R v Windle

[2012] NSWCCA 222

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Windle [2012] NSWCCA 222

Hearing dates:

28 June 2012

Decision date:

16 October 2012

Before:

Basten JA at [1];
Price J at [61];
S G Campbell J at [62]

Decision:

(1) Allow the appeal and set aside the sentence imposed by the District Court on 15 December 2011.

(2) Resentence the offender to a period of imprisonment for five years, four months, being a non-parole period of four years and a balance of the term of the sentence of 16 months.

(3) Direct that the sentence commence on 29 October 2011.

(4) Note that the first date on which the offender will be eligible for release on parole is 28 October 2015. The sentence will expire on 28 February 2017.

Catchwords:

CRIMINAL LAW - Director's appeal against sentence - offence committed while in custody and eligible for parole - whether error for sentencing judge to backdate sentence to last opportunity to be considered for parole - whether court required to take into account period in custody after parole revoked for offence - Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24 and 47

CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - leniency for revelation of intention by offender - whether extent of leniency depends on extent of revelation - whether numerical discount should be stated - discussion of R v Ellis (1986) 6 NSWLR 603

CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - mental illness - applicant's mental illness did not establish defence of insanity - whether principle of retribution in sentencing diminished in cases of mental illness - whether mental illness relevant to gravity of offence - whether increase in sentence for protection of society is speculation leading to arbitrary result - whether sentence incorporating protection of society can exceed otherwise appropriate sentence - whether mental illness increases the need for personal deterrence and protection of the public - discussion of Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465

CRIMINAL LAW - Director's appeal against sentence - attempt to strangle with intent to murder - sentencing judge found special circumstances - significant criminal record - no remorse - unclear whether offender will accept mental health treatment - whether special circumstances - Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Legislation Cited:

Crimes Act 1900 (NSW), ss 29, 37
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44, 47, 56; Div 1A
Criminal Appeal Act 1912 (NSW), s 5D
Evidence Act 1995 (NSW), ss 85, 86

Cases Cited:

Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Markarian v R [2005] HCA 25; 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen [2011] 244 CLR 120
Munn v R [2009] NSWCCA 218
Pearce v The Queen (1998) 194 CLR 610
R v Bell [2005] NSWCCA 81
R v Ellis (1986) 6 NSWLR 603
R v Engert (1995) 84 A Crim R 67
R v Lawrence [2005] NSWCCA 91
R v MW [2007] NSWCCA 291
Regina v Fyffe [2002] NSWSC 751
Regina v Hoskins [2004] NSWCCA 236
Ryan v The Queen [2001] HCA 21; 206 CLR 267
S v Regina (2008) 186 A Crim R 505
Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465

Category:

Principal judgment

Parties:

Crown (Appellant)
Andrew Robert Windle (Respondent)

Representation:

Counsel:

Ms M M Cinque (Appellant)
Ms C Davenport SC/Ms S Bouvong (Respondent)
Solicitors:

S Kavanagh, Solicitor for Public Prosecutions (Appellant)
Streeton Lawyers (Respondent)

File Number(s):

CCA 2011/21132

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-12-15 00:00:00

Before:

Garling DCJ

File Number(s):

DC 2011/21332

Judgment

1. BASTEN JA: The respondent, Andrew Robert Windle, was convicted and sentenced for an offence committed on 1 January 2011 of attempting to strangle a fellow inmate at Long Bay Gaol with intent to murder. He was sentenced to a term of four years and six months, with a non-parole period of two years and six months. The sentence was fixed to commence on 29 October 2011.

1. The Director of Public Prosecutions appealed against the inadequacy of the sentence, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW).

1. The offending falls within a category of conduct which the Parliament has characterised as warranting severe punishment, as demonstrated by the maximum penalty of 25 years imprisonment and the standard non-parole period of 10 years. The circumstances of the offending warranted, in an objective sense, a far heavier penalty than that imposed by the sentencing judge. However, the mental condition of the offender required serious attention to be given to a lesser sentence than that otherwise warranted, a factor which weighed heavily with the sentencing judge. While the sentencing judge clearly exposed his reasons for the sentence imposed, in the final analysis the sentence was outside a legitimate range and must be increased. I would propose a sentence of five years and four months with a non-parole period of four years.

Circumstances of offending

1. The circumstances of the offending were briefly but sufficiently outlined by Garling DCJ in his judgment on sentence (pp 1-2). Both the offender and the victim were inmates at Long Bay Correctional Centre, the victim being 39 years of age. Both were in the shower area, where they had a short and unremarkable conversation. The victim turned his back on the offender to check the temperature of the water, at which point the offender put a sock around his neck pulling it tight so that he could neither get the sock away from his throat, nor, ultimately, breathe. The victim lost consciousness and fell to the floor. When he regained consciousness he called for help from another inmate who in turn brought a prison officer to his aid.

