New South Wales Court of Criminal Appeal CITATION: Forrest v R [2009] NSWCCA 11 HEARING DATE(S): 4 December 2008 JUDGMENT DATE: 12 February 2009 JUDGMENT OF: Hodgson J at 1; James J at 27; Price J at 28 DECISION: (1) Application for leave to appeal against sentence granted. (2) Appeal against sentence dismissed. CATCHWORDS: CRIMINAL LAW – Application for leave to appeal against sentence – Charge of murder – Plea of guilty to manslaughter accepted on the basis of provocation – Whether sentencing judge erred in not taking account of psychiatric case and element of defence of another person – Whether sentence manifestly excessive. CATEGORY: Principal judgment CASES CITED : R v Alexander (1994) 78 A Crim 141 Green v The Queen (1997) 191 CLR 334 PARTIES: Mark Allan FORREST (Applicant) REGINA (Crown) FILE NUMBER(S): CCA 2007/2528 COUNSEL: T GAME (Applicant) L BABB SC (Crown) SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 1696/2007 LOWER COURT JUDICIAL OFFICER: Studdert AJ LOWER COURT DATE OF DECISION: 4 April 2008 LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 301 IN THE COURT OF CRIMINAL APPEAL CCA 2007/2528 SC 1696/07 HODGSON JA JAMES J PRICE J 12 FEBRUARY 2009 FORREST, Mark Allan v R Judgment 1 HODGSON JA: This is an application for leave to appeal against a sentence imposed by Studdert AJ on 4 April 2008. The sentence imposed was for the offence of manslaughter committed on 26 January 2007; and it was a non-parole period of five years nine months to date from 27 January 2007 with a balance of term of one year nine months, making up a total sentence of seven years six months. The non-parole period expires on 26 October 2012, and the head sentence expires on 26 July 2014. 2 The applicant stood trial in the Supreme Court at Newcastle on 18 February 2008, before his Honour and a jury, charged with murder. He offered to plead to manslaughter when arraigned, but his plea was not accepted. After the trial had proceeded for a day and a half, the prosecutor accepted the plea. The applicant was re-arraigned, he pleaded not guilty on the indictment to murder but guilty of manslaughter; and the plea was accepted and the jury discharged. 3 In subsequent exchanges, it was indicated to the sentencing judge that the Crown had accepted the plea to manslaughter on the basis of provocation. 4 The facts of the offence are set out as follows in the judgment of the sentencing judge: [3] The victim of the crime here to be considered was Brett John Crittenden. He suffered fatal injuries when stabbed by the offender on the night of 26 January 2007. The stabbing took place in the grounds of a private residence at 52 Elsiemer St, Long Jetty. The offender stabbed the deceased using a kitchen knife, with a blade some 21 centimetres long and with a handle approximately 13 centimetres long. After the stabbing the deceased was taken by ambulance to Gosford Hospital, where he died. [4] A post-mortem examination was carried out on 28 January 2007 and this led to the preparation of a report from Associate Professor Lyons, dated 14 May 2007 in which the author recorded his post-mortem findings and it is convenient to refer to these findings. The doctor found four areas of wounding. There was wounding to the axilla, the back and the temple areas, but the wounds there were superficial and the doctor opined, and I accept, that they did not significantly contribute to death. The significant wounding was to the abdomen and I record the doctor's findings concerning the wounding in this area: At post mortem, it was observed that this man had a stab wound to the front of the abdominal wall on the left lower side. This wound ran almost vertically downwards from front to back and extended through duodenum, jejunum, bowel and mesentery and had transacted both the portal vein and superior mesenteric artery. This had resulted in extensive haemorrhage into the upper gastrointestinal tract, the retroperitoneal space and the abdominal cavity. This was considered to be the wound which led to death, and the pathophysiological mechanism of death was hypovolaemic shock secondary to acute blood loss . (Emphasis added) [5] The post mortem findings reviewed above were not challenged and I accept them. I find that the cause of death was as expressed by Associate Professor Lyons and that the offender was responsible for all the stab wounds described. [6] The premises where the deceased met his death were owned by a man named Darren Taylor. At the time of the killing the offender was living at that address. Present at the address when the offender stabbed the deceased was Karen Crittenden, who was in a relationship with Darren Taylor. Karen Crittenden had been married to Jon Crittenden, the deceased's brother. That marriage had failed by 2000 and thereafter Karen Crittenden formed a relationship with the deceased. That relationship came to an end to be followed by the relationship with Darren Taylor, which had been on