting): The Judge was not in error in describing the defendant’s offending as “unprovoked”. There was no basis for any relevant finding of provocation. The submissions made and the tendered reports justified the Judge’s observation that a beating in 2007 ended the defendant’s boxing career. The Judge did not proceed under a misunderstanding concerning the defendant’s criminal antecedents. There is no basis for suggesting that the Judge failed to give adequate weight to the medical and psychological opinions in assessing the moral culpability of the defendant in arriving at the sentence. The Judge did not overestimate the need for personal and general deterrence. The starting point of nine years was not manifestly excessive. The reduction made on account of contrition and remorse was well within the discretion of the Judge.
Criminal Law Consolidation Act 1935 (SA) s 23, s 24, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 9, s 18A, referred to.
R v Reiner (1974) 8 SASR 102, considered.

R v LAKIN
[2014] SASCFC 23
Court of Criminal Appeal: Kourakis CJ, Gray and Peek JJ

KOURAKIS CJ:          The appellant appeals against a sentence of seven and a half years imprisonment with a non-parole period of five years imposed as a single penalty on the appellant’s conviction of offences of aggravated serious criminal trespass[1], aggravated causing serious harm with intent to cause serious harm[2] and aggravated causing harm with intent to cause harm.[3] The victims of the offence were Mr Dennis Fisher (Mr Fisher) and his son Duncan Fisher (Duncan). All of the offences were committed on 19 February 2012 but were the culmination of a series of events and circumstances stretching back to 6 September 2009.
[1]    Criminal Law Consolidation Act 1935 (SA), s 170(1).
[2]    Criminal Law Consolidation Act 1935 (SA), s 23(1).
[3]    Criminal Law Consolidation Act 1935 (SA), s 24(1).
In September 2009, the appellant and the Fishers resided in the same street in a southern suburb of Adelaide. On 6 September 2009, the appellant chased Duncan down the street because, according to what he later told police, Duncan had thrown a rock at him. An altercation broke out in front of, and in, the Fisher’s residence. In the course of that confrontation the appellant was stabbed in the shoulder, sustaining a significant wound. I will refer to that confrontation as the September 2009 incident.
In October 2009, the appellant was charged, in relation to the above incident, with assaulting Mrs Fisher and Duncan, trespass on the Fisher residence and property damage. The appellant contested the charges and was acquitted in the Port Adelaide Magistrates Court on 28 January 2011. The Magistrate found that he was a witness of truth. Medical evidence before the Magistrate showed that the appellant was stabbed some five times in the left upper arm, right elbow, right upper arm, mid-area of upper-right leg and the right clavicle. On the day of the incident Duncan was also arrested and charged with assaulting the appellant. That charge was later withdrawn in October 2010.
The Judge was aware of the September 2009 incident and that the appellant had been acquitted of the charges brought against him, however the Magistrate’s reasons were not put before him for the purposes of sentencing. Nonetheless, the appellant seeks permission to put the Magistrate’s remarks before this Court on the appeal.
The Offences
After the September 2009 incident the appellant moved out of his home (which was on the same street as the Fishers). However, on 19 February 2012, whilst taking his dog for a walk, the appellant returned to the street in which the Fishers continued to reside. When he came to the Fisher’s residence he walked into the yard. There he first broke the windscreen of a car parked in the driveway before smashing his way through the front door of their home. In the home, the appellant confronted Duncan and told him that he was going to kill him. He broke through a bedroom door with a dog chain to get to Duncan. There the appellant struck Duncan several times with the dog chain before proceeding to strangle him with it whilst punching Duncan to the head. Such was the fury of the attack that Duncan thought he was going to die. The appellant then pursued Mr Fisher and hit him on the head with the dog chain, knocking him unconscious. The appellant kicked Mr Fisher in the back whilst he lay on the floor. The appellant also struck both Duncan and Mr Fisher with a metal fire poker during the attack.
Duncan was admitted to the Flinders Medical Centre for five days. He suffered a fractured left frontal bone, fractured eye socket and various bruises and lacerations to the head and neck. Mr Fisher suffered lacerations to his face and scalp, and bruising to his face and arms.
The Appeal Grounds
The appellant appeals against the sentence on the ground that it is manifestly excessive and on the further grounds that the Judge:
(a)Erred in failing to inform himself of the findings made by the Magistrate concerning the incident of 6 September 2009.
(b)Wrongly described the offending as unprovoked.
(c)Erred in finding that the appellant’s boxing career had ended as a result of injuries he received in 2007 and should have found instead that the injuries the appellant received on 6 September 2009 also contributed to the termination of his boxing career.
