Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Noonan v R [2020] NSWCCA 346 Hearing dates: 23 November 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Before: Hoeben CJ at CL at [1] Bellew J at [2] Wright J at [78] Decision: (1) Leave to appeal against sentence is granted. (2) The appeal is allowed. (3) The sentence imposed in the District Court is quashed. (4) In lieu thereof the applicant is sentenced to imprisonment for 9 years commencing on 3 August 2017 and expiring on 2 August 2026. (5) I specify a non-parole period of 6 years' imprisonment commencing on 3 August 2017 and expiring on 2 August 2023. Catchwords: CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant had pleaded guilty to an offence of causing grievous bodily harm with intent to cause grievous bodily harm – Where applicant asked the sentencing judge to take additional offences into account on a Form 1 – Where applicant had a severe psychotic mental illness which was causally related to his offending – Whether the sentencing judge erred in failing to give sufficient weight to the applicant's mental illness – Whether the sentencing judge erred in failing to give sufficient weight to the evidence of the applicant's childhood deprivation and exposure to alcohol abuse and violence – Whether the sentence was manifestly excessive – Objectively serious offending and an associated need to protect the community – Strong subjective case – Ground of appeal asserting manifest excess established – Special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Devaney v R [2012] NSWCCA 285 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 El-Chaar v R [2007] NSWCCA 16 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Perkins v R [2018] NSWCCA 62 R v Dodd (1991) 57 A Crim R 349 R v Engert (1985) 84 A Crim R 67 R v Rushby [1977] 1 NSWLR 594 Ryan v R [2009] NSWCCA 183 Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 Vaiusu v R [2017] NSWCCA 71 Category: Principal judgment Parties: Taylar Gregory Noonan – Applicant Regina – Respondent Representation: Counsel: S Fraser – Applicant B Baker – Respondent Solicitors: Legal Aid NSW – Applicant C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent File Number(s): 2017/238412 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 May 2019 Before: Acting Judge O'Connor QC Judgment 1. HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes. 2. BELLEW J: Taylar Gregory Noonan (the applicant) pleaded guilty before the Local Court to an offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s (33)(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years. A standard non-parole period of 7 years' imprisonment is prescribed. 3. The applicant adhered to that plea when he appeared before the District Court of NSW for sentence and asked the sentencing judge to take into account the following additional matters on a Form 1: 1. obtaining property by deception (2); 2. larceny; 3. taking and driving conveyance without consent; 4. intimidating police. 1. The following further matters were included in a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW): 1. entering inclosed lands; 2. damaging property; and 3. possessing a prohibited drug. 1. The applicant was sentenced to 10 years and 6 months' imprisonment with a non-parole period of 7 years. He now seeks leave to appeal against that sentence on the grounds more fully set out below. THE FACTS OF THE OFFENDING 1. The sentencing judge found the facts of the offending to be as follows. [1] The s 166 Certificate offences Entering inclosed lands 1. On the afternoon of 27 July 2017 the occupant of premises at Kew heard a loud noise. He walked out to the back of the premises and saw a vehicle parked on the grass. The applicant was walking around the property checking tractors and vehicles. When questioned about what he was doing, the applicant said: This is my property. 1. The occupant told the applicant that he was on the wrong property, to which the applicant replied: This property was left to me by my dead father; he was the last king of New South Wales. 1. The applicant had never lived in the area, had no family living in the area, and had no claim of right to the property. Notwithstanding this, he continued to talk about being the owner of the property and told the occupant to leave. 2. The applicant then walked into a caravan which was parked on the property and closed the door. He refused requests to come out. The occupier called the police who attended and spoke to the applicant who again refused to leave. Additional police arrived and observed that the applicant had moved a large amount of property into the caravan, including clothing and other personal items. Possessing a prohibited drug 1. Police located 3g of cannabis in the caravan with the applicant's other property. The applicant made admissions to police as to his ownership of it. Damaging property 1. On 31 July 2017 the applicant broke into the Hastings Council Dog Pound to retrieve his dog. In the course of doing so, he put a large hole in a mesh security fence at the entrance to the pound, and smashed both the front and rear glass doors. A mesh steel door leading to the dog kennels was also cut open. When police arrived, the door to kennel 4 was open and the applicant's dog was missing. A DNA sample taken from a blood smear left at