Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kelly v R [2016] NSWCCA 246 Hearing dates: 20 July 2016 Date of orders: 07 November 2016 Decision date: 07 November 2016 Before: Hoeben CJ at CL at [1]; Rothman J at [2]; R A Hulme J at [73] Decision: (1) Leave to appeal granted; (2) Appeal allowed; (3) The sentence imposed upon Timothy Kelly on 13 June 2014 by Justice Blanch, Chief Judge of the District Court, be quashed and in lieu thereof the following sentence be imposed: (i) For Sequence 6, destroy or damage property, contrary to s 195(1)(a) of the Crimes Act 1900, a fixed sentence of 18 months' imprisonment, commencing 3 October 2013 and concluding 2 April 2015; (ii) For Sequence 4, assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 April 2014 and concluding 2 January 2017; (iii) For Sequence 5, assault occasioning actual bodily harm, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 October 2014 and concluding 2 July 2017; (iv) For Sequence 7, assault occasioning actual bodily harm, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 April 2015 and concluding 2 January 2018; (v) For Sequence 2, wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act, a non-parole period of four (4) years' imprisonment, commencing 3 October 2015 and concluding 2 October 2019, with a balance of term of two (2) years and nine (9) months concluding 2 July 2022; (vi) For Sequence 3, wound with intent to cause grievous bodily harm, a non-parole period of four (4) years' imprisonment, commencing 3 October 2016 and concluding 2 October 2020 with a balance of term of a further four (4) years and three (3) months, concluding 2 January 2025. (4) The overall sentence to be imposed is a head sentence of 11 years' and three (3) months' imprisonment, with a non-parole period of 7 years' imprisonment. The applicant will be eligible for parole from 3 October 2020. Catchwords: CRIMINAL LAW – SENTENCE APPEAL – Applicant with psychiatric issues and cognitive disorder chose to represent himself and denied sentencing judge evidence of psychiatric and cognitive problems – miscarriage of justice – evidence allowed on appeal – appeal granted – sentence reduced. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 R v Fernando (1992) 76 A Crim R 58 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 Texts Cited: Carol Paton, "Benzodiazepines and Disinhibition: A Review" (2002) 26(12) The Psychiatric Bulletin 460. Category: Principal judgment Parties: Timothy Kelly (Applicant) Regina (Crown) Representation: Counsel: A M Webb/E W C Anderson (Applicant) V Lydiard (Crown) Solicitors: Andrew Scali Solicitors (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2013/297973 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 13 June 2014 Before: Blanch DCJ File Number(s): 2013/297973 Judgment 1. HOEBEN CJ at CL: I agree with Rothman J. 2. ROTHMAN J: The applicant appeals against the sentence imposed on him by the then Chief Judge of the District Court, Justice Blanch, on 13 June 2014. The sentence was imposed following a plea of guilty to six charges, which are set out below. 3. The sentencing judge imposed an aggregate sentence of 12 years' imprisonment, with a non-parole period of 9 years' imprisonment. During the sentencing proceedings, despite suggestions from the sentencing judge that legal representation was appropriate and that Legal Aid could be supplied, the applicant dealt with the matter himself and was, during the whole of the sentencing proceedings, self-represented. 4. His Honour set out indicative sentences which are contained in the following summary of charges: 1. SEQUENCES 2 and 3: Wound with intent to cause grievous bodily harm (s 33(1)(a) of the Crimes Act 1900), for which the maximum penalty is 25 years' imprisonment and for which there is a standard non-parole period of 7 years' imprisonment, the sentencing judge set an indicative sentence of 8 years' imprisonment; 2. SEQUENCES 4, 5 and 7: Assault occasioning actual bodily harm (s 59(1) of the Crimes Act), for which the maximum penalty is 5 years' imprisonment and for which there is no standard non-parole period, the sentencing judge set an indicative sentence of 3 years' imprisonment; 3. SEQUENCE 6: Destroy or damage property (s 195(1)(a) of the Crimes Act), for which the maximum penalty is 5 years' imprisonment, for which the sentencing judge set an indicative sentence of 2 years' imprisonment. 1. As earlier indicated, the aggregate sentence imposed was 12 years' imprisonment, with a non-parole period of 9 years' imprisonment, to commence from the date of arrest and was fixed so as to take into account time already served and under which the applicant would be eligible for release to parole on 2 October 2022. 2. The applicant seeks leave to appeal against the sentence imposed (and, if leave were granted, appeals against the sentence) on the following grounds: 1. A miscarriage of justice has occurred as a result of the Court's failure to order a pre-sentence report, anticipated by the applicant, and referred to by the sentencing judge; 2. A miscarriage of justice has occurred as a result of the failure of the sentencing judge to take up the applicant's offer [to] pursue such procedures as were appropriate in the circumstances; 3. A miscarriage of justice has occurred as a result of the applicant's incompetent presentation of his subjective case; 4. A miscarriage of justice has occurred as a result of the combined effect of Grounds 1 – 3 above; and 5. New evidence is available to the Court demonstrating that a miscarriage of justice has occurred. 