Turner v The Queen

[2016] NSWCCA 208

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Turner v R [2016] NSWCCA 208

Hearing dates:

27 June 2016

Decision date:

30 September 2016

Before:

Leeming JA at [1];
McCallum J at [2];
R S Hulme AJ at [3]

Decision:

In respect of Proceedings 2009/00058502:

 

(i)   Grant leave to appeal in respect of the sentence imposed for assault occasioning actual bodily harm;

 

(ii)   Allow the appeal in respect of that sentence;

 

(iii)   Quash that sentence, and in lieu;

 

(iv)   Sentence the Applicant to imprisonment for a non-parole period of 9 months commencing on 17 April 2011 together with a further term of 3 months;

 

(v)   Refuse leave to appeal in respect of the sentence imposed for intentionally damaging property.

 

In respect of Proceedings 2011/00142641:

 

(i)   Grant leave to appeal in respect of the sentences imposed for the offences of attempting to have aggravated sexual intercourse and having aggravated sexual intercourse;

 

(ii)   Allow the appeal in respect of those sentences;

 

(iii)   Quash those sentences and in lieu;

 

(iv)   In respect of the offence of attempted aggravated sexual intercourse, sentence the Applicant to imprisonment for a fixed term of 4 years commencing on 17 September 2011;

 

(v)   In respect of each of the offences of aggravated sexual intercourse, sentence the Applicant to imprisonment for a non-parole period of 5 years commencing on 17 June 2012 together with a further term of 3 years commencing on 17 June 2017;

 

(vi)   Refuse leave to appeal in respect of the sentence imposed for assault occasioning actual bodily harm;

 (vii)   Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole, 17 June 2017.

Catchwords:

Criminal law – sentence – availability of Local Court – sentence manifestly excessive

  Criminal law – sentence – protective custody – disadvantaged upbringing and mental health – accumulation of sentences

Legislation Cited:

Crimes Act 1900 (NSW), ss 59, 61J, 61P

Cases Cited:

Baines v R [2016] NSWCCA 132
Cowan v R [2015] NSWCCA 118
Des Rosiers v R [2006] NSWCCA 16; 159 A Crim R 549
Ingrey v R [2016] NSWCCA 31
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McCullough v The Queen [2009] NSWCCA 94; 194 A Crim R 439
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
NM v R [2012] NSWCCA 215
R v Burchell (1987) 34 A Crim R 148
R v Couch-Clarke [2010] NSWCCA 288
R v Crombie [1999] NSWCCA 297
R v Dalton-Morgan (unreported, NSWCCA, 14 December 1989
R v Jason Smith (unreported NSWCCA 11 September 1991)
R v Totten [2003] NSWCCA 207
Regina v El Masri [2005] NSWCCA 167
Regina v Palmer [2005] NSWCCA 349
SM v R [2016] NSWCCA 171
Smith v R [2007] NSWCCA 138
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460

Category:

Principal judgment

Parties:

Peter Turner - Appellant
Regina - Respondent

Representation:

Counsel:
Ms H Cox - Appellant
Mr NJ Adams - Respondent Crown

  Solicitors:
Aboriginal Legal Service
Solicitor for DPP

File Number(s):

2009/00058502; 2011/00142641

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

30 May 2013

Before:

Judge English; Judge Syme

File Number(s):

2009/00058502; 2011/00142641

Judgment

1. LEEMING JA: I agree with R S Hulme AJ.

2. McCALLUM J: I agree with R S Hulme AJ.

3. R S HULME AJ: Subject to any issue that arises out of delay in lodging documents, the Court has before it two applications for leave to appeal against sentence. The first relates to sentences imposed by English DCJ on 30 May 2013 in proceedings 2009/00058502. The second relates to sentences imposed by Syme DCJ on 15 November 2013 in proceedings 2011/00142641.

Lateness of the Applications

4. The Notices of Appeal contained in the Appeal Book were filed on 28 January and 10 February 2016 and during the hearing the issue arose whether the Court should entertain appeals that seemed to be so late.

5. However access to the Court records shows that Notices of Intention to Appeal were lodged on 20 November 2013 and 14 January 2014. The time for lodging Notices of Appeal was extended by the Registrar on 8 occasions, ultimately to 30 January 2016.

6. The topic was also the subject of affidavits which revealed that on 7 November and 9 December 2013, Mr Turner advised the Aboriginal Legal Service that he wished to appeal against the severity of his sentence imposed by English DCJ and that in the interim and following month or so there were a number of conversations between solicitors and attempted contact with the Court registry. Arguably relevant to the topic of delay, is also the fact that the trial before Syme DCJ occurred in February 2013 and it was listed for sentence on 26 July, 16 August, 4 October and 15 November 2013. However I need not pursue this aspect. The Court records make it clear that both appeals are within time.

2009 Proceedings

7. The sentences imposed by English DCJ were in respect of charges that arose out of an altercation which occurred on 5 May 2009 at the Kingswood TAFE between the Applicant and a Clinton Walker. In consequence the Applicant was charged with:-

(i)   Inflicting grievous bodily harm with intent to cause grievous bodily harm;

(ii)   Reckless wounding;

(iii)   Assault occasioning actual bodily harm; and

(iv)   Intentionally damaging a mobile phone.

8. The Applicant pleaded guilty to the fourth charge. He stood for trial on the other charges. Taking the view that the injury to the victim did not amount to grievous bodily harm, her Honour directed that the Applicant be acquitted on the first charge. A jury found him not guilty on the second but convicted on the third. Pursuant to s 59(1) of the Crimes Act 1900 that charge carried a maximum penalty of imprisonment of 5 years.

9. On 30 May 2013, her Honour sentenced the Applicant to a fixed term of imprisonment of 6 months commencing on 17 April 2011 for the mobile phone offence and, for the assault offence, imprisonment for 2 years 6 months and 16 days including a non-parole period of 1 year 10 months and 26 days, both such periods also commencing on 17 April 2011.

10. Her Honour specified that the non-parole period of the longer sentence would expire on 14 March 2013 and that the Applicant would be eligible for parole on that day. As a matter of law both statements cannot be correct but nothing turns on that fact in the instant appeal.

11. It is not apparent how her Honour arrived at the somewhat odd periods she nominated although it is clear that some pre-sentence custody was taken into account. Be that as it may, it was not suggested that the unusual nature of the periods bespoke error.

12. The Applicant has sought leave to appeal against the sentences imposed by English DCJ upon the grounds:-

(i)   The sentencing Judge erred in failing to take into account that the charges could have been dealt with in the Local Court and to have regard to the maximum penalty in such a case.

(ii)   The individual sentences and the effective sentence are manifestly excessive.

13. Although the sentences imposed by English DCJ have expired, the duration of the non-parole period her Honour fixed was relied on to determine the commencement of the first of the sentences imposed by Syme DCJ, and no doubt influenced the commencement of the others so has a continuing relevance.

2009 Proceedings – Circumstances of Offending

14. The circumstances of the offending involving Mr Walker and some of English DCJ’s findings and remarks were as follows.