1. When both inmates were locked in their respective cells, the offender called out to the victim asking whether he was "still going to charge" the offender. When the victim said yes, the offender asked why. The victim replied "because you haven't even apologised yet. Why did you do it?". The offender answered "I don't know".

1. The statement of facts prepared by the Director continued:

"On the morning of 2 January 2011, senior Corrective Services Officers spoke with Windle. Windle indicated that he had followed [the victim] into the shower area and then, after [the victim] undressed, he (Windle) put a sock around [the victim's] neck and tried to kill him. Windle indicated that he did not know why he did it, he 'just had to do it'. Windle indicated that he stopped strangling [the victim] because he thought [the victim] was dead. Windle indicated that he continued to strangle [the victim] when [the victim] collapsed to the ground. He continued to strangle [the victim] while [the victim] was on the ground, then [the victim] 'shook a bit' then 'urinated himself'. Windle indicated that he then thought [the victim] was dead so he walked out of the shower area with the sock, put the sock on a nearby shelf with other clothes, and then began to 'walk laps outside'."

1. Even though the expressed intention was not fulfilled, strangling a person to a state of unconsciousness is capable of producing serious and permanent consequences, such as brain damage resulting from loss of oxygen. That did not happen in the present case. As the statement of facts reported:

"As a result of the incident, [the victim] had a sore throat and neck. He had a red mark on his throat where the sock had been. Two days after the incident, he still felt pain when swallowing."

1. In addition to frankly stating his intention to Corrective Services officers, the offender also pleaded guilty to the offence at the first reasonable opportunity.

Judgment on sentence

1. The sentencing exercise involved four discrete elements, namely:

(a) determining the appropriate sentence by way of a "starting point", subject to any discount;

(b) evaluating the guilty plea and allowing a discount of 25% on that account;

(c) identifying that there were "special circumstances" allowing departure from the statutory relationship between non-parole period and balance of sentence, and

(d) identifying the commencement date of the sentence.

1. The starting point of the sentence, after an assessment of a range of factors which will be discussed below, was identified as six years. The 25% discount for the early guilty plea resulted in a term of imprisonment of 4.5 years. The variation of the proportion for the non-parole period, pursuant to the finding of special circumstances, allowed for a non-parole period of 2.5 years, giving a balance of term being 80% of the non-parole period, the required proportion being no greater than 33.3% in the absence of special circumstances: Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), s 44(2).

Issues on appeal

1. The grounds of appeal identified by counsel for the Director focused upon the first stage of assessing the overall sentence: grounds 1-4 and 6. In addition, there was a challenge to the finding of special circumstances: ground 5. Because, in both respects, the appeal should be upheld, it will be necessary for this Court to resentence the offender. For that purpose, it will also be necessary to identify the appropriate date for the commencement of the sentence. As it was not challenged on appeal, it is convenient to note first why the date adopted by the sentencing judge should be accepted.

(a) date of commencement of sentence

1. The sentencing judge directed that the sentence commence on 29 October 2011. That date was not selected arbitrarily: the offender was, at the time of sentencing, serving a term of four years imprisonment dating from 30 April 2009 and expiring on 29 April 2013. The sentence was subject to a non-parole period of 18 months which expired on 29 October 2010. That date was before the date of the offending and he was therefore serving his parole period at the time of the offence and, indeed, at the time of sentencing (on 15 December 2011). The sentencing judge noted that the offender "was not released to parole and the next available date for him to have consideration for parole was 29 October 2011": judgment, p 6. He therefore concluded that the appropriate date for the commencement of the further sentence was the date when the offender could have been further considered for parole, albeit a date two months before the date of sentencing.

1. Generally, a sentence will commence on the date on which it is imposed, subject to certain exceptions, not relevant for present purposes, and subject to any direction otherwise: Sentencing Procedure Act, s 47. The Court may direct that a sentence be taken to have commenced on an earlier day (sub-s (2)(a)) or on a later day (sub-s (2)(b)). In backdating a sentence, the Court is required to take into account "any time for which the offender has been held in custody in relation to the offence": sub-s (3) and s 24(a).

1. Both ss 24 and 47(3) thus impose an obligation on the Court to take into account any period for which the offender has been held in custody "in relation to the offence" for which sentence is being imposed. There has been no clear opinion expressed in the case law as to whether the phrase "in relation to" is limited to custody referrable solely to the new offence and whether custody is referrable solely to the new offence in circumstances where parole was revoked because the person was charged with or convicted of the new offence.

1. It may seem curious that the scope of a mandatory obligation should be unclear and unresolved. There are, however, two factors which explain why that is so. The first is a legal consideration, namely that, although such custody must be taken into account, the Sentencing Procedure Act does not specify how it should be taken into account. Case law demonstrates that there is no fixed rule as to how it is to be taken into account: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 (Simpson J, James and Hall JJ agreeing). The second factor which partly explains the established practice, is that circumstances may differ and the Court may not have precise information as to the circumstances in a particular case. For example, if a person were held in custody following arrest, it might be necessary to consider whether the arrest was solely in respect of the offence for which the person was being sentenced, or whether there were other offences involved. Similarly, where parole has been revoked, the court may not know whether it was revoked solely because of the further offence, or for that and other reasons, or for entirely separate reasons.