foot for some two years by the time the deceased met his death. [7] On the night of the 26th of January 2007 Darren Taylor was absent from his home, but Karen Crittenden was there and staying overnight. Karen Crittenden gave evidence before the offender's plea was accepted, and I accept her evidence as I now summarise it. [8] This witness was disturbed as she lay in bed by the arrival home of the offender, who announced that he had brought a friend, Brett, home with him and he sought Karen Crittenden's permission to play some music. Thereafter Karen Crittenden went out to see the offender and his companion and she recognised the companion as Brett Crittenden, the person with whom she had had the previous relationship. Karen Crittenden made it plain that her former de facto husband could not remain in the house and the offender asked him to leave. The deceased was unhappy to do so, but he did leave the house. However he did not leave the grounds. The evidence given by Karen Crittenden established that after the deceased left the house he became really angry, seemingly because he had been asked to leave. He invited the offender to leave the house and to go out to where the deceased was in the driveway, so that he could fight him. According to Karen Crittenden the offender expressed reluctance, saying he did not want to fight. However, the offender did join the deceased and there was some pushing and shoving, neither man losing his footing or being hurt. [9] Karen Crittenden gave evidence that she sat on the landing at the top of the steps into the house and it was from this point that she observed what thereafter occurred. This witness said that the deceased came up to her and put his face close to her, leaning forward with one foot still on the ground and the other on the bottom step. He said to her, "I'll stab you" and repeated the threat three times. He was clutching a can of bourbon in one hand and holding onto the railing beside the steps with that hand, whilst with the free right hand he pointed his right index finger at her. The witness became aware that the offender passed her on the steps and went into the house. Her evidence was that the deceased was still in the position earlier described and shouting at her when the offender reappeared. Karen Crittenden saw the offender make a movement with his right hand and make contact with the deceased. When he drew the hand back the witness saw that the offender was holding a knife and the deceased touched his stomach and said, "I've been stabbed". The witness saw the deceased turn his back on the offender, who thereupon stabbed him again in the vicinity of the left shoulder blade. After the deceased fell the offender said, "I love you Karen and no one threatens my mate's missus and gets away with it" or words to that effect. [10] The offender promptly admitted to the police he had stabbed the deceased. He told police at the scene: "I stabbed him. He was going to stab the lady. I got in first. I stabbed him straight up the guts twice." Later whilst in the dock at the police station, following his arrest, the offender volunteered a further admission as to his responsibility for the stabbing. [11] The evidence discloses that before the deceased and the offender arrived at the premises at 52 Elsiemer St they had been drinking together at the Long Jetty Hotel. [12] The offender apparently invited the deceased back to the residence and there is no reason to doubt that his intention in doing so was to have a drink there with the deceased and to listen to some music. The offender had been drinking a great deal, but Dr Giuffrida was dismissive of the significance of this in the report to which I shall shortly refer. This was because of the offender's heavy use of alcohol leading to high tolerance to alcohol. I heed Dr Giuffrida's opinion to this effect. 5 The sentencing judge noted the following: [15] I am asked to proceed to sentence the offender upon the basis that his crime is that of manslaughter by reason that his conduct in killing the deceased was committed under provocation. This was the basis upon which the Crown conveyed its willingness for the acceptance of the plea proffered by the offender and Ms Davenport, has addressed her submissions to the Court, on the basis that the crime committed was manslaughter by reason of provocation. [16] It follows from this that the offender is to be considered to have acted at least with intent to cause grievous bodily harm. Indeed his conduct in stabbing the deceased in the manner in which he did compels the conclusion that the offender acted with that intent. The Crown very properly did not invite the Court to find that the offender acted with intent to kill. I find on the evidence that the offender stabbed the deceased with the intention of causing him grievous bodily harm. 6 He then recorded features of the applicant's background: [18] The offender was born on the 15th of April 