15. At the Kingswood TAFE the Applicant walked past the victim who said something to him. The Applicant went to the toilets and when he was walking out the victim opened the toilet door quickly causing injury. An argument ensued in which the victim was the aggressor. The Applicant turned away saying words to the effect “leave me alone.” The victim said something further and the Applicant turned and approached the victim. Punches were thrown, some of which caused marks to the Applicant’s face and one of which caused the victim to strike his head on a door jamb and to fall unconscious to the floor. While the victim lay unconscious, the Applicant, according to her Honour, punched and kicked the victim viciously. The Crown submissions to her Honour would indicate that there was in fact only one kick, although a powerful one. By-standers attempted to prevent further assault and the Applicant picked up the victim’s phone and threw it causing it to hit a wall and be destroyed. The Applicant’s demeanour at the time was described by Crown witnesses as “pretty angry” and “raging at the time”.

16. The striking of his head on the door jamb occasioned a minimally displaced fracture of the victim’s right orbital floor. The victim also suffered lacerations to his facial area, some minor, and some of which required suturing. The victim was discharged from hospital on the same day and her Honour recorded that there was no victim impact statement indicating any substantial ongoing emotional harm suffered by the victim.

17. The Applicant was born in July 1982. At the time the Applicant was sentenced by English DCJ (on 30 May 2013) the only significant matters on his record, the relevant charge dates and sentences imposed were:-

1998 – Shoplifting – dismissed with a caution under s 33 (presumably of the Mental Health Act).

January 2001 – Aggravated robbery – Imprisonment for 2 years 6 months.

June 2001 – Assault occasioning actual bodily harm – $500 fine.

August 2001 - Robbery armed with an offensive weapon – Imprisonment for 4 years and 6 months including a non-parole period of 2 years and 6 months commencing on 30 July 2001.

April 2006 – Behaving in an offensive manner – Fine of $500.

August 2010 – Common assault and stalking with intent to cause fear of harm – Two 18 month s 9 bonds.

18. Her Honour referred to the Applicant having “lengthy criminal antecedents” including in those the offences committed in 2010 and those tried before Syme DCJ and of which, by the time English DCJ came to sentence the Applicant he had been convicted. English DCJ continued:-

From the history contained in the reports of Dr Furst, the psychiatrist, the offender had a troubled upbringing. He attended Kingswood High School and then Penrith Christian College. He regularly truanted from school however was able to complete his Year 10 Certificate. He was, at the time of the commission of this offence, two weeks shy of completing a Diploma in Information Technology at TAFE. Unfortunately he was prevented from completing his Diploma as a result of the charges brought against him.

He has a history of abusing cannabis from the age of about 13. He says his usage escalated and by the time he was 17 or 18 he was using one gram a day. He had tried heroin on one occasion and amphetamines on another but stated they had no effect and that was when he was 16 or 17. He commenced to abuse alcohol at the age of 10 drinking as much as his uncles would supply to him. He described himself as an alcoholic from the age of 16. He has undergone some drug and alcohol counselling in the past. He was exposed to significant domestic violence. His father stabbed an uncle at a party. The offender says he was kidnapped by his father who had “knocked his mother out”. His father also shot his mother. It was an unhappy childhood. His mother re-partnered but he continued to suffer physical abuse at the hands of her partners. He says he was sexually abused by an uncle.

Following conflict with his mother in his late teens he was asked to leave the family home and he lived on the streets. From the age of 19 he began to suffer symptoms consistent with schizophrenia, he would hear voices and see images and began to experience paranoia.

When he was admitted into custody previously he was prescribed Seroquel by a psychiatrist. Unfortunately when he was released from custody he failed to comply with his treatment regime and he stopped taking his medication in about March 2009. He says in any event the Seroquel never totally controlled his symptoms.

He was admitted to the Pialla Unit at the Nepean Hospital in November 2010 for a week and he was again prescribed Seroquel. He says following his release from hospital he was unable to obtain a health care card and he stopped taking his medication as it was too expensive to purchase. In any event he did not like the side effects from taking it.

There were further episodes of paranoia and aggression in December 2010 which resulted in him being returned to custody between 29 December 2010 and 23 January 2011. His antipsychotic medication was changed to Risperidone and he attended for follow up treatment with the Penrith Mental Health team. His treating psychiatrist was Dr Anwar.

On 29 April 2011 the offender overdosed on a large quantity of medication, heroin and alcohol. According to the report of Dr Furst dated 25 September 2011 as a result of a significant physical insult from his overdose the offender lost the use of his legs and is now a paraplegic, he is wheelchair bound.

Following the breakdown of his relationship with his former partner he had stopped taking his medication and he had begun to abuse amphetamines and Valium and to binge drink. At the time of the second consultation with Dr Furst the offender had been prescribed Solian, a medication which was causing fewer side effects and assisting him to think more clearly.

…

He is an offender who was exposed to drug and alcohol abuse and physical and sexual abuse from a very young age. There is no doubt that he developed a psychotic disorder and is now in need of ongoing psychiatric care. He is of course now disabled because of the drug overdose in 2011. The state of his mental health and his disability will make his time in custody more onerous.

…

I am unable to find him remorseful or contrite other than to the extent of his plea to the property damage charge… His prospects of rehabilitation remain guarded, more so because of the state of his mental health and his failure in the past to comply with treatment regimes which have been put in place to assist him. I do find only now, because he is wheelchair bound, that the likelihood of him re-offending is low, otherwise such a finding could not be made.

His record for serious offences of violence is one which disentitles him to leniency although it does not aggravate the offence for which he is now being sentenced. The offence for which he is now being sentenced is a prevalent offence and it must attract a significant component for general deterrence in any sentence to be imposed. This was a particularly vicious assault upon an unconscious victim who was laying on the floor unable to defend himself. …

I referred earlier to the criminal antecedents of the offender, as I have said they do not aggravate this matter but I do find there is a need for specific deterrence to address retribution, deterrence and protection of the community. This was not an uncharacteristic aberration on the part of this offender. He was willing to engage in an act of violence demonstrating a continuing disobedience of the law. I have had regard to the seriousness of the offence committed and the subjective circumstances of the offender. I find that only a sentence of full time custody will suffice.

I am asked to make a finding of special circumstances but I decline to do so. This is not the first occasion on which this offender has found himself in custody. I have taken into account the state of his mental health and the fact that he is wheelchair bound but he is no longer a young man. …

19. Dr Furst’s reports to which reference was made were obtained in April and September 2011. Of these only that of 9 April 2011 was before this Court.

2009 Proceedings – Ground 1

The sentencing Judge erred in failing to take into account that the charges could have been dealt with in the Local Court and to have regard to the maximum penalty in such a case.

20. One issue that arose during the hearing of the appeal was whether the point the subject of this ground was ever taken before English DCJ.

21. There was no reference to the matter in oral submissions made by defence counsel in the court below but written submissions he made have been lost. The result is that no-one knows if the point was ever taken before her Honour. In this situation the Court should consider the ground on its merits.

