Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ukropina v R [2016] NSWCCA 277 Hearing dates: 22 November 2016 Date of orders: 02 December 2016 Decision date: 02 December 2016 Before: Hoeben CJ at CL at [1] Bellew J at [47] Hidden AJ at [48] Decision: (1) Leave to appeal granted. (2) The appeal is allowed. (3) The sentence imposed by Scotting DCJ on 10 December 2015 is quashed. (4) In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 4 years commencing 14 November 2013 and expiring 13 November 2017 with a balance of term of 2 years expiring 13 November 2019. Catchwords: CRIMINAL LAW – sentence appeal – plea of guilty to manslaughter due to a substantial impairment by an abnormality of the mind – applicant killed his 29 year old daughter – whether sentencing judge erred in assessing the level of mental impairment – whether adequate reasons given for his finding of the level of substantial impairment – whether mental illness properly taken into account when assessing objective seriousness of offending – medical evidence all one way – very substantial level of mental impairment – error made out – need to resentence. Legislation Cited: Crimes Act 1900 (NSW) - ss 18, 23A Criminal Appeal Act 1912 (NSW) - s 5(1)(a) Cases Cited: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Catley v R [2014] NSWCCA 249 Cowan v R [2015] NSWCCA 118 Hone v State of Western Australia [2007] WASCA 283 Martin v R [2015] NSWCCA 6 Mizzi v The Queen [1960] HCA 77; 105 CLR 659 R v Kelly (1993) 30 NSWLR 64 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Category: Principal judgment Parties: Djuro Ukropina – Applicant Regina – Respondent Crown Representation: Counsel: H Dhanji SC/S Howell – Applicant B Baker – Respondent Crown Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2013/344725 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 10 December 2015 Before: Scotting DCJ File Number(s): 2013/344725 Judgment 1. HOEBEN CJ at CL: Offence and sentence The applicant pleaded guilty in the Local Court to an offence of voluntary manslaughter contrary to s 18 of the Crimes Act 1900 (NSW). The agreed basis of the applicant's plea to manslaughter was substantial impairment by an abnormality of mind pursuant to s 23A Crimes Act 1900 (NSW). 1. The applicant was sentenced by Scotting DCJ to a term of imprisonment with a non-parole period of 4 years and 9 months commencing 14 November 2013 and expiring 13 August 2018 with a balance of term of 2 years expiring 13 August 2020. The maximum penalty for manslaughter is imprisonment for 25 years. There is no standard non-parole period. 2. The applicant seeks leave to appeal against his sentence pursuant to s 5(1) (a) of the Criminal Appeal Act 1912 (NSW). 3. The applicant relies on the following grounds of appeal. Ground 1 – The learned sentencing judge erred in finding that at the time of the offence the applicant was not impaired to an extent that was significant beyond that required to make out the partial defence of substantial impairment by abnormality of mind. Ground 2 – The learned sentencing judge erred in failing to provide adequate reasons for his finding that, at the time of the offence, the applicant was not impaired to an extent that was significant beyond that required to make out the partial defence of substantial impairment by abnormality of mind. Ground 3 – The learned sentencing judge erred in not considering the applicant's mental illness in assessing the objective seriousness of the applicant's offence. 1. On 14 November 2013 the applicant killed his 29 year old daughter (the deceased) when he stabbed her fatally in the back in the course of an argument in their home at Kingsford. 2. At this time the applicant was suffering from severe depression. This mental illness appears to have first arisen when he visited his mother in Bosnia in August 2013. After the applicant returned to Australia he suffered from various symptoms of depression and anxiety including repeated anxiety attacks. 3. In the week before the incident the applicant attended various medical practitioners in respect to his anxiety and depression. On 8 November he was admitted to the Emergency Department of the Prince of Wales Hospital where he was diagnosed with major depression with features of melancholia. He was prescribed (a trial of) anti-psychotic medication. The applicant continued to suffer from symptoms of anxiety and depression over the following days. 4. On 13 November 2013 the applicant's wife (Brana) left for New Zealand. At this time the applicant "seemed all right". Around 11am the applicant sent a text to his eldest daughter (whom he had not seen since June 2013) in which he described himself as "very sick". The applicant described the sickness as one "that ends life". At around 2pm the acute care team attached to the Prince of Wales Hospital called the applicant. He said that he had a low mood and that he did not think that the medication was working. The acute care team advised him to make an appointment with a psychiatrist. The acute care team assessed the applicant's risk of harming himself or others as low. 5. On the evening of 13 November 2013 the applicant and the deceased were alone in his apartment. At around 7pm Brana called the applicant and the deceased. At that time everything seemed fine. Brana called the deceased at 10pm and thanked her for coming and helping with the applicant. At around 10pm, neighbours heard two screams in quick succession. Neighbours also reported hearing a male and a female speaking in an Eastern European language between 1am and 2am. The conversation was loud and fast paced and the female did most of the talking. 