Ryan v The Queen

[2011] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

RYAN v R [2011] NSWCCA 69

Hearing dates:

8 March 2011

Decision date:

05 April 2011

Before:

McCOLL JA [1]
RS HULME J [2]
HISLOP J [60]

Decision:

(i) Grant leave to appeal;

(ii) Allow the appeal;

(iii) Quash the sentences imposed by Sweeney DCJ on 12 March 2010;

(iv) Remit the matter to the District Court in order that the Applicant may be re-sentenced.

(v) Direct that, subject to any order made on an application for bail, or of the District Court, the Applicant be remanded in custody meanwhile.

Catchwords:

Criminal law - sentencing - relevance of mental condition - appeal fresh evidence
Solicitor's incompetence

Legislation Cited:

Criminal Appeal Act 1912

Cases Cited:

Many (1990) 51 A Crim 54
Araya & Joannes (1992) 63 A Crim R 123
Iglesias v R [2006] NSWCCA 261
Springer v R [2007] NSWCCA 289

Category:

Principal judgment

Parties:

Aaron Terrence Ryan
Regina

Representation:

Counsel:
Mr Provera (Applicant)
Mr PG Ingram SC (Crown)
Solicitors:
Greenfield Lawyers (Applicant)
S Kavanagh Solicitor for Public Prosecutions (Crown)

File Number(s):

2009/126576 2009/74494

 Decision under appeal 

Date of Decision:

2010-03-12 00:00:00

Before:

Sweeney DCJ

File Number(s):

2009/126576

Judgment

1. McCOLL JA: I agree with the orders proposed by RS Hulme J and his Honour's Reasons.

1. RS HULME J: On 12 March 2010 this Applicant for leave to appeal was sentenced by Sweeney DCJ in respect of two offences of recklessly causing grievous bodily harm. Each of those offences carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years imprisonment.

1. For the first offence the Applicant was sentenced to imprisonment for a period of 3 years including a non-parole period of 2 years both such periods to date from 5 August 2009. For the second offence, the Applicant was sentenced to imprisonment for 3 years and 9 months including a non-parole period of 2 years both such periods to date from 5 August 2010.

1. The total effective sentence was thus one of 4 years and 9 months including an effective non-parole period of 3 years. The commencing date of the sentence reflected pre-sentence custody.

1. The circumstances of the first offence were that during the night of Friday 19 June 2009 the Applicant and his girlfriend went to the home of a Mr Robert Jones. With Mr Jones' permission the Applicant invited friends to join them and there was listening to music and alcohol consumption. The Applicant challenged Mr Jones to a fight in the lounge room. Both were intoxicated. They sparred and wrestled and the Applicant became more aggressive and put Mr Jones in a headlock choking him so he could not breath. Eventually the Applicant released Mr Jones who told the Applicant to go outside. Both did so. The Applicant challenged Mr Jones to another fight. They fought for a short time then stopped and shook hands. The Applicant returned inside the house where he was heard to be arguing with his girlfriend. He then emerged again, walked up to Mr Jones, put a hand on his shoulder and pulled the latter towards him and ran off. Mr Jones then realised he had been stabbed by the Applicant and saw a knife blade protruding from the left side of his stomach. Mr Jones was found to have a perforated bowel, was in hospital for about 6 days and was not permitted to undertake strenuous work for some weeks.

1. The second offence occurred on 24 July 2009. Shortly before it occurred, the Applicant was in one group and the victim in a second group walking along George Street, Sydney. There had been verbal and physical altercations between a woman in the victim's group and women in the Applicant's group. As the victim was walking along the Applicant came up behind him and punched him once forcibly to the back of the head. The victim told the Applicant he did not want to fight but the Applicant punched the victim twice to his face, the second punch causing him to fall to the ground unconscious. The Applicant then punched the victim five or six more times. At the time of this offence also the Applicant was intoxicated.

1. The victim suffered extensive right side facial fractures to his cheek and eye socket, a fractured skull and nerve damage to the middle third of the right side of his face. His injuries have required a number of operations and he has been left with his right eye being set back because there is not enough bone to support his eye socket in its previous position. Some right lower eyelid retraction and some facial numbness.