1. At the hearing of the appeal, counsel for the applicant withdrew Grounds 1, 2 and 4 above and pressed only Grounds 3 and 5. Ground 5 is not a ground of appeal but a basis for supporting Ground 3. Counsel made clear that he was not being critical of the learned sentencing judge and accepted that, given the exchanges between the sentencing judge and the applicant, in the circumstances, little else could have been done by the judge to encourage the applicant to obtain legal assistance. The Facts 1. As the proceedings were conducted as sentencing proceedings following a plea of guilty, the facts were agreed and within very short compass. The applicant had committed previous offences and on 23 May 2013 he was released from gaol for those previous offences. 2. On 3 October 2013, the applicant was staying at a private hotel in Pitt Street, Sydney. The applicant smashed a window in the room in which he was staying and took downstairs a number of pieces of broken glass, wrapped in a sock. He then approached a number of persons sitting on the steps of a nearby hostel. 3. He stabbed Victim 1 (Leibrecht) on the victim's left forearm, causing immediate pain and bleeding. He then attempted to stab Victim 1 in the thigh, but the piece of glass did not pierce the victim's jeans. However, the victim did suffer a scratch to the right upper thigh. The laceration to his left forearm required four stitches (Sequence 7). 4. The applicant then approached Victim 2 (Kofink) from behind and, using his left arm, grabbed hold of the second victim's neck and, using his right hand, stabbed the second victim with the broken glass. The stab wound was to the neck and head area and there were approximately five stab wounds. The victim suffered wounds to the right side of his neck, the right side of his jaw and a puncture to the back of his neck. The wound to his neck was extremely close to his carotid artery and he suffered severe blood loss and scarring (Sequence 2). 5. Victim 3 (Butler-Rees) was approached by the applicant, who stabbed her in the face. The piece of glass cut through the victim's upper lip, cutting it in half. The pain and blood loss was immediate. The victim put her hands up to protect herself and the applicant then tried to stab her again, cutting her wrist. Apart from the immediate wound to the lip, which split it in half, the victim will suffer permanent facial scarring (Sequence 3). 6. Victim 4 (Penpanussack) was in Pitt Street at the time, and saw the stabbing. The fourth victim approached the applicant and attempted to intervene to defend the earlier mentioned victims. The fourth victim pushed and punched the applicant and, as a reaction, the applicant assaulted him. At the time of the assault, the applicant was still holding the pieces of glass and he cut the fourth victim's left forearm. There was a 25 centimetre cut to his left torso and a cut to his left forearm, which was not charged as a wounding. The applicant then ran down Pitt Street, holding the broken glass and chasing four or five other persons down the street. 7. As the applicant was running down the street, he hit a security guard (Akkan) with the glass cutting the guard's chin and throat. There were also scratches to his wrist and he suffered pain in his arm and leg. The security guard was working at premises in Pitt Street. On being felled by the blow with the broken glass, the security guard tackled the applicant and held his legs (Sequence 4). Proceedings Below 1. Given the remaining ground of appeal, it is necessary to set out, briefly, that which occurred at the sentence hearing. The matter came before the sentencing judge first on Friday 14 March 2014, at which time his Honour listed the matter for sentence before Haesler SC DCJ. At the hearing on 14 March 2014, after being informed by the DPP that the applicant was self-represented, the learned sentencing judge asked the applicant if he had a lawyer, to which the applicant replied, "No, your Honour, I am representing myself, thank you." (Transcript, 14 March 2014, page 1) 2. On several occasions during this hearing the Chief Judge suggested to the applicant that legal representation was appropriate and that Legal Aid could be supplied. This was done in the context that the learned sentencing judge had indicated that the earliest date upon which the matter could be heard was likely to be 9 May 2014. 3. Throughout these proceedings his Honour continued to encourage the applicant to apply for Legal Aid. His Honour, having been so far unsuccessful in that regard, then set the matter down for sentence before Haesler SC DCJ for 24 April 2014 and, once more, having set that date, urged the applicant to obtain legal advice and be represented. To that urging, the applicant responded: "Yes, I understand, your Honour. I've just - to be honest with you in past times I've had to cancel my representation when I've had Legal Aid in the past, I've just felt that it was better to represent myself in the end. I've had Legal Aid representatives to tell you the truth that have almost tried to string me up for the full term of the crimes I did in the past. I cancelled them luckily at the last second before I appeared and in that case I – … received … a smaller – a sentencing as in it was just a probationary period and a fine." (Transcript. 