22. There is no doubt that the charges of reckless wounding, assault occasioning actual bodily harm and that involving the mobile phone could have been dealt with in the Local Court where the maximum period of imprisonment that could have been imposed for each charge was 2 years and there is in her Honour’s remarks no reference to the fact. The charge of inflicting grievous bodily harm could not have been dealt with in the Local Court.

23. It is also clear that as the charges arose out of the fight between the Applicant and Mr Walker, they could only sensibly be tried together. English DCJ concluded that the injury suffered by Mr Walker did not amount to grievous bodily harm but it is not so obvious that a fractured eye socket does not fall into that category that one can say the most serious of the charges should never have been brought.

24. That an offence dealt with in the District Court could have been dealt with in the Local Court is commonly considered a matter relevant to a determination of the appropriate sentence. I confess I do not understand why in most cases this should be so. The objective seriousness of an offence and the offender’s subjective circumstances are the factors that should influence a determination of the appropriate sentence and, subject to the qualifications that follow, I can see no reason why, for a particular offence and offender, it should matter which Court imposes a sentence. Of course there is a jurisdictional limit on the Local Court as to the maximum sentence it can impose and there may be particular statutory provisions to which regard must otherwise be had.

25. However, there are many cases which decide or reflect a view that the possibility that a matter could have been dealt with in the Local Court is relevant – see e.g. R v Crombie [1999] NSWCCA 297 at [16], Regina v Palmer [2005] NSWCCA 349 at [14]-[15], Regina v El Masri [2005] NSWCCA 167 at [30] and Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460. That said, in Baines v R [2016] NSWCCA 132 at [10] Basten JA observed that how the fact that a matter could have been dealt with in a Local Court contributes to mitigation is by no means clear. See also SM v R [2016] NSWCCA 171 at [26].

26. Although I have not carried out an exhaustive search, the earliest case in this line I am aware of is R v Dalton-Morgan (unreported, NSWCCA, 14 December 1989) where however a particular statutory provision provided grounds for the decision reached. That factor does not seem to have been recognised in later cases, e. g. R v Jason Smith (unreported, NSWCCA, 11 September 1991) and R v Crombie. Be that as it may, the general principle was not the subject of debate in the instant application and I shall accordingly proceed in accordance with past practice.

27. It was submitted on behalf of the Applicant that, whether or not there was any submission to English DCJ that she should take account of the fact that the assault occasioning actual bodily harm charge could have been dealt with in the Local Court, the relevant circumstances were before her Honour and she was therefore obliged to consider them, including the maximum penalty that was available had the matter been dealt with in the Local Court.

28. In that connection counsel for the Applicant referred the Court to Cowan v R [2015] NSWCCA 118 at [40] and Ingrey v R [2016] NSWCCA 31. In the former case Bellew J, with the concurrence of Bathurst CJ and Simpson J, observed:-

There was considerable evidence before the sentencing judge regarding the applicant’s mental state. In these circumstances, and notwithstanding the absence of any specific submission as to the principles governing the sentencing of mentally ill offenders, the sentencing judge was under an obligation to consider those principles and, if appropriate, to apply them. I am fortified in that view by the recent observations of Price J (with whom Hidden and Schmidt JJ agreed) in Martin v R [2015] NSWCCA 6 at [53]:

“It is evident from these opinions that the applicant’s mental disorders may have contributed to his offending. Although a specific submission was not made by the applicant’s counsel on this issue, the focus of the applicant’s case on sentence as his mental health. In my respectful opinion, the judge was obliged to expressly make some assessment as to whether the applicant’s moral culpability for the serious crimes that he committed was reduced by his mental condition. In assessing the objective seriousness of the offences, her Honour did not make any reference to the applicant’s mental health and erred in not doing so.”

29. In the second Hoeben CJ at CL, with the concurrence of Adams and Fullerton JJ remarked:-

34.   It is true, as the Crown submitted, that in Bugmy v The Queen the plurality said:

“40 … The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.” (emphasis added)

35.   My understanding of that statement is that it refers to the ultimate effect of that factor. The plurality were not saying that a consideration of this factor was optional. What the plurality clearly had in mind was that even when that factor is taken into account, there may be countervailing factors (such as the protection of the community) which might reduce or eliminate its effect. In other words, this factor where it is present should be taken into account in the exercise of the sentencing discretion. That is something which his Honour did not do.

30. In response the Crown relied on remarks of this Court in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [109] – [112] where Johnson J (with the concurrence of McClellan CJ at CL) observed:-

109.       Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v The Queen [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v The Queen at [47]; McIntyre v The Queen (2009) 198 A Crim R 549 at [62]-[67].

110.      Grounds of appeal, as asserted by the present applicant, have been considered in a number of recent decisions of this Court, including Bonwick v The Queen [2010] NSWCCA 177, Dagdanasar v The Queen (2010) 57 MVR 230, Lewis v The Queen [2011] NSWCCA 220, Kean v The Queen [2011] NSWCCA 136 and LB v The Queen [2011] NSWCCA 220. The frequency of appeals which raise this ground tends to emphasise the fact that the issue is well known as a potential factor to be taken into account on sentence, so that this Court should apply a rigorous approach in requiring offenders to take the point at first instance, before being permitted to raise it in this Court.

111.       The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court. It might be thought that a ground asserting manifest excess is capable of covering the same ground, if the position is that clear in the particular case.

112.       Unless it is plainly wrong that the offence is in the District Court, it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing judge.

31. I hesitate to add more remarks on the topic but it seems to me that the situation is this. A sentencing judge should refer to matters raised in evidence or submissions which have some reasonable prospect of affecting his conclusion. However, experience shows that there are many matters raised which do not answer this description and judges are not obliged to go through the solemn farce of referring to all matters that might possibly, if unreasonably, affect the result, just for the sake of demolishing or rejecting them.

32. The sentence English DCJ imposed was well in excess of the jurisdiction of the Local Court. It follows that, if she had turned her mind to the topic, her Honour would have concluded that the limits on that jurisdiction made the case an inappropriate one to be dealt with in the lower Court. Furthermore, consistently with the sentence her Honour imposed there is no rational basis for concluding her decision would have been different if she did or had turned her mind to the possibility that the Local Court could have dealt with the matter. In the circumstances I do not see any error in her Honour omitting to mention the possibility that the nature of the charge meant it could have been dealt with in the Local Court, whether or not accompanying that mention with the observation that the case was one inappropriate to have been so dealt with.

33. While the conclusion I have ultimately reached means that the case is one that could have been brought in the Local Court, it was not one which in my view should have been brought there – c.f McCullough v The Queen [2009] NSWCCA 94; 194 A Crim R 439 at [22].

34. I would reject this ground of appeal.

2009 Proceedings – Ground 2

The individual sentences and the effective sentence are manifestly excessive.

35. So far as the assault offence is concerned, experience shows that not only is there is a very substantial degree of violence in the community but it has become common for victims unconscious or relatively helpless on the ground to be kicked by their assailants. No longer is attention paid to the old saying that “you don’t hit a man when he is down”, rather is the opportunity commonly taken by assailants to inflict further damage. Generally the kicking is with shoes or boots and not uncommonly the result is brain damage to the victim.