1. The victim is conscious of his face being disfigured and finds he is more edgy with family, friends and his children and feels his memory is less sharp than it used to be. At the time the victim was 26 years.

1. Her Honour assessed both offences as in the mid range of objective seriousness and allowed a 25% discount for the Applicant's pleas.

1. Her Honour recorded that the Applicant had suffered substantial disadvantage in his upbringing. His parents had separated when he was young. The Applicant and his mother suffered physical abuse for a long time at the hands of her ex-partner. The Applicant's education effectively finished at the end of primary school and his employment history had been affected by illiteracy. Her Honour also observed:-

When he first went into custody, he tried to take his own life and was placed in a bare cell for about 2 weeks for his protection. Since then he has been placed on medication for his conditions. He is still in a form of protection, he said to protect him from other prisoners. There was no evidence given about how restrictive or otherwise the conditions of that regime are, although they permit Mr Ryan to attend school and work, so it is obviously not of the most restrictive kind.

1. At the time of both offences the Applicant was 20 years old. A psychological report by a Dr John Jacmon was tendered before her Honour. In its mixture of discussion of psychological conditions and symptoms generally, and reference to those the Applicant had and did not have, the report was one of the most confusing I have read. However it did record that in an attempt to avoid her partner's violence the Applicant's mother had moved some thirteen times in the space of a few years, that the Applicant could not read or write and had devoted his energies in the sport of kickboxing in which he earned four belts.

1. In evidence before Sweeney DCJ the Applicant said he had received no belts for his kick-boxing.

1. Dr Jacmon did not conduct any assessment of the Applicant's intelligence but recorded a diagnosis of the Applicant having been suffering from depression, anxiety, adult attention deficit hyperactivity disorder, borderline personality disorder and alcohol abuse. Dr Jacmon's conclusions included that the Applicant's symptoms indicated that he suffered from a mental condition and needed protracted treatment available from a mental health facility and was suffering from a mental condition as per s 32 of the Mental Health (Forensic Provisions) Act 1990 . Her Honour expressly accepted that the combination of psychological conditions affected the Applicant's judgment and contributed to both offences.

1. The transcript also reveals that the Corrective Services Department had provided the Applicant with a "support person" during the sentencing proceedings because of his mental disabilities. Her Honour asked as to the exact nature of the support person's role but before this was explained said she had some idea from the person's assistance to the Applicant while the latter was giving evidence. The transcript does not reveal what this assistance was or throw any further light on the matter.

1. Although not mentioned by her Honour, there was also evidence in a Pre-Sentence Report that the Applicant had previously experienced "some incidents of self-harm" and that the abuse from the Applicant's mother's partner had been not only physical but also emotional. It was said that the Applicant had often been required to stay home from school and accompany the partner on shop stealing expeditions. The Pre-Sentence report also described the Applicant as having poor literacy and numeracy skills, and that "he has limited insight and has never developed effective interpersonal skills. He presents as immature and emotionally fragile, which leaves him ill equipped to resolve conflict without resorting to violent solutions, where he can be reasonably confident of success at least in the short term".

1. Reference should be made to the Applicant's record.

In September 2007 he had been placed on a s 9 bond for 12 months for eight offences of obtaining money by deception;

In November 2007 he had been placed on a s 10 bond for driving whilst his licence was suspended. This offence had occurred before the imposition of the bond in September.

In February 2008 he had been placed on an 8 month suspended sentence for being armed with intent to commit an indictable offence for which he had been charged in May 2007.

On the same date he was placed on a s 9 bond for 2 years for two counts of dealing with stolen property for which he had been charged in November 2008.

In September 2008 he had been fined for driving with an excess quantity of alcohol on his blood. This offence was committed during the currency of the above bonds.

1. Conditions of the bond of September 2007 required the Applicant to obey any reasonable directions of the Probation and Parole Service in respect of drug and alcohol rehabilitation. Conditions of the bond and suspended sentence of February 2008 required the Applicant to obey any reasonable directions of that Service in respect of psychiatric and psychological counselling.