1958. He was the eldest of four children and to Dr Allnutt, who examined him in September 2007 he described his father as a difficult man and he gave a history of being exposed to some physical violence by his father. The offender left school at the age of 16 years having finished Year 10. He did work principally of an unskilled nature thereafter and appears to have worked spasmodically until 1986, from which time he was on a disability support pension. To Dr Giuffrida he gave a history of a spinal injury with resultant disability and this may be the basis for the disability pension, although this is by no means clear. [19] The offender was involved in a number of failed relationships and was in an unsettled relationship at the time of the commission of this crime. The offender attributed his failed relationships to his alcohol dependence. [20] The offender has a criminal record, which extends back to 1977. It is not a grave record: it contains offences of dishonesty and in 1978 a sentence of imprisonment was imposed for a stealing offence. Otherwise however, his offences appear to have been dealt with by way of recognisance or fine and in 2004 the offender was disqualified from driving for a period of three years. Significantly for present purposes, the only real offence of a violent type resulted in a conviction for assault in 1984. For that offence a monetary penalty only was imposed. [21] The offender's record is not such as to be regarded as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act . [22] There was an event in Perth on 1st July 1978, which resulted in the offender becoming the recipient of a bravery award in January 1979. Material has been placed before the Court by way of newspaper reports as to what occurred (Ex 2). In addition, a copy of the media statement published in conjunction with the award by the Australian Honours and Awards Secretariat on 18th of January 1979 is attached to a letter of Deborah Bowden, dated 19 October 2007 (part of Ex B) and this reads as follows: Mark Forrest, 8 Kinkuna Street, Busby, NSW On 1 July 1978 at about 9.30 p.m. Mr Forrest witnessed a fight between two men on a street corner in Perth, Western Australia. The assailant was armed with a knife and had already inflicted severe wounds on the victim, who later died as a result. Mr Forrest went to the aid of the victim and grappled with the attacker, who then menaced him with the knife before breaking loose and running off. Although slightly injured himself, Mr Forrest gave chase but the assailant escaped. Mr Forrest displayed considerable bravery in attempting to defend the victim and apprehend his attacker. [23] This was a noteworthy episode which assumes significance in the present context having regard in particular to the psychiatric assessments carried out by Dr Giuffrida and by Dr Allnutt. The content of the reports of these psychiatrists bears upon the issue of provocation, and the reports call for close attention. 7 The sentencing judge considered reports of Dr Giuffrida and Dr Allnutt, and he concluded: [31] On either expert view the episode in Perth in 1978 bore upon the offender's conduct on the 26th of January 2007 and however his disorder be labelled, the offender had a disorder directly relevant on the issue of provocation. 8 The sentencing judge then referred to the evidence of Karen Crittenden: [32] Karen Crittenden impressed me as a truthful and generally reliable witness and in her evidence described conduct by the deceased relevant to the issue of provocation: (i) the witness described the deceased as appearing to be angry when he invited the offender to join him outside the house to fight him; (ii) according to the witness, the deceased remained angry after the offender expressed his unwillingness to fight him; (iii) the witness described the deceased's behaviour subsequently as being angry and threatening and as he leant over the witness he threatened to stab her. [33] I refer to the cross-examination of Karen Crittenden when she was asked about the content of statements made to the police at p 101: Q — And if I could ask you to go, please, to page 3 of that statement at paragraph 20? A — Yes. Q — There you say that in fact what Brett was saying to you when he was leaning over you was, "I'll stab you, don't think I won't because you know I will, I'll stab you"? A — Yes. Q — And you say further down that he repeated that threat a number of times? A — Yes. Q — And he continued saying the threat whilst Mark was inside? A — Yes. Q — And he wasn't saying that quietly, was it, he was yelling that at you? A — Yeah, he was in my face, yes. [34] Karen Crittenden said the offender was only in the house for a short time before he returned and the stabbing occurred. She said that when the offender came back outside the deceased was still in the same position leaning over her and shouting in her face. [35] I accept the evidence of Karen Crittenden as above summarised and it has a direct bearing upon the issue of provocation. 