Wornes v The The Queen

[2022] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wornes v R [2022] NSWCCA 184

Hearing dates:

8 April 2022

Date of orders:

26 August 2022

Decision date:

26 August 2022

Before:

Simpson AJA at [1];
Hamill J at [2];
Ierace J at [49]

Decision:

(1) Application for leave to appeal granted.

(2) Appeal allowed.

(3) Confirm the orders made under s 10A of the Crimes (Sentencing Procedure) Act 1999 for the offences of contravening the apprehended domestic violence order.

(4) Quash the sentence imposed in the District Court for the offence under s 33 Crimes Act 1900 and in lieu thereof the applicant is sentenced to a non-parole period of 4 years commencing on 3 August 2019 and expiring on 2 August 2023 with a balance of term of 2 years expiring on 2 August 2025.

(5) The applicant will be eligible for release to parole at the conclusion of the non-parole period.

Catchwords:

CRIMINAL LAW – sentencing – serious offences of domestic violence – relevance of psychiatric condition – personality disorder – whether subject to “De La Rosa principles” – where primary Judge decided “as a matter of law” principles not applicable – error established – where Judge determined lack of previous convictions “assumed less significance” due to nature of offences and recent history of domestic violence – error established – applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW), s 33

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(3)(e), 32, 33, 44(2) 54A, 54B, 54C, 54D

Criminal Appeal Act 1912 (NSW), s 6(3)

Criminal Procedure Act 1986 (NSW), ss 166, 289D, 289F(1)

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413

Athos v R [2013] NSWCCA 205; (2013) 233 A Crim R 302

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Brown v R (2020) 62 VR 491; [2020] VSCA 212

Davis v R [2015] NSWCCA 90

De Angelis v R [2015] NSWCCA 197

Decision restricted [2022] NSWCCA 24

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director of Public Prosecutions (Vic) v O’Neill (2015) 47 VR 395; [2015] VSCA 325

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

Lloyd v R [2022] NSWCCA 18

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Kennedy [2000] NSWCCA 527

R v Lawrence [2005] NSWCCA 91

R v Verdins (2007) 16 VR 269; [2007] VSCA 102

Turnbull v R [2019] NSWCCA 97

Texts Cited:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV (4th ed, 2000, American Psychiatric Publishing)

R Kinscherff, “Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act” (2010) 38(4) Journal of Law, Medicine & Ethics 745

Category:

Principal judgment

Parties:

Sandra Wornes (Applicant)
Regina (Respondent)

Representation:

Counsel:
K Averre (Applicant)
M Kumar (Respondent)

Solicitors:
Legal Aid Commission (NSW) (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/235474; 2019/233682; 2019/241454

 Decision under appeal 

Court or tribunal:

New South Wales District Court

Jurisdiction:

Criminal

Date of Decision:

24 March 2021

Before:

McLennan SC DCJ

File Number(s):

2019/233682; 2019/235474; 2019/241454

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal against a sentence imposed in the District Court on 24 March 2021. The applicant pleaded guilty to one offence of wounding with intent to cause grievous bodily harm, receiving a 25% discount for her early plea. Two common assault offences were taken into account on a Form 1 and two offences of contravening apprehended domestic violence orders (“ADVO”) were before the Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). The applicant received a sentence of 8 years’ imprisonment with a non-parole period of 5 years for the wounding offence. Convictions with no further penalties were recorded for the contravene ADVO offences.

The primary issue on appeal was whether the sentencing proceedings miscarried due to the sentencing Judge’s finding that the applicant’s personality disorder fell outside the scope of the principles set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (ground 1). The applicant submitted that the sentencing Judge erred in making the finding that the applicant’s personality disorder was not relevant to a proper assessment of her moral culpability. The sentencing Judge held “as a matter of law” that such disorders did not fall within the relevant principles.

The second issue was whether the sentencing Judge erred in find that the applicant’s lack of criminal convictions “took on less significance” in the context of domestic violence offending (ground 2). The applicant submitted that the sentencing Judge erred in denying the applicant leniency in recognition of her lack of criminal history.

The Court Held (per Hamill J, Simpson AJA and Ierace J agreeing), allowing the appeal and re-sentencing the applicant:

As to the consideration of the applicant’s personality disorder

1. Personality disorders can be taken into account on sentence in the manner described in De La Rosa, in the same way as other mental or psychiatric conditions. Such disorders are not excluded from the relevant principles “as a matter of law” and each case is to be determined on its own facts. The approach taken in the District Court was not supported by the cases to which his Honour referred. The sentencing Judge erred in finding that the applicant’s personality disorder did not attract the De La Rosa principles: [25]-[30] (Hamill J); [1] (Simpson AJA); [49] (Ierace J).

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Brown v R (2020) 62 VR 491; [2020] VSCA 212 applied.

De Angelis v R [2015] NSWCCA 197; R v Lawrence [2005] NSWCCA 91; Director of Public Prosecutions (Vic) v O’Neill (2015) 47 VR 395; [2015] VSCA 325; R v Verdins (2007) 16 VR 269; [2007] VSCA 102 considered.

2. The sentencing Judge’s decision that the applicant’s personality disorder did not reduce her moral culpability was not supported by the unchallenged expert evidence. That psychiatric evidence was underestimated by the sentencing Judge. It was relevant to a proper assessment of the applicant’s moral culpability and the weight to be given to deterrence, and accordingly the sentencing proceedings miscarried: [31]-[32] (Hamill J); [1] (Simpson AJA); [49] (Ierace J).

As to the consideration of the applicant’s lack of criminal history

3. Prior to the offending giving rise to the appeal, the applicant had no previous offences recorded against her. The sentencing Judge erred in finding that the applicant’s lack of criminal history was less significant in the context of offences of domestic violence. The applicant was entitled to a reduction in the sentence which her offending would otherwise attract: [34]-[37] (Hamill J); [1] (Simpson AJA); [49] (Ierace J).

R v Kennedy [2000] NSWCCA 527; Athos v R [2013] NSWCCA 205; (2013) 233 A Crim R 302; Decision restricted [2022] NSWCCA 24 considered.

As to re-sentencing

4. The Court assessed the s 33 offence as falling within the mid-range of objective seriousness, and took into account the serious impact of the offence on the victim, the applicant’s mental health issues, her lack of criminal history and prospects of rehabilitation: [39]-[43] (Hamill J); [1] (Simpson AJA); [49] (Ierace J).

5. The applicant was re-sentenced to a term of 6 years’ imprisonment, with a non-parole period of 4 years. A finding of special circumstances was made: [44]-[47] (Hamill J); [1] (Simpson AJA); [49] (Ierace J).