1. It follows that the offences the subject of these proceedings were also committed whilst the Applicant was on conditional liberty, a condition of which was that he be of good behaviour. Her Honour also recorded that at the time of the offences the Applicant was on bail for an offence of damage to property for which he was subsequently dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 . This offence does not appear on the Applicant's antecedents record but there was no suggestion her Honour's reference to it was wrong. Of course, bail also carried with it an undertaking to be of good behaviour.

1. The grounds of appeal are:

(1)   The sentencing judge erred in failing to give sufficient weight to the mental illness, psychological condition and general disability of the applicant and, in particular, its effect upon.

(a)   The Applicant's moral culpability;

(b)   The role of general deterrence in the sentencing exercise;

(c)   The role of specific deterrence in the sentencing exercise.

(2)   The sentencing judge failed to give any, or any proper, regard to the particular hardship of imprisonment arising from:

(d)   The nature of the custody which was necessary, specifically protective custody, or

(e)   The Applicant's mental illness, psychological condition and general disability.

(3)   The sentencing judge failed to give proper consideration to the applicant's age and other relevant facts in assessing his prospects of rehabilitation and likelihood of re-offending.

(4)   A miscarriage of justice occurred as a result of the incompetence of counsel - it was in fact a solicitor - who appeared for the Applicant on sentence.

(5)   The sentence imposed was manifestly excessive.

1. In addition to these grounds, the Applicant sought to further his appeal by persuading the Court that it should admit evidence additional to that which was before the sentencing judge. This additional evidence consisted of:-

(i) A psychological assessment report dated 22 September 2010 prepared by Mr Sam Borenstein, clinical psychologist;

(ii) An Affidavit of Ms Jasmine Pyke, the Applicant's mother dated 16 November 2010; and

(iii) A letter dated 2 November 2010 from Mr Steve Griffiths, Legal Officer, Corrective Services NSW, confirming the Applicant's prison classification.

1. It is convenient firstly to consider grounds 1 to 3 together. In support of the first ground, counsel for the Applicant drew attention to authorities including R v Israil [2002] NSWCCA 255 and R v Pham [2005] NSWCCA 314 and the cases therein cited that establish that an offender's mental condition may have relevance:-

• Insofar as it contributes to the commission of an offence;
• In that it may render an offender an inappropriate vehicle for general deterrence;
• In that specific deterrence may be entitled to less weight.
• As affecting the weight a custodial sentence on an offender may have; and
• As bearing on the level of danger an offender may present.

1. In the course of her remarks, her Honour said that she accepted that the combination of the Applicant's conditions described by Mr Jacmon affected the Applicant's judgment and contributed to his offences, albeit going on to remark that alcohol was also a factor that contributed to his impaired judgment. Her Honour also observed:-

Sentencing Mr Ryan presents a difficult exercise in balancing the objective seriousness of his offences with his subjective factors, including his youth, difficult childhood and the psychological conditions he has which need attention. These subjective factors should not outweigh the objective seriousness of the offences, but they must be balanced.

He wishes to be rehabilitated. His record is not so lengthy as to preclude that, although he has not previously taken advantage of opportunities to undertake rehabilitation under supervision. He has begun that process by going to school and working in custody and has some steps in place to obtain work on his release. He has his family's support. He will need some solid attention to achieve his rehabilitation.

Because Mr Ryan is so young, at 21, rehabilitation should be a focus of sentencing him. However, because his offences are of the kind commonly committed by alcohol affected young men, due regard must also be had to general deterrence and denunciation in sentencing Mr Ryan.

1. Earlier her Honour had made the remark I have quoted concerning the Applicant's suicide attempt in custody and being on protection.

1. While these remarks indicate that her Honour was very conscious of the Applicant's psychological condition, age, and factors bearing on his rehabilitation and she did address the contribution that the Applicant's mental condition made to his offending, it is obvious that her remarks do not encompass all of the considerations referred to in the authorities relating to mental illness.

1. That said, the conditions Dr Jacmon diagnosed, depression, anxiety, adult attention deficit hyperactivity disorder, borderline personality disorder and alcohol abuse are sufficiently common in offenders facing sentence that it does not seem to me that whenever one or more of them are present that a judge must necessarily expressly advert to their significance to all of the factors referred to in [21] above. That leaves the question whether the Applicant's mental condition was sufficiently bad as to require more attention than it received.