36. It behoves the courts to actively discourage such cowardly and dangerous behaviour and in addressing the Applicant’s assault offence English DCJ was clearly correct in reflecting on the need for retribution, specific and other deterrence and protection of the community and in imposing a sentence that gave weight to these factors. However, her Honour had also to take into account the circumstances of the Applicant.

37. Her Honour was clearly conscious of the Applicant’s troubled upbringing and psychiatric problems although apart from her recitation of the details, nothing that her Honour said indicates that she gave either of these factors any weight. There is no recognition in her Honour’s remarks of Dr Furst’s view, expressed in his report of 9 April 2011 that:-

(Mr Turner) also has a history of poor attachment to his parents and marked behavioural disturbance in his youth. It is likely that the early onset of his alcohol abuse and the severe childhood sexual abuse, trauma and neglect he was exposed to adversely affected his personality formation and made him more prone to angry outbursts, difficulty sustaining relationships and impulsivity.

38. The Applicant did have a significant criminal record although I doubt the correctness of her Honour’s description of it as “lengthy”. More significantly, during the 8 years immediately prior to the offences for which he was being sentenced by English DCJ he had not been convicted of any serious offence. Given his past, that was a substantial achievement. Despite a less than ideal childhood education he had taken it upon himself to further his education in the respect described by English DCJ. He was entitled to have these matters taken into account but again there is nothing to indicate they were.

39. Of course their absence was not one of the grounds of appeal and I mention them only to indicate factors that may well have contributed to the sentence imposed being as heavy as it was.

40. The Applicant’s offending was unpremeditated and clearly inspired by the actions of Mr Walker. Certainly the Applicant should have exercised more self-control but it is inherently likely that the Applicant’s lack in this regard was significantly contributed to by his upbringing and mental conditions for which he was not primarily responsible. Thus I have no difficulty in accepting the opinion of Dr Furst which I have quoted.

41. Her Honour recorded in her remarks that when the Applicant had been in custody previously he was prescribed Seroquel by a psychiatrist but that the Applicant stopped taking this medication in about March 2009. In that connection it may well be that the Applicant contributed to his loss of self-control in May of that year. However experience in the courts shows that discontinuing medication is a common feature of those suffering from schizophrenia and while this discontinuance is relevant I would not weigh it too heavily against the Applicant.

42. One factor which may have operated in the Applicant’s favour more than it should have done was English DCJ’s conclusion that the Applicant was a paraplegic. So far as one can judge no challenge was made to that conclusion before her Honour and in any consideration of whether the sentences imposed by her Honour were manifestly excessive this Court should accept her Honour’s view.

43. That said, matters raised in the trial before Syme DCJ tend to indicate that in fact the Applicant was not afflicted in the way he suggested. Insofar as this Court is involved in any resentencing of the Applicant it is unreal to think that we can adopt one approach in one resentencing but not in another and while in judging whether English DCJ erred, the Court should accept her Honour’s view on that topic, in any re-sentencing this Court should adopt whatever appears to the court to be correct. For reasons which will become apparent, in my view the Applicant has not been shown to suffer from paraplegia.

44. When regard is had to all of the matters to which I have referred, the conclusion at which I have arrived is that the sentence imposed for the offence of assault occasioning actual bodily harm was manifestly excessive. Particularly relevant are circumstances of the Applicant’s upbringing, his mental health, the likely contribution of these factors to the offences for which English DCJ sentenced him, to the fact he reacted to provocation and that, prior to those offences, he made the efforts he did to redeem himself.

45. Approaching the matter de novo, in the circumstances to which I have referred an appropriate sentence for the offence of assault occasioning actual bodily harm is imprisonment for 1 year including a non-parole period of 9 months.

46. As the duration of the sentence imposed for the offence of damaging Mr Walker’s phone is entirely concurrent with, but less than, English DCJ imposed and I regard as appropriate for the assault offence, I would not give leave to appeal in respect of the lesser sentence.

2011 Proceedings

47. On 27 April 2011 the Applicant became involved in an altercation with his former partner who may be referred to as “SE”. Arising out of events on that day he was charged with:-

(i)   Assaulting SE, thereby occasioning actual bodily harm.

(ii)   Attempting to have sexual intercourse with SE without her consent, knowing she was not consenting, in circumstances of aggravation namely that before the attempted sexual intercourse he inflicted actual bodily harm upon her.

(iii)   Having sexual intercourse with SE without her consent, knowing she was not consenting, in circumstances of aggravation namely that before the sexual intercourse he inflicted actual bodily harm upon her.

(iv)   Having sexual intercourse with SE without her consent, knowing she was not consenting, in circumstances of aggravation namely that before the sexual intercourse he inflicted actual bodily harm upon her.

48. A jury convicted the Applicant on all counts and on 15 November 2013 Syme DCJ imposed the following sentences:-

(i)   Imprisonment for a fixed term of 18 months commencing on 14 March 2013.

(ii)   Imprisonment for a fixed term of 4 years and 6 months commencing on 14 March 2013.

(iii)   Imprisonment for a non-parole period of 7 years commencing on 14 December 2013 with a balance of term of 4 years.

(iv)   Imprisonment for a non-parole period of 7 years commencing on 14 December 2013 with a balance of term of 4 years.

49. The effective sentence thus imposed for these four offences was imprisonment for 11 years and 9 months including a non-parole period of 7 years and 9 months. This sentence commenced on the day English DCJ had said that the non-parole period she imposed would end and that the Applicant would be eligible for parole. The effective non-parole period arising from the sentences imposed by English DCJ and Syme DCJ was about 9 years and 8 months.

50. The relevant provisions of the Crimes Act 1900 and maximum penalties prescribed for the offences charged are :-

(i) Count 1 – s 59 (1) – imprisonment for 5 years.

(ii) Counts 2 – ss 61J and 61P – imprisonment for 20 years.

(iii) Counts 3 & 4 – s 61J (1) – imprisonment for 20 years.

51. For the offences the subject of counts 3 and 4, a standard non-parole period of 10 years has been prescribed.

52. The grounds upon which the Applicant has sought leave to appeal against the sentences imposed by Syme DCJ are:-

(i)   The sentencing Judge failed to take into account the evidence of the Applicant’s disadvantaged background, which was relevant to his mental health and his moral culpability.

(ii)   The sentencing Judge erred in her consideration of the circumstances of the Applicant’s protective custody, and in not taking this into account on sentence as a matter of mitigation.

(iii)   The sentencing Judge erred in not taking into account on sentence as a matter in mitigation the Applicant’s paralysis and confinement to a wheelchair during his two and a half year period of incarceration.

(iv)   The sentencing Judge erred in misapprehending the maximum penalty in relation to the offence of assault occasioning actual bodily harm.

(v)   The sentencing Judge erred in her consideration of accumulation in relation to the sentence imposed by her Honour English DCJ.

(vi)   The individual sentences and the effective sentence are manifestly excessive.

