Wainwright v R

[2016] NSWCCA 19

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Wainwright v R [2016] NSWCCA 19
Hearing dates:	4 December 2015
Date of orders:	07 March 2016
Decision date:	07 March 2016
Before:	Ward JA R A Hulme J Fagan J
Decision:	1. Leave to appeal granted.  2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – mental health – whether sentencing judge erred in assessing impact of mental health of offender on sentence
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	AM v R [2012] NSWCCA 203 Aslan v R [2014] NSWCCA 114 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 Elturk v R [2014] NSWCCA 61 R v Hemsley [2004] NSWCCA 228
Category:	Principal judgment
Parties:	Trent Wainwright (Applicant) Regina (Respondent)
Representation:	Counsel: Mr M Smith (Applicant) Mr E Balodis (Respondent)   Solicitors: Ms H Heathcoate (Applicant) Mr C Hyland (Respondent)
File Number(s):	2010/015096
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2014] NSWDC 368 Date of Decision: 12 June 2014 Before: Norrish QC DCJ File Number(s): 2010/015096

Judgment

1. THE COURT: The Applicant was arraigned before his Honour Judge Norrish QC in the District Court at Sydney on 20 February 2013 on a charge that on 16 January 2010, at Mortdale, he did cause grievous bodily harm to Tamara Lee with intent to murder her (s 27 Crimes Act 1900 (NSW)). The indictment contained an alternative count based upon the same events, under s 33(1)(b) Crimes Act, that the Applicant caused the grievous bodily harm to Tamara Lee with intent to do her grievous bodily harm. He pleaded not guilty to the first count and his plea of guilty to the second was accepted in full satisfaction of the indictment.

2. The maximum penalty under s 33(1)(b) is 25 years imprisonment and a standard non-parole period of 7 years applies. Because of medical opinions regarding his unfitness to plead at various times and for other reasons which it is not necessary to recite or examine here, the Applicant’s pleas were not entered in the District Court until a little over 3 years after his arrest. Sentence was not passed until 12 June 2014, another 16 months later. On that date his Honour imposed a non-parole period of 5 years and a balance of term of 3 years and 1 month. Due to the Applicant having been intermittently in custody between his arrest on 16 January 2010 and the date sentence was imposed, for a total of 2 years 7 months and 12 days, his sentence was ordered to commence on 31 October 2011. The non-parole period will expire on 30 October 2016 and the balance of the term will expire on 29 November 2019.

3. The Applicant now seeks leave to appeal against the severity of his sentence on the following ground:

“His Honour the sentencing judge erred in his approach to the effect of the Applicant’s mental health conditions upon sentence.”

Facts of the offence

4. The victim, Tamara Lee, was just 3 weeks short of 20 years of age at the date of the Applicant’s assault upon her. The Applicant was 28 years of age at the time. Ms Lee first made contact with the Applicant through an internet social networking site in about early 2009. She was at that time living in Tasmania. She moved to Sydney at about the beginning of December 2009 and from then lived with the Applicant and his mother for about 3 weeks.

5. Shortly before Christmas 2009 Ms Lee and the Applicant moved into a house at Mortdale owned by one Cindy Feng and her partner Nigel Sinclair. The four of them continued to share this residence through to the date of the offence.

6. On 15 January 2010 the Applicant went out drinking, alone, and returned after 1:30am on 16 January 2010. Upon his return he seized Ms Lee’s mobile phone and proceeded to use it to contact a number of her friends, by text messages and phone calls, to tell them not to contact Ms Lee again. The Applicant made threats to the persons with whom he communicated by means of this phone. This was done in the presence of Ms Lee and concluded with the Applicant telling her to “Get out of the fucking house”. The Applicant pushed Ms Lee violently out through the front of the house causing her to fall to the ground and hit her head on a concrete step. She lost consciousness and did not regain it throughout the sustained attack upon her which ensued.