9 The sentencing judge then made the following finding of fact: [36] Having reflected upon the evidence given by Karen Crittenden and the expert assessments of the psychiatrists in this matter, I find that at the time he stabbed the deceased the offender was acting under provocation, and the offender is to be sentenced therefore for the crime of manslaughter. 10 The sentencing judge referred to the judgment of Hunt CJ at CL in R v Alexander (1994) 78 A Crim 141, and proceeded to consider in turn the degree of provocation offered, the lapse of time between the provocation and the loss of self-control, and the degree of violence displayed by the offender. 11 The sentencing judge noted that the applicant had offered to plead guilty to manslaughter four months after the commission of the crime, and he allowed a discount of 25 per cent from the sentence he would otherwise have imposed. The sentencing judge accepted that the applicant's expressions of contrition and remorse were genuine. 12 The sentencing judge referred to a number of cases in which sentences for manslaughter had been imposed, and imposed the sentence stated above, after saying this: [58] Ms Davenport submitted that I should find special circumstances because this sentence will represent the first substantial period of time that the offender has spend in custody and because the offender needs treatment for his panic and anxiety attacks identified by the psychiatrists. I am not persuaded that I should find special circumstances here. I am satisfied that the offender is not likely to offend again and that his prospects of rehabilitation are good. These of course are matters which I take into account in his favour. However, I do not consider that the offender will require a longer period of supervision on parole than that which will be provided for in the sentence I am about to impose. Moreover I do consider in all the circumstances of this case that the offender should not serve any less a period in custody than that which I am about to set. 13 The applicant seeks to rely on the following grounds of appeal: 1. The trial judge failed to assess adequately or properly the gravity of the provocation and the applicant's response to it, having regard to the applicant's own history and psychiatric conditions. 2. The trial judge failed to have regard to the fact that on the facts established this was also a case of excessive self defence. 3. By reason of the matters set out in Grounds 1 and 2 the sentencing judge erred in his assessment of the objective gravity of the offending. 4. The sentencing judge failed to have adequate or proper regard to the applicant's history and psychiatric conditions in assessing the applicant's subjective case. 5. The sentencing judge erred in failing to find special circumstances such as to bring about a reduction in the non parole period against the head sentence. 14 Mr Game SC for the applicant said that there was a single overall argument, to the effect that the sentencing judge did not fully appreciate and did not adequately take into account the combined effect of: (a) The incident which had occurred to the applicant in Perth on 1 July 1978; (b) The psychological aftermath of that incident; and (c) The particular impact that the deceased's conduct had on the applicant, in the peculiar circumstances in which the applicant found himself. 15 In written submissions for the applicant, Mr Game referred to aspects of the sentencing judge's reasons, and continued: 19. It is against that background that the findings in paragraphs [31] and [36] were made. However, important questions and issues remained unaddressed and were not accounted for, or adequately accounted for, in the findings that his Honour made when applying himself to the questions posed by Hunt CJ at CL in Alexander (here see remarks at [38]-[42]. 20. First, it is explicit from the report of Dr Giuffrida, and (it is submitted) not capable of rejection based on Dr Allnutt, that the applicant suffered a Post Traumatic Stress Disorder, a panic disorder and an associated "Dissociative Episode" which materially contributed to the applicant's perception and response to very extreme circumstances in which he found himself. 21. His Honour appears to have thought that it was not necessary to resolve how "his disorder" was "labelled" (remarks para [31]). Putting aside "labels" this subject was at the heart of the assessment of the applicant's culpability. 22. The applicant's own past history together with the mental disorders he developed associated with the earlier traumatic events, was central to an assessment of the gravity of the provocation as perceived by him (on this see Green v R (1997) 191 CLR 335) and loss of self control due to "fear" can be an expression of provocation just as much as "anger" (see Van Der Hoek v R (1986) 161 CLR 158 per Mason J at 168). In this way it also goes to the loss of self control. These are two central tenets of provocation and they should fall within the realm of the issues contemplated by Hunt CJ at CL in Alexander . 