the premises matched that of the applicant. THE Form 1 offences Taking and driving conveyance without consent 1. Between 10:30am and 12 noon on 2 August 2017 the applicant stole a vehicle from premises in Lithgow. Obtaining property by deception 1. At about 7:00pm on 2 August 2017 the applicant went to a service station at Bathurst and filled the stolen vehicle with fuel. He then drove away without paying for the fuel. Obtaining property by deception Larceny 1. At 11:07am on 3 August 2017 the applicant went to a service station at Singleton and filled the stolen vehicle with fuel. Whilst at the service station, he went into the shop and selected a number of items without making any attempt to pay for them. The console operator questioned the applicant about payment and he said that he would be back shortly. 2. He then drove away without paying for the fuel or the items taken from the shop. Intimidating police 1. On 4 August 2017 the applicant, having been arrested for the principal offence referred to below, was taken into custody and placed in a dock at the Raymond Terrace Police Station awaiting an AVL for the purposes of a bail hearing. Apropos of nothing, he became agitated and aggressive. He stood up in the dock and threatened the police stating (inter alia): Youse are laughing at me you think it's funny, I'm going to kill every last one of you. 1. When questioned by one of the officers, the applicant said: Yeah I'll kill you too you fuck, come over here and open this door. 1. The applicant continued to threaten the police. When he was approached by an officer, he stood up and pointed, saying: I'll tell you what the problem is. 1. The applicant then picked up a wrapper next to him on the dock which had contained his lunch and said: You want some lunch, you want some lunch? 1. He then threw away the wrapper and grabbed his groin with his hand, saying: Have some of this. 1. Pointing separately to two officers, the applicant then threatened to kill each of them before threatening to kill a third officer who was working nearby. The principal offence 1. At about 3:40am on 2 August 2017, the applicant was involved in a motor vehicle collision on the Great Western Highway near Lithgow. When police arrived at the scene he was attempting to remove items from the roadway. Police asked him to stop doing so because of the risk posed by passing traffic. Although the applicant complied with that request, police described him as "pacing around". One of the officers asked the applicant why he was acting in that way, and he explained that it was because he had been in an accident. Whilst at the scene police were notified that the applicant had mental health issues. 2. The applicant recommenced retrieving items from the roadway and was detained by police in order to prevent him from doing so. He was released after the fire brigade completed the task of clearing the roadway. He then travelled in the tow truck which transported his vehicle to a smash repairer in Lithgow. He later contacted the owner of that repair business telling her that if she located his wallet in the vehicle she could "obtain payment by tapping his card". 3. For some time earlier in his life, the applicant had been under the care of his aunt and uncle, Allison and Darren Ribaux. On the afternoon of 2 August 2017 Mrs Ribaux left her premises in Eglinton. Her husband remained there alone. At about 5:15pm the applicant went to the premises and used a hatchet to force entry into the premises by smashing the front lounge room windows, and striking the front entrance door, door handle and deadlock. 4. Once inside the premises the applicant demanded that Mr Ribaux lie on the floor. When Mr Ribaux refused to do so, an altercation occurred in the course of which the applicant struck Mr Ribaux a number of times in the head, abdomen and leg areas with the hatchet. Mr Ribaux sustained serious injuries as a consequence of the attack, including multiple depressed fractures of his skull, multiple wounds to his abdomen and a fracture of his left knee. 5. Mrs Ribaux returned home at about 5:40pm to find her husband lying on the living room floor with a pool of blood under him, unable to speak. Mr Ribaux was treated and conveyed to hospital and placed in an induced coma, before being airlifted to Sydney for surgery to treat his head injuries. A report of the Mid Western Brain Injury Rehabilitation Program set out the following in relation to Mr Ribaux's injuries and subsequent treatment: [2] Mr Ribaux was assaulted on 02/08/17 at his home. He had a Glasgow Coma Scale (GCS) score of 10 at the scene, with a Post-Traumatic Amnesia (PTA) duration of greater than 37 days. These two measures categorise his traumatic brain injury as severe. He was discharged home on 12/09/17, after a hospital stay of about six weeks. Initial CT brain findings showed extensively comminuted depressed left open frontal bone fracture, left frontal contusion, left subdural haemorrhage, right temporal haemorrhage and no midline shift. He underwent neurosurgery on 3 August 2017 with insertion of an extra ventricular drain. He had significant pneumocephalus on progress scans. He had plastic surgery on 18 August 2017 for the multiple facial fractures with facial lacerations. He also had orthopaedic surgery for an open left distal fractured femur