7. The Applicant, who was wearing shoes, stomped upon Ms Lee’s head with considerable force as she lay unconscious where she had fallen. Mr Sinclair and Ms Feng both tried to force the Applicant away from the victim, who was motionless and defenceless. The Applicant told Mr Sinclair to “stay out of it” and threatened to harm his girlfriend, Ms Feng, if he interfered. The Applicant then stomped upon Ms Lee’s head at least three more times. He said, amongst other things, “She’s trying to kill me”.

8. Next the Applicant picked up a glazed terracotta pot about 60 centimetres high, 30 centimetres wide and constructed of material 20 – 25 mm thick. It weighed approximately 6.8 kilograms. The Applicant threw the pot down on Ms Lee’s head with sufficient force to shatter the pot. The Applicant then returned inside the house and commenced packing his belongings to leave. He departed the house through the front entrance, stomping on the victim’s head once more as he passed. She was still unconscious in the position in which she had first fallen.

9. During the course of this attack witnesses on the street and in neighbouring properties had called the police. The Applicant was arrested in the front yard of the property. He told the arresting officers: “Fuckin’ dumb bitch deserved it, she ran at me with a knife”. This was either a fabrication or a delusion. A police search of the premises did not locate any knife with which the victim could have attacked or threatened the Applicant.

The grievous bodily harm sustained by Ms Lee

10. Upon the arrival of ambulance officers shortly after police, the victim was found to be lying in a pool of approximately 1000 mL of her own blood, around her head. Her hair was heavily matted with blood and with pieces of terracotta. More broken terracotta was scattered around her head. Ms Lee had sustained major contusions to her face, eyes, ears, and nose. There were significant lacerations, measuring 2, 3 and 5 centimetres in length, around her eyes. The eyes were closed over due to swelling.

11. On subsequent examination in the hospital Ms Lee was found to have significant bruising and swelling of her entire face. Radiological examination revealed fractures of the mandible (lower jaw) and inferior orbital rim (lower part of the eye socket). The fracture of the mandible required fixation with a plate under anaesthetic. During recovery and knitting of the fracture Ms Lee was restricted to a liquid diet for approximately 6 weeks as she could not open her mouth or chew.

12. Ms Lee had also sustained a subconjunctival haemorrhage which caused blurred vision, more pronounced in the right eye. This haemorrhage, beneath the surface of the conjunctiva, has apparently since resolved.

13. Ms Lee is left with residual scars on her face and significant dental damage which will require extensive treatment to restore. Two of her teeth were loosened as a result of the blows she received and two more were chipped. She has continuing pain and discomfort in her jaw. Unsurprisingly Ms Lee has also been significantly and lastingly affected emotionally and psychologically by the trauma of the attack.

Subjective circumstances of the Applicant and criminal history

14. The Applicant is an only child. During his early years his mother and he were both the victims of domestic violence at the hands of his father. He has also given a history of having been sexually assaulted by a neighbour when he was 7 years old and by older boys in the neighbourhood at some stage during his childhood. He has said that he was bullied at school.

15. The Applicant was affected by Attention Deficit Hyperactive Disorder and by epilepsy during his school years and he left school in year 11. Since then he has worked in a number of unskilled occupations.

16. The Applicant’s criminal history shows a conviction for only one prior offence of any significance. He was convicted in 2005 of malicious wounding, which occurred on 27 February in that year. This offence arose out of an argument between the Applicant and another man, who was apparently a stranger to him, in a hotel. Both were affected by alcohol. The Applicant shattered a glass over the victim’s head, causing some lacerations.

Psychiatric state of the Applicant

17. In 2005 at age 22 the Applicant attended a mental health facility in Canterbury New South Wales with symptoms of depression. He was treated with anti-depressants medication and anxiolytics for a period. Prior to his arrest on 16 January 2010 for the subject offence he had never been diagnosed with a psychotic illness.

18. After the Applicant’s arrest a number of psychiatrists examined him and prepared reports. Several of these were directed to the question whether the Applicant was fit to plead to the charges laid against him. For a period the conclusion of at least some of the psychiatrists who examined him was that he was not. In chronological order, these sequential psychiatric reports contained the disparate and conflicting assessments summarised in the following paragraphs.