(d)Erred in failing to take into account the true extent of the appellant’s psychiatric condition.
For the reasons which follow, I would reject grounds (a), (b) and (c) but allow the appeal on ground (d).
Use of the Magistrate’s Findings
In the course of sentencing submissions the Judge invited submissions from the appellant’s counsel, who was not counsel who appeared in this Court, on how the September 2009 incident should be addressed. The Judge then summarised what he understood to be common ground as follows:
It is common ground that you’re not asking me to make any findings, I will describe it, as to who to fault in the incident in 2009. It is common ground that there was in fact an incident in which both parties suffered some injuries.
I think, to, and Mr Norman can correct me if I am wrong, it is common ground that in your client’s mind that incident was linked to the offending in 2012. That is, it was a cause and I think again that it is common ground that in your client’s mind he was not at fault in respect to the 2009 incident. In fact I recall Mr Norman making reference to revenge for that incident.
So it seems to me that that is all common ground and there aren’t any factual disputes that I am called upon to resolve in relation to it.
Neither counsel for the appellant nor counsel for the Director of Public Prosecutions dissented from that summary. Counsel for the appellant on this appeal did not contend that that statement by the Judge did not accurately reflect the position which the appellant had taken before the Judge.
It was open to the appellant to contend before the Judge that Duncan was the aggressor in the September 2009 incident and that, in accordance with the findings of the Magistrate, he was not culpable in any way for it. If the appellant had so contended a nice question would have arisen as to whether the Judge was entitled to, in effect, adopt the Magistrate’s reasons without more evidence. I doubt that it would have been proper to do so. If the events of September 2009 had been put in issue the proper course would probably have been to hear evidence from the appellant, Duncan and Mrs Fisher on a contested facts hearing. There may have been good reason for the appellant eschewing that course at trial. In the absence of any evidence of the course of advice and instructions on that issue, it is not open to find that the failure to contend that the appellant should be sentenced on the basis that he was the innocent victim of the September 2009 incident has resulted in a miscarriage of justice. For those reasons I would not receive the reasons of the Magistrate on this appeal.
It follows from the course in which the appellant acquiesced before the Judge that it was not possible for the Judge, and that it is not possible for this Court, to attribute fault for the September 2009 incident. In the absence of finding that Duncan was the aggressor in the September 2009 incident, it is also not possible to find that the appellant’s offending was provoked. Both appeal grounds (a) and (b) must fail.
What ended the appellant’s boxing career?
Mr Lakin left secondary school in year ten when he was aged 16. He then worked, in succession, as a process worker, yard hand, roustabout and an agricultural labourer until he was aged 19. At the age of 19, Mr Lakin commenced his career as an amateur boxer. He won two South Australian State titles, a Golden Glove title in Western Australia and another title in the Australian Capital Territory. In 2005, when aged 27 he was awarded “Boxer of the Year” and in 2006 was nominated for “Sportsperson of the Year”. In that same year he won the Light Heavyweight Championship of Australia. He won gold medals in the Australian titles in 2006 and 2007.
In 2007, the appellant was arrested in Western Australia for urinating in public. The appellant claimed that he was severely beaten by the police who arrested him. Mr Lakin told the psychologist Mr Balfour that as a result of the police assault he lost his ambition to continue with his boxing career. However, in the same interview he told Mr Balfour that he was unable to pursue his goal to become a professional fighter, and to challenge for a world title, because of the stabbing in the September 2009 incident. The appellant told the probation officer who prepared the pre-sentence report provided to the Judge that his last boxing bout was in 2007.
In sentencing submissions, the appellant’s then counsel told the Judge that the shoulder injuries sustained in the September 2009 incident prevented him from boxing at a competitive level as a boxer. The Judge asked the appellant’s counsel to explain the conflicting statements, in the reports to which I have referred, about the events which brought an end to his boxing career. The appellant’s counsel responded that between 2007 and 2009 the appellant was considering moving from amateur boxing to professional boxing and that he ultimately did not take up professional boxing because of his shoulder injury. The transcript records this exchange:
Counsel:So he fought in amateur ranks and obviously was competing in the Commonwealth games – I think that was necessary. But at the time he was transferring to the more competitive more combative professional area and intending to make his future living as a professional boxer.
HIS HONOUR: I understand
Counsel: It’s a little confusing but I think that is the answer.
Following that exchange, the position put by the appellant was reasonably clear. The submission was that even though the appellant lost interest in amateur boxing after 2007 he was entertaining the idea of taking up boxing professionally, but that the shoulder injury sustained in the September 2009 incident precluded him from doing so.