JUDGMENT

1. SIMPSON AJA: I have read in draft the judgment of Hamill J. I agree with the orders proposed and with his Honour’s reasons. In particular, I should emphasise that, as Hamill J suggests, nothing in my judgment in De Angelis v R [2015] NSWCCA 197 was intended to be, or should be taken as, a proposition of law that personality disorders do not qualify as mental or psychiatric conditions that may bear upon the moral culpability of the offender and potentially the sentence to be imposed. Each case is to be determined on its own facts, upon the application of legal principles. There is no legal principle to the effect that personality disorders are excluded from the principles relating to sentencing offenders suffering from psychological or psychiatric conditions stated comprehensively in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.

2. HAMILL J: This application for leave to appeal against sentence raises an important issue concerning the relevance of an offender’s personal and mental health history to the appropriate penalty for a serious offence of violence. The applicant was diagnosed with a disorder recognised in the field of psychiatry, but the sentencing Judge decided “as a matter of law” that “personality disorders” are “outside the principles stated in De La Rosa.” ^[1] The applicant submitted that this approach was erroneous and not authorised by the authorities upon which the sentencing Judge relied or otherwise justified by his Honour’s reasons for judgment. The applicant’s submissions are correct. The appeal must be allowed and it is necessary to exercise the sentencing discretion afresh to determine whether a less severe sentence was warranted and should have been passed. ^[2]

   1. Remarks on Sentence (‘ROS’), 24 March 2021, p 21, citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. The principles in De La Rosa are set out at [177] of that judgment.

   2. Criminal Appeal Act 1912 (NSW), s 6(3), Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and see the judgments of Simpson JA in Davis v R [2015] NSWCCA 90 at [76]-[81] and Turnbull v R [2019] NSWCCA 97 at [40]-[46].

3. The case involved a series of domestic violence offences committed by a 46-year-old woman on her 47-year-old partner. The last of those offences was extremely serious. It involved an unprovoked and sustained stabbing attack on the victim in his own home resulting in serious injuries. The applicant was on bail for earlier, far less serious, assaults and was subject to an apprehended domestic violence order (‘ADVO’). She pleaded guilty to wounding with intent to cause grievous bodily harm, an offence carrying a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 7 years. ^[3] In addition to the principal offence of wounding with intent under s 33 of the Crimes Act 1900 (NSW), the applicant admitted two earlier offences of common assault against the same victim and these were taken into account on a Form 1. ^[4] Ms Wornes was also sentenced for two summary offences of contravening the ADVO, each of which carried a maximum penalty of 2 years. These offences were before the District Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).

   3. Crimes Act 1900 (NSW), s 33, Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A-54D and see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

   4. Crimes (Sentencing Procedure) Act, ss 32-33, Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413.

4. The applicant entered an early plea of guilty and the sentencing Judge said she “is entitled to and will receive a 25% discount in respect of her plea”. ^[5] The Judge imposed a sentence of 8 years’ imprisonment with a non-parole period of 5 years for the offence against s 33 of the Crimes Act. In relation to the offences on the s 166 certificate, his Honour recorded a conviction with no further penalty. ^[6] Ms Wornes seeks leave to appeal against the sentence, and specifically the sentence imposed for the wounding offence.

   5. ROS, 24 March 2021, p 1.

   6. Crimes (Sentencing Procedure) Act, s 10A.

5. Because error is established and the Court must exercise the sentencing discretion afresh, it is necessary to set out in some detail the facts of the offences and the applicant’s personal circumstances. Given its prominence in the proceedings both at first instance and on appeal, and to place the circumstances of the offending in context, I will commence by summarising the evidence of the applicant’s personal and psychiatric history before turning to the factual details of the offences and the approach taken by the sentencing Judge which gives rise to the grounds of appeal.

Ms Wornes’ personal and psychiatric history

6. At the sentencing hearing, the applicant tendered three reports of Dr Andrew Ellis, a forensic psychiatrist. The reports were dated 23 May 2020, 5 July 2020 and 7 February 2021. Initially, Ms Wornes’ solicitor (Mr Behan) sought to tender only the last of those reports. However, after discussion with the sentencing Judge, Mr Behan tendered the earlier reports which contained more detail of the applicant’s personal and psychiatric history. Dr Ellis was not required for cross-examination. ^[7] In the course of those discussions, which were robust, the sentencing Judge raised the question of whether the mental conditions and disorders identified by Dr Ellis attracted the principles summarised by the then Chief Judge at Common Law in the case of De La Rosa. ^[8] His Honour expressed an interest in “drilling into” the “concept of the personality disorder” and whether it amounted to a “mental condition” for the purpose of relevant sentencing principles. ^[9] It is unnecessary to parse the discussions between his Honour and the lawyers who appeared in the District Court because his Honour reserved judgment and delivered his remarks around two weeks later. The issues on appeal are to be determined by reference to his Honour’s judgment rather than things said on the hearing that preceded it.

   7. Cf Lloyd v R [2022] NSWCCA 18 at [46]-[47] (McCallum JA, Hamill and Cavanagh JJ agreeing).

   8. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

   9. Proceedings on Sentence (‘POS’), 11 March 2021, pp 6-7.

7. However, it is worth noting that the Judge referred to some judgments of this Court, ^[10] and questioned whether there was any authority “that a personality disorder otherwise not clearly defined does attract the principles in De La Rosa”. ^[11] Mr Behan maintained that the principles were engaged although, under considerable pressure from the bench, he made some concessions regarding the absence of mitigation for “self-induced intoxication” ^[12] and the “weight” that might be afforded to the material in Dr Ellis’ report. ^[13] He submitted that the applicant’s emotional responses were affected by her personality disorder, that her ability to restrain her impulses was compromised and that there was a causative link between her mental condition and the offending.

   10. R v Lawrence [2005] NSWCCA 91 and De Angelis v R [2015] NSWCCA 197.

   11. POS, 11 March 2021, p 9(3-5).

   12. Ibid, p 7(23-35).

   13. Ibid, p 19(7-39).

The evidence

8. The history taken by Dr Ellis included the following background of childhood and personal dysfunction:

• “She reported her childhood as ‘walking on eggshells’. She says that there were many arguments in the house centred around aggressive political discussions. She received corporal punishment from her mother … She reported that her father was violent and would throw objects. He once threw her. She witnessed him choke her mother.” ^[14]

• “She says that on one occasion as a child a stranger touched her on her underwear in exchange for giving her lollies. She says that his has influenced her attitude to sex, that she will use sex to obtain material goods, and will follow the instructions of others.” ^[15]

• “She said that she has in the past cut herself. She said this was infrequent and usually when she was intoxicated with alcohol.” ^[16]

  14. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 6.