1. In my view it was. Although the matter is one of degree and to some extent of impression, the evidence before her Honour indicated that the Applicant suffers from significantly more mental and developmental problems than the vast majority of offenders. Thus the case was one where her Honour should have directed attention to more ways in which an offender's mental condition can impact on sentencing than she did. Particularly is this so when regard is had to what her Honour did say on the question of general deterrence in remarks I have quoted. The issue of specific deterrence and the significance of the lack of interpersonal skill, immaturity and emotional fragility to imprisonment should also have been addressed.

1. In so concluding I do not ignore the fact that there is a deal to be said for the view that the relativity between the sentences imposed on the Applicant and the statutory criteria demonstrates a degree of leniency that could be said to indicate that her Honour did give substantial weight to the Applicant's mental condition. Once account is taken of the 25% discount for the Applicant's plea, the maximum 10 year period of imprisonment reduces to 7 years. The second head sentence was but half of this and the first head sentence appreciably below half. Once account is taken of the 25% discount for the Applicant's plea, the 4 year standard non-parole period effectively reduces to 3 years. Each non-parole period imposed was 2 years. Although her Honour found each offence was in the mid range of objective seriousness, it was a very serious example of its kind. The unprovoked stabbing that constituted the first offence was liable to cause great injury and perhaps death, to its victim and the punching of an unconscious man in the face, leaving residual injuries, is conduct no civilised society can tolerate.

1. Nevertheless, her Honour's remarks do not permit any conclusion other than that she did not consider or allow for the Applicant's mental condition in her assessment of the weight to be given to general or personal deterrence. Accordingly, I would uphold grounds 1(b), 1(c), and 2(b). It is unnecessary to express any views on the remaining aspects of grounds 1 to 3.

1. It is also unnecessary to express any concluded view on ground 5 although the matters to which I have just referred indicate that the sentences imposed were, judged by the material before her Honour, not manifestly excessive, especially when regard is had to the fact that the Applicant was on parole and bail at the time.

1. Notwithstanding the conclusions just expressed concerning grounds 1 and 2, in the circumstances of the case it is appropriate to say something about ground 4 and the application to adduce further evidence. That further evidence would, of course, be relevant to any re-sentencing by this Court.

1. As has been indicated, the further evidence sought to be adduced fell into three categories, a psychological assessment report of Mr Sam Borenstein, an affidavit of Ms Jasmine Pyke, the Applicant's mother, and a letter from Mr Steve Griffiths of Corrective Services NSW.

1. Mr Borenstein recorded that the Applicant appeared vague on examination and appeared perplexed and presented as a difficult historian. Asked about prior instances of anger or violence, the Applicant said, "I don't know". The Applicant impressed Mr Borenstein as being disorganised, lacking executive function, of very low intelligence, displaying poor memory, suffering from a major intellectual deficiency and lacking personal and interpersonal skills. Tests conducted by Mr Borenstein indicated that the Applicant's verbal intelligence placed him in the bottom 0.3 % range. Performance testing placed him in the bottom 0.1% range. His reading age was less than 5.3 years and he could not perform simple addition and subtraction.

1. So far as the stabbing was concerned the Applicant told Mr Borenstein that he had learnt that night that the victim was a relative of his mother's former partner and because of what that person had done to his family, the Applicant in his words "sort of freaked out". Neither the pre-sentence report nor that of Dr Jacmon contained any reference to the topic of any discovery by the Applicant of the relationship between the victim of the first offence and the Applicant's mother's former abusive partner.

1. Despite apparently telling Dr Jacmon he was accustomed to drinking on average about half a bottle of spirits a day and having given evidence before Sweeney DCJ that drinking had been a problem for him, the Applicant told Mr Borenstein that he did not drink much and was not a regular consumer of alcohol, except apparently when he was in the company of his girlfriend Vicki. Despite his record, and having been questioned concerning parts of it before Sweeney DCJ, to Mr Borenstein the Applicant denied any prior criminal history.