53. The circumstances of and leading to the offences are succinctly stated by her Honour:-

(i)   The Applicant and the complainant were in a relationship from 2006. After a child was born in late 2009, the relationship became strained and in December 2010 an AVO was taken out against the Applicant. At that time SE moved to her parents’ home, the Applicant remaining in the complainant’s unit where they had jointly cohabitated.

(ii)   The Applicant and the complainant maintained contact and occasionally the complainant stayed overnight at the unit. In March 2011 the Applicant threatened the complainant. He held a knife to her throat and said if she went to the police again he would kill her, her parents and their child. Some of the threats were recorded on the complainant’s mobile phone and her Honour remarked that they supported the Crown case that the complainant feared the Applicant.

(iii)   Despite this incident, the complainant tried to maintain a good relationship with the Applicant. On 27 April 2011 the Applicant telephoned the complainant and asked her to come and assist him move back to his parents’ home. She agreed and attended at the unit. When she arrived, she found it in semi-darkness, the Applicant in the kitchen holding two large kitchen knives and with some apparently self-inflicted cuts to his arms. The Applicant was aggressive and threatening, waving the knives around and refusing to put them down. He hit her on the head with the flat of the knife, kicked her on the upper thigh with his bare foot and said he would kill her if she tried to escape. He calmed down for a time and allowed her to put a bandage on him. He ordered her to clean up his blood from the floor and bench.

(iv)   He told the complainant to sit on the couch. He ordered her to remove her pants and shoes and when she did not comply quickly enough, he removed them. He told her to lie on the couch face down. In fear she complied. He attempted to force his penis into her anus but was unsuccessful.

(v)   He then forced her into the bedroom and onto the bed and again attempted penile anal intercourse. She screamed. He applied saliva to his penis and continued the attempt causing the complainant a great deal of pain.

(vi)   At her request to do it “normally” the Applicant penetrated her vagina and then removing his penis from there succeeded in inserting it into her anus. The penetration lasted a few seconds and he then ejaculated.

(vii)   The Applicant would not allow the complainant to leave the unit without him. He insisted on going with her to her family home, remaining with her for the rest of the evening, in her Honour’s words “to stop her making a complaint about his behaviour to the police”.

(viii)   The complainant contacted the police on the following day.

(ix)   At trial the Applicant denied any sexual assault or intercourse and the use of force.

54. Some other aspects of the incident appear from the “Crown Proposed Facts on Sentence”. Some time after SE arrived at the unit and observed the Applicant bleeding from his wrists, he wanted her to put one of the knives in his chest. Later he returned to the kitchen and again put a knife to his wrist.

55. Other findings of her Honour bearing on the length of the sentences she imposed included:-

(i)   At the time of committing the offences the Applicant was on two s 9 bonds and on bail for another offence, factors which are aggravating;

(ii)   In December 2011 SE complained about the Applicant harassing and intimidating her and an AVO was taken out;

(iii)   In March 2011 the Applicant threatened SE with a knife he held to her throat and threatened to kill her, the child of SE and the Applicant and SE’s parents;

(iv)   The offences charged were not part of planned or organised criminal activity;

(v)   There was some evidence of planning with malicious intent;

(vi)   During the evening the Applicant made threats to kill SE if she tried to leave and this formed an aggravating circumstance for all 3 sexual offences;

(vii)   During the events the Applicant caused pain to SE and slapped her face. These matters were also aggravating;

(viii)   The Applicant’s offence involved a breach of trust, he having lured the victim to where she was attacked.

56. The grounds of appeal are primarily concerned with the Applicant’s subjective circumstances and to that topic I now turn. During the sentencing hearing evidence on the topic was given by the Applicant and contained in reports of Dr Furst.

57. One of Dr Furst’s reports was that dated 9 April 2011 which had been before English DCJ and provided most of the material I have recounted in [18] above. The other, dated 24 July 2013, was inspired by the conviction of the Applicant in the trial conducted before Syme DCJ. In it Dr Furst did not retreat from anything he had said in the earlier report, including his opinion as to the impact of the Applicant’s upbringing, included a diagnosis that the Applicant was suffering from paranoid schizophrenia, substance abuse and a personality disorder with antisocial and borderline traits and opined:-

Your client is impulsive and was mentally disordered at the time of his offence, inflicting serious self-harm at the time, asking the victim to push the knife into his chest and then sexually assaulting her. He probably failed to consider the consequences of his alleged actions. He has limited coping skills and took a near fatal overdose on 29/04/11. He took a further two overdoses in custody and now has a psychogenic paraplegia.

Mr Turner was probably acutely psychotic and depressed at the time of the alleged offence before the Court, as a consequence of his schizophrenic illness, belief that the victim was having an affair and his daughter did not belong to him, acute depression, and the destabilising effects of the drugs he had been abusing over the previous 2-3 months.

In my opinion, his psychotic illness, personality disorder, depression, mental disorder, and his beliefs that his partner was being unfaithful to him and his daughter was not his own mitigate against the seriousness of his actions.

58. Asked to address the Applicant’s prospects of rehabilitation, Dr Furst said, inter alia:-

Mr Turner was exposed to violence and alcohol abuse as a child, has developed a serious psychotic disorder, has a history consistent with substance dependence, and probably has an underlying personality disorder with borderline and antisocial traits. His adjustment to the community and the risk he poses to himself and others will require assertive treatment and monitoring in the community, probably through longer term case management and possibly a Community Treatment Order with his local mental health team when released on parole to increase his chances of compliance.

His overall risk of future violence is moderate, but would be significantly reduced through assertive psychiatric treatment, psychotherapy to address his childhood abuse issues, and ongoing abstinence from alcohol and drugs of abuse. His physical disability in the form of paralysis is a further factor that, paradoxically, reduced his risk of future violence. In my view, the primary risks Mr Turner faces are those of further demoralisation and suicide, especially given he has already tried to kill himself in a serious way on three occasions since the offence in question on 27/04/11.

59. Dr Furst also observed:-

(The Applicant) is a man who has evidence of personality dysfunction, impulsivity and poor coping skills, including multiple attempts to suicide and other forms of self-harm.

60. Although she accepted the diagnosis of schizophrenia Syme DCJ did not accept a deal of what Dr Furst had said. She remarked that Dr Furst’s opinion was apparently made in ignorance of some circumstances of the offending, and was based on Mr Turner’s version of events – a version a number of aspects of which her Honour rejected. Indeed at one stage her Honour said, “there is much to question in Mr Turner’s self-reported history”.

61. One matter her Honour regarded as significant in this connection was the preparation in which the Applicant had engaged prior to the sexual offences. Whether her Honour was justified in this view is not apparent because Dr Furst expressly adverted to the fact that the version of events given by the Applicant was at odds with the Crown Case Statement. The Crown Case Statement was not included in the appeal papers.

62. Included in her Honour’s remarks was the following:-

Dr Furst noted that the offender was first diagnosed with this schizophrenia condition, in 2008 when under the care of Justice Health. The records do not support this. For reasons I will refer to later, the history given by Mr Turner is unreliable. He was admitted to Nepean hospital in late 2010 and apparently assessed there with schizophrenia and antisocial personality traits at that time. In 2007 he was in custody, but there is no mention at that time of mental health issues, in his custody record. – AB 31

63. The records to which her Honour referred were a bundle of clinical notes and other health records or reports emanating primarily from Justice Health, bearing dates between December 2010 and July 2013. Based on them Syme DCJ also recorded that the Applicant refused to attend appointments with psychiatrists, psychologists and mental health workers, refused to take prescribed medication and in recent times had refused physiotherapy for his claimed paralysis.

64. It should be noted that omitted from the bundle were some early significant records that had been part of Exhibit 4 before English DCJ. These were an Inmate Profile Document and an Alerts Detailing Report from the Prison Authorities, and contain notations:-

1/8/2001   History of suicide – has thoughts of suicide/self-harm.

…

14/2/2007   Please keep at MRRC as long as possible. Inmate is schizophrenia sufferer on medication. Is working in Cortex and is good worker and stable. Has to be seen by a psychiatrist. I feel if he is kept here as long as possible this will help him.

65. It is not appropriate to take these last mentioned documents into account in deciding whether the sentences imposed by Syme DCJ are affected by error but, as I have indicated above, in any re-sentencing, this Court should adopt whatever view of the Applicant’s incapacity and its consequences appears to the Court to be correct.

66. Although quoting most of Dr Furst’s opinion that the Applicant:–

Was probably acutely psychotic and depressed at the time of the alleged offence before the Court, as a consequence of his schizophrenic illness, belief that the victim was having an affair and his daughter did not belong to him, acute depression and the destabilising effects of the drugs he had been abusing over the previous 2-3 months. – AB 117

her Honour somewhat surprisingly went on to remark that Dr Furst did not state that there was a relationship between the Applicant’s mental illness and the offence apart from observing that he was most likely impulsive and mentally disordered at the time.

67. Later her Honour observed:-

While I accept, therefore, that from time to time, Mr Turner abused substances and did not take his medication, I cannot find a causal connection between those facts and the commission of this offence, taking into account the degree of planning involved and the actions that he took before and after the offence. The complainant did not observe him to be significantly intoxicated, and he did not suggest he was experiencing any psychosis at the time of offending. – AB 35.8

68. Elsewhere her Honour remarked that the Applicant’s moral culpability was mildly diminished by his apparently unmedicated mental illness or depression.

69. Syme DCJ also observed:-

The offender complained to Dr Furst that he [had] not seen a psychiatrist [for] 12 months and receives little medication. Despite his complaints, he reported that he is taking Amisulpride and Zoloft. Reportedly he is doing well in custody on this medication. This is contradicted in the clinical notes, which observe that Mr Turner is refusing both his medication and mental health professional visits. He is not exhibiting signs of mental illness, but has been noted to be aggressive and uncooperative. (sic) – AB 35.1

70. Based on the clinical notes to which I have referred her Honour concluded that the Applicant, though aware of the diagnosis of schizophrenia, chose not to take the medication prescribed for him and that his mental illness could be managed when he chose it to be. Her Honour observed that the Applicant was not exhibiting signs of mental illness but had been noted to be aggressive and uncooperative. She declined to make a finding that the Applicant would suffer more from incarceration due to his mental illness and recorded doubts whether the Applicant would comply with any mental health treatment plan on his release.

71. These findings of her Honour reflected challenges that had had been made to the Applicant on a number of topics including his use of psychiatric and physiotherapy services and the taking of medication, his ability to walk and need for a wheelchair and the restrictions that being on protection involved. There was no challenge however to what Dr Furst had said concerning the Applicant’s childhood (substantially set out in [18] above) or the Applicant’s own evidence on the topic. Included in that evidence was that his childhood was:-

“Very violent and sexually, physically, mentally”. (sic) His father kept coming to the house and bashing his mother, putting her into a coma. He remembers his father coming into the house and stabbing his mother and her relatives. He himself also suffered violence from his mother and stepfather.

72. Other evidence given by the Applicant and which was not the subject of challenge was that he had a history of self-harm extending back to when he first went to gaol when he was 18. A Concord Hospital “Discharge Referral” of October 2011, included in the documents emanating from Justice Health RSH, records that the Applicant “has had many self harm attempts”.

73. Her Honour opined that the Applicant’s willingness to engage in therapy both for his mental illness and to modify his sexual and violent offending is in doubt and concluded that she was not of the view that the Applicant’s paralysis can be taken into account as an ameliorating factor when considering his risk of offending. Her Honour added:-

My finding is that even if his risk of re offending generally is in the moderate range, if he regains the use of his legs that risk will increase. His animosity to the complainant and indeed members of her family, who he has previously threatened to kill, together with the child is a major concern.

74. Further conclusions at which her Honour arrived included the following:-

(i)   The Applicant had shown no remorse.

(ii)   The Applicant had poor prospects of rehabilitation and while his criminal record was not aggravating, it deprived him of leniency.

(iii)   The Applicant is manipulative and aggressive and has been uncooperative with all assistance offered in custody from health attendees.

(iv)   During the proceedings the Applicant manifested extreme hostility towards SE, he has expressed threats to kill SE’s family and her child and his animosity towards SE is a major concern.

(v)   The Applicant’s mental illness justified a finding of special circumstances.

2011 Proceedings – Quadriplegia

75. One topic to which considerable attention was given was whether after his arrest the Applicant had developed quadriplegia.

76. Included in the Applicant’s evidence were statements to the effect that after finding out that SE was cheating on him, that his father was terminally ill and that he was going back to gaol for hitting SE he tried to commit suicide by overdosing on a variety of drugs, he lost consciousness and when he woke up in hospital he was handcuffed and unable to walk. He said that he had been unable to walk since, needing a wheelchair to move around.

77. It was accepted that the Applicant’s claimed inability to use his legs was not supported by general medical opinion which found no physical cause for the apparent paraplegia. In the clinical notes produced from Justice Health the Applicant is recorded on 28/2/10 (which may be a misprint for 2012) as saying he had started to feel pain in his legs and was able to move his big toe in his right foot. Notes of 9 March 2012 record that he is getting sensation back in his toe and feet and had moved his right toe “today”. Syme DCJ recorded that the Applicant had fully functioning reflexes on testing and had been observed moving his feet independently.

78. Addressing the Applicant’s apparent paraplegia, and assuming it was genuine, Dr Furst expressed the view that the Applicant suffered from a conversion disorder which he explained:-

Conversion disorder is thought to be a psychogenic physical manifestation of internal distress and/or conflicts. In the absence of any neurological diagnosis accounting for his paralysis, a conversion disorder is the most likely cause of his paralysis over the last 2 years, which has left Mr Turner wheelchair bound and highly disabled.

79. Although the relevant evidence is not before this Court in her remarks Syme DCJ observed that Dr Furst had also said that he “could not rule out the possibility of malingering” though if the Applicant was malingering it had gone on for an unusually long time. During the hearing before this Court it was not suggested Dr Furst had not made these remarks.

80. Her Honour did not make a finding that the Applicant was malingering but recorded that whether the cause of the Applicant’s apparent paraplegia be conversion disorder or malingering the Applicant was expected to improve and any physical limitations he had would self-correct. She said that she was not of the view that his paralysis could be taken into account as an ameliorating factor when considering his risk of reoffending.

2011 Proceedings – Protection

81. Syme DCJ recorded that the Applicant had been placed in protection following a complaint of assault but that more recently Corrective Services no longer recommended protection. Her Honour continued:-

He is now in protection at his request. When confronted with this at the sentencing hearing, he said that he requested protective custody because he was known in the gaol as being in protection and was housed with sex offenders, thus he felt in danger. This explanation does not make sense.

2009 and 2011 Proceedings – Recent Affidavits

82. During the hearing of the applications a number of affidavits were read on the usual basis, viz. that they are irrelevant to the issue of error by the sentencing judges but are relevant to any issue of re-sentence. One was from a Ms Betteridge that revealed that the Applicant had refused to supply urine in February 2014, failed to comply with prison routine in April 2014, and committed assaults in September 2014 and April 2015. None of the offences were bad although details of the September assault are worth recounting.

83. A nurse attended on the Applicant’s cell with medication. She refused to give it to him unless he stood up. He refused, saying he could not and when she sought to leave he threw a cup of water at her.

84. An affidavit from the Applicant was also read. He said that prison staff insisted he could walk and his wheelchair was taken away on 15 August 2014. Then he had to crawl to use the toilet or shower and missed appointments. He was moved to Junee Correctional Centre in January 2015. He began to regain feelings in his legs just before then and soon after arriving at Junee regained the ability to walk. After June 2015 and feeling safer because he was not in a wheelchair he elected to move to a less restrictive form of protection and has availed himself of facilities, including the gaol chess group and choir. He says since being in custody that he has been taking his prescribed medication, Amulsulpride for schizophrenia, Zoloft for depression, Zoccor for high cholesterol and magnesium tablets for cramps.

85. The Applicant said that since moving to Junee he has completed a number of courses and since August 2015 he has been working as a painter. He has also put his name down to participate in the CUBIT program.

86. The Applicant said that until 4 months prior to moving to Junee he was kept in his cell for 23 hours a day. Thereafter at the MRRC he was allowed out for 3 hours each day.

87. Ms Betteridge also referred to a case plan dated 30 June 2015 which involved the Applicant being offered education but that he did not express interest in participating in any TAFE programs.

2011 Proceedings – Ground 1

The sentencing Judge failed to take into account the evidence of the Applicant’s disadvantaged background, which was relevant to his mental health and his moral culpability.

88. This ground is made out. All her Honour said concerning the Applicant’s family history was:-

Other information I have from the report is that he is now 31 years of age. There is no evidence of any current family connection or support. Clearly he has a mother who he told the complainant he intended to go and stay with and there was some information in relation to his father, who is now deceased. His education and training status is unclear and has been diagnosed with a mental illness for some time.

89. Having regard to the evidence that there was before her Honour, this was quite inadequate reference to, and consideration of, the topic. Nor are her Honour’s remarks as to the Applicant’s reliability a sufficient explanation for not saying more. As I indicated the Applicant was not challenged on Dr Furst’s or the Applicant’s own account of his upbringing.

90. I have set out above some of Dr Furst’s views as to the significance of the Applicant’s childhood. Indeed one hardly needs evidence that exposure and subjection to appreciable violence while a child is likely to have lasting and detrimental impacts. And it would be surprising if parents who practised such violence ever inculcated in their children proper standards of self-control, resilience in the face of adversity, and as to the treatment of others.

91. These factors were quite separate from, and additional to, the Applicant’s schizophrenia and were and are required to be taken into account in the sentencing of the Applicant. They were not.

2011 Proceedings – Ground 2

The sentencing Judge erred in her consideration of the circumstances of the Applicant’s protective custody, and in not taking this into account on sentence as a matter of mitigation.

92. I would uphold this ground also.

93. Contrary to her Honour’s view it is notorious that being on protection generally carries a stigma that the person was there for conduct anathema to the general prison population, sometimes for offences against children – see R v Burchell (1987) 34 A Crim R 148; R v Totten [2003] NSWCCA 207 – but commonly because the person is thought to be a “dog” or informer. Persons who have been on protection are not given any presumption of innocence by the rest of the prison population and accordingly it is quite understandable that the Applicant may feel the need to remain on protection. In these circumstances, it is not unlikely that the Applicant will remain on some form of protection. That said, there are many degrees of it and the change in type which has already occurred demonstrates that it is in the highest degree unlikely that the Applicant will continue to suffer the same degree of restriction in the future as he has in the past.

94. In that connection the Applicant gave evidence before Syme DCJ that, except for the not infrequent days when there was a lockdown and prisoners were confined to their cells all day, he was normally allowed out of his cell for only 2 hours per day. He said that this has continued since about May 2012.

95. The uncertainty as to the nature of the conditions of future incarceration obviously made difficult any determination of what impact it should have on the length of the sentence to be imposed but, that said, protection is a factor that commonly arises and one that the Applicant was entitled to have taken into account.

2011 Proceedings – Ground 3

The sentencing Judge erred in not taking into account on sentence as a matter in mitigation the Applicant’s paralysis and confinement to a wheelchair during his two and a half year period of incarceration.

96. I would not uphold this ground. As a factor in mitigation, the onus of establishing the ground, and the facts that underlay it, was on the Applicant. In the circumstances of the case this involved the Applicant showing that, on the balance of probabilities, the wheelchair was necessary and not the result of him malingering.

97. Relevant in this regard were numerous findings of her Honour. She observed that “the history given by Mr Turner is unreliable” and contrasted his complaints about being unable to access psychiatric and psychological support with medical records that were in evidence. Her Honour noted another inconsistency between a complaint of Mr Turner to the effect a broken wheelchair was not replaced and the content of clinical notes. She remarked also on inconsistencies between accounts given to Dr Furst by Mr Turner as to the circumstances of his offence and treatment in custody with other evidence. She described other of Mr Turner’s evidence as “vague and contradictory”. She described Mr Turner as “manipulative and aggressive”.

98. While undoubtedly some of her Honour’s remarks were directed towards the future, many had application to the past and though it appeared that the Applicant had not walked and had availed himself of a wheelchair for 2 years or so, it is clear that the Applicant did not satisfy the onus he bore on the topic of this ground.

2011 Proceedings – Ground 4

The sentencing Judge erred in misapprehending the maximum penalty in relation to the offence of assault occasioning actual bodily harm.

99. Subject to remarks made later under this ground, the ground also should be upheld. Syme DCJ stated that the maximum period of imprisonment prescribed for assault occasioning actual bodily harm is 7 years. As I have already indicated, the maximum period of imprisonment prescribed is 5 years not 7 years as stated by her Honour.

100. Although there are cases where it has been held that an erroneous statement as to the maximum penalty does not, of itself warrant another sentence in law – see e.g. Des Rosiers v R [2006] NSWCCA 16; 159 A Crim R 549 at [20]; Smith v R [2007] NSWCCA 138 at [34]; R v Couch-Clarke [2010] NSWCCA 288 at [39] – the maximum penalty is one of the guideposts to which sentencing judge are required have regard in imposing a sentence – Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. I would not readily infer a sentencing judge’s reference to it was not a factor taken into account and, if misstated, not something that influenced the sentence for that offence.

101. However, I would not uphold a further submission that flowed from this ground, viz. that the error was liable to have influenced her Honour in the sentences she imposed for the offences the subject of the second, third and fourth charges. There is simply no basis for contending that the error the subject of this ground was not confined in its operation to the sentence imposed for the offence of assault.

102. However, in her remarks her Honour said:-

Finally, I propose to order that the AOABH charge be served concurrently with the attempted sex assault offence, as that offence forms part of the circumstances of the sexual offences.

103. In these circumstances, the sentence imposed for the offence of assault occasioning actual bodily harm had no practical effect and I would refuse to grant leave to appeal against it.

2011 Proceedings – Ground 5

The sentencing Judge erred in her consideration of accumulation in relation to the sentence imposed by her Honour English DCJ.

104. All her Honour said on the topic of accumulation was as follows:-

Mr Turner was sentenced to a period in custody for assault occasioning actual bodily harm a non-parole period to date from 17 April 2011, which was due to expire on 14 March 2013. He has therefore been in custody solely on this matter from 14 March 2013. He has now also been sentenced for the intimidation of the complainant relative to the events of 11 March 2011, to which I have referred above. As I have specifically referred to the 11 March offences as forming part of the narrative for the threats that were part of these offences, no accumulation is appropriate. In relation to these charges, there will be some accumulation, but noting a course of conduct over a period of hours, the accumulation will be moderate. Finally, I propose to order that the AOABH charge be served concurrently with the attempted sex assault offence, as that offence forms part of the circumstances of the sexual offences.

105. There would seem to have been no evidence before her Honour as to the sentence imposed for the 11 March 2011 events. Her reason for making the sentences she imposed concurrent with that sentence provide no explanation as to why her sentences were made entirely cumulative to those imposed by English DCJ and her Honour otherwise provided no reasons for this occurring.

106. Of course, one possibility is that her Honour thought that the concurrency that was reflected in her sentence was sufficient but this is contradicted by her remarks that I have quoted above.

107. It is highly unusual to simply aggregate sentences without reference to totality. However Syme DCJ made no reference to that topic and provided no reasons why the sentences she imposed should simply be accumulated on the effective non-parole period imposed by English DCJ.

108. General principles of totality lead to the conclusion that her Honour erred.

2011 proceedings – Ground 6

The individual sentences and the effective sentence are manifestly excessive

109. The conclusions at which I have arrived in respect of Grounds 1 and 2 make it unnecessary for me to pursue this ground. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 requires that I consider de novo the sentences appropriate for the Applicant’s offending. Of course in doing so I must accord due regard to her Honour’s primary findings.

110. Undoubtedly a determination of appropriate sentences in this case is difficult. On the one side are the serious nature of the Applicant’s offending, the fact of four offences, the statutory guides and in particular the 10 years non-parole period, his criminal record, Syme DCJ’s findings as to the Applicant’s prospects of re-offending and the risk he poses to the complainant and her relatives. On the other are his upbringing and mental health although insofar as these argue for the possibility that he will continue to be a danger to the complainant or the community generally they do not operate only in the direction of leniency. Also arguing for lesser sentences are the Applicant’s previous achievement in redeeming himself and making positive efforts at Junee.

111. The above list is not of course exhaustive. There was the impact on the complainant to which Syme DCJ adverted and I have referred to other factors above. I have paid attention to the Remarks on Sentence that have been canvassed and the dozens of pages of written and oral submissions advanced in the proceedings.

112. One factor to which I have given no weight is the previous sexual relationship between SE and the Applicant. That such a relationship is entitled to weight in some circumstances is clear – NM v R [2012] NSWCCA 215 – but the luring of SE to the premises and the violent nature of what then transpired make the approach recognised in NM inappropriate.

113. The Applicant’s actions preparatory to the offences committed in April 2011 led Syme DCJ to reject Dr Furst’s opinion that the Applicant was psychotic. On the other hand, nor could his mental faculties be regarded as close to normal. While jealousy inspired by a belief that the victim was having an affair and that his daughter did not belong to him may have had aspects of rationality, cutting himself with a knife and inviting the victim to push the knife into his chest did not, at least unless induced by major depression. Experience shows that many with schizophrenia do cease to take their medication and that fact should not be weighed too heavily against the Applicant. Particularly is that so when it appears that the medication prescribed at that stage had side effects that the Applicant found unpleasant.

114. When to the Applicant’s mental disability is added the impact of his upbringing, the Applicant’s offending is not to be judged by normal standards.

115. If the Applicant was malingering on the issue of paraplegia, it must have been demonstrated to him by now that doing so does not work and he has made life more difficult for himself. It is now over 5 years since the offences and 3 years since his trial so there has been a significant amount of time for his feelings toward the victim to moderate and at some time he does have to be released. His actions at Junee to some extent echo the efforts to improve himself that occurred before the offence dealt with by English DCJ.

116. In these circumstances it seems to me that, in lieu of the sentences imposed by Syme DCJ, appropriate sentences for the sexual intercourse offences are concurrent terms of imprisonment for 8 years including non-parole periods of 5 years and for the attempted intercourse offence imprisonment for a fixed term of 4 years, and involving 9 months accumulation. On grounds of totality, I would commence the earliest of these sentences 4 months before the non-parole period of the sentence for what I may call the English DCJ offences concludes. The result will be that the Applicant will have an effective total non-parole period of 6 years and 2 months and a total sentence 3 years longer.

117. Accordingly,

In respect of Proceedings 2009/00058502:

(i)   Grant leave to appeal in respect of the sentence imposed for assault occasioning actual bodily harm;

(ii)   Allow the appeal in respect of that sentence;

(iii)   Quash that sentence, and in lieu;

(iv)   Sentence the Applicant to imprisonment for a non-parole period of 9 months commencing on 17 April 2011 together with a further term of 3 months;

(v)   Refuse leave to appeal in respect of the sentence imposed for intentionally damaging property.

In respect of Proceedings 2011/00142641:

(i)   Grant leave to appeal in respect of the sentences imposed for the offences of attempting to have aggravated sexual intercourse and having aggravated sexual intercourse;

(ii)   Allow the appeal in respect of those sentences;

(iii)   Quash those sentences and in lieu;

(iv)   In respect of the offence of attempted aggravated sexual intercourse, sentence the Applicant to imprisonment for a fixed term of 4 years commencing on 17 September 2011;

(v)   In respect of each of the offences of aggravated sexual intercourse, sentence the Applicant to imprisonment for a non-parole period of 5 years commencing on 17 June 2012 together with a further term of 3 years commencing on 17 June 2017;

(vi)   Refuse leave to appeal in respect of the sentence imposed for assault occasioning actual bodily harm;

(vii)   Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole, 17 June 2017.

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Amendments

06 October 2016 - Cover sheet (Representation) - "Legal Aid Commission" replaced with "Aboriginal Legal Service"

Decision last updated: 06 October 2016