Biddle v R

HOEBEN CJ at CL:

The applicant was arraigned before a jury on 12 September 2011 and pleaded not guilty to murder but guilty to manslaughter. The jury retired after the completion of his Honour’s summing up on 22 September 2011 and returned a guilty verdict on Friday, 23 September 2011.

He was sentenced by Garling J on 28 October 2011 to imprisonment with a non-parole period of 18 years and a balance of term of 9 years commencing 21 February 2009 (R v Biddle [2011] NSWSC 1262, “Sentence judgment”). The applicant will be first eligible for consideration for parole on 20 February 2027. The maximum penalty for murder is imprisonment for life and it carries a standard non-parole period of 20 years.

The applicant relies upon the following grounds of appeal:

The applicant was aged 60 at the time of the offence. He had been married to the deceased for 42 years and they had four adult children. At Christmas 2008, the applicant had a brief affair with another woman. The deceased confronted him about the affair on 1 January 2009. Although the applicant initially denied the allegation, he later admitted it when confronted with evidence. An argument followed, during which the applicant took a knife and threatened to kill himself. He was excluded from the house by the deceased. After apparently taking steps towards committing suicide, he was taken to Kempsey Hospital, and after assessment, was released into the care of one of his daughters (Natasha), with whom he stayed for a few weeks.

Some contact later occurred between the applicant and the deceased. It was agreed that the applicant could return to the marital property. He could not live in the house, but in a caravan which would be moved onto the property.

About a week before the offence (which occurred on 20 February 2009), the applicant moved back onto the property and lived in the caravan. He had some access to the homestead for the purposes of using washing and bathroom facilities and for meals.

On the day of the offence, the applicant spent the day working at his service station in Kempsey. After visiting his daughter’s (Jody) home, where he had a drink with his son-in-law, he returned to the homestead. He had dinner with the deceased and other family members, including his son Dean and daughter Jennifer.

During the evening, an argument occurred between the applicant and Dean, who pushed the applicant over. The deceased intervened and Dean left. The deceased became verbally abusive to the applicant, telling him that the marriage was over and that they would live separate lives from that point forward. She told the applicant that he was close to being “kicked off” the property. The deceased told the applicant to go back to his caravan which he did. Jennifer stayed with her mother for about an hour and a half before returning to her granny flat, which was located on the property.

About 30 minutes after Jennifer left, the applicant went back to the homestead, and attacked the deceased with an iron bar, hitting her numerous times to the head. He then went onto the verandah, yelling to his daughter Jennifer that he had just killed her mother. He telephoned the other children telling them the same thing. The applicant was seen to be pacing up and down the verandah holding a kitchen knife, and threatening to kill himself. Police and an ambulance were called. When police arrived, the applicant decamped, but was found in a paddock. A stand-off with police took place over numerous hours before the applicant was subdued, taken to hospital, and placed in custody.

The deceased was taken to hospital and airlifted to Sydney. However, she never recovered consciousness, and died the following day from head injuries.

The applicant did not give evidence at trial. The defence case at trial was that although the applicant caused the deceased’s death, he should be found guilty of manslaughter, not murder, because his actions were the result of either provocation or a substantial impairment by abnormality of the mind.

In relation to the second issue, the defence called three expert medical witnesses, forensic psychiatrists Dr Olav Nielssen and Dr Richard Furst and neurologist Dr David Rosen. They gave evidence as to the long term effects of a brain injury sustained by the applicant due to an earlier episode of meningoencephalitis. These witnesses provided expert evidence based on records of the illness which was suffered by the applicant in 1993/94, further tests done in 2005 in response to complaints concerning his brain function, and tests undertaken in 2011 by a forensic neuropsychologist, Dr Susan Pulman. The defence experts also gave evidence by way of commentary on the opinions of the Crown's medical experts who were Dr Pulman and forensic psychiatrists Professor David Greenberg and Dr Michael Allnutt.

The sentencing hearing took place on 10 October 2011. A number of victim impact statements by family members were read and became exhibits.