  15. Ibid.

  16. Ibid, p 5.

9. Dr Ellis also recounted aspects of Ms Wornes’ psychiatric history:

• “In 2001, she was admitted for one day to the Richmond clinic. She was diagnosed with depression, borderline and dependent personality traits … She had been brought in by police following an argument with her partner breaking items in the house … She described the 2001 admission to a psychiatric hospital as precipitated by drinking alcohol.” ^[17]

• “In 2009 she was brought to hospital by her partner as she was suffering from auditory hallucinations. She was diagnosed with alcohol hallucinosis with a differential diagnosis of schizophreniform psychosis … She described for the 2009 admission that she had been drinking alcohol heavily and was coming down ‘cold turkey’”. ^[18]

• “Dr Petroff has seen Ms Wornes since 2013. He noted she was initially referred for treatment of alcohol dependence, suicidal thoughts and anxiety … Dr Petroff treated her with lithium and the antipsychotics risperidone and lurasidone. He diagnosed her with schizoaffective disorder and borderline personality traits.” ^[19]

  17. Ibid, p 4.

  18. Ibid, pp 4-5.

  19. Ibid, p 5.

10. Dr Ellis’ conclusions and opinions encompassed the following findings and conclusions:

• “She would be considered to meet criteria for a personality disorder with schizotypal and borderline traits” ^[20] and “[t]here is no evidence for an antisocial personality disorder pattern (no conduct disorder in childhood, and no persistent criminal behaviour and attitudes across her life).” ^[21] [emphasis in original]

  20. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 10; Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 5.

  21. Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 5.

• “[H]er violence has stemmed from relational problems, rather than general patterns of criminal behaviour”. ^[22]

  22. Ibid, p 7.

• “She does show poor interpersonal function … and this may be consistent with her report of experiencing domestic violence in the household as a child and an episode of sexual abuse. She describes historically cutting herself, unstable mood states, discomfort in her relationships, odd beliefs and magical thinking with some unusual perceptual experiences such as seeing rainbows and is vague and metaphorical in her form of speech when describing this. ^[23]

• “Persons who suffer personality disorder often have a blurred recognition of physical and psychic pain. For example, Ms Wornes describes historically cutting herself in response to emotional distress. This type of self harm is common in people diagnosed with personality disorder, with physical pain serving to moderate an emotional experience perceived as intolerable. Ms Wornes was angry with the complainant and likely felt abandoned by him with the relationship at an end. She expressed a wish that he feel pain, likely wanting him to have the same feelings (abandoned hurt) she was experiencing. Her personality disorder likely rendered it more difficult to experience this emotion metaphorically and to then instead express it in physical form.” ^[24] [citation omitted]

• “It is likely that her personality style leads to distorted views of relationships, and a propensity to act impulsively at times of interpersonal stress. It is likely that emotional control is further lessened at times of emotional stress.” ^[25]

• “Her continuing the attack is best explained by her poor emotional regulation related to her personality and intoxication”. ^[26]

• “Her personality disorder makes it difficult for her to take the perspectives of others.” ^[27]

  23. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 10.

  24. Exhibit 3, Dr Andrew Ellis, report dated 5 July 2020, p 2.

  25. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 11; Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 5.

  26. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 12; Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 6.

  27. Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 7.

11. The impact of the applicant’s dysfunctional background, psychiatric history and personality disorder was complicated by her history of alcohol abuse and Dr Ellis expressed the following opinions in relation to the interaction between those matters:

• “She meets criteria for an alcohol use disorder. She reports that she had a relapse to heavy alcohol use in the weeks prior to the current charges. She reports a longer history of heavy alcohol consumption with tolerance to and withdrawal from alcohol, including serious withdrawal symptoms requiring admission to hospital. Her family report problems in their relationships with her due to alcohol use.” ^[28] [emphasis in original]

• “She describes being intoxicated with alcohol both chronically in the weeks leading up to the allegations and acutely on the day in question.” ^[29]

• “After her arrest in 2019 she was treated in intensive care and assessed by the psychiatry team … She was noted to have fluctuating suicidal ideation at the time” and “had a high level of lithium on admission … likely due to having taken an overdose”. ^[30]

• “While she has experienced some historical episodes potentially consistent with major mental illness, these have likely been induced by heavy alcohol use or alcohol withdrawal” ^[31] and “[t]here is no evidence of experiencing these episodes in custody without access to substances.” ^[32]

• “Although it is likely that her ability to restrain impulses and manage her emotional response to difficult interpersonal situations was impaired by her personality disorder, the effect of intoxication would likely have been the more salient factor in driving her actions at the time [of the offending]”. ^[33]

28. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 9; Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 4.

29. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 10; Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 5.

30. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 5.

31. Ibid, p 9; Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 4.

32. Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 4.

33. Exhibit 2, Dr Andrew Ellis, report dated 23 May 2020, p 11; Exhibit 1, Dr Andrew Ellis, report dated 7 February 2021, p 6.

The facts of the offences

12. The facts of the offending were agreed between the parties and reproduced in full by the sentencing Judge. There was a history of domestic violence perpetrated by Ms Wornes upon her long-time partner, but a number of the incidents were not reported. There were increasing tensions in the relationship from around March 2019 and the applicant moved into a separate room of their shared residence. Two incidents resulted in police intervention in July of that year preceding the stabbing in August that resulted in the major charge.

13. On 28 July 2019, police responded to reports of a domestic disturbance and attended the couple’s home. The victim told police that the applicant had assaulted him. He later explained in a recorded statement (‘DVEC’) ^[34] that Ms Wornes punched him and grabbed him around the throat. He told police of the applicant’s ongoing mental health issues and abuse of alcohol. The victim began yelling at the officers and physically thrashing around when they cautioned her and asked her to repeat some admissions she had made regarding the assault on the victim. She was arrested and taken to the police station. She admitted to grabbing and punching the victim and made a comment that she wished she had punched him harder. This conduct resulted in two counts of common assault for which she was released on bail. An interim ADVO was imposed.

    34. ‘Domestic Violence Evidence in Chief’: see Criminal Procedure Act 1986 (NSW), ss 289D, 289F(1).

14. In the early hours of the following day, 29 July 2019, police were again called to the premises. The victim told police he woke up to find the applicant sitting by his bed. She made threats to take her own life and asked why the victim involved the police the day before. She then fled the premises. Police later located Ms Wornes at her parents’ home. She declined to participate in an interview, was charged with breaching the ADVO and was released on bail with various conditions, including not to drink alcohol or approach the victim by any means.

15. On the afternoon of Saturday 3 August 2019, the victim was visiting a friend who lived directly behind his home. At about 6:00pm, the victim thought he heard the back gate to his premises closing and returned home to investigate. He discovered Ms Wornes inside preparing a bath. The victim told the applicant she was not allowed to be there and asked her to leave. He called her mother and requested she come and collect her daughter. When the victim told the applicant he had made that call, things escalated. Ms Wornes grabbed a knife from the kitchen bench and charged at the victim, making threats as she did so. She said “if you call the police you’re gonna get this, cunt”. ^[35] The victim told Ms Wornes he would call the police as she was in breach of the ADVO. Ms Wornes then stabbed him to the left side of his neck and made other unsuccessful attempts to stab him. At some point in the struggle the victim forced Ms Wornes to the floor and disarmed her. While the applicant was on the floor, the victim went to the kitchen and removed all the other knives from the knife block and secreted them under a blanket in their daughter’s bedroom. The victim believed he had secured all of the knives in the premises. He locked himself in the bathroom and applied pressure to his wounds. After a few minutes he returned to the lounge room to locate his mobile phone, intending to call the police. The applicant was nowhere to be seen at this time and the victim assumed she had left.

