Local Court of New South Wales CITATION: DPP v Houn [2008] NSWLC 16 JURISDICTION: Criminal PARTIES: Director of Public Prosecutions (NSW) Tilac (Ty) Neil Huon FILE NUMBER: PLACE OF HEARING: Downing Centre DATE OF DECISION: MAGISTRATE: Magistrate B Maloney CATCHWORDS: Malicious wounding - mental illness LEGISLATION CITED: Crimes Act 1900 s35 Crimes (Sentencing Procedure) Act 1999 s3A, s21A R v Anderson (1980) A Crim R 379 R v Dodd (1991) 57 A Crim R 349 R v Engert (1995) 84 A Crim R 67 R v Geddes (1936) 36 SR (NSW) 554 CASES CITED: R v Gordon (1994) 71 A Crim R 459 R v Smith (1958) 75 WN (NSW) 198 Veen v R (No.2) (1988) 164 CLR 465 Regina v Pitt [2005] NSW CCA 304 Regina v Scott [2005] NSW CCA 152 TEXTS CITED: REPRESENTATION: ORDERS: The Charge: The offender has been charged with one count of maliciously wound a person contrary to s.35 (1a) Crimes Act 1900. The offence occurred between 1.15am and 1.30am on 22nd April 2006 at Darlinghurst. The victim was Ms Jessica Harris. The Facts: At about 1.15am Saturday 22nd April 2006 the victim, Jessica Harris, had returned to her residence in Liverpool Street, Darlinghurst, after finishing late from work. About this time the victim has decided to make a call to New York using a public phone near her residence in Liverpool Street. The offender, who was intoxicated at the time, has approached the victim whilst she was making the call. At that time the offender was carrying a broken bottle in his right hand. The offender has approached the victim on two occasions with his arms outstretched. On each occasion the victim felt threatened and has screamed and kicked out of the offender. On the third occasion the accused has lashed out with the broken bottle and struck the victim to the left side of the face. The victim screamed in pain and fell to the ground in shock. At this point a number of witnesses have come to the assistance of the victim and chased the victim along Palmer Street, Darlinghurst. At the same time police going to the scene came across one of the witnesses. This witness got into the police vehicle and was driven around the area. The offender was seen by the witness to run along Palmer Street and into Chapel Street East Sydney where she pointed the offender out to police. The offender was arrested in Chapel Street and it was noted his shirt and pants were covered in blood. The offender was taken to Surry Hills Police Station and entered into custody. Detectives arrived a short time later and after being cautioned a second time the offender agreed to participate in an electronically recorded interview. During the interview the offender stated that he had drunk a bottle of "Bombora Coconut Rum" at his cousin's house. He and his cousin travelled to Kings Cross where they both attended the "Sports Bar" and consumed a number of beers. At about 10pm the offender and the cousin proceeded to "Club 77" where the offender consumed eight Bourbon and Coke. At some time later there was an argument with the cousin and the offender smashed a bottle of Bourbon he had earlier purchased, but still held onto the neck. The offender stated he could not recall seeing Ms Harris or stabbing her in the face with the bottle. He recalls running when he saw police however he does not know where the blood came from that was found on his shirt or his pants. He did not recall how he got blood on his fingers nor slight cuts to his fingers. Detectives suspended the interview and the accused assisted police to try to locate the thrown broken bottle. Subsequently it was not recovered. The offender was taken back to Surry Hills Police Station and the interview resumed. Injuries to Ms Harris: An Expert's Certificate pursuant to s.177 Evidence Act, 1995, was tendered under the hand of Dr Darron Cope. At about 2am on the 22nd April 2006 he examined Ms Harris and noted she was suffering from :- · Lacerations to the face · Twelve centimetre vertical laceration to left temporal area with actively bleeding temporal artery · Six centimetre laceration over left cheek. Treatment Required: · Deep sutures to temporal laceration to control bleeding followed by skin sutures. Plastic surgical team reviewed patient with regard to cheek laceration. · Wounds were washed out and cleaned · Given antibiotics and · Follow up by Plastics team. Victim Impact Statement: There was no Victim Impact Statement tendered however without objection the Crown tendered a letter from Ms Harris' mother Yvonne Harris within which she informs that her daughter, the victim, was referred to Greta Goldberg, Clinical Psychologist. Mrs Harris also advises that after a period of recuperation her daughter underwent a number of visits to St Vincent's Hospital Plastics Centre. She advises "as much as can be done has been done for now. Dr Korush Tavakoli of St Vincent's Hospital advises that a period of twelve months must now elapse before Jessica can be re-evaluated for further cosmetic surgery……" Also tendered by the Crown was a letter from Dr Julie Day Psychiatric Emergency Care Centre of