1. The sentencing judge did not explain why he backdated the sentence to the point at which parole was presumably (whether it occurred or not was not noted by the sentencing judge) first considered after the fresh offending. There was no necessary error in taking such a course and, as neither party sought to challenge the approach taken, this Court should adopt the same commencement date in resentencing.

(b) discount for guilty plea

1. The Court should also adopt the discount of 25% for the early guilty plea, which was manifestly correct.

(c) whether sentence manifestly inadequate

1. The question of the inadequacy of the sentence and the challenge to the finding of special circumstances involved consideration of similar factors. It is convenient to deal with the substance of the challenge to the inadequacy of sentence first.

1. The primary judge noted and took into account the following considerations which were directly relevant to determining the starting point for the sentence calculation:

(a) the maximum penalty and the standard non-parole period (judgment, pp 3-4);

(b) the fact that a severe deterrent sentence was appropriate for crimes of violence committed whilst in custody (p 4);

(c) the significant criminal record of the offender acquired over some five years between the ages of 17 and 22, including break and enter, assault, assaulting an officer in the execution of his duty and the specially aggravated offence of entering a dwelling with intent to inflict grievous bodily harm, committed in April 2009 (pp 2-3).

1. In considering the nature of the offence and the manner in which it might be dealt with on sentencing, his Honour had regard to the reasons given in R v Bell [2005] NSWCCA 81 and Munn v R [2009] NSWCCA 218: judgment, p 6. All of these considerations supported a sentence well in excess of that imposed. There were two critical countervailing factors, namely:

(a) the mental illness of the offender, and

(b) the voluntary disclosure of the offending and, in particular, the intent with which the assault was carried out.

1. It is the factors favouring a lower sentence which require careful consideration.

(d) mental illness

1. The Director did not submit that the offender was not suffering from a serious mental illness, nor that that was not an appropriate consideration to be taken into account. Although the Court was referred to the remarks of Spigelman CJ in R v Lawrence [2005] NSWCCA 91 at [22], to the effect that some mental conditions, whilst qualifying as psychiatric illnesses, might not justify less weight being given to general deterrence, it was not suggested that the mental condition suffered by the offender fell into such a category. Alternatively, if that inference were intended, it should not be accepted.

1. The sentencing judge had before him a report of a consultant forensic psychiatrist, Dr Richard Furst, dated 8 May 2011. It is clear that he accepted Dr Furst's opinions.

1. Dr Furst knew the offender from an earlier assessment in June 2009. Dr Furst was asked to consider whether he thought that Mr Windle was mentally ill at the time of the commission of the 2011 offence. He concluded:

"Your client has a history of severe personality disturbance; however I did not think that the intrusive thoughts he harboured at the time of the alleged offence were driven by defect of reason or were the product of a disease of the mind. He does not appear to have the mental illness defence available to him."

1. Dr Furst was also asked to advise as to fitness to plead. Again, he concluded that the offender was fit to plead and to stand trial.

1. More generally, Dr Furst noted that Mr Windle was 21 years of age, and had been in custody in a number of correctional centres since his arrest in 2009. He had had an unfortunate childhood, not knowing his biological father, and having witnessed and been exposed to frequent domestic violence at the hands of a de facto father. He had left school in Year 8 at 13 years of age and was in trouble with police from the age of 15. Mr Windle was diagnosed with depression in 2005 whilst in juvenile detention and developed a paranoid psychotic illness in 2007, with symptoms of paranoia that lasted for about three-six months.

1. In January 2009 he reported having "unusual thoughts in his head" and decided to cut off part of his ear. He cut off part of the other ear about two months later. Dr Furst further reported:

"When assessed in 2009, he told me that he often felt depressed, did not feel like talking to anyone, was isolative, slept 'on and off', and had mood swings. ... He also told me that he has ongoing thoughts of hurting himself, however he has nothing to harm himself with and said 'I can't do it because they're watching me.'

He said that his tendency to self-harm continued, including cutting parts of his ear off between October and November 2009. He also had urges to harm his cell mate at Junee in February 2010, telling me that he cut the leg of his cell mate with a razor blade whilst he was asleep on the floor. Mr Windle said, 'I can't explain it. I don't hear voices or get messages ... the thought comes in, like 'I've got to hurt this guy'."

1. In April 2010, he cut his nipple off and later cut his finger "by accident". In December 2010 he cut his penis causing a severe loss of blood. The event was treated as an attempted suicide.

