New South Wales Court of Criminal Appeal CITATION: Allen George WARREN v R [2009] NSWCCA 176 HEARING DATE(S): 25 June 2009 JUDGMENT OF: Hidden J at 1; McClellan CJatCL at 23; McCallum J at 24 EX TEMPORE JUDGMENT DATE: 25 June 2009 DECISION: Appeal against conviction dismissed. Leave to appeal against sentence refused. CATCHWORDS: CRIMINAL LAW - special hearing under Mental Health (Criminal Procedure) Act - malicious wounding with intent and related charges - limiting term on major charge - appeal against conviction - no question of principle - application for leave to appeal against sentence - whether suspended sentence available after special hearing Mental Health (Criminal Procedure) Act 1990 LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment PARTIES: Allen George WARREN (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/12511 COUNSEL: Self represented (Applicant) J Girdham (Respondent) SOLICITORS: Self represented (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/12511 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ LOWER COURT DATE OF DECISION: 3 September 2008 IN THE COURT OF CRIMINAL APPEAL 2007/12511 McCLELLAN CJ at CL HIDDEN J McCALLUM J 25 June 2009 Allen George WARREN v R eX TEMPORE Judgment 1 HIDDEN J: On 3 May 2005 the appellant, Allen George Warren, was involved in a violent incident with police at his home at Cooks Hill. He was arrested and charged with several indictable offences. After his committal for trial he was found unfit to be tried. In due course, a special hearing under the relevant provisions of the Mental Health (Criminal Procedure) Act (as it was then known) was conducted at Newcastle District Court before Coolahan DCJ, sitting without a jury. 2 His Honour found, on the limited evidence available, that the appellant had committed the following offences: assaulting a police officer in the execution of his duty; malicious wounding with intent to cause grievous bodily harm; using an offensive weapon with intent to prevent his lawful apprehension. Subsequently, his Honour imposed a limiting term of 18 months for the offence of malicious wounding with intent and placed the appellant on good behaviour bonds for the other two offences. 3 By s 2 of the Criminal Appeal Act, for the purposes of that Act a finding at a special hearing that the accused committed an offence is classified as a conviction, and a limiting term as a sentence. The appellant appeals against conviction, although it appears only in relation to the conviction on the charge of malicious wounding with intent. He has prepared and argued his case without legal representation. 4 The facts as his Honour found them are conveniently summarised in the Crown's written submissions in this way. At the time of the events the appellant was floridly delusional, one of his delusions being a belief that he had sustained a fractured jaw. To distract himself from the severe pain he perceived he was suffering, he played loud music. It was in response to a noise complaint that police officers Folwell and Nixon attended his property at Unit 8/65-67 Dawson Street, Cooks Hill, at about 4.30am on 3 May 2005. 5 The officers knocked on the door several times, identified themselves and stated their purpose was to speak to him about the music. When the music was turned up the appellant was warned by Officer Nixon, "Turn the music down on we'll get a warrant and come back and turn it off." Further attempts to get the attention of the appellant were unsuccessful. 6 The police officers returned to the appellant's unit in possession of an entry warrant at 6.30am. The appellant refused to open the door and entry to the unit was forced by Officer Folwell. The appellant, who wore only a shirt, rushed forward, swinging his arms around wildly towards Folwell. Folwell took a hold of the appellant's right arm, and the appellant resisted violently, twisting and trying to push into him. 7 Constable Nixon administered capsicum spray to the appellant and thereafter efforts to decontaminate the appellant were resisted. The appellant spat at Officer Gallucci, and it was this which gave rise to the charge of assaulting a police officer in the execution of his duty. 8 When Constable Folwell attempted to effect arrest, the appellant struck him to the top of the head with a weapon several times, causing wounds. It was this which led to the major charge of malicious wounding with intent. The weapon had a long wooden handle with the metal head of a wood splitter attached to the end of the handle with glue and copper wire. 9 During the ensuing struggle the appellant continued to swing the weapon, striking another officer in the left arm with the handle of the weapon. This conduct gave rise to the charge of using a weapon with intent to avoid lawful apprehension. The appellant was disarmed and handcuffed. 10 Constable Folwell was taken by ambulance to the John Hunter Hospital. The two lacerations to the top of his head were sutured, with four stitches being placed in each. He also had bruises to the top of his head and forehead, and a bleeding nose and strained neck. 11 The appellant was interviewed, and stated that he had the music up loud as his jaw was in pain from an injury and the music provided him with some relief. He conceded that he had heard the police request that he turn the music down and warn that they would force their way in if necessary. He stated he could recall being sprayed with the OC spray, struck with a baton and handcuffed, but he could not remember the incident itself. He admitted that he owned the weapon, which he said was a geological hammer. 