Veale v The The Queen

Case •

[2022] NSWCCA 154

•

13 July 2022

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Veale v R [2022] NSWCCA 154
Hearing dates: 6 July 2022
Date of orders: 13 July 2022
Decision date: 13 July 2022
Before: Meagher JA; Fullerton J; Ierace J
Decision:

(1) Grant the appellant leave to appeal from the sentences imposed by the District Court on 15 March 2022.

(2) Allow the appeal on ground 1.

(3) Quash the sentences imposed by the District Court on 15 March 2022.

(4) In lieu of those sentences, impose the following sentences:

(a) In respect of count 2, a term of imprisonment of 3 years commencing on 16 October 2020 and expiring on 15 October 2023; and

(b) In respect of count 3 (and taking into account the s 16BA offence), a term of imprisonment of 2 years and 4 months commencing on 16 October 2020 and expiring on 15 February 2023.

Accordingly the aggregate of the two sentences to be imposed is 3 years.

(5) Order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) that the appellant be released from imprisonment on 15 July 2022 upon his giving security by recognizance of $100 to comply until 15 October 2023 with the conditions set out in [65] below.

(6) Direct that by 5pm on 14 July 2022 the appellant sign a recognizance in the form attached to the judgment in this appeal and marked “A”.

Catchwords:

CRIME – appeals – appeal against sentence – where sentencing judge fixed non-parole period to expire on date of sentence – where judge recommended that applicant be released on that day – whether sentencing judge proceeded on mistaken belief as to operation of parole provisions in Crimes Act 1914 (Cth) – whether judge believed effect of sentence imposed would be that applicant was released to parole on that day

Legislation Cited:

Crimes Act 1914 (Cth), ss 15YR, 16BA, 16F(1), 19AB, 19AC, 19AF(1), 19AH(1), 19AL, 19ALA(1)(f), 19AM(1), 20(1)(b), 20(1B), 20A(5)(c), 20AA, 20AB

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 48, 50

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Criminal Code Act 1995 (Cth), ss 474.15, 474.17, 474.26

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32(3)(a)

Cases Cited:

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

House v The King (1936) 55 CLR 499; [1936] HCA 40

Johan v R [2019] NSWCCA 126

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Khawaja v Attorney-General (Cth) [2022] FCA 334

R v Muldrock [2010] NSWCCA 106

Whyte v R [2019] NSWCCA 218

Category:Principal judgment
Parties: Richard Veale (Applicant)
Regina (Cth) (Respondent)
Representation:

Counsel:

P Coady with A Bhasin (Applicant)
A McGrath (Respondent)

Solicitors:

Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2020/210831
Publication restriction: There is a statutory prohibition under Crimes Act 1914 (Cth), s 15YR on the publication without leave of the Court of any matter which identifies or is likely to lead to the identification of the complainant in relation to the proceeding.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
15 March 2022
Before:
Ellis DCJ
File Number(s):
2020/210831

Judgment

  1. THE COURT: The applicant, Richard Veale, seeks leave to appeal against the sentence imposed on him by Ellis DCJ in the Newcastle District Court on 15 March 2022. Leave to appeal is required by Criminal Appeal Act 1912 (NSW), s 5(1)(c).

The offences

  1. On 10 March 2022 the applicant pleaded guilty to two offences against laws of the Commonwealth, namely:

  • Count 2 – using a carriage service to procure a person under the age of 16 to engage in sexual activity, contrary to Criminal Code Act 1995 (Cth) (Criminal Code), s 474.26(1).

  • Count 3 – using a carriage service to threaten to kill, contrary to Criminal Code, s 474.15(1).

The first of those offences carries a maximum penalty of 15 years imprisonment and the latter a maximum penalty of 10 years imprisonment.

  1. A further offence of using a carriage service in a way that reasonable persons would regard as menacing, harassing or offensive, contrary to Criminal Code, s 474.17(1), was taken into account in relation to the count 3 offence. The statutory provision which governed that exercise is Crimes Act 1914 (Cth), s 16BA.

  2. The conduct charged by counts 2 and 3 occurred between 15 and 16 July 2020, and the conduct constituting the single s 16BA offence occurred between 1 May and 17 July 2020, during which period the applicant called or sent text messages more than 2000 times to the complainant, then 15 years old.

  3. Given the complainant’s age at the time of those offences, there is a statutory prohibition under Crimes Act (Cth), s 15YR on the publication without leave of the Court of any matter which identifies her or is likely to lead to her identification.