    35. ROS, 24 March 2021, p 6.

16. The victim sat on his front steps preparing to call police when Ms Wornes unexpectedly approached him from behind and commenced stabbing him again.

17. During this second attack the victim suffered wounds to his shoulder and the left side of his forehead which bled profusely. The attack continued as the victim stumbled backwards and attempted to block the knife from connecting with his head. He received cuts to his left and right hands as he attempted to protect himself. While he was protecting his head, Ms Wornes stabbed him repeatedly in the chest and stomach. The victim escaped the attack by running out onto the street, where he was eventually able to connect to emergency services and report that his partner had stabbed him. He collapsed during this phone call and was attended upon by walkers-by who rendered aid. Police officers and an ambulance arrived and the victim was conveyed to the hospital. He required surgery and suturing to clean the many wounds and lacerations he had sustained.

18. Police located Ms Wornes at the residence and asked what had happened. Her replies were to the effect that the victim had “pushed her too far” and that she “knifed him” and “knifed herself”. ^[36] Police observed lacerations on Ms Wornes’ neck consistent with her assertion that she had cut herself. Ms Wornes made other suicidal remarks to the police. An ambulance conveyed her to hospital for treatment, and she was arrested enroute. Ms Wornes was refused bail following her discharge from hospital. She has been in custody since.

    36. ROS, 24 March 2021, p 9.

19. A relative of the victim located a note on the fridge which the victim confirmed had not been there before the incident. The note said, “see you at the end of the rainbow.” ^[37]

    37. Ibid, pp 9-10.

Mitigating and aggravating factors and other personal circumstances

20. I have already noted that the applicant pleaded guilty at an early stage and received a 25% reduction in her sentence.

21. The offences were committed while the applicant was on bail for other offences of violence against the same victim and this breach of conditional liberty constituted an aggravating factor.

22. Mr Robson provided a victim impact statement which showed that the crime had a significant impact on his quality of life. He spent three nights in hospital, stayed with his family for around eight weeks and has not been able to return to his usual place of employment, resulting in financial loss. He could not sleep on the first night in hospital because, knowing she was in the same hospital, he was afraid the applicant would attempt to kill him. He has had many appointments with various doctors and suffered an “acute stress reaction” including “PTSD, depression, anxiety, nightmares and headaches”. ^[38] He is severely traumatised. He detailed various medications he has taken to deal with the pain and psychological impact of the crime.

    38. Ibid, p 27.

23. Ms Wornes had no previous convictions of any kind. The approach the sentencing Judge took to that matter is the subject of the second ground of appeal.

The sentencing Judge’s approach to the applicant’s mental health

24. The sentencing Judge dealt with the applicant’s mental health, and the issues his Honour raised during the sentencing hearing, at some length in his remarks on sentence. ^[39] In view of their importance to the applicant’s appeal, and in spite of their length, it is appropriate to set out his Honour’s remarks on the issue in full (with my emphasis throughout):

    39. See ibid, pp 12-24.

“THE PERSONALITY DISORDER OF MS WORNES

The mental condition of an offender is sometimes thought to be relevant to an assessment of objective seriousness, or alternatively, relevant to the moral culpability of an offender (see Johnson J discussion in Tepania v The Queen [2018] NSWCCA 247 at para 112).

In this case, the evidence before me is that Ms Wornes meets the criteria for a personality disorder, with schizotypal and borderline traits (see Ellis, 7 February 21, exhibit 1 p 5). Precisely what those traits are is not immediately obvious from the recitation of historical events or beliefs detailed in the report immediately preceding the diagnosis.

Ms Wornes also meets the criteria for alcohol abuse disorder (p 4). Dr Ellis observes that while Ms Wornes has experienced some historical episodes, potentially consistent with major mental illness, these have likely been induced by heavy alcohol use or alcohol withdrawal.

Ms Wornes shows a reasonable level of function in the prison without any specific psychiatric intervention. And while she does describe some unusual beliefs and perceptual experiences, these are best understood in terms of her personality function rather than an independent illness. Implicit in that opinion, of course, is the distinction between personality disorders and mental illness. Dr Ellis opines at p 6:

‘Although it is likely that her ability to restrain impulses and manage her emotional response to difficult interpersonal situations was impaired by her personality disorder, the effect of intoxication would likely have been the more salient factor in driving her actions at the time.’

Mr Behan, on behalf of the offender, contends that her mental condition has contributed somewhat to her offending conduct and reduces her moral culpability as a result (p 6 MFI 2, outline of defence submissions). That submission in turn depends on whether Ms Wornes’ personality disorder (with the schizotypal and borderline traits otherwise not specified) falls within the principles discussed in the DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 at paras 177 to 178.

De La Rosa was a Commonwealth appeal against sentence that raised constitutional issues concerning the potential inconsistency between a state law removing double jeopardy from sentencing considerations and federal law on sentencing.

Point 2 of the head note summarises the factual matter at the heart of the constitutional dispute. It was whether s 68A of the Crimes (Appeal and Review) Act (New South Wales) removes from sentencing consideration the element of anxiety and distress to which all respondents to a Crown appeal are presumed to be subject. It was in the context of discussing the meaning of the words ‘mental condition’ in s 16A(2)(m) of the Commonwealth Crimes Act that the principles referred to above were collected.

As to the principles themselves there are no doubts, and the law continues to be as it was summarised by McClellan, Chief Justice at Common Law (see Holt v The Queen (Commonwealth) [2021] NSWCCA 14). But as can be seen by a review of the questions in issue in De La Rosa, the court was not concerned to state authoritatively whether personality disorders fell within the principles later collected and summarised. As McClellan CJ noted at para 165 of De La Rosa:

‘The words “mental condition” in s 16A(2)(m) are capable of different meanings. They could be understood to include a medically known and clinically identifiable mental illness. For example, clinical depression, schizophrenia, and the like. They could describe a person's mental state: distressed or anxious, although not suffering a clinically identifiable condition. The Macquarie Dictionary includes amongst the meanings of the word “condition”, “State of health.” If that meaning were adopted, mental condition would be understood as the state of a person’s mental health.’

His Honour’s introduction to the principles in para 177 of De La Rosa makes reference to, ‘Where an offender is suffering from a mental illness, intellectual handicap, or other mental problems.’ These apparently different categories were chosen, no doubt, in light of his Honour’s earlier discussion at paras 170 to 171.