1. His account to Dr Furst of the 2011 offence commenced with him "walking up and down and doing laps of the yard". Dr Furst's report continued:

"He denied hearing voices but described having an intrusive thought, 'I want to strangle this bloke,' in relation to the alleged victim .... He said, 'It was like I couldn't control it ... I didn't think about the consequences.' He denied having an argument with [the victim] before the incident, stating 'I was just getting on with my day ... it just came into my mind. It's like I get stuck on the thought ... I had to do it.'

He told me that after the act in question he came out of the shower area and did not think about what he had done, feeling 'calm' and 'relaxed' and asking for a cigarette. He denied feeling distressed. Mr Windle said that he had no recollection of hearing voices, denied thoughts that the victim was going to harm him, and had no particular disturbance in his mood that day. He denied feeling angry. He acknowledged acting on impulse."

1. Dr Furst's conclusions in respect of his psychological state were as follows:

"Mr Windle presents as a 21-year-old male from a troubled and unstable family of origin who had an early onset of drug use and emotional problems. He seems to have limited intellect, poor coping skills, and an inability to self-regulate his emotional state. His depressive symptoms are more consistent with a Borderline Personality Disorder and Antisocial Personality Disorder than those often seen in Major Depressive Disorder, however given the history so far, including his period of psychosis in 2007 and his extended period of substance abuse, he should be regarded [as] at a substantially higher risk of developing a major mental illness ... such as schizophrenia or bipolar disorder in the future.

It would appear that his offending behaviour was the product of an irresistible impulse to kill the inmate in question for no obvious reason apart from his own disturbed and grossly dysfunctional thinking. There was a compulsive quality to his actions, a lack of affective disturbance, and an apparent indifference to his actions in the period immediately after the alleged offence. In my opinion, this is of great concern in terms of the risks he poses to other inmates in the criminal justice system and people in the wider community upon his eventual release. He is also at high risk to himself, especially given his previous suicide attempts with high potential lethality and serious intent."

1. Dr Furst also noted that the offender had been held in a single camera cell for much of his earlier incarceration and had been in the Acute Crisis Management Unit of Long Bay following the offence. For the first four months of 2011 (and probably continuing) he had been placed on a segregation order within the unit, meaning that he was largely unable to associate with the other inmates.

1. The report indicated that Mr Windle had been treated with Fluoxetine (an anti-depressant medication) and several anti-psychotic drugs since 2009. He remained on a similar regime after the current offending. Although Dr Furst was of the view that he was not psychotic at the time of the offence, he did not criticise the drug regime and appears to have accepted that there may have been other brief psychotic episodes during his incarceration. (The Justice Health medical records from which the inferences were drawn were not available to this Court.)

1. Dr Furst's conclusions suggest that the long term prognosis is not good and noted that, whilst in the community, he had been unable to resist the on-going use of amphetamines "despite negative effects on his mental health, clear legal sanctions and efforts to rehabilitate him through the Youth Drug Court Program."

1. Dr Furst was unable to provide any explanation, rational or emotional, for the attack, which can only be explained as a consequence of his psychiatric condition, albeit that condition was not such as to establish a defence of insanity.

(e) leniency - undiscovered offence

1. The trial judge noted that the offender was "entitled to what is commonly referred to as an Ellis discount": judgment, p 4. The label "Ellis discount" derives from the case in which the principle was stated. The sentencing judge rightly, if implicitly, dismissed the label and applied the principle. That is to say, he did not reach a particular starting point and apply a discount, but merely took the principle into account as a basis upon which to accord a degree of leniency. In R v Ellis (1986) 6 NSWLR 603, Street CJ stated at 604D:

"When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.

The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."

1. An important aspect of Ellis is the distinction between a plea of guilty to a charge which has been laid and disclosure to the police of the fact of the offence, or at least the offender's involvement therein. Significantly for present purposes, the voluntary disclosure might include:

(a) revelation of an offence not known to the authorities;

(b) revelation of the identity of the offender, or

(c) revelation of an aspect of the offending not known to the authorities.

In the present case, the victim had reported the offence and the identity of the offender. It was only the element of intention which, without the offender's confession, might not have been capable of proof beyond reasonable doubt. The extent of the appropriate element of leniency must depend on the extent of the voluntary revelation.

1. In Ryan v The Queen [2001] HCA 21; 206 CLR 267 all members of the High Court accepted the principle identified in Ellis, described by McHugh J at [15] as "a statement of a general principle or perhaps more accurately of a factor to be taken into account". His Honour continued:

"It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case."

1. In the present case, the sentencing judge accepted that he had "only been charged with this offence because of admissions ... that he intended to kill the victim". Absent the admission, he would have faced a serious assault charge, but no more, because the victim recovered quite quickly: judgment, p 4.

1. In Ryan, Callinan J considered the degree of lenience accorded on this basis could helpfully be stated without interfering with "the intuitive process that sentencing involves": at [185]. Such an approach would be consistent with transparency, but is usually eschewed on the basis that a numerical discount may itself be misleading, because it gives an incorrect impression of precision and may, over time, lead to the development of a practice or rule requiring a particular level of discounting.

