R v Williams

[2005] NSWCCA 14

CITATION:	Regina v Williams [2005] NSWCCA 14
HEARING DATE(S):	18/11/2004
JUDGMENT DATE:	9 February 2005
JUDGMENT OF:	Sully J at 1; Hidden J at 2; Howie J at 3
DECISION:	Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS:	Criminal Law - Sentencing - Judge found that the offender was not suffering mental illness despite psychiatric report - whether finding open - whether sentence excessive in any event - Despite error no lesser sentence warranted.
LEGISLATION CITED:	Crimes Act 1900 - s 35 Criminal Appeal Act 1912 - s 6(3)
PARTIES:	Regina v Luke Sheridan Williams
FILE NUMBER(S):	CCA 2004/2250
COUNSEL:	B. Knox SC - Crown P. Winch - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/51/0197; 02/51/0144
LOWER COURT JUDICIAL OFFICER:	Phelan DCJ

2004/2250 CCAP

SULLY J
HIDDEN J
HOWIE J

WEDNESDAY 9 FEBRUARY 2005

REGINA v LUKE SHERIDAN WILLIAMS

Judgment

1 SULLY J: I agree with Howie J.

2 HIDDEN J: I agree with Howie J.

3 HOWIE J: This an application for leave to appeal against a sentence imposed in the District Court by Judge Phelan (the Judge) for an offence of maliciously inflict grievous bodily harm contrary to s 35 of the Crimes Act. This is an offence for which a maximum penalty of 7 years imprisonment is prescribed. The applicant pleaded guilty to that charge when arraigned on an indictment for an offence of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harm and the Crown accepted the plea to the lesser offence in full satisfaction of the indictment. The Judge sentenced the applicant to an overall sentence of 3 years imprisonment made up of a non-parole period of 18 months imprisonment with a balance of the sentence of 18 months.

4 There were two grounds of appeal filed as follows:

1. His Honour erred in his assessment of the evidence relating to the applicant’s mental and psychiatric condition at the time of the offence.

2. His Honour erred in his assessment of the culpability of the applicant.

The two grounds are associated and Mr Winch, who appeared for the applicant before this Court, dealt with them as one complaint. In effect the argument is that, because his Honour disregarded the opinion of the psychiatrist as to the applicant’s mental state at the time of the commission of the offence, his Honour imposed a sentence that was too harsh to reflect the applicant’s culpability.

5 The offence occurred on 26 January 2002 when the applicant was at Kalang with members of his family for the purposes of attending a wedding. The applicant confronted his stepfather in relation to an allegation that he had sexually assaulted the applicant’s sister when she was 9 years of age. His sister had apparently told the applicant of these allegations about a week earlier. During the course of the confrontation the applicant was at one time armed with a mattock and at another time with an axe. Members of the family intervened and disarmed the applicant but he punched and kicked the victim. The victim attempted to flee from the applicant, but he pursued him arming himself with piece of dead branch. The applicant struck the victim to the back of the head twice with this weapon at a time when the victim had his back to the applicant.

6 The victim suffered very serious injuries including a skull fracture with bleeding and swelling to the brain. He was hospitalised for the period from 27 January to 18 February 2002 and underwent surgery for the reconstruction of his skull including the insertion of metal plates. There was no evidence before the sentencing judge of the permanent effect of those injuries upon the victim.

7 The applicant was aged 32 at the date of sentencing. He has no prior criminal record. There was a brief Pre-Sentence Report in evidence. It contained the following statement:

[The applicant] states that he is sorry for his actions and accepts that he handled this situation badly.

The applicant had been studying Naturopathy at university at the time of the offence and was said to have “unconfirmed plans to also pursue further tertiary education if released”. He had no fixed place of abode at the time and was receiving financial benefits as a student. The applicant was found to be unsuitable for either periodic detention or community service.

8 There were two reports before the Judge from a psychiatrist, Dr Petroff, who had examined the applicant on two occasions following the commission of the offence. The first report was dated 27 August 2001. It contains an account of the facts and circumstances leading up to the offence including the following:

[The applicant] told me that on the day before the wedding he was swimming in a pool of water and that the water spoke to him and told him that somebody had already been (sic) and had already swum in that water. This was then followed by a dog on the property talking to him and telling him that someone was a ‘mongrel’. He knew that the dog was referring to his stepfather.

