New South Wales Court of Criminal Appeal CITATION: Simkhada v R [2010] NSWCCA 284 HEARING DATE(S): 30 November 2010 JUDGMENT DATE: 3 December 2010 JUDGMENT OF: Simpson J at 1; Blanch J at 2; RA Hulme J at 3 DECISION: 1. Application for leave to appeal granted. 2. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - general sentencing considerations - effect of serving sentence in protective custody - effect of mental illness on sentencing - whether sentence is manifestly excessive LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment House v The King [1936] HCA 40; 55 CLR 499 Kafovalu v R [2007] NSWCCA 141 Clarke v R [2009] NSWCCA 49 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mulato v R [2006] NSWCCA 282 Quayle v R [2010] NSWCCA 16 R v Barakat [2004] NSWCCA 201 CASES CITED : R v Bloomfield (1998) 44 NSWLR 734 R v Cramp [2004] NSWCCA 264 R v Fidow [2004] NSWCCA 172 R v Jarrold [2010] NSWCCA 69 R v Van Rysewyk [2008] NSWCCA 130 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Wright (1997) 93 A Crim R 48 Wong v The Queen [2001] HCA 64; 207 CLR 584 PARTIES: Madan Raj Simkhada (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2009/36590 COUNSEL: M R Wilson (Applicant) Ms V Lydiard (Respondent) SOLICITORS: O'Brien Solicitors Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/3659 LOWER COURT JUDICIAL OFFICER: Ashford DCJ LOWER COURT DATE OF DECISION: 18 December 2009 - 1 - IN THE COURT OF CRIMINAL APPEAL 2009/36590 SIMPSON J BLANCH J R A HULME J 3 December 2010 Madan Raj SIMKHADA v Regina Judgment 1 SIMPSON J: I agree with R A Hulme J. 2 BLANCH J: I agree with R A Hulme J. 3 R A HULME J: The applicant, Madan Raj Simkhada, was sentenced by her Honour Judge Ashford in the District Court on 18 December 2009 for an offence of wounding with intent to cause grievous bodily harm. Her Honour imposed a sentence of imprisonment for 3 years 9 months with a non-parole period of 2 years 6 months. She specified that the sentence date from 5 March 2009 which was the date the applicant had been arrested and entered into custody. 4 The offence is contrary to s 33(1)(a) Crimes Act 1900 which prescribes a maximum penalty of imprisonment for 25 years. A standard non-parole period of 7 years is also prescribed in Div 1A Pt 4 Crimes (Sentencing Procedure) Act 1999. Facts 5 The victim of the offence was the applicant's wife. They are both of Nepalese nationality and had married in 2005. It was an arranged marriage. They came to Australia in September 2007, the victim on a student visa and the applicant on a spousal visa. They separated in July 2008 at which time an apprehended violence order was made against the applicant. The applicant returned to Nepal but re-entered Australia in February 2009 and lived in Brisbane for about a month. 6 On 4 March 2009 the applicant attended his estranged wife's home in Campsie. The apprehended violence order was still in force and the police were called. The applicant started to cry. He asked his wife not to have his visa cancelled. He also sought from her some money as well as his documents and clothes, telling her that he would go and live in Brisbane. The victim told the applicant that she did not have any money but gave him his clothes and he then left. 7 On 5 March 2009 the applicant returned to the home. He again asked for his documents and clothes. His wife would not let him in but agreed to talk to him outside. In the course of the ensuing discussion she told him that she did not want to be with him anymore. He became angry and pushed her to the ground saying that he would hit her. She saw that he had a piece of wood which resembled a leg of a table or chair. He hit her on the head several times with it. 8 The victim started to scream and tried to cover herself. She pleaded with him to stop, telling him that she would not let his visa be cancelled, she would agree to stay with him and would have the apprehended violence order cancelled. At this point the applicant ceased striking her. She was, however, bleeding heavily and an ambulance was called. The victim was taken to hospital and the applicant accompanied her. Police attended the hospital and spoke to her and took photographs of her injuries. 9 In his evidence before the sentencing judge the applicant said that he did not plan to assault his wife when he attended her home. He held hopes of reconciliation but he became upset and angry while talking to her. He did not bring the wooden implement with him but saw it somewhere nearby and picked it up in order to strike her. He also claimed that he had been drinking the night before, and on the day. He was not a regular drinker. He considered that this heightened his emotions and affected his ability to think clearly. He said that the incident occurred in "a matter of moments" and then he realised he had made "a big mistake", had apologised to his wife, and then went with her to hospital. 10 The victim suffered two lacerations to the occipital region of the head, one which was 8 centimetres long and the other 10 centimetres long. They were noted to be deep and required suturing. There was also an extensive subcutaneous haematoma in the occipital region, a superficial abrasion on the neck, a periorbital haematoma, tenderness to the spine and both wrists, superficial abrasions to the left shoulder, arm and hand, and a haematoma on the ulna surface. The statement of facts includes that the victim had made a complete recovery from all of these injuries. 