Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gwilliam v R [2019] NSWCCA 5 Hearing dates: 12 October 2018 Date of orders: 06 February 2019 Decision date: 06 February 2019 Before: Simpson AJA at [1] Walton J at [11] Wilson J at [12] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: SENTENCE – wounding with intent to cause grievous bodily harm – disputed facts - whether the sentencing judge erred in making findings as to motive – whether findings supported by evidence – basis of drawing inferences - whether applicant was denied procedural fairness – whether the sentencing judge erred in setting the non-parole period Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Barca v The Queen [1975] HCA 42; 133 CLR 82 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Chow v Director of Public Prosecutions (1992) NSWLR 593 Coy Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Duncombe v R [2013] NSWCCA 271 Jones v Great Western Railway Co (1930) 47 TLR 39 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Malvaso v The Queen (1989) 168 CLR 227 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Peacock v The King (1911) 13 CLR 619 R v Altham (Court of Criminal Appeal, 18 June 1992, unreported per Hunt CJ at CL) R v Way (2004) 60 NSWLR 168 Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Category: Principal judgment Parties: Shane Ronald Gwilliam – Applicant Regina – Crown Representation: Counsel: Ms M. Avenell – Applicant Ms T. Smith – Crown Solicitors: Mr B. Goh – Applicant Solicitor for Public Prosecutions NSW File Number(s): 2015/00189217 Publication restriction: None Decision under appeal Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 20 April 2017 Before: Sides QC DCJ File Number(s): 2015/00189217 Judgment 1. SIMPSON AJA: I have had the advantage of reading in draft the judgment of Wilson J, with which I agree. The following assumes familiarity with her Honour's judgment. 2. It appears that the Crown prepared a statement of facts for the consideration of the applicant and his legal advisors. The applicant took issue with a number of the facts so stated. It was therefore necessary for a hearing to take place to determine such of the facts as were contested. The primary judge resolved all in favour of the Crown position. There is no challenge to that acceptance. 3. The present challenge lies in findings and observations made by the sentencing judge in the course of determining the factual issues. One such finding was that the applicant brought the knife to the meeting as, effectively, insurance against refusal by Mr Vinski to supply on credit the drugs the applicant intended to purchase. 4. It is true that the Crown's response to a specific question as to the applicant's motive in bringing the knife was that neither Mr Vinski nor the applicant had offered a motive, and that "the only motive available on the evidence is, essentially, that it was a drug deal and there was a debt". 5. This was a case in which both principal witnesses gave detailed evidence and were extensively cross-examined. It would have been open to the applicant to give a reason for bringing the knife; he could not do that because he claimed that it was Mr Vinski who produced the knife. That issue having been found against the applicant, the sentencing judge was left to draw such inferences as were available on the evidence as to the applicant's motive in so arming himself. The inference he drew was one that was open to him on the whole of the evidence. Indeed, it is difficult to think of any relevant alternative motive. Further, it is not to be overlooked that his Honour went on to say: "… the Court is not satisfied beyond a reasonable doubt that he took the knife intending to stab the victim with it." 1. The other factual matters the subject of the application were, as Wilson J has shown, equally open to the sentencing judge. 2. Moreover, it is difficult to see in the remarks on sentence how findings of fact (such as rejecting the applicant's claim that he was proposing to buy drugs for a friend, and a finding that he got "cold feet" about asking for credit) in any way operated to the applicant's detriment in the sentencing determination. The sentencing judge said: "Taking into account only the objective factors affecting the relative seriousness of the offence, the court is of the view that this offence is a tad above the middle of the range of seriousness as connoted by the standard non-parole period of seven years prescribed for offences within this provision." 1. There is no indication, for example, that his Honour regarded the fact that the applicant brought the knife as any indication of planning or premeditation in the sense stated in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999. I agree with Wilson J that grounds 1 and 2 of the proposed appeal should be rejected. 2. I also agree with Wilson J that ground 3 of the proposed appeal should be rejected. 3. I agree that leave to appeal ought to be granted and the appeal dismissed. 4. WALTON J: I agree with Wilson J. 5. WILSON J: The applicant, Shane Gwilliam, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on 20 January 2017 for an offence of wounding with intent to cause grievous bodily harm. That offence, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), carries a maximum penalty upon conviction of imprisonment for 25 years, with a standard non-parole period of 7 years specified. 6. Although there was a significant dispute as to the facts of the offence, the applicant entered a plea of guilty to the charge on the day his trial was listed to commence in the District Court. He had been due to stand trial for wound with intent to murder, with the present offence charged as an alternative. The Crown ultimately proceeded with the lesser charge. After a hearing as to the disputed facts, the applicant was sentenced by his Honour Judge Sides QC to a term of 13 years and 6 months imprisonment, with a non-parole period ("NPP") of 8 years and 6 months. The sentence commenced on 27 June 2015 and expires on 26 December 2028; the NPP expires on 26 December 2023. 7. If granted leave, the applicant seeks to advance three grounds of appeal: 1. "Sides QC DCJ erred in making findings explaining Mr Gwilliam's conduct which were not supported by the evidence; 2. Mr Gwilliam was denied procedural fairness in relation to Sides QC DCJ's findings explaining his conduct; 3. Considered against the standard non-parole period, Sides QC DCJ erred in setting the non-parole period for Mr Gwilliam." The Proceedings in the District Court 1. At the sentencing hearing, the Crown tendered a statement of facts, only part of which was accepted by the applicant as accurate. There were thus issues of fact to be determined by the sentencing judge, and a hearing on the disputed facts occurred over three days from 15 to 17 March 2017, with evidence called by both the Crown and the applicant. 2. Although, as acknowledged by his plea of guilty, the applicant accepted that he had stabbed Mario Vinski intending to do him very serious harm, and that the stabbing occurred during the course of what was intended to be a drug buy, little else about the circumstances of the offending conduct was agreed. 