9 After recounting a version of the assault upon the stepfather that the psychiatrist had apparently obtained from some source other than the applicant, the report continues:

When I asked [the applicant] his account of the offence he gave a disjointed story, made no mention of the axe and stated something to the effect that if he had known that his stepfather had fragile bones he would not have hit him so hard. When asked about the axe he stated that he poked the (sic) stepfather in the chest with the handle of the axe. He had a bizarre smile on his face as he said so.

The patient told me that at this time he was completely out of control and felt as if he was seeing himself on video performing. He told me that he had smoked some marijuana that day but was vague as to the amount. He told me that after the assault ”he left the scene”.

The patient told me that he was a vegan for six years when this happened and that someone had told him that vegans can have Vitamin B12 deficiency. He wondered whether that might have caused him to attack his stepfather. He then related that he had no emotions ”either way”.

10 In that part of his report concerning his examination of the applicant the following is stated:

The patient reported bizarre perception including visions where everything “just splits”. He stated that all that was like “amplified thoughts”. He reported hearing music in his head but then stated in fact they were voices, which were not intelligible. He reported seeing colours emanating from people. His thinking at times was very distorted, disjointed and tangential. If I hadn’t had the statement of fact (sic) I would not have been able to obtain a comprehensible story.

The patient’s affect was blunted. At other times it was frankly bizarre and inappropriate such as when he talked about the axe with a smile on his face. At the time that I saw the patient clearly he had a lot more insight than he would have had at the time of the incident. However, he saw no need for treatment and was intent on experimenting with drugs which he thought was going to improve his self-awareness.

11 Dr Petroff gave his opinion of the psychiatric state of the applicant as follows:

[The applicant] is suffering from chronic schizophrenia. In days prior to DSM 4 a diagnosis of ambulatory schizophrenia would be an apt description for [the applicant]. This was described as being fluctuating in severity with the patient being always bizarre and odd and at other times frankly psychotic.

His condition will certainly be made worse by the use of drugs and from my examination of the patient today there was no indication that he had any intention of avoiding them.

In the light of his past history of violence, his psychotic illness and his abuse of psychoactive drugs he remains a danger in the community. This patient needs treatment and this could only be guaranteed in a forensic psychiatric setting.

12 The second report of Dr Petroff was dated 9 December 2003, the date on which he next interviewed the applicant. In the meantime the applicant had absconded on bail and was rearrested in the Northern Territory. Dr Petroff noted that “there was a remarkable difference in the way that he presented today” from when he was interviewed on 24 August 2001. In respect of the applicant’s account of the offence, the doctor reported:

The patient gave me a clear story of being “unbalanced” for about six months at the time he assaulted his stepfather. He wasn’t sure what was the cause of his lack of balance, but thought the major factor may have been his exaggerated use of cannabis. He had used DMT, but in small amounts and it was not of the synthetic kind. On direct questioning he admitted to sleeping little at the time and having excess energy.

13 His opinion of the applicant’s mental state on this occasion was as follows:

In the light of the applicant’s remarkable recovery from the way he appeared he could not be suffering from a schizophrenic illness. A diagnosis has to be altered to Bipolar Disorder, particularly as there’s a clear report of him being elevated in mood and energy and he revealed a family history of recurrent depression on his mother’s side.

His marijuana smoking would not have helped his condition, but would be seen as more of a symptom and an attempt to self- medicate rather than the cause of his problem.

This man is suffering from a Bipolar Disorder or a Schizoaffective Disorder and at the time of the offence he would have been in a manic state with marijuana use giving him a superficial appearance of schizophrenia.

This man is now euthymic, in no way dangerous and somewhat shocked by his level of psychosis.

