New South Wales District Court CITATION: Regina v Hull [2006] NSWDC 177 HEARING DATE(S): 31/03/06 JUDGMENT DATE: 7 April 2006 JURISDICTION: Criminal JUDGMENT OF: Norrish QC DCJ DECISION: See para 142 and 143 CATCHWORDS: Criminal Law - Sentence - mentally ill offender - malicious wound with intent to inflict grievous bodily harm. LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 Crimes (Sentencing Procedure) Act 1999 Thomson & Houlton (2000) 49 NSWLR 383 Geddes v The Queen (1936) 36 SR (NSW) 554 Regina v Letteri (unrep, 18/03/92, NSW CCA) The Queen v Henry (1999) 46 NSWLR 346 The Queen v Engert (1995) 84 ACR 67 Wright v The Queen (1997) 93 ACR 48 Regina v Fhada [1999] NSWCCA 264 CASES CITED: The Queen v Lee [2003] NSWCCA 391 Regina v Israil [2002] NSWCCA 255 Regina v Hopkins [2004] NSWCCA 105 Pearce v The Queen (1998) 194 CLR 610 Mill v The Queen (1988) 166 CLR 57 Olbrich v The Queen (1999) 199 CLR 270 Veen (No2) v The Queen (1988) 164 CLR 65 Regina v Markarian[2005] NSWCCA 264 PARTIES: Regina Nathan Hull FILE NUMBER(S): 05/71/0042 COUNSEL: Mr Corr Mr Young SOLICITORS: DPP (Wagga Wagga) Sheekey Williams SENTENCE 1 HIS HONOUR: If you do not mind standing just for a moment, Mr Hull, and then I will ask you to sit and then I will give my reasons, but my practice is to tell people in advance what sentence I propose to impose. 2 In relation to each of the matters to which you have pleaded guilty you will be convicted. In respect of the charge alleging malicious wounding of Garry James Lyons, which carries a maximum penalty of seven years imprisonment, I propose to sentence you to three years imprisonment to date from 28 November 2004 and to expire on 27 November 2007. That sentence recognises a discount of 25 per cent as required in accordance with the guideline judgment of Thomson & Houlton of the Court of Criminal Appeal. 3 In respect of the third charge on the indictment, that is the wounding with intent to cause grievous bodily harm of Jason David Schurr, I propose to sentence you to a total of six years imprisonment. That term of imprisonment recognises a discount of 25 per cent, but it will comprise of a non-parole period of two years to date from 28 November 2005 and to expire on 27 November 2007. It will have a balance of sentence of four years. 4 Therefore, the total sentence you will be subject to will be seven years imprisonment, with a non-parole period of three years. So you can take a seat and I will give my reasons for that decision. 5 In the Foreword to the First edition of the Sentencing Manual, issued by the Judicial Commission to all judges and magistrates, the learned Chief Justice said: "No task performed by the judiciary is of greater social significance than the task of sentencing persons who have committed criminal offences. Individual judicial officers call upon a vast body of collective experience of other judicial officers, both contemporary and past, to assist them in this task". 6 He referred to Sir Frederick Jordan's statement in Geddes v The Queen that: "The only golden rule (in sentencing) is that there is no golden rule". 7 The Chief Justice went on to say: "The preservation of a broad sentencing discretion is critical to the ability of the criminal justice system to ensure justice is served in all of the extraordinary variety of circumstances of individual offences and of individual offenders. The ineluctable core of the sentencing task is a process of balancing overlapping contradictory and incommensurable objectives including deterrence, retribution and rehabilitation. These objectives do not always point in the same direction. The requirements of justice and the requirements of mercy are often in conflict, but we live in a society which values both justice and mercy". 8 The observations of the Chief Justice have particular prescience in the sentencing of offenders where evidence is available to show that at the time of the commission of relevant offences those offenders were mentally disturbed, as was this offender. 9 On 19 September 2005 Nathan Hull pleaded guilty to two charges in discharge of an indictment presented by the Crown on that day. He pleaded guilty firstly to a charge alleging that he, on 28 November 2004 at Wagga Wagga, in the State of New South Wales, maliciously wounded Garry James Lyons. That offence carries a maximum penalty of seven years imprisonment. 10 He also pleaded guilty to a charge alleging that on the same date at Wagga Wagga he did maliciously wound Jason David Schurr with intent to do grievous bodily harm. That offence carries a maximum penalty of twenty-five years imprisonment. 11 In order to understand the circumstances in which these offences were committed, it is necessary, rather than just recite the facts that have been put before the Court, to put them in a proper context which includes some examination of the offender's background, as well as his criminal and mental health history. This is one case where objective and subjective factors and circumstances have a great deal of overlap. 12 The prisoner was born on 27 June 1978, and thus as I understand the matter, committed these offences with which I am concerned when he was twenty-six years of age. He is a single man who apparently was born in Sydney, but since the age of two has been raised in Wagga Wagga, and has primarily throughout his life lived with his mother and been in her care. His father died at about the age of forty-five when, as I understand the matter, the offender was a child. 13 He was educated to about year ten level, but left school without formal certification, approximately at the age of sixteen years. He was, however, a student with considerable ability, and in 1997 was assessed through proper psychometric testing to have above average intelligence. 14 I have available to me histories provided by the offender to various medical practitioners and the psychologist which largely coincide with one another, and largely coincide with a lengthy statement from the offender's mother, which was tendered without objection. That statement supports much of the history provided by the offender, not only as to his background, but to the circumstances of the commission of the offences. 15 In 1997 when Mr Hull would have been, as I understand the matter, about eighteen years of age, he was charged with two counts of common assault and one count of assault police committed in about March that year. Subsequently, he was charged in relation to offences committed in September 1997 of assault, there being three in number, and again in November 1997 he was charged with an offence of assault occasioning actual bodily harm. 16 The precise particulars of these offences I am not entirely clear about. I was not provided with any detailed information, and I have had to understand these matters from the histories that are available, particularly in medical reports. 