3. In dispute were the questions of the origins of the knife used in the commission of the offence, the initiator of the aggression, and the circumstances in which the attack occurred. The Crown argued that the applicant had been the person to bring the knife to a meeting between him and the victim, and to produce and use the knife. The applicant asserted that it had been the victim who had brought the knife to the meeting, and subsequently produced it with the intention of using it. The applicant claimed that he had disarmed the victim, and had then, due to a "rush of adrenalin", used the weapon to inflict wounds to Mr Vinski, a number of which were very serious. 4. Having heard the evidence, the sentencing judge rejected the applicant's denials of having brought the knife to the meeting. His Honour concluded that the applicant's evidence lacked credibility and found that it was the applicant who had initiated the violence. He was sentenced on that basis. The Circumstances of the Offending 1. The evidence as to the circumstances surrounding the commission of the offence came from the Statement of Facts (insofar as it was agreed) and evidence from Mr Vinski, called by the Crown; and the applicant's evidence in his case on sentence. The Crown Case 1. Drawn from the Facts and the evidence of Mr Vinski is a summary of the following evidence relied upon by the Crown. 2. The victim and the applicant were known to each other, having been introduced previously by a mutual friend. Mr Vinski, who was a security officer/manager at two brothels owned and managed by his then partner, occasionally sold drugs to clients of the businesses and others. The applicant had in the past made purchases from the victim at his work places, or at the applicant's place of work. 3. The two had had some further contact, with the victim taking some children's toys to the applicant's home for the applicant's children around Christmas 2014. 4. Prior to the wounding of Mr Vinski, he had supplied the applicant with methylamphetamine worth $100, "on tick", or on credit. That money had not been paid as at the date of the offence. 5. On 26 June 2015 the applicant telephoned the victim to arrange to buy a quantity of methylamphetamine from him, asking the victim to meet him near his, the applicant's, work place, at a location at Coventry Place Mt Druitt. It was there that Mr Vinski was stabbed. 6. Exhibit D on the disputed facts hearing was a recording of a conversation between police and Mr Vinski in the ambulance en route to Westmead Hospital, after he had been wounded. It had been thought that Mr Vinski was likely to die of his severe injuries, and so an interview with him was recorded as a "dying declaration". 7. In it Mr Vinski said that he had met the applicant at a location specified by the applicant, being Coventry Place, around the corner from the applicant's place of work. The applicant got into the front passenger seat of Mr Vinski's car, the two had a "bit of a joke", and then the applicant began to stab him with some sort of knife. The applicant got out of the car and went to the driver's side, where Mr Vinski was further stabbed. He said that the applicant tried to pull him from his car, and he had begged the applicant not to kill him. 8. Mr Vinski said that he believed the applicant had stabbed him because of $100 owed to him, a debt Mr Vinski said was incurred when he loaned the applicant $100 after a house fire. 9. Later (on 1 March 2017, about 2 weeks before the date fixed for trial) Mr Vinski told police he had lied about the nature of the debt, and he made a further witness statement. He acknowledged the lie, and admitted that the sum owed to him by the applicant was a drug debt. 10. In his oral evidence on 15 March 2017 the applicant said he had been scared of telling the police that he had supplied drugs. He thought that the transaction leading to the debt had occurred more than six weeks before he was attacked, denying that it had occurred only two days prior. 11. Mr Vinski deposed that, on 26 June 2015, the applicant telephoned him at his workplace and asked him if he could supply $250 worth of methylamphetamine. Mr Vinski agreed and the applicant asked him to meet in Coventry Place Mt Druitt, just around the corner from the applicant's place of work. Mr Vinski said that he asked the applicant to bring the $100 he owed and the applicant agreed. 12. A little after 9 o'clock that night the two met, with the applicant getting out of his car and into the front passenger seat of the victim's car. The men shook hands, and exchanged some small talk. Mr Vinski noticed the applicant fiddling with his sleeve, but thought nothing of it. He turned his head to glance out of the car window, and felt a sharp pain. He turned back to face the applicant and saw that he was thrusting a metal object at him. He yelled "Why? Don't do this". The applicant made no response; he continued to thrust at Mr Vinski's chest. Mr Vinski raised his hands to protect himself, sustaining a number of knife wounds in the process. 13. The applicant then got out of the car and walked around to the driver's side of the vehicle. He tried to stab at Mr Vinski through the window of the car, before opening the door and trying to pull him feet first from the car. Mr Vinski tried to block the applicant with his feet and arms, and received further wounds. He held onto the steering wheel and head rest at one stage to prevent the applicant pulling him from the car. Mr Vinski started sounding his car horn, and was told to stop by the applicant. He offered the applicant money to stop stabbing him but, with "a blank look on his face" the applicant continued to try to stab Mr Vinski. 14. After a light was illuminated in a nearby factory, Mr Vinski deposed that the applicant thrust the knife towards the back of his head, wounding him. 15. The applicant then returned to his car and drove off at speed. Mr Vinski managed to telephone his workplace and the Triple 0 service. The recording of the latter call was in evidence. As he sat he heard a car pull up behind him and turned to see the applicant in the vehicle. He said, "Shane, don't kill me", before managing to get up and run away from the applicant. He fell, calling out for help. 16. A nearby resident heard the calls for help and went to Mr Vinski's aid. He immediately complained that "Shane" had stabbed him. An ambulance arrived and the victim was rushed to Westmead Hospital. 17. Upon admission to hospital, the victim was found to have low blood pressure, an elevated pulse, and multiple stab wounds, including: 1. Four larcerations across the left cheek, breaching the epidermis, with one penetrating inside the mouth; 2. Two wounds on the parietal scalp breaching the epidermis and dermis to the depth of the skull; a 7mm piece of metal was located lodged in the skull; 3. Two wounds on the posterior neck, breaching the epidermis and dermis; 4. One wound of 3-4cm in length over the sternum, to the depth of the breast bone; 5. One wound to the left third intercostal space (between the ribs) in the mid-collarbone line; 6. Two wounds on the left upper arm; 7. One significant wound near the armpit and three smaller injuries breaching the epidermis and dermis; 8. Three wounds on the left forearm and a smaller laceration to the finger; 9. Three wounds on the right leg, breaching the epidermis and dermis; and 10. One laceration across the right hand, 7cm in length, breaching the epidermis and dermis, and a smaller laceration to the right wrist. 