My recommendation would be that he be placed on a bond and, as part of that bond, be made to attend a series of appointments with Mental Health services. These would not be for the purpose of treatment, which is unnecessary at the moment, but for reasons of psycho education and to increase his self-awareness and knowledge into his condition. That would go a long way to preventing recurrences of similar behaviour should he relapse again.

14 Although the two reports of Dr Petroff were received in evidence without objection and the doctor was not called to give evidence before the Judge, there was a lively dispute between the Crown and the applicant as to the finding the Judge should make about the mental state of the applicant at the time of the commission of the offence. The Crown argued that, on the basis of the account given by the applicant in his record of interview with police which appeared to be rational and lucid, the Judge would not be satisfied that the applicant was suffering from any mental illness at the time of the offence.

15 Although the applicant did not give evidence, and, therefore, the accounts he gave to the psychiatrist of his mental state at the time of the offence were untested, there was evidence within the Crown brief that supported the psychiatrist’s findings. These were statements of members of the applicant’s family as to his appearance on the day of the offence. As would be expected these were unscientific observations of the applicant and contained comments such as that the applicant was “really stressed” and that he was “pretty psycho and fired up”. There was reference to the fact that the applicant was having “mood swings”. Perhaps of more significance was the fact that there was an account of the applicant saying that he had been talking to the dog that afternoon.

16 The Judge in the course of his sentencing remarks referred to both reports of Dr Petroff in detail and quoted from them in depth. He also referred to the material in the evidence relating to the mental state of the applicant as observed by friends or members of his family before and after the attack upon his stepfather. The Judge then quoted at length from the record of interview including the following passages:

“My plans were not to kill him, I was thinking in my mind I do not want to, I feel sorry for this guy, I do not want to do this, I do not want to kill him, I just want to knock him out, and that is what I was thinking.”
“I wanted vengeance man, this is a vendetta thing you know. I am sorry but it runs pretty deep you know and I cannot deal with it in a standard way.”
“I do not know what he (the victim) was going to do but I was – I was very angry mainly. I was in a really angry state of mind and it is probably wrong. Everyone tells me that it is not the answer you know but I am just a human being. People have fights over less things than this.”

“The dog was sitting next to me, Richard’s dog. I don’t really like dogs but anyway I had this thing going on in my mind you know and I was thinking how angry I was with this step-father.

Q97: Mm? A: And yeah and I just looked at this dog and it was just like the dog looked back at me and said yeah he didn’t like him either and he thought he was a real mongrel and I was just thinking this at the time, you know, humorously to myself. This is not a serious thing like it was my attempt at humour in a dark situation when I said that and yeah, anyway he asked me what I was thinking and I said ‘Oh the dog just told me something’ but I was joking, it’s just a joke you know.

Q: Right you don’t believe that the dog was actually talking to you? A: Well you know sometimes dogs can you know, they’re very intuitive creatures. He might’ve been, I don’t know man, I live in a dream world most of the time.”

17 At the conclusion of his remarks and just before he passed sentence on the applicant, the Judge stated:

So that the explanation given by the offender within a couple of days of the offence demonstrated that he was fully aware of what had happened, he gave an accurate description of what he had done, reflective of the many witnesses’ statements, all of which correspond down to a very fine level of detail. He expressed regret, there were no examples of irrational thinking or bizarre explanation as to what he had done, and it seems remarkable that Doctor Petroff was not asked to comment upon it, because in my conclusion it shows a perfectly rational response. However, I do accept on the other hand that he was genuine in his feelings of anger at the molestation of his sister who has provided a detailed statement of that molestation and which would have been very troubling to her as she claims. So while it is no excuse for what he did, it is perhaps understandable that he felt aggressive at a perceived lack of justice, and it particularly got to him that this man was at the wedding, and if it was a choice about him leaving or the offender leaving, the offender had to leave.

I seem to think that if Doctor Petroff had had the benefit of that document, his opinion would have been quite different.