11 The applicant was arrested and agreed to be interviewed. He denied the allegations and was charged. Despite those denials, the sentencing judge noted that he had pleaded guilty at the "first opportunity" in the Local Court. Subjective circumstances 12 The applicant gave evidence in the sentence proceedings. Further information as to his personal circumstances was available through a report of Dr Richard Furst, psychiatrist. Medical records from Justice Health were also tendered. 13 The applicant was aged 29 at the time of the offence. He has a criminal history comprising convictions for damaging property and assault in August 2008. For both of those matters he was ordered to enter into a 12 month good behaviour bond. The bond was current, as was the apprehended violence order, at the time of the offence. 14 The applicant grew up in a relatively poor village in Nepal. He said in his evidence that the village is an 8 to 9 hour bus ride and then a 10 to 11 hour walk from Kathmandu. It would seem that mental health problems emerged in 2000 following neurosurgery to decrease pressure in the brain. He had been experiencing intracerebral pressure, headaches and episodes of fainting. He told Dr Furst that he never felt the same after the operation. He was in the constant care of his family and felt depressed. There were attempts to take his own life. He was placed under the care of a psychiatrist in Kathmandu and was prescribed antidepressant medication. 15 The applicant told Dr Furst that he and his wife had been arguing about family matters whilst they were in Australia but that it came as a shock to him when she obtained the apprehended violence order in July 2008 and wanted to separate from him. He said that he was disappointed and depressed. When he returned to Nepal he again consulted the psychiatrist in Kathmandu and received weekly counselling and antidepressant medication. Dr Furst had access to this doctor's notes and they confirmed what the applicant had said. 16 After the applicant returned to Australia in February 2009 he found it difficult to obtain a job, had no money and his wife was not answering his calls. He told Dr Furst that he became depressed again and experienced suicidal ideation. He attempted to jump off a bridge. Police took him to hospital where he was given medication and remained for several days. Hospital records include notes that he was "quite depressed" and in a "hysterical state wanting to die". Sometime after he was released he obtained some work from a Nepalese organisation which allowed him to save some money to make the trip to Sydney in March just prior to the offence. 17 Dr Furst's report includes an account the applicant gave of the offence. He described being "very angry" when his wife told him that she did not want to be with him anymore and that he hit her with a piece of wood several times. He conceded that he knew that what he did was wrong and claimed that he felt sad after the event. 18 The applicant's mental state had not improved since being in custody. He remained depressed. His father passed away in August 2009. He had spent a number of periods in "safe cells", because it was felt that he was at risk of self-harm. He had been under the constant care of a psychiatrist with regular reviews of his medication. Dr Furst diagnosed the applicant as suffering from a major depressive disorder. He described the symptoms as being of a severe nature. They included depressed mood, insomnia, flat affect, tearfulness, excessive guilt surrounding his father's death, feelings of hopelessness and ongoing suicidal ideation. He required treatment with a combination of antidepressant and antipsychotic medication but had shown little response to treatment and remained at relatively high risk of self-harm or suicide. 19 Dr Furst noted that the loss of his visa meant the applicant was likely to be deported to Nepal upon release from custody. He recommended that he receive longer-term psychiatric follow-up with the psychiatrist in Kathmandu. 20 The applicant gave evidence that he accepted responsibility for his actions. He said he had made a "grave mistake"; was "truly sorry"; and sought forgiveness from everybody, especially his wife. 21 The applicant said that he had been assaulted by an inmate in early November 2009 and from that point had been held in protection. He shared a cell with another inmate and seems to have been permitted out of his cell for a reasonable number of hours on most days. Family contact, unsurprisingly, has been limited to four or five telephone conversations arranged with the assistance of welfare officers. He has been visited on two occasions by a cousin. 