The Judge dealt with the topic of the appellant’s boxing career in his sentencing remarks as follows:
After leaving school you worked in manufacturing and in various roles on farms and as a bricklayer for several years. You qualified to become a commercial diver. You became proficient at amateur boxing, winning gold in the Australian titles in 2006 and 2007. However, you suffered a beating in 2007 which ended your boxing career. You were stabbed by a knife in 2009 during the previous incident at the Fisher residence.
If the Judge had intended to find that the beating in 2007 ended both the appellant’s amateur career and his professional boxing prospects then in my respectful opinion the Judge ought to have informed the appellant’s counsel that he was not inclined to accept his submissions on the issue. However, I think that it is more likely that the Judge was merely giving an abridged account of the course of the appellant’s boxing career. In any event, given the common position before the Judge that he should sentence the appellant without making findings on who was at fault for the September 2009 incident, this issue was of marginal, if any, significance.
This ground too must be rejected.
The psychiatric condition
The Judge had the benefit of detailed psychiatric and psychological reports which dealt comprehensively with the appellant’s mental state.
In a report dated 2 March 2012, prepared for a bail application, the psychiatrist Dr Raeside diagnosed Mr Lakin as suffering a post-traumatic stress disorder consequent upon his stabbing in the September 2009 incident. He also found that the appellant suffered from an ongoing depressed mood. In a subsequent report provided in 2013, Dr Raeside expressed the opinion that the appellant was not thought disordered and was not responding to hallucinations when he was arrested by police shortly after the incident. In preparing that report Dr Raeside had viewed a videotape of the arrest of Mr Lakin and also had the benefit of reading the witness statements of the incident prepared by police.
Dr Raeside continued to see the appellant during the period of his remand, in which time the appellant was treated with anti-depressant medication. Dr Raeside reported that the appellant’s mental state improved over time and that the intensity of his post-traumatic stress symptoms had reduced.
Dr Raeside expressed the opinion that there was evidence that the appellant harboured paranoid views about the Fisher family and the detective who had been in charge of the investigation of the September 2009 incident. Dr Raeside’s opinion was that that paranoia was an element of the appellant’s post-traumatic stress disorder, and not a manifestation of a delusional belief system springing from an underlying psychotic disorder. Dr Raeside did not accept that there was any underlying delusional ideation which had impaired the appellant’s knowledge of the wrongfulness of his behaviour. Even though Dr Raeside found that the appellant was mentally competent to commit the offences, it was his opinion that there were “significant psychiatric factors and concurrent mental illness that contributed to his thinking and behaviour at the time”. In Dr Raeside’s opinion, Mr Lakin experienced “a surge of unresolved post-traumatic stress symptoms, aggravating his underlying anger, and resulting in his aggressive behaviour towards those whom he considered had previously harmed him” immediately before committing the offences.
Another psychiatrist, Dr Nambiar, reported that the appellant was not competent to commit the offences because he was suffering from a delusional disorder:
Based on my opinion that your client has a paranoid delusional disorder which appears to go back in time over a number of years in a more general sense and appears to have evolved and incorporates the events of 2009. Whilst repeatedly ruminating over and re-experiencing the 2009 event and perceiving more in his local environment, reinforced by the medial of the perceived injustice, your client has developed a chronic and intense anger and has been pursuing justice with little success. As a result, it would appear that in the context of a number of other stressors, including relationship tensions, the loss of a child, unemployment and alcohol intoxication (the accumulative straw that broke the camel’s back) that he then impulsively acted on his delusions in a violent manner in the form of a home invasion and violence towards the Fishers. There appears to be a delusional motive with impulsive action and disinhibition due to alcohol. Once again, if the objective elements of the charges are proven to be true, then it is my opinion that your client has a mental impairment defence available to him.
Plainly enough, the ultimate conclusion of Dr Nambiar on the appellant’s competence must be rejected as being inconsistent with the appellant’s pleas of guilty. However, it was, as we shall see, common ground before the Judge that the appellant was at the time of the offences suffering from an obsessional paranoia and anger stemming from the 2009 incident.
The report of another psychiatrist, Dr O’Brien, was also received by the Judge. Dr O’Brien described the appellant as “a somewhat emotional man with a deep sense of grievance and injustice … directed towards the Fisher family, elements of the police and the criminal justice system”. Dr O’Brien observed that the appellant held a variety of conspiratorial like beliefs involving those persons. Dr O’Brien diagnosed the appellant as suffering from “unremitting and severe Post Traumatic Stress Disorder” which “at least since 2009, would satisfy the clinical criteria for a Severe Anxiety State with Panic Disorder”.