1. The victim underwent a chest drain and was intubated, before having surgery to clean and close his wounds. Serious complications from the injuries necessitated the making of a large incision in Mr Vinski's right leg, requiring a subsequent skin graft. A number of photographs depicting the injuries were before the sentencing court. 2. The victim sustained nerve damage to both hands as a result of his injuries, which required surgical intervention and nerve repair. He was required to wear hand splints for several weeks, as well as undergoing ongoing physical therapy. He was discharged from hospital on 6 July 2015, but his injuries required considerable follow-up with trauma and hand therapy clinics, and medication for pain relief. 3. The victim has permanent nerve damage to his hands, with fingers on each hand impaired. He has no sensation in those fingers, seriously impeding him in day to day activities. He has permanent scarring to his face, hands, legs, neck and chest. 4. An examination of the crime scene found a significant quantity of blood in and about the victim's car, and leading away from it. There was some money in an envelope in the car, and damage to the front passenger seat visor that had not been present before the attack. Mr Vinski additionally noted some cuts to the seat belt. 5. The applicant's car was also forensically examined, and blood found on the steering wheel and centre console. Clothing found at the applicant's home, and a beanie found in another car, were also bloodstained. The blood was forensically linked to Mr Vinski. 6. The knife used by the applicant to attack Mr Vinski was never found. 7. The Crown tendered an electronically recorded interview between the applicant and investigating police, which took place following the applicant's arrest on 27 June 2015. During the interview, the applicant gave an account that he later agreed was false, describing a third unknown man as responsible for the attack upon Mr Vinski. 8. The applicant told the officers that he met Mario to get drugs off him, and got into the front passenger seat of Mario's car to complete the transaction. He then heard Mario say "what the fuck", and turned to see a "dude" in the backseat. The dude had a knife. He directed the applicant to get out of the car, threatening him not to call police. The applicant got out of the car as directed but, thinking to help Mr Vinski, went around to the driver's side and, opening the door, tried to pull Mr Vinski out of the car. The male told the applicant he had a gun, and the applicant "fucken' took off". He said that he had to think of his family, and so did not telephone police. The applicant told police that, after a short time, he went back to the scene and saw Mario running down the road, and the dude on the other side of the road. He went home. 9. He denied having been the person who attacked Mr Vinski, saying "no way". He explained a cut to his hand as having occurred when the dude showed him the knife and pushed it towards his upheld palms before he got out of the car. The applicant denied owing Mr Vinski money, and claimed to have been meeting him to buy drugs on behalf of a friend. He refused to nominate the friend. The applicant thought it was "strange" that the police would think he was responsible, and asserted that he had told them everything he knew. The Applicant's Evidence 1. The applicant gave evidence on the third day of the hearing, 17 March 2017. 2. He agreed that he had lied to police in the recorded interview, because he was scared of going to gaol, and also to protect Mr Vinski from "getting into trouble for striking" him. He maintained in cross-examination that a wish to protect the victim from getting into trouble was in part his motivation for lying to police in his interview, saying that he thought Mario had "suffered enough". 3. He said that he had known Mr Vinski as a supplier of "ice" and he had met the victim on twenty or thirty occasions to buy the drug from him. He claimed to have witnessed Mr Vinski selling to "heaps of people" in the time he had known him. 4. The applicant claimed that he had met with the victim two days before the stabbing and purchased half a gram of "ice" from him, with a purchase price of $250, of which he paid $150. The applicant had promised to pay the remaining $100 the following Tuesday. On 26 June 2015 he telephoned Mr Vinski to make another arrangement to purchase more ice. He said that he hoped to buy half a gram, although for a friend, and not for himself. He gave evidence of having "specifically" told the victim that the purchase was on behalf of someone else. He said there was no discussion of the $100 debt. The applicant suggested that they meet near his former work place, as he thought that would be better for Mr Vinski. 5. The applicant said that when he got to the agreed location he approached Mr Vinski's car gesturing to him to question whether he should get into the car or go to the driver's window. He was directed to get in, and did so. Once in the car the victim asked him for the $100, which the applicant said he did not have. He said that Mr Vinski proposed selling him a lesser amount of drugs than that agreed on, but he objected, as the purchase was for a friend. The applicant claimed that Mr Vinski said he was sick of getting stuffed around and pulled out a knife, which he used to "slash at" the applicant. 6. The applicant said he raised his arm with his hand turned towards Mr Vinski and received a cut to the palm of his hand. When Mr Vinski moved again to stab at him, the applicant said that he grabbed Mr Vinski's wrist and forced his hand upwards, causing him to drop the knife, which fell to the footwell of the car. The applicant picked it up and "started to stab him". He was asked in chief by his counsel why he didn't just get out of the car and run away, and answered, Well it was – I had no time to think at all it was just like a reaction, adrenal going, fear and that's just what happened. 1. When asked what he was afraid of, he said "the knife" (which he then held). He said he struck Mr Vinski a number of times with the knife, deposing that, Well after I've struck him like a heap of times on the left side of the body and like neck and back he's – he sort of stopped fighting then and I've stopped as well and then he said to me that he's going to get his gun and shoot me. 1. He said that he believed he was going to be shot, even though he never saw a gun, because the victim had told him previously that he carried a gun. 2. The applicant told his counsel that on the day of the stabbing he had used methylamphetamine, and had not slept since the previous Tuesday, about three days earlier. He said that, when Mr Vinski produced the knife, he simply reacted, without having time to think. He denied trying to pull Mr Vinski from the car, stabbing him to his upper body, or demanding or taking any property from him. In cross-examination he said that he had made up his account to police in his interview of trying to pull Mr Vinski from the car (to help him escape from the unknown male) as a means to explain the blood on his clothing, although, in fact, he had never tried to pull him from the car. 3. When he left the scene, the applicant said he drove about, stopping at one point to throw away the knife used to stab Mr Vinski, after wiping it clean on his beanie. Worried that the victim would die of his injuries, he drove back to the location and saw Mr Vinski running across the road. He then drove off. At no stage did he call an ambulance for Mr Vinski. 