and knee laceration with intra-articular extension. He had a mild traumatic optic nerve injury on the right side. Since discharge from hospital, Mr Ribaux has been seen regularly by several members of our rehabilitation team, including our speech pathologist, clinical psychologist, neuropsychologist, rehabilitation physician, and vocational counsellor. Mr Ribaux has engaged in a cognitive rehabilitation program targeting his cognitive impairments, fatigue, and his goals of returning to driving and [sic] to work. Mr Ribaux has demonstrated commitment to his rehabilitation program, completing all tasks required of him and seeking out additional practice where possible. More than 12 months post-injury, Mr Ribaux continues to demonstrate significant residual physical and cognitive impairments as described below. … Mr Ribaux's traumatic brain injury has significantly altered most aspects of his life – relationships, employment options, enjoyment of hobbies as well as his physical health and emotional wellbeing. Brain injury is often a hidden disability and although Mr Ribaux's deficits may not always be evident to others, they continue to have a significant impact on his daily functioning. THE GROUNDS OF APPEAL GROUND 1 – His Honour erred in failing to have proper regard to the applicant's mental illness in evaluating the objective seriousness of the principal offence The evidence on sentence 1. A report of Dr Adam Martin, Forensic Psychiatrist, was tendered before the sentencing judge. The applicant told Dr Martin that he had been molested by Mr Ribaux when he was a child and said that in the period leading up to the offending he had been using cannabis and had not slept for three days. [3] 2. The applicant's psychiatric history recorded by Dr Martin included previous admissions to hospital as an involuntary psychiatric patient, an admission to the Mental Health Unit at Townsville Hospital at the age of 19, and a series of admissions to the Mental Health Unit at Port Macquarie Hospital shortly prior to the offending. [4] 3. Dr Martin expressed the view that the available information demonstrated that the applicant had been treated as a psychiatric patient because of his psychotic illness. [5] As to his diagnosis, and the connection between the offending and the applicant's mental state, Dr Martin said the following: [6] 21. In terms of diagnosis, in my view Mr Noonan has schizophrenia, which is a description of chronic vulnerability to experience of psychosis [that is, being out of touch with reality as manifested by experience of delusions, hallucinations, thought disorder and disorganised behaviour, generally associated with poor insight and frequently associated with substance use]. His history of multiple psychiatric admissions as an involuntary patient with injectable anti-psychotic medication including in Long Bay Hospital apparently, are strongly suggestive of an enduring psychotic condition such as schizophrenia. It seems highly likely that his experience of psychosis has been closely associated with consumption of illicit substances, mainly cannabis. Cannabis is known to precipitate and exacerbate psychotic phenomena in vulnerable people. In my view, he does not have a transient psychotic illness but his psychotic vulnerability is chronic and enduring. 22. While it is not absolutely clear whether his expressed beliefs about the victim are delusional or otherwise, in my view the behaviour occurred while he was psychotic, having recently been discharged from psychiatric hospital and then apparently being non-compliant with anti-psychotic medication, while consuming cannabis. He describes a clear experience of psychotic phenomena such as being directed by satellite navigation system to various addresses, which has the flavour of self-referential thinking [a common schizophrenic phenomenon]. The behaviour sounds somewhat disorganised and haphazard (his driving around in a relatively unplanned manner around New South Wales). On the assumption that he was grossly psychotic and affected by cannabis it seems reasonable to accept that his judgment would have been significantly distorted and that he acted with an underlying motivation of vengeance [whether delusional or otherwise]. Mr Noonan has limited insight in that while he is acknowledging that his mental state is reasonably stable, which he attributes to taking anti-psychotic medication, Abilify, he does not accept the diagnosis of schizophrenia and is dismissive of other psychiatrists' clinical impression of his mental state. 23. He presents as a relatively stable currently as evidenced by the fact that he is working as a sweeper and is not expressing current psychotic phenomena, and this is probably attributable to him being in a relatively stable environment without access to substances and while taking anti-psychotic medication. 24. For future management, it is essential that he has regular and formalised mental health follow-up including regular monitoring of his mental state and prescription of anti-psychotic medication, and that he remains abstinent from illicit substances. He may benefit from drug and alcohol counselling or rehabilitation while in custody and on parole. 