In those circumstances the level of the culpability of the offender is higher………………

18 The complaint before this Court is that his Honour ought not to have rejected the evidence of Dr Petroff based only upon the contents of the record of interview. As I have noted Dr Petroff was not called to give evidence and, therefore, was never in a position to comment upon the significance or otherwise of the statements made by the applicant to police as to his opinion as to the mental state of the applicant at the time of the commission of the offence. His Honour seems to have come to his view that he should reject the psychiatrist’s opinions on the basis that they were inconsistent with the record of interview and expressed the conclusion that had the psychiatrist been aware of the contents of the interview he would not have formed the opinion that he did. But it was accepted by the parties that Dr Petroff had been in possession of the Crown brief, which included a transcript of the interview, on both occasions when he examined the applicant.

19 The applicant had the onus of proof in relation to the issue of his mental state at the time of the commission of the offence. Neither the psychiatrist nor the applicant was called to give evidence at the sentencing hearing. Yet I do not believe that the Judge was entitled to reject the psychiatric opinion for the reason that he did: that it was made without knowledge of the contents of the record of interview. I doubt that, without hearing from the psychiatrist, it was open for his Honour to find that the applicant’s statements to police were necessarily inconsistent with his suffering from some abnormal mental condition, such as a Bipolar Disorder, at the time of the commission of the offence.

20 The record of interview was conducted four days after the commission of the offence. It was never suggested by the psychiatrist or the representative of the applicant at the sentencing hearing that the applicant did not appreciate what he was doing when he attacked his stepfather nor that he did not attack him as an act of revenge for the sexual assaults upon his sister. The submission was simply that because of his mental state at the time the applicant was less able to control himself, less able to think rationally about his conduct and, therefore, less culpable than might otherwise have been the case had he not been suffering a mental disorder. The fact that the applicant tried to make a joke about the dog having spoken to him might simply indicate that he was trying to mask his mental condition from the police. Dr Petroff noted in his second report that the applicant was reluctant to accept that he had a mental illness.

21 The Judge’s rejection of the psychiatric evidence was a question of fact and this Court does not generally review such findings. But in this case it seems to me, with respect, that his Honour was not entitled to come to the conclusion that he did for the reason that he gave. Although this Court has also not heard from the psychiatrist, on all of the material, including the statements made by persons who had seen the applicant at the relevant time, I would find that it was more likely that the applicant was suffering from a mental condition that affected his culpability.

22 Although I believe the Judge was in error in his approach to the psychiatric evidence I would not intervene in light of s 6(3) of the Criminal Appeal Act. A sentence of 3 years with a non-parole of 18 months was in my view the most lenient sentence that the applicant could expect in light of the seriousness of the offence and even taking into account the fact that he was suffering from a mental condition at the time that no doubt affected his thinking and behaviour. The offence was a very serious example of conduct falling under s 35 both by reason of the nature of the assault and the injuries inflicted.

23 The Judge took into account that the applicant felt genuine anger against his stepfather for the alleged offences against his sister and that “while it is no excuse for what he did, it is perhaps understandable that he felt aggressive at a perceived lack of justice”. In my view a Court cannot allow for any significant mitigation of the applicant’s culpability because the offence was committed to punish the stepfather for allegedly interfering with the applicant’s sister in light of the seriousness of the assault. Denunciation and general deterrence are very much to the fore when sentencing an offender who has taken the law into his own hands and inflicted serious injuries as retribution for wrongs allegedly committed by the victim. This approach must be taken in the present case notwithstanding that the applicant might have been suffering from a mental condition that influenced his conduct. It is not a case where in my view much weight can be given to the psychiatric condition to reduce the importance of general deterrence.

24 The Judge indicated that he was giving the applicant “full discount” for the plea of guilty. If he meant by that a discount in the order of 25 per cent, it was overly generous. The indictment is dated 11 October 2002, yet the applicant did not plead guilty to the lesser offence, a course that was always open to him whether the Crown would accept the plea or not, until 19 December 2003.

25 Notwithstanding the evidence placed before the Court for the purposes of re-sentencing the applicant, I do not believe that any lesser sentence than that imposed upon the applicant is warranted. The non-parole period in particular was a very lenient minimum period to be served and it is impossible to see how any lesser period of custody could reflect the seriousness of the offence committed.

26 I propose that leave to appeal be granted but that the appeal be dismissed.

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