New South Wales Court of Criminal Appeal CITATION : Regina v Flavell [2002] NSWCCA 220 FILE NUMBER(S) : CCA 60378/01 HEARING DATE(S) : 3 June 2002 JUDGMENT DATE : 3 June 2002 PARTIES : Regina v Rodney Sean Flavell JUDGMENT OF : Greg James J at 1; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0908 LOWER COURT JUDICIAL His Honour Judge Finnane QC OFFICER : COUNSEL : Applicant - C.B. Craigie SC Crown - P.E. Barrett SOLICITORS : Applicant - M. Churchill Crown - S.E. O'Connor CATCHWORDS : Severity appeal - direct relationship between offences and applicant's mental disorder. LEGISLATION CITED : Crimes Act 1900, s112(2) CASES CITED: R v Engert (1998) 84 A Crim R 67 R v Letteri (unreported, CCA, 18/3/92) DECISION : Application for leave to appeal granted; appeal allowed; for orders see pars 31-33. IN THE COURT OF CRIMINAL APPEAL 60378/01 GREG JAMES J CARRUTHERS AJ Date REGINA v Rodney Sean FLAVELL Judgment 1 GREG JAMES J: I would ask Carruthers AJ to deliver the first judgment. 2 CARRUTHERS AJ: Rodney Sean Flavell seeks leave to appeal against sentences imposed upon him by his Honour Judge Finnane QC in the Sydney District Court on 25 May 2001. On 2 February 2001 the applicant pleaded guilty to an indictment containing two counts. Firstly, a count of aggravated break, enter and commit felony, namely assault occasioning actual bodily harm whilst armed with an offensive weapon, pursuant to s 112(2) of the Crimes Act 1900 as amended (hereinafter the Act). This offence carries a maximum penalty of twenty years imprisonment. The second count was one of aggravated break, enter and commit a felony namely affray whilst armed with an offensive weapon, pursuant to s 112(2) of the Act. His Honour was asked to take into account one count of malicious damage on a Form 1. 3 On 25 May 2001 his Honour sentenced the applicant on the first count to imprisonment for six years and five months, commencing on 5 December 1999 and expiring on 4 May 2006 and fixed a non-parole period of three years and six months commencing on 5 December 1999 and expiring on 4 June 2003. 4 With regard to the second count, his Honour sentenced the applicant to imprisonment for four years and nine months commencing on 25 May 2001 and expiring on 24 February 2006 and fixed a non-parole period of two years commencing on 25 May 2001 and expiring on 24 May 2003. Thus the earliest date upon which the applicant will be eligible to apply for release to parole is 4 June 2003. 5 When sentencing the applicant his Honour made no reference to the offence on the Form 1. 6 The applicant was born on 13 October 1967. 7 He has had a somewhat unsettled life which involved excessive drinking and, at times, ingestion of narcotic drugs. 8 Prior to the subject offences he had been living in a de facto relationship for some six years and there are three children from that relationship. The relationship was characterised by constant strain and volatility due to various factors. 9 His prior criminal history includes offences in 1986 for driving; malicious injury and assault in 1987; drive manner dangerous in 1988 and malicious damage in 1990. He had not been sentenced to a prior full time custodial sentence. 10 For present purposes, It is convenient to refer to the facts as summarised by his Honour in his remarks on sentence (at pp 2 to 5) of the transcript: "The circumstances are set out in the agreed facts and summarising those facts and the statement which I have read, it could be said that the prisoner had a very good friend, Mark Hall. They had grown up together and Mr Hall had married his sister. Originally all three were close but some years ago there was a falling out between them. Neither the prisoner in his statement to me, nor Mr Hall from what he told the police or in his statement, could clearly explain what it was that caused them to fall out. But, something more than 12 months before 5 December 1999, Mr Hall and his wife had taken and obtained an apprehended violence order against the prisoner. By 5 December that had expired by a month or so. The fact that that order had been obtained indicates that the relationship between them on 5 December was far from good. On that evening the prisoner had been drinking. He had been with his de facto to a nightclub. They arrived home early in the morning and he indicated, by picking up a piece of rope, that he intended to hang himself. He then went to a garage and put the rope around his neck. He then apparently said to her 'I have had enough of this. I am going to kill Mark and Kylie', they being the two victims, his sister and brother-in-law, and announced he was sick of life. He then rang the police and [then] abused the police. He then quietened down and after saying he was going to kill Kylie and that will teach them, he took leave of his wife and a young daughter and said 'Daddy loves you and I am sorry you won't be seeing me for a while'. That turned out to be prophetic. At 5.15 in the morning whilst he was in a quiet mood he took a taxi to the house in which his sister and brother-in-law lived. He then picked up a three metre long piece of wood and smashed the rear of a motor vehicle which was parked in the driveway. He then went around the house and smashed a bedroom window. He left the piece of wood sticking through the window. All this activity of course would have caused considerable terror to those who were inside the house already. He then went to the front door, bashed and kicked at it and Mr Hall came out. His wife phoned 000. I have heard the 000 phone call. It is quite clear during that phone call she was quite hysterical. She could not be blamed for this because her brother, the prisoner, was carrying a large carving knife over his right