17 It would appear that at least one, or some of the assaults, relate to an assault or assaults committed by the offender on his mother in circumstances where he was trying to end a relationship she had with a person that the offender apparently did not approve of and who had been in a relationship with the offender's mother for approximately seven years before. 18 In any event, these various matters were brought together and dealt with in May 1998 in the Local Court pursuant to s.32 Mental Health (Criminal Procedure) Act 1990, and in respect of each of the offences the offender was placed on a bond for eighteen months. 19 It is clear, having regard to the outcome of the matters, that it was the conclusion of the Court that the offender was relevantly mentally ill, as required to be established under s 32 at the time of the commission of the offences. 20 For the purposes of those sentencing proceedings, apparently the offender was assessed by a local psychologist by the name of John Flockton whose report I will refer to shortly. 21 After the offender attended court it would seem, notwithstanding the fact that he was the subject of some form of probation supervision, or some form of restraint upon his liberty, he had little contact with mental health authorities in Wagga. It would also appear that over a period of time his mental condition deteriorated, particularly during 2003 and 2004. 22 Since leaving school the offender has had little employment experience. He undertook a chef's course at TAFE, and also undertook some sort of administrative course. He also has done some voluntary work; gardening for the Rural Fire Service and working for meals on wheels. At the time of his arrest, which occurred at the time of the commission of the offences, or shortly afterwards, he was receiving some form of benefit in the nature of a carer's pension, presumably to care for his mother who, as I understand the matter, has a chronic back injury. 23 In August 2003, some five years after he had appeared at the Wagga Local Court in relation to those matters earlier mentioned, he was charged with offences that related to the alleged assault of a shopkeeper. Subsequent to that charging, he was seen by Dr Yolande Lucire, a forensic psychiatrist, who, as I understand the matter, undertakes some assessment of people who are in custody at Junee Prison. 24 Whatever way the offender came in contact with Dr Lucire, she took an interest in his condition, and prepared a report to which I will refer later. 25 He was referred on to a local psychiatrist working for the local community mental health services. That medical practitioner, Dr Gregory Weppner, apparently assessed the offender in the context of having had access to reports that have been prepared by another doctor who some years before had seen the offender. 26 Dr Weppner in the report that he prepared, which is quite short, was somewhat less than sympathetic to the offender's circumstances. He wrote a report to which Dr Lucire felt compelled in February 2004 to reply. Dr Weppner was of the view in early February 2004 that there was no feature of mental illness, or serious mental disorder, that would necessitate in-patient or out-patient psychiatric treatment. He noted the offender had not been in contact with the Wagga Wagga Community Mental Health Service since 1998, and he noted that Dr Wright had found no evidence of mental illness. I do not have the benefit of Dr Wright's analysis on this matter. 27 Dr Weppner had some uncomplimentary things to say about the maturation of the offender, and formed the view that he did not believe there was anything the service could offer the offender at that point of time. He suggested, rather surprisingly, in light of subsequent events: "Perhaps a short period in gaol might help him to understand that there are more consequences to his violent actions other than the inconvenience of attending court and the procedures in relation to this". 28 This opinion of Dr Weppner stated in the letter that was written to the general practitioner treating the offender, was responded to by Dr Lucire on 17 February 2004. She was of the view that: "Going to gaol will not fix the problem. He is entitled under New South Wales law not to go in as he has a mental illness as defined under that legislation". 29 The detail of her analysis I will refer to later, that analysis appearing in a report she prepared earlier in late 2003. 30 Be that as it may, the consequences of Dr Weppner's assessment of the situation was that from early 2004 until the time of the commission of these offences, Mr Hull's general practitioner did not prescribe or advise any form of treatment by way of medication for what, clearly with the wisdom of hindsight, was emerging as a significant mental health issue for the offender. 31 Mrs Hull's statement tendered to the Court, asserts there was a misdiagnosis that contributed to the circumstances in which the offender was charged with the current offence. Whilst this may have some truth, it is unfortunately an analysis of the matter with the wisdom of hindsight. 32 The assault matter arising in 2003 was not dealt with according to relevant provisions that govern the treatment of the mentally ill offenders, but in fact was dealt with according to law when the offender on 9 June 2004 was convicted and placed on a good behaviour bond for a period of two years. 33 He was required to obey all reasonable directions of his general practitioner and any specialists or any other health professionals to whom he was referred. Apart from seeing his general practitioner, the Probation and Parole Service report tendered in these proceedings makes it very clear that he was not referred by the Probation and Parole Service to any particular specialist medical practitioner. 34 The reality is that local mental health facilities provided him with no further assistance, largely I would have assumed on the back of Dr Weppner's assessment of the matter. This approach, of course, was contrary to the views of Dr Lucire, who, in late 2003 had prognosticated that the offender did have serious mental health issues and required appropriate treatment. 35 The offender was subject to Probation and Parole Service supervision between June 2004 and the commission of the offences with which I am concerned. It would appear, on the report from the Probation and Parole Service, the offender was compliant in terms of reporting to his general practitioner, as well as reporting to the Probation and Parole Service. 36 In September 2004, the Probation and Parole Service became aware that Mr Hull was, to use the euphemistic words of the Probation and Parole Service report, "In some dispute with the local community health service". 37 Unfortunately it would appear, on the material available to me, that the Probation and Parole Service confirms that the offender was unable to provide further details to clarify reasons for the dispute, nor would it seem that the Probation and Parole Service got to the bottom of the matter by some independent inquiry. 