Dr O’Brien expressed the opinion that the 2009 incident was not only the cause of the appellant’s post-traumatic stress disorder but “also inculcated in him a variety of, what I would term to be, ‘overvalued ideas’”. Dr O’Brien reported that thereafter the appellant became “somewhat paranoid” but not delusional in a psychotic sense. Nonetheless, Dr O’Brien’s opinion was that the appellant’s “abnormal beliefs … caused him great distress”. Dr O’Brien was inclined to support Mr Lakin’s statements that his actions were not premeditated and opined that when he found himself on foot outside the Fisher home:
Vivid memories of the 2009 incident flooded back into consciousness and, it would seem to me, hyperaroused him. He was also in a state of alcohol disinhibition.

Dr O’Brien’s opinion was that at the time of the offending “Mr Lakin was in an abnormal behavioural and mental state” and that “he had an acute exacerbation of his PTSD [post-traumatic stress disorder] superimposed on what had already been for several years chronic PTSD”.
Finally the psychologist Mr Balfour reported that the prospects that Mr Lakin would stop offending were fair because:
·the offences resulted from a unique constellation of situational psycho-social stressors and alcoholism;
·he suffered from PTSD and depression but now had insight into his psychiatric condition;
·he is now remorseful;
·his psycho-social problems would respond to strict community supervision;
·he has strong personal resources such as a strong work ethic; and
·he does not have other co-morbid psychopathology.
In the course of sentencing submissions the Judge asked whether the defence contended that Mr Lakin should be sentenced on the basis that he was suffering from a delusional disorder. Mr Lakin’s counsel accepted that the evidence did not support that finding. The Judge then asked:
Given the disagreement between the psychiatrists, I am not in a position, unless I heard evidence, to make a finding. What I was proposing to do is proceed with the basis of the common ground; that is, that your client was suffering from post-traumatic stress disorder but not make a finding that he was suffering from a delusional disorder. As I say, I don’t think I could do that unless it is agreed but I don’t think Mr Norman is conceding that. So if it is contested I think I would have to have a contested facts hearing, wouldn’t I?
Mr Lakin’s counsel responded:
I think Dr Raeside’s views went more to the strength of the delusional disorder rather than the fact there was delusion, but he certainly found that there was considerable anger towards the Fisher family who he saw as responsible for his wounds.
So it was either entirely correct or he was suffering delusion: it is a matter of, I suppose, some differing views. But there was that underlying issue and if it doesn’t go as far, and clearly doesn’t because the preponderance of psychiatric reports don’t support Dr Nambiar, then I don’t rely on it going that far.
The Judge recorded in his sentencing remarks that he had been assisted by the reports of all three psychiatrists and Mr Balfour. The Judge’s treatment of the appellant’s psychiatric condition appears in the following paragraph:
Since November 2010 you have been in a de facto relationship with your current partner. The psychiatrists and psychologist all diagnosed you as suffering from post-traumatic stress disorder with associated depression resulting from the incident in 2009. Dr Balfour expressed the opinion that it is desirable that you undertake a supervised, structured rehabilitation program, including referral to community corrections for services in relation to developing cognitive skills, drug and alcohol rehabilitation, anger management programs, cognitive behavioural therapy from a psychologist, weekly contact with a case manager and referral to a psychiatrist. He expressed the opinion that, with the assistance of such a comprehensive rehabilitation program, your prognosis to cease offending is fair.
As can be seen, that paragraph is directed to the prognosis of the appellant’s post-traumatic stress disorder.
The Judge did not make any findings as to the extent, if any, to which the appellant’s post-traumatic stress disorder contributed to his decision to enter the Fisher home and commit the offences for which he was to be sentenced. Earlier in his remarks, when referring to the unresolved dispute about who might have been the aggressor in the September 2009 incident, the Judge recorded that the appellant believed that Duncan was the aggressor. However, the Judge made no finding as to whether that belief was, as Dr Raeside had opined, an element of the appellant’s post-traumatic stress disorder, or whether the belief had developed into an “overvalued idea” or paranoia as suggested by Dr O’Brien. Nor did the Judge make any finding on whether the appellant’s “significant psychiatric factors and concurrent mental illness” had “contributed to his thinking and behaviour at the time”, to borrow from Dr Raeside’s report, or whether the appellant was distressed by his “abnormal beliefs” of “hyper-arousal” when he offended, as reported by Dr O’Brien.