1. In any event, the sentencing judge did not give any numerical indication as to the degree of leniency which he accorded. The Director did not criticise the sentencing judgment in that respect, but submitted that there was an element of excessive allowance because of the proposed sentence (prior to discount for the guilty plea) of six years.

(f) relevance of mental illness

1. It is a well established principle that an established mental illness which affects the decision-making capacity of the individual offender is significant because it diminishes the importance of key elements of the sentencing exercise. For example, it may demonstrate that the offender had little control over his impulses or actions, due to a condition for which he was not in any relevant sense responsible. Assuming it to be an on-going condition, the importance of personal deterrence may be much reduced. By the same token, punishment of a person not in full control of his or her conduct may form a poor vehicle for promoting general deterrence. Even in jurisdictions which retain the death penalty, the execution of the mentally ill or intellectually disabled might be thought, at least by our standards, to demean the law rather than promote acceptance and compliance.

1. In Ryan, McHugh J identified a significant sentencing principle as retribution, "a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment": at [46]. However, a proper purpose of the criminal law is not to give effect to the irrational prejudices of ill-informed public opinion. The urge for retribution is, or should be, treated as diminished in the case of the mentally ill.

1. The factor which merits consideration in the present case is the appropriate protection of society. This issue was considered in detail in the seminal judgments in Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465, eg at 476-478. Mr Veen had a record of homicidal violence. Hunt J sentenced him to life imprisonment for a second homicide, he having entered a plea of guilty of manslaughter on the grounds of diminished responsibility, on the basis of brain damage due to alcohol abuse. In custody, and without access to alcohol, he appears to have been a calm and unthreatening person. However, the sentencing judge, having found that a life sentence was proportionate to the gravity of the offence, imposed such a sentence, giving weight to the protection of the community. The High Court divided as to the propriety of that approach, the majority (Mason CJ, Brennan, Dawson and Toohey JJ) dismissing the appeal. Their Honours noted at 476:

"There is an anomaly, however, in the way in which the mental abnormality which would make an offender a danger if he were at large is regarded when it reduces the crime of murder to manslaughter pursuant to s 23A [of the Crimes Act 1900 (NSW)]. Prima facie, a mental abnormality which exonerates an offender from liability to conviction for a more serious offence is regarded as a mitigating circumstance affecting the appropriate level of punishment. ...

However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. 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 a 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. In Veen [No 1] Murphy J alone thought it 'a distortion of the criminal law to sentence people to longer terms because they ... have diminished responsibility'. As Baroness Wootton points out, if that approach were adopted in culpable homicide the legally insane would be detained indefinitely, those whose responsibility was severely diminished would be released in the shortest time even though they were a grave danger to society, and those whose responsibility was diminished to a lesser extent would be longest detained even though their release would pose little danger to society. Such a theory of sentencing would prove adventitious in practice and destructive of public confidence in the processes of criminal justice."

1. The anomalies identified by Baroness Wootton (in "Diminished Responsibility: A Layman's View" (1960) 76 LQR 224) arise from the use of criminal punishment to protect society from those whose mental illness renders them a danger. Arguably, that function should be left to laws addressing mental illness. As noted by Deane J (in dissent with Wilson J and Gaudron J) the problem of those who are mentally ill and dangerous but not legally insane should be addressed by a system of preventative restraint, not by misuse of notions of criminal punishment: at 495. Wilson J, with whom Deane J and Gaudron J agreed, stated at 488:

"A sentence cannot represent appropriate punishment for the particular offence if by reason of a concern to protect the community it exceeds that sentence which is the maximum the circumstances of the offence, viewed objectively, will bear. However, later in his judgment [in Channon v R (1978) 20 ALR 1 at p 21] Deane J ... accepted that the protection of the public from an offender with a propensity to commit violent or serious crime may legitimately result in a heavier sentence being imposed than would be the case if such propensity had not been present. With all respect, I find an ambiguity in such a statement because if the propensity had not been present then it is probable that considerations personal to the offender would justify a measure of leniency and result in a sentence which was less than the maximum punishment which the facts of the offence, viewed objectively, would warrant."

1. In Veen [No 2] Deane J also noted that a propensity to commit serious offences in the future and the protection of the public could preclude any reduction of the full sentence which is proportionate to the facts of the actual crime, but cannot increase that sentence: at 491. He continued:

"Otherwise, the sentence imposed would conceal two elements: the sentence appropriate to the crime if unmitigated by other factors and a further sentence which, while worded in the language of punishment, is not justified by reference to the gravity of the actual offence but is in fact imposed to procure the protection of the public by the preventive detention of the offender."