shoulder and was lurching at a security door hacking at it with a knife and making threats that he was going to kill her and in fact kill everyone in the place. Mr Hall ran to his bedroom and got a baseball bat. Eventually the prisoner smashed through the security door. He came up to the doorway towards Mr Hall and started stabbing at him. As he did, he tripped and the knife struck part of the door and snapped. He bell through the broken doorway whilst still holding the broken handle of the knife with a small portion of blade attached to it. Mr Hall used the baseball bat in an attempt to defend himself and he was cut around his right-hand near the knuckles by the prisoner when the prisoner was frantically trying to hit at him with the knife. Mr Hall hit the prisoner in the rear of the head and grabbed his arms and attempted to restrain him. Mr Hall got further injuries because of his struggle. Mrs Hall picked up the baseball bat and hit the prisoner in the back of the legs to subdue him. The police came and the ambulance attended to the prisoner and was taken away under police escort to Sutherland Hospital. I might add that Mr Hall, having hit the prisoner, attempted to stem the flow of blood to his head. Mr Hall suffered the further indignity of being interviewed by the police as a possible suspect because of injuries received by the prisoner. He satisfied them as he satisfies me, from my looking at the interview, that all he did was done to defend himself and his family. In no sense could it be said that he tried to revenge himself on the prisoner by bashing him or injuring him. These events caused considerable trauma to Mr and Mrs Hall. Not only did Mr Hall suffered physical injury, he also suffered psychological injury and has been diagnosed as suffering from post traumatic stress disorder. Mrs Hall has also been diagnosed as suffering from that. Both of them have had their lives interfered with in considerable ways as a result of these events. I have read what is tendered as a victim impact statement. In this situation I intend to take that into account because it is not merely a statement by the victims as to how they were effected (sic), it is in fact a psychological survey of them which shows the injuries they received. Because of the way in which it is set out and the fact that it is a scientific document, I propose to take it into account. I am satisfied that these events caused both of them considerable trauma and upset. Mr Hall has expressed considerable upset not just about the events on the night but the fact that his best friend could be the perpetrator of these offences and would put him and his family in such fear and for reasons that he cannot understand." 11 His Honour had before him a report of Dr Christopher Lennings, a psychologist attached to the Department of Behavioural Sciences, Faculty of Health Science of the University of Sydney. That report was dated 27 March 2001. I quote as follows from pp 5 and 6 of Dr Lennings' report: "In summary, Mr Flavell appears to suffer from a characteristic disorder of personality which is dominated by inability to trust relationships, to show erratic and unstable behaviour from time to time, and to demonstrate impulsive and self-destructive behaviour. He shows fluctuations of this disorder, with periods of higher functioning that deteriorate when he is faced with relationship conflicts. He is not currently depressed, although he clearly has been severely depressed in the past. It is likely that his current medication is effectively managing his underlying mood disorder. Formulation . Mr Flavell is a man of good average intellectual skills who reports a history of severe depression, alcoholism, and personality dysfunction. Although his history suggests increasing attempts to manage a more mature level of functioning as he has aged, his sensitivity to mood disorder and alcohol is central to his current predicament. Mr Flavell's offence appears to have arisen out of a long standing feud with his younger sister and her partner, his forme best friend. Mr Flavell appears to feel genuine regret about his actions. Mr Flavell's behaviour appears to be a direct expression of the intersection of four influences. These are: 1. His longstanding sensitivity to, and loss of control, when using alcohol. 2. His underlying depression, which at the time of the offence appears to have been pervasive and severe. 3. His critical and dysfunctional approach to relationships, and perceiving them as hostile, threatening and untrusting. 4. The recent pressures acting on his life at the time from the aftermath of his period of unemployment. These pressures included his need to work extended overtime periods which contributed to his weakened physical condition. Recommendations . Should a non-custodial sentence be applied, it appears to me that Mr Flavell would make a good adjustment to community living providing the above risk factors were addressed. To do so, I recommend that: 1. Mr Flavell continue to receive psychiatric treatment. This should take the form of continuation of the anti-depressant medication to combat the depression, and continuation psychotherapy to help him resolve his characteristic and dysfunctional responses to perceived relationships. 2. Continuation of his employment which will help structure his time, provide a supporting and rewarding environment and allow his (sic) to develop a sense of self-esteem. 3. Should he return home it would appear advisable that Mr Flavell and his partner seek counselling. Subsidised counselling can be obtained from Relationships (Australia (among others) and the appropriate referral should be made. Should his partner decline to attend counselling, Mr Flavell should continue to seek guidance about his relationship and his behaviour within it. 4. Since Mr Flavell will have significant financial problems when he is released, referral to a financial counsellor for advice would also be helpful. 