As I have already observed, it could not be contended that Mr Lakin suffered from a delusional disorder which rendered him incompetent to commit the offences. At the level of sentencing, however, very different questions arose. I take the response from counsel for the appellant to the Judge’s question to concede only that the appellant was not suffering from a psychotic delusion at the time of the offending. Counsel for the appellant did not concede that the appellant’s post-traumatic stress disorder did not play a part in the offending. It would have been a very surprising concession to make when the psychiatric evidence was all one way on that question.
A finding as to the part played by the appellant’s psychiatric condition in the offending was critical in this case. If the explanation for the appellant’s conduct was that it was a coldly calculated reprisal for the injury caused to him in the September 2009 incident, the nature of the offences, the ferocity of the appellant’s attack, and the injuries he caused, all called for a severe sentence. On the other hand, if the appellant’s offending was the product of a mind which, although not so impaired as to render the appellant incompetent to commit the offence, was burdened by a serious mental illness, a more balanced sentencing approach was open. That is particularly so, if the appellant’s capacity to think rationally and exercise restraint were seriously compromised by the obsessional and paranoid features of his post-traumatic stress disorder. If the appellant was suffering the conditions described by the psychiatrists, his moral culpability for the offending would be much reduced. Moreover, if Mr Balfour’s opinion that his mental illness was amenable to treatment were accepted, there was greater scope for rehabilitation.
The absence of a finding by the Judge, one way or another, on the part played by the appellant’s mental illness, makes appellate review of the sentence radically uncertain. If the sentence was fixed on the premise that the appellant’s mental illness played no part in his offending, it could not be impugned. However, if the Judge had accepted that the appellant’s conduct was much influenced by his mental illness, the sentence is a severe one. I acknowledge that the requirement of s 9 of the Criminal Law (Sentencing) Act 1988 (SA) that a judge give reasons for sentence must be read in the context of the history, nature and purpose of sentencing remarks.[4] Nonetheless, sentencing remarks which do not include a finding one way or another on an issue which is capable of substantially affecting the sentencing balance fail to state the reasons for fixing the sentence imposed.
[4] R v Reiner (1974) 8 SASR 102, 114.
Even though the Judge was plainly alive as to the contents of the psychiatric reports, I am also persuaded that the Judge did not address the actual part played by the appellant’s mental illness in the commission of the offences. If he had done so, I would have expected his Honour’s findings on that issue to have been recorded in his remarks, given the substantial affect those findings could be expected to have on the ultimate sentence. In my view, the issue was one which had to be addressed because of the substantial body of psychiatric evidence supporting the appellant’s claim to leniency based on his mental state and the capacity of a finding about his mental state to influence the sentencing balance.
I would hold that the exercise of the sentencing discretion has miscarried by reason of the failure to have regard to the effects of the appellant’s serious mental illness on his conduct. I would also allow the appeal on the ground that the remarks failed to record the Judge’s finding on that important sentencing consideration.
Resentencing
In resentencing the appellant, I would find that since, and as a result of, the 2009 incident, and other endogenous traits and conditions, the appellant harboured and was mentally distressed by a growing obsession and paranoia centred on the Fishers.
The circumstances of this case reveal a tragedy of terrible proportions. A chance conflict between neighbours has had devastating consequences for all involved. Nobody could have foreseen the horrific toll which the appellant’s offending would take on Mr Fisher and therefore, as the prosecutor accepts, he is not to be sentenced for it.[5] However, it is a burden of his offending which Duncan and his mother will forever bear. As for the appellant, the injuries carried from the September 2009 and the inevitable term of imprisonment he must serve will deny the appellant much of the productive life he might have had.
[5] Mr Fisher committed suicide on 12 April 2013.
The objective conduct and its consequences undoubtedly call for a high head sentence. Nonetheless, I would reduce the head sentence imposed by the Judge by one year to six years and six months to reflect the role played by the appellant’s mental illness in the offending. There is room for leniency in fixing the appellant’s non-parole period because of Mr Balfour’s opinion, which I accept, that the appellant has good prospects of recovery from his post-traumatic stress disorder. I would reduce the non-parole period to four years. It is of course difficult to predict the extent to which the appellant’s condition will have improved when the non-parole period expires. At that time the Parole Board will be in a better position to prognosticate about the appellant’s prospects of rehabilitation than this Court is, and can exercise its discretion having regard to the appellant’s progress in prison. There is good reason in this case to fix a non-parole period which allows the Parole Board to exercise that discretion earlier than would otherwise have been the case if the appellant’s treatable mental illness was not as significant a feature of his offences as I have found it to be.
GRAY J.
This is an appeal against sentence.