The applicant gave evidence at sentence and explained his family and work history, and his history of a serious brain disease (viral meningitis) in 1993/94. He said that after that illness he “came good”, but was still fumbling a lot on his legs and that high-pitched noises hurt his ears. He said that he had a good life before the relevant events, but became involved in a relationship outside his marriage which brought a lot of anger from the deceased. He said that he had been trying for two and a half years to find an answer to why he killed his wife. He just didn't know. He assumed it was for love and anger. He had no recollection of that night and he could not answer that question. He had no memory of getting the iron bar and did not know if it was the iron bar that was the handle to the jack supporting the tractor in the shed. He had always said that he was sorry for what he had done – he could not express his remorse enough and said so in letters to his children.

Garling J set out in an uncontroversial way the principles to which he would adhere in setting out his sentence judgment. In that regard, it should be noted that the decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 was handed down five days before his Honour delivered his sentence.

It was necessary for his Honour to determine the facts on which he was going to sentence. The uncontroversial background facts have already been referred to. His Honour went on to make the following additional findings.

His Honour was satisfied from what the applicant had said to police during the stand-off, and what police found when they entered the house, that he had left the caravan and proceeded to an open-sided work shed on the property where he retrieved an iron bar that was ordinarily used as a handle to raise and lower a hydraulic jack.

The applicant walked from the shed to the homestead where the deceased was. He first attempted to enter the front door but then decided to go to the rear of the homestead and enter there quietly so as not to warn the deceased of his presence. He came up behind her while she was standing in the lounge-room and struck her on the head with the iron bar. His Honour was satisfied that the deceased then moved slowly from the lounge-room, along the hallway to an area between the two bedrooms, where she slumped to the floor bleeding heavily. There the applicant subjected her to another five or six blows of significant force. She was quite helpless and in vain, made attempts to shield her head from the blows.

His Honour concluded that the applicant struck the deceased intending to kill her.

His Honour described the injuries suffered by the deceased as horrific. The blows fractured her skull in a number of places, causing significant lacerations to the top and side of her scalp and a very serious brain injury.

His Honour accepted that the applicant had no memory of the offence or of a period of approximately six hours following it. This was supported by the mental health professionals who testified at the trial, and attributed this phenomenon to psychogenic amnesia or repressed memory which was a quite common, or at least a not uncommon, phenomenon in homicide cases. His Honour accepted this as the cause of the lack of memory, rather than the applicant pretending conveniently that he did not remember what occurred.

His Honour noted that the only evidence relating directly to the applicant’s motivation for the killing was from the police recording of a two hour portion of the stand-off. In that recording, the applicant attributed his wrongful behaviour of going “off his brain” and killing the deceased due to a loss of temper.

The applicant described the loss of temper as triggered by events subsequent to the deceased’s discovery of his affair and which centred on his disenfranchisement from the family and family home. This included being forced to leave the family home to live initially in Kundabung and later in a caravan on the property. The applicant described the arguments between him and the deceased on the night of the killing and her direction to him that he return to the caravan. The applicant said that afterwards loud music was played by the deceased to annoy him.

The applicant has been in custody since 21 February 2009.

At trial, the applicant submitted that the jury would find on the evidence that he was provoked and therefore guilty of manslaughter. Consistent with the jury’s verdict, however, his Honour was satisfied that the applicant was not provoked into killing his wife.

The alternative defence by the applicant was that the jury ought to find in his favour, on the balance of probabilities, the partial defence of substantial impairment by abnormality of the mind. In issue at trial was whether a substantial impairment to the applicant’s capacity to control himself existed and if so, whether it was sufficient to reduce liability from murder to manslaughter. His Honour concluded that in finding the applicant guilty of murder, the jury must have answered “no” to either the first or the second of those elements of the partial defence.

In order to make a decision on that issue, it was necessary for his Honour to review the medical evidence and mental health history of the applicant.

His Honour noted that the applicant, through his senior counsel, “Did not seek to elevate the fact of his mental issues too highly. He conceded to the jury that at the time of the murder Mr Biddle fully knew what he was doing and knew that it was wrong. This concession was properly made.” (Sentence judgment, [63]).

