Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McDonald v R [2014] NSWCCA 127 Hearing dates: 4/07/2014 Decision date: 14 July 2014 Before: Hoeben CJ at CL at [1]; Price at [2]; Fullerton J at [3] Decision: Application for leave to appeal out of time refused. Catchwords: CRIMINAL LAW - appeal against sentence - specially aggravated break and enter and commit serious indictable offence - applicant subject to parole for armed robbery at time of offending - whether retribution relevant as motive for offending - whether psychologist's report admissible as fresh or new evidence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Miles v R [2014] NSWCCA 72 R v Speechley [2012] NSWCCA 130 Category: Principal judgment Parties: Nicole Joyce McDonald (Applicant) The Crown (Respondent) Representation: Counsel: L Goodsell (Applicant) S Dowling SC (Crown) Solicitors: J Griffin (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/363259 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-03-13 00:00:00 Before: Sides DCJ File Number(s): 2011/363259 Judgment 1HOEBEN CJ at CL: I agree with Fullerton J. 2PRICE J: I agree with Fullerton J. 3FULLERTON J: The applicant seeks leave to appeal against a sentence imposed by Sides DCJ on 13 March 2013 following a plea of guilty to one count of specially aggravated break and enter and commit a serious indictable offence, contrary to 112(3) of the Crimes Act 1900 (NSW). That offence attracts a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. 4At the time of the offending the applicant was subject to parole for armed robbery together with a number of other matters which were taken into account on a Form 1. A sentence of 4 years and 6 months with a non-parole period of 2 years was imposed in August 2009. Her parole was revoked on her arrest on 14 November 2011. The balance of parole of 1 year and 3 months and 25 days expired three days before the date of sentence. The sentence was backdated to commence on 14 August 2012. 5After applying a discount of 25 per cent for the early plea of guilty a sentence of 6 years and 9 months was imposed. A non-parole period of 3 years and 3 months was imposed which reflected a finding of special circumstances as a result of an order for partial accumulation on the sentence for the previous armed robbery. 6The applicant relies upon two grounds of appeal: Ground 1: There was an important error of fact in respect of the evidence given by the offender. Sides DCJ noted incorrectly that the offender said that she had been sexually assaulted on only one occasion. The evidence of the offender was that she had been sexually assaulted twice and on the second occasion by the male victim of the offence for which she was being sentenced. Ground 2: The appellant has recently been diagnosed with a serious psychiatric disorder that existed at the time of offending and sentence. 7The second ground of appeal was the subject of amended grounds of appeal filed within days of the hearing. 8The notice of intention to apply for leave to appeal was filed on 26 April 2013 exceeding 28 days from the date of sentence imposed under s 10(1)(a) of the Criminal Appeal Act 1912 (NSW) by 16 days. On the same day an application for an extension of time was filed. On 27 February 2014 a second notice of intention to appeal and extension application was filed with a supporting affidavit from the applicant's solicitor seeking to explain the further delay because of difficulties in obtaining transcripts of the sentencing proceedings (ordered on 31 May 2013 but not received until 21 November 2013) and issues with regard to obtaining a grant of legal aid to obtain the final report of Tim Watson-Munro (requested on 5 August 2013 but not granted until 25 September 2013). 9The Crown accepted that there is an adequate explanation for the delay in prosecuting the appeal and no relevant prejudice to the victims or the administration of justice despite the delay (see Miles v R [2014] NSWCCA 72 at [55]) but submitted that the application for an extension of time should be refused because the application for leave to appeal the sentence is without merit. For the reasons which follow, I am persuaded that submission is made out. Proceedings on sentence 10The sentence proceedings were heard on the day of sentence. A statement of facts was tendered by consent together with a certificate pursuant to s 35A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown also tendered the applicant's criminal history, a pre-sentence report and victim impact statements. 11The applicant gave evidence. A report of Mr Watson-Munro dated 12 March 2013, marked by him as "draft", was tendered. 