1. Arguably, the ambiguity identified by Wilson J remains in the further comments of Deane J and in the reasoning of the majority. The ambiguity lies in the failure to identify whether the yardstick within which an element of preventative detention can operate (identified as the legitimate purpose of protection of the public), namely the greatest sentence which can be imposed "proportionate to the gravity of the offence", includes the element of mental illness. If it does, and it is difficult to see how it cannot in a case where the mental illness constitutes an element of the offence (in the concept of diminished responsibility), it would be difficult to take the mental illness (now described as a propensity to commit crime) into account in a manner which is set off against the diminished moral culpability, without the sentence being increased beyond the limit imposed by the yardstick of proportionality. On the other hand, if mental illness is removed from the calculation of proportionality, a critical element central to the assessment of moral culpability is ignored. When reintroduced, it is offset by the protective element.

1. Reliance on a lack of pure logic is to risk unprincipled sentencing. On one view, Veen [No 2] invites a two stage process to sentencing the dangerously mentally ill. Whether that is consistent with the reasoning in Markarian v R [2005] HCA 25; 228 CLR 357 is not entirely clear. However, to place all the elements into the balance at once is to risk giving effect to a level of preventative detention so as to exceed the appropriate sentence for the offence.

1. It may be that a "pragmatic" approach to such issues will provide the best practical results. However, it does so at the potential cost of treating the mentally ill and intellectually disabled as fully responsible and thus warranting punishment to an extent which would otherwise be thought incompatible with the modern understanding of mental illness and intellectual disability.

1. This dilemma is acute in the present case: there is no doubt that the offender will be returned to the community within a matter of years, unless a grossly disproportionate sentence is imposed. Whether the mechanisms are in place to deal with such an event, is unclear. The question appears to be for how long the criminal courts should delay that event.

1. There is in this case a real difficulty in knowing how to assess the need for the protection of society. In Veen's case the matter was easily resolved: the offender was sentenced to an indeterminate sentence of life imprisonment. In the present case there is no material before the Court to suggest whether there will be any change in circumstances after two, four or ten years. Thus, to increase the sentence "for the protection of society" is to indulge in a degree of speculation leading to an arbitrary result.

Application of principles

1. The trial judge referred to Munn, a case in which the offender was sentenced for an attempt to strangle with intent maliciously to inflict grievous bodily harm under s 37 of the Crimes Act 1900 (NSW), an offence which, although a lesser offence, carried the same maximum penalty of 25 years, but no standard non-parole period. The matter went to trial, the principal issue being the intention of the accused. The attack, committed on a woman with whom he had a somewhat unstable de facto relationship, occurred in a car on the side of the road. It is not necessary for present purposes to expand upon the circumstances, except to note that, despite going to trial, the offender received a 15% discount for assistance to the authorities, giving rise to the calculation that the sentencing judge's starting point for the offence had been in the order of 10 years, eight months. The sentence imposed involved a non-parole period of five years, six months and an additional term of three years, six months. There was evidence of the offender having suffered a traumatic injury at nine years of age and having been sexually abused in his early teenage years. Although the result involved a diminution of impulse control, and multiple contacts with mental health services, mainly as a result of drug induced psychosis, it was not clear that he suffered from a permanent psychiatric condition insusceptible to treatment. This Court dismissed a severity appeal.

1. The second case referred to by the sentencing judge was Bell, in which this Court dismissed a severity appeal, but in respect of a sentence of imprisonment of four years, with a non-parole period of two years, six months. The point of similarity with the present case was that the offender made repeated statements to the effect that he had tried to kill his wife by choking her. The primary ground of appeal was the failure to grant leniency on the basis that he had been charged with a more serious offence than that which the objective circumstances, without the voluntary disclosure, would have supported: at [11]. That ground was rejected, as was a separate ground that the sentence was manifestly excessive.

1. The points of distinction between Bell and the present case are otherwise numerous. In Mr Bell's case, there was a prior apprehended violence order with respect to his former wife; an apprehended domestic violence order in respect of the victim of the assault, which he had breached on an earlier occasion; an absence of any other prior record; the absence of mental illness and, significantly, a finding that the voluntary disclosure of his intention involved a high degree of remorse.

1. In the present case, there were a number of elements favouring a degree of leniency.

(a) The act was clearly impulsive in the sense that it was not planned: on the other hand, it was not provoked in any way by the conduct of the victim.

(b) The harm suffered by the victim was temporary, the discomfort in swallowing being limited to a period of days.

(c) The voluntary disclosure of the intention to kill almost certainly resulted in the charging of a more serious offence than would otherwise have been charged. However, as noted by Grove J in Bell (Spigelman CJ and Bell J agreeing) an entitlement to some leniency for voluntary disclosure of intention "does not extinguish ... responsibility for commission of that crime and reduce it to something less": at [17]. Further, there must be care to avoid double counting with respect to the discount for the guilty plea.

(d) The likelihood that the offender will serve his sentence with a higher degree of isolation in custody than would usually be the case deserves consideration, although how it will affect him, given his mental state, is less clear.