22 The judge accepted that the applicant was genuinely remorseful. She accepted a submission made by the applicant's representative that because the offence occurred in the context of the applicant suffering a depressive disorder it was inappropriate to give any weight to general deterrence. The judge reduced the sentence that she would otherwise have imposed by 25 per cent to reflect the utilitarian value of the early plea of guilty. Special circumstances were found for enlarging the proportion of the sentence represented by the parole period, they being that it was the applicant's "first time in custody" and "he clearly has a need for rehabilitation and he needs treatment for his mental problems". Ground 1 – The sentencing judge erred, in assessing the objective seriousness of the offence, by taking into account the fact that the applicant was subject to conditional liberty. 23 Because a standard non-parole period was prescribed for the offence it was necessary for the judge to make an assessment of the objective seriousness of the offence. 24 The sentencing remarks were delivered ex tempore. This is understandable in a busy court and particularly given that the hearing took place on Friday 18 December 2009. A consequence of this, however, is that the remarks are not as robustly structured as they might otherwise have been. 25 When the judge came to deal with the objective seriousness of the offence she proceeded in this fashion. First, there was reference to the Crown submission concerning objective seriousness. Reference was then made to the presence of aggravating factors which she said included the use of a weapon and the fact that the applicant was on conditional liberty. It is this that gives rise to the ground of appeal. Conditional liberty is not a factor that is relevant to the assessment of the objective seriousness of an offence: Kafovalu v R [2007] NSWCCA 141 at [23] – [27]; R v Van Rysewyk [2008] NSWCCA 130 at [25]. 26 However, the remarks continued with reference to mitigating factors, being that the offence was not planned and that the applicant was genuinely remorseful. The judge then referred to the plea of guilty and she announced that there would be a reduction of the sentence of 25 per cent. The next paragraph of the remarks deals with the victim impact statement. The judge then made brief reference to the applicant's minimal criminal history and the fact that he had not previously been imprisoned. 27 The judge then described the submission that had been made by the applicant's representative concerning the objective seriousness of the offence, noting that he had contended that it fell "within the lower range". She contrasted that with the Crown submission that it was "less than mid-range but not towards the lower end". 28 Next, the judge announced her finding that because of the applicant's mental condition it was "not appropriate to make this offender an example to others". Reference was made to some features of the mental condition, including that the applicant was at high risk of self-harm and required assistance to cope with his illness. She also referred to the applicant being isolated from his family and alluded to difficulties he would experience in prison for this reason, as well as because of language, cultural and religious reasons. 29 The remarks continue from that point: "In assessing the objective seriousness I have come to the opinion on an intuitive evaluation of the various factors, including the offender's state of mind, that the offence falls below the mid-range of objective seriousness and whilst not in the low range is towards the lower range of objective seriousness". 30 It is clear that the judge interspersed references to subjective matters when otherwise discussing matters relevant to the objective seriousness of the offence. I cannot reason that because she did so that she took into account any of those subjective matters in her assessment of the objective seriousness of the offence. In any event, a finding that the offence was "below mid-range" and "towards the lower range" was appropriate and is not suggestive of her Honour having taken into account any extraneous matter. 31 The Crown, in written submissions, conceded error in relation to this ground. For the reasons I have given I do not believe this concession was appropriate. In any event, there is merit in the submission then made by the Crown. That is, whilst it may have been wrong to take conditional liberty into account in the assessment of objective seriousness, it was appropriate to take it into account generally as an aggravating feature. So, in the end, any such error cannot have affected the ultimate sentence imposed. 32 In view of the Crown concession, I would grant leave to appeal. However, I would nonetheless reject this ground. Ground 2 – The sentencing judge erred by failing properly to consider the fact that the applicant had served, and would serve, a substantial portion of his sentence in protective custody. 33 The applicant gave evidence that he had been in protective custody for about six weeks prior to the sentence hearing. He said that he was allowed out of his cell for three hours of a morning and two and half hours of an afternoon. He also referred to having a cellmate, so it may be assumed that he was not in isolation. He said that he had difficulty obtaining access to courses but that was a temporary issue somehow attributable to the gaol being privatised and not to his protective custody status. 34 It was submitted on behalf of the applicant that the judge only made "passing reference" to the applicant being on protective custody, there was no mention of the conditions of that custody, and the issue had not been "properly considered". 