1. The applicant's sister, Tara Noonan, gave evidence in the applicant's case on sentence by reference to a chronology she had prepared and which set out the applicant's personal background, paying particular attention to his history of mental illness. [7] The reasons of the sentence judge 1. Having reviewed the applicant's psychiatric history by reference to the report of Dr Martin, [8] and having set out Dr Martin's opinion, the sentencing judge said: [9] I accept the opinion of Dr Martin. The offender clearly suffers from a severe mental illness marked by psychotic episodes. The circumstances surrounding the other offences are indicative of the existence of this mental illness. His outbursts in the police station, his delusions about the ownership of the property at Kew and his father being the king of New South Wales are no doubt manifestations of the diagnosed schizophrenic illness. I accept the submission of Ms Feiner that the offender's mental health reduces his moral culpability making his situation an inappropriate vehicle for specific and general deterrence. I have given considerable weight to this issue in the sentencing task. I am mindful that amongst the purposes of sentencing however is the protection of the community and recognising the harm done to the victim. Submissions of the applicant 1. Counsel for the applicant submitted that despite referring to the applicant's mental illness, the sentencing judge had failed to properly address the central issue, namely the causative link between such illness and the offending conduct. It was submitted, in particular, that the sentencing judge had failed to address the obvious interplay between the applicant's mental illness and the offending conduct, to the point where his Honour's treatment of the issue was cursory. In this regard, counsel for the applicant relied upon the decision of this Court in Devaney v R. [10] 2. In oral submissions, counsel for the applicant accepted that "some weight" had been given to the issue of the applicant's mental illness. However, he submitted that it was "insufficient weight in the circumstances of the case". [11] Submissions of the Crown 1. The Crown emphasised the sentencing judge's express acceptance of the proposition that the applicant's mental health reduced his moral culpability and rendered him an inappropriate vehicle for general and specific deterrence. The Crown also highlighted the sentencing judge's statement that he had given "considerable weight" to the applicant's mental health issues in the sentencing task. The Crown submitted that it was clear from these references that the sentencing judge had paid proper regard to this issue on sentence, and had approached it in a conventional way which did not bespeak error. 2. The Crown further submitted that the sentencing judge had not treated the applicant's mental illness in a cursory way, and that a reading of his Honour's reasons a whole reflected the fact that the issue of the applicant's mental illness had been carefully considered. It was submitted that the sentencing judge had properly balanced the applicant's mental illness against the seriousness of the offending, the need to protect the community, and the need to recognise the harm done to the victim. Consideration 1. The essence of the applicant's complaint under this ground, as developed in oral submissions before the Court, is that the sentencing judge failed to give proper weight to the applicant's mental illness. Such a submission necessarily assumes that some weight was given to that issue by the sentencing judge. 2. This Court has expressed the view, on many occasions, that matters of weight are for a sentencing judge. Accordingly, the circumstances in which such matters will justify intervention by this Court are narrowly confined. Unless it can be demonstrated that a sentencing judge placed so little weight on a particular issue as to give rise to error, there is no basis for appellate intervention. [12] For the reasons that follow, I am not satisfied that such an error has been made out in the present case. 3. The sentencing judge undertook an extensive review of the applicant's psychiatric history. He obviously paid close attention to, and accepted, the opinion of Dr Martin. On the basis of that opinion, he found that the applicant suffered from a severe mental illness, the extent of which was reflected in the entirety of his offending. 4. Read as a whole, the reasons of the sentencing judge do not support a conclusion that his Honour addressed the issue of the applicant's mental illness in a cursory way. It is evident that having extensively reviewed the opinion of Dr Martin, and having accepted that opinion, his Honour balanced the factors against what he considered to be the objective seriousness of the offending and the related necessity to protect the community. There is no error evident in that approach. 5. Further, I am not persuaded that the judgment of this Court in Devaney provides any support for the applicant's position on this ground. The passages to which the Court was referred contained observations made in the context of that particular case. They do not support a conclusion that the sentencing judge in this case erred in the matter for which counsel for the applicant contended. 