Wilmot v R - [2007] NSWCCA 278

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Wilmot v Regina [2007] NSWCCA 278

FILE NUMBER(S):
2006/4953

HEARING DATE(S): 20 August 2007

JUDGMENT DATE: 28 September 2007

PARTIES:
Mark Wilmot (applicant)
Regina (respondent)

JUDGMENT OF: Santow JA Hidden J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0256

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
C Davenport SC (applicant)
M Hobart (Crown)

SOLICITORS:
Legal Aid Commission (applicant)
Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW
Sentence
malicious wounding with intent to do grievous bodily harm
using offensive weapon with intent to prevent lawful apprehension
offender mentally ill
adequacy of evidence of connection between mental illness and offences

LEGISLATION CITED:
Crimes Act 1900

CASES CITED:
R v Engert (1995) 84 A Crim R 67
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
R v Edigarov (2001) 125 A Crim R 551

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/4953
SANTOW JA
HIDDEN J
HOWIE J
Friday 28 September 2007

Mark Wilmot v Regina

Judgment

SANTOW JA: I agree with Hidden J.
HIDDEN J: The applicant, Mark Wilmot, pleaded guilty in the District Court to the following charges:
(1) Malicious wounding with intent to do grievous bodily harm, an offence under s33 of the Crimes Act which carries a maximum sentence of imprisonment for twenty-five years and a standard non-parole period of seven years;
(2) Using an offensive weapon with intent to prevent lawful apprehension, an offence under s33B of the Act which carries a maximum penalty of imprisonment for twelve years.
On the charge of using an offensive weapon with intent to prevent lawful apprehension, he was sentenced to a fixed term of imprisonment for three years, dating from 7 July 2004. On the charge of malicious wounding with intent to do grievous bodily harm, he was sentenced to imprisonment for eleven years, dating from 7 January 2005, comprising a non-parole period of seven years and a balance of term of four years. The overall sentence, then, was imprisonment for eleven-and-a-half years with an effective non-parole period of seven-and-a-half years. He seeks leave to appeal against those sentences.
Facts
An agreed statement of facts was tendered in the sentence proceedings. I shall set out the facts as succinctly as possible, drawing upon the summary in the Crown’s written submissions. The victim of the offence of malicious wounding with intent, Marged Mostafa, is the husband of Oumi Mostafa. She was previously married to the applicant, and there are two children of that union. On 5 July 2004, during an access visit to the children, the applicant threatened his daughter with physical harm if she did not tell him where the victim was working. She told him that he worked at the Sydney Olympic Park at Homebush Bay.
The applicant was living at the time at his mother’s home at Engadine. On the following day, 6 July 2004, he left the home early, taking with him two pocket knives, a pair of gloves, a ski mask and ski goggles. He drove to the victim’s home at Punchbowl and waited for him to leave. The victim left in his car, accompanied by his wife and the two children, and drove to his place of employment. The applicant followed them.
Having arrived there, the victim got out of his car, and the applicant flashed his headlights, alighted from his car and ran towards the victim. He was wearing the ski mask and goggles and held a pocket knife in each hand. He said, “I am going to kill you,” and stabbed the victim a number of times. He then ran back to his car and drove off.
The victim suffered a number of stab wounds, to which I shall refer shortly. His wife and other bystanders went to his assistance, and Mrs Mostafa’s daughter told her that she recognised the applicant as the offender. It was this conduct which gave rise to the first charge, maliciously inflicting grievous bodily harm with intent.
The applicant drove to a location at Terrey Hills, where he buried the knives, gloves, ski mask and goggles in a dry creek bed. He then drove to Palm Beach, where he took off the clothes he was wearing, which were bloodstained, and donned a wet suit. He buried the clothing under a rock, entered the surf and washed any remaining blood from his body. He drove to Avalon, where he bought some fresh clothes, and then returned home.
He saw a marked police car on the driveway of the home, and he drove to a nearby park. He was followed there by Highway Patrol police. He got out of his car, brandishing a tomahawk, which he had been carrying in the car for some time. He held the tomahawk above his head in a threatening manner and said to the police, “You’re going to have to shoot me because I’m not going to gaol.” The police could not arrest him because there were a number of members of the public, including children, in the park. They tried to use capsicum spray, but he escaped into an area of the Royal National Park. This behaviour was the basis of the second charge, using an offensive weapon with intent to prevent lawful apprehension.
Early in the following morning, 7 July 2004, the applicant presented himself at Engadine Police Station. He was barefoot and complained of being cold. He was attended to by ambulance personnel.
He was later interviewed by detectives, having declined the opportunity to seek legal advice, and admitted both offences. He said that the stabbing of Mr Mostafa was premeditated and that he intended to cause serious harm, but not to kill. He admitted having bought the ski mask and goggles a few days before the incident. He confirmed that he waved the tomahawk at the police because he wanted them to shoot him, as he did not want to go to gaol. He denied having any mental problems. He also took police to the location at Palm Beach where he had disposed of his clothes, and attempted to find the place at Terrey Hills where he had buried the knives and other items.