The defendant and appellant, Samuel Wylie Lakin, was convicted on his pleas of guilty of the offences of aggravated serious criminal trespass in a place of residence, aggravated causing serious harm with intent to cause harm and aggravated causing harm with intent to cause harm. The defendant faced maximum terms of imprisonment in respect of the three offences of life, 25 years and 13 years, respectively.
The sentencing Judge considered it appropriate to utilise section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and to impose the one sentence for the three offences. The Judge’s starting point was nine years’ imprisonment which was reduced to seven years and six months, having regard to the defendant’s pleas of guilty, contrition and remorse. The Judge fixed a non-parole period of five years. The sentence was ordered to commence on 19 February 2012, being the date when the defendant was taken into custody.
On the appeal, it was complained, inter alia, that the sentence was manifestly excessive. It was said that the Judge had proceeded under misapprehensions of fact. It was complained that the Judge had failed to give adequate weight to circumstances surrounding the offending, to the defendant’s psychiatric conditions and to his remorse, contrition and prospects for rehabilitation. Finally, it was said that the starting point of nine years’ imprisonment was too high for the defendant’s offending.
Background
On the afternoon of 19 February 2012, the defendant entered the property at which the Fisher family resided and smashed his way through a door leading into the house. At the time, the defendant had a blood alcohol reading of 0.127 per cent. Once in the house, he informed Mr Fisher junior that he intended to kill him. He broke through a bedroom door, using a dog lead and choker chain. The defendant struck Mr Fisher junior several times with the choker chain and then, with the chain around Mr Fisher junior’s neck, started to strangle him. Mr Fisher junior thought he was going to die. Mr Fisher junior was able to release and remove the choker chain from his neck. The defendant then pursued Mr Fisher senior, hitting him in the head with the choker chain, rendering him unconscious. The defendant kicked Mr Fisher senior. The defendant turned his attention again to Mr Fisher junior, striking him about the head with the choker chain, as well as punching him to the head. The defendant was arrested in the street outside the home.
Mr Fisher junior suffered severe injuries as a result of the attack. He was admitted to the Flinders Medical Centre and remained an inpatient for five days. He suffered fractures to the left frontal bone and eye socket, and bruising and lacerations to his head and neck. Since the attack, Mr Fisher junior has suffered migraine headaches, depression, light headedness and lethargy. Mr Fisher senior, as a result of the attack, sustained lacerations to his face and scalp, and bruising to his face and arm.
There had been a history between the defendant and the Fishers. In September 2009, an altercation occurred at the same Fisher residence between Mr Fisher junior, his mother and the defendant. There was a dispute about responsibility for this altercation. Before the Judge, the parties agreed that the Judge was in no position to resolve this dispute. It was also common ground that as a result of the altercation, the defendant suffered wounding to his shoulder from a knife and further, that the defendant believed that Mr Fisher junior was the aggressor and had acted wrongfully.
This Court was informed that the defendant had been charged with offences arising out of the 2009 incident and that a trial proceeded in the Magistrates Court. On 28 January 2011, the Magistrate dismissed the charges and published extensive reasons. Those reasons were placed before this Court. The Magistrate concluded that Mr Fisher junior and his mother were unreliable witnesses. The Magistrate considered the defendant to be a credible and reliable witness and, as a consequence, accepted his account of what had occurred. It is unclear whether the Judge was aware of the order of the Magistrate and her reasons. However, what is apparent is that counsel for the defendant and the Director of Public Prosecutions agreed that the Judge should proceed in the manner earlier outlined. Notwithstanding these concessions, in my view it is appropriate for this Court to have regard to the Magistrates Court proceedings and their resolution as they are matters of public record and enable an understanding of the defendant’s conduct the subject of the present proceeding.
The defendant has criminal antecedents. In 1997, he was convicted of the offences of resist police and assault police. A fine was imposed. In 1998, the defendant was sentenced to a five month suspended term of imprisonment for the offence of assault occasioning actual bodily harm. The suspended sentence bond was for a period of two years. In July 2007, he was convicted of the offences of trespass and resist police, and released on a 12 month good behaviour bond. In November 2007, he was convicted of the offence of resist police and released on a two year good behaviour bond. His record also discloses offences of fighting, disorderly behaviour and damage property. As a consequence of these matters, the defendant was not entitled to the leniency that could be expected to be extended to a first offender.