Thereafter, his Honour summarised the medical evidence.

Dr Hatton, a general practitioner with over 30 years' clinical experience, including many patients with mental health issues, gave evidence. He had been Mr Biddle's general practitioner for more than 16 years. He reported that Mr Biddle presented with neurological symptoms in May 1993, and was subsequently hospitalised and diagnosed with lymphocytic choriomeningitis, which included some features of encephalitis.

Dr Hatton said that in June 2005, the applicant reported symptoms of memory loss and irritability. The applicant was concerned because both his parents had been diagnosed with dementia in later life. Dr Hatton performed a mini mental state examination test, which was a relatively crude test, in which the applicant scored 30 out of a possible 30. Results of blood tests and a brain scan taken at the time showed no detectable abnormalities and no further investigation was pursued.

Dr Hatton said that on 14 January 2009, following a visit and a request from the applicant, he had completed a report to the Firearms Registry of the New South Wales Police. The report was required to enable an assessment of the applicant’s suitability to hold a firearms licence. This assessment was in response to the attempted self-harm episode two weeks earlier. Dr Hatton did not suggest that he was making a detailed psychiatric assessment, but concluded that the applicant “does not suffer from any psychiatric disorder ... [and Mr Biddle] does in my judgment have the ability to form a rational judgment or to exercise will power to control physical acts in accordance with rational judgment.” His Honour accepted this assessment by Dr Hatton. His Honour found that it was consistent with the applicant’s working capacity at the time.

His Honour also found that assessment to be particularly persuasive because it was an opinion of a medical practitioner closest in time to the killing of the deceased. As well, it was entirely uninfluenced by any suggestion or hint of hindsight bias which might arise unconsciously in later opinions, because the killing had occurred. His Honour found that it was also free of any of the effects of the mental state of the applicant consequent upon the murder and the increasing negative effect on him of being in prison.

His Honour recognised that Dr Hatton was not a specialist psychiatrist, but accepted that he had a good deal of clinical and practical experience with patients suffering from mental health issues.

His Honour also took into account further information about the applicant given by various expert mental health professionals who examined him after the offence. His Honour noted that the majority of these examinations occurred over one or two years later.

His Honour proceeded to summarise the medical evidence which he accepted.

Dr Pulman examined and tested the applicant’s brain function two years after the offence. The testing placed him in the lowest first to fifth percentiles in five out of six areas of testing. He scored an extremely low full-scale IQ. By reference to those results, Dr Pulman assessed the applicant as someone who was mildly intellectually impaired.

Dr Pulman said that the IQ score was less than she anticipated, having regard to her assessment of the applicant’s likely capacity to function before the murder. The other mental health experts broadly agreed with that assessment. In that regard, his Honour observed:

His Honour concluded that the most likely reason for the discrepancy between the anticipated and actual IQ score was that the testing occurred at a time when, as a consequence of the offence, his continued incarceration and the loss of regular contact with his family, the applicant was suffering depression. His Honour noted that Dr Pulman gave evidence that depression was one of the causes of a low IQ score on the tests conducted by her.

His Honour noted that Professor Greenberg and Drs Allnutt, Nielssen and Furst agreed that the applicant suffered from an abnormality of mind emanating from brain damage subsequent to the meningoencephalitis in 1993 with concurrent depression. His Honour noted that two of the medical experts assessed the resulting impairment of capacity to control himself as substantial, one expert assessed it as mild and the remaining psychiatrist was not asked to make an assessment. Dr Rosen, a neurologist concluded that the applicant suffered from a significant brain injury subsequent to the meningoencephalitis.

On the basis that the word “substantial" in the partial defence, had its ordinary meaning of “being of substance” and “not trivial, slight or insignificant”, his Honour concluded that a finding of “substantial impairment” did not indicate that the impairment of mind must necessarily have of itself overborne the applicant’s capacity to control himself.

