Regina v Hourn [1999] NSWCCA 286

New South Wales Court of Criminal Appeal CITATION : Regina v Hourn [1999] NSWCCA 286 FILE NUMBER(S) : CCA 60233/98 HEARING DATE(S) : 13 September 1999 JUDGMENT DATE : 15 September 1999

PARTIES : Regina Michael Dennis Hourn JUDGMENT OF : Sully J at 1; Simpson J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0029 LOWER COURT JUDICIAL OFFICER : Shillington DCJ

COUNSEL : C.K. Maxwell QC - Crown M. A. Marty - Appellant SOLICITORS : S.E. O'Connor - Crown T. A. Murphy - Appellant CATCHWORDS : Appeal against sentence - no novel question of principle ACTS CITED : Crimes Act CASES CITED: R v Martin John Letteri DECISION : That the sentence imposed on 5 May 1998 be quashed; and that in lieu there be imposed a sentence of penal servitude for 5 years to comprise a min. term of 3 years to comm. on 4 December 1996 and to expire on 3 December 1999; and an additional term of 2 years to comm. on 4 December 1999 and expire on 3 December 2001.

7 IN THE COURT OF CRIMINAL APPEAL

60233/98

SULLY J SIMPSON J

15 September 1999

REGINA v Michael Dennis HOURN

JUDGMENT

1 THE COURT: It is convenient to begin with the following citation from the written submissions put in on behalf of the applicant: "On 15 September 1994 the applicant pleaded guilty to one count of maliciously wounding with intent to inflict grievous bodily harm to Mr. Dilaver Hidanovic. He was sentenced by his Honour Judge Blanch to four years penal servitude with a minimum term of 18 months. Special circumstances were found on the ground that it was the applicant's first lengthy period in gaol and his prospects of rehabilitation from his stated long standing alcoholism (see remarks on sentence 15/9/94). The applicant was released to parole on 16 July 1995. On 4 December 1996 the applicant was arrested and placed on remand in relation to a further assault upon Mr. Hidanovic. On 22 September 1997 the applicant entered a plea of guilty to the offence of maliciously inflicting grievous bodily harm under section 35 of the Crimes Act 1900 in relation to that assault. The applicant was sentenced to five years penal servitude with a minimum term of four years by his Honour Judge Shillington on 5 May 1998. A charge of malicious damage to a window was taken into account on a Form l." 2 The statutory maximum penalty upon conviction of an offence contravening s.35 of the Crimes Act is a sentence of penal servitude for 7 years. 3 The applicant submits that the learned sentencing Judge fell into error in his Honour's refusal to back-date the applicant's sentence to 4 December 1996, the day upon which the applicant was arrested. The applicant was refused bail; and he remained in pre-sentence custody from 4 December 1996 until he stood for sentence on 5 May 1998. 4 We think that the appellant's contention is correct. 5 If it be asked by what lawful authority the applicant was detained in custody between 4 December 1996 and 5 May 1998, the only answer properly available on the evidence is that he was so detained, bail refused, in connection with the offence committed by him on 4 December 1996. It is true that the applicant was, as at 4 December 1996, at liberty on parole in respect of the sentence earlier imposed upon him on 15 September 1994. It is, also, the case that the offence of 4 December 1996 rendered the applicant liable to have his parole revoked. The fact is, however, that the applicant's parole was not revoked; the unexpired parole period was simply left to expire by effluxion of time. 6 In those circumstances, we see no justification for the refusal of the learned sentencing Judge to back-date the sentence imposed by his Honour to 4 December 1996. The remarks on sentence do not disclose any particular process of reasoning which led his Honour to refuse such a back-dating. 7 We are persuaded that, on this one point alone, the applicant is entitled to be re-sentenced by this Court. 8 It is necessary then to consider whether the sentence imposed by the learned sentencing Judge, even it be back-dated to 4 December 1996, calls properly for some further adjustment by this Court. 9 We acknowledge, at once, the difficulties that confronted the learned sentencing Judge. His Honour was, in our respectful opinion, entitled to view the subject offence as a most serious one on its objective facts. We are content to state those facts in the form of the following extract from the remarks on sentence: "The facts quite clearly are that on the day of this offence, 4 December 1996, that you went to his unit, you shouted out to him in front of the unit and sought to obtain entry. He had a couple of visitors in the premises who obviously had had a great deal to drink, or if not to drink, but under the influence of some drug of some other nature. He then went to a neighbour who had a telephone and asked if the police be called. The police arrived and you then left and were seen to be leaving by Mr. Hidanovic. The