6. At around 3am on 14 November 2013, the deceased telephoned Brana and told her that the applicant could not sleep, was panicking and wanted to go for a walk. The deceased wanted to call the acute care team but the applicant would not let her. Brana spoke to the applicant who agreed to let the deceased call the acute care team. The acute care team spoke to the deceased and the applicant. It was arranged that the mental health team would call them both the following day. 7. At 5:02am and 7:34am, the deceased contacted her boyfriend (by text and telephone respectively) and said that she had been up between 3am and 5am with her father, because he had suffered another anxiety attack. Between 8am and 8:10am, residents of unit 11 (which was directly underneath the applicant's apartment) heard heavy and hurried banging on their front door. They also heard heavy breathing or voices outside their door. The door of the applicant's unit, which was directly above their unit, was heard to open and close twice. 8. At around 8:20am the residents of unit 11 opened their front door in response to the banging and found the deceased leaning against a brick wall slumped over with her eyes closed. The applicant was standing over the deceased holding her right forearm. There was blood on the applicant and the deceased. There was blood on the door of unit 11. The deceased was unable to be saved. 9. An autopsy was conducted. This determined that the cause of death was a single stab wound to the back. This would have caused significant injuries and affected the deceased's respiration. No defensive injuries were identified. 10. The applicant was questioned by police and emergency personnel as to the circumstances of the deceased's death. At the scene, the applicant's expression was bland and he did not show any emotion. He said that he did not know what had happened. When formally interviewed on the morning of the incident, the applicant denied having an argument with the deceased in the hours before her death. The applicant later said that he had an argument with the deceased because she wanted to call Brana to tell her how he was feeling. The applicant said that he was a little bit upset and a little angry at the deceased then but not in the morning. The applicant maintained that he did not stab the deceased. 11. On 27 December 2013, Brana and the deceased's boyfriend visited the applicant, who was then in custody in Silverwater Correctional Centre. Their conversation was lawfully recorded. In that conversation, the applicant said that he knew that he had stabbed the deceased. He said that he did not know why he had done this. He said that the deceased had told him that his tablets made him stink, but later added that they had also argued about whether the applicant should go to work. The deceased had told the applicant to stay at home and rest. 12. On admission to custody, the applicant was diagnosed with major depression with psychosis. He made several suicide attempts in custody. On 10 April 2014 the applicant was assessed by Dr Lauren Taylor, psychiatric registrar. The applicant told Dr Taylor that his memory was intact as to the events of the morning of 14 November 2013 but that he was unable to make sense of what had happened. He said that he felt angry towards his daughter and agreed that it was a "snap of anger" that had caused the incident. Proceedings on sentence 1. In the proceedings on sentence, the Crown tendered a Statement of Agreed Facts, the applicant's criminal history and his custodial history. The Crown also tendered two reports of Dr Olav Nielssen dated 6 December 2014 and 3 December 2015. 2. The applicant's case on sentence consisted of two reports by Dr Richard Furst dated 17 September 2014 and 12 November 2015, and a Justice Health report prepared by Dr Scott Clark dated 10 January 2014. 3. In their reports, both Dr Nielssen and Dr Furst expressed the opinion that the applicant was suffering from severe depression with psychotic (melancholic) features at the time of the offence. Both were of the opinion that the applicant's mental illness deprived him of the ability to know that his actions in stabbing his daughter were wrong and that the applicant's mental illness made it difficult for him to exercise self-control. Both doctors were also of the opinion that the applicant had a defence of mental illness open to him and that he would be able to raise a defence of substantial impairment. 