12At the commencement of the sentencing proceedings the applicant's solicitor informed the sentencing judge that he had been advised that Mr Watson-Munro's report was a draft report because the results of psychometric testing administered by him had been misplaced. On the appeal the applicant sought to tender a report of Mr Watson-Munro of 1 July 2014 in support of the second ground of appeal. The Crown objected to the tender of the report. The facts for sentencing purposes 13The facts upon which his Honour relied for the purposes of sentence can be stated relatively succinctly. 14On 13 November 2011 the applicant was at the home of Brendan Kelly drinking wine. At some point they were joined by Alicia Russell. The applicant and Mr Kelly had met approximately a week earlier and had started a relationship. At some point in the evening the applicant accused Mr Kelly of cheating on her. They had an argument in which the applicant slapped Mr Kelly in the face and threw a drink at him. Mr Kelly told the applicant to leave. Shortly afterwards Mr Kelly locked the house and went to bed with Ms Russell. He was awoken by the sound of loud banging, and saw the applicant banging on the front door. 15Mr Kelly told the applicant to go away. The applicant demanded to be let in and threatened to smash the window. She said, "I wanna bash that girl inside". Mr Kelly again told the applicant to leave, at which point she smashed a window and spat in Mr Kelly's face twice through the window. Mr Kelly called out to Ms Russell to call the police. The applicant walked away. Shortly afterwards Mr Kelly received a text message from the applicant saying, "Well motha fuca we will be round". 16Mr Kelly and Ms Russell went to get help but were intercepted by the applicant and the co-offender, Kenneth Pitson. Mr Kelly and Ms Russell went back into the house. The applicant and Mr Pitson broke through the back door. As Mr Pitson entered the premises he picked up a large kitchen knife. He pointed the knife at Mr Kelly and yelled, "How dare you rape her. Who do you think you are?". The applicant repeatedly said, "Stab him, stab him". 17Mr Kelly then heard Ms Russell screaming and the applicant saying, "Give me your phone or I'm going to stab you". The applicant approached Mr Kelly and punched him in the face. Mr Kelly observed the applicant throwing the victim around the room trying to take her phone from her. The applicant said, "If you don't get her phone off her I'm going to stab you". 18The applicant picked up a pair of scissors and held the scissors up against Ms Russell's neck, again threatening to stab her. She took Ms Russell's wallet from her handbag but Ms Russell refused to surrender her phone. The applicant stabbed Ms Russell in the shoulder blade with the scissors. The police arrived shortly afterwards. Ms Russell sustained two lacerations to her posterior right scapula that penetrated superficially into the subcutaneous tissue. Both wounds were closed with sutures. Finding as to objective seriousness 19With regards to the objective seriousness of the offence, his Honour noted that the applicant instigated the offence and continued in the joint enterprise after Mr Pitson withdrew. He also found that the applicant had induced Mr Pitson to participate with her by persuading him that Mr Kelly had sexually assaulted her. His Honour rejected any reasonable possibility that the offending was motivated by retribution finding that the sole motivation was revenge for what the applicant saw as Mr Kelly's infidelity. 20His Honour described the offence as "a serious home invasion" where the applicant repeatedly directed Mr Pitson to stab Mr Kelly and where she inflicted serious physical violence on both victims, including the deliberate infliction of stab wounds to Ms Russell's scapula. When considering the combined weight of the aggravating features in s 21A of the Crimes (Sentencing Procedure) Act, his Honour disregarded the fact that the offenders were unarmed when they entered the premises, only arming themselves with a knife and scissors upon entry. He did accept however that the stab wounds inflicted by the applicant, amounting to actual bodily harm, were relatively superficial. He also noted that it was not surprising that the victims were traumatised in the assault. 21His Honour was not persuaded that the applicant's moral culpability was reduced by the intoxicating effects of alcohol and prescribed medication or any issues relating to her underlying mental health. His Honour noted that she deliberately combined medication with alcohol; deliberately targeted Ms Russell; and was able to spin what he described as an elaborate story to coax the co-offender into joining in the joint criminal enterprise. 22He was unable to find one way or another as to whether the applicant left the house of her own volition or because she became aware of the arrival of the police or their impending arrival. The applicant's subjective circumstances 23The applicant was 26 years old at the time of the offence. She left school during Year 10, after which she worked on an intermittent basis in the retail industry with her last employment being in 2011. She has two children: her first child was born when she was 16 and the second child when she was 19. Mr Pitson is the father of her second child. Both children reside with their maternal grandmother. 