St Vincent's Medical Health Service dated 28th April 2006. In that letter Dr Day advises that Ms Harris describes symptoms of PTSD. She is experiencing panic attacks, is afraid to leave her flat and is finding it very hard to be on her own. She describes feeling anxious and hyper-aware almost all the time and is experiencing daily flash backs of the attack. She denies suicide ideation/ideas of self-harm, she is well supported by her mother and father and friends. Offender's Medical Background: In the period 21 June 2005 until 12 December 2005 the offender attended upon Katie Vidler Psychologist, at Southside Clinical Psychology for twenty sessions. He had also seen two local general practitioners Dr. Bruce Pirani and Dr. Joshi, the latter for at least eight sessions. He had also seen Dr Hugh Morgan, Psychiatrist for at least seven sessions. Katie Vidler in report dated 19 July 2005 reports as follows:- Ty is currently engaging in self harm behaviour of cutting his right arm with broken bottles or knives. His cuts are usually multiple shadow cuts. He does this to relieve stress when negative things build up inside him and one little thing pushes him over. After cutting Ty feels "good and relieved of stress for up to a few hours to a few days with relief usually lasting two days." Ty is also currently experiencing symptoms of depression including depressed mood, loss of interest and pleasure in activities he previously enjoyed, appetite increase, not getting enough sleep…………………..feeling slowed down in his body, fatigue, feeling of worthlessness and guilt, diminished concentration and suicide ideation occurring on weekdays but not on weekends which he usually enjoys. Prior to the date of the offence the offender had five significant episodes where he had cut himself severely. Three of those episodes resulted in him being admitted to St George Hospital and later referred to the Acute Mental Health Unit. The first cutting episode was on the 4 September 2004 and the last was the 13 December 2005. Also significant in the offender's history are three episodes where he himself had been the victim. On the 2 November 2005 he was robbed whilst on a train. On the 30 January 2006 he was the victim of another assault and robbery and on 17 March 2006 he was seriously sexually assaulted. The later episode is a very unusual incident in which the offender alleged that he was sexually assaulted by another male at Darlinghurst. Tendered in the defence's submission bundle of documents were clinical notes from Royal Prince Alfred Hospital and St George Acute Medical Health Team Notes. Subjective History Post Offence: On the 30 May 2006 Mr Huon again cut his right arm with broken glass. He was referred to Dr John Albert Roberts, Clinical Psychiatrist for medico-legal assessment. Dr Roberts managed for the offender to undergo a Cerebral CT Scan and then later and MRI, the result of which is indicative of an abnormal brain. Dr Roberts in his report and also during evidence taken on oath on the 1st March 2007 advised that "the folia of the cerebellum being a little prominent and of there being an sub-arachnoid space in the posterior foca with a prominent cisterna magna". Dr Roberts' opinion was that the atrophic changes may be due to congenital factors or acquired as a result of alcohol and other substance abuse or as a combination of both of those factors. Dr Roberts also commented upon a "biological constellation of problems" being as follows:- 1) Developmental with proven cerebral atrophy 2) A psychiatric illness associated with depressive moods 3) A substance abuse disorder, namely, alcoholism. 4) A possible reaction to the medication Zoloft. Dr Roberts expressed the following opinion:- "On grounds of probability having regards to the presence of the psychiatric illnesses mentioned, Mr Huon's acts that are relevant to this matter would have been substantially less likely to occur in the absence of other conditions, namely, that if it was not for the presence of the proven disease states, there is a substantial probability that Mr Huon's behaviour would be other than what occurred. The presence of a depressive illness, developmental delay and cortical atrophy would however interact to cause a circumstance in which a person would be more vulnerable to the disinheriting effects of alcohol than if those conditions were not present." The offender in June 2006 was referred to Wandene Private Hospital for intensive assessment under the care of Professor Saunders and also Dr Grace. On the 10 July 2006 the offender attended upon Professor Saunders at Wandene Private Hospital at Kogarah and entered the Wandene Alcohol Abuse Program. On 12 July 2006 the offender commenced Naltrexone to assist his self-harm control. The offender was referred for medico-legal report to Dr Olaf Nielssen who in his report dated 21 November 2006 notes as follows:- "Mr Huon said that he had only vague memories of being at the Sports Bar in Kings Cross and of his state of mind at the time. He said that he did not