Mr Mostafa suffered stab wounds to his chest, one of which punctured his left lung and fractured a rib, as well as stab wounds to both hands and his right leg. He was treated at Bankstown Hospital and discharged on 14 July 2004, a little over a week after the incident. The injuries to his right hand have left him with permanent loss of strength and sensation in that hand.
Subjective case
The applicant was thirty-seven years old at the time of the offences and is now forty. He has no prior convictions. However, when he committed the offences he was subject to an apprehended violence order taken out against him by Mr Mostafa in November of the previous year. He was educated to year ten standard and had a stable employment history.
An important issue in the case was the applicant’s mental condition. His parents, who were themselves divorced but had remained on amicable terms, supported him in the sentence proceedings. His mother provided a written statement and his father gave evidence.
His father said that, during the course of the applicant’s marriage, he noticed a deterioration of his mental state. After the relationship broke down, the applicant complained to his parents about difficulties with access to the children and his perception that their care and education had been adversely affected since their mother had become involved with Mr Mostafa. By the time in late 2003 when the apprehended violence order was made, Mr Wilmot Snr was expressing concern to his son about his mental state and recommending that he seek help. Unfortunately, the applicant did not see a doctor or seek any other professional advice.
However, promptly after his reception into custody following his arrest for these offences, the applicant came to the attention of Justice Health medical staff. Over the following two months, he was diagnosed variously as suffering from paranoid psychosis, paranoid personality disorder and schizophrenia. He was placed on anti-psychotic medication.
In October 2004 he was examined for the purpose of these proceedings by the well known forensic psychiatrist, Dr Bruce Westmore. Dr Westmore did not then have the Justice Health records and the applicant was reluctant to speak to him about the offences. At that stage he was unable to diagnose a mental illness and, certainly, could not say that any such illness had played a role in the applicant’s criminal behaviour.
However, in the following month Dr Westmore was supplied with the Justice Health records and, it would seem, with some material from the applicant’s father. In a supplementary report, he noted that the Justice Health material disclosed a diagnosis of psychotic illness and expressed the opinion that it was likely that the applicant “was mentally ill at the time of the offending behaviour and it is probable that his mental illness played an immediate or direct role in the offending behaviour.” He also noted that the history from Mr Wilmot Snr of a decline of the applicant’s mental condition over a period of years was “consistent with a mental illness probably of a schizophrenic type”.
The sentencing judge took this condition into account as part of the subjective case. His Honour found that the applicant was remorseful, and considered that he was entitled to the “full discount” of twenty-five percent for the utilitarian value of pleas of guilty. He found special circumstances. He noted that the offences were committed in the context of “family relationships”, and concluded that the applicant had a prospect of rehabilitation if those relationships could be “properly adjusted” and he underwent psychiatric treatment.
The application
Ms Davenport SC, for the applicant, argued that the sentencing judge erred in his approach to the evidence of the applicant’s mental illness, and in his assessment of the starting point of sentence for the offence of malicious wounding with intent.
It is convenient to begin with the second of those arguments, which was put in Ms Davenport’s written submissions but not developed in oral argument. As I have said, the malicious wounding with intent offence carried a maximum sentence of twenty-five years and a standard non-parole period of seven years. His Honour expressed the view that that offence was “a case well above the standard non-parole period and well above mid-range in objective seriousness…”. He then referred to the maximum sentence of twenty-five years and concluded that the offence called for a starting point of twelve-and-a-half years “before discounts for this particular offence”.
As I understand Ms Davenport’s written submissions, her complaint is founded upon the assumption that twelve-and-a-half years was his Honour’s starting point for the non-parole period, and that his reference to where the offence stood in a range of objective seriousness was for the purpose of determining what that period should be in the light of the prescribed standard non-parole period. However, as the Crown prosecutor in this Court pointed out, a careful reading of this passage of his Honour’s remarks discloses that he was addressing the appropriate “head” sentence, not the non-parole period. This appears clearly enough from his Honour’s reference to the maximum sentence of twenty-five years imprisonment.
Let me turn, then, to his Honour’s approach to the applicant’s mental illness, which was the primary focus of the application. As I have said, his Honour accepted that the applicant suffered from mental illness and took that into account as a subjective factor. However, he did not find that that illness played a role in the applicant’s commission of the offences, notwithstanding Dr Westmore’s opinion that it probably did. He rejected a submission that the applicant should be found not to be fully aware of the consequences of his actions because of his mental state, saying that the manner in which the attack upon Mr Mostafa “was conducted, planned and carried out speaks against that finding”. He later referred to the “calculated manner” in which the applicant “approached his task of stalking Mr Mostafa and then attacking him…”.