19. 29 May 2011, report of Dr Olav Nielssen: the doctor concluded that the Applicant was, in May 2011, suffering a schizoaffective disorder, being a relapsing psychotic illness with features of both schizophrenia and bipolar disorder. This conclusion was based in part upon the Applicant’s description of:

“…perceptual disturbances that sounded typical of schizophrenia–like psychosis in the period after his reception into prison, and in the years beforehand. He expressed a number of persecutory beliefs, for example, that corrupt police had influenced the case, that he had been the subject of sexual interference whilst asleep, that his drinks had been spiked and that his food had been tampered with. His beliefs seemed to be delusions of reference, that is, derived from his paranoid interpretation of commonplace events, rather than arising in response to the content of auditory hallucinations”.

20. Dr Nielssen’s diagnosis was also based upon:

“…aspects of his presentation during the recent interview, when he expressed what seemed to be a number of bizarre persecutory beliefs, was quite disorganised in his thinking and was thought to be mildly elevated in his mood, considering his circumstances.”

21. Dr Nielssen concluded, tentatively and uncertainly, as follows:

“From the limited information available it appears that Mr Wainwright was mentally ill at the time of the offence. It is unclear whether he had a delusional belief regarding Ms Lee or whether his underlying mental illness together with the possible effect of unstable epilepsy affected his perception of events and his ability to control his actions. Contemporaneous observations from medical records and other documents could help clarify the contribution of an abnormal state of mind to Mr Wainwright’s behaviour on 16.1.10, and hence his capacity to form the specific intention to commit the offence of attempted murder.”

22. There was no evidence before the learned sentencing judge that Dr Nielssen had subsequently clarified the “contribution of an abnormal state of mind to Mr Wainwright’s behaviour on 16.1.10”, by reviewing records of contemporaneous observations of the Applicant or by any other means.

23. 13 July 2011, report of Dr Adam Martin: Dr Martin undertook an examination of the Applicant on 2 July 2011 and reviewed the police brief of witness statements and Dr Nielssen’s report of 29 May 2011. He recorded that various paranoid and delusional assertions were made by the Applicant during his examination. Dr Martin concluded as follows:

“…whilst there are some diagnostic uncertainties regarding whether he does have a major mental illness, or of its exact aetiology, on balance, I think it is likely that he does have some psychotic phenomena suggestive of a Major Mental Illness such as Bipolar Disorder or Schizo-affective Disorder, and on a background of epilepsy and other previous behavioural problems stemming from childhood. However, there is not much objective evidence of his having had severe psychotic or mood-related symptoms at the time of the alleged offence and certainly he was not receiving treatment for this. The victim’s statement describes him accusing her of having been unfaithful; the accusations of her infidelity are not necessarily delusional in origin, even if incorrect”.

24. 14 September 2011, further report of Dr Adam Martin: the doctor reviewed recent clinical assessments of the Applicant completed by Justice Health whilst the Applicant had been on remand in custody in relation to the subject charge. These did not cause Dr Martin to change his opinion but he considered that they added to the “diagnostic uncertainty around his psychopathology”.

25. 21 November 2011, report of Dr Andrew White: at this date Dr White was the Applicant’s treating psychiatrist. The Applicant had been under his care since 20 September 2011, on which date her Honour Judge Flannery had found him unfit to be tried. Based upon clinical interviews with the Applicant, his Justice Health medical record, a summary of the evidence against the Applicant on the subject charge and the psychiatric reports of Drs Nielssen and Martin, Dr White concluded as follows:

“I do not feel able at this time to diagnose Mr Wainwright with any Axis 1 condition. He certainly does not appear to be suffering any psychotic symptoms at the moment and there are no signs of psychosis at interview. He has reasonable and plausible explanations for past beliefs and experiences that have been thought to be suggestive of a diagnosis of schizophrenia… There does seem to be a history of some instability of mood but in my mind this does not reach the diagnostic threshold of a mood disorder such as bipolar disorder. In my opinion his mood instability is more in keeping with that seen in people who have been subjected to abuse in childhood.