24The applicant started using a combination of illegal substances and prescription drugs as a young teenager. His Honour accepted that this was probably in an attempt to deal with a dysfunctional upbringing and the consequences of a sexual assault she suffered at the age of 14. She completed the MERIT program in 2006. She has also attended various residential drug rehabilitation facilities but has invariably relapsed into drug use. At the time of sentence she was maintained on methadone. 25His Honour noted that the applicant had a lengthy criminal record including supervised bonds for assault occasioning actual bodily harm in 2005 and a home detention order in 2007 for offences of dishonesty, an order which was subsequently cancelled. As noted above, in August 2009 she was sentenced to 4 years and 6 months with a 2-year non-parole period for one count of armed robbery and six other matters being taken into account on a Form 1 and was on parole for that offence at the time of the offending. His Honour treated that as an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act. He noted that there was a pattern of reoffending whilst the applicant has been subject to conditional liberty in the past and that the pre-sentence report tendered on sentence gave no insights into her response to supervision whilst on parole for the armed robbery. 26The applicant served the balance of parole on protection after being assaulted in jail. His Honour was satisfied that had not compromised her access to work or to sessions with a psychologist and a counsellor although he doubted whether she was receptive to addressing the various triggers to her recidivism. His Honour concluded that whilst the applicant was motivated to remain drug and alcohol free on her release, her prospects of rehabilitation and not reoffending were poor. 27He also noted that in the sentencing remarks for the armed robbery offence in 2009 the sentencing judge referred at some length to a psychological report which revealed that the applicant had multiple admissions to mental health facilities; had been treated for a major mood disorder; had been diagnosed with a bipolar disorder requiring ongoing treatment; and that she had been treated with antidepressants and antipsychotic medication. Mr Watson-Munro's report did not refer to a history of hospital admissions for mental illness or to any Justice Health reports. His Honour did note that Mr Watson-Munro described the applicant as being "highly depressed and anxious". His Honour made no references to Mr Watson-Munro's reported diagnosis of a depressive illness, an anxiety disorder and substance abuse disorder, said to be based upon DSM-IV-TR criteria. No complaint is made about the omission to refer to Mr Watson-Munro's opinion in this regard or to suggest its relevance to sentence was overlooked. Ground 1 28The issue as to whether the applicant had been sexually assaulted in the past, and the number of occasions that might have occurred, and whether Mr Kelly had sexually assaulted her in the days preceding the offence, was raised in the material tendered by consent. In the agreed statement of facts there is a reference to an ERISP in which the applicant participated on arrest in which she claimed to police that Mr Kelly had "raped her". The facts also referred to Mr Pitson's ERISP in which he claimed that the applicant told him she had been raped. The facts go on to record that the matter was considered by police but no charges were laid. 29In the pre-sentence report dated 11 December 2012 there is a passing reference to the applicant reporting to the Probation and Parole officer that she was raped when she was 14 but that she had not previously disclosed the assault to anyone having blamed herself for the assault. It was consequent upon this disclosure that she apparently agreed she would benefit from counselling to address intrusive memories relating to the assault. 30In her evidence in chief no fresh allegation or further allegation of sexual assault by Mr Kelly was made. The matter was however explored in cross-examination. The following questions were asked: Q. Madam you remember when you were charged with this matter you were interviewed by the police officer on the 14th? A. Yeah. Q. Remember? A. Yeah. Q. November 2011. And you made an allegation that one of the victims, [Mr Kelly], sexually assaulted you? A. Yeah I did. ... Q. And the police made inquiries and they found out that is not true? A. They didn't - all right, yeah. And I am not disagreeing with you. Q. So you didn't tell the truth to police when the police-- A. Yeah, I did the wrong thing, I did. I sort of embellished a few details and extended - it wasn't that I lied, it was more of the fact of-- Q. If that is not a lie what is that? A. I wasn't lying, I was lying about - the thing is that I am still going through with my solicitor in regards to the sexual assault. Now what I did change about it was the actual time, timeframe of that. Now I did tell the police and then they come back and they said their case was closed. I have never ever spoke to the police since about that. So no I didn't lie, the time and date I changed. ... Q. Anyway I'm putting to you, you're not telling the truth? A. All right, well that - you know just because somebody doesn't get charged with something doesn't mean something happens and as a rape victim I'm telling you right now that I am not a liar. 31In cross-examination she was also asked about an account she had given to a psychologist in the report tendered in the sentence proceedings for the armed robbery in 2009 where she said that she he had been sexually assaulted the previous year. It was suggested by the cross-examiner that because it was her evidence that the only sexual assault other than at Mr Kelly's hand was when she was 14, she must have lied to the psychologist: Q. So is it the case that until you told Therese [the Probation and Parole officer] about it that you had not previously disclosed it to anybody? A. There were - there's two separate - there's two separate sexual assaults, I'm not really sure which one you're talking about. Q. Well in the pre-sentence report it refers to an incident in the school area where you and your girlfriend were raped? A. Yeah, that - I did - I didn't tell anybody else about that, yes I did tell Therese that. Q. And Therese was the first person you told about it? A. Yes. And I also asked her could she not say anything about it because I didn't want her putting that in any report or anything like that, so. Q. Well was that the only time you claimed you've been raped? A. No. Q. When else do you claim you were raped? A. There was that time when I was 14 years old and then the time that me and the Crown were just talking about just then. Q. Well when you sentenced by the judge in Newcastle there was a psychologist report before the Court wasn't there? A. Yes. Q. And in his remarks his Honour says this, "She told the psychologist there was no history of sexual abuse as a child but she had been sexually assaulted approximately a year previously". Did you say something like that to the psychologist in 2008 or 2009? A. Yeah. Q. Was that correct or not? A. I don't know whether they've got right or not but when I spoke to the person that wrote that report she started asking ... questions about it and I said to her that I didn't really want to talk to her. Like when she started asking questions I'm like "I just don't want to talk about it anymore". Q. But you must have conveyed to the psychologist in 2009 -- A. Yeah. ... Q. Well do you say now that apart from what you might claim Mr Kelly did to you that you were previously raped on two occasions? A. Once. ... Q. It wasn't strictly true when you told Therese you had never disclosed the sexual assault previously was it? A. No I didn't realise that I had spoken to her about it, I - that didn't really come into my mind because I don't really see it as I was talking about it with the first - with the psychiatrist in 2009. [Emphasis added.] 32In his sentencing remarks his Honour considered whether the evidence allowed for a finding that the offence was motivated by retribution for a sexual assault perpetrated by Mr Kelly and, in that way, had the potential to mitigate the objective seriousness of the offending (see the discussion in R v Speechley [2012] NSWCCA 130 at [109]-[115]). 33His Honour rejected the applicant's allegation that Mr Kelly had assaulted her as motivating her to invade his home, being satisfied to the criminal standard that she was motivated by jealousy and a desire to exact revenge. He came to that conclusion for a number of reasons. First he regarded the applicant's claim as inconsistent with her stated belief that Mr Kelly had cheated on her; as inconsistent with the fact that, after she smashed the window, she said she wanted to "bash" Ms Russell; and inconsistent with Ms Russell being the target of her assault. He also took into account that the applicant repeatedly demanded that Ms Russell hand over her mobile phone, the irresistible inference being that the applicant wanted to confirm that Ms Russell and Mr Kelly were in a relationship of some kind. His Honour was satisfied (although not expressly to the criminal standard) that the applicant had also spun an elaborate story that she had been assaulted by Mr Kelly to coax her co-offender to participate in the offence. 34The Crown submitted that these findings were reasonably open to the sentencing judge on the evidence. 