38 The offender continued to report as directed to the Probation and Parole Service. The evidence in the Probation and Parole Service report confirms that during this period of time the offender was amenable to direction and compliant with advice. The difficulty and problem was that he was not getting adequate direction or advice in respect of matters which may have prevented the events that led to the current charges. 39 On 26 November 2004 the offender reported to the Probation and Parole Service and there appears, reading between the lines of the Probation and Parole Service report, that there was some discussion about giving the offender and his mother assistance from a support group, "as a form of respite for both of them". 40 I have noted the mother's observations of 26 November 2004 which I have no reason to doubt, where she states that after the attendance to the Probation and Parole Service the offender was distressed. She had been informed that there appeared to be something wrong with Nathan in the view of the Probation and Parole Service, although it would seem that she mistakenly believes that he was told that he was no longer required to go to Probation and Parole for assistance. That does not appear to accord with what the Probation and Parole Service have told me. 41 On 28 November, the day of these events, which was a Sunday, the offender was upset at his lack of treatment. From the histories he has given both Dr Lucire and Dr Lucas which are detailed, it seems that he was showing signs of agitation and himself felt agitated and angry. His mother was aware there was something wrong with him, and that his presentation was not normal. 42 She states in her statement tendered to the Court that on the Sunday morning she noticed that the offender's "eyes were very glassy and glazed and emotionless. He was sitting on the lounge just staring at nothing. When he left the house I knew he was in a distressed state. I felt I was powerless to do anything to help". 43 She states that when she saw him next at the police station after he had been charged in relation to these matters he was in a "shocking psychotic state". So far as her capacity to assess him as being "psychotic", I do not propose to rely upon that, but clearly he was in an abnormal condition when she saw him later that evening. 44 During that morning the offender had paranoid thoughts and feelings and anger, as I said, and these feelings had developed for some period of time. In the view of Dr Lucire, he was at that time in a schizo-typal personality state. 45 He and his mother had some argument and discussion over a piece of paper, or a piece of a newspaper. In that document there were some references to numbers about which the prisoner had dreamt. The prisoner for a long time had fixations upon numbers which would appear to be of some significance insofar as the ultimate assessments that have been made by Dr Lucire and Dr Lucas. 46 He armed himself with a knife from the house and decided to go to the hospital, stating to Dr Lucire that he was then angry with Dr Weppner, and apparently he wanted to confront him. He has told both Dr Lucas and Dr Lucire that he either knew, or at least probably expected, it being a Sunday, that Dr Weppner would not be at the Gissing House complex, which is psychiatric unit attached to Wagga Wagga Base Hospital. 47 He walked for some time in hot conditions, and when he arrived at Gissing House he was told that Dr Weppner was not there, and that he should come back the next day. When turned away from Gissing House he went to the Accident and Emergency Department. He claims that he was trying to calm down, but it is clear, judging from subsequent events, that this he could not do. 48 It was whilst in the Accident and Emergency Department that he came in contact with the receptionist, culminating in the events that give rise to these charges. He had arrived at the accident and emergency section at about 1.25pm. 49 He spoke to the receptionist and asked for a drink. She asked him if he was a patient and he replied that he was not. He was asked if he was there to see a doctor and he said, "No, not really", and the receptionist directed him to a place where he could get some refreshment, it apparently being a hot day. 50 Someone else that was working in the reception area said that she would go and get the offender a drink of water, and the woman that he first spoke to, Ms Wilson, continued to type on her keyboard. The offender pushed the computer monitor towards her at one stage. She pushed the monitor back and called for the assistance of security personnel which unfortunately led to Mr Schurr coming into the section to provide assistance. 51 There was a patient by the name of Mrs Carol Lyons, in the area accompanied by her husband, Garry Lyons, aged fifty-three, and who is the victim of the first charge to which the prisoner has pleaded guilty. These people were standing nearby to where the offender was, waiting to be attended to. Mrs Lyons heard a noise from the reception area, and the prisoner grabbed her by the right shoulder. Mr Lyons not unnaturally, grabbed the arm of the offender in an attempt to free his wife. The offender then lunged towards Mr Lyons and stabbed him in the left side of his neck. It was a miracle that Mr Lyons was not killed, in my view, in light of the location of the injury. 52 Mr Lyons had not seen the knife before he was stabbed. The two men scuffled and the offender again tried to stab Mr Lyons at which stage there were a number of people standing and sitting in the reception area. 53 Mr Schurr was a hospital security officer who was in an adjoining room at this time assisting police officers with a difficult patient. Mr Schurr heard the distressed calls from the reception area and very bravely, I must say, ran to the area. He saw Mr Lyons holding his bloodied neck and also noticed a number of people grouped together at one end of the reception area, obviously endeavouring to get away from the prisoner. 54 Whilst Mr Schurr was looking in that direction, and unaware of the presence of the prisoner, he was stabbed to the left side of his back by the prisoner. After being stabbed Mr Schurr fell to the ground. Police officers, who were nearby for the reasons I have earlier stated, entered the reception area to assist, and apparently subdued the prisoner by ordering him to throw the knife on the floor, and the prisoner was restrained by police. 55 The summary of the matter in the statement of facts says that Mr Lyons suffered a wound in close proximity to the carotid artery. He was taken to the operating theatre, operated upon for his injuries to his neck and to his ear which latter injury was caused by the trajectory of the knife. He received twenty-five stitches and staples to the ear and neck area, and remained in hospital for two nights. 