4. As to the injuries inflicted upon Mr Vinski, the applicant said that he was sorry that he had "reacted that way". He agreed in cross-examination that he was younger, and of a bigger build than the victim, and had used considerable force in inflicting the injuries upon him, sufficient to leave a piece of metal lodged in Mr Vinski's skull. He said that he blamed Mario for "starting it off". 5. The applicant tendered a number of intelligence reports held by NSW Police relevant to drug supply activity at the brothels managed by Mr Vinski that had been produced under subpoena. The reports ranged in date between 2012 and 2016, and had been assessed as having varying levels of reliability, from likely to be reliable to unreliable. There was no evidence to suggest that any of the intelligence reports had led to arrests and charges. None of them referred to Mr Vinski as a person who carried a weapon. Other Evidence – The Crown Case 1. A criminal history relating to the applicant showed that he had two prior convictions, from 1997 and 2007, both for dishonesty offences. The offences were dealt with in the Local Court by a fine and bond respectively. 2. Aside from his physical injuries, Mr Vinski was treated at the Westmead Institute's Traumatic Stress Clinic for Post-Traumatic Stress Disorder ("PTSD"), the diagnosis initially made of his symptoms. He participated in treatment the subject of a research trial and his symptoms were thereby reduced, such that the diagnosis of PTSD no longer applied. Mr Vinski continues to suffer from psychological symptoms however, that cause him "significant functional impairment and distress". 3. A victim impact statement was tendered. In it Mr Vinski referred to the many wounds he had sustained; the significant scarring to his face and body, which he tried to hide; and the permanent, and painful, damage to his hands. His injuries were such that he could not work for 18 months, and struggles to find employment. Mr Vinski referred also to the emotional trauma, which had been substantial, and had led, he believed, to the breakdown of his relationships with his partner and children. He described himself as withdrawn, sad, and broken. The Applicant's Case on Sentence 1. The applicant gave evidence before the sentencing court as to the circumstances surrounding Mr Vinski's stabbing, and also as to his personal circumstances. He was aged 37 at the time of the offence, and 39 when sentenced. He had been using "ice", or methylamphetamine, recreationally for, either, 18 months to two years, or about three or four years prior to the commission of the offence, but was using the drug more heavily in the three or four months before the incident. 2. The applicant told the sentencing judge that, since having been in custody, he had undertaken a drug rehabilitation course, and hoped to do more once sentenced. When held at Goulburn Gaol he had worked in cabinet making, for about 10 months. The applicant said that he was willing to work whenever work was available to him. 3. In the community, the applicant said that he had always been employed, other than for a few weeks prior to his arrest. He had ordinarily worked as a truck driver, and he held a licence to drive heavy vehicles. He intended to pursue that type of work when released from custody. 4. The applicant identified his mother and other supporters present at court, whom he said he could rely upon for support on release. He told the sentencing judge that he had four children to two former partners, and had an excellent relationship with his children. 5. He said that he had been involved with rugby league for about 27 years, as a player and, in the last 5 years, as a voluntary coach of an under 12 years team. 6. The applicant tendered a number of testimonials written by family and friends. Consistent in all the letters are references to the applicant's good character, his usually non-violent nature and the existence of a support network upon his release. Several of the letters mention the applicant's reported remorse for his conduct, his altered mood since his entry into custody, and desire to remain free of drugs upon release. Report of Dr Sathish Dayalan 1. Also before the court, tendered on behalf of the applicant (Ex. 3), was a psychiatric report prepared by Dr Sathish Dayalan dated 24 February 2017, for the purpose of the sentencing proceedings. In compiling his report, Dr Dayalan conducted a psychiatric assessment of the applicant on 16 February 2017 and had regard to other documentary material supplied to him. 2. The doctor took a history from the applicant, commencing with his reportedly "normal" upbringing in Auburn in New South Wales. He is one of six siblings born to parents who separated when the applicant was aged 11 years. He denied any history of childhood abuse or trauma. 3. The applicant stated that he had demonstrated academic proficiency at school before being expelled in Year 10 for fighting. Thereafter, he began working in a warehouse and started driving trucks at the age of 21. He reported having worked for most of his adult life, but was made redundant three weeks prior to his arrest. 4. The applicant reported having been in three long term relationships in his adult life, the first two of which lasted five years each. The applicant has four children between the ages of 4 and 16 years and, prior to his arrest, resided with his partner and three of his children, in Erskine Park. 5. The applicant smoked cannabis in his teenage years, and admitted to experimenting with ecstasy and amphetamines. He reportedly began using crystal methylamphetamine about 3 years prior to his arrest, initially once or twice a week. In March 2015, however, after a house fire destroyed the applicant's home and most of his belongings, he began using increasing amounts with greater frequency. In the period prior to the offence, the applicant admitted to using half a gram of crystal methylamphetamine on a weekly basis, and drinking two to three alcoholic drinks per week. He stated that he was not on any prescribed medication. 6. The applicant described feeling emotionally distressed in the wake of the fire and under intense financial pressure. He reported feeling useless, with a persistent low mood. He admitted that his use of crystal methylamphetamine exacerbated his mood symptoms but that he had not sought any assistance from health professionals. 7. Following his arrest, the applicant continued to have persistent low mood and difficulties sleeping. He consulted mental health professionals in custody, but was not prescribed any psychiatric medication. He denied any past history of mania, psychosis or obsessive compulsive disorder. 8. In the period prior to the offence, the applicant described having felt low in mood, with disrupted sleep. He denied experiencing psychotic symptoms. Two days prior to the alleged offence, the defendant had used half a gram of crystal methylamphetamine and earlier on the day of the offence, had used a "couple of tokes" at a friend's house. He told Dr Dayalan that he felt "intoxicated". 9. With regards to the offence, the applicant told Dr Dayalan that he had "gone into a rage in fear…not thinking…I started stabbing him…it was fear, adrenalin that made me do it". 