Having reviewed the medical evidence, his Honour set out his finding:

At [80] of the Sentence judgment, his Honour set out his factual conclusions:

His Honour then considered s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). His Honour took into account the following aggravating factors.

His Honour took into account the following mitigating factors.

His Honour was not satisfied that the applicant had shown true remorse. His Honour concluded that the evidence showed a person who felt very sorry for himself and because of his current predicament, was prepared to admit that he had made a “mistake” in killing his wife but who appeared to continue to advance excuses largely about his wife’s conduct towards him, to explain his actions.

His Honour declined to make a finding that the applicant’s assistance in the conduct of the trial should be taken into account as a mitigating factor. On that issue, his Honour said “There is no reason, in this case, to regard the conduct of Mr Biddle prior to trial, and during it, as meriting any lesser sentence because he has facilitated the administration of justice.” (Sentence judgment, [85(f)]).

Having reviewed the evidence, his Honour assessed the objective seriousness of the offence. In doing so, his Honour said:

Following that approach, his Honour assessed the criminality at “above the middle of the range”. In reaching that conclusion, his Honour took into account that there was an element of premeditation, a weapon was identified, collected and taken to the homestead to be used, and entry was gained in a way to conceal his approach. His Honour took into account that the violent attack was perpetrated on an innocent, unknowing and defenceless woman in her own home who had done nothing which warranted criticism, let alone such a brutal attack. When she tried to escape, she was pursued and further assaulted in such a way as to make it clear that the applicant had an intention to kill.

In reviewing the applicant’s subjective case, his Honour made the following findings.

His Honour found that until the applicant had engaged in his extra-marital affair he had been happily married to the deceased for approximately 41 years. They had a family of four children and many grandchildren. He was a man of good character. He was unlikely to offend again and had good prospects of rehabilitation.

His Honour made a finding of special circumstances for the following reasons:

The applicant submitted that in the sentence proceedings, his senior counsel submitted that his Honour was required to take into account his mental state when assessing the objective seriousness of the offence. The applicant submitted that by declining to do so, his Honour had erred. The applicant submitted that the decision of the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in Muldrock v The Queen demonstrated that error:

The applicant submitted that when considering the “nature of the offending”, in [27] of Muldrock, this Court has determined that a judge is required to take into account all the fundamental qualities of the offence, including (where relevant) any mental condition which might affect objective seriousness and in particular, the moral culpability of an offender (Williams v R [2012] NSWCCA 172 per Price J at [40]-[43]; McLaren v Regina [2012] NSWCCA 284 per McCallum J at [25]-[30]; Elturk v R [2014] NSWCCA 61 per Beazley P at [33]-[35]; Martin v R [2015] NSWCCA 6 per Price J at [53]; Cowan v R [2015] NSWCCA 118 per Bellew J at [40] and [61]-[62]).

The applicant submitted that the weight of evidence made it clear that he was intellectually disabled at the time of the offence and accordingly, his mental condition should have been taken into account when assessing objective seriousness. He submitted that it was not possible to assess his moral culpability without having regard to the evidence of his mental condition. In that regard, the applicant relied upon his Honour’s finding that he was suffering from “a substantial impairment by reason of abnormality of mind” at the time of the offence.

The applicant submitted that the effect of his Honour’s approach to the assessment of objective seriousness was to restrict that assessment to the physical acts performed in carrying out the offence. That approach excluded from consideration evidence of any mental condition or intellectual impairment which might have contributed to or might have gone to explain the commission of the offence. The applicant submitted that this was a fundamental error in approach which requires this Court to set aside the sentence and to resentence him.

In further support of this ground, the applicant submitted that his Honour’s approach to the medical evidence was erroneous so that his Honour’s conclusion as to his mental state and IQ at the time of the offending cannot stand.

The applicant submitted that his Honour erred in assessing Dr Pulman’s evidence of his intellectual functioning by dismissing the test results as due to the effects of depression. The applicant submitted that despite the evidence of Dr Pulman, his Honour had effectively discounted the IQ test results on an incorrect basis. The applicant submitted that his Honour’s reasoning did not accurately reflect the totality of the evidence of Dr Pulman and the other medical experts.