remember seeing the woman he attacked or what she looked like. He said he remembered feeling depressed and thinking about cutting himself with the bottle. He could not remember being in any way angry towards any other people or in the bar or thinking about attacking anybody. He said that he did not know why he would have attacked the woman. He said that he was surprised when he was told what he had done. Mr Huon was intoxicated with alcohol at the time of the offence. His amnesia of the offence is consistent with an alcoholic amnesic episode or "blackout". He was unable to give the police some information about his alcohol consumption and movements around the time of the offence but reported little memory of the events the evening afterwards, consistent with not converting short term to long term memories after sleep following severe intoxication. Dr Nielssen diagnosed the offender as suffering from low grade developmental disability, major depressive illness and alcohol abuse disorder. Reasons on Sentence: Section 3(A) of the Crimes (Sentencing Procedure) Act, 1999 sets out the purpose for which a court can impose a sentence. The starting point for any discussion of the purposes of punishment is Veen v R (No.2) (1988) 164 CLR 465 where Mason CJ, Brennan, Dawson and Toohey JJ, said at 476:- " Sentencing is not a purely logistical exercise and the troublesome nature of the sentencing discretion arises in large measure from the unavoidable difficulty in giving weight to each of the purposes of punishment…….the purposes overlap and none of them can be considered in insolation 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". Section 3(A) sets out the following seven purposes "for which a court may impose a sentence on an offender":- a) to ensure the offender is adequately punished for the offence b) to prevent crime by deterring the offender and other persons from committing similar offences c) to protect the community from the offender d) to promote the rehabilitation of the offender e) to make the offender accountable for his or her actions f) to denounce the conduct of the offender and g) to recognise the harm done to the victim of the crime and to the community. In R V Engert (1995) 84 A CRIM R 67 Gleeson CJ said at 68 after discussing Veen v The Queen (No.2): "A moment's consideration will show that the interplay of the considerations relevant to sentence may be complex and on occasion even intricate…………. It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances in the individual case, and in the light of the purposes to be served by the sentencing exercise" In terms of objective criminality, the attack upon Ms Harris was a completely and utterly unprovoked one. She was a defenceless young woman going about her business making a phone call when she was inexplicably attacked by the offender with a broken bottle. Therefore, in purely objective terms one would have difficulty conceiving of a more serious form of malicious wounding. As stated in R v Scott [2005] NSW CCA 152 there is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be reasonable proportionality between the sentence passed and the circumstances of the crime committed. The statutory maximum for an offence of malicious wounding is seven years imprisonment. It has been held that every sentencing exercise necessarily involved the identification by the court of where the offence lies in the spectrum of objective seriousness. In R v Dodd (1991) 57 A CRIM R 349 the court referred to R v Geddes (1936) 36 SR (NSW) 554 at 556 where Jordan CJ spoke of the need for a reasonable proportionality between a sentence and the circumstances of the crime, this being achieved by having regard to the "gravity of the offence viewed objectively" because "without this assessment other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place". In the particular case at hand in sentencing the offender Mr Ty Huon the Court is restricted in applying the principles annunciated above because of the legislative limitation of two years imprisonment allowed. This legislative restriction has indeed been brought about because of the Office of the Director of Public Prosecution's prosecutorial discretion. Objectively the offence committed by the offender is at the top end of the range for such offences and as such a sentence in the range of three and half years to five years would, in my view, be appropriate. It is noted that s.3AB gives statutory recognition to the common law principle of specific or general deterrence and I further note that following cases such as R v Scognamiglio and R v Wright general deterrence is attributed little weight in cases where the offender suffers from a mental condition or abnormality because such an offender is not an appropriate medium for making an example to others. It is further noted that s.3AD acknowledges the common law principle that the prospects of rehabilitation is one of the corner stones of sentencing discretion. However s.3AE requires the court to impose a sentence whereby