Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: George v R [2013] NSWCCA 263 Hearing dates: 23 October 2013 Decision date: 12 November 2013 Before: HOEBEN CJ at CL at [1] JOHNSON J at [49] LATHAM J at [50] Decision: Application for extension of time by the applicant dismissed. Catchwords: CRIMINAL LAW - sentence appeal - causing grievous bodily harm with intent to murder - applicant sentenced in September 2009 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - extension of time opposed by Crown - importance of principle of finality - whether substantial injustice would result if extension of time were refused - was there "Muldrock error" - application of s6(3) of the Criminal Appeal Act 1912 - no lesser sentence warranted in law - application for extension of time dismissed. Legislation Cited: Crimes Act, 1900 (NSW) - s27 Criminal Appeal Act 1912 (NSW) - s6(3) Crimes (Sentencing Procedure) Act 1999 - s54B(1) Cases Cited: Abdul v R [2013] NSWCCA 247 Aldous v R [2012] NSWCCA 153 Essex v R [2013] NSWCCA 11 MA and Pham v R [2007] NSWCCA 240 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Williams v R [2012] NSWCCA 172 Zarakas v R [2013] NSWCCA 144 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: Damien George - Applicant Regina - Respondent Crown Representation: Counsel: Mr C Smith - Applicant Ms M Cinque - Respondent Crown Solicitors: S O'Connor - Legal Aid NSW S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2008/03422 Decision under appeal Date of Decision: 2009-09-01 00:00:00 Before: Ellis DCJ File Number(s): 2008/03422 Judgment 1HOEBEN CJ at CL: Offences and sentence The applicant pleaded guilty to one count of causing grievous bodily harm with intent to murder contrary to s27 of the Crimes Act 1900. The maximum penalty for this offence is imprisonment for 25 years. The offence has a standard non-parole period of 10 years. 2On 1 September 2009 the applicant was sentenced by Ellis DCJ to imprisonment with a non-parole period of 11 years and 5 months with a balance of term of 3 years and 9 months. The earliest date on which the applicant will be eligible for release on parole is 17 March 2019. 3The applicant seeks an extension of time for leave to appeal against the severity of this sentence. He relies upon a single ground of appeal: Ground 1: His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 4The Crown does not concede that "Muldrock error" has occurred. If "Muldrock error" has occurred the Crown does not concede that pursuant to s6(3) of the Criminal Appeal Act 1912 (NSW) any lesser sentence to that imposed by his Honour is warranted in law. The Crown does not consent to an extension of time being granted. Factual background to the offence 5On 17 October 2007 the victim was in a relationship with the applicant, who was then aged 24. He was aged 26 at the time of sentence and is now aged 30. The victim lived in West Ryde with her six year old son from a previous relationship. On that day the victim left her home to collect her son from school and the applicant went to the West Ryde Hotel. 6At about 5pm the victim went to the hotel to meet the applicant, who was drinking in the beer garden. Thereafter, the applicant was heard to verbally abuse the victim. She recalled that at some stage during the night he threw his beer over her. 7About five minutes later, the applicant said "Come on" and led the victim into the back lane, next to the beer garden. CCTV showed the applicant taking hold of the victim by the upper arm and pulling her along the lane until both were lost from view. 8Two minutes later the applicant returned to the hotel alone. It is now known that while the applicant and the victim were in the back lane, he shot the victim in the back of the head. The victim was not sure what had happened to her, but thought she might have been shot in the head, because she could not move and she had seen the applicant with a pistol the day before. After the victim was shot, she tried to crawl back to the hotel but could not move very far. The victim was taken to Westmead Hospital and told the nursing staff that her boyfriend had shot her. 9She was found to have a 5 millimetre wide puncture wound to the left occipital head and a right side weakness. A CT scan confirmed that she had bullet fragments lodged in her skull and brain. She underwent two urgent operative procedures over the next five days. The second of those operations included a left occipitoparietal craniectomy, an excision of foreign bodies and a titanium mesh cranioplasty. Deep metal fragments, adjacent to the brain stem, were not removed due to the serious risk of complication. She was transferred from Westmead Hospital to the Ryde Brain Injury Unit on 5 December 2007 for ongoing rehabilitation. 10The victim has been left with significant long-term disabilities. Those are: (a) A loss of vision, which is permanent, and means she will be unable to operate a motor vehicle in the future. Her loss of vision to the right side is total. (b) She has ataxic incoordination of all limbs, due to the injury to the cerebellum. She will have continued difficulty for the rest of her life which will include a tremor, slowness and clumsiness of the hands so as to make feeding, day to day hygiene and self-care difficult. Her writing and ability to dress herself are impaired. She requires assistance with small objects such as buttons. She will have life-long difficulty with fine coordination of the hands and will have mobility problems for the rest of her life. She will require an electric wheelchair for community access. There will be a lifelong increased risk of falls and fractures. (c) She has slurring of her speech, which is permanent, and which will affect verbal communication. Feeding and eating will be slower and will require effort. (d) The metal bullet fragments remaining in her brain present an ongoing risk of further injury from migration and infection. The victim's future work and recreation activities will be significantly limited. 11When interviewed by the police, the applicant denied any involvement in the offence. He could not explain why the victim would have nominated him as her assailant and said that they did not get along very well and that she had made allegations of assault against him before. 12Two other persons, who were at the hotel, gave evidence that they saw the applicant spit in the victim's drink and among other things, say to her "Bitch you had better get a tattoo of Rosie across your forehead because that is where the bullet hole is going to be ..." "I'm going to put a bullet in your head." 13As already indicated, after having been arrested the applicant pleaded guilty to the offence and was given an 18 percent discount for that plea of guilty by the sentencing judge. The sentencing judge accepted that the applicant was remorseful and had accepted responsibility for what he had done. 14The sentencing judge made the following observations concerning the standard non-parole period: "This is a very serious criminal offence as is apparent when one looks at the maximum penalty applicable. Obviously in any offence there will be a range of offending against a particular section from the low end of criminality through to the high or worse case category. The standard non-parole period of ten years does not strictly apply because this is not a midrange offence after trial. Nevertheless it remains a not insignificant guide post to this court and in conjunction with the maximum penalty provides a clear indication of the community's attitude to offences of this type. The level of criminality is an important factor which this court must determine and there are a number of matters which are relevant to this court's consideration of the level of criminality in this case." (ROS 6.9 - 7.3) His Honour then set out a number of considerations which were relevant to the objective seriousness of the offence. 15The conclusion arrived at by the sentencing judge was: "It seems to me when one looks at the detail of the offending on the particular night and the immediate and long-term consequences to the victim that this is an offence which, if not in the worst category, is certainly in the high range category of offending against this particular provision. It is probably fair to say that it is always possible to think of a worse case and certainly some of the cases which the court has considered of recent time both in the process of this sentence as well as for another sentence under the same section, provide more heinous examples of this crime than this particular one. Nevertheless, it is certainly a very serious offence and it is in the upper range of criminality and the maximum penalty of twenty-five years should be very much to the fore in this court's consideration in determining the appropriate penalty." (ROS 9.9 - 10.3) 16Later his Honour said: "The court generally has taken into account a number of recent decisions by the Court of Criminal Appeal in relation to the application of standard non parole periods all of which ultimately follow the guidelines set out in R v Way and cases such as R v AP. It is clear that where the standard non parole period does not specifically apply, there must still be some relationship to it. Here, had this been a finding of guilt after trial, the standard non parole period would still not have specifically applied because of the court's finding that this is not a mid range offence but rather an upper range offence. It is not appropriate to deal with these things mathematically but interestingly if the normal statutory ratio is applied to a non parole period of ten years that produces a head sentence of thirteen years and four months. So leaving aside discounts for plea of guilty, it would seem to suggest that a sentence of thirteen years and four months would be an appropriate guide for mid range offences. The starting point for this sentence is significantly higher than that given the fact that the criminality is higher than mid range." (ROS 10.7 - 11.3) 17His Honour then took into account the applicant's subjective case, in particular his brutal upbringing and the reports of Dr Allnutt, psychiatrist. The applicant's brother gave evidence as to the applicant's difficult and problematic upbringing. There had been a number of placements in different homes and much violence during his youth. The reports of Dr Allnutt made it clear that at the time of the offending, the applicant was not only intoxicated but had been taking ice over the preceding days. Dr Allnutt said: "Overall it would be fair to say that his developmental course was likely characterised by neglect and abuse and then he manifested juvenile delinquency in childhood and would be diagnosed with antisocial personality disorder in adulthood." 18Dr Allnutt identified psychiatric issues which were operating at the time of the offending. Dr Allnutt said that if the applicant's self-report were reliable, it could be stated that at the time of the offending he was experiencing symptoms consistent with a disease of the mind, however: "I do not believe, however, that at the material time of the alleged offence your client suffered a defect of reason to the extent that he was significantly impaired in his capacity to know the nature and quality of his actions or the wrongfulness of his actions, so as to have a defence of mental illness available to him." 19Dr Allnutt recorded a history of "auditory phenomena" (voices egging him on). Dr Allnutt thought that from his presentation in prison after his arrest, it was possible that he was psychotic at the material time, even though Dr Allnutt was not able to reach that conclusion. Dr Allnutt did say: "However, the underlying feature probably active to some degree at the material time that the alleged offence occurred was his chronic schizophrenia." Dr Allnutt was not able to apportion a relative weighting to any of the factors which he identified, i.e. the applicant's feelings of resentment and anger against the victim, his intoxication with alcohol and ice and his chronic schizophrenia. 20His Honour's conclusion on this issue was: "The court accepts that the background of this offender was extremely abusive and deprived and that he was a witness to violence from an early age and that he does have an underlying mental health issue and has consequently had issues in relation to substance abuse." (ROS 15.5) "The court is unable to conclude that he is unlikely to re-offend and unable to conclude that he has good prospects of rehabilitation. The court would need to be prescient to determine what his prospects of rehabilitation are. The court acknowledges that he has shown remorse. The court acknowledges that he may not have been fully aware of the consequences of his actions by reason of his mental health condition as previously noted ..." (ROS 16.9) 21Having reviewed the evidence, his Honour expressed his overall conclusion as follows: "Having looked at the cases the court is of the view that it is likely that a case which is found to be a worse case category offence is likely to produce a sentence in the range of 20 to 25 years, given that theoretically the 25 year maximum is reserved for the worst case. In the court's view it is likely that offences found to be in the upper range will fall within the range of 16 years to 20 years and in the court's view the appropriate commencement point for this particular offence, having regard to what I consider to be a very high level of criminality and notwithstanding those mental health issues to which I have referred, is a starting point of 18 years and 6 months. ..." (ROS 17.7) Background to this application 22After having been sentenced on 1 September 2009 the applicant filed a Notice of Intention to Appeal in respect of his sentence on 20 October 2009. On 17 May 2010 the applicant was refused legal aid because Legal Aid NSW did not consider that the appeal had reasonable prospects of success in accordance with the Legal Aid merit test. 23On 14 June 2012 the applicant again submitted a Notice of Intention to Appeal and an Application for Extension of Time. On 22 June 2012 the Registrar wrote to the applicant advising that his application to file a fresh Notice of Intention to Appeal had been refused. 24Between 28 August 2012 and 20 September 2012 the applicant's legal aid file was reviewed to determine whether the sentence might be susceptible to review due to "Muldrock error". On 27 June 2013 an appeal was prepared for filing in the Court of Criminal Appeal which has resulted in the matter coming before the Court. 25For a general background to applications of this kind and "Muldrock error", this judgment should be read with Abdul v R [2013] NSWCCA 247. Delay 26The sentence was imposed on 1 September 2009. The Notice of Intention to Appeal was filed within time but was not pursued and lapsed. Accordingly, an extension of time of over 3½ years is sought for this application for leave to appeal against sentence. 27The competing submissions in relation to delay and finality, and the Court's consideration of those submissions, are set out in Abdul v R at [31] - [53]. Those submissions and the Court's conclusions in relation thereto are incorporated into this judgment. 28The extent of the delay is substantial and the explanation for it is not compelling. Having considered the circumstances relating to the applicant's sentence, Legal Aid NSW rejected his application as having insufficient prospects of success. The only change to those circumstances is the decision in Muldrock. The principle of finality stands against an extension of time as does the potential for further psychological suffering by the victim. 