10. In assessing the impact of illicit drug consumption on the applicant at around the time of the alleged offence, Dr Dayalan did not consider that the applicant was experiencing any psychotic symptoms as a result of the substances. He did note that, "Intoxication with crystal methamphetamine often results in heightened perception of any threatening stimuli resulting in "paranoia", impairment of judgment with limited understanding into consequences of their behaviour and difficulty in controlling impulses or actions". 1. He opined that, "behaviour displayed by Mr Gwilliam can be understood in the context of the threatening situation that he had been placed under and impaired cognitive senses due to intoxication with crystal methamphetamine." 1. He did not consider that the applicant's symptoms were "severe or extensive enough" to warrant a diagnosis of major mood disorder, and that his stimulant use disorder appeared to be "in remission in a controlled environment". Remarks on Sentence 1. In his remarks the sentencing judge set out the facts that were agreed, noting the competing accounts of the disputed circumstances surrounding the commission of the offence. 2. His Honour observed that the most significant area of dispute was with respect to the knife: who had brought the knife to the meeting, and first produced it. The sentencing judge referred to the absence of any compelling independent evidence supporting either account, and to the fact that both Mr Vinski and the applicant had acknowledged lying to police. He said, […] there is no apparent reason, in terms of direct evidence, for them to produce the knife upon the other. 1. Both had described their relationship as unproblematic, and the evidence suggested that it was not simply the relationship of drug dealer and drug user, but went a little deeper, with some exchanges between them independent of commercial transactions. 2. His Honour noted that the evidence of the applicant and Mr Vinski was to the effect that everything was "normal" between them when they met on the evening of 26 June 2015, with the applicant getting into the victim's car, and the two shaking hands and engaging in small talk. His Honour noted that, regardless of whether the $100 debt had been mentioned in the earlier telephone call in which the meeting was arranged, the evidence indicated that the debt was not a major issue for Mr Vinski. The sentencing judge said, If as the victim asserted, he had asked the offender during the phone call that preceded their meeting to bring the $100, there was a potential motive for the offender to come to the meeting armed with a knife, that motive being the inability to repay the debt. This proposition was not put to the offender during the course of the evidence. However, he denied it during the course of the ERISP interview. 1. As to the attack upon the victim's credit, his Honour noted that the victim had confessed to the police that he had lied about the basis of the debt owed him by the applicant about two weeks prior to the trial date, at a time when he expected to be soon giving sworn evidence before a court. The court concluded that the victim's explanation for his initial lie about the debt, that he was frightened of admitting supplying drugs, was credible. His Honour was not satisfied that the victim's credibility was undermined by lies told to conceal his activities as a drug dealer. 2. His Honour noted that a person who worked in the sex industry, and who sold drugs, as Mr Vinski had, might be likely to carry some sort of weapon for protection, but there was no evidence to support the claim that he had done so. There was no weapon found in the victim's car when it was searched by police after the stabbing and, similarly, no weapon was found in the victim's bedroom at his workplace. The police intelligence reports relied upon by the applicant did not contain any reference to the victim being armed. The evidence of both the victim and the applicant that their relationship was without problems suggested that there would have been no reason for the victim to go armed to the meeting. 3. By contrast his Honour found that a number of aspects of the applicant's account of events lacked credibility. He was not satisfied that the applicant's claim that he had made up his account to police of a third man stabbing the victim in part to protect Mr Vinski from getting into trouble was credible. His Honour noted that, although the applicant understood his right to silence and had exercised it in the early part of his police interview, he began to give a fabricated account of events to police as he became aware that his bloodstained clothing had been located by police, and that the officers knew what car he drove. The sentencing judge concluded that the applicant's sole motive in giving a false account to police was to protect himself from being sent to prison. He said, Once he had admitted to being in the victim's car and lying about the existence of the man in the backseat to extricate himself from responsibility, it makes no sense to lie about owing the victim money, unless he was concerned about providing a motive to commit the offence because he could not repay the loan, a proposition which he denied at question and answer 303 of the ERISP interview. 1. His Honour concluded that the applicant had lied to the court in his evidence when he asserted, contrary to what he had said contemporaneously and contrary to his demeanour in the recorded interview, that he was intoxicated at that time. The court was satisfied that this lie was told by the applicant to try to distance himself from the interview with police. 2. The court rejected the applicant's account of the reason why he had stabbed the victim, noting that, when he started to stab Mr Vinski there was no reason for him to defend himself because there was no reason to believe that Mr Vinski posed a danger to the applicant. On the applicant's evidence, he had disarmed the victim and the knife had fallen to the footwell of the car, with Mr Vinski making no movement at all to retrieve it. His Honour noted that, even if the applicant had thought there was a need to defend himself, his response to the threat was so excessively disproportionate to the danger as to give rise to doubt about the claimed need to act in self-defence. 3. His Honour thought that the failure by the applicant to secure help for Mr Vinski, and his conduct in cleaning and discarding the knife were inconsistent with an act done in self-defence. Further, the court rejected the notion that, in circumstances where he was frightened that the victim had a gun he would, on getting out of the car, walk around to the driver's side door as the applicant claimed he had, rather than flee. 4. His Honour noted a number of internal inconsistencies in the applicant's evidence, and between his evidence and portions of the facts he had earlier agreed to be accurate. In the court's conclusion, the applicant's evidence lacked credibility, and his evidence had been significantly undermined. His Honour concluded, The Court is also of the view that his credibility has been substantially undermined and is satisfied beyond a reasonable doubt that his denial of bringing the knife to the scene and, out of the blue, attacking the victim with it lacks credibility. In the Court's view his account of acting in response to the victim's production of the knife and aggression with it was an attempt on the Offender's part to minimise his culpability. Whilst there are some matters that raise issues about the victim's credibility, the Court is not persuaded that they adversely impacted upon his credibility in a material way. Apart from his evidence about the Offender being over the top of him and putting his weight on him, which appears inconsistent with the absence of significant amounts of blood on the Offender's jacket, the Court is satisfied beyond reasonable doubt that the victim's account is credible. Accordingly, with the exception of that matter, the Court accepts his version of the events in the parts of [the agreed statement of facts] that are highlighted to indicate the areas of dispute. 