the offender is held accountable for his or her actions. As Hunt CJ at CL said in R v Gordon (1994) 71 A CRIM R 459 at 468: - "Retribution or the taking of vengeance for the injury which was done by the offender is also an important aspect of sentencing. Not only must the community be satisfied that the offender is given his just desserts, it is important that the victim……..also feels that justice has been done". It is necessary for the court to refer to s.21A(2) Aggravating Factors and 21A(3) Mitigating Factors Crimes (Sentencing Procedure) Act. The aggravating factors in the case at hand are as follows:- · Actual or threatened use of violence s.21A (2)(b) · The use of a weapon s.21A (2)(c) · Gratuitous cruelty s.21A (2)(f) · The injury, emotional harm, loss or damage caused by the offence were substantial s.21A (2)(g) · Commission of the offence without regard for public safety s.21A (2)(1) Insofar as mitigating factors are concerned it is submitted that:- · The offender does not have any record or previous convictions other than a prior PCA in respect of the use of a vessel. · The offender is a person of good character. · The offender is unlikely to re-offend. · The offender has good prospects of rehabilitation. · The offender has shown remorse for his actions and · A plea of guilty by the offender is provided by s.22. In respect to 21A (3) factors the offender has written a letter to the victim in which he states:- "I am writing to you to apologise for the injury and distress I have caused you. I am so sorry and ashamed. It was a seriously dreadful thing I have done to you. I would also like to apologise to your family and friends who would also have been deeply affected by your injury. You would want to know why I did what I did but I cannot explain it or excuse it. Never in my life have I hurt anyone else besides myself. What I did was completely out of character and I wish I could take back what I did to you. For two years I have been suffering from depression, alcohol abuse and self mutilation but with a lot of help and support I am now working hard to overcome these problems. I hope that you have been able to get the help and support you need to recover and go on with your life. I pray that one day you can forgive me for the hurt I have caused you". Insofar as the guilty plea is concerned I note that the complexity of the issues about which evidence was needed to be gathered and adduced affects the value of the plea. It was necessary for defence counsel to spend time to obtain all necessary and relevant evidence of a subjective and medical nature and place the same before the court to assist the court in the sentencing process. However insofar as the utilitarian value of a plea is concerned I note that a medico legal opinion was sought from Dr Neilssen on the question of fitness to plead and that was negative for the defence and further the utilitarian value of a plea of guilty in this instance has been consumed by the Office of the Director of Public Prosecutions prosecutorial discretion. It is appropriate at this point to record relevant propositions established by authorities on the question of mental disability or capacity in relation to the question of deterrence:- · Mental handicap, short of providing a defence on the ground of mental illness, is a basis for a reduction of sentence eg. R v Smith (1958) 75 WN (NSW) 198 and R v Scognamiglio (Supra). · The full understanding of the authority and requirements of the law which may be attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person of extremely limited intellectual capacity; see R v Champion · Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with a significant mental handicap, the community applies to such people the principles of general deterrence in a way which is sensibly moderated to the particular circumstances of their case; see R v Champion (Supra) · In such cases, less weight should therefore be given to general deterrence. The sentencing judge is required to assess what diminution, if any, should be applied to the sentence which the crimes objectively merited by reason of the offenders reduced responsibility on account of a relevant mental condition. · In the case where an offender is suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given very little weight because such an offender is not an appropriate medium for making an example to others; R v Anderson (1980) (A.CRIM.R 379). · Sentencing persons who suffer from mental disorders confronts the judicial officers with the need to make a sensitive discretionary decision: R v Ingert. · A number of complex considerations may need to be taken into account. In a case where deterrence of others is of lessor importance, at the time it may mean that protection of society is of greater importance or might at the same time increase the importance of deterrence of the offender him or herself: R v Ingert (Supra). I have referred earlier to the findings of Dr John A Roberts and Dr Olaf Neilssen. These may be summarised as follows:- 1) The offender has a history of developmental delay with cerebral atrophy. 