The defendant, at the time of sentencing, was aged 35 years. He grew up not knowing his father. His mother was an alcoholic who had a series of relationships with men addicted to alcohol, a number of whom were violent both to the defendant and his mother. After leaving school, the defendant worked on farms, in the manufacturing sector and as a brick layer from time to time. He obtained a qualification as a commercial diver. The defendant was a proficient amateur boxer, winning gold medals in the Australian titles in 2006 and 2007. It appears that the end of his boxing career can be traced to a beating he received in 2007. In November 2010, he entered into a de facto relationship that was continuing at the time of sentencing.
Three psychiatric reports and one forensic psychological report were tendered before the Judge. Each report addressed the effects of alcohol and the defendant’s post traumatic stress disorder upon the offending.
Generally, the authors agreed that the defendant, as a result of the incident in 2009, suffered from a post traumatic stress disorder with associated depression. The forensic psychologist opined that it was desirable for the defendant to undertake a supervised, structured rehabilitation program, including a referral to programs designed to develop his cognitive skills. It was said that his rehabilitation would be assisted by attending courses in respect of drug and alcohol rehabilitation and anger management. It was suggested that he would benefit from cognitive behavioural therapy from a psychologist. In the psychologist’s opinion, if the defendant undertook the above treatment and programs, his prognosis to cease offending was fair.
It is apparent that the defendant carried a deep sense of grievance arising from the 2009 incident. Notwithstanding his public vindication by the ruling of the Magistrate, it appears that he remained disturbed by what had occurred. He was affronted that he had been the subject of charges regarding that incident and that charges against Mr Fisher junior had been withdrawn. It appears that he harboured a desire for retribution. On the day of his offending, he had left his home walking his dog with a dog lead and choker chain. His walk, extending over some distance, took him to the Fisher home, the same location as the 2009 incident. He entered the Fisher home by breaking through a door at a time when he was carrying the dog lead and choker chain. To my mind, it is beyond doubt that he was seeking retribution and revenge for the wrong that he perceived to have been done to him in 2009.
Dr Raeside concluded that there was no indication that the defendant would have been unable to control his conduct at the time of the offending, although the severity of his post traumatic stress disorder may have diminished his control to some extent. Dr Raeside further concluded that, objectively, the video of the defendant’s arrest did not provide evidence of marked intoxication, that the defendant’s reported memory of events was inconsistent with marked intoxication, but that the toxicology sample suggested at least a moderate intoxication, which, he opines, would presumably have been higher at the time of the offending.
Dr Nambiar concluded that the defendant had a paranoid delusional disorder which incorporated the events of 2009, that the defendant had a delusional motive and that the defendant was disinhibited due to alcohol at the time of the offending.
Dr O’Brien concluded that the defendant was in a state of alcoholic disinhibition at the time of the offending and that although he was suffering from post traumatic stress disorder, the defendant was aware that his conduct was wrong and contrary to the law. Dr O’Brien further concluded that the defendant had not lost complete capacity to control his conduct which was partly influenced by his state of intoxication.
Mr Balfour, the forensic psychologist, concluded that the defendant has anger management problems, that at the time of the offences the defendant was intoxicated with alcohol, and that the defendant would have been able to sufficiently appreciate the nature and quality of his actions and their wrongfulness.

It was accepted on behalf of the defendant during submissions that, in the circumstances, the Judge could not sentence on the basis that the defendant was suffering from a delusional disorder.
The Appeal
In the course of his sentencing remarks, the Judge described the invasion of the Fisher family home and the attack on the Fisher family as “extremely serious, unprovoked and terrifying”. On the appeal, it was contended that to describe the offending as “unprovoked” was an error.
An immediate difficulty confronting this submission is that counsel for the defendant, during the course of sentencing submissions, put to the Judge that the offending was “inexplicable and unjustified and unexplainable, except through [the defendant’s] troubled mental state at the time”. At times when providing a history to the psychiatrist and psychologist, the defendant spoke of what he claimed to be a difficult relationship between himself and the Fishers. The defendant, in the course of providing this history, made bizarre complaints, including conspiracy theories.
I do not consider that the Judge was in error in describing the defendant’s offending as “unprovoked”. The fact that the defendant was seeking to effect revenge and retribution over a grievance from four years earlier does not provide a basis for any relevant finding of provocation.
In the course of his sentencing remarks, the Judge observed that the defendant “suffered a beating in 2007 which ended [his] boxing career”. It was claimed by the defendant on appeal that the defendant’s boxing career came to an end as a result of the 2009 incident.