police then sought to find Mr. Hidanovic. Shortly thereafter you returned to Mr. Hidanovic's unit again, started to remonstrate with him outside and, in fact, ultimately smashed the window of his unit. He says that he was in fear of you at this stage and terrified, left the premises and went down the corridor, followed by you carrying an axe. There is no doubt that you did have an axe. He says that he saw you coming through the window with an axe. Ms Marty has reminded me of your account in the ERISP interview, which was conducted with you in which you said that you were aware the he had an axe on his premises. It may well be that the axe that you chased him down the corridor with towards the neighbour's unit was in fact the one in his unit. Again it seems to me of little consequence one way or the other, because what did happen when you followed him down the corridor was that you struck him with the axe quite clearly on a number of occasions. He was taken to Sydney Hospital where he was treated by a doctor and I have a statement of Dr. Franks, which says: "The victim had lacerations to the occipital scalp with a palpable fracture of the skull. There was a three centimetre laceration to the frontal scalp, a one centimetre superficial laceration to his upper arm, a swollen and tender nose and tenderness to the cervical spine and anterior chest wall. The lacerations were cleaned and sutured and x-rays were taken which showed a linear fracture to the occipital skull. A CT scan was then performed which showed a depressed fracture to the skull in this area and a fracture of the medial wall of the left orbit." It was the doctor's opinion that a high degree of force would have been necessary to cause the injuries to the victim's skull. He described them as consistent with being struck by an axe." 10 It was, however, when his Honour came to deal with the subjective features of the applicant's particular case that real, practical difficulties arose. They arose because of the evidence concerning the applicant's mental condition, both at the time of the commission of the offence and at the time of the passing of sentence. 11 His Honour had before him a number of expert reports as to the applicant's relevant condition. His Honour canvassed all of those reports carefully. The reports spoke of a history of deprivation and abuse; of limited school education; of a wide range of occupations, generally of fairly short duration; and of poor general health. Drug and alcohol abuse from the years of early adolescence, and a generally withdrawn and suspicious personality, were additional features of the applicant's personal history. 12 Grafted on to all of that was a condition diagnosed as chronic schizophrenia resulting, at least in part, from chronic symptoms. That diagnosis developed over time into one of paranoid schizophrenia with elaborate persecutory delusions. Arrangements were made for the applicant to be admitted to a specialised psychiatric ward at his place of detention. There the applicant was placed upon a course of anti-psychotic medication. The applicant's progress was gradual but became measurably better over time. The most recent of the reports put into evidence before the learned sentencing Judge expressed the view that the applicant had not completely shed his chronic delusional beliefs; but that there were signs of improvement. The expert professional prognosis was, at that stage, that the applicant was "unlikely to act on his delusional beliefs or any other symptoms of illness", but provided, always, that he continued, whether in custody or not, with his anti-psychotic medication. 13 The learned sentencing Judge, having taken note of all of these matters, expressed some reservations about the prognosis, having regard to what had actually happened in December 1996. His Honour expressed in terms a continuing concern about the victim's welfare. These were, we think, entirely appropriate matters to be weighed in the relevant balance. 14 Against that background, and speaking more particularly about the applicant's mental condition, his Honour said this: "I have taken into account your mental condition and that is very much before me. I must also, however, have regard to my obligation to society generally and I nevertheless think that there is also need for general deterrence. In your case it may well be that deterrence in particular to you is not of such great significance." 15 In that connection, we take note of the following statement of principle extracted from the judgment of Badgery-Parker J, (Gleeson CJ and Sheller JA concurring), in the matter of Martin John Letteri (unreported; Court of Criminal Appeal; 18 March 1992): "The principle then is clear enough. It is correctly stated as follows - that 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." 16 Applying that principle to the given facts of the present case, we think that the following propositions emerge: