Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hazell v R [2015] NSWCCA 26 Hearing dates: 23 February 2015 Decision date: 11 March 2015 Before: Hoeben CJ at CL at [1]; Harrison J at [2]; R A Hulme J at [25] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – mental health and intellectual issues – substance and alcohol abuse – sentences imposed upon the applicant were not unreasonable or plainly unjust – appeal dismissed Legislation Cited: Crimes Act 1900 Cases Cited: Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1 Category: Principal judgment Parties: Anthony Hazell (Applicant) Crown (Respondent) Representation: Counsel: S Corish (Applicant) K McKay (Respondent) Solicitors: M Bowe (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/4254 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 17 December 2013 Before: Blanch J File Number(s): 2013/4254 Judgment 1. HOEBEN CJ at CL: I agree with Harrison J. 2. HARRISON J: The applicant was sentenced by his Honour Justice Blanch in the District Court of New South Wales on 17 December 2013 as follows: 1. On a count of assault occasioning actual bodily harm to a fixed term of imprisonment of 2 years commencing on 5 January 2013 and expiring on 4 January 2015. This is an offence contrary to s 59(1) of the Crimes Act 1900 and carries a maximum penalty of 5 years imprisonment. 2. On a count of aggravated detain for advantage to a non-parole period of 4 years commencing on 5 January 2013 and expiring on 4 January 2017 with an additional term of 2 years expiring on 4 January 2019. This is an offence contrary to s 86(2)(b) of the Crimes Act and carries a maximum penalty of 20 years imprisonment. 3. On a count of reckless wounding to a fixed term of imprisonment of 3 years commencing on 5 January 2013 expiring on 4 January 2016. This is an offence contrary to s 35(4) of the Crimes Act and carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years. 1. The applicant was therefore sentenced to a total sentence of 6 years imprisonment commencing on 5 January 2013 and expiring on 4 January 2019, with a total non-parole period of 4 years expiring on 4 January 2017. 2. All offences occurred on 5 January 2013 and the applicant has been in custody since his arrest on that day. He pleaded guilty to all three offences in circumstances attracting a 25 percent discount. The applicant contends that the sentences imposed were attended by error and liable to be set aside as manifestly excessive. He seeks leave to appeal and has raised three grounds of appeal as follows: 1. In considering the applicant's mental health issues, his Honour erred in failing to take into account: 1. The causal link between the applicant's mental health issues and the commission of the offences; and/or 2. The more onerous conditions of custody faced by the applicant. 1. The sentences imposed were otherwise manifestly excessive. 2. The learned sentencing judge erred in declining to set a non-parole period for the third count being an offence that carried a standard non-parole period. Background 1. His Honour recited the facts in uncontroversial terms. Although his Honour's remarks are detailed, they are particularly instructive for present purposes. At pages 1 - 4 of his sentencing remarks his Honour described what happened as follows: "The facts of the case are that the offender and the victim began a relationship in 2012. The agreed facts indicate that that relationship was marked by domestic violence which was unreported. On one occasion the victim's mother asked the offender to leave the premises because of it and he subsequently apologised. There were assaults prior to this assault but nowhere as serious as the matters being dealt with here. On 5 January 2013 the offender and his partner had been at the Lithgow Hotel, and he invited five friends back to the premises where they were living. There was an argument between the victim and the offender, and she went outside to smoke. He went outside and she said to him 'stop showing off, I'm sick of you doing this all the time and treating me like shit'. The offender then raised his fist and told the victim to lock herself in her bedroom and not come out. Instead she went to her mother's house, and when she got there she sent him an SMS saying that she was home and 'I'm so sick of being treated like shit so have fun'. This was in the early hours of the morning and at about 6am the victim's mother went off to work. She went inside and lay on a couch. Shortly after, the offender came to the premises and knocked on the door, and he pushed his way into the house and saw her and he said 'what the fuck are you doing?' and she said 'what does it look like? I'm at mum's because you are starting on me.' He then told her to go home. She refused. He then grabbed her by the arm and said 'I swear on junior that I am not going to hurt you.' He then dragged her by the hand to the car. Junior is their infant child. As soon as the victim got in the front door of the property where they were staying, the offender threw her against a wall of the property and her mouth began to bleed. She said 'stop please, you promised me'. He said 'you are nothing but a slut. Who are the guys you met up with?' He then kicked the victim