1. The Applicant also told Mr Borenstein that he had been admitted to Bungarrabe House at Blacktown Hospital because, "I slashed my wrists up pretty bad, because of my ex-girlfriend, I didn't want to handle what she wanted me to do all the time". There, he was prescribed a variety of medicines although, for a reason he could not explain, he stopped taking them when he met his girlfriend. The Applicant also said that he felt better with medications "because I don't want to kill myself all the time".

1. Mr Borenstein opined that the Applicant "needs to abstain from alcohol althogether, as the combined effects with his cognitive and personality deficiencies with alcohol is potentially dangerous in ways that led to his current charges" and he doubted "given Aaron's level of intellectual disability he will ever be able to learn or read to become numeric".

1. In her Affidavit the Applicant's mother attests to having been the subject of gross violence and abuse over a number of years between 1998 and 2004 at the hands of her former partner. She said that much of this abuse occurred in the presence of the Applicant, resulted in some forty occasions when the police were telephoned, sometimes by the Applicant and also resulting in her moving the family some 18 times in an attempt to get away from that partner. Ms Pyke said that police concerns for the welfare of the Applicant resulted in excess of fifteen reports to DOCS concerning his welfare, and that her partner would often not allow the Applicant near her.

1. She said that her former partner was a heroin user, regularly shot up in front of the Applicant and would turn up at the Applicant's school strongly affected by heroin. She recounted one incident when her partner kidnapped the Applicant in an endeavour to have his mother go to him. She also said that Mr Jones was related to the former partner.

1. Ms Pyke also said that the Applicant was diagnosed with severe ADHD when he was about 8 years and then treated for some 4 years, and that he had been hospitalised on a number of occasions because of mental health issues. However, she detailed only two - once when he tried to cut his arms in the presence of his girlfriend Vicki and once when he was admitted to Bungarribee House, Blacktown Hospital after being sectioned (sic) by police after he had damaged an hotel room. Again Vicki was present. Ms Pyke also referred to the Applicant drinking with friends and coming home drunk. She said this drinking increased when he was in a relationship with Vicki.

1. Ms Pyke was cross-examined. In the course of her evidence she said that she had informed the solicitor who then appeared for the Applicant - not the solicitor who appeared in this Court - that her son was very childish, very young, couldn't read or write and could not repeat matters said to him, and that she had provided the solicitor with a large quantity of documentation including one or more psychological reports concerning the Applicant and documents from the police and DOCS that dealt primarily with the conduct of her partner. (One would doubt if the DOCS' documents did not also deal with the Applicant and the impact or likely impact of the partner's conduct upon him.)

1. Ms Pyke also said that she had found it very hard to speak to the solicitor although she also said that she had had about three significant conversations with him. She could not find him to talk to him on the day evidence and submissions on sentence were given - a claim that derives some support from the transcript of that day that indicates the solicitor was in some other court when the Applicant's matter was called on. She said that after the sentencing she sought from the solicitor to know why the sentencing judge did not receive some of the information she had provided but received no reply. She also said that the solicitor had made no requests of her for further information after receiving the bundle of documentation. It may be added that it seems clear also from the terms of the Pre-Sentence Report and that of Dr Jacmon that Ms Pyke was not spoken to by either of their authors.

1. This further evidence is to be compared with that which was before Sweeney DCJ. As has been said, the Pre-Sentence Report and/or that of Dr Jacmon referred to the Applicant experiencing emotional and physical abuse from his mother's partner for some 6 years after 1999, suffering from ADHD, having poor literacy and numeracy skills, having been involved in some incidents of self harm, having a history of heavy alcohol use, never having developed effective inter-personal skills and presenting as immature and emotionally fragile. Dr Jacmon's report referred to the Applicant's mother's partner as "a violent heroin addict" (who) "frequently assaulted Mr Ryan and his brother", and the Applicant having been taken away at one stage by DOCS.

1. While the report of Dr Jacmon made no mention of prior admission to psychiatric institutions it did say that the Applicant's scores on psychometric assessment were indicative of a person who entertained periodic and transient thoughts about suicide. On the other hand, under the heading "Clinical Assessment" Dr Jacmon also said:-

Mr Ryan's description of day-to-day functioning at the present time led to the identification of the following symptoms, classified in terms of DSMIV criteria:

....

recurrent thoughts of death (not just fear of dying), recurrent suicide ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide. Not indicated ."