6. It follows that this ground is not made out. GROUND 2 – His Honour erred in his treatment of the applicant's subjective case, particularly in relation to the mitigating circumstances of the applicant's upbringing and mental illness The evidence on sentence 1. As I have previously noted, the applicant's sister gave evidence relating to the applicant's background and childhood which the sentencing judge summarised as follows: [13] His older stepsister Tara Noonan gave evidence and provided a detailed chronology of the offender's early life which she expanded on in her evidence, exhibit 2. I have considered that chronology. Without repeating the totality of that chronology, the following picture emerges from it. The offender was 4 months old when his father died of a heroin overdose in Bathurst. He was relocated to Townsville with his mother and siblings. After his father's death his mother had a violent domestic relationship which was witnessed by the children. Most weekends she said the offender and his siblings were subjected to excessive alcohol use, strangers coming and going from the house, fighting, violence and loud music. That during these times the house would frequently be strewn with alcohol bottles and cans et cetera. Between 1997 and 1999 the offender and siblings were removed from their mother's care by DOCS and placed in the care of Joyce and Peter Noonan. Peter Noonan was the father of Tara. Tara Noonan said that Peter Noonan was an alcoholic and an illicit drug user; that the offender was subject to verbal abuse and sought comfort from his older siblings; that the offender's mother committed suicide on 10 January 2000 [sic] shortly after the care of the children was removed from her. In 2002, Peter Noonan went to gaol for repeat drink/driving offences. Joyce Noonan suffered a serious stroke and was physically unable to care for the offender and his siblings. At this time the victim and his wife started to care for the offender and his brother Angus. They continued to live in Peter and Joyce Noonan's house however both would stay with the Rebow's [sic] regularly. In 2005 the offender went to high school and struggled and started to fall in with the wrong crowd. She said that arrangements were made for him to go to Townsville where his older brothers and extended family lived. Once he left school, Tara said he had continuous employment with various companies as a labourer; that between 2009 and 2012 Tara reported the offender commenced experiencing mental health systems [sic] and sought help from general practitioners and mental health professionals. She described that he suffered from bouts of confusion regarding his physical and mental symptoms unaware of what was happening to him. She said he was admitted to the mental health ward in Townsville Hospital for approximately four weeks in 2012. He was prescribed various medications to assist with his mental health symptoms. Tara said that his mental health issues continued from 2012. In 2016 he moved from Townsville to Coffs Harbour where he resided with Tara and Jay. Tara described violent outbursts in October 2016 at the Coffs Harbour Hospital as a result of which he was arrested. He was released into the care of Tara with the provision to engage with a mental health care program which included taking medication. He told Tara that he felt the hospital staff were "out to get him" and that he thought they were following him, that he was displaying many signs of paranoia. The offender told Tara that he was hearing voices as well and was thinking his brother Jay was saying bad things to and about him. Tara said that after the incident at the hospital it took the offender about three weeks to stabilise his mental health and have his thoughts become rational again, that he then returned to work, was happy and seemed to be coping well in the following months however would become slightly introverted. The findings of the sentencing judge 1. The sentencing judge made reference to the report of Dr Martin and expressed the view that the history he had recorded did not reflect the level of deprivation referred to by the applicant's sister in her evidence, and in the chronology that she had prepared. [14] His Honour said: [15] It would appear from that history the offender was not placing much relevance on his upbringing and it was not commented upon by Dr Martin as being of any influence in his subsequent behaviour or the development of mental health issues. 1. His Honour concluded: [16] I do accept that the offender's early childhood was disruptive having regard to his father's addiction and the demise of his mother by suicide and being removed from his parents' care and some exposure to excessive drinking and verbal abuse. However, there appears to be no psychiatric evidence connecting such matters to his mental condition or his offending behaviour. His cannabis use was a contributing factor having regard to his vulnerability. Whilst I have taken into account the negative aspect of his early life as part of the general mix of matters relevant to sentencing, they do not reach the same level of deprivation as referred to in R v Bugmy. Submissions of the applicant 1. Counsel for the applicant submitted that it was not necessary, in order to attract the application of the principles set out in Bugmy v The Queen, [17] to establish a causal connection between an offender's disadvantaged upbringing and his or her offending. It was submitted that even if it was accepted