R v Manna [1999] NSWCCA 314

New South Wales Court of Criminal Appeal CITATION : R v Manna [1999] NSWCCA 314 FILE NUMBER(S) : CCA 60374/98 HEARING DATE(S) : 14 September 1999 JUDGMENT DATE : 10 December 1999

PARTIES : Adriano Manna (applicant) Regina (respondent) JUDGMENT OF : Handley JA at 1; Grove J at 2; Hidden J at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1103 LOWER COURT JUDICIAL OFFICER : Nield DCJ

COUNSEL : T. A. Game (applicant) M. M. Cunneen (respondent) SOLICITORS : Legal Aid Commission (applicant) Director of Public Prosecutions (respondent) CATCHWORDS : CRIMINAL LAW - sentence - wounding with intent to murder - whether mental disorder related to commission of offence ACTS CITED : Criminal Appeal Act 1912 R v Engert (1995) 84 ACrim R 67 Veen v The Queen [No 2] (1987-1988) 164 CLR 465 Sindoni (CCA, unreported 27 April 1993) Cool (CCA, unreported 2 June 1994) CASES CITED: Merritt (CCA, unreported 26 February 1996) Nguyen (CCA, unreported 13 June 1991) Papalia (CCA, unreported 18 July 1996) Azzopardi (CCA, unreported 1 October 1998) Applebee (CCA unreported 16 July 1991) DECISION : Appeal dismissed by a majority.

IN THE COURT OF CRIMINAL APPEAL

60374/98

HANDLEY JA GROVE J HIDDEN J

10 December 1999

REGINA v ADRIANO GUISEPPE MANNA

JUDGMENT

1 HANDLEY JA: I agree with Grove J. 2 GROVE J : I have had the advantage of reading the judgment of Hidden J in draft form. His Honour has extracted a sketch of the relevant facts from the remarks of the learned sentencing judge and I would gratefully adopt them and refrain from repetition. 3 I do not share the conclusion of Hidden J that this Court should intervene to reduce the sentence and it is convenient to state my reasons by reference to his Honour's ultimate view that the sentencing judge "fell into error in holding that the applicant's psychiatric history provided no explanation for the crime". 4 The relevant psychiatric evidence consisted of a report from a psychiatrist Dr Peter Klug. He saw the appellant once whilst the latter was in custody. Mental state examination was reported as disclosing no evidence of psychosis, delusions, hallucinations, an organic brain syndrome, a traumatic brain injury, confusion, delirium, intoxication, withdrawal, agitation or cognitive impairment. He was said to have provided a coherent and internally consistent history. As Hidden J has noted, the appellant gave a demonstrably false explanation for the shooting to Dr Klug and was otherwise an apparently undependable historian. There would be no error manifest in the sentencing judge so regarding him. What were collated as relevant psychiatric issues (emerging from an unreliable historian) were in summary described under six point headings. Possible convulsions as a child was the first, followed by disturbed dynamics within developmental years, a history of inability to control anger and aggression, the intensive use of anabolic steroids over one to two years (1990-91), poly drug abuse and dependence and a history of extreme irritability and violence to property. The details elaborated in relation to these points need not be recounted. 5 The summarized opinion of Dr Klug was that the appellant was a twenty three year old man who had a significant past psychiatric history and a long history of poly drug abuse and dependence. He thought, upon the history related to him, that at the time of the commission of the offence the appellant was probably intoxicated with a variety of drugs. He went on to note an opinion that the appellant was aware of the nature and quality of his actions and the possible consequences of them but probably had some lengthy amnesic episodes. 6 In his remarks the learned sentencing judge stated: "I cannot see that the prisoner's previous irrational behaviour or his abuse of steroids, cannabis and LSD played any real part in his initial decision to take a pistol and to attempt to rob the complainant of his money or in his subsequent decision to kill the wounded victim of the attempted robbery." 7 I consider that that conclusion was open to his Honour and no error such as to attract the power of this Court to intervene has been shown. Further I am of the view that the psychiatric material did not mandate an element of particular leniency in the assessment of sentence. Explanatory material is of limited utility unless in a case such as the present it is attractive of mitigation. The essential question is whether sentencing discretion has miscarried. It did not. 8 Undoubtedly the sentence is capable of being viewed as severe but as Hidden J has noted the facts of the offence are grave indeed. In the terms of s6(3) of the Criminal Appeal Act I am unpersuaded that a less severe sentence was warranted in law and should have been passed and I would dismiss the appeal.