R v Kavanagh [2001] NSWCCA 78

New South Wales Court of Criminal Appeal

CITATION : R v Kavanagh [2001] NSWCCA 78 FILE NUMBER(S) : CCA 60454/99 HEARING DATE(S) : 19 March 2001 JUDGMENT DATE : 19 March 2001

PARTIES : Regina v Aiden Kavanagh JUDGMENT OF : Studdert J at 1; Barr J at 28

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/0130 LOWER COURT JUDICIAL Nield DCJ OFFICER :

COUNSEL : P. Hock (Crown) P.R. Boulten (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LEGISLATION CITED : Crimes Act Firearms Act R v Channells (unreported, NSWCCA, 30 September 1997) CASES CITED: R v Thompson (2000) 49 NSWLR 383 R v Vulic [2000] NSWCCA 295 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60454/00

STUDDERT J BARR J

Monday 19 March 2001

REGINA v AIDEN KAVANAGH

JUDGMENT 1 STUDDERT J: The applicant, Aiden Francis Kavanagh, sought unsuccessfully to withdraw a plea of guilty previously entered to a charge of attempting to discharge a loaded firearm at the complainant, who was his wife, with intent to do grievous bodily harm. Before seeking to alter his plea, the applicant had also pleaded guilty to possessing a firearm without being authorised to possess it. 2 The application to change the plea having failed, his Honour Nield DCJ proceeded to sentence the applicant on the two offences charged. For the more serious offence under s 33 of the Crimes Act, the applicant was sentenced to imprisonment for a total term of eight years with a minimum term of five years. The sentence was expressed to commence on 5 February 1998, with the minimum term to expire on 4 February 2003. Hence, the additional term is to expire on 4 February 2006. In relation to the lesser offence of possessing an unlicensed firearm, the applicant was sentenced to a fixed term of two years to be served concurrently, commencing on 5 February 1998. 3 The maximum penalty provided under s 33 of the Crimes Act for the more serious offence was imprisonment for twenty-five years. The maximum penalty under s 7 of the Firearms Act for the firearms offence was imprisonment for ten years. 4 Before addressing the arguments advanced upon the hearing of this application, I shall shortly review the facts and the subjective circumstances of the applicant. 5 The applicant married the complainant in London in 1993 and there was a child of that marriage. His Honour, in considering the evidence before him, accepted the evidence of the wife as being credible and that evidence in statement form given to the police at least, deals with the course of the marriage. I would only observe for present purposes that the marriage was a seemingly stormy one and the applicant had a drinking problem. 6 Eventually the complainant wife left London and came to settle in Australia. She was joined here by the applicant for a relatively short period of time in 1997 but that attempt at reconciliation was not successful and the applicant returned to London. However, he came back to Australia again in January 1998 and it was shortly after his return on this occasion that the offences were committed. 7 The applicant appears to have returned on 27 January 1998. There were a number of contacts made with his wife following that return. On 30 January 1998 husband and wife were before the Local Court at Ryde in connection with apprehended violence order proceedings, and the magistrate set a hearing date for 24 April 1998. 8 On 4 February the applicant met with the complainant and told her that he was going back to the United Kingdom on the following day. He requested a meeting with the complainant and the child of the marriage on that following day. Early on 5 February he contacted the complainant to ensure that the meeting that had been arranged would be kept. Husband and wife met at lunch time and there was further discussion concerning their relationship. When the applicant and the complainant separated after lunch the complainant agreed to pick up the applicant to take him to see the child once more and then to take the applicant to the airport so that he could return to London. 9 During the course of the journey that followed the complainant picking up the applicant in the late afternoon, the complainant drove the car to the vicinity of the day care centre where the child was being kept. 10 With the parties in the car, that is the applicant and the complainant, the applicant pulled out a gun and said, "I'm sorry to have to do this to you but I can't live without you". The complainant grabbed the barrel of the gun and in the ensuing struggle the weapon opened and bullets fell from it. The complainant was able to make her escape from the car and into the day care centre where she sheltered with her son until the police and an ambulance arrived and the applicant was taken into custody. 11 Not only did the sentencing judge accept the complainant's version of events, which I have outlined, as being true but he rejected the applicant's version of events, that what had occurred near the day care centre was pursuant to a suicide pact. The judge rejected that account put forward by the applicant as fiction. 12 His Honour found the offence was both premeditated and planned and there could be no challenge to that finding. It emerged that the applicant had acquired the weapon shortly after coming back to Australia in 1998, that he had a number of bullets in his possession in the car, and that there were some of these bullets in the weapon. From the outline of facts previously stated it is apparent that the applicant had planned that what was to occur was to occur at the time and place where these offences were committed. 13 The applicant was born on 7 April 1955 so that he was forty-two years of age at the time of the commission of these offences. There was the one child of the marriage. His Honour found that the applicant had a mental disorder categorised as a bi-polar disorder and his Honour found that this may not have been diagnosed or properly treated whilst he was living in England and prior to the commission of these offences. 