in the mouth and stomped on her head. He then grabbed the victim's hair and dragged her to the bedroom. He threw her onto the bed. She pretended she was passed out while the offender punched her in the head a few more times. Finally the offender punched her two more times before she pretended to regain consciousness. He then kneed her in the face and resumed punching her, predominantly in the back of her head, and pulling her by the hair, and at this stage she did lose consciousness. Those facts constitute the assault occasioning actual bodily harm. After the victim regained consciousness on the bed, her face felt puffed up. The victim saw the offender standing over her, holding a large kitchen knife in his hands. The offender said 'I'm going to kill you' three or four times before scraping the knife across the victim's arms and stomach. The offender punched the victim in the face again. This caused a wound to the inside of the victim's cheek. The offender then threw the knife at the victim's head. It missed and landed on the bed. Those facts constitute the reckless wounding. The offender grabbed the knife, and as the victim was laying face down on the bed he hit her approximately five times to the back with the knife. He then grabbed her hair and turned her onto her back. He then hit her with both fists until she passed out. When she regained consciousness she noticed that when she coughed, blood came out of her mouth. The offender said to her 'this is what you get for cheating. You're going to cop this every day for trying to leave'. The victim asked for an ice pack. The offender said 'no. If anyone sees this black eye, I'm going to kill you.' He left the room and came back with a frozen rissole which was put on her eye, and he then gave her some ice cubes which she sucked on due to dehydration. The victim sat up because she felt sick. The offender kept saying to the victim that she would cop it again until she learned her lesson. He shut the bedroom door and punched the victim in the mouth. At around 2.30pm the victim's mother began ringing the victim's phone number, but the offender would not give the phone to her. At this stage the offender told the victim he was going to put her in the manhole above the bathroom and torture her. The offender gave the victim her mobile phone and told her to SMS her mother that they were at Nanki's and not home. The victim did this. People were knocking on the front door and the victim's mother called out 'Anthony, let Alana go.' The mother called the police. The police arrived. The offender then returned and started pacing saying he was sorry and did not want to go back to gaol. He began crying and saying he did not mean it. He also said 'shut up and don't look at your mum. Say I didn't do it.' Police then entered the premises. The victim was taken to hospital on a stretcher. Her injuries were both eyes bruised and swollen significantly, inhibiting sight. Bruising and swelling to the forehead, a scratch to the left collarbone redness and bruising to the right shoulder and upper arm with faint circular marks a carpet burn to the right elbow swelling and redness to the left wrist faint circular marks approximately 25 millimetres in diameter on the left shoulder area bruising to the left elbow, bicep and upper arm red marks behind the left ear, large red mark visible on the lower back, four individual triangular outlines consistent with the outline of a knife blade, and a cut to the inner right cheek. At the time of his arrest, the offender said to the police 'I didn't do anything. I don't know what happened. It occurred sometime last night. I don't know what happened. I was asleep.' In his ERISP he said he could not remember anything between having a drink in his lounge room the night before when the police arrived. The police noted he had skin off his fists and a slight laceration on his right chin." 1. The applicant's criminal history was detailed in a pre-sentence report that was provided to his Honour. The applicant was born in March 1985 and was 28 years of age when sentenced. He had what his Honour considered to be a significant criminal history. The applicant was previously sentenced on 28 May 2010 at the Sydney District Court for maliciously inflicting grievous bodily harm to a term of imprisonment of 4 years and 18 days with a non-parole period of 2 years and 9 days. He was released on parole on 6 July 2011. His Honour considered that offending to have involved the sort of violence for which his Honour was required to sentence him. The applicant had a history of other offences that his Honour described as "relating to violence or being unable to control himself" which his Honour characterised as "a matter of concern." Ground 1 1. His Honour specifically referred to the Probation and Parole report that referred to the applicant's background in these terms: "Mr Hazell experienced a dysfunctional upbringing characterised by alcoholism, violence and neglect. He is a person with a long term substance abuse history. He suffers from depression and anxiety, and he has an intellectual disability. His criminal history consists mainly of violent offences. The [applicant] demonstrated some insight of his need for treatment regarding his mental health issues and substance abuse." 