The applicant relied upon the evidence of the medical experts as follows. Professor Greenberg had concluded that he did have an abnormality of the mind, namely cognitive impairment of the brain, which was probably present at the time of the offence. Dr Allnutt was satisfied that at the time of the offence, he had some degree of cognitive impairment, which was relatively mild and not consistent with mental retardation. Dr Nielssen was of the opinion that there was a substantial impairment in his capacity to control his actions.

The applicant submitted that while the expert witnesses, including Dr Pulman, expressed surprise at the low scores that he achieved on IQ testing, none of them said that the scores were unreliable. The applicant submitted that while his Honour was not bound by the expert evidence, he was not entitled to disregard it capriciously.

The applicant relied upon his Honour’s finding that the substantial impairment was his reduced “capacity to control himself”, that this was due to earlier meningoencephalitis and concurrent depression and that he had “lost proper control” when he attacked the deceased. The applicant submitted that these findings at [79] and [80] of the sentence judgment were inconsistent with his Honour’s finding that his substantial impairment in his capacity to control himself, played no part in the commission of the offence.

The applicant submitted that if his Honour intended to reject the tenor of the expert evidence, he was required to give him an opportunity to address the issue and was required to articulate in any sentencing remarks a rational basis for rejecting that evidence (Goodridge v R [2014] NSWCCA 37 at [116]; Devaney v R [2012] NSWCCA 285 at [88]).

The applicant submitted that his Honour did neither of those things.

The applicant submitted that his Honour erred in assessing the objective seriousness of the offence at “above the middle of the range” because he excluded from his consideration evidence relevant to the applicant’s mental condition at the time of the offence (impaired self-control) and intellectual functioning (impaired IQ). The applicant submitted that had those matters been taken into account, the objective seriousness of the offending should have been assessed at a lower level.

The proposition that an offender’s mental health should be taken into account when assessing the objective seriousness of the offending is not without difficulty. There is a tension between what the High Court said at [27] and [54] in Muldrock v The Queen.

The position has not been assisted by the more recent observations of the High Court (Bell, Gageler, Keane, Nettle and Gordon JJ) in The Queen v Kilic [2016] HCA 48; 91 ALJR 131) where the Court said:

Despite those difficulties, it is clear that this Court has followed the approach that an offender’s mental condition, which must impact upon moral culpability, is a matter to be properly taken into account when assessing the objective seriousness of an offence. A statement of that principle can be seen in the judgment of McCallum J (with whom McClellan CJ at CL and Bellew J agreed) in McLaren v Regina where her Honour said:

Observations to similar effect were made by Price J (with whom Hidden and Schmidt JJ agreed) in Martin v R where his Honour said:

Those statements of principle have been approved in Elturk v R and Cowan v R.

An acceptance of the correctness of that approach does not establish the ground of appeal. His Honour expressly allowed for the possibility that the applicant’s mental state might be relevant to an assessment of objective seriousness and explained why, if that were the case, it would not alter his assessment of objective seriousness. This was because his Honour found that the applicant’s mental condition was not causally connected to the offending.

Accordingly for the applicant to make out this ground of appeal, he has to establish that his Honour’s finding of the lack of any causal connection between the offending and the applicant’s mental state was not open.

If factual findings are challenged on appeal to this Court, the applicant must demonstrate that the findings of fact were not open (Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 at [26]-[32]). Error must be shown before this Court will interfere in the sentence. Factual error may be demonstrated if there is no evidence to support a particular finding, if the evidence is all one way or if the judge has misdirected himself. This Court might disagree with his Honour’s findings, but that is not sufficient. Without error being established, this Court has no power to substitute its own findings for those made by the sentencing judge (R v O’Donohue (1988) 34 A Crim R 397 at 401; AB v R [2014] NSWCCA 339 at [52], [59]).