4. In the sentence proceedings, when the applicant's medical reports were tendered, the following was said by the Crown and counsel then appearing for the applicant: "CROWN: I should just indicate to your Honour that to the extent that the Crown, Dr Nielssen's reports refer to a possibility of a defence of mental illness, that's not pressed by the Crown and I take it the same applies for my friend's reports. LOUKAS: Indeed, your Honour. HIS HONOUR: Yes, I gathered that from the submissions. I have read the submissions, I have read the facts, I've read the first of Dr Furst's reports and Dr Clark's report…". (T 4.6) 1. In his report of 6 December 2014, Dr Nielssen gave his opinion as follows: "Diagnosis of major depressive illness with psychotic features is based on Mr Ukropina's account of a syndrome of severe depression, the corroborative information in the various documents and medical records and aspects of his presentation at the time of the recent interviews. Mr Ukropina reported the reoccurrence of the severe form of depression that began about 3 months before the offence with sleep disturbance, marked weight loss, typical diurnal mood variation and severe anxiety and agitation. He experienced psychotic symptoms over and above the negative perception of severe depression as he believed he was terminally ill, that he emitted a bad smell and hallucinations of voices telling him among other things that he was going to die and that he should kill himself. Various assessments the weeks before the offence confirmed the presence of a severe form of depression with agitation and prominent anxiety symptoms. Witness statements confirm the presence of near nihilistic delusional beliefs. He has had a long admission to the prison hospital where his treating doctors have made the diagnosis psychotic depression and treated him with various combinations of anti-depressants and anti-psychotic medication. His presentation at the time of the recent interview was consistent with the presence of a depressive illness rather than a chronic psychotic illness or any form of dementia… [I note Mr Ukropina's various accounts of his state of mind at that time and his reported amnesia of aspects of the offence including the washing of the knife. However based on Mr Ukropina's account of stabbing his daughter in the recorded conversation with his wife and Mr Bogdanovic I believe that he was probably aware of the physical nature and quality of his actions in picking up a knife and stabbing his daughter once in the back.] … Mr Ukropina would also be able to raise the defence of substantial impairment by abnormality of mind on the basis of the presence of an abnormality of mind in the form of a severe state of depression arising from an underlying condition in the form of a psychotic depression. His abnormality of mind affected his perception of the events as he believed he was terminally ill and emitted a bad smell and was also agitated, anxious, sleep deprived and affected by sedative medication and also his ability to control his actions in part because of the absence of any rational motive or explanation for stabbing his daughter." 1. Dr Furst, in his report of 17 September 2014 reviewed all of the applicant's medical records including his Justice Health Records and those from the Prince of Wales Hospital. He also viewed the applicant's ERISP. Under "diagnosis" he set out the following: "Major depressive disorder (severe) with melancholic features and psychotic features Major Depressive Disorder is an illness characterised by pervasive low mood, low self-esteem, and loss of interest or pleasure in normally enjoyable activities. It is a disabling condition that has an adverse impact on a person's ability to work or study, their family life, sleeping and eating habits and general health. Diagnosis is based upon a combination of self-reported symptoms and mental state features. Depressed individuals may be preoccupied with, or ruminate over, thoughts and feelings of worthlessness, inappropriate guilt or regret, helplessness, and self-hatred. Other symptoms of depression include poor concentration and memory, withdrawal from social situations and activities, reduced sex drive and thoughts of death or suicide. Insomnia is common. It is common for individuals with depression to present with physical complaints including fatigue, headaches, or problems with digestion. The more severe depressive symptoms are typically referred to as melancholic, which are characterised by a more sever level of depressed mood, anhedonia (loss of pleasure and profound sadness), and psychomotor agitation. The presence of nihilistic delusions and other mood-congruent psychotic symptoms, including auditory hallucinations, is generally regarded as a psychotic depression or a melancholic depression with psychotic features." "Mr Ukropina was suffering, and continues to suffer from, severe melancholic depression with evidence of melancholia and psychotic features. His condition had its onset around August 2013, was present at the time of the alleged offence in November 2013 and has continued for several months after his arrest, up until the current time. He remains an involuntary patient in the Long Bay Hospital. His actions at the time in question will be a matter for the trier of fact to determine. However, it would appear that he was probably suffering from an abnormality of mind at the time of the offence by virtue of his melancholic depression with psychotic features, such that his judgment was impaired. His mental state at the time of the alleged offence was described by witnesses as Mr Ukropina staring blankly with little emotion and not responding verbally. He may well have been in some type of dissociative state by virtue of his depression. He remained disturbed at the time of the police interview, with evidence of apparent psychosis and severe depression. In my view, his severe depression probably made it difficult for him to judge whether his actions were right or wrong and difficult for him to control himself. He probably has the defence of substantial impairment by abnormality of mind open to him, which will be a matter for the trier of fact to determine on the available evidence." 