14 March 2014, page 2). 1. The sentencing judge also suggested obtaining a pre-sentence report or a psychiatrist's report as it may be of assistance. His Honour pointed out to the applicant that the charge of wound with intent to cause grievous bodily harm carried a very lengthy maximum penalty and suggested a psychologist's report. 2. The applicant responded, firstly, that he thought there may have been a pre‑sentence report already and secondly to the effect, that: "the only thing they could diagnose me with and that I've been diagnosed in the past with is just anxiety depression … I've been a binge drug user over a period of my life, I used to drink a lot of alcohol when I was younger." (Transcript, 14 March 2014, pages 2-3) 1. Notwithstanding the response by the applicant, the learned sentencing judge again expressed the view that the psychologist's report could help, stating to the applicant: "we don't want to just bring you in and fling you into gaol without considering what should happen with you. And if a psychologist's report might help you'd need somebody to pay for it and Legal Aid would do it." (Transcript, 14 March 2014, page 3) 1. Despite the constant pressing of the view that the applicant would be assisted by a Legal Aid representative and Legal Aid qualifying an expert report, the applicant insisted that he would "just rather the matter be dealt with please". (Transcript, 14 March 2014, page 3) 2. On 24 April 2014, the matter was not reached and was stood over by Haesler SC DCJ before the Chief Judge, Justice Blanch DCJ for 13 June 2014. 3. Again, during the proceeding on 13 June 2014, the learned sentencing judge repeated his urging as to the need for the applicant to obtain Legal Aid and qualify one or other experts. His Honour expressed a number of concerns as to the failure of the applicant to explain the events or to give a reason for the events and how that would have been assisted by representation and the qualification of an expert. Judgment on Sentencing 1. The sentencing judge recited the facts as they pertained to the sentencing task and as otherwise summarised above. His Honour then referred to the limited subjective circumstances recited by the applicant, largely as a result of questioning from his Honour. The sentencing judgment then (at page 4) concludes: "The matter is of some concern because Mr Kelly is not represented and he said that he does not want to be represented and wants me to proceed with the sentencing today. The troubling aspect of that is that there appears to be no explanation for the commission of these offences. He does not know why he did it, there is no psychiatric and psychological material which might explain it. Mr Kelly tells me that he has used drugs of various kinds since he was 13 years' of age and has been on and off the methadone program for his heroin/morphine addiction since 2013. He does not attribute the commission of the offences to his use of drugs, and although I have suggested that he might be assisted by a psychological or psychiatric report, he does not want to do that and he wishes me to proceed with the sentencing." 1. The written submissions of the applicant on appeal stress the exchange between the applicant and the sentencing judge and the comment by the applicant that "if you [the sentencing judge] persist that I go and get things done on my behalf, I'll have to do that but otherwise I would like to persist in getting it dealt with today if I can". 2. The submission suggests that his Honour was in error in proceeding thereafter without either legal assistance for the applicant or the qualification of a psychiatric/psychological expert. A judge's capacity to "persist" or "insist" is limited in the face of the insistence of a person to deal with the matter then and there. 3. A sentencing judge cannot force a person to obtain legal assistance or to qualify a psychiatrist or psychologist. Thus, when the applicant expressed the view to the sentencing judge that if he, the sentencing judge, persisted "I'll have to do that" immediately after expressing the opinion "I'd really like to get the matter dealt with", the sentencing judge had little option but to deal with the matter as requested by the applicant. A sentencing judge is not in the position to be able to insist on legal representation and/or the qualification of an expert in the face of constant requests by the applicant to proceed. 4. It is not said that the sentencing judge erred, manifestly or otherwise, in the sentence imposed, given the material that was before him. Nevertheless, it is argued that this Court should intervene because there has been a miscarriage of justice occasioned by the applicant's conduct of the sentence proceedings, by the applicant himself, and in particular the presentation of his subjective case. Evidence on Appeal 1. In support of the applicant's only effective ground of appeal pressed, the applicant relies upon the Affidavit of the applicant himself, sworn 13 July 2016, and the Affidavit of his solicitor annexing a psychiatric report of Dr Olav Nielssen of 4 September 2015 and a psychologist's report by Dr Mark Milic of 5 February 2016. 