56 Mr Schurr had a puncture wound over the left chest wall which resulted in a punctured lung. He was treated by hospital staff, and remained in intensive care for a number of days. 57 Both men have provided me with victim impact statements and related reports. In the case of both men I have taken into account the victim statements that have been prepared. It is clear, firstly in the case of Mr Schurr, that he has had a significant effect from this affair. Not only has he been diagnosed with post traumatic stress disorder of a very severe type, but his physical injuries and as well in relation to his mental health, have had an impact upon his employment and very much his enjoyment of life. 58 Likewise, Mr Lyons has suffered not only physical injury, but continuing symptoms consistent with post traumatic stress disorder. Both men have had their enjoyment of life and their enjoyment of employment affected by the conduct of the prisoner. 59 I have taken into account what they have said in both the statements and the reports which set out the detail of the physical and mental effects of the actions of the prisoner. 60 The prisoner was arrested by police, and has remained in custody since 28 November 2004. Naturally, all sentences to be imposed will be taken into account the time the prisoner has spent in custody. 61 In relation to this matter, the most significant matter besides of course the objective facts of the case and their seriousness, is the issue of the mental state of the prisoner at the relevant time, and the effect upon the sentencing process of the mental condition of the prisoner as can be ascertained from the evidence available. 62 In relation to this issue of the relevance of the mental condition of the prisoner to the sentencing discretion that I must exercise, I have had regard to a number of decisions of superior courts which reflect upon these matters. 63 In the decision of Martin John Letteri, a decision of Badgery-Parker J, delivered in the Court of Criminal Appeal on 18 March 1992, his Honour said: "Whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise". 64 In the guideline judgment in relation to armed robbery of The Queen v Henry 1999 46 NSWLR 346, Wood J, the chief judge at common law, referring to this passage said: "The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities, or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act or of its moral culpability which, although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing". 65 In the decision of The Queen v Engert (1995) 84 ACR 67 Gleeson CJ, now the Chief Justice of the High Court, referred to Letteri and went on to say at p 71: "In truth, however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence may reduce the importance of general deterrence and increase the importance of particular deterrence or of the need to protect the public". 66 Here I have concluded, based on the evidence available to me, that there is clearly a causal connection between, if I could call it, the mental abnormality or disorder of the prisoner at the relevant time and the offences. The difficulty has been in determining the extent to which the importance of general deterrence is reduced, and the relevance of personal deterrence, and the need to protect the public in the sentencing exercise. 67 In the decision of Wright v The Queen (1997) 93 ACR p 48, Hunt J, who then was Chief Judge at Common Law, said with agreement from the Chief Justice and Hidden J: "It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which the principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general or even personal deterrence are not rendered completely irrelevant, and the significance of an offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the Courts give effect to that principle as in instrument of social administration is to moderate the consideration of general deterrence to the circumstances of the particular case, but if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great". 68 In the decision of Fhada [1999] NSWCCA 264, this and other authorities to which I have referred, were referred to with approval. The Court observed at para 48: "It is to be noted that the passage from Engert which I have extracted, Gleeson CJ pointed to two sentencing considerations that in a particular case might balance the diminished relevance of general deterrence. These were the protection of society and personal deterrence". 69 These judgments have received approval too in the decision of The Queen v Lee [2003] NSWCCA 391. Another judgment of recent origin dealing with these issues in the same way is Regina v Israil [2002] NSWCCA 255. In that judgment the learned Chief Justice, for the Court, said at para 23: "To the extent that mental illness explains the offence...then an offender's inability to understand the wrongfulness of his actions or to make reasonable judgments or to control his or faculties and emotions will impact on the level of culpability of the offender even where the illness does not amount to an excuse of law". 70 This is the situation here. 71 In argument, too, I was taken to another judgment of Regina v Hopkins [2004] NSWCCA 105 which I need not dwell upon at this particular point of time. 72 In this particular matter I was given a number of reports that range between 1997 and the present time which have informed the above principles. I found particularly helpful Dr Lucas' assessment of the matter with the benefit of having all the material before him, and of course with his great experience as a forensic psychiatrist of great reputation. 73 John Flockton's report in October 1997 prepared for proceedings in the Local Court not only involved regular psychometric testing as would be undertaken by a psychologist, but also reported upon thought disorder and other symptoms consistent with possible active psychotic episodes. 74 He noted in 1997 that the offender reported significant problems frequently associated with a manic episode, and describes himself as being impulsive and unusually energetic. He went on to undertake an assessment of many of these matters and came to the conclusion that having regard to matters set out in the diagnostic and statistical manual of the American Psychiatric Association, sometimes referred to as DSM IVR, there were present in the offender at least five symptoms which were consistent with schizo-typal personality disorder. I appreciate the professional limitations on the psychologists of diagnosis but it does not inhibit his ability to make relevant observation. 75 These included, to quote from the DSM criteria, ideas of reference, suspiciousness or paranoid ideation, inappropriate or constricted effect, isolation, to use my words, and excessive social anxiety. He said that the offender's prognosis did not appear positive, then dealing of course with the assault upon the mother, and advised that intensive counselling was necessary. 