that no such connection was established in the present case, the applicant's upbringing remained a highly relevant factor in the sentencing exercise. Whilst accepting that his Honour had considered this factor, counsel for the applicant submitted that it was not clear how it had been taken into account on sentence, resulting in a situation where an important issue had been addressed in a general and unspecific way. As was the case with ground 1, the effect of such a submission was that the sentencing judge had not given sufficient weight to the applicant's disadvantaged background. [18] Submissions of the Crown 1. The Crown submitted that although the applicant had been exposed to violence as a child, his circumstances fell substantially short of the profound childhood deprivation considered by the High Court in Bugmy. The Crown also emphasised that the sentencing judge had found that there was no evidence of any connection between the applicant's disadvantaged upbringing and his offending and that in these circumstances, his Honour was not required to find that the applicant's moral culpability was reduced by reason of those factors. The Crown further submitted that it was clear from the reasons of the sentencing judge that he had taken into account the applicant's disadvantaged childhood as part of the applicant's subjective case. Consideration 1. In Bugmy, the High Court said the following: [19] [42] It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case. [43] The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. 1. The question whether, in order to attract the principles discussed in Bugmy, an offender must establish a causal connection between his or her background and the offending is one in respect of which differing views have been expressed. [20] However, it is not necessary to resolve that issue in order to determine this ground. 2. Even if the level of deprivation suffered by the applicant was less than that considered in Bugmy, that did not render the applicant's circumstances irrelevant on sentence. However, it is plain from what the sentencing judge said that he took those circumstances into account as a mitigating factor in his assessment of the applicant's subjective case. 3. The essence of the submission advanced in support of this ground amounted to the proposition that his Honour had failed to give sufficient weight to the applicant's background and deprived upbringing. That submission gives rise to the same issue as that discussed in the context of ground 1. 4. This ground is not made out. Ground 3 – The sentence imposed was manifestly excessive in the circumstances of the applicant's mental illness and his broader subjective case SUBMISSIONS OF THE PARTIES Submissions of the applicant 1. Counsel for the applicant properly conceded that the injuries inflicted on the victim were serious and that the entirety of the circumstances of the applicant's offending justified the imposition of a significant term of imprisonment. However, notwithstanding those matters, counsel submitted that the sentence imposed upon the applicant was nevertheless manifestly excessive. In support of that submission, counsel pointed to a number of factors. 2. Firstly, counsel emphasised that the applicant had pleaded guilty, essentially at the first available opportunity, and that this was reflected in a discount of 25%. Counsel pointed out that notwithstanding that early plea, the standard non-parole period applicable to the principal offence, namely one of 7 years' imprisonment, was nevertheless imposed. 3. Secondly, counsel pointed to the fact that the applicant had no criminal history. 4. Thirdly, counsel emphasised that the principal offence was committed at a time when the applicant was obviously in a psychotic state. 5. Fourthly, it was submitted that the applicant's prospects of rehabilitation were more favourable than the sentencing judge found. Whilst counsel acknowledged the opinion of Dr Martin that the applicant had difficulty accepting his diagnosis, he also emphasised Dr Martin's opinion that the applicant was stable, was not expressing current psychotic phenomena and was employed in custody. 6. It was submitted that all of these factors, coupled with the obvious disadvantage that the applicant had suffered in his early life, lead to the conclusion that the sentence imposed was manifestly excessive. Submissions of the Crown 1. The Crown submitted that the applicant's offending amounted to a sustained, ferocious and unprovoked attack against a defenceless victim involving the use of a weapon. The Crown also emphasised that the offending had occurred in the victim's home, that his injuries were severe, and that he continued to exhibit significant physical and cognitive impairments as a result of the offending. In advancing these submissions, the Crown emphasised that although the applicant's mental illness was a causative factor in the offending, it did not automatically follow that a lesser sentence should be imposed by virtue of that fact alone. 2. The Crown also emphasised the need to balance the applicant's subjective case against the nature and seriousness of his offending, and the danger which he posed. It was submitted that the sentencing judge had struck an appropriate balance between those factors, and had been properly mindful of the fact that the need to protect the community was necessarily an important consideration in the sentencing process. The Crown submitted there was no error in the conclusions reached by the sentencing judge as to the applicant's prospects of rehabilitation. 