2. The Crown objects to the receipt of evidence for a purpose other than re‑sentencing, should that be necessary. The Crown submits that, given the urging by the sentencing judge to obtain legal representation and psychiatric expert evidence, there has been no miscarriage of justice. 3. It was also suggested during oral submissions, that to allow an appeal on this basis would be to "open the floodgates" for such submissions and for the receipt of evidence that could have been, but was not, adduced at the sentencing hearing. 4. The Crown submits that the applicant has not, even on the new evidence, made out a substantive case involving a miscarriage of justice and the factors to which the psychiatrist's and psychologist's reports refer are matters that his Honour took into account in dealing with the sentence to be imposed. To the extent that other factors are utilised, such as drug use and/or intoxication, they are not matters that are permitted to be used to mitigate the seriousness of the offence or the severity of the sentence to be imposed: s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999. 5. Thus, the Crown submits that the new material ought not be taken into account in re-sentencing; ought not be admitted, because it could not have been taken into account, relevantly, in the sentencing exercise by the learned judge below; and ought not now be admitted. The Crown submits that the material is not fresh evidence and it would be inconsistent with principle to allow its admission. Principles on admission of evidence 1. The circumstances relating to the admission of the evidence upon which the applicant seeks to rely are unusual. The applicant, on appeal, seeks to adduce evidence as to his psychiatric condition, in circumstances where that condition existed at the time of the sentencing hearing and evidence of the condition could have been available and adduced at the sentencing hearing, but was not. 2. Ordinarily, parties are bound by the manner in which their cases were presented at first instance. There are, however, exceptions. In Khoury v R [2011] NSWCCA 118; 209 A Crim R 509, Simpson J (with whom Davies J and Grove AJ agreed), at [104] – [105] said: "[104] The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals. [105] The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide: (1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance; (2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied. But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved." 1. Later in the judgment in Khoury, her Honour Simpson J (as her Honour then was) said at [113]: "Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; 'proper grounds' must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217." 1. The present situation is complicated by the direct questions of the sentencing judge relating to the availability and desirability of material of the kind upon which the applicant now seeks to rely. Nevertheless, the discussion initiated by the learned sentencing judge points to two propositions: first, that the sentencing judge considered such material relevant and important; and secondly, that the learned sentencing judge was not provided that material and was bound to sentence the applicant on the basis of the material before him. 2. Ultimately, the determination, of whether to allow this material to be adduced, rests on the principle that justice must be the determining criterion in the exercise of that discretion. Nevertheless, justice may have different effects, or pull in different directions, if one considers the long term effects on a just system or the immediate effects on a particular applicant. The foregoing refers, at least in part, to the "floodgates" argument. 3. There are a number of answers to the suggestion that to allow the evidence in circumstances, other than re-sentencing, would be to encourage others to take a similar course. First, the discretion to admit material on appeal is one exercised by the Court and can be controlled by the Court. Secondly, the reference to the flexibility that the discretion be exercised in the interest of justice, with particular reference to medical evidence (see Khoury at [115]), has not led to a plethora of applications based upon such flexibility. Thirdly, the ground of appeal associated with a miscarriage of justice caused by the incompetence of counsel is not often agitated or successful as deliberate forensic tactical decisions cannot be utilised for such a purpose. Moreover, there are few appeals against sentence utilising such a ground. 4. In this case, the ground of appeal is that there was a miscarriage of justice associated with the incompetence of the "representative" of the applicant, being the applicant himself. Moreover, where the evidence is, as it is in this case, to the effect that the applicant suffers a traumatic brain injury following an intra-cerebral bleed and surgery to drain a subdural haemorrhage, then the very decision to continue with the sentencing proceedings, regardless of the urging of the sentencing judge, becomes a factor in the determination of whether, in the Court's discretion, the additional evidence ought to be allowed on the appeal and not just on the process of re-sentencing. 