In a carefully reasoned analysis, his Honour set out the basis for his findings. In relation to the results of the IQ test, this was carried out two years after the offending. Within that two year period, the applicant had become very depressed as a consequence of the offence, his continued incarceration and the loss of regular contact with his family. There was no issue that Dr Pulman opined that one cause of a low IQ score can be depression.

The evidence of Dr Pulman was:

His Honour also relied upon the contemporaneous observations of Dr Hatton. Although he was not a psychiatrist, Dr Hatton was the applicant’s treating general practitioner and knew him well. He had carried out a mental health assessment (albeit a somewhat crude one) in 2005. More particularly, he had expressed an opinion in 2009 within days of the offending that the applicant “does not suffer from any psychiatric disorder … does in my judgment have the ability to form a rational judgment or to exercise will power to control physical acts in accordance with rational judgment”.

It was open to his Honour to accept that opinion as accurate as to the mental state of the applicant at the time of the offending.

His Honour also noted that particular weight should be given to Dr Hatton’s opinion because it was unaffected by any hindsight bias because of what subsequently occurred. It was unaffected by any of the effects on the mental state of the applicant consequent upon him having killed the deceased and having spent a considerable time in custody. It was well open to his Honour to accept that evidence in preference to opinions, albeit expert opinions, formed one to two years after the offence and based as they must have been to some extent, on hindsight.

The other basis for the applicant’s attack on his Honour’s factual findings was that his conclusion regarding the absence of a causal relationship between the applicant’s substantial impairment and intellectual disability and the offending are inconsistent with his findings that the applicant had “lost proper control”. This criticism is not made out.

Having stated his finding of the lack of a causal relationship, his Honour set out his reasons for so concluding at [80] of the sentence judgment. A proper reading of those reasons makes it clear that his Honour’s finding at [80(f)] that the applicant had “lost proper control of his behaviour” was based on factors other than the substantial impairment suffered by him, i.e. the factors that his Honour had just listed.

Not only did his Honour provide a rational basis supported by the evidence for his conclusion, but that basis was consistent with the effect of the jury verdict which involved a rejection of the applicant’s partial defence that his substantial impairment was sufficient to reduce liability from murder to manslaughter.

The submissions put on behalf of the applicant are analogous to those rejected in Alkanaan v Regina [2017] NSWCCA 56 where Harrison J (Payne JA and Schmidt J agreeing) said:

The applicant’s submission that his Honour’s failure to bring to the attention of his counsel that his Honour proposed to reject a causal connection between the offending and his mental state involved a denial of procedural fairness, is not made out. As the applicant accepted in his written submissions at AWS 20 the issue of his mental health at the time of the offending and its effect on the offending was fairly and squarely in play. It was open to his Honour to accept or reject the submission provided his Honour gave adequate reasons, which his Honour did.

It is clear from the exchange between the Crown and his Honour in the sentence proceedings on 10 October 2011 at T.26 that the extent of and the effect of the “substantial impairment” on the applicant was important and that there was little agreement on that issue. In that regard, his Honour said:

In the course of the exchanges with counsel, his Honour made it clear that he regarded Dr Hatton as a very experienced country practitioner and that the assessments which he made of the applicant’s mental health before the offence were important.

For those reasons, the submission asserting a lack of procedural fairness is not made out.

It follows from the above that his Honour’s findings as to the extent of the applicant’s substantial impairment, and the lack of a causal connection between it and the offending, were open to his Honour on the evidence. That being so, as his Honour said in the sentence judgment, even if he had taken into account his findings on that issue, when assessing the objective seriousness of the offending, it would have had no effect on that assessment. This ground of appeal has not been made out.

The applicant submitted that his Honour failed to take into account the applicant’s intellectual impairment and the fact that the principle of general deterrence would have less influence as a result. Essentially, however, the applicant made the same submissions as had been made in respect of Ground 1, i.e. that it was not open to his Honour to discount the effect of the applicant’s mental impairment and that a finding of reduced culpability should have been made. In making that submission, the applicant accepted that his Honour had specifically referred to the applicant’s mental health when making a finding of special circumstances.