35 The applicant bore the onus of establishing that protective custody meant that he was being held in a more onerous prison environment than the general prison population. The assumption that this is the case is no longer valid: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [179]; R v Jarrold [2010] NSWCCA 69 at [27]. The evidence I have referred to was insufficient to discharge that onus. Accordingly, there was no error in the manner in which the judge dealt with this issue. Ground 3 – The sentencing judge erred by failing to take into account the fact that the applicant was affected by alcohol at the time of the offence. 36 The applicant gave evidence that he was not a regular drinker but that he had consumed alcohol on the day of the offence, and the night before. He said that he felt this made him more emotional and affected his ability to think straight. 37 The applicant's counsel submitted that the judge was in error in not taking this into account in the assessment of the objective seriousness of the offence. 38 The judge referred to the submission of the applicant's solicitor that the offence occurred whilst the applicant was depressed and had become angry. When announcing her finding as to the offence being below mid-range (etcetera) she specifically mentioned that she had taken into account the applicant's state of mind. While she had not mentioned the evidence of alcohol consumption, it is possible she had this in mind as well as the depressive disorder. But, even if she did not, I fail to see how taking into account the effects of alcohol consumption would have had any additional and material influence on the already favourable finding that she made. Grounds 4 and 7 39 These grounds were abandoned at the hearing of the application. Ground 5 – The sentencing judge erred, in considering whether special circumstances justified departure from the statutory ratio between the term of the sentence and the non-parole period, by failing to take into account: (a) all relevant aspects of the offender's mental illness; (b) that, as a result of his serving a sentence of imprisonment in a foreign country away from his friends and family, imprisonment would be rendered harsher for him than for an ordinary prisoner; (c) that the offender had served, and would serve, a substantial portion of his sentence in protective custody. 40 The bases upon which the judge made a finding of special circumstances for the purposes of s 44 Crimes (Sentencing Procedure) Act have been set out earlier. 41 The short answer to this ground is that the judge was aware of each of the three matters. Two of them were clearly taken into account in the assessment of the overall sentence which, in itself, had a bearing on the length of the non-parole period. The third matter was not relevant (see ground 2). 42 Counsel for the applicant submitted that there were further aspects in relation to these matters that had additional relevance to the issue of special circumstances and that they warranted a greater departure from the customary ratio. 43 I accept that there may be some circumstances which, whilst taken into account in the assessment of the overall sentence, have additional features that are relevant to the length of the non-parole period, although care is needed to avoid double counting of the same matters: R v Barakat [2004] NSWCCA 201 at [30]; R v Fidow [2004] NSWCCA 172 at [18]. 44 However, a finding of special circumstances is a matter for the discretion of the sentencing judge and is a matter with which this Court will not lightly interfere: Quayle v R [2010] NSWCCA 16 at [41]. The extent of any adjustment to the statutory proportion is also a discretionary matter: Clarke v R [2009] NSWCCA 49 at [13]. In the same paragraph of that judgment McClellan CJ at CL also referred to the statement of Spigelman CJ in R v Cramp [2004] NSWCCA 264 at [31] that an adjustment for special circumstances, "raises so many matters of a discretionary character that this Court should be very slow to intervene". 45 Further, in R v Fidow, Spigelman CJ (at [22]) said that simply because there is a matter capable of constituting a special circumstance does not mean that a sentencing judge is obliged to vary the statutory proportion. So too, in my view, where there has been a departure from the statutory proportion but it is contended that there is an additional matter that might warrant a further departure. 46 In the present case I do not detect any error in the exercise of the judge's discretion in a House v The King sense (House v The King [1936] HCA 40; 55 CLR 499) that would warrant interference on this ground. Ground 6 – The sentencing judge failed to give proper consideration to the mental illness of the appellant in the following respects: (a) To what extent specific deterrence should be moderated or eliminated as a result of the offender's mental illness; (b) to what extent the appellant's mental illness might cause a custodial sentence to weigh more heavily upon him; (c) whether there was a serious risk of imprisonment having a significant adverse effect on the appellant's mental health. 