5. Mr Flavell's risk for continued alcohol abuse is minor. None the less, some supervision of his risk in this regard should be maintained. Mr Flavell could usefully discuss any problems he might have with alcohol with his treatment provider. It is likely that treatment for Mr Flavell will be quite long term. Mr Flavell appears highly motivated to seek such treatment, however, some supervision of his efforts in this regard would be helpful." 12 An issue arose during the proceedings on sentence whether the actions of the applicant could be understood in terms of the combination of alcohol and an underlying condition of depression or whether the relevant acts were solely attributable to alcohol intoxication. 13 I shall not refer to the full transcript of the dialogue between his Honour and Mr Johnson, who appeared for the applicant before his Honour. His Honour made it clear however that in his view the applicant's big problem in life was alcohol. His Honour said: "It is not depression although depression may be there as a consequence of the fact that he is in gaol and probably not feeling [terribly] good about it." 14 Mr Johnson sought to rely upon the four factors referred to by Dr Lennings which I have quoted above, which factors, in Dr Lennings' view, influenced the applicant's criminal behaviour. 15 However, his Honour responded: "It all goes back to alcohol. I don't care what Dr Lennings said. He is not a psychiatrist, has no medical qualification and no reason for me to accept his opinion about someone suffering from medical depression. The big problem is the fact that your client drinks and would not do anything about it. Why else would he destroy relationships with his best friend and sister. It couldn't be a dispute over a vacuum cleaner to cause such violence." 16 Counsel for the applicant in this Court contended that his Honour erred in rejecting the views expressed by Dr Lennings because he had no medical qualifications. Mr Barrett, on the other hand, appearing for the Crown, submitted that his Honour was perfectly entitled in law to approach the evidence of Dr Lennings in the manner in which he did. 17 In the events which have happened, so far as this application for leave to appeal is concerned, it is not necessary for the Court to resolve the conflicting submissions that have been made by counsel in this regard. A key aspect of the appeal to this Court is that his Honour did not have before him (because it was not provided to him by the applicant's legal representatives at the time) a copy of a report by Dr Christopher Blackwell, consultant psychiatrist, dated March 30, 2000. That report was prepared at the express written request of the applicant and for use in the subject case when it was before the Central Local Court and presumably before the District Court when the matter proceeded to the higher jurisdiction. 18 Dr Blackwell is a visiting medical officer at the St John of God Hospital in Burwood and has had repeated contact with the applicant. He stresses in his report that he is the applicant's treating psychiatrist and his report is to be understood in that context. I am able to quote, in dealing with this application for leave to appeal, from Dr Blackwell's report because Mr Barrett of counsel for the Crown, with his customary fairness and frankness has agreed to this Court considering Dr Blackwell's report in the resolution of this application, albeit it was not placed before his Honour. The fairness of the Crown in that respect is to be commended. 19 Dr Blackwell first saw the applicant in mid 1998 and reviewed him on fourteen occasions prior to the date of the report. The applicant was referred to him by a general practitioner for the management of long term depression, anxiety and anger. This had been exacerbated by his perilous economic position and the strains associated with raising three small children, including twin boys. 20 Dr Blackwell reported that the depressive illness had resulted in previous suicide attempts, chronic feelings of worthlessness and hopelessness and made the resolution of his external difficulties difficult or even seemingly impossible. 21 He said that the applicant had become preoccupied with the disagreement between himself and his sister and brother-in-law. This was associated with rejection by his sister and her husband who was his former best friend. Dr Blackwell said in his report: "On this background, his level of rage and impulse control is markedly affected by his occasional substance abuse. It is my opinion that this has a great deal to do with the actual commission of his offence. In this context I would see his alleged offences as a desperate attempt to resolve his conflicts and free himself from his internal pain even if this meant suicide. I would see his actions as almost asking to be heard or killed because he could see no other escape and no other way to make his own children safe. The behaviour exhibited in the alleged offences was not rational but I am uncertain as to whether he was actively delusional at the time. This remains a distinct possibility. Mr Flavell requires ongoing anti-depressant medication; regular psychotherapy and substance abuse counselling based on an abstinence model. He is unlikely to receive any of this in gaol. If his clinical picture when I previously saw him and that described by Dr Davies remains consistent, he is at high risk of suicide. Mr Flavell, his young family and the community would derive some benefit from a closely monitored programme with appropriate support, sanctions and review." 