5. The "floodgates" fear is not apparent. One would need an applicant, suffering from cognitive difficulties, who was prepared to conduct proceedings otherwise than in their best interests in order to establish a possible ground of appeal against sentence, which, if successful, would result in this Court sentencing in accordance with law or remitting the matter to the District Court in order for it to carry out the sentencing process. Ultimately, it would seem that any reasonable approach would result in the person to be sentenced putting their best case at the time of the original proceeding. To do otherwise would be irrational, which is exactly what occurred in this case. 6. I would propose to admit the evidence on the leave to appeal and the appeal itself, and, if the appeal were granted, also use the evidence in the re‑sentencing exercise. Consideration 1. For reasons already outlined, the sentencing judge was denied, by the irrationality and incompetence of the applicant, material that was relevant to the sentencing process. As a result, the process, notwithstanding the urging of the sentencing judge, miscarried. 2. The foregoing does not necessarily result in a successful appeal. There can be little doubt that the sentencing judge, because of his vast experience, took into account a number of matters that might otherwise have been the subject of expert evidence. He did this, seemingly, on the basis of his experience. 3. Nevertheless, as the sentencing judge pointed out, he was required to sentence on the basis of the evidence and material before him, which did not include the psychiatric and psychological reports now before the Court. In those circumstances, the incompetence of the representation at the sentencing proceedings has caused a miscarriage of justice. I would propose that leave to appeal be granted and the appeal be allowed. 4. The Court is thus required to re-sentence. As the Crown correctly notes, the provisions of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 precluded the use self-induced intoxication of an offender at the time of an offence as a mitigating factor in determining the appropriate sentence. 5. Even before the introduction of that relatively new sub-section, the intoxication by alcohol or drugs ordinarily did not mitigate the penalty to be imposed on a particular offender: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at [26]. 6. Nevertheless, as McClellan CJ at CL in Bourke said, that ordinary rule does not apply where the intoxication is the result of an addiction and the original addiction did not involve a free choice. His Honour's comments were that offenders could not expect reductions in sentence merely on account of the offence being committed while the offender was intoxicated. 7. The Crown submits that the effect of s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 is also "to abolish" that part of R v Fernando (1992) 76 A Crim R 58 that the High Court approved in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. I do not agree with that last mentioned submission. 8. The effect of Fernando and of Bugmy is to recognise that, in certain communities to which the circumstances in Fernando and Bugmy applied, the abuse of alcohol and drugs is so prevalent and accompanied by violence that the intoxication no longer fits the description of being "self-induced". In that way, the intoxication fits the description to which McClellan CJ at CL referred in Bourke. 9. I accept and adopt the comments and classification of the objective circumstances of the offence in question that was described by the learned sentencing judge. After reciting the facts, summarised above, and the subjective circumstances such as they were known, his Honour said (at page 5): "He [the applicant] has entered a plea of guilty at the earliest opportunity and is entitled to the maximum discount in relation to that. However, the offences are serious, although it has to be borne in mind, in terms of working out what is the appropriate sentence to impose in the case, that they all occurred as part of the one episode. Nonetheless, the wounding with intent to cause grievous bodily harm offences carry 25 years with a standard non-parole period of 7 years, and there are four other offences in addition, all of which form part of the same episode as the first two." 1. The offences certainly were serious and the objective seriousness of the offences, particularly in circumstances where the motivation was unexplained, were above the mid-range of objective seriousness. Further, the sentences should reflect the significant injuries inflicted on each victim, which injuries differ as between victims and are described above. 