1. I confess to great difficulty in determining what inference or inferences should be drawn from this combination of statements.

1. It should be mentioned also that, although Ms Pyke was not called in the sentencing proceedings before Sweeney DCJ, her Honour recorded that both of the Applicant's parents were present in court to support him during the sentencing proceedings.

1. A comparison of the further evidence sought to be relied on and that which was before Sweeney DCJ reveals that the two parcels had much in common. The principal differences are that the further evidence does contain appreciably more information as to the extent of the emotional abuse the Applicant must have endured in consequence of the actions of Ms Pyke's partner, that he had in fact been admitted to mental institutions, and an explanation for the knife attack on Mr Jones. The further evidence also provides information as to the Applicant's very low level of intellectual functioning with a specificity that takes it well beyond what could be inferred from the evidence provided at the sentencing proceedings.

1. Of course, there are also the erroneous statement as to his record and the inconsistency in the Applicant's account of his alcohol consumption. Upon the basis that there is nothing to indicate that this inconsistency concerning alcohol was not simply the product of the Applicant lying on one occasion, I would place no significance on the inconsistency but the lack of sense in denying his record makes one wonder if there is not some deeper explanation for that.

1. The third area of further evidence upon which reliance was placed, the letter from Mr Griffiths of 2 November 2010, stated that the Applicant had at his own request been placed on a Special Area Management Plan which was the lowest level of protection available to inmates in custody in New South Wales. Mr Griffiths' letter also went on to say that the Applicant had regular access to a Corrective Services Psychologist, a Welfare Officer and Jail Educational Facilities and was not currently restricted from associating with any other inmates at the Correctional Centre where he was incarcerated all of whom were the subject of a similar SMAP order.

1. The Applicant had given evidence before Sweeney DCJ to the effect that he was on protection "from other inmates and stuff because they don't like them"... "like they scare me a little bit that's why". He also gave evidence that he had been doing some work while in custody and three certificates indicating achievement in courses in visual arts and awareness of work place safety issues and practices were tendered on his behalf.

1. Given the limited extent of the additional material provided by Mr Griffiths, I see no basis upon which Mr Griffith's evidence could be regarded as providing any foundation for an appeal.

1. Apart from Ground 4, the principal basis upon which it was submitted that the further evidence should be received, was the contention that it would cause an injustice to the Applicant not to receive it. Reference was made to the decision of this Court in Many (1990) 51 A Crim R 54 at 61-62 and Araya and Joannes (1992) 63 A Crim R 123 at 129-130.

1. In the first of these cases, Gleeson CJ indicated that the rationale for admission of fresh evidence was that it was "in the interest of justice" to admit it and referred to Gallagher v R (1986) 160 CLR 392 at 395 . In the second, his Honour suggested that the rationale was in order "to determine whether a miscarriage of justice has occurred".

1. Gallagher v R was a case involving an appeal against conviction, a matter to which s 6(1) of the Criminal Appeal Act which includes the expression "miscarriage of justice" applies. Section 6(3) which is a sub-section dealing with an appeal against sentence does not contain that expression but states the test as "some other sentence, whether more or less severe is warranted in law and should have been passed". It is by no means apparent that the tests are in practical sense the same. However, the matter was not argued and accordingly there is no occasion to discuss the matter further. I should however also observe that the Court has generally adopted a restrictive approach as to when fresh evidence in sentence appeals will be received - see Iglesias v R [2006] NSWCCA 261 at [10]; Springer v R [2007] NSWCCA 289; 177 A Crim R 13.

1. Nevertheless it is clear that there are occasions when the Court has allowed evidence of facts existing at the time of original sentencing in circumstances where the offender did not realise their significance at that time and could not inform the legal advisers of them - see Springer v R at [3] where McClellan CJ at CL referred to R v Goodwin (1990) 51 A Crim R 328; R v Cartwright (1989) 17 NSWLR 243 at 257; R v W [2001] NSWCCA 172 at [23]; and R v MJM [2004] NSWCCA 66 at [46].

1. It was submitted that, when regard was had to the Applicant's mental condition, the inference to be drawn was that he would not have realised the importance of the matters revealed in the further evidence. Given the evidence as to the Applicant's intellectual capacity this submission should be accepted.

