Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Haines v R [2016] NSWCCA 90 Hearing dates: 14 April 2016 Date of orders: 14 April 2016 Decision date: 16 May 2016 Before: Ward JA; Price J; Adamson J Decision: 1. Grant leave to appeal. 2. The appeal is allowed. 3. Quash the sentence imposed by the sentencing Judge and in lieu of the orders made by the sentencing Judge impose the following orders: (a) Confirm the conviction. (b) Sentence the applicant to imprisonment for a non-parole period of 11 years 3 months commencing on 3 March 2001 and expiring on 2 June 2012 with a further term of 3 years 9 months commencing 3 June 2012 and expiring on 2 March 2016. 4. As the sentence has expired the applicant is to be released forthwith. Catchwords: CRIMINAL LAW – sentence appeal – murder – where appellant pleaded guilty after psychiatrist withdrew opinion as to availability of mental illness defence – whether sentencing judge erred in finding plea not entered at earliest reasonable opportunity – exceptional case where reason for delay in entering guilty plea must be taken into account Legislation Cited: Criminal Appeal Act 1912 (NSW), s 5(1) Mental Health (Forensic Provisions) Act 1990 (NSW), s 29(1)(b) Cases Cited: Atkinson v R [2014] NSWCCA 262 House v The King [1936] HCA 40; (1936) 55 CLR 499 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Nguyen v R [2008] NSWCCA 280 R v AB [2011] NSWCCA 229 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Haines [2015] NSWSC 390 R v Nicholson [2010] NSWCCA 80 R v Oinonen [1999] NSWCCA 310 R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Villalon v R [2015] NSWCCA 229 Category: Principal judgment Parties: Brenda Lee Haines (Applicant) Regina (Respondent) Representation: Counsel: S Odgers SC (Applicant) H Baker (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): CCA 2001/00002339 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 390 Date of Decision: 16 April 2015 Before: RS Hulme AJ File Number(s): 2001/00002339 Judgment 1. THE COURT: On 14 April 2016 this Court heard and determined an application by Ms Haines pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against the sentence imposed on her following her conviction for the murder of Haibo Wang. The Court granted leave to appeal and allowed the appeal, quashing the sentence imposed by the sentencing judge and imposing orders confirming the conviction and sentencing Ms Haines to a term of imprisonment that expired on 2 March 2016. Accordingly, Ms Haines was to be released forthwith. The Court reserved its reasons for granting leave and allowing the appeal. These are those reasons. Background 1. The offence to which Ms Haines ultimately pleaded guilty and which was the subject of the present application was one that took place on 3 March 2001. Ms Haines, who had been in the Somerset Hotel, left the hotel and entered a nearby shop. There was then an argument of some kind between Ms Haines and the shopkeeper, Mr Wang. Ms Haines stabbed the shopkeeper, using a knife that matched others in the shop; took Mr Wang's watch and wallet; and fled the shop premises. Shortly after, Mr Wang was found unconscious behind the shop counter, bleeding profusely from a stab wound to the chest. He died a short time later. 2. Ms Haines was arrested that same day. There was, however, an issue as to her mental health and hence her fitness to be tried. On 14 February 2003, a jury found Ms Haines to be unfit to be tried. In September 2003, the Mental Health Review Tribunal determined that she would not become fit to be tried within 12 months. 3. On 27 October 2003 the then Attorney-General directed that a special hearing be conducted in respect of the offence. Following a hearing before Miles AJ in June 2004, a jury found that on the limited evidence then available Ms Haines had committed the offence of murder as charged. Miles AJ, for reasons given on 11 June 2004, indicated that he would have imposed a sentence of imprisonment had the trial been a normal trial of criminal proceedings against a person fit to be tried for the murder of Mr Wang and then nominated, as a limiting term for the purposes of the Mental Health (Forensic Provisions) Act 1990 (NSW), a period of 17 years commencing on 3 March 2001 and expiring on 2 March 2018. That term took into account the period that Ms Haines had already been in custody in relation to the offence. 4. Since her arrest, Ms Haines has been under the supervision of the Mental Health Review Tribunal. She spent a number of years in a Womens' Correctional Centre before being transferred to The Forensic Hospital in July 2009 and then to the Bunya Unit of the Cumberland Hospital in December 2011. 