New South Wales Court of Criminal Appeal CITATION: R v Otway [2005] NSWCCA 352 HEARING DATE(S): 17 October 2005 JUDGMENT DATE: 19 October 2005 JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 2; Johnson J at 20 DECISION: (i) leave to appeal granted; (ii) appeal upheld; (iii) non-parole period quashed and in substitution therefore a non-parole period imposed commencing on 26 May 2004 and expiring on 19 October 2005; (iv) whilst on parole applicant to be subject to the supervison of the Probation and Parole Service CATCHWORDS: Criminal law - appeal against severity of sentence - maliciously inflicting grievous bodily harm - discount for plea of guilty - special circumstances - pre-sentence report not tendered in evidence - significant error of fact. - prospects for rehabilitation Crimes Act 1900, s35(1)(b) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s44 CASES CITED: Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 (see para 13) Crown - Respondent PARTIES: Applicant - Allan William Otway FILE NUMBER(S): CCA 2005/1648 Crown - Ms J Dwyer COUNSEL: Applicant - Ms J Manuell Crown - S Kavanagh SOLICITORS: Applicant - S O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/1182 LOWER COURT JUDICIAL OFFICER: English DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1648 McCLELLAN CJ at CL ADAMS J JOHNSON J 19 OCTOBER 2005 REGINA v ALLAN WILLIAM OTWAY Judgment 1 McCLELLAN J: I agree with the judgment of Adams J. 2 ADAMS J: The applicant seeks leave to appeal from a sentence imposed in the District Court on 20 May 2005 in respect of an offence under s35(1)(b) of the Crimes Act 1900 of maliciously inflicting grievous bodily harm. The maximum penalty for this offence is imprisonment for seven years. The applicant pleaded guilty to this offence in the Local Court and adhered to his plea in the District Court. He was sentenced to an overall term of two years and four months commencing 26 May 2004 and expiring on 25 September 2006 with a non-parole period expiring on 25 February 2006. 3 The facts were not controversial. The applicant lived a short distance away from the home of the victim, whom he knew. In the morning of 26 May 2004 the victim and his de facto wife were waiting for a bus when they were approached by the applicant who was with his de facto wife and their two year old child. The applicant and the victim began to argue. The argument became heated and suddenly the applicant produced a knife from his right hand pocket, which he flipped open. The argument continued with the applicant opening and closing the blade of the knife in his hand. He hit the victim in the face with his hand. The latter's wife moved in between the men to push the applicant away. He moved around her and lunged at the victim with the knife, stabbing him in the stomach. The two men began punching one another and the applicant again lunged with the knife but the victim managed to push him away, causing him to drop it. The victim's wife stepped on the knife to stop the applicant from getting it. He managed to obtain it nevertheless and walked away towards his home. 4 The victim was treated at the scene and later admitted to the Nepean Hospital for surgical exploration. He suffered two wounds, one approximately two centimetres long over the lower right abdomen and another about three centimetres long in the left upper abdomen. Although the wounds penetrated the abdomen wall, no major organs were damaged. The blade of the knife was approximately seven centimetres long, so it was indeed fortunate that the injuries were not worse. 5 Following the incident the applicant walked to the home of a friend and was driven at his own volition to the Penrith Police Station where he spoke to police and was arrested. He admitted stabbing the victim but was unable to offer any explanation as to why he had done so. 6 Psychiatric evidence was tendered at the sentencing hearing, apparently accepted by the learned sentencing Judge, which provides some explanation for the offender's behaviour. The psychiatrist, Dr Olav Nielssen, who saw the offender at Parklea Correctional Centre on 22 March 2005 diagnosed amphetamine dependence and abuse and amphetamine induced psychosis. In the course of his report Dr Nielssen stated – "The diagnosis of amphetamine dependence and abuse is based on the history of persistent heavy amphetamine abuse and psychological and social complications of amphetamine use. Mr Otway reported abuse of amphetamine to avoid distressing mood states and also the resumption of use to previous levels after periods of abstinence. He also reported psychotic symptoms in the form of hallucinations of voices accompanied by persecutory beliefs that persisted for some months after the cessation of amphetamine on this occasion. At the time of the offence Mr Otway was affected by irritable mood as a result of recent use of amphetamine and also a heightened state of arousal produced by threatening auditory hallucinations. Although he described the offence itself as an accident, the altercation that led to the offence was largely due to the abnormal mood state arising from persistent amphetamine abuse." 7 Dr Nielssen concluded, as to current and future risk - " Mr Otway has been treated with antipsychotic medication whilst in custody and was taking the medication at the time of the recent interview. However, he reported that auditory hallucinations had abated. No delusional beliefs were elicited and there were no subjective features of an underlying schizophrenic illness at interview. Although the risk of mental illness is increased after serious head injury [which had been reported by the offender], the history suggests that the recent symptoms were largely secondary to drug abuse and there is a reasonable chance that if Mr Otway were to abstain from cannabis and amphetamine, he would not require long term treatment with antipsychotic medication. Mr Otway should consider ongoing counselling to support his reported intention to abstain from drug use and supervision in the form of occasional urine drug tests. Because of the risk of the return of psychotic symptoms, psychotropic medication should only be withdrawn under psychiatric supervision." 8 Dr Nielssen's assessment and conclusion was not controversial and, as I have mentioned, appears to have been accepted by the learned sentencing Judge. 9 It is clear that a crucial matter in the sentencing analysis was the applicant's prospects for rehabilitation. In this respect, the learned sentencing Judge said – "It is difficult to find that the offender has good prospects for rehabilitation or is unlikely to re-offend at this stage. True it is that he has stated a desire to cease taking illicit drugs but, as at February 2005, despite being in custody for nearly twelve months, he had not accessed drug and alcohol counselling. That gives me some disquiet about how genuine he is in his desire in that regard … I am not persuaded that he would benefit from a longer period on parole, having regard to his apparent lack of motivation to commence drug counselling whilst in custody and in those circumstances I decline to find special circumstances." 