1. There is much to be said for the view that the nature and extent of the further evidence is such as to justify this Court allowing the appeal on the basis of it. However I do not need to decide whether, without more, that ground would succeed for it is strengthened by some of the matters incidental to the fourth ground. Particulars of the matters relied on as the Applicant's solicitor's suggested incompetence were:-

(1)   Counsel appearing for the applicant during the sentence proceedings failed to properly identify and to correctly adduce evidence before the Court of the following relevant matters:

(a)   the true history of the applicant's alcohol abuse;

(b)   the applicant's extensive history of mental health issues, including his detention in mental health facilities;

(c)   the applicant's history of treatment and medication;

(d)   the applicant's significantly impaired level of intellectual functioning;

(e)   the role and effect of the applicant's destructive relationship with his then girlfriend, Vicky Patterson;

(f)   the role and significance of discovery by the applicant of the relationship between the Robert Jones, who was the victim of the wounding on 19 June 2009, and the applicant's abusive former step-father ...;

(g)   the nature of the applicant's custody and the hardship such custody caused the applicant;

(h)   the particular hardship that the applicant faced in custody due to his significantly impaired level of intellectual functioning.

(2)   Despite significant concerns being raised by the sentencing judge and by the Crown as to the report of Dr Jacmon, counsel appearing for the applicant failed to seek an adjournment so that the report could be clarified, summarised, or amended (5/3/10, p.3).

(3)   Despite the sentencing judge asking for assistance so as to determine the level of the applicant's intelligence and the nature and extent of any disability, counsel appearing for the applicant failed to seek leave to adduce such evidence, or an adjournment to obtain such (5/3/10, p.14).

(4)   Despite the sentencing judge pointing out the lack of evidence as the nature of the applicant's custody, counsel appearing for the applicant failed to seek leave to adduce such evidence, or an adjournment to obtain such (5/3/10, p.18).

(5)   A miscarriage of justice occurred as the sentencing judge was deprived, through the incompetence of counsel, of fundamental facts needed to correctly sentence the applicant.

1. A number of these complaints are without substance. Indeed, those listed as 3, 4 and 5 misrepresent what the sentencing judge in fact said or did. However, matters 1(b) and 1(d) are of significance. Given the information that was then available on the matters the subject of these paragraphs, the omission to place before Sweeney DCJ a far more complete account of the Applicant's situation is, to say the least, cause for disquiet. That disquiet is not diminished by the fact that, when Sweeney DCJ did raise with the solicitor the question of whether Dr Jacmon had conducted any intelligence tests, the solicitor's reply indicated that, without looking through the doctor's report again, the solicitor did not know, or by Ms Pyke's apparent difficulties in communicating with him. It is surprising also that, given neither the author of the Pre-Sentence Report or Dr Jacmon had apparently received information from Ms Pyke, she was not called to give evidence of her son's problems and history.

1. In this Court the Crown drew attention to the fact that the solicitor was not called to explain what had occurred or to indicate what information had been provided to him. That is undoubtedly so but privilege was waived so equally he could have been called by the Crown. In the circumstances I am not disposed to draw any inferences adverse to either party from the solicitor's absence from these proceedings. Nor do I find it necessary to proceed further with the question of whether the solicitor was incompetent. When all of the matters to which I have referred when dealing with Ground 4 and the topic of further evidence are taken into account, I am satisfied that the case is one where, in the interests of justice, the sentence below should be quashed and the Applicant re-sentenced.

1. The Crown indicated that, if that was to occur, it wished the matter to be remitted to the District Court so that the further evidence put before this Court could be tested. Such a course was not opposed and is appropriate. Accordingly, the orders I propose are:-

(i) Grant leave to appeal;

(ii) Allow the appeal;

(iii) Quash the sentences imposed by Sweeney DCJ on 12 March 2010;

(iv) Remit the matter to the District Court in order that the Applicant may be re-sentenced.

(v) Direct that, subject to any order made on an application for bail, or of the District Court, the Applicant be remanded in custody meanwhile.

1. HISLOP J: I agree with RS Hulme J.

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Decision last updated: 05 April 2011