14 The applicant had no criminal record, although a feature of the relationship between the applicant and the complainant was that there had been earlier episodes of violence; but, as his Honour observed, none of these appear to have led to any charges being laid. 15 The applicant remained in custody from the time of his arrest on 5 February 1998 and his bi-polar disorder was found by his Honour to be under control with appropriate medication. Dr Clark, psychiatrist, assessed the applicant at Long Bay Prison on 13 May 1998 and categorised the bi-polar disorder as a chronic condition which required regular psychotherapy. He considered the prognosis for this type of disorder was good provided the applicant kept on his medication and submitted to appropriate supervision of a medical kind. His Honour found the disorder at the time of sentencing to be under control with appropriate medication and he also remarked that the applicant had joined an Alcoholics Anonymous group or a drug and alcohol counselling group in prison, that he had re-established contact with the complainant and their son, and that the complainant and their son were visiting him in custody on a regular basis. 16 His Honour found there was a lack of contrition by the applicant for what he had done, that he had no insight into the enormity of his conduct towards the complainant, and that he posed "a real and serious threat to her". The judge did say that he took into account the utilitarian effect of the plea and the time and cost of the trial that was saved by that plea. 17 Against that background I consider the grounds advanced by Mr Boulten of counsel as to why leave should be granted and as to why the sentence should be disturbed. Four matters have been advanced: firstly, that his Honour gave insufficient weight to the applicant's psychiatric condition and to the improvement in that condition about which there was evidence before his Honour; secondly, that he gave insufficient weight to the fact that no injury was suffered by the complainant; thirdly, that his Honour gave insufficient weight to the plea of guilty; and fourthly, that the sentence was manifestly excessive. 18 I am not persuaded by those submissions notwithstanding the skill with which they were presented before this Court. 19 His Honour was alert to the applicant's psychiatric condition, to which he referred more than once in the sentencing remarks. That the applicant was, as his Honour found, suffering from some such condition at the time this offence was committed, did not require his Honour to ignore any consideration of deterrence altogether. 20 The existence of the disorder was a relevant factor to be balanced with other considerations. Amongst those other considerations in this particular case was, that what the applicant did was both premeditated and planned so that the applicant was fully aware of what he was doing. That he was fully aware of what he was doing was a matter that bore upon the significance of the particular mental disorder in this case. 21 I refer to Channells (unreported, NSWCCA, 30 September 1997, and the judgment of Hunt CJ at CL at p 14). In that case, considering the significance of a particular mental disorder, the Chief Judge made these remarks concerning the accepted principle that general deterrence should ultimately be given very little weight where the offender suffered from a mental disorder: "Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the 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 of adult intellectual capacity 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 an 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 ." (Emphasis added) 22 I do not consider that there is any substance in the submission that the applicant was given insufficient allowance for the fact that the complainant had not been harmed. It is indeed fortunate that the complainant was not harmed, but had the complainant been harmed then the offence would have been even more serious. It was not the applicant's conduct that saved the complainant from harm, rather, as the Crown has observed, it was that the complainant's defensive actions prevented the applicant from harming her. There was no change of mind or intent on the part of the applicant. 23 Nor has it been established in my opinion that the judge gave insufficient weight to the plea of guilty. The applicant was sentenced before the decision in Thompson (2000) 49 NSWLR 383 and his Honour did not express what discount he gave for the plea, but he did expressly say that he was taking that plea into account. However, it is also to the point when considering this feature of the case, that his Honour made the finding to which I earlier referred, as to the absence of contrition and the absence of any insight into the enormity of what he had done. 24 Mr Boulten has referred this Court to statistics which would indicate that this sentence was towards the upper end of the sentencing range. However, I am not persuaded by reference to those statistics that this sentence was manifestly excessive. A feature of particular relevance, it seems to me, was the degree of pre-planning that there was in relation to this offence. 25 The Crown drew attention to the decision of this Court in Vulic [2000] NSWCCA 295. The offender in that case attempted to shoot a solicitor who had acted for the offender's brother in a family law dispute. The offender and his intended victim struggled over the gun and the intended victim and people nearby, who came to the intended victim's aid, were able to subdue the applicant. No shot was fired. The offender in that case was suffering from a condition of paranoid schizophrenia and Mr Boulten distinguishes that case by reason of the fact the condition suffered by that offender was untreatable. In Vulic the court disturbed a sentence of twelve years and upon re-sentencing sentenced the offender to a minimum term of seven and a half years and an additional term of two and a half years. 26 No two cases are the same and one cannot draw too much from the features of Vulic's case. Ultimately one has to decide whether the sentence imposed in this case was within the range. Harsh though the sentence was, I consider it was within the range having regard to all the objective and subjective features of this case. 27 For these reasons whilst I would grant leave to appeal, I am of the opinion the appeal should be dismissed. 28 BARR J: I agree. 29 STUDDERT J: The orders of the Court will be those I have proposed. **********