The sentence

  1. Applying a discount of 20% for each of the guilty pleas and taking into account the s 16BA offence, his Honour imposed the following sentences:

  • For the count 3 offence (and taking account of the s 16BA offence), a sentence of 2 years and 4 months to commence on 16 October 2020 and expire on 15 February 2023; and

  • For the count 2 offence, a sentence of 3 years and 2 months to commence on 16 January 2021 and expire on 15 March 2024.

  1. As these sentences were imposed at the same sitting and in the aggregate exceeded 3 years, the sentencing judge was required to impose a single non-parole period unless satisfied that a non-parole period was not appropriate (Crimes Act (Cth), s 19AB). The sentencing judge imposed a non-parole period of 1 year and 5 months to commence on 16 October 2020 and expire on 15 March 2022, the sentencing date. Rounding to the nearest month, that non-parole period was equal to the time that the applicant had spent in custody at the time he was sentenced.

  2. The applicant had been arrested and charged on 17 July 2020 and held in custody until 1 December 2020 (a period of 138 days) when he was released on conditional bail. He was then arrested and charged on 14 February 2021 for knowingly contravening an apprehended violence order. He remained in custody from then until he was sentenced.

Grounds of appeal

  1. The applicant’s proposed grounds of appeal are:

1. The sentencing process miscarried due to the sentencing judge’s misunderstanding of the operation of the Commonwealth parole provisions contained in Division 4, Part 1B, Crimes Act 1914 (Cth). An error having occurred, the applicant should be resentenced.

2. The sentences imposed for both offences were manifestly excessive taking into consideration the applicant’s significant psychiatric history.

  1. If ground 1 is made out, ground 2 does not arise. In that event it will be necessary to re-sentence unless the Court concludes that no different sentence should be passed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Ground 1

  1. The applicant contends that in structuring the sentences and non-parole period, the sentencing judge proceeded on a mistaken belief as to the operation of the parole provisions in the Crimes Act (Cth). That belief was that fixing a non-parole period which expired on the sentencing date and a recommendation that the applicant be released to parole on that day would have the consequence that the applicant was released to parole on that day.

  2. In response, the Crown maintains that it should not be inferred that the sentencing judge either ‘misunderstood’ or was ‘mistaken’ about the operation of those provisions.

The applicable parole provisions of the Crimes Act 1914 (Cth)

  1. Where sentences for federal offences imposed at the same time exceed 3 years in the aggregate, the court must fix a single non-parole period:

19AB When court must fix non-parole period

(1) Subject to subsection (3), a court must fix a single non-parole period in respect of a federal sentence or federal sentences if:

(a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

(b) the court imposes the sentence or sentences on the person; and

(c) either or both of the following subparagraphs apply:

(i) any of the sentences is a federal life sentence;

(ii) the sentences, in the aggregate, exceed 3 years; and

(d) when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence.

  1. The exception in s 19AB(3)(a) provides that the sentencing court may decline to fix a non-parole period if it is satisfied that such a period is not appropriate having regard to the nature and circumstances of the offence or offences and the antecedents of the person.

  2. A federal offender may only be released on parole by the Attorney-General (or his or her delegates). Where a non-parole period is fixed, the Attorney-General “must” before the end of the non-parole period either make, or refuse to make, an order directing that the person be released to parole (s 19AL(1)). In exercising that power the Attorney-General must afford procedural fairness to the person affected by the parole decision. See, for example, Khawaja v Attorney-General (Cth) [2022] FCA 334 at [19]ff. If the Attorney-General refuses to make a parole order, notice must be given to the person affected and the Attorney-General must reconsider the making of a parole order within 12 months after the refusal (s 19AL(2)). Section 19ALA(1)(f) includes in the matters to which the Attorney-General may have regard when making a decision whether or not to make a parole order “any comments made by the sentencing court”. Section 19AM(1)(a) provides that if a parole order is made before the end of the non-parole period, the prisoner may be released on the last day of the non-parole period.

  3. Where a person is convicted of two or more federal offences at the same sitting, and the sentences for those sentences in the aggregate do not exceed 3 years, the court must make a single recognizance release order and must not fix a non-parole period (s 19AC). Where the offender is to be sentenced, such an order is made under s 20(1)(b). Where at least one of the offences is a Commonwealth child sex offence (such as is count 2), the release order must be such that the pre-release period ends not later than the last to be served of the sentences, unless the court is satisfied that there are exceptional circumstances (ss 20(1)(b)(ii)-(iii), 19AF(1)). Furthermore, where one of the offences is a Commonwealth child sex offence the conditions which must be specified in the release order include those contained in s 20(1B)(a)-(d).

  4. Finally, as is the case in relation to the sentencing of an offender under New South Wales law (see Crimes (Sentencing Procedure) Act 1999 (NSW), s 48), a State court sentencing for a federal offence which fixes a non-parole period in respect of the sentence must explain that the consequences of fixing the non-parole period include that the sentence “will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence” (Crimes Act (Cth), s 16F(1)).