There certainly seems (sic) to be some features of borderline personality disorder in Mr Wainwright. He has instability of mood, instability of self-image, ambivalence in several areas including career and relationships. His relationship with the alleged victim of the offence could be seen as fairly typical of the relationship with someone with a borderline personality disorder with frequent fighting and instability. Other elements of his personality may well include narcissistic and paranoid traits.”

26. Dr White concluded that by the date of his report the Applicant was fit to be tried. He said:

“I do not feel able to diagnose Mr Wainwright with any major mental illness and have not attempted to treat him with any medication.”

27. 3 July 2012, report of Dr Adam Martin: Dr Martin interviewed the Applicant again on this date and provided his further report solely for the purpose of assisting the Court to determine his then fitness to be tried. The doctor considered that he was fit. No further analysis was made or opinion expressed regarding his mental state at the time of the offence.

28. 11 May 2013, report of Dr John Roberts: this report is concerned only with the Applicant’s fitness to stand trial, as at April 2013. The doctor considered that at that date “the Applicant’s beliefs are arising from a delusional belief system in which evidence of psychosis exists”. The doctor made no attempt to ascertain what may have been the Applicant’s psychiatric state at the date of the subject offence or what contribution any possible psychosis at that date may have made to the commission of the offence.

29. 10 July 2013, further report of Dr Martin: this report was again directed to the question of fitness to plead rather than to that of the Applicant’s mental state at the time of commission of the offence. The opinions expressed by Dr Martin which have some relevance to the latter question included the following:

“My opinion regarding Mr Wainwright’s clinical condition is that he is a person with various psychological vulnerabilities stemming from having epilepsy and having been exposed to childhood trauma and disrupted attachments…

Having reassessed him and having read my previous reports and the other information made available, my opinion is that he probably does not have a major mental illness such as schizophrenia, schizoaffective disorder or bipolar disorder, but that he has experienced long term problems in relation to controlling his behaviour, being prone to impulsivity and mood changeability, as a result of childhood experiences and complicated by having had epilepsy [now reasonably well controlled] and previous substance abuse.

I do not believe Mr Wainwright is psychotic although he may take a paranoid stance towards some of the named members of the police and witnesses regarding his case. However, I do not believe this paranoia is of a delusional nature. My opinion is that the manner in which his expressed beliefs are held is not of the manner in which delusions are held in illnesses such as schizophrenia.”

30. 4 March 2014, report of Dr Jacmon: Dr Jacmon is a consulting psychologist who treated the Applicant in that capacity from February 2012 up to the date when sentence was passed. Treatment involved numerous therapeutic “sessions”. As at 4 March 2014 Dr Jacmon concluded that the Applicant had four clinically significant disorders. The first, borderline personality disorder, was considered to have likely appeared in adolescence. The second, Post-Traumatic Stress Disorder, was thought by Dr Jacmon probably to have “emanated from child sexual assaults, violence by his father and witnessing his father assault his mother”. The third, major depressive disorder, and the fourth, generalised anxiety disorder “have likely arisen from traumatic experiences and have been maintained by subsequent life downturns such as the truculence in former relationships and the discord with his mother”.

31. The report does not contain any expression of opinion as to whether any of these diagnosed disorders may have contributed, or if so in what degree, to his attack on Ms Tamara Lee. The doctor did offer the following opinion about the Applicant’s changes in mood and response to relationships, generally, which may have a bearing:

“Throughout adult life Mr Wainwright experienced frequent changes in mood triggered by life events as they occurred and ranging from elation to anger that was difficult to control. His relationships were at times intense and stormy. He was impulsive and this often led him into difficulties particularly with his mother.”