1. The sentencing judge found that it was the applicant who had arranged the meeting at Coventry Place, and that he had been told by the victim to bring the $100 owed. The judge did not accept that the applicant was intending to make a purchase of $250 worth of methylamphetamine for his unidentified friend but, referring to his lack of any source of income, concluded that, […] the offender arranged the meeting with the victim on the 26th in the hope that the victim might provide [methylamphetamine] on tick again. However, he also knew that there was a chance that the victim would not agree. To meet that contingency, the offender took the knife. Whilst the taking of it was premeditated, the Court is not satisfied beyond a reasonable doubt that he took the knife intending to stab the victim with it. […] In the Court's view, after some general conversation the offender got cold feet about asking the victim for methylamphetamine on tick and spontaneously produced the knife and started attacking the victim with it, intending to cause him grievous bodily harm so he could take the methylamphetamine without paying for it. 1. The applicant had, in the court's conclusion, gone to the driver's side door to try to get methylamphetamine from the victim, and had failed to obtain it because Mr Vinski sounded the car horn and a light came on nearby. The applicant's immediate flight was because he feared detection for the wounding of Mr Vinski. 2. As to the gravity of the crime, his Honour concluded that, This was a vicious and sustained attack upon the victim, using a weapon directed repeatedly at vulnerable parts of the victim's body and at times with considerable force. It only came to an end because the Offender feared detection. 1. His Honour placed the offence as falling a little above the mid-range of objective gravity for an offence of this nature. 2. The court found that the applicant was not intoxicated at the material time, and had not been suffering from any mental condition that contributed to the commission of the crime. 3. As to the applicant's personal circumstances, he was given the benefit of his limited criminal history, one which was without any convictions for offences of violence, and his former good work history. His Honour was satisfied that the applicant's crime was an aberration, and his prospects of rehabilitation were reasonable to good. A finding of special circumstances was found in the applicant's favour, on the basis of his need for an extended period of supervision on release. The Proposed Appeal Ground 1: Sides QC DCJ erred in making findings explaining Mr Gwilliam's conduct which were not supported by the evidence Ground 2: Mr Gwilliam was denied procedural fairness in relation to Sides QC DCJ's findings explaining his conduct 1. Grounds 1 and 2 are related and can be considered together. 2. The applicant complains that there was no basis for the sentencing judge to conclude that: 1. The applicant was not intending to buy drugs for a friend and did not have $250 cash on his person to pay for it; 2. The meeting was arranged by him in the hope of getting drugs on credit, with the knife taken along by the applicant in case that did not eventuate; 3. The applicant got cold feet about asking for drugs on tick; 4. He walked to the driver's door to take the methylamphetamine, inflicting grievous bodily harm on the victim to enable him to take the drug. 1. It is contended that these propositions were not raised with the applicant in his evidence, not addressed in submissions, and were not, in any event, the Crown case. Because they were not raised, the applicant was not given an opportunity to address them, and was thus denied procedural fairness. 2. The Crown submits that the sentencing judge reached conclusions on a number of key factual matters on the basis of the evidence placed before the court and, having done so, his Honour was entitled to draw available inferences from those factual findings. His Honour was not obliged to foreshadow for the applicant every possible finding that he could make drawing on the conclusions of fact reached. The Court was referred to Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317, per Bathurst CJ, Simpson J (as she then was), and Adamson J) at [109] – [110], where the distinction between permissible inference and speculation was considered. 3. The decision to which the Court was referred is instructive. In Lane, this Court considered a challenge to conviction that raised, among other grounds, a complaint that the trial judge erred in not leaving manslaughter to a jury that was considering whether the Crown had proved to the requisite standard that the appellant had murdered her newborn baby. Since the Crown's case was entirely circumstantial, there was no evidence of the means of inflicting death, and nor had the baby's body ever been found. To reach the verdict it did, the jury was obliged to draw a number of inferences. 4. At [108], the Court said, Every element of the offence had to be proved by the Crown by inference. It may reasonably be asked, and the question has to be confronted, why it is permissible for the jury to draw the inference that, by some means that cannot be specified, the appellant murdered the child, but that it would not have been permissible for the jury to find that she killed the child, but in a manner that amounted to manslaughter rather than murder. 109. The answer to that question lies in the distinction, which is a very real one, between inference and speculation. In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as "a deduction from the evidence" which, if reasonable, may have the validity of legal proof. 110. He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows: "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." Spigelman CJ stated the test as: "... whether, on the basis of the primary facts, it is reasonable to draw the inference." To similar effect were observations of Gibbs, Stephen and Mason JJ in Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104-105.]. 1. In the decision of Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ referred to a number of decisions in which the nature of an inference, and its difference from conjecture, was considered. In Jones v Great Western Railway Co (1930) 47 TLR 39 Lord Macmillan, at 45, observed that the dividing line between inference and conjecture could be difficult to draw, noting that the "attribution of an occurrence to a cause is, I take it, always a matter of inference". 2. Another statement of the distinction between permissible inference and impermissible speculation was given in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 where, at 169 - 170 Lord Wright said, "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." 