Implicit in Dr Ellis’ report, as noted earlier, is the distinction between mental illness and a personality function. Does a personality disorder qualify as a ‘mental problem’? Before leaving De La Rosa and for the sake of completeness, it should be noted that s 16A(2)(m) was considered to have a broad meaning by President Allsop (see paras 48 to 51). In his Honour’s opinion, a mental condition was wider than medically diagnosed or clinically recognised conditions or mental illness or mental disorder. It meant the mental state of the person. All of this, of course, was in the context of construing what the statute at hand actually meant by the words there used.

Five years earlier, in R v Lawrence [2005] NSWCCA 91, Spigelman CJ expressed doubt that antisocial personality disorder and polysubstance dependence (not withstanding their acknowledgement in the DSM-IV as mental conditions) were of the character which justified less weight to be given to general deterrence (see para 22 and his Honour’s discussion of the limitations of the DSM-IV).

Ultimately it was not necessary for his Honour to specify a view on the particular classification involved in the case (see para 24). Lawrence was cited by McClellan CJ but only for the proposition that, ‘Where a person has been diagnosed with an antisocial personality disorder, there may be a particular need to give consideration to the protection of the public’ (see Lawrence at paras 23 to 24).

Five years after De La Rosa, the court had occasion to consider a different type of personality disorder, namely, narcissistic personality disorder. In DeAngelis v The Queen [2015] NSWCCA 197, giving the judgment of the court, Justice Simpson at para 60 to 62 said this:

‘The submissions made in respect of this ground also drew heavily upon the evidence of the applicant’s “mental condition.” Reference was made to the Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 79, NSWLR 1. It is without doubt that a psychiatric condition bearing a causal connection with criminal offending is a relevant consideration warranting, in some cases, the imposition of a lesser sentence. However, the evidence in this case establishes neither a “mental condition” of sufficient severity to warrant any significant amelioration in sentence, nor any causal connection with the offending. The applicant has a narcissistic personality disorder.’

The offender referred to Watts v The Queen [2010] NSW 315. I do not consider that case to be authority for the proposition that personality disorder (either generally or of the type diagnosed here) amounts to a mental condition or mental disorder or mental problem (however one chooses to differentiate the offender’s state from an offender with a mental illness) that attracts the principles set out in De La Rosa.

The point about Watts is that ultimately the ratio of the case is that the learned sentencing judge made a sentencing error when the learned sentencing judge concluded that the authority of Helmsley (which was referred to) was simply a comparable sentence, and not a statement of applicable principle to be considered in the case before the sentencing judge.

It is also important to note that in respect of Mr Watts, both Drs Greenberg and Ellis diagnosed a post-traumatic stress disorder, and in the case of Dr Greenberg, also a low grade chronic depression. Whilst antisocial personality disorder featured in both their opinions, the court was of the view that (at para 25), ‘We do not believe that either Prof Greenberg or Dr Ellis would agree that the applicant was not suffering from at least one mental disorder.’

Section 21A(1) of the Crime (Sentencing Procedure) Act states the matters that the court is to take into account in determining the appropriate sentence. Section 21A(1)(c) is concerned with, ‘Any other objective or subjective fact that affects the relative seriousness of the offence.’ That is clearly capable of encompassing a psychiatric condition, bearing a causal connection with criminal offending but does not itself provide an answer to the present problem.

Legal culpability for an offence assumes the reality of intentional and controllable wrongdoing. Moral culpability can be reduced when the capacity for self-control is reduced, and likewise, when the capacity to appreciate the wrongfulness of the conduct is reduced. Those capacities can be reduced through mental illness or cognitive impairment. Those capacities may also be reduced by profound childhood deprivation (see Bugmy v The Queen), or by other crucial experiences of early dependent childhood.

It might be thought as the determinist view of human behaviour becomes more fixed it becomes more difficult to exclude any type of personality disorder from the considerations set out in De La Rosa. That being so, the considerations affecting moral culpability would then simply be (1) is there a disorder of personality; (2) does it impact on the offender’s knowledge of the wrongfulness of the conduct, or of the offender’s capacity for self-control. And if so, does the disorder of personality increase the need to protect the public?

There is no simple answer to the questions (1) as to whether personality disorders should be excluded from the De La Rosa principles, or (2) whether some personality disorders and not others should be excluded. In either case, in my opinion, it is a question of law. Just as is the question, ‘What is a disease of the mind,’ for the purposes of the McNaughton rules (see R v Tsigos [1964-65] NSWR 1607 per Moffitt J at p 1629). What criteria might be applied to make a principled decision in either case was raised for consideration of the parties during the hearing (transcript 6 line 6 to transcript 10 line 47) without a clear answer emerging.

In this case, Dr Ellis’ opined that Ms Wornes has a personality disorder and addiction to alcohol which has decompensated at periods of time, requiring hospital admission. It is likely that her personality style leads to distorted views of relationships, and a propensity to act impulsively at times of inter-personal stress. It is likely that emotional control is further lessened at times of emotional stress. At p 6, Dr Ellis said:

‘The description of her behaviour in the attack is more consistent with impulsive anger rather than planned aggression. Her continuing the attack is best explained by her poor emotional regulation relating to her personality and intoxication rather than a sustained plan.’

The report of Dr Ellis, exhibit 1, is devoid of any meaningful background biographical details. They are to be found in the report of Dr Ellis dated 23 May 2020 which is exhibit 2 at p 6. Ms Wornes was born in Casino. She has an older brother. Her parents remained together during, it seems, her childhood. Her mother is a cleaner and her father works in abattoirs. She reported her childhood as ‘walking on eggshells.’ She said that there were many arguments in the house centred around aggressive political discussions.

She received corporal punishment from her mother which seemed to Ms Wornes to be proportionate at the time. It’s reported that her father was violent and would throw objects. He once threw her. She witnessed him choke her mother. She says that on one occasion as a child a stranger touched her on her underwear in exchange for giving her lollies. She says that this has influenced her attitude to sex.

She attended school until year ten. She said she was good at sports and had friends. She was never a problem as far as discipline was concerned. After leaving school she completed an administration certificate at TAFE. At age 16 she moved out of the family and lived with her grandmother. She was living in independent accommodation by the age of 17. She met her first partner at the age of 18. A two year relationship ended as a result of his lack of faithfulness. She has one daughter from this relationship. She met the victim at the age of 21.

In that report the prior psychiatric history of the offender is summarised at pp 4 to 5. In 2001 she was admitted for one day to the Richmond Psychiatric Clinic here in Lismore. She was diagnosed with depression, borderline dependent personality traits. She was treated with an anti-depressant. She had been brought into the clinic by police following an argument with her partner. She described the 2001 admission to a psychiatric hospital as being precipitated by drinking alcohol.