In Aslan v R [2014] NSWCCA 114 Simpson J (with whom Adams and McCallum JJ agreed) referred to the principles governing the effect of an offender’s mental illness on sentence as follows:

The applicant’s moral culpability and the applicability of general deterrence (principles 1 and 2) have been addressed. Principle 1 and its inapplicability in this case has been discussed in relation to Ground 1. Principle 3, as was acknowledged by the applicant in submissions, was dealt with by his Honour in his finding of special circumstances.

His Honour’s finding that the applicant was “unlikely to offend again and had prospects of rehabilitation” was a clear indication that his Honour did not include a component for specific deterrence in the sentence. Nor did his Honour find that the applicant’s mental health presented him as a future danger to the community.

In Alkanaan v Regina, in respect of a similar ground Harrison J said:

For these reasons, and for substantially the same reasons given in respect of Ground 1, this ground of appeal has not been made out.

The applicant submitted that s 22A of the Crimes (Sentencing Procedure) Act allows a court to impose a lesser penalty “having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise)”. He submitted that the sentencing judge had erred in his finding that the applicant had done little to facilitate the course of justice.

The applicant identified issues which were conceded by the defence and which assisted the Crown:

The applicant submitted that although he was not entitled to a discount for a plea of guilty, it was wrong for his Honour to conclude that his conduct did little to facilitate the course of justice.

It is important to note that although his Honour referred specifically to this issue in the sentence judgment, no submissions were made on this matter by either counsel in the sentence proceedings.

The applicant’s submissions go no higher than establishing the proposition that it was open to his Honour to allow a small discount for the forensic decisions made on behalf of the applicant, but he was not obliged to do so. That is particularly so when the precise nature of the concessions said to be made are examined. Most were beyond argument and would have been very easy to prove. The plea to the offence of manslaughter before the jury was no doubt intended to keep fairly and squarely before the jury the availability of a finding of manslaughter and the applicant’s reasonableness in accepting the reality of what had happened.

The correct approach to the issue was considered by this Court in Mulvihill v R [2016] NSWCCA 259 at [26]-[264] where the Court (Ward JA, Beech-Jones and Fagan JJ) said:

The same considerations apply here. This ground of appeal has not been made out.

The applicant submitted that the sentence was manifestly excessive, unreasonable or plainly unjust for the following reasons:

The applicant submitted that by reference to the Judicial Information Research System (JIRS), maintained by the Judicial Commission, only 19% of offenders received a sentence in excess of the applicant’s head sentence of 27 years and only 27% of offenders were sentenced to a non-parole period greater than 18 years. The applicant submitted that although the statistical material was of only limited value, it showed that the sentence imposed on the applicant was in the high range for offences of this kind.

In Vaiusu v R [2017] NSWCCA 71 R A Hulme J (with whom Bathurst CJ and Beech-Jones J agreed) said in relation to a claim of manifest excess:

In relation to the specific matters relied on by the applicant – age, impairment of self-control, intellectual disability, provocation, good character, prospects of rehabilitation, first time in custody, and the facilitation of the course of justice – these were not only specifically identified and addressed by his Honour, but have been specifically considered in this judgment. In the sentence judgment, some were rejected outright such as provocation, impairment of self-control and the facilitation of the course of justice. The effect of others was significantly qualified. Age, good character, prospects of rehabilitation and the fact that it was his first time in custody were taken into account by his Honour in his finding of special circumstances and which was reflected in a substantial reduction in the ratio of the non-parole period to the head sentence.

The failure of the applicant to make out his challenge to his Honour’s finding that the objective seriousness of the offending was above the midrange, constitutes a significant difficulty in making out this ground. This is particularly so when his Honour gave appropriate weight to the applicant’s subjective case. In summary, the offence was committed in a context of a domestic relationship. General deterrence, community protection and denunciation in sentencing for domestic violence are considerations which are of considerable importance in the community at the present time. The observations of Wilson J in R v Archer [2015] NSWSC 1487 at [174] are apposite.

The observations of the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) in Munda v State of Western Australia [2013] HCA 38; 249 CLR 600 at [54] are to similar effect:

This ground of appeal has not been made out.