1. The test as to whether a conclusion is inference or conjecture rests on reasonableness: on the basis of primary facts, is it reasonable to draw the inference. For an inference to be reasonable it must rest on something more than mere conjecture: The Queen v Baden-Clay [2016] HCA 35, at [47], quoting Peacock v The King (1911) 13 CLR 619 at 661, extracted in Barca v The Queen (1975) 133 CLR 82 at 104. In a criminal case, the conclusion of reasonableness must go one step further, and be such as to exclude other reasonable hypotheses: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitton JJ. 2. The question here is whether the conclusions drawn by the sentencing judge were available deductions from the evidence, or impermissible speculation. 3. In answering that question it is important to bear in mind the context of the sentence proceedings, and those matters which were in dispute. The applicant did not dispute any of the elements of the offence, as his plea established. The primary issue in dispute, as the sentencing judge observed, was whether the applicant brought the knife to the encounter with the victim, and whether he produced it prior to using it. That can be categorised as a question concerning who did a particular thing; a finding that would clearly be significant in answering that question, was why it happened. 4. Each of the inferential findings of fact complained of by the applicant pertains to why the offence occurred. In the context of this matter, reaching a conclusion as to why the relevant events occurred was inextricably linked to determining who carried out the acts around which there was dispute. That the sentencing judge would consider why particular events occurred should have been apparent to all of those involved in the matter, negating a requirement for the sentencing judge to specifically raise those matters with the applicant. 5. The conclusions of fact made by his Honour of which the applicant complains were, in my opinion, conclusions open to the tribunal of fact as inferences reasonably drawn from conclusions based on evidence. The Applicant was not acting on behalf of another to buy drugs 1. The first matter raised by the applicant is the sentencing judge's conclusion that the applicant was not attending the meeting with the victim to make a drug purchase for a friend. 2. Although the applicant complains that it was not open to the judge to make this finding, it was one of the disputes of fact identified by the parties during the proceedings and it should have been clear to all involved that the sentencing judge would be likely to resolve that factual dispute. On that basis, it was open to the applicant to call all relevant evidence to support his claim, including evidence from the friend for whom he claimed to act. By the time of the sentence hearing, there could have been no legitimate concern that the unnamed friend could get into trouble, since any offence of attempt to possess a prohibited drug, a summary offence, was statute barred. It is not to the point that the Crown did not attempt to disprove the claim; it did not have to. 3. The evidence that supports the conclusion drawn by his Honour can be readily identified: the victim denied in his evidence that, as the applicant asserted, the applicant had specifically stated that he was making a purchase for a friend. It was open to his Honour to accept the victim's evidence on this point and reject the applicant's contrary evidence. That was particularly so since the applicant had refused point blank to name the friend for whom he was purportedly acting, even when assured by police that, in the context of investigating a serious stabbing, the authorities were unconcerned by a person seeking to obtain drugs for personal use. 4. It was also open to his Honour to conclude that, if the applicant lied about his intentions in meeting the victim, the whole of his contention on this subject – that he had cash in his pocket and that the cash was from a friend – was false. 5. The applicant suggests that the applicant should have been given an opportunity to call evidence that may have been available, from his family for example, as to a possible source of funds from them, but that was not the applicant's case. He is bound by the case he put before the court; appeal proceedings do not provide an opportunity to speculate about some other case that could have been advanced: The Queen v Baden-Clay at [48], [54] – [55]. 6. I am not persuaded that, either, this conclusion of fact was not open on the evidence, or, that his Honour was specifically obliged to warn the applicant that he might reject his assertions on the point as a fiction. The meeting was arranged by him in the hope of getting drugs on credit, with the knife taken along by the applicant in case that did not eventuate 1. Although the applicant deposed that he used drugs only when he could get them, there was a body of evidence from which it was open to the sentencing judge to conclude that the applicant had a greater need for drugs than his assertion of casual use suggested. A fact agreed by the applicant was that he had obtained drugs from the victim on a number of occasions previously; in his own evidence he said this had occurred 20 or 30 times. He told the sentencing judge in evidence both that he had been using ice for 18 months to 2 years, and 3 to 4 years. The evidence was that it was the applicant who sought out the victim to obtain $250 worth of methylamphetamine. On the basis that his assertion of having been funded by a friend to make the purchase was rejected, it was open on the evidence for the sentencing judge to conclude that the applicant had no money himself to pay for drugs, but wanted to obtain them nevertheless. 2. The applicant had not been employed for about 6 weeks prior to the offence. He had not applied for or obtained any benefit through Centrelink and was dependent on his mother and former partner for financial assistance. He already owed the victim $100. The evidence supported conclusions that, firstly, the applicant wanted to obtain drugs and, secondly, that he had no money to permit him to purchase them. On that basis, it was open to the court to infer that the applicant set up the meeting with the victim hoping that he would extend further credit to him and supply him "on tick". Against that background, and on the basis that the sentencing judge accepted the victim's evidence that he told the applicant to bring the money he was owed, it was open to his Honour to infer that the applicant took the knife with him against the possibility that credit would not be forthcoming. 