76 When Dr Lucire assessed the offender with a report dated 10 December 2003 in relation to the 2003 offence, she came to the view, assessing all the information available to her, that Mr Hull's condition could be described as a personality disorder with paranoid schizo-typal traits. She formed the view that he may be seriously paranoid, with either personality disorder or schizophrenia, and that he needed intensive assistance, however he was not in her view developmentally disabled, but in the terms of s.32 "Mental Health Act" as it is described. 77 Most significantly, when the offender was seen on Christmas Day 2005, slightly less than a month after the commission of these offences by Dr David Greenberg of Justice Health, a distinguished psychiatrist, Professor Greenberg, although he had difficulty making a psychiatric assessment for a range of reasons, which I need not go into, came to the view that at the time of interviewing the offender he was suffering from a form of psychotic disorder. 78 He found it difficult to follow the offender's thought processes, he believed this his psychotic illness may be related to a schizophrenic illness, and only with further investigation could more firm conclusions be reached. He was of the opinion that Mr Hull required further follow up psychiatric treatment to make a definitive diagnosis "about his major psychiatric illness, namely psychotic illness". 79 He was thought disordered and had idiosyncratic ideas about a range of matters, and he needed assistance. Of course Dr Greenberg was obviously handicapped because he did not have available to him all the material that other doctors have had. 80 Dr Lucire assessed the offender again in November 2005, presumably following upon receipt of Dr Lucas' report to which I will refer last of all. She set out a history of the circumstances of the offence, some of which I have relied upon in conjunction with the history given to Dr Lucas. 81 She also noted the information available from previous reports including that of Mr Flockton. She expressed the opinion that the offender's offences were "not a psychotic act in that it was not driven by psychosis nor a response to psychotic delusional beliefs" except to the extent that he saw "the victim", as he described it, although it was not a victim as such, "mocking him by her smile". 82 She did however say, "It was a desperate act by a mentally ill person and its goal was to attract attention to his plight and to force the service into giving him psychiatric care. His intention was to stage a siege. He was interrupted by the security guard. Nathan's intention was that of seeking help, not of killing anybody". 83 In that regard, I note, as it be referable to the histories that have been made available to me in relation to the matter, that it is clear on the version given by the offender to doctors, although this has not been tested of course by the Crown as the offender has not given evidence, that the offender had some paranoid ideation, as I have noted it from part of Dr Lucire's report, and that the offender has said to both psychiatrists, Dr Lucas and Dr Lucire, that he was going to stage some form of protest at that time a thought that, on my understanding of his version, came into his head at some time, either whilst in the emergency department or whilst attending upon the emergency department from Gissing House. Certainly it was a plan, if it was a plan as such, that occurred contemporaneously or very shortly before relevant events. 84 The offender has stated that he wanted to protest against his treatment by Dr Weppner and by Wagga Mental Health. It is clear that the wounding of Mr Lyons, in the context of the offender's explanations, was because he had intervened to protect his wife. Mr Hull had no grudge against Mr Lyons, and certainly he had no reason to have a grudge against the security guard who entered the emergency centre unaware of Mr Hull's presence. 85 Mr Hull's account of wounding the security guard I point out is very chilling. He told Dr Lucas, "I must've thought that he should be taken out of action, not killed, but damaged enough". 86 Before parting from this reference to the objective facts, it must be said that Mr Lyons, and particularly Mr Schurr and the unnamed police who finally confronted the offender, deserve the highest commendation for their courage in seeking to quell this particular very dangerous situation. 87 This brings me to Dr Lucas' assessment of the matter, which I have earlier referred to. Having regard to the material available to me, I have come to the conclusion that Dr Lucas' assessment of the matter provides a compelling analysis to explain matters relevant to the assessment of the offender's medical condition. 88 Dr Lucas prepared a report dated 9 September 2005, and had the advantage of reviewing all relevant material up until that time, and all material relevant to proof of the charge including, as I understand it, watching a security video which showed the offences being committed, or at least some aspects of their commission. 89 Dr Lucas' conclusion was that the prisoner suffered from a: "lengthy history of personality problems and poor social and educational functioning. At some point, he says, the prisoner developed a psychotic disorder, almost certainly schizophrenia, and since being in custody he has been receiving treatment with benefit". 90 I need not for the purposes of my judgment go through the detail of the medication that the offender has been receiving since being in custody. 91 Dr Lucas said, "There is a history suggesting a pre-existing schizo-typal personality disorder, but I believe the principal diagnosis is now schizophrenia. Some years ago psychotic features may not have emerged and the personality disorder diagnosis may have been appropriate". 92 This is a comment no doubt upon Dr Lucire's view. 93 He went on to say: "The psycho-social factors relating to his offence were his disturbed mental state due to his psychotic illness, his anger, no treatment plan having been prepared although requested, and as a consequence his mental state had not improved. His ability to rationally assess his situation and control his anger and behaviour would have been impaired". 94 In the circumstances of the matter in my view it is quite clear on all the evidence that his ability to rationally assess his situation would have been significantly impaired. 95 Dr Lucas said that the prisoner at the relevant time of the offences was suffering from a serious psychiatric illness, to wit schizophrenia, but that the description of his mental state and thinking at the time does not indicate a defence of mental illness is appropriate. 96 He said that the history of psychiatric illness and the fact that the prisoner was not receiving treatment during 2004, as it was not made available to him although requested, "is relevant when considering the question of sentencing and his future management". This is not a case where the prisoner deliberately avoided treatment. Here the need for reliance on general and personal deterrence is diminished because of the significance of the mental disorder to the offending conduct and that the disorder remained untreated through no fault of the offender. 