3. In essence, it was the Crown's submission that although the applicant's mental illness reduced his moral culpability and the need for general deterrence, the gravity of his offending, the extensive harm that his offending caused to the victim, and his general lack of insight, were all factors which supported a conclusion that the sentence imposed was not manifestly excessive. CONSIDERATION 1. The principles which apply when it is contended that a sentence is manifestly excessive were summarised by R A Hulme in Vaiusu v R. [21] They include the following: 1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; 2. intervention is only warranted when the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, whether sentence imposes so far outside the range of sensors available there must have been error; 3. It is not to the point that an appellate court might have exercised the sentencing discretion differently; 4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as his consonant with consistency of approach and application of principle; and 5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust. [22] 1. The objective seriousness of the applicant's offending is self-evident. The Crown's description of it was entirely appropriate. It was aggravated by the fact that it was committed in the victim's home. The ferocity of the attack is particularly evident from the photographs reproduced in the statement of facts which were tendered to the sentencing judge and which depict the substantial injuries inflicted on the victim. [23] It is also necessary to bear in mind that there was a series of additional offences which the sentencing judge was asked to take into account on a Form 1. 2. I am mindful of the long line of authority which establishes that subjective considerations, no matter how strong or persuasive, must not result in the imposition of a sentence which is disproportionate to the objective seriousness of the offending. [24] I am also mindful of the fact that the existence of a causal relationship between mental illness and offending does not automatically result in a lesser sentence being imposed. [25] However, giving full weight to all of those considerations, I have come to the view that the sentence imposed was manifestly excessive. 3. The nature and severity of the applicant's mental illness will be self-evident. There was a causal connection between that illness and the offending. The inescapable conclusion is that the offending occurred whilst the applicant was floridly psychotic, against a long standing background of mental illness. The unequivocal opinion of Dr Martin is that the applicant's judgment was significantly distorted at the relevant time. Whilst the objective seriousness of the offending cannot be gainsaid, the evidence overwhelmingly supported a conclusion that the applicant's moral culpability was significantly reduced on account of his mental illness, as was the need to denounce the crimes that he committed. [26] The applicant's mental illness also rendered him an inappropriate vehicle for general deterrence and reduced the significance of specific deterrence. [27] It was also significant that the applicant was entitled to rely upon the absence of any criminal history as a mitigating factor. 4. The evidence given by the applicant's sister before the sentencing judge painted a picture of a person whose formative years were characterised by a number of adverse factors, including: 1. the death of his father when he was 4 months old resulting in his relocation from Bathurst to Townsville; 2. being exposed to violence and alcohol abuse as a child, principally as a consequence of the relationship between his mother and her new partner; 3. being removed from the care of his mother, only to be placed into the care of step parents, one of whom was an alcoholic and an illicit drug user who subjected the applicant to verbal abuse, and who was ultimately sentenced to a term of imprisonment for drink/driving offences; 4. being placed into the partial care of the victim and his wife after his step mother was unable to perform that role due to suffering a stroke; 5. experiencing difficulties in his schooling; and 6. experiencing the death of his mother by suicide in his late teens. 1. Even though there was no evidence which established a connection between these factors and the offending, they formed an important part of the applicant's subjective case. The absence of any reference to these factors in the report of Dr Martin was beside the point. As his Honour himself acknowledged, their omission may have been explicable simply on the basis that the applicant was a poor historian. [28] The more important consideration was that there was no dispute that such events had occurred. Even accepting that they were not causally linked to the offending, their nature and extent formed an important aspect of the applicant's subjective case. 2. Against a background of all of these subjective considerations the sentencing judge adopted a starting point of 14 years' imprisonment [29] which he then discounted by 25% to reflect the applicant's plea of guilty. That starting point was more than half of the prescribed maximum penalty. In my view, notwithstanding the objective seriousness of the offence, the entirety of the circumstances warranted the imposition of a lesser sentence. 