The learned sentencing judge’s assessment of psychiatric evidence

32. His Honour reconciled and synthesised the range of views of the psychiatrists and of Dr Jacmon in this passage:

“The conclusion I reach is that the medical material and the view of the treating psychologist speaks (sic) of mental and psychological issues that may be seen as relevant to the offending, emanating primarily, from what I see, as his borderline personality disorder and the possible complications arising from the symptoms of Post-Traumatic Stress Disorder. The anxiety and depressive symptoms would appear to be reactive to circumstances at the time of the subsequent assessments [following] the commission of the offence. There is no contemporaneous observation or record of psychotic symptoms and in my view no reliable evidence of any psychotic illness underlying or causing the prisoner’s conduct.”

33. In written submissions made by the Applicant’s counsel, the above conclusion of the learned judge is quoted without the final sentence and it is expressly stated that “no issue is taken with the basic manner in which his Honour reconciled the conflicting opinions”. We consider that, similarly, no issue could be taken with the final sentence of the passage quoted.

33. His Honour did not accept that the savage assault upon Ms Lee was perpetrated under the influence of delusional beliefs. His Honour said:

“I appreciate it is reported that the prisoner has from time to time had delusional beliefs after the event, but in the context of the observations of the eyewitnesses and the conduct of the prisoner that is established through the facts, the conduct of the prisoner subsequently very much falls within the realm of self-justification and the avoidance of responsibility. This is emphasised by the many versions [of the events and of the Applicant’s perceptions at the time] that the prisoner has given to different people.”

35. This finding was fully justified by the material before his Honour. Likewise, his Honour was justified in rejecting the Applicant’s contention on sentence that he “had no memory of hitting her with the pot plant or stomping on her head”. This proposition had been submitted on his behalf from the bar table. The Applicant did not give evidence in the sentence proceeding.

36. Further findings of his Honour, again well open to him, were as follows:

“…[O]ne of the issues that I conclude in favour of the prisoner is that contributing to the prisoner’s reaction to circumstances, that were not as he would assert them to be, were the underlying psychological conditions arising from both the borderline personality disorder and the history of Post-Traumatic Stress Disorder, and his inability thus to control himself.”

37. On appeal, that finding was also expressly accepted by the Applicant’s counsel but issue was taken with the learned sentencing judge’s conclusion that any diminution of moral responsibility attributable to his mental condition was slight. In the relevant passage of the remarks on sentence, as follows, his Honour contrasted the Applicant’s case with that of Elturk v R [2014] NSWCCA 61:

“If, in the case of Elturk, his moral culpability was significantly diminished by reason of his illness, in this case whilst I accept there is some diminution of moral responsibility in the context of psychological conditions in part caused by events beyond the prisoner’s control, the diminution is slight.”

38. With respect to this passage the Applicant’s counsel now complains that the question of diminution of moral responsibility ought not to have been approached by way of comparison with a more serious case but by his Honour making “a proper assessment of the extent to which those afflictions may have reduced the moral culpability of the Applicant”. We reject this criticism of the learned judge’s remarks. His Honour did “make a proper assessment” namely that the “diminution is slight”. The material before him on sentence justified that conclusion.

39. The Applicant’s counsel went so far as to submit that his Honour was “bound to accept” the opinions of Dr Jacmon regarding psychiatric disorders from which, in Dr Jacmon’s view the Applicant had suffered for most of his life. His Honour was not “bound to accept” the opinion of any one of the experts whose evidence was before him. He evidently took into account the more cautious assessments of the psychiatric specialists and he was entitled to do so. We do not agree with the Applicant’s submission that “a proper assessment of the link between the Applicant’s mental condition and his offending conduct compels a conclusion that the [reduction in] his moral responsibility is more than ‘slight’”.

Legal principle with respect to taking account of mental health

40. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 at [177] McClellan CJ at CL summarised the principles to be applied in sentencing an offender who was suffering from a mental condition at the time of committing the offence, to the following effect:

1. Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced and consequently the need to denounce the crime may be reduced, with a reduction in sentence.