Again, this contention faces a number of difficulties. In the course of submissions, the defendant’s counsel stated, “the beating Mr Balfour refers to that he received at the hands of police in WA, I think, that seems to have brought the start of the end of a promising boxing career”. Further, during the course of submissions, the Judge clarified with defence counsel that the defendant had not boxed since the incident with police in 2007 and that that incident had affected his boxing career. In the report of Dr Raeside, tendered by the defendant, the following history was recorded: “However, he was involved in an altercation with police and said he was bashed in custody and subsequently lost his interest in fighting. He began drinking a bit more regularly, usually every couple of days.” In the report of Mr Balfour, it is recorded that the defendant “said this violent police assault resulted in him losing his ambition to continue with his boxing career”.
In my view, the submissions made and the tendered reports justified the Judge’s observation that the beating in 2007 ended the defendant’s boxing career. On the defendant’s own case, he had not boxed since that incident.
It was further submitted that the Judge erred in sentencing without a full appreciation of the incident in 2009. As earlier discussed, both parties invited the Judge to proceed on this basis. It is relevant that the Judge accepted that the defendant believed that he had been wronged and proceeded to sentence on the basis that this was a genuine belief. To my mind, it is a matter of considerable concern that, notwithstanding the Magistrate’s public vindication of the defendant, he continued to seek revenge and retribution outside the law.
During the course of oral submissions, it was pointed out that the Judge proceeded under a misunderstanding concerning the defendant’s criminal antecedents. The Judge remarked that the defendant breached good behaviour bonds that he had entered into in respect of the charges of resisting police. That was an incorrect reading of the criminal antecedent report. There were charges for breach of bail that led to orders for estreatment. These orders were later reconsidered and apparently revoked. The Judge referred to the criminal antecedents of the defendant. This was relevant to the extension of possible leniency. The important matters were that the defendant had a history of violent offending and of lack of cooperation with the police. I do not consider this complaint to raise a matter of materiality.
As earlier noted, it was said that the Judge had failed to give adequate weight to the medical and psychological opinions and, in particular, the relevance of those opinions to an assessment of the moral culpability of the defendant. A review of the Judge’s sentencing remarks demonstrates that the Judge paid careful attention to those reports, noting in particular that he had been assisted by those reports and that he paid particular attention to the diagnosis that they all made that the defendant suffered from post traumatic stress disorder with associated depression as a result of the 2009 incident. The Judge also, in his remarks, addressed the proposed rehabilitative treatment program and noted that, with the assistance of such a program, the defendant’s prognosis to cease offending was fair. I do not consider that there is any basis for suggesting that the Judge failed to adequately weigh this material in arriving at the sentence that was imposed.
Defence counsel asserted on the appeal that the Judge had given too much weight to both general and personal deterrence. The defendant’s offending was very serious. The community is entitled to feel safe in their homes and not to fear a home invasion involving their front door being smashed in and their being assaulted and seriously injured. Those with thoughts of effecting personal revenge and retribution need to be deterred. Punishment for offending of this nature requires close attention to the need for deterrence. It may be accepted that the defendant’s post traumatic stress disorder and depression arising from the 2009 incident may have lessened his moral culpability, but, to my mind, general deterrence remained a serious and important consideration. I also consider that personal deterrence required close consideration. The defendant is a strong man with a history of violence. This offending demonstrates how dangerous the defendant can be. The combination of his alcoholism, his mental instability and his preparedness to act outside the law to effect retribution calls for a sentence that will personally deter him from further offending. I do not consider that the Judge, in any way, overestimated the need for deterrence.
It was suggested that the notional starting point of nine years was manifestly excessive. Attention was drawn to decisions of the Court when defendants have sought to take the law into their own hands to effect punishment. However, those cases are of little assistance because of the particular factual circumstances.
The defendant was to be sentenced for three serious offences. He caused grave injuries to Mr Fisher junior and serious injuries to Mr Fisher senior. He invaded their home, armed with a dog lead and choker chain, partly constructed of metal, which he used as a weapon. He placed the dog lead and choker chain around the throat of Mr Fisher junior, telling him he was going to kill him and proceeding to engage in an act of strangulation. I do not consider the starting point of nine years to be manifestly excessive.
Finally, it was suggested that the Judge made an inadequate reduction on account of contrition and remorse, and the defendant’s plea. As earlier noted, the Judge made a reduction of one and a half years on account of these matters. The defendant’s plea was not an early plea and the prosecution case could be fairly described as overwhelming. In these circumstances, the reduction was well within the discretion of the Judge.
Conclusion
For these reasons I would dismiss the appeal.
PEEK J: I agree with the Chief Justice that the appeal should be allowed on ground (d) of appeal and I agree with his Honour’s proposed orders. I make no comment as to the other grounds of appeal.

[2014] SASCFC 23

20 March 2014

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Sentencing

Charge