23. Yet it is apparent from the remarks (particularly at para [39]) that the only practical way in which this material was taken into account in assessing the gravity of the offending was that the applicant was to be sentenced on the basis that he was "entitled" to have the Court approach this question on the basis that the offender entertained that perception [ie, that the deceased had access to a knife by means of the use of which he was in a position to carry out his threats towards Karen Crittenden] at the time he stabbed the deceased" (para [39]). 24. It is significant also that nowhere else did his Honour, in consideration of the appellant's "subjective case", give any consideration to this mitigating history and powerful psychiatric case. 25. There is a further aspect to this subject. Early in these submissions it was noted that self defence was raised in defence counsel's opening but provocation was not raised. It is also fair to say that the defence submissions on sentence focused on provocation but not self defence. Section 421 of the Crimes Act which deals with excessive self defence and provides that self defence which is not, objectively speaking, "a reasonable response in the circumstances" as the accused "perceives them" results in guilt, for manslaughter and this is a statutory overturning of Zecevic v DPP (1987) 162 CLR 645 and reinstatement of Viro v R (1978) 141 CLR 88; see on this R v Katarzynski [2002] NSWSC 613.0. 26. Although counsel did not advance the matter as one of self defence (which would lead to an acquittal) or excessive self defence (manslaughter), the fact is that the sentencing judge's own acceptance of the applicant's history to Dr Giuffrida and Dr Allnutt amounts to a finding of "excessive self defence" or very close to it. Whether it does in fact do so is perhaps not something that must necessarily be decided here. 27. What should have been taken into account on sentence (whether or not s 421 was satisfied) was that "provocation" was not a full account of the circumstances in which the applicant found himself. There was also a very significant element of defence of another which was best described as "excessive self defence". In short, on the evidence, the applicant did believe that it was necessary to do what he did to defend Ms Crittenden even although within the words of the section the response was "not a reasonable response in the circumstances" as he perceived them. 28. In the result there has not been an adequate assessment of the applicant's culpability. The full extent of the provocation and the applicant's response to it was not properly assessed both in the context of "provocation" and "excessive self defence". The applicant's psychiatric disorders were given insufficient weight and were not properly assessed by his Honour. This same material was not considered or considered in any adequate way on the applicant's subjective case. 29. The applicant's sentence should be re-assessed and reduced accordingly. The head sentence and the non-parole periods should both be reduced. In addition, or alternatively, there should be a finding of special circumstances and a reduction down of the non parole period which is currently 76% of the head sentence. 16 In oral submissions, Mr Game submitted that the measure of gravity of the provocation must have regard to the special sensitivity of the accused: see Green v The Queen (1997) 191 CLR 334 at 372. Mr Game submitted that the sentencing judge's finding at [40] that the degree of provocation "should be assessed as significant, but by no means extreme" did not give effect to this principle, having regard to what the sentencing judge had said in the previous paragraph: [39] It is not clear precisely what the offender's perception was about the threat of the knife attack by the deceased. The offender had been with the deceased earlier in the hotel and they then went to the premises where the attack took place. The clothing worn by the deceased would not have been capable of concealing a knife: he was wearing nylon football shorts which had no pockets, and a singlet which was also without pockets. Any knife that the deceased had, if there was one, would have to have been in the backpack he was wearing. The offender gave the detailed but confused account of events to Dr Allnutt which the doctor has referred to at pp 10–15 of his report. The offender also gave the account to Dr Giuffrida about the events and circumstances leading up to the stabbing recorded by Dr Giuffrida at pp 7–8 of his report. I will not record those accounts here but the evidence does not make it clear that the offender believed that the deceased was actually holding a knife when the offender stabbed him. The deceased was not armed with a