2) Suffers from a major depressive order. 3) Suffers from a substance abuse disorder, namely Alcoholism. 4) May have had a possible negative reaction to the medication, Zoloft. The offender had been suffering from a depressive illness for some years prior to the offence. This depressive illness was characterised by repeated episodes of self harm, serious enough to be admitted to emergency sections of hospitals and treatment by acute psychiatric teams at those hospitals. It was submitted on behalf of the offender that at the time of the commission of the offence he did not have proper insight into the various subjective problems that he suffered from. In particular, the effect of excessive consumption of alcohol on his self – directed aggressive behaviour characterised by self-harm. It was further submitted on behalf of the offender that having regard to the medical evidence, at the time of the offence the offender suffered impairment of judgment and volitional control. The evidence of Dr Roberts and that of Dr Neilssen it is submitted supports this conclusion and as a consequence it was submitted that the evidence established the mental disorder was causally related to the commission of the malicious wounding. However I have difficulty accepting the opinion of Dr Olaf Neilssen insofar as Doctor opines that at the time of the commission of the offence the offender suffered alcoholic amnesia or a "blackout". Dr Neilssen in his report of 21 November 2006 says: "he was unable to give the police some information about his alcohol consumption and movements around the time of the offence……" It may well be the case that Dr Neilssen was not provided with a copy of the electronically recorded record of interview held by Detective Constable Mourlas and plainclothes Constable Casey and the offender. Within that record of interview the offender was quite capable within some four hours of arrest to inform the police that he had been to Club 77, that he had drunk Bourbon and Coke and qualified the Bourbon as being Jim Beam, that he had had eight such drinks and advised in answer to Question 38, "but that was not all I had drank". He advised in subsequent questions that he had been drinking at his cousin's flat before hand and that was a bottle of Bombara which is some form of coconut flavoured Rum. He says in answer to question 51 that he went to the Sports Bar and as there was then cheap drinks being served he had a few beers prior to going to Club 77. He does say in answer to question 65 that at the time that he left his cousin's company he was carrying a bottle of Smirnoff Double Black and that he had purchased that from Club 77. He was able to advise police that it was a 175ml bottle and that it was a strong blend of Smirnoff with Lemonade. He advised police that he walked out of the club with it in his back pocket and that he broke it with the intention of harming himself. He can recall being angry with his cousin. He can recall wearing khaki pants, brown leather shoes and a "pink-ey" stripped shirt. He said it was a pink and white stripped shirt in answer to later questions. He can remember wearing this shirt when arrested by police. Insofar as his ability to remember the significant events vis a vis wounding Ms Harris, I refer to the dialogue between Sergeant John Kirby who arrested the offender after he was pursued from the scene and following cautioning him: - Q: "What happened tonight?" A: If she goes I will talk to you (nodding towards Constable Dreardon, a female constable). Sergeant Kirby then said "What happened tonight Ty? A: I really fucked up. Q: What do you mean fucked up? The offender did not reply to the question. Following the wounding of Ms Harris, Mr Segal hearing the screams of the victim, observed the offender and followed him in his motor vehicle. Mr Segal assisted police in locating the offender. He had a brief conversation with the offender about the police being there and the offender said "Have you been drinking, you've got the wrong guy I've done nothing". It is noted that immediately after the wounding the victim screamed and the offender ran. However I am prepared to accept that there are reasonable grounds to conclude that at the time of the commission of the offence the offender was experiencing an altered mental state due to a number of underlying conditions which caused cognitive impairment, impairment of judgment and poor volitional control. It would have been of assistance if the Crown had cross-examined Dr Roberts, albeit on the opinion of Professor Neilssen, in respect of the alcoholic amnesic condition said to have occurred in the offender at the time of the commission of the offence. This matter came to me when I was sitting in the defended list court as the matter had been previously listed in the charge court. On the 1st March 2007 I did not have the time to go off the bench to consider all of the material and as I was in the process of doing other