3. All of these factors lead me to the conclusion that the sentence imposed was manifestly excessive. Accordingly, ground 3 is made out. As a consequence of those findings, this Court must re-sentence the applicant in the fresh exercise of the sentencing discretion. Re-sentence 1. Two affidavits were read on the question of re-sentence. The Crown read the affidavit of Miriam Rottenberg of 20 November 2020. The applicant read the affidavit of Catherine Hunter (the applicant's solicitor) of 23 November 2020 which was, in effect, a response to the affidavit of Ms Rottenberg. 2. Ms Rottenberg's affidavit documents the fact that the applicant has been punished in relation to three incidents in custody. The first was on 6 September 2019 when he had been called for assessment by a mental health nurse and became agitated, in the course of which he abused both the mental health nurse and the medical practitioner who was examining him. Ms Hunter's affidavit stated that the applicant took no issue with those facts but had said that he had been feeling physically unwell and that this had caused him to act as he did. [30] 3. The second incident took place on 17 September 2019 when the applicant became aggressive towards a correctional manager. This occurred immediately following the applicant being notified of the adjudication which had been reached in relation to the earlier incident. The applicant told Ms Hunter as set out in her affidavit that he had challenged the officer because he felt that his earlier behaviour was not intimidatory. [31] 4. The third incident occurred on 22 May 2020 when, in the course of searching the applicant's property, a "gaol made weapon" consisting of a sharpened piece of metal with a makeshift handle approximately 15cms in length was located. The applicant disputed knowledge of that implement and said that it did not belong to him. [32] 5. I have already set out at length the nature and circumstances of the offending and the salient features of the applicant's subjective case, the most significant of which are his mental illness, his deprived upbringing and the absence of any criminal history. 6. Assessing the applicant's prospects of rehabilitation is obviously difficult. The observations by Dr Martin that the applicant has limited insight, and does not accept the diagnosis of schizophrenia, are concerning, as are the more recent incidents in custody. Based on the opinion of Dr Martin, the key to the applicant's rehabilitation centres upon maintaining a relatively stable environment, abstaining from the consumption of illicit substances, and complying strictly with his regime of antipsychotic medication. [33] It is also essential that once released, the applicant undergo regular and formalised mental health follow-up including the regular monitoring of his mental state and associated rehabilitation. [34] 7. The applicant's lack of any prior criminal history tends to indicate that he at least has the capacity to be rehabilitated. If he adheres to the regime outlined by Dr Martin, his prospects of rehabilitation would appear to be favourable, and his risk of reoffending moderate. For all of these reasons, a finding of special circumstances is clearly appropriate on the basis that the applicant will benefit from a longer period on parole to assist him in reintegrating into the community. ORDERS: 1. I propose the following orders: 1. Leave to appeal against sentence is granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court is quashed. 4. In lieu thereof the applicant is sentenced to imprisonment for 9 years commencing on 3 August 2017 and expiring on 2 August 2026. 5. I specify a non-parole period of 6 years' imprisonment commencing on 3 August 2017 and expiring on 2 August 2023. 1. WRIGHT J: I agree with Bellew J. ********** Endnotes 1. Commencing at AB 4. 2. AB 74. 3. At [16]; AB 83. 4. At [8]-[10]; AB 81. 5. At [19]; AB 84. 6. At [21]-[24]; AB 85-86. 7. Commencing AB 88. 8. Commencing at AB 19. 9. AB 21. 10. [2012] NSWCCA 285 esp. at [86]; [90] per Allsop P. 11. T4.8-T4.11. 12. Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [58] per Johnson J. citing El-Chaar v R [2007] NSWCCA 16 at [28]; see also R v Baker [2000] NSWCCA 85 at [11] per Spigelman CJ; Ryan v R [2009] NSWCCA 183 at [33] per Johnson J; R v DP [2019] NSWCCA 55 at [35] per Fullerton J. 13. AB 15-16. 14. AB 17. 15. AB 18. 16. AB 18. 17. (2013) 249 CLR 571; [2013] HCA 37 18. T7.1-T7.3 19. At [42]-[44] 20. See generally Perkins v R [2018] NSWCCA 62. 21. [2017] NSWCCA 71 at [28]. 22. As to which see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at 325(6). 23. AB 49-50. 24. R v Dodd (1991) 57 A Crim R 349 at 354 citing R v Rushby [1977] 1 NSWLR 594. 25. R v Engert (1985) 84 A Crim R 67 per Gleeson CJ at 71. 26. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] per McClellan CJ at CL. 27. De La Rosa at [177]. 28. AB 18. 29. AB 23. 30. At [4]. 31. At [5]. 32. Affidavit of Ms Hunter at [6]. 33. At [23]; AB 86. 34. At [24]; AB 86. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020