The application for leave to appeal was well out of time. A Notice of Intention to Appeal was filed on 7 November 2011 by the applicant’s previous solicitors, but nothing further was done to pursue the appeal. The applicant’s present solicitors became involved in the matter in May 2016 and obtained an advice from senior counsel supporting an appeal against sentence in November 2016. The matter appears to have proceeded in an expeditious way since the present solicitors became involved.

In support of the extension of time application, there is an affidavit from the applicant’s present solicitor, Mr Allport, affirmed 16 December 2016 and an affidavit from the applicant, affirmed 19 December 2016. In his affidavit, the applicant states that he lost contact with his former solicitors in 2011. He made an application for legal aid in October 2012 but that application was unsuccessful. He again applied for legal aid in March 2016. That application was successful and resulted in the application for leave to appeal coming before the Court.

The applicant’s explanation for delay is that he lost contact with his solicitors in 2011 and did not receive any legal advice until his application for legal aid was successful in 2016. In his affidavit, the applicant says:

The Crown opposes an extension of time.

As was made clear in Kentwell v The Queen [2014] HCA 37; 252 CLR 601, when considering an application for an extension of time, the Court has to take into account the “interests of justice”. This often involves looking at the merits of the substantive appeal. In this case, the application for leave to appeal against sentence did raise an important issue and the inability of the applicant to obtain legal advice between 2011 and 2016 adequately explains the delay. In those circumstances, I would grant the extension of time sought by the applicant.

The orders which I propose are as follows:

ROTHMAN J: I agree with orders proposed by Hoeben CJ at CL. Except as qualified hereunder, I also agree with his Honour’s reasons.

In relation to Ground 4, manifest excess, the applicant must establish that the sentence imposed discloses error that is otherwise not able to be identified. In so doing, the applicant must be able to satisfy the Court that the sentence imposed is “plainly unjust” or “unreasonable”.

I adopt, with respect, the analysis of Beech-Jones J to which Hoeben CJ at CL has referred. I add that the test to which I have referred is from House v R (1936) 55 CLR 499; [1936] HCA 40 at CLR 505 and is very long-standing.

Further, the goals and purposes of sentencing are set forth in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 at CLR 476 and in s 3A of the Crimes (Sentencing Procedure) Act 1999. They include the protection of society; general deterrence; specific deterrence; punishment; retribution; denunciation; and reform and rehabilitation.

If it is to be suggested that sentencing should include some factor to inculcate “shame” on society as a whole, then it is not in accordance with principle. Further, if it be suggested that sentencing should be utilised to impose societal changes, beyond that which is necessary for general deterrence, then, again, it is inconsistent with principle.

Alterations to societal behaviour and views, unless included in the notion of general deterrence, is a matter for government, not the judiciary. Sentencing of an individual is a very blunt instrument for the achievement of social reform.

Nevertheless, the applicant has not shown manifest error. The sentence is neither unreasonable nor plainly unjust and is within the range available for this offence and this offender.

As to the manner in which an impairment of mind or mental state may be utilised, I adopt, with respect, the comments of McCallum J, Harrison J and of Simpson J to which Hoeben CJ at CL has referred and which he has recited above.

In my view, there is no tension in the principles established by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. Nor is there tension between the reasons for judgment in Muldrock, supra, and The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48. There remains a distinction between the objective seriousness of an offender’s conduct and the categorisation of the offence as a whole.

Further, factors peculiar to a particular offender are relevant to objective seriousness when those factors ameliorate culpability. Such may be the case in mental illness.

Whatever be the objective seriousness, mental illness will be a subjective factor that may ameliorate (or sometimes exacerbate) the need for punishment, the opportunities for reform and rehabilitation, the need to protect society and the appropriateness of the offender as a vehicle for general deterrence.

Whether or not one took account of the suggested mental impairment of this offender in either task, it would have made no difference to his Honour’s result. In my view, no error has been identified and no error is manifest.

PRICE J: I agree with Hoeben CJ at CL.