29In those circumstances, the re-exercise of the sentencing discretion to determine whether "substantial injustice" would follow if an extension of time were not granted is determinative in this matter. None of the other factors identified in the decided cases favour the granting of an extension of time. 30If "Muldrock error" is not made out, there is no explanation for delay and no basis for a submission that had s54B(1) of the Crimes (Sentencing Procedure) Act 1999 been correctly applied, a lesser sentence would have been imposed. In the absence of any other grounds of appeal, that would be the end of the matter. Was there Muldrock error? 31The applicant submitted that the sentencing judge erred by: (a) Adopting a two stage approach to sentencing. (b) Approaching the sentencing exercise on the basis that the standard non-parole period was effectively a starting point. (c) Giving determinative significance to the standard non-parole period. (d) Failing to make proper allowance for the applicant's subjective case on sentence contrary to Muldrock. 32The applicant accepted that in his initial reference to the standard non-parole period, his Honour had correctly described it as a guidepost. The applicant does not take issue with the observations of the sentencing judge at [14] hereof. The applicant submitted, however, that the observations by the sentencing judge at [16] hereof demonstrated error. The error was that he used the standard non-parole period as a springboard or as a starting point and as a result, the standard non-parole period drove the sentence to be imposed on the applicant in the sense of it having determinative significance. 33The applicant submitted that the over emphasis on the standard non-parole period prevented the sentencing judge giving adequate weight to his very strong subjective case with particular reference to his chronic schizophrenia and that this condition was operating at the time of the offence and was causally related to it. The applicant submitted that notwithstanding that the mental condition was referred to and discussed, the consideration of it was overwhelmed by the significance given to the standard non-parole period which drove the sentence. The applicant submitted that the sentence imposed did not adequately reflect the significant matters in his subjective case, i.e. his mental health condition, his appalling upbringing and his remorse. 34I am not satisfied that "Muldrock error" has occurred. When considering that question, it is necessary to consider the reasoning of the sentencing judge as a whole: Essex v R [2013] NSWCCA 11 at [30]; Aldous v R [2012] NSWCCA 153 at [2] and Zreika v R [2012] NSWCCA 44 at [43]. 35The totality of his Honour's comments in relation to the standard non-parole period has been set out at [14], [15], [16] and [21]. As the applicant accepted, the first observation is unexceptionable and is consistent with the guidance provided by Muldrock. It gives the standard non-parole period no greater emphasis than the maximum penalty so that both operate as guideposts. 36It is the observation at [16] which is criticised. With respect, that criticism is unmerited. There is no error in the statement that where the standard non-parole period does not specifically apply "there must still be some relationship to it". That does no more than indicate that the standard non-parole period is to be regarded as a guidepost. Similarly, the comment "It is not appropriate to deal with these things mathematically ..." is also unexceptionable and fully consistent with Muldrock. 37The balance of that observation by the sentencing judge "... but interestingly if the normal statutory ratio is applied to a non parole period of ten years that produces a head sentence of thirteen years and four months" might have revealed error if it formed part of his Honour's reasoning leading up to the sentence ultimately passed. It did not. It comprises nothing more than some musing on the part of the sentencing judge. As the balance of the quotation makes clear, his Honour effectively disregarded the standard non-parole period because he assessed the objective seriousness of the offence as "significantly higher than mid-range". 38As can be seen from the quotation from his Honour's reasons at [21], what his Honour gave significant weight to was the maximum penalty for the offence. The standard non-parole period played no part in his Honour's reasoning towards the start point of the sentence ultimately imposed. His Honour only reached that start point after taking into account those factors which impacted on the objective seriousness of the offence and the results of his comprehensive review of the applicant's subjective case. This is very much in line with the "instinctive synthesis" approach described by McHugh J in Markarian v The Queen [2005] HCA 25; 228 CLR 357 which was expressly approved in Muldrock. 