3. These conclusions flow from the dispute about the purpose of the meeting arranged by the applicant and, on that basis, were matters of fact about which the parties were on notice that the sentencing judge may make factual findings. The applicant got cold feet about asking for drugs on tick 1. This conclusion similarly flowed from his Honour's earlier conclusions that the applicant had arranged to meet with the victim hoping to get drugs on tick. His Honour accepted the victim's evidence that the applicant got into the victim's car and there was some exchange of small-talk. Since the applicant did not raise the subject of credit, the obvious conclusion open on the evidence is that he changed his mind for some reason. The expression "got cold feet" means no more than that. Since there was evidence that the applicant was aware that the victim did not give credit generally, and had done so only once for the applicant after he had had a house fire, it was reasonable to infer that the applicant, once in the car, realised it was futile to ask for credit and so, "got cold feet". This conclusion was open to the court. He walked to the driver's door to take the methylamphetamine, inflicting grievous bodily harm on the victim to enable him to take the drug 1. His Honour accepted the victim's account that the applicant had produced the knife very soon after he got into the passenger seat of Mr Vinski's car and, thereafter, inflicted a number of serious and disabling injuries. Mr Vinski said, and his Honour accepted, that the applicant had then gotten out of the passenger seat and walked around to the driver's door, where he inflicted further knife injuries and attempted to pull Mr Vinski from the car. The only rational inference was that he did so to enable him to take the drugs that Mr Vinski had in his possession. 2. Prior to reaching that conclusion the sentencing judge had rejected the applicant's claims about going to the driver's side of the car because he was frightened of being shot. As his Honour observed, that claim defied logic. If, as he said, the applicant feared he would be shot, on getting out of the car it is reasonable to conclude that the only course he would have taken was to run or otherwise take cover. It is contrary to all common sense that the applicant would have walked around the car and presented himself as a target at the driver's door. 3. The conclusion of the sentencing judge as to the applicant's purpose in going to the car door, and trying to drag Mr Vinski out of it, was clearly open. 4. That the applicant did not in fact obtain any drugs does not render impossible that he would have had such intent. His failure to secure methylamphetamine is readily explained by panic that he would be seen and apprehended when the victim sounded his car horn continuously, and a light was observed to be illuminated from a property nearby. 5. Having regard to the evidence both accepted and rejected by his Honour, all of the conclusions he reached were in my view reasonable, and open on the evidence as available inferences. No other reasonable hypotheses favourable to the applicant were available in light of the case he presented before the court. 6. That the sentencing judge would make findings of fact on these aspects of the matter should have been obvious to the parties, without there being any need for his Honour to specifically raise each. Determining why these events occurred went to aid the sentencing court in determining the principle matter of dispute: who brought and produced the knife. It was clear that the Crown disputed the applicant's version of events, arguing that the applicant had arranged to meet the victim to buy drugs without any mention of making the purchase for another person, and in circumstances where the victim had raised the subject of the debt, and asked the applicant to bring the money owed. The applicant's evidence before the sentencing judge was disputed as lies, and the Crown asked the sentencing judge to reject it. 7. In any event, even had the Crown taken no position on some aspects of the applicant's evidence, that would not necessarily compel the sentencing judge to have accepted the applicant's account of events, or to warn him that he may not do so. In Chow v Director of Public Prosecutions (1992) NSWLR 593 Kirby J said, at 606, 5. The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: see Malvaso v The Queen (1989) 168 CLR 227 at 233; R v Altham (Court of Criminal Appeal, 18 June 1992, unreported per Hunt CJ at CL). 1. That must be particularly so where, as here, the applicant's evidence was, in my opinion, inherently implausible and gave every indication of having been, as the Crown suggested to the applicant, made up to fit the evidence he knew the police had gathered. 2. In a wide-ranging dispute of this nature the onus is on the parties to present the evidence each thinks is necessary to allow the court to properly determine the issues. It is not the responsibility of the sentencing court to specifically enumerate matters that are clearly in dispute, and raise the possible findings of fact that could be made prior to making them. Such a requirement would place an impossible burden on sentencing courts, particularly where, as here, the sentencing judge heard the evidence and submissions between hearing unrelated trials and list matters, in the context of an extremely busy court. 3. Whilst what is required to ensure that a party is afforded procedural fairness will differ depending on the circumstances of individual cases, the applicant was not unfairly dealt with in the present instance. Ground 3: Considered against the standard non-parole period, Sides QC DCJ erred in setting the non-parole period for Mr Gwilliam 1. This ground appears to take a mathematical approach to arguing for error in which the standard non-parole period is determinative of the sentence to be imposed. The applicant's argument is that because the sentencing judge found that the offence fell "a tad" above the mid-range of objective gravity for an offence of this nature, the NPP imposed should have been "a tad" above the standard non-parole period of 7 years. 2. Although the applicant denied in oral submission that he was asking the Court to attribute determinative significance to the standard non-parole period, it is difficult to interpret his submissions in any other way. 3. Such an approach is not consistent with authority, and not consistent with proper sentencing procedure. Since the approach to the standard NPP taken in R v Way (2004) 60 NSWLR 168 was swept away by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the standard NPP specified for an offence has been understood not to have "determinative significance". It is one of the legislative guideposts to which a sentencing court must have regard, the other being the maximum penalty specified for the offence. The maximum sentence in this instance is 25 years imprisonment. Undue focus on the standard NPP may tend to distract from the significance of the maximum penalty: Duncombe v R [2013] NSWCCA 271 at [53]. 4. In fixing the sentence imposed upon the applicant, and in determining the NPP (favourably to the applicant, involving a finding of special circumstances), his Honour had regard to the two legislative guideposts, to the objective gravity of the offence, and to the subjective case. He also allowed a discount of 10% on sentence to reflect the utilitarian value of the plea of guilty. Arguably, this was unduly generous, having regard to the lateness of the plea and the diminution of its already limited utilitarian value because of the need for the court to hear and determine a factual dispute. 5. Although the sentence imposed by his Honour was a stern one, its sternness is a proper reflection of the savage and pitiless nature of the attack upon Mr Vinski, and the very serious and permanent injuries that were inflicted upon him. Conclusion 1. I would grant leave to the applicant to advance his appeal, but dismiss it. ********** Amendments 11 February 2019 - Cover sheet field Cases cited changed from: Seltsam Pty Limited v McGuiness; James Hardie & The Queen v Baden-Clay [2016] HCA 35 To read: Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 February 2019