22 Dr Blackwell had prescribed anti-depressants and sedatives for the applicant. Dr Blackwell's prognosis was that the applicant has a serious long term illness that dramatically increases his risk of dying by suicide and he will remain chronically miserable if untreated. His diagnosis was that he suffers certainly from a major depressive disorder with significant anxiety. This has been complicated by recurrent substance abuse, in particular alcohol and marihuana. 23 Psychiatrically, Dr Blackwell said the applicant will require ongoing psychotherapy and medication. He thought that this was unlikely to occur in the prison situation and without this the applicant was at considerable risk of suicide. Dr Blackwell concluded: "Mr Flavell would benefit from a closely monitored programme of support, both emotional and practical with stringent sanctions for non-compliance. This could be administered by probation with additional and ongoing treatment and support both on the psychiatric and substance abuse fronts. He should remain absolutely abstinent. He and his family should receive whatever could be made available to assist them in raising their children and ensuring their ongoing safety." 24 This report by Dr Blackwell does, of course, reinforce the views expressed by Dr Lennings and adds to their cogency. It also explains the psychological dynamics of the applicant's conduct at the time of the commission of the subject offences. It establishes, in conjunction with Dr Lennings' report, very strong subjective circumstances to be weighed against the serious objective circumstances and the element of deterrence required to be taken into account when sentencing for matters such as the present. 25 One must conclude, I respectfully think, that if his Honour had been provided with a copy of Dr Blackwell's report, together with the transcript of the evidence which Dr Blackwell gave before the Local Court on a bail application, his Honour would have taken a different view to the report of Dr Lennings and indeed evaluated the applicant's conduct in a different light to that expressed in the remarks on sentence. 26 Two other grounds of appeal were argued but in the light of events that have happened it is not necessary for this Court to consider them. Now that the Court has before it the report of Dr Blackwell, to which I have referred and the transcript of his evidence, it leads this Court irresistibly, in my view, to the conclusion that it must intervene. 27 Again, by agreement, a further report of Dr Blackwell has been put before this Court in the event that the question of re-sentencing should arise. It is dated 31 May 2002. It repeats much of the material that was in the earlier report. It does record that whilst in custody the applicant has had the benefit of helpful supervision of his psychiatric condition and been provided with appropriate medication. So beneficial has this been that in his last-mentioned report Dr Blackwell expressed the view that the applicant was currently in remission so far as his depression is concerned and should remain so with ongoing treatment. The Department of Corrective Services should be commended for the fact that it has made available to the applicant over the period of his incarceration the kind of treatment and medication which he required. 28 We have also been provided with material which indicates that the applicant has done all that was apparently within his power to attempt to rehabilitate himself whilst in custody. He has participated successfully in a considerable number of courses which the Department made available to him. 29 It is now well established that where there is a direct relationship between a mental disorder and the commission of the subject offence, deterrence is a factor which should be given relatively less weight because the offender is not an appropriate medium for making an example to others: see R v Letteri, (unreported, CCA 18 March 1992), and more recently R v Engert (1998) 84 A Crim R 67. 30 The subject offences were serious and I consider, even allowing for the strong subjective circumstances, that the head sentence imposed by his Honour in relation to the first count was appropriate. I would propose that the application for leave to appeal be granted and the appeal allowed. 31 In relation to the first count, I would confirm the head sentence of six years and five months to date from 5 December 1999. I would, however, propose that the other orders made by his Honour be quashed and in relation to the first count there be a non-parole period of two years and six months to date from 5 December 1999 and to expire on 4 June 2002. I would propose that the offence on the Form 1 be taken into account in relation to the sentence on count 1. 32 As to the second count, I would propose a sentence of two years and six months to date from 5 December 1999 and to expire on 4 June 2002. In view of the fact that that sentence would be served concurrently with the sentence imposed on the first count, I would propose that no non-parole period be fixed. Thus, the applicant would be eligible to apply for release to parole on 4 June 2002. 33 I propose a recommendation that, upon his release to parole, the applicant be subject to the supervision of the Probation and Parole Service and that he submit himself to such treatment as Dr Blackwell, or a psychiatrist nominated by him, should recommend. 34 GREG JAMES J: I would agree with the orders proposed by his Honour and with the reasons therefor. The judgment of the Court shall be as proposed by Carruthers AJ. ********** 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.