39It is not an error for a sentencing judge to make a finding of objective seriousness (Zrieka v R at [45] - [46]). On the contrary, Muldrock emphasised the importance of an assessment of "objective seriousness" in the sentencing process (at [27]). There are a number of decisions of this Court that postdate the decision in Muldrock to the effect that it is not an inappropriate exercise for a sentencing judge to make an evaluation of the objective seriousness of an offence (Zarakas v R [2013] NSWCCA 144 at [35]). 40A proper reading of the sentencing remarks does not demonstrate the errors identified in Muldrock. As already indicated, the sentencing judge applied an instinctive synthesis approach consistent with Markarian, whereby he determined the appropriate sentence after identifying all relevant factors and their significance. His consideration of the objective gravity of the applicant's offence was part of that process of instinctive synthesis leading to the formulation of the sentence which was imposed. 41It is not correct to say that his Honour's consideration of the applicant's mental condition was overwhelmed by the significance given to the standard non-parole period. His Honour devoted a substantial portion of his remarks to a consideration of the applicant's background and in particular, the evidence of Dr Allnutt relating to his mental condition. On the contrary, if the applicant's mental health issues and his brutal childhood had not been taken into account, the applicant would properly have been facing a sentence which was much closer to the maximum available, given the objective seriousness of the offending. 42This ground of appeal has not been made out. 43If I am wrong in my assessment of whether Muldrock error has occurred, I am not satisfied that a lesser sentence is warranted in law and should be passed. 44A consideration of the objective seriousness of the offence makes this clear. There was a significant level of determination to achieve the intended outcome of murder. The extent of the injuries and the pain associated with them was substantial. The long term impact of these injuries on the victim has been devastating and involves the destruction of her quality of life. There was no provocation or contributory conduct by the victim. In the position in which she found herself, the victim was vulnerable to an execution style killing which was the intended outcome. 45While the applicant's deprived and brutal upbringing has to be given full weight, the evidence as to the influence of his mental illness at the time is somewhat equivocal. The applicant was clearly aware of what he was doing and that it was wrong. His intoxication by alcohol and drugs complicated an assessment of his mental illness. While his Honour accepted that his chronic schizophrenia was active to some degree at the time, its extent was unknown. Those significant mental health considerations, of course, had to be looked at against the nature of the offence and the need to protect the public. 46The applicant's reliance upon statistics is not decisive on the s6(3) issue. In MA and Pham v R [2007] NSWCCA 240, RA Hulme J (with whom McClellan CJ at CL and Hoeben J agreed) said at [91]: "91 Subliminal in the reference to the statistics and the observation that the sentences here fall into the highest end of the range is the proposition that that is indicative of error. The proposition must be rejected. As this Court has said on many occasions, the range extends to the maximum penalty set by Parliament and it is against that that an offender's conduct must primarily be judged. Certainly, the statistics may at times inspire further reflection on the sentence in a particular case and perhaps give some limited guidance but, of themselves, they do not demonstrate error. Particularly is this so because, within each category, they provide no details of the cases reflected in them." 47That observation has particular relevance to this case where the factual circumstances are so complex. There is nothing in the post sentence events which would support the proposition that a lesser sentence is warranted in law. 48The order which I propose is that the application for extension of time by the applicant be dismissed. 49JOHNSON J: I agree with the reasons of Hoeben CJ at CL and the order proposed by his Honour. Further, I agree with the additional comments of Latham J. 50LATHAM J: I agree with Hoeben CJ at CL. I would only add that the applicant's submission that his Honour used the standard non parole period as a "springboard" from which he determined the ultimate sentence is not supported by the judge's suggestion that " a sentence of thirteen years and four months would be an appropriate guide for mid range offences". It is critical to bear in mind that the error identified in Muldrock is to commence with an assessment of an offence as one relative to mid range objective gravity and then to ask whether other factors justify a longer or shorter period than the standard non parole period. The detection of Muldrock error is not assisted by calling in aid metaphors such as "springboard", any more than the use of metaphors such as "benchmark" or "guidepost" definitively determines the absence of Muldrock error. As Allsop P said in Williams v R [2012] NSWCCA 172 at [4], "metaphors are apt to conceal as much as illuminate." ********** 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. Decision last updated: 12 November 2013