  5. Section 19AH applies where a court “fails to fix, or properly to fix, a non-parole period… under this Act”. It has not been suggested that s 19AH applies to a failure of the sentencing judge to comply with s 16F. Section 19AH(1) provides that such a failure does not affect the validity of any sentence imposed. It also confers a power on the sentencing court on the application of specified persons to set aside any non-parole period that was not properly fixed.

The sentencing hearing

  1. The applicant originally pleaded guilty in the Local Court. An issue as to his fitness to plead arose, and after a traversal of his guilty plea, the matter was fixed for trial. However the applicant re-entered guilty pleas at a “super callover” hearing in the District Court on 10 March 2022.

  2. At that callover there was an exchange between the applicant’s counsel and the sentencing judge which indicated that there may be agreement with the Crown as to Mr Veale’s time in custody being treated as a sufficient term of imprisonment:

HEALEY: Might I just intervene there and suggest that he’s already been in custody in relation to this matter 527 days as at today. My friend might concur with that.

FLEETON: Yes, that’s correct.

HIS HONOUR: So that’s about a year and the half?

HEALEY: Yes. Your Honour, the Crown has, in correspondence with my instructor, indicated that the time spent in custody to date would be thought to be suitable in all the circumstances, but it’s open to the court to consider the circumstances. But the quicker we can get him sentenced, the better it will be.

HIS HONOUR: All right, I’m happy to endeavour to give him an early date.

  1. That mention at the callover concluded:

HIS HONOUR: So for Mr Veale, I note the plea of guilty. Stood over for sentence to Monday, 14 March, at 2pm. Remanded in custody. Do you want him brought on Monday?

HEALEY: Yes, could he be here, your Honour, please?

HIS HONOUR: Because if I’m going to release him, then he can go from here.

HEALEY: Yes, thank you.

HIS HONOUR: To be brought on Monday. So, remanded in custody, to be brought on Monday for a 2pm start, 14 March.

  1. When the matter was called in the afternoon of 14 March, the sentencing judge made clear that he had not had a chance to read any papers and that what he proposed was that the hearing proceed “as far as we could today and then, subject to availability of everybody, stand it over for a sentence tomorrow”. His Honour proceeded to “mark all the paperwork” and read the agreed facts, which were provided in an updated Crown bundle. The following exchange then took place:

HIS HONOUR: If this was a matter where the parties were somewhat closer in terms of outcome, it may have been possible for me to finish it this afternoon but, given I’m not quite sure what the defence position is, but the Crown position is it calls for a custodial sentence, I’m assuming.

BELJIC: Yes, your Honour.

HEALEY: I think there was an understanding, your Honour, that the time spent in custody by the offender was last week 527 days, today it’s 531, might be sufficient in terms of custody.

HIS HONOUR: Yes, getting close to being sufficient as a non-parole period.

HEALEY: Yes.

  1. The Crown sentence exhibits were then marked, as was a psychiatric report of Dr Bench tendered by the defence. The discussion returned to the applicant’s time in custody:

HIS HONOUR: So [the time in custody is] 532 [days]?

BELJIC: Yes, your Honour. And just to confirm, the Crown would not oppose or doesn’t wish to be heard in relation to a submission that that is--

HIS HONOUR: Time served, in terms of a non-parole period.

BELJIC: Yes.

HEALEY: Thank you.

  1. The proceedings were then stood over for sentence at 2pm on 15 March 2022.

The remarks on sentence

  1. At that time and before the remarks on sentence (ROS) were delivered, there was a brief exchange about the structure of the sentence to be imposed:

HIS HONOUR: … I had in mind, starting that [count 3] sentence on 16 October ’20 and starting the sequence 4 [count 2] sentence to three years, two months, on 16 January ’21. And then imposing an overall non-parole period of 17 months from 16 October ’20 to 15 March ’22. Which would give him a release date of today and would put him on parole for the balance of that period. So he’d be on parole from 15/3/22 to 15/3/24. So he’d be on parole then for two years.

BELJIC: Yes and that’s a longer, somewhat, parole period.

HIS HONOUR: Yes.

  1. The sentencing judge then delivered his remarks on sentence. What follows is a summary of those remarks relevant to ground 1.

  2. After recording briefly the circumstances of the applicant’s offending and finding that the applicant “really [had] no criminal history”, the sentencing judge noted that he had been in custody for “a period of some 76 weeks” (ROS3). His Honour continued:

I can indicate that the start date that I have arrived at takes into account that time in custody, albeit that it also takes into account the convenient date so as to result in a period of rounded months, meaning that a non-parole period would expire essentially today, permitting him to be released. (emphasis added)

  1. The reference to the “convenient date” is 16 October 2020, the commencement date of the sentence for the count 3 offence which was to be served first in time.