1. Scotting DCJ made the following findings in the sentence proceedings, none of which are challenged on appeal: (i) The deceased was stabbed without warning and from behind with significant force. (ii) The applicant intended to cause grievous bodily harm to the deceased to bring an end to the conflict between them. (iii) At the time of the offence the applicant was suffering from severe melancholic depression with psychotic features such that his judgment was impaired. (iv) The applicant was probably in a dissociative state by virtue of severe depression. (v) The applicant acted with knowledge of what he was doing at the time when he stabbed the deceased. (vi) The applicant's ability to comprehend the consequences or to control his actions was significantly reduced. (vii) The applicant does not pose a risk to the community on his release to parole provided that he continues to accept his treatment and monitoring of his mental condition. The greater risk is that if his mental condition is not controlled then he will cause himself harm. (viii) There was a causal connection between the applicant's mental state and the offence. (ix) In view of the psychiatric evidence, there should be a reduction in the weight afforded to general deterrence. (x) Specific deterrence was also of lesser significance because the applicant has a low risk of re-offending; he has engaged in extensive treatment to which he has responded well; the offence was committed at a time when the symptoms of his mental illness were acute causing an isolated loss of self-control. (xi) The applicant's expressions of remorse also included an acceptance of responsibility for his offending conduct, and he has demonstrated genuine contrition and remorse. (xii) The applicant was not fully aware of the consequences of his actions and as such, his moral culpability was reduced. (xiii) The applicant was entitled to a 25% discount for his plea of guilty. (xiv) There were no relevant aggravating factors prescribed by s 21A (2) of the Crimes (Sentencing Procedure) Act 1999. (xv) Matters in mitigation included that there were no prior convictions; he was 57 years of age at the time of the offence, he was a person of good character; he was gainfully employed; he posed no significant danger to the community and is unlikely to re-offend; he has a positive prognosis; and he demonstrated remorse and contrition. (xvi) A finding of special circumstances was made based on the applicant's age; the need for psychiatric treatment and monitoring; this being his first time in custody; and that his mental condition would make his incarceration more difficult. 1. His Honour had regard to the wide range of circumstances which can give rise to the offence of manslaughter. His Honour stated: "As in the case of manslaughter by provocation what is ordinarily involved in manslaughter by substantial impairment is a conclusion that the taking of human life is the consequence of a deliberate and voluntary act performed with the intent to kill or cause grievous bodily harm or with reckless indifference to human life. The abnormality of mind diminishes but it does not negate the offender's responsibility. It was stated in R v Lowe: "It is quite wrong to take the view that merely because there is an element of diminished responsibility which substantially impairs a person's judgment that that is the end of the matter and a light sentence must inevitably follow." It is necessary for a sentencing judge to consider the degree to which an offender's mental condition was impaired beyond that required to make out the partial defence. While an impairment of greater degree may tend to cause a further diminution in culpability it may also raise the issue of future dangerousness." (Sentence judgment 18.5) 1. His Honour noted that a mental abnormality can have two countervailing effects. It can indicate that the offender is a danger to society when he is at large but it also diminishes his moral culpability for a particular crime. His Honour noted one consideration tended towards a longer custodial sentence while the other tended towards a shorter. 2. When considering the objective seriousness of the offending, his Honour said: "The sentencing judge should take into account not only the conduct that actually constitutes the crime but also such of the surrounding circumstances as are directly related to the crime and are properly regarded as circumstances of aggravation or mitigation." (Sentence judgment 20.1) 1. His Honour's conclusion was that "the offence involves the unlawful taking of a human life and the appropriate sentence must reflect the gravity that of the objective circumstance." (Sentence judgment 21.8) 2. Having made specific findings in relation to the applicant's mental state. His Honour said in relation to the psychiatric evidence: "The offender does not pose a risk to the community on his release to parole provided that he continues to accept treatment and monitoring of his mental condition. The greater risk is that if his mental condition is not controlled then he will cause himself harm. There was a causal connection between the offender's mental state and the offence. Whilst I accept the description of the offender's mental condition by Dr Furst and Dr Nielssen is severe I am not satisfied that he was impaired to an extent that was significant beyond that required to make out the partial defence provided for by s 23A of the Crimes Act." (Sentence judgment 22.2) (My emphasis.) THE APPEAL Ground 1 –The learned sentencing judge erred in finding that at the time of the offence the applicant was not impaired to an extent that was significant beyond that required to make out the partial defence of substantial impairment by abnormality of mind. Ground 2 – The learned sentencing judge erred in failing to provide adequate reasons for his finding that, at the time of the offence, the applicant was not impaired to an extent that was significant beyond that required to make out the partial defence of substantial impairment by abnormality of mind. 1. It is convenient to deal with these two grounds together since they essentially raise the same issue. 