35The applicant complains that they were based on his Honour's misunderstanding of the evidence in the sense that he appears to have assumed that the applicant had conceded, in the extract of her evidence set out in [30] above, that she lied to police when she said Mr Kelly had sexually assaulted her when no such concession was made, and that she had lied when she told a psychologist in 2009 that she had been assaulted the previous year when, on a fair reading of that aspect of her evidence, she was unprepared to tell the psychologist that she had been abused as a teenager. The applicant submitted that adverse findings as to her credit were made consequent upon these errors of fact and that this infected his Honour's view of the objective seriousness of the offending. 36Save for his Honour finding that the home invasion and the offending committed in that context was not motivated by retribution but by jealousy, there is nothing in the sentencing remarks to support the submission that he found that the applicant was lying about having been assaulted by Mr Kelly. To the contrary. His Honour made express note on two separate occasions in his sentencing remarks that she maintained the truth of that allegation and that the failure of the police to charge him was because she provided the police with inaccurate information as to when the assault had occurred. 37As the sentencing reasons make clear, his Honour did not need to find the applicant had made a false allegation about Mr Kelly to reject her explanation for the offending, even if her evidence might easily have supported a finding to that effect. Furthermore, although his Honour found that the applicant had lied to a psychologist in 2009 when she said she had been raped the previous year, in light of her evidence that the only other rape had occurred when she was 14, he appeared to accept that the lie may be explained by her reluctance to talk about the assault and that she was currently seeking counselling assistance to address the issue. 38The errors of fact contended for by the applicant are not established. I would reject first ground of appeal. Ground 2 39Consideration of this ground of appeal depends upon the report of Mr Watson-Munro of 1 July 2014 being admitted on the appeal over the Crown's objection. I am satisfied that the report is inadmissible for a number of reasons. 40Mr Watson-Munro was furnished with a transcript of proceedings on sentence and his Honour's sentencing remarks, together with a letter of instruction in which he was invited, inter alia, to comment upon the sentencing judge's findings as concerns the issue of motive in light of the detailed information he was provided about the alleged rape by Mr Kelly, on instructions from the applicant's solicitor, information not led at sentence and not sought to be led on the appeal. Mr Watson-Munro also administered a self-reporting questionnaire which he described as "canvassing psychological and physiological symptoms of depression and anxiety experienced by [the applicant] over the past fortnight". 41To seek to tender the report as constituting either fresh evidence or new evidence in these circumstances is to misunderstand entirely the application of established principle where evidence, properly satisfying the test of fresh or new evidence, may be received in an application to appeal against sentence. To the extent that any part of the report was admissible as opinion evidence (about which I have grave doubts in any event), it would be limited to the question of re-sentence if error is otherwise established. That was not the purpose of the tender nor the purpose for which the report was sought. Rather, it seems to have been sought to provide some support for a challenge to the findings of the sentencing judge. 42The letter of instruction also specifically invites Mr Watson-Munro to consider a diagnosis of post-traumatic stress disorder which he then purports to diagnose as consistent with the other psychiatric disorders he purported to have diagnosed in his earlier report. 43Mr Watson-Munro identifies himself as a consultant forensic psychologist. No curriculum vitae is attached to his report of 1 July 2014 as might provide a basis for him to offer an opinion about post-traumatic stress disorder, a recognised psychiatric disorder (whether referable to the results of recent research or the prevalence of the disorder), and perhaps to permit him to arrive at a diagnosis of post-traumatic stress disorder in accordance with DSM-IV-TR criteria. The curriculum vitae attached to his draft report of 12 March 2013 and included in the Appeal Book (at AB 97) attaches as Annexure A (at AB 102) a curriculum vitae from another practitioner. Although there was no objection to the tender of Mr Watson-Munro's draft report in the sentencing proceedings, as I have noted, that report also includes a diagnosis of related disorders under DSM-IV-TR which I do not understand Mr Watson-Munro was relevantly qualified to make. Order 44I propose the following order: Application for leave to appeal out of time refused. ********** 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: 14 July 2014