  2. Having found that a sentence of imprisonment was appropriate, the sentencing judge continued (ROS5):

The court notes that the effect of the sentences to be imposed will be that the aggregate of the sentence is greater than three years. Indeed, what will be the single sentence for sequence 4 [count 2] is greater than three years. But, with the accumulation by about three months, the total sentence will be three years and five months. It is necessary, therefore, for the court to impose a non-parole period.

The court indicates that the total sentence of three years and five months reflects the level of criminality. It will be comprised of a non-parole period of one year and five months and a parole period of two years on parole. Two years on parole is a lengthy period of time and will assist in his reintegration back into the community and to assist with the ongoing treatment of his mental health issues.

A lengthy parole period also involves an aspect of punishment as the matter will still be, as it were, hanging over his head for that 2 year period, he being aware that if he breaches his parole by re-offending or in some other way, it is likely that he would be returned to custody. (emphasis added)

  1. Having identified the separate sentences imposed in relation to counts 2 and 3, and taking into account the s 16BA offence, the sentencing judge continued (ROS6-7):

I impose a single non-parole period of 17 months to date from 16 October 2020, which will expire today, 15 March 2022, followed by a period of two years on parole from 16 March 2022 to 15 March 2024.

I recommend you be released to parole today, once all the paperwork has been signed.

Are there any other orders that I need to make in relation to that?

BELJIC: No, your Honour.

HIS HONOUR: Mr Veale, you understand that? It means that you will be released back to the community today at some point and then you will be on parole for two years. You need to understand, if you do not already, that if you breach your parole period, then you are likely to be brought back into custody and you will have to go before the Parole Board to explain what you have done or why you have done it. (emphasis added)

  1. The District Court results sheet which is signed by the sentencing judge records the sentences and non-parole period imposed, and concludes: “The Court recommends the offender be released to supervised parole on 15/03/2022”.

Disposition of ground 1

  1. It is not controversial that the power to make or refuse to make an order directing that a person imprisoned for a federal offence be released on parole is conferred on the Attorney-General, who must decide whether or not to make such order “before the end of the non-parole period” (s 19AL(1)). Nor is it controversial that the sentencing court has no power to order a person’s release to parole on the expiry of a non-parole period fixed under s 19AB (cf the position as it was under Crimes (Sentencing Procedure) Act, s 50 in respect of sentences for State offences and for a term of imprisonment of 3 years or less, before that section was repealed with effect from 26 February 2018). Furthermore, whilst “any comments made by the sentencing court” may be taken into account by the Attorney-General when making a decision under s 19AL, the Attorney is not required to follow or give effect to any such comment (s 19ALA(1)).

  2. The question for this Court is whether in structuring and imposing the sentences and non-parole period and making the recommendation as to the applicant’s release to parole, the sentencing judge acted under the mistaken belief that the consequence of his doing so would be (as distinct from might or could be) that the applicant was released to parole on 15 March 2022.

  1. A not dissimilar question arose in R v Muldrock [2010] NSWCCA 106 where the sentencing judge, having fixed a non-parole period for a State offence, directed that parole “was only to be granted on the basis” that the prisoner was admitted to a particular residential facility (at [3]). The error was structuring the sentence to reflect an erroneous view that the Court had “power to make conditions about parole” (at [4]). In Muldrock, the question whether the judge had acted upon a wrong principle (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40) was easily resolved, the sentencing judge having expressly noted that in sentencing he had proceeded on the basis that he did “have power to make conditions about parole” (at [20]).

  2. Here, as the Crown emphasises, the sentencing judge did not direct or order that the applicant be released to parole immediately. Rather, he recommended that should occur.

  3. This was said to be consistent with the sentencing judge’s appreciating that he had no power to order or direct that the applicant be released. As the Crown points out, it is not uncommon for such a recommendation to be made on the imposition of a sentence, even if doing has been described as “inappropriate” (see Whyte v R [2019] NSWCCA 218 at [24]-[28]; and cf Johan v R [2019] NSWCCA 126 at [27]).

  4. The sentencing judge’s earlier reference to the imposition of a non-parole period which “would expire essentially today, permitting [the applicant] to be released” (ROS3), and his closing explanation to Mr Veale that he “will be released back to the community today at some point” were said by the Crown to be consistent with an expectation that the applicant was likely to be released to parole on 15 March 2022, rather than a firm belief that would occur.