2. The applicant submitted that the sentencing judge's finding as to the degree of impairment suggested that his Honour was of the opinion that the applicant's impairment fell only just under the description of "substantial" so as to warrant the reduction of liability from murder to manslaughter. The applicant submitted that this finding was not consistent with the body of psychiatric evidence tendered by both the Crown and the applicant. The applicant submitted that his Honour's finding in this regard amounted to a rejection of the unchallenged opinions of relevantly qualified experts and it was not open to his Honour to reject this evidence without providing adequate reasons. 3. On that issue the applicant relied upon the observations of the High Court (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ) in Mizzi v The Queen [1960] HCA 77; 105 CLR 659 at 663 where the Court said: "We are not here dealing with a case in which the medical evidence is under suspicion of partiality or one in which it is contradictory. The experts were independent, they were of undoubted qualification and they were in complete agreement as to the prisoner's mental state." Later the Court said at 665: "It appears to us to provide the jury with an inadequate explanation of the real meaning and effect of the medical evidence as to the mental incapacity of the prisoner at the time of the homicide to appreciate the wrongness of the act sufficiently to satisfy the test expressed in the word "know"." 1. The applicant also relied upon the decision of Hone v State of Western Australia [2007] WASCA 283 where the Court of Appeal of Western Australia reviewed cases concerning the approach which should be taken by a judge where there was un-contradicted psychiatric evidence. The Court held that a judge or jury in such circumstances should not reject or ignore medical opinions which were honest, competent and unchallenged. 2. In the alternative, the applicant submitted that the finding by his Honour, which was inconsistent with the uncontradicted opinions of the expert witnesses, required that his Honour set out the reasoning leading to the finding. The applicant submitted that failure by his Honour to do so amounted to error. On that issue the applicant relied upon Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 and Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430. 3. The Crown submitted that the assessment of the extent of the applicant's impairment was a question of fact and that such a finding might only be reviewed by this Court if it was "not open" to the sentencing judge to make such a finding (R v Kelly (1993) 30 NSWLR 64). The Crown also submitted that these grounds of appeal involved a misreading of what his Honour had found in relation to the extent of the applicant's mental impairment. The Crown submitted that his Honour did not make a positive finding that the applicant's impairment "fell only just within the description of substantial" so as to warrant the reduction to manslaughter. Rather, the finding was that he was not satisfied that the impairment was "significant" beyond that required to make out the partial defence. The Crown submitted that such a finding was fairly open to his Honour and was consistent with the opinion of the psychiatrists. Consideration 1. My reading of what his Honour said accords with the interpretation of the applicant. It seems to me that his Honour was making a finding that the level of the applicant's impairment was only just within the description of "substantial" as set out in s 23A of the Crimes Act (1900). This is consistent with what his Honour said at [28] hereof. 2. The issue to which these grounds of appeal give rise to was discussed in Catley v R [2014] NSWCCA 249 by R A Hulme J (Bathurst CJ and Johnson J agreeing) as follows: "41 Reliance was placed upon R v Antaky [2007] NSWSC 1047 at [35] where R S Hulme J said in relation to substantial impairment: "Some impairment may be gross, some may only just fall within the description of 'substantial' so as to warrant the reduction. The presence and relative weight of other factors has also to be taken into account". 42 Reference was also made to R v Keceski (Court of Criminal Appeal (NSW), 10 August 1993, unrep) where there was a verdict of manslaughter on the basis of substantial impairment. Mahoney JA observed that, after it was accepted that the offender's mental responsibility was substantially impaired, "[t]hat leaves the determination of one of the matters relevant to sentencing, namely, the extent to which what he did was really affected by his mental condition, granted always that one must start from the basis that his mental responsibility was 'substantially impaired'." 