47 The judge disregarded general deterrence as a relevant matter because of the applicant's mental condition. That was generous. The applicant's solicitor only asked her Honour to give the matter less weight. That would have been appropriate on account of the applicant's evidence that he knew what he was doing was wrong: R v Wright (1997) 93 A Crim R 48 at 51. 48 As to specific deterrence, the judge did not indicate whether she took it into account at all. She said that it was necessary for her "to look to the need for general or specific deterrence". She then proceeded to announce her conclusion as to general deterrence. She said nothing further on the topic of specific deterrence. This tends to suggest that she overlooked it. It would have been open to her to take it into account. The applicant had demonstrated by his conduct that he would not accept rejection by his wife. He was on a bond for having previously assaulted her (and an apprehended violence order) and this had not deterred him from approaching her and further assaulting her. 49 As to the second matter, the judge in fact did take into account that a custodial sentence would weigh more heavily upon him. She said: Clearly he is at high risk of self-harm. It is clear that he requires assistance to cope with his depressive illness. It is also clear that his time in gaol has been such that he has required assistance at various times in that he has been placed in secure cells, although this, of course, has been more onerous considering his mental state. It is clear that he needs continuing monitoring. He is isolated from his family. English is not his first language and he has cultural and religious difficulties. 50 As to the final point, the short answer is that there was no evidence upon which such a finding could be based. At its highest, Dr Furst offered the opinion that incarceration was one of a number of factors which may explain why the applicant had not responded to psychiatric care since his arrest. He did not say that there was a "serious risk" that it would have a "significant adverse effect". Ground 8 – The sentence, in particular the non parole period, is manifestly excessive. 51 Counsel for the applicant submitted that the offence was "at the lower end of the scale of objective seriousness". Six features of the offence were cited in support of this proposition. With the possible exception of alcohol consumption, they were all matters that the judge specifically took into account. Her assessment of the objective seriousness of the offence ("towards the lower range") was not markedly different from the assessment now advocated. It was a finding that was open to her Honour and one with which this Court should not interfere: Mulato v R [2006] NSWCCA 282 at [37]. 52 Next, it was submitted that there were a number of matters favourable to the applicant in his subjective case with the only exception being the conditional liberty factor. Six matters were cited in support of this proposition. They are all matters that have been dealt with elsewhere in this judgment, viz. plea of guilty; remorse; minor criminal history; mental illness; isolation from family and culture; and protective custody; and, with the exception of the last matter, were all taken into account. 53 Reference was then made to the Judicial Commission sentencing statistics. It was submitted that the sentence imposed upon the applicant falls "into approximately the middle of the lower half of the range" and the non-parole period "is closer to the middle of the range than to the lower end". 54 There are well known limitations on the use of statistics in the assessment of sentence: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59], [66] and [91]. The limitations were outlined in R v Bloomfield (1998) 44 NSWLR 734 at 739 but it was allowed that they may be useful in determining whether a sentence is manifestly excessive (or inadequate). 55 There is a very wide range of circumstances attending an offence of wounding with intent to cause grievous bodily harm, particularly in relation to the severity of the wound, the manner in which it was caused and the reason it was caused. The extent of the grievous bodily harm intended, if discernible, and any relationship between the perpetrator and the victim are further variants. Accordingly, I am of the view that considerable caution needs to be applied in considering statistics for such an offence. 56 One of the significant matters bearing upon the assessment of sentence in the present case was that the offence was committed whilst the applicant was subject to a bond and an apprehended violence order in relation to matters concerning the same victim. The statistics do not disclose whether an offender was on conditional liberty. 57 I am not persuaded by any analysis, statistical or otherwise, that the sentence imposed upon the applicant is manifestly excessive. In my view the sentence imposed fits comfortably with the finding that the offence fell towards the lower range of objective seriousness, balanced against the many subjective matters that justified an amelioration of the sentence. In short, the sentence is not unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]. Orders I propose the following orders: 1 Application for leave to appeal granted. 2 Appeal dismissed. ********** 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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