  5. However, the sentencing judge’s belief involving only an expectation is not reflected in what was said in his remarks on sentence. Nor is it consistent with his exchanges with counsel on 10, 14 and 15 March 2022. Those exchanges indicated that it was common ground between the parties that the time which the applicant had served in custody should be the non-parole period. That being the position no doubt prompted the sentencing judge’s observation on 10 March 2022 that the applicant (then in custody) should be brought to the court on the following Monday “because if I’m going to release him, then he can go from here”.

  6. Turning to the remarks on sentence, his Honour’s statement that the non-parole period “would expire essentially today, permitting [the applicant] to be released” (ROS3) is equivocal, indicating that the fixing of a non-parole period expiring on the day of sentence made it possible for the applicant to be released to parole on that day. (His Honour’s comment is consistent with release on the last day of the non-parole period as provided for by s 19AM. The parole order would have to be made after the sentence was imposed and before the end of the non-parole period.)

  7. When indicating the non-parole period he proposed to fix, his Honour referred to “a parole period of two years”, “two years on parole” and “a two year period” of parole. When imposing the sentences and fixing the single non-parole period, his Honour described that period as expiring on 15 March 2022 and “followed by a period of two years on parole from 16 March 2022 to 15 March 2024” (ROS6).

  8. There followed the recommendation that the applicant be released. His Honour’s question as to whether there were “any other orders that I need to make” was directed to counsel for the Crown and reflects a belief that only formalities were required to be completed to enable the applicant’s release “today”.

  9. Finally, the sentencing judge’s remark to Mr Veale that “you will be released back to the community today” was unambiguous and unqualified. It was made in circumstances where his Honour was required to explain the purpose and consequences of fixing the non-parole period (Crimes Act (Cth), s 16F). His Honour’s explanation was consistent with an understanding that a parole order could and would be made on 15 March 2022 and result in the applicant being released to parole on that day.

  10. In these circumstances we are satisfied that the sentencing judge mistakenly believed that the consequence of the sentences and non-parole period and his release recommendation would be that the applicant was released to parole on 15 March 2022. The transcript of argument and remarks on sentence do not permit a conclusion as to the precise basis on which the sentencing judge formed that belief and whether it resulted from an erroneous view as to the operation of the Commonwealth parole provisions; or a mistaken belief that whatever had to be done to ensure the applicant’s release to parole could and would be done on 15 March 2022; or both.

  11. That erroneous belief of the sentencing judge was fundamental to his sentencing exercise. The non-parole period was fixed on the basis that the applicant had spent a sufficient time in custody and that thereafter he would spend a period of 2 years on parole so as to assist his reintegration into the community and the ongoing treatment of his mental health issues (ROS 3, 5).

  12. It follows that ground 1 of appeal is upheld. This makes it unnecessary to consider ground 2.

  13. Accordingly, this Court must re-exercise the sentencing discretion, addressing in the first place whether “no other (generally lesser) sentence” is warranted in law (Criminal Appeal Act 1912 (NSW), s 6(3); DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]).

Re-sentence

  1. At the time of the offences, the applicant was 45 years old. He had a long-standing diagnosis of a schizoaffective disorder and a history of substance abuse. He was being treated with antipsychotic medication, and his treatment had been mandated by a Community Treatment Order. In 2019 he had been involuntarily admitted to hospital on four occasions. He was receiving financial support from the National Disability Insurance Scheme and lived in social housing.

  2. He had three instances of prior offending. The first involved a charge of offensive behaviour in 1994 for which he incurred a $250 fine. The latter two involved charges for assault occasioning actual bodily harm (domestic violence) in September 2015 and stalk/intimidate with intent to cause fear of physical harm in October 2019, each of which was dealt with and dismissed under the Mental Health (Forensic Provisions) Act 1990 (NSW) then in force, with the applicant discharged into the care of a responsible person under s 32(3)(a) of that Act.

  3. The sentencing judge made very brief findings as to the circumstances of the offending at ROS2-3. Although he took the applicant’s mental health condition into account in a general way as part of the applicant’s “personal circumstances” (ROS4), the sentencing judge made no express finding that there was any causal connection between his psychotic condition and the offending. The only comment his Honour made was at the conclusion of his reasons where he noted when addressing the applicant that “it is pretty clear that you were not actually thinking all that straight during a lot of this period, so you need to avoid getting back to that state of mind if you can” (ROS7).

  4. Although the applicant and complainant had known each other when the complainant was younger, they first came into contact in circumstances which may have led to the charged offending in February 2020. At that time the complainant was living in foster care. On several occasions between February and June the applicant was observed outside the complainant’s residence. From May 2020 he sent numerous text messages to the complainant expressing his love for her, and posted photos of the complainant on his Facebook page. Between May and July 2020 he also purchased her various gifts, including a bouquet of fake flowers, an Adidas jumper and a USB light bulb.