2. Likewise, I accept, in relation to the material that was before the learned sentencing judge, those comments his Honour made in relation to the subjective circumstances of the applicant. One of those circumstances is that the offender was not young. He was 36 years of age at the time of the offences and 37 years of age at the time he was sentenced. He had only recently been released from prison. Nevertheless, his criminal history in New South Wales only commenced in 2003, but includes offences of having custody of a knife, the possession of safe-breaking implements, goods in custody, resisting police, larceny, steal from person, damaging property, assault and the possession and self-administration of drugs. In 2011, the applicant was sentenced for recklessly causing grievous bodily harm. 3. Most importantly, the learned sentencing judge took into account his finding that the applicant had used drugs of various kinds since he was 13 years of age and has been on and off a methadone programme for his heroin/morphine addiction since 2003. At the age of 13 years, the applicant was not at an age of "rational choice" that would give rise to the full responsibility for the moral culpability and the predictable consequences of a choice to become addicted: see Bourke, supra at [28], citing R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [185]. The psychiatric evidence that is now before the Court confirms the sentencing judge's findings. 4. The report from Dr Nielssen reports the history given and an early childhood use of drugs and/or alcohol. He left home at 21, when his father committed suicide. At the age of 21, he took up using heroin. There is a history given of admission to psychiatric wards, mostly as a result of what was said to be drugs psychosis. Most interestingly, the applicant reported that he found amphetamines "were the worst for bringing on paranoia … but I've had it when I haven't had amphetamines". He reported paranoia or feeling a bit paranoid at the time of the offences. 5. The psychiatric history is also interesting. The applicant was not aware of any firm history of diagnosed schizophrenia or bipolar disorder among members of his biological family. His father shot himself several months after an admission to a psychiatric ward. 6. The applicant gave a history of use of amphetamines from around 14 or 15 years of age, but started using heroin only after 21 years of age. He was on a methadone programme and a programme involving anti-craving medication (buprenorphine). 7. Dr Nielssen described his emotional responses as being restricted in range: "in a way that was thought to be consistent with schizophrenia. He had several episodes of latency in his responses and subtle disorganisation of speech in a pattern that was thought to be consistent with the presence of an underlying schizophrenic illness. He described what seemed to be the persecutory belief that society was somehow against him, although it was not clear that he held any enduring delusional beliefs." 1. Dr Nielssen diagnosed the applicant as suffering from substance use disorder; probable underlying psychotic illness; and traumatic brain injury. Dr Nielssen expressed the opinion: "The diagnosis of a probable psychotic illness is based on the history symptoms consistent with psychotic episodes, including persecutory beliefs, the history of long admissions to psychiatric hospitals an aspect of [the applicant's] presentation at the time of the recent interview, when he was thought to have subtle disorganisation of speech and to be guarded in his responses to questions to elicit symptoms in a way that was thought to be typical of underlying mental illness. There is a family history of mental illness, as Mr Kelly reported that his father committed suicide soon after his [the father's] discharge from a psychiatric hospital. …. On the face of it the offences were due to the effects of intoxication in an irritable and chronically depressed person with a history of assault. [The applicant] did not describe specific symptoms of mental illness directly prompting the attack, but described a vague form of paranoia, the perception that noise was intruding from the street and the perception that society was against him. The effect of an underlying psychotic illness, an impairment in emotional regulation and impulse control arising from the brain injury may have been factors contributing to Mr Kelly's behaviour, in addition to intoxication with a medication that is similar in its effects to alcohol." 1. The psychologist's report was to similar effect, but the psychologist undertook testing and also gave a more detailed history of the applicant's drug abuse. After his release from prison in May 2013, the applicant was bingeing on marijuana, Xanax and morphine every fortnight and had binged on Xanax tablets on the day of the offences. 2. The psychologist referred to a textbook on benzodiazepines by C Paton and noted that: "the majority of users of benzodiazepine drugs such as Xanax experience calming effects. A minority of users, however, experience 'paradoxical reactions (also called dis-inhibitory reactions), characterised by acute excitement and an altered mental state, increased anxiety, vivid dreams, hyper-activity, sexual dis-inhibition, hostility and rage' (page 460). Albrecht and colleagues (2014) came to a similar conclusion. They found that benzodiazepine use was 'moderately associated with subsequent aggressive behaviour' (page 1110)." 1. The psychologist expressed the opinion that the applicant's psychological health deteriorated as a result of substance abuse, beginning in high school and deteriorating markedly in his 20's. The psychologist took the view that the deterioration in drug abuse also occasioned a deterioration in the applicant's psychological health, which was in part due to the suicide death of his father, the loss of his apprenticeship and addictions to heroin and benzodiazepine pills. 