5. Following a hearing on 5 April 2013 before the Mental Health Review Tribunal, the Tribunal formed the unanimous opinion that Ms Haines had become fit to be tried for the offence of murder. The Director of Public Prosecutions then determined pursuant to s 29(1)(b) of the Mental Health (Forensic Provisions) Act that further proceedings be taken. On 7 June 2013, the matter was listed for arraignment but this date was adjourned to enable the parties to obtain updated psychiatrist reports. 6. On 23 September 2013, Dr Michael Giuffrida provided to Ms Haines' legal advisers an expert report in which he expressed the opinion that Ms Haines had available to her a defence of mental illness and also raised the possibility of a defence of substantial impairment. 7. On 4 November 2013, Ms Haines was found fit to be tried. She remained under the care of the Bunya Unit at Cumberland House as an involuntary patient. 8. Ms Haines was arraigned on 7 March 2014. A plea of not guilty was entered at that stage on the basis of a defence of mental illness. It was agreed that the trial would proceed as a judge alone trial and a trial date of 26 May 2014 was set. The trial was set down for one week. The sole issue was as to the defence of mental illness. 9. On 29 April 2014, Dr Giuffrida provided a further report, in which he expressed the opinion that Ms Haines probably did not have available to her the mental illness defence. However, he also indicated to Ms Haines' legal advisers that if there existed file notes of observations consistent with a psychosis shortly before or after Ms Haines was transferred from Mulawa to The Forensic Hospital on 29 July 2009 then he would be inclined to revert to the opinion expressed in his September 2013 report. On 16 May 2014, the 26 May trial date was vacated, apparently to enable Dr Giuffrida to have access to the Justice Health material required for him to resolve his doubts (one way or another) as to the availability of the mental health defence. The proceedings were stood over for further arraignment on 4 July 2014. 10. On 30 June 2014, Dr Giuffrida provided a further report to Ms Haines' legal advisers in which he concluded that Ms Haines probably did not have available to her a defence of mental illness on the charge of murder. 11. On 4 July 2014, Ms Haines was re-arraigned and entered a plea of guilty. In August 2014, Ms Haines' bail was revoked and she was transferred to Mulawa Hospital. 12. A sentencing hearing was held on 21 November 2014 before RS Hulme AJ. For the reasons published on 16 April 2015 (R v Haines [2015] NSWSC 390), his Honour sentenced Ms Haines to imprisonment for a non-parole period of 12 years and 9 months from 3 March 2001, together with a further term of 4 years and 3 months. In accordance with those orders, Ms Haines became eligible for release on parole on 3 December 2013 but, as at the time of the present application, she remained in custody. Proposed grounds of appeal 1. Although four proposed grounds of appeal were identified in the notice of appeal filed on 25 November 2015, at the hearing of the application for leave to appeal only two were sought to be pressed, namely that: 1. His Honour erred in finding that the Applicant's plea was not at the first available opportunity; and in allowing "no appreciable allowance" for the limitation of the issues for determination, and accordingly erred in assessing the discount arising from the Applicant's plea of guilty as 15%. … 3. His Honour erred in failing to take into account of [sic], or alternatively gave insufficient weight to, the subjective features of the Applicant, in particular: (a) the Applicant's deprived background; (b) the Applicant's intellectual disability; (c) the Applicant's mental illness; (d) the Applicant's physical ill health. 1. Moreover, in the course of oral submissions, Mr Odgers SC, appearing for Ms Haines, accepted that if this Court were to accept the applicant's submissions on ground 1 and were to re-sentence Ms Haines based on the same starting point as that adopted by the sentencing judge but with a 25% (rather than 15%) discount for Ms Haines' guilty plea, then it would not be necessary for the Court to deal with ground 3 (as Ms Haines' head sentence would, on those assumptions, have already expired). 2. Accordingly, the Court proceeded first to hear oral submissions only on ground 1. Ground 1 1. The sentencing judge accepted that Ms Haines was entitled to a discount for her guilty plea and accepted that, given her mental condition, she could not have pleaded guilty prior to the finding on 4 November 2013 that she was fit to be tried. However, his Honour considered that Ms Haines had not pleaded guilty at the first reasonable opportunity after she became able to do so and said (at [46]): … Rather she did so only shortly before her trial was due to begin. One of the factors inspiring a discount for a plea of guilty is its utilitarian value and in the circumstance [sic] it would not be appropriate to allow her the normal maximum discount for her plea. Indeed that plea was almost at the last moment and while I would not adopt the minimum of the usual range for pleas of guilty, the allowance should be closer to that minimum than to the maximum. I propose to allow a discount of 15%. 