In 2009 she was brought to hospital by her partner, suffering from auditory hallucinations. She was diagnosed with alcoholic hallucinations with a differential diagnosis as schizophreniform psychosis. She was treated with the antipsychotic risperidone. She described for the 2009 admission that she had been drinking alcohol heavily and was coming down ‘cold turkey.’ She said that in the past she had cut herself. She said that was infrequent and usually when she was intoxicated with alcohol.

Ms Wornes had been seen by Dr Petrov in 2013. She had reported throwing a butter knife at her partner in anger. Dr Petrov treated her with lithium and the antipsychotics risperidone and lurasidone. He diagnosed her with schizoaffective disorder and borderline personality traits.

After her arrest in 2019, she was treated in intensive care and assessed by the psychiatry team. She was noted to have fluctuating suicidal ideation. She was not considered to suffer psychotic symptoms at the time. Dr Elliott saw her after reception to custody and for a report in 2020. Dr Elliott made a diagnosis of alcohol use disorder, and long standing and mild not adaptive personality traits of a mixed nature. It seems that latter opinion of Dr Elliott is the one shared in by Dr Ellis.

Reference is made to Ms Wornes substance abuse history at pp 5 to 6 of that report. Ms Wornes began drinking alcohol at the age of 21 and stopped at the age of 40, only recommencing drinking in the weeks before this attack on the victim. She said she would drink until she passed out and could easily consume a cask of wine every day. She had significant periods of time where she was drinking on a daily basis. She smoked cannabis but last used that drug when she was 38. She had tried cocaine on one occasion but denied using other drugs. She gave up gambling at the age of 40. Ms Wornes is now 48 years of age.

The relationship between background childhood experiences and her personality disorder is not made explicit by Dr Ellis (see p 4 exhibit 1 reproducing p 10 of exhibit 2). Whether or not her background answers the description, ‘Profound childhood deprivation,’ or something further along the continuum towards, ‘Less than ideal’ (and being exposed to domestic violence as a child is at the very least ‘less than ideal’), it is not clear that there is a causal relationship between her background and personality disorder as it is described.

CONCLUSIONS CONCERNING THE RELEVANCE OF MS WORNES’ PERSONALITY

In my opinion, personality disorders ought to be seen to be as a matter of law outside the principles stated in De La Rosa. That decision is essentially based in pragmatism and notions of personal responsibility. That may be the implication behind Simpson J’s opinion that narcissistic personality disorder was not a mental condition of sufficient severity to warrant any significant amelioration in the sentence in that case.

There must be, in my view, a base level of human functioning for which individuals are held to be responsible. In the absence of a psychiatric illness or cognitive impairment, one’s, ‘Personality style,’ cannot be seized upon as a basis for the reduction of one’s moral responsibility for intentional acts committed in the knowledge of their wrongfulness.

If I am wrong in that conclusion as a matter of law, then in my view the particular personality disorder of Ms Wornes provides no justification for a reduction in her moral culpability for her conduct on this occasion. The fact is Ms Wornes got angry and lost control in circumstances where there was no occasion for either reaction. The extent of her loss of control was exacerbated by the alcohol she had consumed. The fact of her intoxication is not an excuse. I consider her alcohol addiction (that is her alcohol abuse disorder) is not a matter in mitigation any more than drug addiction (substance abuse disorder) is not (generally speaking) a matter in mitigation.

Indeed, in the opinion of Dr Ellis, the prospects of a drunken argument with her partner (the victim) leading to some violence (although not the extent of violence manifest on this occasion) was likely to have been forseen by the offender, see p 6 exhibit 1. I consider this to be a matter of some aggravation, contrary to Mr Behan’s submissions.

As is clear from Holt, even if one were to consider that Ms Wornes had a relevant mental condition, it does not automatically follow that a sentence should be thereby reduced (see paras 89 to 90). Apart from the fact that I do not consider Ms Wornes’ personality disorder to be such as to reduce her moral culpability, it certainly does not lead me to a conclusion that this seriously violent and unjustifiable episode of domestic violence should not be denounced.

Having regard to all of the foregoing it is my view that the offence in this particular occasion, is one to be assessed as slightly above the mid-range of objective seriousness.

SENTENCING IN DOMESTIC VIOLENCE OFFENCES

The Crown submits that general deterrence has a significant role to play in domestic violence offences. Where an offender refuses to accept that a former partner is entitled to a life of their own choosing, the offender must be dealt with sternly by the court (see Yaman v The Queen [2020] NSWCCA 239 at para 131). The Crown refers the court to the authority of Munda v Western Australia [2013] HCA 38 at 55 in support of the following proposition:

‘A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner.

A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.’

Those remarks of the High Court were in the context of an offence of manslaughter, where a male accused had, during the course of a brutal, alcohol-fuelled attack on his partner, killed her. However, what is true of women as victims must also be true in the less frequent case of men who are victims of domestic violence. There is no occasion for the application of those principles to be affected by gender bias. If they were, apart from anything else, there would be a breach of the idea of equality before the law.

This attack can be described as brutal. And it was, on the victim’s account, alcohol-fuelled. It was simply an attack that did not result in the destruction of her partner. To be clear, I do not regard the offender’s words which express the intention to kill the victim as being, in fact, a manifestation of an intention to kill. Ms Wornes has not been charged with that offence of attempted murder. I simply regard those words as being evidence of a well-fixed intention and desire to inflict a really serious injury upon the victim, whom she subsequently stabbed multiple times.

Ms Wornes remains a suitable vehicle for general deterrence, in my opinion. There is nothing to suggest that her time in custody will be more onerous because of her personality. Exhibit 1, under the heading Identifying Data, Dr Ellis notes as follows:

‘Ms Wornes has been in custody since August 2019, housed in six different correctional centres. She is working on the grounds at Clarence in the maintenance team. She has completed business, horticulture, and occupational health certificates, and is working on extending these.

She does not have any psychological therapy. She attends the chapel. She is not prescribed any psychotropic medication. And she has not attracted any institution charges.’

The offence for which Ms Wornes stands to be sentenced was preceded by earlier acts of domestic violence on 28 July 2019. There was also a broader context alluded to at para 3 of the agreed facts. Although the report of Dr Ellis, exhibit 2, makes reference to this broader context (see, for example, p 8 para 2, and p 5 para 3), I do not propose to go beyond the detail referred to in para 3 of the agreed facts. However, this paragraph in conjunction with the form 1 matters justifies a measure of specific deterrence in the overall sentence.”

Ground 1: The sentencing judge erred in determining that as a matter of law the applicant’s personality disorder ought to be seen as falling outside of the scope of the principles set out in De La Rosa

25. The lengthy passage set out in the last paragraph demonstrates that the sentencing Judge was alive to the relevant principles of which, as his Honour says, “there are no doubts”. Given its prominence in his Honour’s judgment and the grounds and arguments on appeal, it is worth recalling the often-cited passage from McClellan CJ at CL in the appeal of De La Rosa:

“[177] Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, for example, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● 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. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; R v Tsiaras (at 400); Lauritsen (at [51]); Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry [2007] (at [28]).