12 It is unnecessary to examine the evidence of each of the Crown witnesses. The appellant did not give evidence at the trial, but psychiatric reports were tendered in his case. Again, for the purposes of the appeal it is not necessary to examine that material. 13 The appellant filed a notice of appeal and application for leave to appeal, in which two grounds are expressed. The first relates to sentence, to which I shall return. The second asserts that the malicious wounding with intent offence "is not grievous bodily harm and neither is it intent to inflict such, because police evidence states the weapon was used with the left hand by a right handed person, thus eliminating intent". 14 In a separate document headed "Submissions" the appellant asserts that the injuries incurred by Constable Folwell did not amount to grievous bodily harm and repeats the argument about the weapon being held in the left hand, noting that he is not ambidextrous. In oral submissions this morning the appellant added that, on the evidence, he is alleged to have wielded the weapon while he was in a lying position. He also notes that "Constable Folwell says that he was hit five times with the hammer, yet he only incurred two cuts, inclusive of hitting his head on the wall …" 15 The relevant charge, of course, was malicious wounding with intent to do grievous bodily harm. That charge does not involve proof that grievous bodily harm was in fact caused. The evidence was that Constable Folwell suffered lacerations to the head, constituting a wounding. The inference that the appellant intended to cause grievous bodily harm was readily available from the nature of the weapon he used, which his Honour described as "formidable", the way in which it was wielded and the fact that it was directed to the officer's head. Evidence that he used his left hand, rather than his dominant right hand, is not to the point. Nor was evidence that he was in a prone position at the time. His Honour had regard to that evidence in arriving at his conclusion. 16 Nor is it to the point that Constable Folwell gave evidence of being struck some five times and also striking his forehead and nose against the wall. The fact remains that, in the course of the incident, he suffered two lacerations or wounds fairly attributable to blows from the weapon. Clearly, those wounds could have been the result of more than two blows. 17 The points raised by the appellant are really no more than criticisms of findings which were clearly open to his Honour, and neither individually nor in their combination do they provide any basis for disturbing his Honour's verdict. I would dismiss the appeal against conviction. 18 On sentence, the notice of appeal asserts that the sentence for the malicious wounding with intent offence is too severe. The submissions note, correctly, that the appellant had not committed an offence of any kind for some years prior to the incident, and that he had not previously been convicted of an offence of this kind. It is also said that his Honour intended to give the appellant "an 18 month suspended sentence but at the last moment changed his mind and made it an 18 month limiting term". 19 It is clear from the remarks on sentence that his Honour had regard to the appellant's limited criminal history and the fact that it contained no entry for an offence of violence. As to the possibility of a suspended sentence, far from indicating that he intended to do so, his Honour concluded that it was not an option available to him. Although not the subject of full argument today, this appears to be correct. 20 Provision for suspended sentences is to be found in s 12 of the Crimes (Sentencing Procedure) Act but, by the terms of that section, the question of suspension arises only if the court imposes a sentence of imprisonment. In setting a limiting term in the present case, his Honour was exercising the power under s 23 (1) of the Mental Health (Criminal Procedure) Act. By that subsection, if the court determines that it would have imposed a sentence of imprisonment if the accused had been found guilty after a trial, its only option is to nominate a limiting term. There appears to be no power to suspend a limiting term and, indeed, one can see as a matter of policy why that should be so. By subs (2), other sentencing options, such as a good behaviour bond, are available only if the court determines that it would not have imposed a sentence of imprisonment. 21 Generally, I can detect no error in his Honour's approach to sentence. He assessed the gravity of the offence carefully, giving full weight to the extent to which the appellant's mental condition contributed to it. He gave appropriate weight to the appellant's subjective case, including the psychiatric evidence. The offence of malicious wounding with intent to inflict grievous bodily harm carries a maximum sentence of imprisonment for 25 years and a standard non-parole period of 7 years. The sentence (or limiting term) of 18 months imposed upon the appellant, far from being too severe, was lenient. 22 I would refuse leave to appeal against sentence. 23 McCLELLAN CJ at CL: I agree with Hidden J. 24 McCALLUM J: I also agree with Hidden J. 25 McCLELLAN CJ at CL: The orders of the Court are as Hidden J proposed. ********** 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.