97 Dr Lucas also recommends in his report that the offender receive "continuing treatment by means of medication and any special programs considered necessary, perhaps including anger management and rehabilitation and regular psychiatric follow up". 98 Dr Lucas stated in light of the history of the matter and the prisoner's conflict with local mental health authorities, that a visiting psychiatrist in due course, when the prisoner is released, may have to undertake these tasks. 99 In relation to the matter, the prisoner has pleaded guilty on arraignment to charges framed on indictment after a committal for trial. Normally this would involve a discount in accordance with the guideline judgment of Thomson & Houlton less than 25 per cent; perhaps more closely affixed to the 10 per cent mentioned in the Chief Justice's judgment. 100 However, this is a matter where the delay in entering the plea of guilty arose, as I understand the matter, and it is not disputed by the Crown, solely to enable appropriate investigations to be undertaken to ascertain whether the offender had the defensive mental illness. 101 It seems to me in the context of the inevitable delay that occurs in relation to the assessment of these matters, that the progress of the matter even by way of committal, did not have an adverse effect upon matters relevant to the assessment of the utilitarian benefit of the plea, and it seems to me that having regard to the submissions put by Mr Young, the offender should receive a discount of 25 per cent in accordance with the guideline judgment for the utilitarian benefit of the pleas of guilty, recognising that those pleas were entered at the first reasonable opportunity open to the offender. 102 In relation to this matter, of course I am required to have regard to the decision of Pearce v The Queen (1998) 194 CLR 610, particularly at para [45[. I am required to fix for the offender an appropriate sentence for each offence, and then give regard to issues of concurrency and accumulation and, of course, totality. 103 I have come to the conclusion that there should be some partial accumulation of one sentence upon another. Clearly, the greater sentence should be partially accumulated upon the lesser sentence. These were two separate acts, albeit that they were very closely linked in time, and the totality of the criminality must be seen to be increased, having regard to the fact that there were two separate victims, albeit victims as a product of the disordered thinking of the prisoner. 104 In relation to the issue of totality, of course, I have had regard to what has been said about totality, particularly in decisions such as Mill v The Queen (1988) 166 CLR 57, particularly pp 67 to 71, and also of course in Pearce v The Queen itself. 105 There is clearly an issue that arises in relation to the potential dangerousness of the offender. There is reference in the past in relation to other offences, particularly by Dr Lucire, to the fact that the offender does present future risk. Clearly the facts of this case and the history of the offender suggest future risk. 106 It would seem to me consistent with appropriate sentencing practice with the decision of the High Court in Oldbrich v The Queen, that a finding that the prisoner presented a danger to the community is one that ought be made beyond reasonable doubt. When I refer to a danger to the community, I am referring to the risk of the prisoner being a danger to the community if he does not receive appropriate assistance and treatment in the future. 107 In my view it is not a matter about which I could reach a conclusion beyond reasonable doubt. In this regard, of course, I note what is said about these matters in Veen(No 2) v The Queen (1988) 164 CLR 65, particularly between pages 472 and 477. In that regard I note what appears at the bottom of 476 and following where the majority said: "The purposes of criminal punishment are various; protection of society, deterrence of the offender and of those who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guide posts to the appropriate sentence, but sometimes they point in different directions, and so a mental abnormality that makes an offender a danger to society when he is at large, but which diminishes his moral culpability for a particular crime, is a factor which has two countervailing effects; One which tends towards a longer sentence, the other towards a shorter. These effects may balance out, but a consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality". 108 In this particular matter of course the issue of prognosticating or predicting the future for this offender is difficult indeed. One would have to make an assumption at this point of time that there will be professional assistance available to the prisoner that was denied him, or unavailable to him in 2004. If so, the potential risk will be greatly diminished. 109 If I could just briefly deal with the submissions of the parties. Putting aside matters which are self evident, such as backdating the sentence, and having regard to the medical matters that arise for consideration and which I have already dealt with, Mr Young on behalf of the accused, whilst he conceded that there was a degree of pre-meditation by reason of the offender arming himself with a knife when he left the house, submitted that the planning was ill-conceived, bearing in mind that the offender knew, or thought probably, that Dr Weppner would not be at the hospital. 110 Mr Young's principal submission is to the issue of planning, which may be an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act. Mr Young submitted that what the offender ultimately did was not within the contemplation of what he planned when he picked up the knife. Certainly, in any event, the planning was not sophisticated. 111 I accept the submission that in reality whatever plans the offender had, admittedly fashioned by his disordered mind, they changed after De Weppner was found not to be at the hospital, and when the offender was confronted with fresh circumstances at the emergency department. In assessing the change of plans it is to be borne in mind, of course, as I have said, that the change of plans had a direct relationship to the offender's mental instability, or mental abnormality. 112 I am quite satisfied that the prisoner did not plan in any realistic way to take a knife for the purposes of stabbing persons at the hospital, and the planning of the matter in any event was the picking up of the knife and taking the knife to the hospital to confront Dr Weppner which was only a relatively short time before he arrived there. 113 To adopt Mr Young's submission, whilst there was some planning in a general sense, such planning "did not extend to contemplation of the very offences with which he was committed". 