knife, and the lighting where the attack took place was good enough for the offender to have seen this to have been the case. Nevertheless the deceased was angry, he was shouting and he was threatening Karen Crittenden. In the circumstances, having regard to the psychiatric assessments, the offender is entitled to have the court approach the issue of provocation on the basis that the offender entertained the perception that the deceased had access to a knife by means of the use of which he was in a position to carry out his threat towards Karen Crittenden. Further, the offender is entitled to have the court approach this question of provocation on the basis that the offender entertained that perception at the time he stabbed the deceased. 17 Mr Game submitted that the sentencing judge did not sufficiently acknowledge the effect of the psychiatric evidence, particularly Dr Giuffrida's evidence that, at the time of the offence, the applicant underwent a dissociative episode in which he re-experienced the original traumatic incident of 1978 when the victim was stabbed and bled to death, which was superimposed on what was actually occurring before him; that the applicant suffered from Post Traumatic Stress Disorder reducing his ability to control himself; and that the applicant acted selflessly and without thinking in defence of Ms Crittenden and probably himself. 18 Mr Game submitted that the danger in which Ms Crittenden stood in his perception was a further matter of mitigation which the sentencing judge should have taken into account and did not. 19 I note that the applicant did give evidence at the sentence hearing, and that in addition to expressing his remorse, he gave only the following evidence concerning the circumstances of the offence: Q. If I could just briefly take you back to the night, you told Dr Giuffrida and Dr Allnutt that at the time that the events started unfolding, in particular when Mr Crittenden was threatening Karen Crittenden, threatening to stab her, that you had flashbacks to events that had occurred in 1978 in Perth? A. Yeah, that's correct. Q. Was that true? A. Yes. Q. When you came down the stairs with the knife and saw Mr Crittenden still standing over Karen, did you again have any flashbacks about the events that had occurred in July 1978? A. I did, yes. 20 There was no cross-examination on this evidence. 21 In this evidence, the applicant did not suggest that the history he gave to Dr Giuffrida was different from and more accurate than the history given to Dr Allnutt; and the history given to Dr Allnutt suggested that the flashbacks to 1978 did not last for any length of time and did not have a major impact on him. In submissions to the sentencing judge, the applicant's counsel made no suggestion that one history was more accurate than the other; and in my opinion there could be no error by the sentencing judge in not addressing that issue. 22 I note also that the history given to both psychiatrists suggested that at the time the applicant believed the deceased had a knife and was about to use it to stab Ms Crittenden; but the applicant did not give any evidence to that effect, and when the sentencing judge asked the applicant's counsel whether she was asking him to make a finding that the applicant had a perception that the deceased was holding a knife, the applicant's counsel responded that it was not necessary "because it's based on provocation" (presumably, referring to the finding of manslaughter and/or the submission as to the applicant's culpability). 23 Thus, the case was not presented to the sentencing judge on the basis that it was one of self-defence, or that the verdict of manslaughter was appropriate because it was a case of excessive self-defence; and in my opinion, there was no error by the sentencing judge in not addressing that issue, or in the way he addressed the issue of whether the appellant believed the deceased had a knife. 24 In my opinion also, the reasons of the sentencing judge do not suggest that he failed to have regard to the special sensitivity of the applicant, or erred in assessing the provocation as significant but by no means extreme. 25 Thus, in my opinion, no error has been shown in the reasoning of the sentencing judge, having regard to the way the matter was conducted before him; and in my opinion, it cannot be said that the result arrived at by the sentencing judge was manifestly excessive. Also, while it may have been open to the sentencing judge to find special circumstances, the view of the sentencing judge that the parole period was adequate and appropriate was one which was open to him. 26 For those reasons, in my opinion, the following orders should be made: (1) Application for leave to appeal against sentence granted. (2) Appeal against sentence dismissed. 27 JAMES J: I agree with Hodgson JA. 28 PRICE J: I agree with Hodgson JA. ********** 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.