matters and so interposed Dr Roberts and have the matter adjourned for sentence to today. Had I known of the complexity of this matter in advance I would have ensured that there would have been sufficient time for me to consider all of the material and draw Dr Roberts' attention to the matters that were causing me some disquiet. Needless to say, the Crown having been forearmed with all of the material chose not to cross examine and indeed did not choose to prepare written submissions (as the defence had done) and in consequence it was necessary for me to have the Registry write to the Crown seeking their written submissions on penalty. Objectively, I consider that the appropriate sentence in this case to be one of five years penal servitude. There then remains the question as to the diminution that should be applied to the sentence having regard to the effect of the offender's mental condition on his ability to appreciate the gravity of his actions and his impaired volition. As Grove J stated in Regina v Pitt (2005)(NSW CCA 304) "There is need for caution to be exercised before resolving such an issue. So much is clear from the judgment of Gleeson CJ in Ingerd (Supra). A mental condition, as the Chief Justice there observed may lessen whatever might otherwise be the importance of general deterrence but at the same time increase the importance of deterrence of the offender". Speigleman CJ (see R v Israel) recorded the proposition that to the extent that mental illness explains the offence then the offenders inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability, even where the illness does not amount to an excuse at law. In this particular offender Mr Huon, he does understand the wrongfulness of his actions. Its also trite to say that a custodial sentence may way more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. I conclude that an appropriate head sentence taking into account all factors be they s.3A or s.21A would be imprisonment for three and a half years. As for fixing a non-parole period I am to turn my mind to special circumstances and in this case a finding of special circumstances under s.44(2) is purposive in that it is a warrant for reducing the non-parole period below that of the statutory ratio. As was held in R v Simpson (2001) NSW CCA, the non-parole period must reflect the criminality involved in the offence including its objective gravity and the need for general deterrence. There also remains the proposition that merely because there is present a circumstance which is capable of constituting special circumstances does not mean that a sentencing judge is obliged to vary the statutory proportion R v Fidaw (2004) (NSW CCA). To constitute special circumstances something more is required than taking mitigating factors into account. "What constitutes special circumstances is something more than those matters which may be taken into account by way of mitigation of the total sentence. If it were otherwise, there would be no need for the adjective "special" and no need for s.5(2); Hunt CJ in R v Lett. As it was held in R v Moffatt (1990) NSW LR what must be shown as circumstances which demonstrate the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole. That need or desirability may arise from the prospect of particular difficulties in adjustment after long periods in custody or from the greater prospect of rehabilitation if supervised whilst on parole than from a longer period of incarceration. Taking into account those subjective and more particularly medical factors of Mr Huon it would be appropriate to fix a non-parole period in the order of two years. However because of the legislative limitation imposed upon the jurisdiction of the Local Court I am unable to do so. Following the principles annunciated in R v Doan I am entitled to and do take into account all of those considerations and all the authorities particularised in the foregoing to view what I consider to be an appropriate sentence and non-parole period in the circumstances of this particular case. In view of the statutory sentencing restrictions the only sentence appropriate in the circumstances is the imposition of a penalty of two years imprisonment. Taking into account s.44(2) factors there are special circumstances in fixing a non-parole period that would allow for an expression of the seriousness of the offence that at the same time express also the need for the offender to spend a period of supervision on parole and the continuation of his various counselling therapies. Taking into account all of the above I impose a sentence of two years imprisonment and fix a non-parole period of fifteen months and I direct that a copy of this judgment together with copies of the latest reports from Dr John A Roberts and Professor Olaf Neilssen be given to Justice Health and further that the warrant of commitment to prison be endorsed "prisoner to be immediately assessed by the prison medical service on admission to prison". 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.