114 In relation to the issue of the standard non-parole period that arises in relation to the offence relating to Mr Schurr, that is the offence of malicious wounding with intent to cause grievous bodily harm, as provided in Pt IV Div 1A of the Crimes (Sentencing Procedure) Act, the plea of guilty, of course, means that the provisions to which I have just referred, do not directly apply. However Mr Young conceded what was pointed out by the Court in R v Way, which comprised the learned Chief Justice, that standard non-parole periods, even if not directly required to be considered or applied, still had a role to play as a "benchmark or sounding board or reference point or guide post" along with other extrinsic aids such as authorities, statistics, guideline judgments, et cetera, et cetera. 115 In this particular matter, noting particularly what was said about the issue of Div 1A of Pt IV of the Crimes (Sentencing Procedure) Act at paras 117 to 121, apart from the plea of guilty in this particular matter, relevant considerations, informing the ultimate fixing of a non-parole period, include the matters I have taken into account relating to the mental condition of the offender, which involved of course considering common law principles which are recognised to still have relevance, given the terms of s 21A(1) of the Act, and of course the finding of special circumstances that I have made pursuant to s 44(2) Crimes (Sentencing Procedure) Act. 116 In this particular matter the relevant special circumstances, and I did not understand the Crown to submit that there were not generally available special circumstances, include not only of course the partial accumulation of sentence which may of itself be a special circumstance warranting an adjustment of the relevant non-parole period to be fixed, but also the self evident need for an extended period of parole supervision to assist the prisoner, who has never been in gaol before, to adjust to community living, and to ensure that he receives the expert assistance that he will need, not only to adjust to community living, but to avoid offending in the future. 117 In relation to matters that arise under s 21A(2) noting what was put in relation to this matter by Mr Young, and what was put by the learned Crown Prosecutor, it is quite clear in respect of Mr Schurr, that a relevant aggravating factor under subs (2) is that Mr Schurr was a victim who was performing public and/or community functions in his role as a security officer as provided for in s.21A(2)(a) of the Act. 118 To my mind, although I am of the understanding that I need not treat subs (2) or subs (3) as a checklist, two other aggravating matters that clearly emerge from the material are that, firstly, the offender was on conditional liberty in relation to the offence for which he got a bond in 2004 at the time of the commission of the offence. However, I bear in mind in relation to that aspect of the matter, that it is not as aggravating a factor as might otherwise be, given the finding I have made that the offender's conduct giving rise to a breach of that conditional liberty arose out of his disordered mind. 119 I also note there was some planning which I have earlier analysed. 120 Obviously this is a case where there was significant injury, emotional harm and damage caused by the offences, but it is to be pointed out that both offences, as elements of the offence, each offence, require proof of the infliction of grievous bodily harm, and in the case of the charge involving Mr Schurr, an intention so to do. 121 It might be properly said that the damage done by the prisoner to the victims is a matter contemplated as an element of the offence as understood in the provision in subs (2) of this section that the Court "is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence". 122 On the other hand, of course, it should be fairly pointed out that the long term emotional distress to both victims is a matter that might fall outside the contemplation of that which is pleaded. Be that as it may, the effect upon the victims, as I said, is a matter that is relevant and to be taken into account, whatever the relevance of s 21A(2) to that matter. 123 There was some suggestion that in Mr Young's submissions that "the offence involved multiple victims or a series of criminal acts". I do not think that is a matter of any real moment here, simply because I am not sure that the wording of s 21A(2) "the offence involved multiple victims or a series of criminal acts", strictly interpreted, contemplates the events here given there are two separate offences. Of course, the two separate crimes are needed to be assessed by proper regard to totality of criminality in accordance with relevant common law principles. 124 With regard to mitigating factors arising under s 21A(3), I am prepared to accept that the offences were not really or relevantly planned, and certainly not part of organised crime. I naturally cannot conclude that the offender presents as a person who is unlikely to re-offend, or even that he has "good prospects of rehabilitation" simply because his mental condition requires intensive treatment and care, and his prognosis both medically and otherwise is uncertain. 125 However, I believe, although it is a matter to be analysed in line with the common law authorities, that it could be fairly said that by reason of his mental disorder, the offender was not fully aware of the consequences of his actions at the relevant time. I take into account his pleas of guilty. With regard to there aggravating and mitigating factors I note s.21A(3) of the Act. 126 Mr Young pointed out, and I accept his submission, that the prisoner is currently in protective custody, albeit general protection, which is a relevant matter, to assessing the appropriate penalty. This is a matter that is also relevant in my view, although not determinative or conclusive or decisive to the assessment of the non-parole period. 127 I will recommend on being sentenced that the prisoner be assessed for appropriate treatment by Justice Health for any medical condition that he suffers without making any other recommendation. I am asked not to make any specific recommendations in this regard. 128 The Crown's submissions reminded me of my obligations under s 3A Crimes (Sentencing Procedure) Act and I bear those in mind. Of course in Veen (2) v The Queen the majority crystallised a number of the matters which later found their way into the legislation at s.3A. It is clear that a prisoner must be adequately punished for the offence, and I should prevent crime by deterring him and other persons from committing similar offences, and I should protect the community from the offender. But I am also required to promote his rehabilitation in addition to making him accountable for his actions and denouncing his conduct and recognising the harm done to the victims. These purposes of sentencing in this case have to be understood in the context of those other principles I earlier spent some time setting out. They truly point in different directions here. 129 The Crown did not agree with Mr Young's submission that the mental condition of the prisoner was so significant as to remove general deterrence or personal deterrence from the sentencing exercise. He submitted that the extent to which the prisoner's mental condition affected his conduct is not something that can be precisely quantified, noting that Dr Lucas does not quantify the effect of the mental condition upon the prisoner's actions. 