1. The report of Dr Furst dated 25 September 2013 is central to this ground of appeal. It deals with the applicant's condition in more detail. As his Honour observed, the report indicates that the applicant's father was an alcoholic who was very violent towards him, subjecting him to regular physical abuse and domestic violence episodes in the household. The applicant had learning difficulties at school, smoked some cannabis from the age of 15, smoking significant amounts by the age of 18. His cannabis use was associated with transient paranoid symptoms. The applicant used amphetamines and ice from the age of 18, as well as cocaine. He drank heavily from the age of 14. 2. Dr Furst observed that the applicant was unable to give details of the offences because he could not remember. He also noted that after the applicant went into gaol he went to the Acute Crisis Management Unit and was on suicide watch for a period of time. He remained there for five months. 3. Dr Furst reviewed other reports that had been prepared. They included a report by Dr Allnutt in 2010 indicating an extremely low level of intellectual functioning. Dr Allnutt also thought that there was some paranoid thinking but could not be certain. Dr Furst also referred to a report by Dr Thomas Oldtree Clark dated 1 March 2013. Dr Clark's conclusion was that the applicant suffered from schizophrenia although Dr Furst did not consider that diagnosis to have been clearly articulated, particularly in the light of atypical features in presentation, heavy substance abuse, low intellectual functioning and apparent personality dysfunction. 4. At page seven of his sentencing remarks, his Honour said this: "Dr Furst having gone through all of that material did not conclude that [the applicant] suffered from schizophrenia but said that he did suffer from substance use disorder being poly substance dependence, also mild range intellectual disability, and a personality disorder and also chronic dysthymia. He also referred to his apparent lack of memory for his offending actions and said that if that is accepted, it is possible that he suffered some type of alcohol related amnesic episode or blackout. He recommended that if he is incarcerated that he be placed in a specialised unit for management of inmates with developmental disabilities. He also concluded that, 'he…has a number of negative prognostic risk factors including childhood victimisation, low intellect, impulsivity, a substance use disorder, episodes of anger, aggression and serious violence, and probably an underlying personality disorder'." 1. In the present circumstances the principles to apply are not in doubt: see Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 at [177]. The burden of the applicant's contentions is that his Honour failed to apply the principles in this case. 2. Dr Furst drew a causal link between the applicant's mental state and the offending conduct, in association with substance and alcohol abuse. The applicant contended that his Honour did not consider this. It was also contended that his Honour failed to consider that a custodial sentence would weigh more heavily upon the applicant given his conditions. 3. However, his Honour included the following passage in his sentencing remarks: "I have gone through those reports in some detail because one other significant factor to be taken into account in sentencing is the fact that if a person is suffering from a significant mental condition, then the principles of general deterrence have less significance than they might otherwise have, and in addition to the discount that I have already indicated of 25% for the plea of guilty, there should also be a discount where it is found that there are matters affecting his intellectual functioning." 1. His Honour went on to say this: "There does have to be a sentence of some significance in relation to a course of conduct which can only be described as episodes of continued violence that must have terrorised the victim in this case. There cannot be any other outcome than a significant gaol sentence, particularly in the case of someone who has a history of violent conduct which has led to one quite significant gaol sentence in the past. There are special circumstances to disturb the statutory ratio because of his need for rehabilitation in respect of his drugs and alcohol, and the need that he has for assistance in respect of his intellectual functioning and whatever mental condition he does in fact have. The offences involved here are offences that all occurred as part of the same course of conduct and because of that the sentences in my view should all be concurrent, but there should be a sentence which ultimately reflects the total criminality." 1. Finally, as counsel for the applicant has pointed out, his Honour recommended that a copy of the reports of doctors Furst and Hepner should be attached to the warrants so that they go to the gaol with the applicant in order that the prison authorities are aware of his mental health and related problems. 