10 It appears that the source of the finding that the applicant "had not accessed drug and alcohol counselling" whilst in custody was based upon a sentence in a pre-sentence report which was apparently available to the Judge pursuant to an order that she had made that one should be prepared. That report contains the following – "Mr Otway continued using cannabis and amphetamines up until his entry into custody. He stated that he has not accessed Alcohol and other Drug services in custody, however stated that he is willing to participate in programmes. Mr Otway is currently on the Methadone Maintenance Programme. 11 The report also stated that Mr Otway had informed the Probation and Parole officer that he was diagnosed with paranoid schizophrenia on entry into custody and was currently being prescribed antipsychotic medication. The officer stated that this information was confirmed by clinic staff at Parklea Correction Centre. In addition, in his evidence at the sentencing hearing the applicant deposed that, since being in custody, he had started seeing a psychiatrist on a weekly basis and, as a result of the psychiatric treatment, he had commenced antipsychotic medication and was on a methadone programme. 12 A substantial difficulty presented by the use by the learned sentencing Judge of the pre-sentence report is that it appears that it was not tendered in evidence: there is no reference to it in the exhibit list; it is not referred to in the submissions or evidence and the original in the papers of the Director of Public Prosecutions, this Court was informed by counsel, contains no exhibit marking. 13 If, as seems inevitable, the pre-sentence report was not tendered in evidence, it was not legitimate for the court to rely on it for the purpose of sentence, especially to provide the basis for a significantly adverse finding. A pre-sentence report should be tendered in open court: R v Ciaston (1987) 27 A Crim R 285 at 287; Stanton v Dawson (1987) 31 A Crim R 104 at 108-110. If, as seems inevitable, the pre-sentence report was not tendered in evidence, it was not legitimate for the court to rely on it for the purpose of sentence, especially to provide the basis for a significantly adverse finding. Absent the passage in the pre-sentence report which I quote above, the only available inference – which the Crown did not seek to controvert either below or here – is that the applicant whilst in custody was undergoing regular continuing psychiatric assessment and was part of a drug programme involving, at least, the prescription and provision of both psychotropic drugs and methadone. At all events, in this context, the statement of the applicant as reported in the pre-sentence report – on the assumption that it was admitted into evidence – should have been understood as meaning only that the applicant had not undertaken drug and alcohol counselling as such. Had the learned sentencing Judge brought this issue to the attention of counsel, which with all respect it seems clear she should have done but did not, the issue would have been immediately clarified. 14 Even given the evidence about the applicant's psychiatric condition at the time of the offence, I would not be satisfied that the sentence was manifestly excessive, considering the objective seriousness of the offence involving, as it did, the persistent use of a knife to cause serious injury. However, it is in my view clear that the non-parole period cannot stand. At the least, the reasons for refusing the application of special circumstances such as to justify a reduction form the statutory calculus provided by section 44(2) was based upon a substantial error of fact, an error, moreover, which was contributed to by a significant error of law consisting of the use of a report which was not in evidence. 15 It is worth noting, I think, that although the applicant has a criminal record going back to 1985, the offences to which it relates are overwhelmingly the possession of prohibited or restricted substances although his last conviction in March 2001 was upon two counts of supplying a prohibited drug. There are other offences which do not call for mention. The important feature of the applicant's record is that his only offence of violence was in 1985 when he received when he received a s556A recognizance for assault. It appears that his present offence was indeed an aberration – the effect of the evidence of the applicant and his wife at the sentence proceedings – best explained by his psychiatric condition as described by Dr Nielssen. 16 It seems to me evident that the applicant needs continuing supervision upon his release and that supervision should be for a longer period than the application of the s44 ratio provides for. 17 Accordingly, I propose that leave to appeal be granted, the appeal be upheld, the non-parole period be quashed and in substitution therefore a non-parole period be imposed commencing on 26 May 2004 and expiring on 19 October 2005. I would order that the applicant be released to parole on 19 October 2005 and that, whilst on parole, he be subject to the supervision of the Probation and Parole Service. 18 It should be obvious from the order that I have proposed that it has been drawn in order to release the applicant to parole at the earliest available opportunity. It should not be inferred that, had this appeal come on for hearing at an earlier time I would have concluded that the same non-parole period should have been imposed. Indeed, I am of the view that the non-parole period imposed below exceeded by a significant margin what was appropriate in all the circumstances of this case. However, it does not seem that any purpose is served by determining precisely what term was appropriate. 19 One other matter calls for comment. As I have said, the applicant admitted his offence to the police when he voluntarily gave himself up to them shortly after the offence. He then pleaded guilty at the committal proceedings and adhered to that plea in the District Court. If this case did not justify the full 25% Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 discount, it is difficult to think of a case that would so qualify. Such was the submission of the applicant's counsel at the sentencing hearing. It was not argued otherwise by the Crown. Yet the learned sentencing judge gave a discount of only 22%, it appears on the basis that he had not pleaded guilty to the more serious charge under s33 of the Crimes Act 1900. I do not see how this could justify a reduction, since the Crown by accepting the plea to the lesser charge did not maintain that he should have pleaded guilty to it, nor was there any dissent from the submission made on the applicant's behalf that in relation to the charge for which he was being sentenced, he had pleaded guilty at the first opportunity. However, it is unnecessary to consider this matter further since it was not a ground of appeal. 20 JOHNSON J: I agree with Adams J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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