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50-51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]).

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: R v Tsiaris (at 400); R v Jiminez (at [25]); R v Israil (at [26]); R v Henry (2007) (at [28]).

● It may reduce or eliminate the significance of specific deterrence: Courtney (at [14]); R v Tsiaras (at 400); R v Israil (at [25]); R v JW (at [192]).

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: R v Israil (at [24]); R v Henry (2007) (at [28]). Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence [2005] NSWCCA 91 per Spigelman CJ (at [23]-[24]).

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins (at [5]).”

26. The remarks of the sentencing Judge also show his Honour was well seized of the material in Dr Ellis’ report. The question at the heart of the appeal was whether his Honour was correct in disregarding the applicant’s mental health issues in each of the ways that McClellan CJ at CL explained such matters may provide some mitigation in the task of sentencing. It seems clear that his Honour took the disorder into account in one way, and one way only; that is, in deciding the applicant may represent a danger to the safety of a future romantic partner. The sentencing Judge’s approach appeared to be predicated on his Honour’s “opinion” that a personality disorder – or at least the applicant’s personality disorder – ought not attract the principles discussed in De La Rosa. His Honour then translated or converted this opinion into “a matter of law”. This constituted a significant departure from orthodoxy and the sentencing proceedings miscarried as a result.

27. In coming to this opinion, the sentencing Judge placed significant reliance on the judgment of Simpson JA in De Angelis. ^[40] De Angelis was an entirely different case and, as I read her Honour’s judgment, Simpson JA did not purport to lay down any rule of law of general application. De Angelis was a case involving a lengthy period – about six years – of fraudulent and predatory conduct where the offender was diagnosed with a narcissistic personality disorder. Further, her Honour found there was a strong inference that the offender had “quite deliberately attempted to create an illusion of a psychiatric condition of a dimension which could not be established”. ^[41] The evidence in the present case gave rise to no such inference and the nature of the offending raised different considerations for the purpose of sentencing.

    40. [2015] NSWCCA 197.

    41. Ibid at [63].

28. The sentencing Judge also relied on the judgment of Spigelman CJ in R v Lawrence. ^[42] That judgment included a passage (at [23]) that said no more than the fact that a diagnosed disorder attracts a “label” that falls within the diagnostic criteria contained in DSM-IV ^[43] does not result in any automatic consequence or necessarily reduce the weight to be given to general deterrence. That is not a surprising conclusion. In any event, the former Chief Justice was “satisfied [the sentencing Judge] did give the element of general deterrence less weight”. ^[44]

    42. [2005] NSWCCA 91.

    43. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders: DSM-IV (4th ed, 2000, American Psychiatric Publishing).

    44. R v Lawrence [2005] NSWCCA 91 at [23]-[24].

29. Mr Averre, counsel for the applicant in this Court, referred to the decision of a five-judge bench in the Victorian case of Brown v R (2020) 62 VR 491; [2020] VSCA 212. In Brown, the Victorian Court of Appeal overturned an earlier decision in Director of Public Prosecutions (Vic) v O’Neill (2015) 47 VR 395; [2015] VSCA 325 which, on one view, excluded personality disorders from what were described as “the Verdins principles”. That is a reference to the case of R v Verdins (2007) 16 VR 269; [2007] VSCA 102 which sets out principles of the same nature as those discussed by McClellan CJ at CL in De La Rosa. The Court held in Brown:

“[26] Since the decision in O’Neill, there has been a divergence of views as to how it should be interpreted. As characterised in the written case filed on behalf of DB, there is a ‘broad exclusionary interpretation’ that Verdins principles do not apply to any personality disorders; and a ‘narrow exclusionary interpretation’ that what was said in O’Neill applied only to the type of personality disorder from which the offender in that case suffered. The broad view was taken by Lasry J in R v Liao and in R v Price, and by the Court of Appeal in Di Paolo v The Queen. The narrow view was taken by Coghlan JA in Director of Public Prosecutions v Bruno and by Hollingworth J in Director of Public Prosecutions v Herrmann. The judge in the present case considered the broad exclusionary interpretation to be the correct one.

[27] As academic commentators have pointed out, the broad view derived support from the O’Neill Court’s seeming endorsement of the very general statement of the Queensland Court of Appeal in Hayes. There was also the Court’s own statement in O’Neill (highlighted above) that the Verdins principles ‘do not extend to personality disorders such as those relied upon and which are set out in Section II of DSM–[5]’. That section of DSM–5 sets out the diagnostic criteria for the full range of mental disorders, and includes all of the recognised personality disorders.

[28 It is unnecessary for present purposes to decide which of these interpretations is correct. As already indicated, we were satisfied on the basis of the expert evidence — as was the Director — that any categorical exclusion of personality disorders, whether of such disorders in general or of a particular type of personality disorder, could not be sustained. As we have said, it was the submission of both parties, and the view of both experts, that Verdins provided the appropriate framework for evaluating the relevance (if any) of such a condition to sentencing in a particular case.

[29] Accordingly, the statements in O’Neill about the inapplicability of Verdins to personality disorders should no longer be followed. As we have emphasised, this Court has had the benefit of evidence given by two of Victoria’s foremost forensic mental health experts, assistance which was not available to the Court in O’Neill. Acceptance of that evidence also entails rejection of the statement in Hayes, referred to in O’Neill, that ‘personality disorders ... are not illnesses which impact upon the capacity of the sufferer to perceive the world around her and respond to it’.

[Citations omitted and my emphasis throughout.]

30. The decision of the full Court in Victoria is correct. It follows that the sentencing Judge in the present case erred in giving effect to his opinion that the applicant’s personality disorder (let alone such disorders more generally) did not attract the De La Rosa principles. The cases to which his Honour referred did not support the opinion stated in the sentencing judgment. The opinion seemed to derive from his Honour’s rejection of the “determinist view of human behaviour”, a philosophical concept or behavioural theory to which neither party referred and upon which the applicant did not seek to rely. On the contrary, she accepted legal responsibility by her plea of guilty and her solicitor made restrained submissions consistent with the complexity of the evidence in the case. With respect to his Honour, that part of the judgment on sentence did little to fulfil the purposes of remarks on sentence.