(e) The most significant element favouring leniency, other than the voluntary disclosure of intention, is his level of mental illness. There can be little doubt that it constituted a major cause of the offence and therefore reduced his responsibility and moral culpability. That in turn permits reduced relevance to be accorded to general deterrence and, in all probability, to personal deterrence.

1. Certain elements which might otherwise warrant a degree of leniency are not present.

(a) The offender cannot rely upon an absence of a significant criminal record: his record, given his age, is troubling, although it is probably in part reflective of his mental illness.

(b) Although again probably partly due to his mental illness, there is no expression of remorse, nor insight into the nature of his conduct.

(c) Other than treatment for his mental illness, there is little that favours special consideration in respect of rehabilitation. Indeed, the likelihood of rehabilitation probably depends upon his acceptance of the need for treatment, particularly when eventually released from custody. There is presently little material to support the likelihood of such acceptance.

These factors reveal that there is nothing warranting a finding of special circumstances in this case, for the purpose of adjusting the ratio of the non-parole period to the total sentence.

1. There are a number of factors which favour a degree of severity.

(a) The seriousness of the offence, including the intention to kill, militates in favour of a significant custodial sentence.

(b) The offence was carried out whilst in gaol serving a separate sentence for a specially aggravated offence of entering a dwelling with intent to inflict grievous bodily harm. This Court has noted the importance of maintaining discipline within the prison system and protecting other offenders from criminal assaults by fellow inmates, a matter which is reflected in the general requirement for such offences to be the subject of cumulative sentences: Sentencing Procedure Act, s 56; Regina v Fyffe [2002] NSWSC 751 at [33] (Barr J); Regina v Hoskins [2004] NSWCCA 236 at [60]-[63] (Levine J, Hulme J agreeing; Giles JA also agreeing in principle, considering that total accumulation would have been appropriate).

(c) The evidence of mental illness also reveals an element of dangerousness and lack of insight into the causes of the violence revealed by this offence. Those factors in turn warrant consideration of the need to protect society. This matter requires further comment.

1. In relation to the protection of society at large, the factor is one which, in the circumstances, can be given relatively little weight. There is no evidence supporting a conclusion that there will be improvement in the immediate future. Nevertheless, the offence cannot involve an indeterminate sentence and, in any event, the punishment for the crime must not exceed a proper sentence, disregarding the need to protect society. The offender will have to be released sooner or later. The appropriate mechanism for protecting society cannot be found in the criminal law; the need for protection arises from mental illness and it is through mental health legislation that such protection as may be available must be sought.

1. There being no basis for a finding of special circumstances, the sentence to be imposed should follow the statutory prescription in s 44(2) of the Sentencing Procedure Act.

1. The two factors which warrant a significant degree of departure from the sentence which the objective circumstances of the offending would appear to require are, firstly, the serious influence of mental illness on the offending and, secondly, the voluntary disclosure of the intention to kill. Nevertheless, an appropriate sentence cannot be less than seven years imprisonment. That figure, reduced by 25% for the plea of guilty gives a sentence of five years, four months (64 months). That sentence should consist of a non-parole period of four years and a balance of term of 16 months.

1. The Court should make the following orders:

(1) Allow the appeal and set aside the sentence imposed by the District Court on 15 December 2011.

(2) Resentence the offender to a period of imprisonment for five years, four months, being a non-parole period of four years and a balance of the term of the sentence of 16 months.

(3) Direct that the sentence commence on 29 October 2011.

(4) Note that the first date on which the offender will be eligible for release on parole is 28 October 2015. The sentence will expire on 28 February 2017.

1. PRICE J: I agree with Basten JA.

1. S G CAMPBELL J: I have had the considerable advantage of reading the judgment of Basten JA in draft. With respect, I agree with his Honour's conclusion that the sentence imposed below was manifestly inadequate, and I agree also with the sentence his Honour proposes and the orders set out at [60]. However, as my thinking differs in some respects from his Honour's, I consider it appropriate that I state briefly my own reasons where they differ.

1. My view is different in relation to the degree of leniency being due in the case by reference to the principles discussed in R v Ellis (1986) 6 NSWLR 603; and what effect the influence of the offender's undoubted mental illness should have on sentencing.

R v Ellis

1. I agree with the legal analysis of the presiding judge at [35] to [39]. With respect, I disagree that without the offender's confession the element of intention might not have been capable of proof to the criminal standard [36]. The evidence at first instance was not extensive, but the objective facts capable of being established without the offender's admission included the considerations that the offender employed a ligature to strangle the victim, that he persisted with the strangulation until the victim was rendered unconscious, prostrate and had urinated himself, and then left him for dead.

1. In accordance with the barrister's adage, there is no case that cannot be improved by the introduction of a "verbal" (subject to ss 85 and 86 Evidence Act1995, of course), but the simple, easily provable facts underpinning the offending are, in my judgment, sufficient to prove the offence charged.