  5. The agreed facts included that the applicant had been told the complainant was a child during a police interview on 7 May 2020, as well as by the complainant in a telephone conversation on 12 June and by text message on 16 July 2020.

  6. The conduct constituting count 2 occurred in a 19 hour period on 15 and 16 July 2020, when the applicant sent over 200 text messages to the complainant’s mobile phone, in which he sought a romantic and sexual connection with her.

  7. The conduct constituting count 3 involved the applicant sending the complainant various text messages on 16 July 2020 containing threats to kill. The agreed facts do not explain what happened between the early hours of 16 July 2020 when the applicant was continuing to send the text messages which became the subject of count 2, and later on 16 July 2020 when the text messages which were the subject of count 3 commenced. The latter included “Your going to choke on your own blood…your got 2 days to reconsil with me or your dead”, suggesting that there was some communication to the applicant from the complainant or her carer or the police which indicated that his text messages (and any other advances) were not welcome and that his romantic and sexual feelings or desires were not reciprocated.

  8. There were three medical opinions tendered. The first was a psychiatric report of Dr Gordon Elliott prepared for the purposes of assessing the applicant’s fitness to plead. The second was a medico-legal report of Mr John Wills prepared in relation to the October 2019 stalk/intimidate offence. The third, tendered in the applicant’s case, was a psychiatric report of Dr Christopher Bench. He was asked to evaluate the applicant including for the purpose of expressing opinions as to whether he suffered from any mental illness and if so, whether there was any causal connection between that illness and the two charged offences.

  9. Dr Bench evaluated the applicant in June 2021 by an audio-visual link. He confirmed that the applicant suffered from schizoaffective disorder with a predominance of mood-related symptoms, including becoming grandiose when manic. He described that condition as a “serious and persistent mental illness characterised by both psychotic symptoms and significant mood symptomology”.

  10. Dr Bench described it as “very difficult to get a clear psychiatric history” from the applicant. He concluded that the applicant was “clearly quite insightless into the nature of his mental illness” and also “likely insightless as to the nature of his offending behaviour”. When questioned about that behaviour, the applicant did not accept that it happened as described in a statement of facts which had been provided to Dr Bench. When Dr Bench sought to explore that subject, the applicant “abruptly terminated the evaluation” making it impossible for the doctor with any “reasonable degree of medical certainty” to comment on any causal connection between his mental illness and the offences.

  11. Notwithstanding that qualification, Dr Bench did express views about there being such a connection. First, he considered that based on the applicant’s “documented history” the offending “would appear to be a direct result of his psychotic illness”. That history included an incident in 2017 in which his symptoms included “disturbance of mood, [and] being grossly elevated in mood, grandiose and irritable”, and incidents in April 2019 in which his behaviour was described as “manic” or “manic and psychotic” and involved reports of incidents consistent with delusional beliefs.

  12. Secondly, he expressed the following opinion with a “low degree of confidence”:

… There has likely been a causal connection between the psychotic illness and the index offences. The text messages would appear to suggest the [applicant] believed he was already in a relationship with the victim in spite of the victim’s protestations to the contrary. The most plausible explanation for such would be that he had incorporated her into his delusional beliefs.

  1. In our view Dr Bench’s evidence justified a finding of a causal connection between the mental illness and offending. The offending conduct occurred between May and July and involved manic behaviour, particularly in relation to the number of telephone calls made and text messages sent to the complainant over a two-day period in July.

  2. That finding and Dr Bench’s opinion that the applicant had little or no insight into the nature of his illness and as to the nature of his offending behaviour together justify a revised and reduced assessment of the degree of criminality and moral culpability involved in the offending. That in turn results in less weight being given in the sentencing analysis to the significance of specific deterrence and the appropriateness of the applicant as an example for general deterrence. These considerations together are sufficient in our view to justify imposing a less severe sentence on the applicant; and one which treats the criminality involved in each of the counts as related, it being contributed to by his schizoaffective disorder.

  3. The aggregate of the two sentences imposed by the sentencing judge was 3 years 5 months with a non-parole period of 17 months. We agree with his Honour’s assessment of the appropriate non-parole period and note in particular Dr Bench’s opinion that it was not surprising that the applicant was having “difficulties in the custodial setting” considering his severe mental illness because he “would be vulnerable to exploitation by other inmates both with regard to financial or possible sexual exploitation. His irritability and absence of verbal filter would [also] place him at increased risk of assaults.”