43 In oral submissions, counsel for the applicant conceded that for this ground to succeed it was necessary to make good the contention that the evidence disclosed an impairment significantly beyond what was required to make out the partial defence of substantial impairment. Counsel went further than this and submitted that it is always relevant to look at the degree of impairment, as it goes both towards objective seriousness of an offence and to the subjective case of an offender." 1. I also agree with the applicant that given his Honour's findings as to the severity of the mental impairment i.e. that there were psychotic features, that the applicant was in a dissociative state and that the applicant's ability to comprehend the consequences or to control his actions was significantly reduced, do not support a finding that the applicant's impairment fell just within the description of "substantial". They go well beyond and indicate a much higher level of mental impairment. 2. I am also of the opinion that because of his Honour's specific findings as to the nature and the effect of the applicant's level of mental impairment and because of the combined opinion of the two psychiatrists, for his Honour to make the finding which he did, reasons should have been given. Those reasons need not have been elaborate but some explanation of the apparent inconsistency between the earlier specific findings based on the expert evidence and the ultimate finding as to the level of mental impairment needed to be given. 3. It follows that error did occur and that these grounds of appeal have been made out. Ground 3 - The learned sentencing judge erred in not considering the applicant's mental illness in assessing the objective seriousness of the applicant's offence. 1. The applicant submitted that his mental impairment was not taken into account in his Honour's assessment of the objective seriousness of the offending. The applicant submitted that this was an error and relied on the decisions of Martin v R [2015] NSWCCA 6 at [53] and Cowan v R [2015] NSWCCA 118 at [61] - [62] where clear statements of principle were made to the effect that in cases of mental illness this was a matter which should be taken into account when assessing objective seriousness. This was particularly so when a finding was made that there was a causal link between the mental illness and the commission of the offence. Consideration 1. This ground of appeal is not made out. It is clear from his Honour's analysis of objective seriousness that he did take the applicant's mental illness into account. His Honour made this point at p. 20.1 of the Sentencing judgment which is set out at [26] hereof. 2. Having made that correct statement of principle it is clear from the analysis which followed that his Honour took into account as a surrounding circumstance directly related to the offending, the applicant's mental impairment. Resentence 1. Because the first two grounds of appeal have been made out it is necessary to resentence the applicant. It is not necessary however, to analyse the facts or the evidence as to mental illness. All this was done in an unexceptional way by the sentencing judge. It was only his Honour's conclusion as to the level of impairment which was challenged in the grounds of appeal which were made out. Accordingly, in the re-exercise of the sentencing discretion I have had regard to all of the specific findings made by his Honour (see [23] herof). 2. It is also necessary for me to have regard to events which have occurred between December 2015 when the applicant was sentenced and the present time. In the event of re-sentencing an affidavit of the applicant affirmed 18 October 2016 was placed before the Court. This affidavit deals comprehensively with the applicant's present state of health and the regime of medication and treatment which he is undergoing. The affidavit makes clear that the applicant has experienced considerable remorse and feelings of guilt as a result of his offence. There is no doubt that the applicant's mental condition has improved while he has been in custody. It is also clear from the affidavit that the applicant's isolation from his family brought about largely by the offence is making his time in custody more difficult than it otherwise would have been. 3. Taking his Honour's findings into account together with that affidavit material the sentence I propose is imprisonment with a non-parole period of 4 years and a balance of term of 2 years. This is because the evidence supports a finding of special circumstances. In particular, the general tenor of the reports of Dr Furst and Dr Nielssen is that if the applicant is allowed a longer period on parole and receives appropriate treatment, his rehabilitation is more likely to be successful. 4. The orders which I propose are: (1) Leave to appeal granted. (2) The appeal is allowed. (3) The sentence imposed by Scotting DCJ on 10 December 2015 is quashed. (4) In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 4 years commencing 14 November 2013 and expiring 13 November 2017 with a balance of term of 2 years expiring 13 November 2019. 1. BELLEW J: I agree with Hoeben CJ at CL and with the orders proposed by his Honour. 2. HIDDEN AJ: I agree with Hoeben CJ at CL. ********** 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: 02 December 2016