1. His Honour noted that there was clearly co-operation on Ms Haines' behalf in limiting the issues to be canvassed at the anticipated trial but was not persuaded that the co-operation was of such significance as to merit any appreciable allowance for it ([52]). 2. The force of the submissions put for Ms Haines in this Court on this issue was that, in all the circumstances, Ms Haines had pleaded guilty as soon as reasonably possible, having done so almost immediately after it became clear that the defence of mental illness that had been considered by her psychiatrist and legal advisers to be available to her was no longer available (i.e., when Dr Giuffrida gave his 30 June 2014 report). It was submitted that in circumstances where there was delay in obtaining clarity regarding the medical evidence on the mental illness defence (through, it was said, no fault of Ms Haines) his Honour erred in concluding that the plea had not been made at the first reasonable opportunity after Ms Haines had been found fit to plead. 3. For Ms Haines it was submitted that the Crown, in its submissions before the sentencing judge, had recognised that this was an unusual matter and had not argued that, in the unusual circumstances that pertained, Ms Haines had not pleaded guilty at the first reasonable opportunity (pointing to his Honour's observation at T 35.29 as to the import of the Crown's submissions being that the discount is based on the utilitarian value of the plea not the reasons for it). 4. The Crown argued that there was no error in the exercise of the sentencing judge's discretion, submitting that generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value of the plea is reduced (referring to R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 at [11]) and argued that whether or not there was a defence available to an offender is not a relevant consideration when considering the utilitarian value of the plea. The Crown emphasised that the guilty plea was entered eight months after the finding of fitness to be tried and just ten days prior to the commencement of the trial (the date for which had been set and vacated once during that eight month period) and argues that the 15% discount the sentencing judge applied for the plea was within an acceptable range within his Honour's discretion. Determination 1. In R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) said, in the course of setting out a guideline for the application of the discount for a guilty plea (at [160]): (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10–25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (my emphasis) 1. Spigelman CJ noted that a discount towards the bottom of the range is appropriate for late pleas, for example, those entered on the date fixed for trial (at [155]) but also that the complexity of the issues about which evidence will have to be gathered and adduced will affect the value of the plea: the greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea (at [154]). His Honour also noted that a discount within the range specified will not mean that a trial judge's exercise of discretion cannot be subject to appellate review (at [159]). 2. In R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32], Howie J (with whom McClellan CJ at CL and Simpson J agreed) noted that generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced (referring to Stambolis; Nguyen v R [2008] NSWCCA 280), but nevertheless implicitly accepted (at [31]) that there may be exceptional cases arising from the peculiar factual situation in a particular case where a maximum discount (that might not otherwise be appropriate as a matter of general practice) might properly be awarded. 3. In Stambolis Howie J said (at [11]): … There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity. 1. Similar observations were made by Howie J (Beazley JA, as her Honour then was, and Hislop J agreeing) in R v Nicholson [2010] NSWCCA 80 (at [36]). 