  4. We propose to impose a sentence of 3 years for count 2 and direct that sentence commence on 16 October 2020, which means it will expire on 15 October 2023. We impose a sentence for count 3 (taking account of the s 16BA offence) of 2 years and 4 months also commencing on 16 October 2020, which means it will expire on 15 February 2023. The reduction in the overall sentence to 3 years is achieved in part by making the sentences concurrent to reflect the finding of a connection between the mental illness and offending.

  5. It follows that the aggregate sentence is one of 3 years requiring that a recognizance release order be made and that a non-parole period not be fixed (Crimes Act (Cth), s 19AC).

  6. At the conclusion of argument we invited written submissions from the parties in relation to the form of such a release order. Having considered those submissions, the Court makes the following orders as to the disposal of the application for leave to appeal, the re-sentencing of the applicant and his release from custody.

Orders

  1. The Court makes the following orders:

  1. Grant the appellant leave to appeal from the sentences imposed by the District Court on 15 March 2022.

  2. Allow the appeal on ground 1.

  3. Quash the sentences imposed by the District Court on 15 March 2022.

  4. In lieu of those sentences, impose the following sentences:

  1. In respect of count 2, a term of imprisonment of 3 years commencing on 16 October 2020 and expiring on 15 October 2023; and

  2. In respect of count 3 (and taking into account the s 16BA offence), a term of imprisonment of 2 years and 4 months commencing on 16 October 2020 and expiring on 15 February 2023.

Accordingly the aggregate of the two sentences to be imposed is 3 years.

  1. Order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) that the appellant be released from imprisonment on 15 July 2022 upon his giving security by recognizance of $100 to comply with the following conditions until 15 October 2023:

  1. the appellant be subject to the supervision of a probation officer, namely the Commissioner of Corrective Services NSW or his or her nominee (the “probation officer”), until 15 October 2023;

  2. obey all reasonable directions of the probation officer;

  3. not travel interstate or overseas without the written permission of the probation officer;

  4. undertake such treatment or rehabilitation programs that the probation officer reasonably directs;

  5. if directed, the appellant be assessed for psychological counselling, and attend psychological counselling if it is recommended as result of the assessment, or if it is considered necessary by the probation officer;

  6. if directed, the appellant be assessed for psychiatric counselling, and attend psychiatric counselling if it is recommended as a result of the assessment, or if it is considered necessary by the probation officer;

  7. the appellant authorise and direct all medical, psychiatric, psychological, and other professional advisers or counsellors to make available to the probation officer a report on his medical and/or other conditions on request;

  8. the appellant be assessed for drug counselling, and attend drug counselling if it is recommended as a result of the assessment, or if it is considered necessary by the probation officer;

  9. the appellant continue taking his prescribed medication and/or comply with treatment as directed by his psychiatrist/general practitioner until the psychiatrist/general practitioner informs the probation officer in writing that it is no longer necessary;

  10. the appellant not communicate or attempt to communicate with the complainant (being the person in relation to whom the offences charged by counts 2 and 3 and the s 16BA offence were committed) either directly or indirectly, including by telephone or other electronic means or through another person;

  11. the appellant not approach the complainant or the complainant’s place of residence or work;

  12. report to the Newcastle Community Corrections Office upon release from custody and in any event by 5pm on 20 July 2022; and

  13. notify the probation officer of any change of residential address or employment within three working days after the change.

  1. Direct that by 5pm on 14 July 2022 the appellant sign a recognizance in the form of Annexure “A” to this judgment.

  1. These proposed orders depart from the suggested orders of the appellant or the Crown in the following respects. Our reasons for adopting the orders to be made are stated below, albeit briefly.

  1. The sentence or sentences should commence on the date adopted by the sentencing judge. The appellant sought a commencement date of 28 September 2020 and an end date of 28 September 2023.

  2. The order for release is to take effect on 15 July 2022. The appellant sought a release date of 7 July 2022, i.e. before this judgment was delivered.

  3. There is no condition that the appellant be of good behaviour for a period. The Crown seeks such a condition for a period of 18 months. The imposition of such a condition is not required in relation to an order made under s 20(1)(b).

  4. The remaining conditions sought by the Crown are to apply for a period of 18 months. The orders impose the conditions until 15 October 2023 when the period of imprisonment ends.

  5. The versions of condition (5)(j) as proposed by the parties have been amended slightly but not substantially.

  6. In conditions (5)(j) and (k) the complainant is sufficiently identified as being the object of the offending but not by name.

  7. The versions of condition (5)(k) as proposed by the parties have been amended slightly.

  8. There is no condition in the terms of condition (5)(j) but applying to persons under the age of 18 other than the complainant. The versions of the proposed conditions would prevent the appellant from talking to any person under the age of 18 years (in any context) without the supervision of an adult.