2. The psychologist said: "After the age of 20, he [the applicant] experienced further deterioration in his psychological health due to the suicide death of his father, loss of his diesel mechanic apprenticeship, and addictions to heroin and benzodiazepine pills. Lost relationships, unstable accommodation and lack of steady employment had a destabilising effect on Mr Kelly and made it more difficult for him to overcome his substance abuse problems. It appears that at the time of the offence, he [the applicant] was heavily affected by benzodiazepines, which had a disinhibiting affect, releasing violent impulses." 1. It seems, from the foregoing, that the applicant suffered from dis-inhibitory reactions, which were paradoxical and not reactions ordinarily associated with the use of benzodiazepine. As a consequence, it could not be said that the violent impulses and aggressive behaviour, caused by the benzodiazepine, and the disinhibiting effect of it, was a "predictable consequence of his choice as to the use of drugs" (being a reference to the passage in the judgment of McClellan CJ at CL in Bourke, above). 2. The foregoing has an effect on the exercise of the sentencing discretion. However, the seriousness of the offences requires that a sentence be imposed that is appropriate to serious offences of this kind. Even though the effect of the benzodiazepine on the applicant was out of the ordinary, the use of the drugs was still self-induced. 3. Further, the effects of the benzodiazepine on the applicant were not effects that could be described as "intoxication" or the ordinary effects of "intoxication". Rather, it was not the disinhibiting effects that was the major difficulty associated with the benzodiazepine, but the violent, aggressive tendencies caused by them. 4. I accept that it was appropriate for his Honour to provide a discount at the highest order for the plea of guilty. It seems to me that the issues of the applicant's mental health render the applicant less appropriate as an example to the community at large and renders less significant the issue of general deterrence. Nevertheless, general deterrence still plays a significant role in the fixing of this sentence. 5. Mental illness does not always have an ameliorating effect on the sentence to be imposed. Sometimes, the effect of a mental illness or disorder is to render the offender more likely to offend again and render more significant the factor of specific deterrence. Nevertheless, that does not seem to be the situation in relation to applicant in this appeal. 6. As the foregoing recitation of the psychiatric evidence discloses, the issues associated with mental illness did play a role in the commission of this offence. Even if it were not to have played a role, the mental health issue is an important subjective factor to be taken into account in sentencing the applicant. 7. Lastly, the need for extended supervision in the community associated with the mental health issues and issues associated with drug abuse satisfies me that special circumstances exist and a ratio for the non-parole period should be fixed, that is less than the statutory prescription. 8. For all of the foregoing reasons, I propose that the Court should issue the following orders: 1. Leave to appeal granted; 2. Appeal allowed; 3. The sentence imposed upon Timothy Kelly on 13 June 2014 by Justice Blanch, Chief Judge of the District Court, be quashed and in lieu thereof the following sentence be imposed: 1. For Sequence 6, destroy or damage property, contrary to s 195(1)(a) of the Crimes Act 1900, a fixed sentence of 18 months' imprisonment, commencing 3 October 2013 and concluding 2 April 2015; 2. For Sequence 4, assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 April 2014 and concluding 2 January 2017; 3. For Sequence 5, assault occasioning actual bodily harm, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 October 2014 and concluding 2 July 2017; 4. For Sequence 7, assault occasioning actual bodily harm, a fixed term of imprisonment of two (2) years and nine (9) months, commencing 3 April 2015 and concluding 2 January 2018; 5. For Sequence 2, wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act, a non-parole period of four (4) years' imprisonment, commencing 3 October 2015 and concluding 2 October 2019, with a balance of term of two (2) years and nine (9) months concluding 2 July 2022; 6. For Sequence 3, wound with intent to cause grievous bodily harm, a non-parole period of four (4) years' imprisonment, commencing 3 October 2016 and concluding 2 October 2020 with a balance of term of a further four (4) years and three (3) months, concluding 2 January 2025. 1. The overall sentence to be imposed is a head sentence of 11 years' and three (3) months' imprisonment, with a non-parole period of 7 years' imprisonment. The applicant will be eligible for parole from 3 October 2020. 2. R A HULME J: I agree with the orders proposed by Rothman J for the reasons his Honour has provided. ********** Amendments 29 November 2016 - Coversheet: Applicant's Representation corrected. 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: 29 November 2016