2. In my opinion it is abundantly clear that his Honour was aware that he was dealing with an offender with significant and well documented mental health and intellectual issues, associated as well with substance and alcohol abuse. It is not to my mind an error for a sentencing judge in such circumstances to fail in effect to refer to and recite on a point by point basis the factors so clearly identified and explained in De La Rosa. Putting aside the issue of whether his Honour had before him specific evidence of the way in which the applicant's time in custody would be more onerous for him in the circumstances, it seems to me to be inherent in what his Honour has said that he has taken that (presently assumed but unproved) prospect into account. His Honour's sentencing remarks are replete with references to medical reports and the competing concerns about the extent of the applicant's several disabilities. A failure by a sentencing judge in general, or this judge in particular, to articulate the details of his concerns, within the structure of a thorough consideration of the applicant's particular circumstances, does not generally constitute error and does not do so here. In fact, on one view his Honour's specific mention that "there should also be a discount where it is found that there are matters affecting his intellectual functioning" is arguably standing alone a complete answer to this ground of appeal. 3. It is also clear that his Honour's reasoning sufficiently accommodated the prospect that the offending was linked to the applicant's mental health issues. The fact that he does not say so in terms does not amount to an error in this case. That is for the simple but significant reason that none of the medical experts says so in as many words. Dr Furst's opinion about this is linked to alcohol and substance abuse, as follows: "His apparent lack of memory for his offending actions makes it possible he suffered some type of alcohol-related (and/or benzodiazepine-related) amnesic episode or 'blackout'. The effects of his acute intoxication were probably the main factors triggering his high level of aggression towards the victim. However, his intellectual disability, poor coping skills under stress, and his underlying borderline personality disorder also contributed to the sustained violence towards the victim at the time of the offences in question…" 1. However, there would appear to be little doubt that the offences were committed by an offender with serious mental health and related problems and it would be unrealistic to fail to proceed upon the basis that the two were connected to some extent at least. In this respect I consider that there is a clear theme running throughout his Honour's careful analysis that recognises such a connection. His Honour did not fail to take it into account. Rather, the seriousness of the offending and the applicant's criminal history would appear to have been factors that required the imposition of a proper sentence notwithstanding the special and particular circumstances of the applicant. There is not in my view any basis to conclude that his Honour misapprehended the relationship between these competing factors or misapplied the respective emphases to be given to them. Ground 2 1. I am unable to accept the submission that the overall sentence in this case is manifestly excessive. The circumstances of the offending are referred to earlier. The mitigating personal circumstances of the applicant were considered by his Honour. The applicant also received the not inconsiderable benefit of significant concurrency, with all sentences commencing on the same date, so that the applicant's sentence in practical terms coincides, and is coextensive, with the individual sentence for the aggravated detain for advantage offence. As already noted, that is an offence contrary to s 86(2) (b) of the Crimes Act and carries a maximum penalty of 20 years imprisonment. 2. It is clear that the applicant subjected the victim to a violent attack over a sustained period. In that last respect I accept that there may be some doubt about the precise length of time over which the events took place but I am satisfied that the description I have chosen is accurate. 3. I cannot accept in all of the circumstances of this case that the sentences imposed upon the applicant were unreasonable or plainly unjust. On one available view, the sentences were lenient. The applicant used a knife to terrify the victim, amounting to a serious aggravating feature of the offending. The applicant was also on parole at the time of the commission of these offences for earlier offences involving violence. There is nothing apparent to me to indicate that his Honour's sentencing discretion was not properly exercised. Ground 3 1. This ground is predicated upon the expectation that this Court would decide to re-sentence the applicant. For reasons that will be apparent, the ground has no independent utility unless resentencing takes place, having regard to the sentences actually imposed by his Honour and the structure of those sentences. It is therefore unnecessary further to consider this ground. Conclusion 1. In my opinion the following orders should be made: 1. Grant leave to appeal. 2. Dismiss the appeal. 1. R A HULME J: I agree with Harrison J. ********** 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: 11 March 2015