30. The sentencing Judge’s alternative approach – that “the particular personality disorder of Ms Wornes provides no justification for a reduction in her moral culpability” – was not supported by Dr Ellis’ unchallenged expert evidence. Dr Ellis explained that her disorder and personality style led to distorted views of relationships and impaired her emotional responses. Dr Ellis explained the continuation of the attack by reference to her poor emotional regulation. While acknowledging the role that intoxication played, the evidence nevertheless established a connection between the diagnosed condition and the offending. It should also be remembered that this was not a case of a post-offence diagnosis of psychological problems or personality disorder. There was a history of self-harm (cutting), auditory hallucinations, “schizoid” symptoms, admissions to hospital and several earlier diagnoses. Ms Wornes was diagnosed with “schizoaffective disorder” by Dr Petroff who prescribed lithium and antipsychotic medications. The victim himself told the police about the applicant’s mental health problems in the days before the incident. It was also significant, and consistent with the severity of her mental health issues, that the applicant harmed herself immediately after the attack and wrote the note that was somewhat whimsical if not bizarre. The agreed facts included the “offender had experienced mental health issues for a number of years, for which she has sought the assistance of a psychiatrist”. ^[45]

    45. ROS, 24 March 2021, p 2.

31. This body of evidence was to be considered in the light of a childhood marred by violence, dysfunction and an instance of sexual abuse. The evidence was relevant to a proper assessment of the applicant’s moral culpability and was also to be considered as part of the complex question of how much weight should be afforded to deterrence, both personal and general. The inescapable conclusion is that the sentencing Judge underestimated the importance of the psychiatric evidence in this case and fell into error in doing so.

32. Ground 1 is established.

Ground 2: The sentencing Judge erred in concluding that the applicant’s lack of prior convictions took on less significance in the context of domestic violence offending and thus denying the applicant the leniency to which she was otherwise entitled.

34. Despite her alcohol dependence and psychiatric condition, the 46-year-old applicant had no previous offences recorded against her. His Honour acknowledged this was a mitigating feature under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act but held:

“The absence of criminal history, in my view, assumes less significance in the context of this particularly violent and unjustified attack. More importantly, that absence of criminal history has to be seen in the context of the domestic violence which has been referred to in paragraph 3 of the agreed facts.” ^[46]

46. Ibid, 25.

35. Paragraph 3 of the agreed facts referred to other occasions, before 2019, where the applicant had acted violently or threateningly towards the victim. The details of these incidents were not provided and, as Mr Averre submitted, the offence for which the applicant was to be sentenced was not “said to be representative”. ^[47]

    47. Applicant Written Submissions (‘AWS’) at [99].

36. I accept the applicant’s submission that “the absence of a criminal history was a significant factor and one which entitled the applicant to a reduction in the sentence which the crime would otherwise attract.” ^[48] I also accept that the applicant’s case did not fall within the categories of offending where prior good character or a lack of criminal history is less significant because, for example, the good character enabled the offender to commit the offence or because the charged offences were part of a pattern of offending going back many years. It is unnecessary to revisit the law in this area other than to refer to some cases which have dealt with the subject: see R v Kennedy [2000] NSWCCA 527 at [21]-[22] (Howie J, Simpson J agreeing), Athos v R [2013] NSWCCA 205; (2013) 233 A Crim R 302 at [35]-[36] (Price J, Beazley P and Johnson J agreeing) and Decision restricted [2022] NSWCCA 24 at [234]-[242] (Hamill J, Fullerton and Adamson JJ agreeing).

    48. Ibid at [101].

37. The sentencing Judge erred in finding that the applicant’s lack of criminal record “assume[d] less significance” and I would also uphold ground 2.

Ground 3: The sentence imposed was manifestly excessive

38. Because the sentencing discretion is to be exercised afresh, it is not necessary to deal with ground 3.

A less severe sentence is warranted

39. The principal offence was extremely serious. It involved a sustained and unprovoked attack on the applicant’s domestic partner with serious physical and psychological consequences for the victim. The offence occurred in the victim’s own home and involved the use of at least one (and probably two) weapons. There was some planning involved although the offences also reflected the applicant’s inability to regulate her emotions and exercise self-control. Objectively, I assess the offence as falling within the broad spectrum that encompasses the mid-range of objective seriousness for offences charged under s 33 of the Crimes Act.

40. The applicant was on conditional liberty at the time of the offence for offences involving the same victim. She breached bail and an apprehended violence order, each of which was calculated to protect the victim. The matters to be taken into account (two offences of assault) require that personal deterrence and retribution assume more importance in the sentencing exercise. While the applicant’s mental health issues reduced the weight to be afforded to general deterrence, the nature of the offences – being domestic violence offences – means that general deterrence remains a matter of significance.

41. As I have made clear in dealing with ground 1, the moral culpability of the offender is reduced by her mental health issues, although this aspect of the case is complicated by her use of alcohol. Her alcohol dependence, not uncommonly, ^[49] related to her personal history of trauma and mental health issues, but she had managed to control her reliance on alcohol for many years and the bail conditions and ADVO specifically forbade her from drinking.

    49. R Kinscherff, “Proposition: A Personality Disorder May Nullify Responsibility for a Criminal Act” (2010) 38(4) Journal of Law, Medicine & Ethics 745 at p 748

42. The applicant was a first offender, and her offending is to be considered in light of her “distorted views of relationships” and impaired emotional self-regulation which resulted from her personality disorder. While it is difficult to predict, I am satisfied the applicant has reasonable prospects of rehabilitation. This finding is based largely on her absence of prior convictions and the applicant’s affidavit which was read on the usual basis. Her affidavit suggests she has made the most of her time in custody, has completed some courses and has some family support.

43. I am unable to make a positive finding as to remorse, noting that the sentencing assessment report suggested that she tended to “minimise her offending behaviour”.

44. I have taken into account the standard non-parole period (7 years) but would not impose a minimum sentence of that length in view of the plea of guilty, lack of criminal record and other subjective matters referred to in this judgment.

45. Bearing in mind the maximum penalty and standard non-parole period and having considered sentences imposed in similar cases, a full-time custodial sentence of some significance is inevitable. I would commence with a sentence of 8 years’ imprisonment. Applying a 25% discount for her early plea of guilty, the total sentence will be 6 years.

46. Given her intermittent but chronic alcohol dependence and mental health issues, as well as the fact that she has never been incarcerated before, the applicant will benefit from an extended period of supervised parole to assist her to re-integrate into the community upon release. For those reasons, I find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. I would set a non-parole period of four years.

47. Accordingly, I would impose a total sentence of 6 years with a non-parole period of 4 years. The sentence should commence on the day she was taken into custody.

Orders

48. I would make the following orders:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Confirm the orders made under s 10A of the Crimes (Sentencing Procedure) Act 1999 for the offences of contravening the apprehended domestic violence order.

4. Quash the sentence imposed in the District Court for the offence under s 33 Crimes Act 1900 and in lieu thereof the applicant is sentenced to a non-parole period of 4 years commencing on 3 August 2019 and expiring on 2 August 2023 with a balance of term of 2 years expiring on 2 August 2025.

5. The applicant will be eligible for release to parole at the conclusion of the non-parole period.

49. IERACE J: I also agree with the orders and reasons of Hamill J.

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Endnotes

Decision last updated: 26 August 2022