130 He submitted that if the mental condition of the prisoner is a mitigating factor, I will face, as the sentencing judge, a difficulty in assessing the extent of any relevant mitigation. I have taken into account that submission, and I have earlier announced my conclusion in that regard. 131 The Crown did not necessarily concede that the mental condition of the prisoner affected everything that the prisoner did. In my view, it is clear that the mental condition of the prisoner was the very reason that the prisoner was at the hospital. It was the very reason that the prisoner believed that he could achieve some end that would assist him in acting the way he did. 132 The Crown said it was a matter that might have, what could be called swings and roundabouts or consequences. Bearing in mind what the High Court said last year in the decision of Markarian clearly this with other aspects involves some intuitive synthesis on my part. Certainly no mathematical calculation is required on my part to identify the extent to which the mental condition of the prisoner might, by giving less weight to general and personal deterrence, mitigate the otherwise appropriate sentence. 133 The Crown, as I understood its submissions, conceded that I could not be satisfied that the prisoner was a continuing danger to the community, although there is always the possibility of the risk of further offences. 134 Certainly, I accept there is absolutely no evidence that the prisoner is a continuing threat or danger to the very victims of these crimes, and this is a matter of significance. The prisoner had no prior relationship with these victims, and the actions of the prisoner towards them, sadly for them, arose out of their unfortunate presence at this place at this particular time. 135 There is absolutely no evidence that the prisoner bears any continuing enmity, resentment or ill feeling of any type towards the victims. Such attitudes as he had towards the victims, or has had towards the victims, if he has had any attitude towards the victims after the event, in my view, are a consequence of his mental state. 136 The Crown conceded, given the mental state of the prisoner, his criminal history, and the fact that this is his first time in sentenced custody that special circumstances arose. 137 I hope I have given proper weight and proper consideration to all the relevant matters that arise in this case. Modern sentencing is not the relatively simple exercise it was twenty years ago. This is not a criticism of the obligations that arise under the common law and the legislation, but particularly in a case such as this, there are many difficult issues to address. 138 Some of them involve undertaking a predictive exercise and unfortunately I, nor anybody else, have the wisdom or the capacity to predict the future. Certainly there are no crystal balls that assist us in this regard. We can only act upon history and do our best to learn lessons from what the history of a particular matter teaches us. 139 It seems to this Court, as I have indicated by my remarks on sentence, whilst there should be some further punishment imposed upon the prisoner, the prisoner should have the benefit of a very lengthy period of supervision. Of course, for the prisoner the sting in the tail in this regard will be this; that if he fails to comply with the directions of the Probation and Parole Service, he runs the risk of his parole being revoked and being required to return to prison custody for a longer period than contemplated by the non-parole period I fix. 140 In that regard too, I also note that the consequence of my order will be that the Parole Board will make decisions as to whether he is released to parole, not myself, and this will require him whilst in custody to do as best he is able to, to comply with the directions of the Corrective Services authorities, particularly those authorities that have the responsibility for providing him with medical treatment. 141 Could you stand up thanks very much Mr Hull? In relation to the offences to which you pleaded guilty, you are sentenced as follows. 142 Firstly, in respect of count two, that is the count alleging that you, on 28 November 2004, at Wagga Wagga in the State of New South Wales maliciously wounded Garry James Lyons, you are convicted, and you are sentenced to three years imprisonment to date from 28 November 2004, and to expire on 27 November 2007 by way of fixed term. 143 In respect of count three, you are convicted and sentenced to a term of imprisonment by way of non-parole period of two years, to date from 28 November 2005 and to expire on 27 November 2007. The balance of the sentence of imprisonment is to be four years, to expire on 27 November 2001. 144 In relation to the sentencing of the offender, I have particularly noted, as would have been apparent from what I said earlier, that the prisoner's mother continues to support the prisoner, and subject to her good health continuing, will be able to support him on his release from prison, which will be a means by which his adjustment to community living may be assisted. 145 Yes, thank you, you can take a seat. 146 HIS HONOUR: Now Mr Crown, are there any technical matters? 147 CORR: Yes, I think you said that the total sentence would finish on 27 November 2001. 148 HIS HONOUR: Eleven. I thought I said 2 - did I say 2001? 149 CORR: Yes. 150 HIS HONOUR: Well I meant 2011, I misread my own writing. I'd better check the back of the indictment. It is 2011. Righto, thank you, thanks Mr Crown. That's an obvious error. Yes Mr Tankard? 151 TANKARD: Just one further matter. Your Honour indicated that your Honour was going to make a recommendation in relation to treatment. 152 HIS HONOUR: Yes. I will ask the warrant of the prisoner be marked that I recommend that the offender receive all appropriate medical treatment. I apologise. I recommend that the offender be assessed for appropriate medical treatment by Justice Health for any medical condition that he suffers. 153 HIS HONOUR: Yes thank you. Is there anything else, Mr Crown? 154 CORR: No your Honour. 155 TANKARD: No your Honour. 156 HIS HONOUR: Righto, you can go, Mr Hull, with the Corrective Services officers. Thank you gentlemen very much for your assistance. ********** 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. 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