  9. Conditions (5)(l) and (m) as contended for by the Crown, but not the appellant, have been adopted with minor amendments.

  10. There is no condition requiring the appellant to report to or receive visits from the probation officer as required, as contended for by the Crown. That subject matter is sufficiently addressed by condition (5)(b).

Explanation for the purposes of Crimes Act (Cth), s 16F(2)

  1. The orders which this Court has made impose two sentences of imprisonment which are to be served concurrently and include a recognizance release order. Each of the sentences commences on 16 October 2020 and the longer sentence, in respect of count 2, expires on 15 October 2023. The recognizance release order provides that the appellant should be released from imprisonment on 15 July 2022 upon his giving security by recognizance of $100 to comply with the 13 listed conditions.

  1. Accordingly:

  1. The service of the sentences will entail a further period of imprisonment until 15 July 2022. The balance of the sentences will involve a period of service in the community until 15 October 2023.

  2. That release into the community is subject to conditions which include that the appellant be subject to the supervision of a probation officer, that he obey all reasonable directions of that officer, that he not travel interstate or overseas without the written permission of that officer, and that he undertake such treatment or rehabilitation programs as the officer reasonably directs. The remaining conditions are set out in sub-paras (e) to (m) of [65(5)] of these reasons.

  3. If the appellant fails without reasonable excuse to fulfil any of the conditions, he may be taken before a magistrate and dealt with for that failure, including by the imposition of a monetary penalty of not more than $1000, or by the extension of the period for which the person is required to give security to be of good behaviour, or by the revocation of the release order and the making of an order under Crimes Act (Cth), s 20AB, or by the revocation of the order and the making of an order that the person be imprisoned for the parts of each sentence that the person had not served at the time of his release (Crimes Act (Cth), s 20A(5)(c)).

  1. Finally, it is to be noted that there is a power under s 20AA of the Crimes Act (Cth) to vary the conditions of a recognizance.

**********

Annexure “A”

COMMONWEALTH OF AUSTRALIA

Crimes Act 1914

FORM OF RECOGNIZANCE UNDER SECTION 20(1)(b)

I, Richard Phillip Veale, the appellant:

a) have had explained to me:

i. the purpose and effect of the recognizance release order, a copy of which is attached; and

ii. the consequences that may follow if I fail, without reasonable excuse, to comply with any of the conditions of that release order; and

iii. that the release order may be discharged or varied under section 20AA of the Crimes Act 1914;

and

b) agree that I am bound in accordance with the terms of the order; and

c) agree that I have been given a copy of the release order.

.......................................................Dated..............................

Before me: .......................................................

                    Solicitor / Justice of the Peace

rECOGNIZANCE RELEASE ORDER

  1. Order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) that the appellant be released from imprisonment on 15 July 2022 upon his giving security by recognizance of $100 to comply with the following conditions until 15 October 2023:

    1. the appellant be subject to the supervision of a probation officer, namely the Commissioner of Corrective Services NSW or his or her nominee (the “probation officer”), until 15 October 2023;

    2. obey all reasonable directions of the probation officer;

    3. not travel interstate or overseas without the written permission of the probation officer;

    4. undertake such treatment or rehabilitation programs that the probation officer reasonably directs;

    5. if directed, the appellant be assessed for psychological counselling, and attend psychological counselling if it is recommended as result of the assessment, or if it is considered necessary by the probation officer;

    6. if directed, the appellant be assessed for psychiatric counselling, and attend psychiatric counselling if it is recommended as a result of the assessment, or if it is considered necessary by the probation officer;

    7. the appellant authorise and direct all medical, psychiatric, psychological, and other professional advisers or counsellors to make available to the probation officer a report on his medical and/or other conditions on request;

    8. the appellant be assessed for drug counselling, and attend drug counselling if it is recommended as a result of the assessment, or if it is considered necessary by the probation officer;

    9. the appellant continue taking his prescribed medication and/or comply with treatment as directed by his psychiatrist/general practitioner until the psychiatrist/general practitioner informs the probation officer in writing that it is no longer necessary;

    10. the appellant not communicate or attempt to communicate with the complainant (being the person in relation to whom the offences charged by counts 2 and 3 and the s 16BA offence were committed) either directly or indirectly, including by telephone or other electronic means or through another person;

    11. the appellant not approach the complainant or the complainant’s place of residence or work;

    12. report to the Newcastle Community Corrections Office upon release from custody and in any event by 5pm on 20 July 2022; and

    13. notify the probation officer of any change of residential address or employment within three working days after the change.

Decision last updated: 13 July 2022

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