2. The offender’s state of mental health at the relevant time may also have the consequence that he or she is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed.

3. The offender’s mental condition may mean that a custodial sentence may weigh more heavily upon him or her and, because the sentence may thus be more onerous, its length or the conditions under which it is to be served may be reduced.

4. The offender’s mental condition at the time of committing the offence may reduce or eliminate the significance of specific deterrence.

5. Conversely, an offender’s mental illness may mean that he or she presents more of a danger to the community than a person not afflicted by such a condition and considerations of specific deterrence may therefore result in an increased sentence.

41. The learned Chief Judge supported these propositions with extensive citation of authority. They are substantially to the same effect as the propositions formulated by Sperling J (Grove and Dowd JJ concurring) in R v Hemsley [2004] NSWCCA 228 at [33] – [36]. The principles have been restated and applied in this Court on many occasions. They were re-endorsed in Aslan v R [2014] NSWCCA 114 with the concurrence of all three judges who constituted the Court for that appeal, at [33].

42. The learned sentencing judge correctly noted these principles and gave effect to them so far as applicable. The following extracts from the remarks on sentence are relevant:

“There is a need for an element of general deterrence and specific deterrence. At the moment I do not believe the community needs protection from the offender and I do not believe the prisoner presents a risk to the victim. I am required to promote his rehabilitation and make him accountable for his actions. … In this particular matter the [mental] condition is not one that calls for reduction upon the weight to be given to general deterrence, although the moral culpability issue I have already dealt with [a reference to the ‘slight’ diminution in responsibility as found in the passage cited at [37]]. I appreciate the prisoner by reason of his personality and the matters adverted to in the medical reports may have difficulties in custody that may not be promoted [scil ameliorated] sufficiently by available resources. I do not believe, subject to supervision, that the prisoner is a danger to the community. On the other hand there is, it must be said, in the way in which the prisoner has conducted himself, some need to have regard to the specific deterrence of the prisoner by any penalty that the Court imposes. I am required to recognise the harm done to the victim of course and make the prisoner accountable for his crime even if he refuses to take full responsibility.”

43. Immediately following this passage his Honour proceeded to fix sentence, allowing a 10% discount for the utilitarian value of his plea. But for the 10% discount the total term would have been 9 years.

44. We have, as stated, found no error in his Honour’s evaluation of the psychiatric reports and no error in the conclusion that the diminution in moral responsibility which could be recognised on account of the Applicant’s mental history was slight. There was no error in his Honour’s appreciation of the principles applicable to taking into account the Applicant’s mental disorders, nor in his application of those principles. Although his Honour has not quantified the degree of amelioration of sentence which he allowed on account of the Applicant’s mental condition (as he was not obliged to do) it is apparent that some allowance for this has been made.

45. The attack upon Ms Lee was one of appalling savagery. It was sustained. The repeated assaults were perpetrated upon a defenceless young woman lying unconscious. The Applicant persisted with his attack in the face of entreaties from his housemates to desist. He pressed on with determination against their attempts physically to restrain him.

46. The offence to which the Applicant pleaded guilty and for which he was sentenced involves the same mental element as for murder: intent to cause grievous bodily harm. The significance of this mental element in the crime, relevantly to sentence, has been referred by this Court in AM v R [2012] NSWCCA 203 per Johnson J at [67] and [68].

47. Given the 25 years maximum and the 7 years standard non parole period which are applicable to s 33(1)(b) Crimes Act, an offence against that section involving such objectively seriousness features as were present here would have been expected to attract a starting point sentence more severe than 9 years (before discount – see [43]) absent some allowance for the slight reduction in moral responsibility which his Honour recognised on account of the Applicant’s mental condition.

Conclusion

48. For these reasons, although the Court will grant leave to appeal, the appeal must be dismissed. The second ground which appears in the proposed Grounds of Appeal (“a lesser sentence is warranted in law”) would only fall to be considered if error were demonstrated under the first ground – which is not the case.

49. Accordingly the orders of the Court will be:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 07 March 2016