1. I also accept the argument advanced on behalf of the appellant that a possible alternative basis of criminal liability is provided by s 37 covering, inter alia, attempts to strangle a person with intent to commit an indictable offence, which carries the same maximum penalty as attempted murder under s 29 Crimes Act1900 (NSW) (imprisonment for 25 years). It is true that s 37 is not subject to a standard non-parole period under Division 1A Crimes (Sentencing Procedure) Act1999 (NSW). That the legislature has prescribed a standard non-parole period for an offence may be relevant to an assessment of its seriousness, but it is [t]he maximum penalty for a statutory offence [which] serves as an indication of the relative seriousness of the offence: Muldrock v The Queen [2011] 244 CLR 120 at [31], and the cases there cited.

1. To these considerations should be added reference to the judgment of McClellan CJ at CL in R v MW [2007] NSWCCA 291 at [43], referred to by the appellant below and on appeal:

There will be varying degrees of criminality in an offence contrary to s 37... It must be remembered that the offence itself is defined as an "attempt to choke". When that attempt results in the victim becoming unconscious the offence is one of considerable gravity.

The reference the Crown make to S v Regina (2008) 186 A Crim R 505 at 508 [10], in my opinion is also apposite. Bell JA (as her Honour then was) pointed out that leniency... may be extended in a case in which an offender voluntarily discloses his or her guilt of an offence which he or she was not suspected of committing.

1. At 508 [11], her Honour stated that the applicant was deserving of a discount for his candour in making admissions to the police. That was a similar case where her Honour formed a view that the admissions provided the basis for preferring a particular charge. However, she emphasised that it was not to be overlooked that the prosecution were, absent the admissions, in possession of evidence which would have supported the prosecution for a serious drug offence in any event.

Mental illness

1. Basten JA regards the offender's level of mental illness as the other, indeed the first, factor warranting a significant degree of departure from the sentence which the objective circumstances of the offending would appear to require [59].

1. With respect, I agree with the presiding judge that there can be little doubt that [the mental illness] constituted a major cause of the offence ([54](e)). Consistently with principle, his Honour said that this factor reduces responsibility, moral culpability, the relevance of general deterrence, and in all probability personal deterrence.

1. In a powerful analysis of the judgments in Veen v The Queen (No. 2) (1988) 164 CLR 465, his Honour concluded that given the principle of proportionality, the protection of society in the instant sentencing exercise was an unattainable goal, at least if impermissible preventative detention on the one hand, and arbitrariness on the other, were to be avoided.

1. I accept on the medical evidence in the case it is of the nature of the personality disorder, or disorders, from which the respondent suffers, and notwithstanding the treatment he has undergone, and will undergo, whilst incarcerated, that he poses risks to other inmates in the criminal justice system and people in the wider community upon his eventual release. Clearly the prognosis is very poor. I fully accept the force of the presiding judge's reasoning at [49]-[50]. Where I differ from his Honour, with respect, is, notwithstanding the hard reality identified by Basten JA, in my view the protection of society remains a relevant and valid consideration in arriving at a sentence that is proportionate to the gravity of the offence committed by the respondent.

1. It may be that the dilemma thrown into relief so starkly by Basten JA's analysis is, in the end, insuperable. But for as long as the offender is imprisoned the statutory purpose of the protection of the community from the danger he poses is furthered.

1. It seems to me that there is difficulty with the idea that if the public cannot be protected absolutely from the dangerously mentally ill then the protection of the community can have no place in the instinctive synthesis by which a sentencing court reaches its conclusion. At the same time, I accept completely that to increase the sentence "for the protection of society" [50], beyond that which proportionality will bear, would lead to impermissible preventative detention.

1. The majority Justices in Veen (No 2), as Basten JA points out, recognised this anomaly. The only answer to the conundrum provided by the majority Justices is that sentencing is not a purely logical exercise. As their Honours pointed out in the passage quoted by Basten JA:

The purposes of criminal punishment ... sometimes ... 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 a 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.

Sometimes it must follow that the protection of society will outweigh the diminution in an offender's moral culpability. On balance the process of instinctive synthesis may produce a sentence no less severe than would have been imposed if the offender had not been suffering from mental abnormality.

1. The presiding judge has found that the relevance of personal deterrence in the present case is reduced ([41]; [54](e)). As Gleeson CJ when Chief Justice of New South Wales pointed out in R v Engert (1995) 84 A Crim R 67 at 68:

...a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

At 68 his Honour pointed out that no:

...automatic consequences follow from the presence or absence of particular factual circumstances.

And at 71 his Honour re-emphasised the point in this way:

... 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.

1. However these differences do not lead me to a different result from the orders proposed by the presiding judge: [s]entencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision: Pearce v The Queen (1998) 194 CLR 610 at 624 [46]; Mill v The Queen (1988) 166 CLR 59.

1. I agree with Basten JA that an appropriate sentence cannot be less than seven years imprisonment ([59]), the adjustments his Honour makes and the orders he proposes.

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Decision last updated: 16 October 2012