2. However, Bathurst CJ in R v AB [2011] NSWCCA 229 said (at [3]) that, while courts should generally continue to follow the approach in Borkowski, "the principles have to be applied by reference to the particular circumstances in any case". One such exceptional case was Atkinson v R [2014] NSWCCA 262, where the applicant had instructed his solicitors to enter guilty pleas prior to his first appearance in the Local Court, but (unbeknownst to him at the time) the instructions were not carried out. 3. Another such "exceptional" case in which the reason for the delay was taken into account was Villalon v R [2015] NSWCCA 229, where the applicant had been charged with murder but during committal proceedings made an offer (rejected by the Director of Public Prosecutions) to plead guilty to manslaughter on the basis of substantial impairment, that offer being accompanied by a report from a psychiatrist who expressed the opinion that the applicant was suffering from a paranoid psychotic illness at the time of the offence. On arraignment and on the first day of trial, the applicant pleaded guilty to the alternative count of manslaughter (of which he was subsequently found guilty). Gleeson JA (with whom Adams and Fagan JJ agreed) found that the sentencing judge had erred in assessing the discount on sentence for the guilty plea as 20% and that the sentencing judge was required to take into account the offer of the plea of guilty which matched the crime for which the applicant was ultimately convicted ([38]), applying R v Oinonen [1999] NSWCCA 310. Gleeson JA found that, in the circumstances, the applicant's offer to plead guilty to manslaughter was made at the earliest reasonable opportunity (at [52]). 4. In the present case, the challenge to the sentencing judge's assessment of the discount for the guilty plea requires demonstration of error of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. It is clear from his Honour's reasons that he had in mind, when setting out the chronology of events in relation to the guilty plea, that the psychiatrist who had been retained on Ms Haines' behalf had withdrawn his opinion as to the availability of the defence of mental illness ([45]) (and to the steps that had been taken to limit the length and complexity of the trial). Nevertheless, it is not apparent how that factor was taken into account, if at all, in his Honour's assessment that Ms Haines did not plead guilty at the "first reasonable opportunity after she became able to do so" ([46]). 5. Having regard to her long history of mental illness, during which time his Honour accepted Ms Haines could not have pleaded guilty, and the reliance that one would expect to be placed by Ms Haines and her legal advisers on the assessment of a specialist forensic psychiatrist in determining the availability of a defence of mental illness, in all the circumstances it must be concluded that his Honour erred in finding that Ms Haines did not plead guilty at the first opportunity when it was reasonable for her to do so. 6. In those circumstances the sentencing discretion miscarried. Having regard to the fact that there was almost no delay in her change of plea once Dr Giuffrida confirmed his change of mind and expressed the opinion that she probably did not have such a defence, it can be inferred that had Dr Giuffrida been from the outset of the view that he ultimately reached then there would have been a plea of guilty when Ms Haines was first arraigned. The delay caused by the vacation of the May trial date was clearly for the purpose of enabling certainty as to Dr Giuffrida's assessment of her mental state at the relevant time. 7. In the exceptional circumstances of this case, the reason for the delay in entering a guilty plea must be taken into account, as must the fact that Ms Haines had also co-operated in confining the issues to be dealt with at the trial, which was not to take place before a jury, to the testing of the evidence of the two psychiatrists. The effect of the latter is that the utilitarian value of the guilty plea, even though only shortly before the trial date, remained high. 8. Having formed that view, it was incumbent on this Court to re-sentence Ms Haines (Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601). The Court was of the view that a 25% discount was appropriate to reflect the guilty plea, having regard to the very unusual circumstances of the case. The Court considered it appropriate to adopt a starting point of 20 years, as the sentencing judge did. As a result, on re-sentencing the head sentence was one that expired on 2 March 2016; hence the orders as made on 14 April 2016. 9. For completeness, it should be noted that this Court reiterated the concerns expressed by the sentencing judge as to the need for appropriate resources to be made available on Ms Haines' release from custody and the acknowledgement from her legal representatives that they were aware of those concerns (see for example the concerns raised in the report of Dr Ana-Louise Martin, psychiatric registrar, of August 2009; the report of Dr Giuffrida of 23 September 2013; and the letter of 20 November 2014 from Michael Brownlee of the Department of Family and Community Services tendered at the sentencing hearing). ********** 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: 16 May 2016