As to the applicant’s use of an offensive weapon to avoid lawful apprehension, his Honour said:
… the effect of that mental condition is not readily apparent in much of the activity that occurred on this day, although the reason for his offending is a different matter entirely. But the actual actions he took do not match up with the mental problem that he has been diagnosed with.
What his Honour meant by the observation that “the reason for his offending is a different matter” is not entirely clear. However, it is apparent from his remarks that he did not accept that the applicant’s mental illness had any bearing upon the commission of either offence. Ms Davenport argued that this was in error and could not be supported, given the view expressed by Dr Westmore in his second report. Accordingly, she said, his Honour had failed to take into account a significant matter when assessing the objective gravity of both offences.
It is unnecessary to revisit the familiar line of authority dealing with the bearing of mental illness upon sentence: see, for example, R v Engert (1995) 84 A Crim R 67. Undoubtedly, a finding that the applicant’s mental illness contributed to his criminal behaviour would have been relevant to an assessment of the objective gravity of his offences. However, that is a matter in mitigation as to which the applicant bore the burden of proof, and there needed to be evidence sufficient to establish it.
Certainly, there is a bizarre quality to both offences. This can be seen in the somewhat elaborate planning of the malicious wounding of Mr Mostafa and the ferocity of the attack upon him, as well as in the applicant’s expression to police of a preference to be shot rather than be imprisoned. As to the planning of the first offence, it may be that that is not inconsistent with its being the product of mental illness. Moreover, one might question the effectiveness of the applicant’s disguise when committing that offence in the presence of members of his family. As I have said, it did not prevent his daughter recognising him.
Nevertheless, a finding that the applicant’s mental illness contributed to the offences would need to have been supported by expert evidence disclosing the basis upon which that finding was available. In his second report Dr Westmore did not elaborate at all upon his assertion of a link between the illness and the applicant’s behaviour. His ability to proffer a basis for that opinion must have been hampered by the fact that the applicant declined to provide him with an account of the offences. Nor did the applicant give evidence in the sentence proceedings, and Ms Davenport was unable to take us to any part of his recorded police interview which might have provided a foundation for the doctor’s opinion.
Ms Davenport referred to a passage in the Justice Health material from which it appears that the applicant told a health professional that he believed that Mr Mostafa was planning to sexually abuse his daughter. This appears in notes made on 12 July 2004, five days after his arrest. Nothing of the kind was suggested elsewhere in the evidence. In particular, he said nothing about it in his recorded police interview and there was no reference to it in Dr Westmore’s reports or in his father’s evidence. Nor is it referred to in his Honour’s remarks and, indeed, it does not appear to have been raised at the sentence proceedings.
It is difficult to place any weight on this assertion, or to afford any significance to it. There appears to have been no material before his Honour by which it might be decided whether there was some factual basis for it, whether it was a fabrication or whether it was a delusional belief. Certainly, there was no evidence, expert or otherwise, to establish that it was engendered by mental illness.
Ms Davenport emphasised the fact that almost immediately after the applicant’s arrest he was found to be suffering from a psychiatric condition, previously undiagnosed and apparently of long standing. She argued that this alone warranted a conclusion that his condition influenced the commission of the offences.
I must say that this aspect of the matter has troubled me. However, as I have said, the question of a link between the applicant’s mental illness and his offences was a matter for expert evidence. Whilst acknowledging the undoubted expertise of Dr Westmore, his second report was wholly inadequate to establish that link. The bare assertion of a link, without elaboration, was insufficient: cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. It was open to his Honour to find that the connection had not been established.
Accordingly, I consider that neither of the challenges to the sentencing process has been made out. The sentences are severe but the criminality of both offences, particularly the wounding of Mr Mostafa, was of a high order. That offence was aggravated by the fact that the applicant was subject to an apprehended violence order in respect of the same victim: R v Edigarov (2001) 125 A Crim R 551, per Wood CJ at CL at [50(c)]. Given his Honour’s approach in determining the sentence for that offence, summarised above, it is not entirely clear that the applicant received the specified discount of twenty-five percent for his plea of guilty. However, no point was taken about this in the application. Nor was it argued that the sentences are, in any event, manifestly excessive.
I would grant leave to appeal but dismiss the appeal.
HOWIE J: I agree with Hidden J.

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LAST UPDATED: 3 October 2007