Ukropina v R

HOEBEN CJ at CL:

The applicant was sentenced by Scotting DCJ to a term of imprisonment with a non-parole period of 4 years and 9 months commencing 14 November 2013 and expiring 13 August 2018 with a balance of term of 2 years expiring 13 August 2020. The maximum penalty for manslaughter is imprisonment for 25 years. There is no standard non-parole period.

The applicant seeks leave to appeal against his sentence pursuant to s 5(1) (a) of the Criminal Appeal Act 1912 (NSW).

The applicant relies on the following grounds of appeal.

On 14 November 2013 the applicant killed his 29 year old daughter (the deceased) when he stabbed her fatally in the back in the course of an argument in their home at Kingsford.

At this time the applicant was suffering from severe depression. This mental illness appears to have first arisen when he visited his mother in Bosnia in August 2013. After the applicant returned to Australia he suffered from various symptoms of depression and anxiety including repeated anxiety attacks.

In the week before the incident the applicant attended various medical practitioners in respect to his anxiety and depression. On 8 November he was admitted to the Emergency Department of the Prince of Wales Hospital where he was diagnosed with major depression with features of melancholia. He was prescribed (a trial of) anti-psychotic medication. The applicant continued to suffer from symptoms of anxiety and depression over the following days.

On 13 November 2013 the applicant's wife (Brana) left for New Zealand. At this time the applicant "seemed all right". Around 11am the applicant sent a text to his eldest daughter (whom he had not seen since June 2013) in which he described himself as "very sick". The applicant described the sickness as one "that ends life". At around 2pm the acute care team attached to the Prince of Wales Hospital called the applicant. He said that he had a low mood and that he did not think that the medication was working. The acute care team advised him to make an appointment with a psychiatrist. The acute care team assessed the applicant's risk of harming himself or others as low.

On the evening of 13 November 2013 the applicant and the deceased were alone in his apartment. At around 7pm Brana called the applicant and the deceased. At that time everything seemed fine. Brana called the deceased at 10pm and thanked her for coming and helping with the applicant. At around 10pm, neighbours heard two screams in quick succession. Neighbours also reported hearing a male and a female speaking in an Eastern European language between 1am and 2am. The conversation was loud and fast paced and the female did most of the talking.

At around 3am on 14 November 2013, the deceased telephoned Brana and told her that the applicant could not sleep, was panicking and wanted to go for a walk. The deceased wanted to call the acute care team but the applicant would not let her. Brana spoke to the applicant who agreed to let the deceased call the acute care team. The acute care team spoke to the deceased and the applicant. It was arranged that the mental health team would call them both the following day.

At 5:02am and 7:34am, the deceased contacted her boyfriend (by text and telephone respectively) and said that she had been up between 3am and 5am with her father, because he had suffered another anxiety attack. Between 8am and 8:10am, residents of unit 11 (which was directly underneath the applicant's apartment) heard heavy and hurried banging on their front door. They also heard heavy breathing or voices outside their door. The door of the applicant's unit, which was directly above their unit, was heard to open and close twice.

At around 8:20am the residents of unit 11 opened their front door in response to the banging and found the deceased leaning against a brick wall slumped over with her eyes closed. The applicant was standing over the deceased holding her right forearm. There was blood on the applicant and the deceased. There was blood on the door of unit 11. The deceased was unable to be saved.

An autopsy was conducted. This determined that the cause of death was a single stab wound to the back. This would have caused significant injuries and affected the deceased's respiration. No defensive injuries were identified.

The applicant was questioned by police and emergency personnel as to the circumstances of the deceased's death. At the scene, the applicant's expression was bland and he did not show any emotion. He said that he did not know what had happened. When formally interviewed on the morning of the incident, the applicant denied having an argument with the deceased in the hours before her death. The applicant later said that he had an argument with the deceased because she wanted to call Brana to tell her how he was feeling. The applicant said that he was a little bit upset and a little angry at the deceased then but not in the morning. The applicant maintained that he did not stab the deceased.

On 27 December 2013, Brana and the deceased's boyfriend visited the applicant, who was then in custody in Silverwater Correctional Centre. Their conversation was lawfully recorded. In that conversation, the applicant said that he knew that he had stabbed the deceased. He said that he did not know why he had done this. He said that the deceased had told him that his tablets made him stink, but later added that they had also argued about whether the applicant should go to work. The deceased had told the applicant to stay at home and rest.

On admission to custody, the applicant was diagnosed with major depression with psychosis. He made several suicide attempts in custody. On 10 April 2014 the applicant was assessed by Dr Lauren Taylor, psychiatric registrar. The applicant told Dr Taylor that his memory was intact as to the events of the morning of 14 November 2013 but that he was unable to make sense of what had happened. He said that he felt angry towards his daughter and agreed that it was a "snap of anger" that had caused the incident.

In the proceedings on sentence, the Crown tendered a Statement of Agreed Facts, the applicant's criminal history and his custodial history. The Crown also tendered two reports of Dr Olav Nielssen dated 6 December 2014 and 3 December 2015.

The applicant's case on sentence consisted of two reports by Dr Richard Furst dated 17 September 2014 and 12 November 2015, and a Justice Health report prepared by Dr Scott Clark dated 10 January 2014.

In their reports, both Dr Nielssen and Dr Furst expressed the opinion that the applicant was suffering from severe depression with psychotic (melancholic) features at the time of the offence. Both were of the opinion that the applicant's mental illness deprived him of the ability to know that his actions in stabbing his daughter were wrong and that the applicant's mental illness made it difficult for him to exercise self-control. Both doctors were also of the opinion that the applicant had a defence of mental illness open to him and that he would be able to raise a defence of substantial impairment.

In the sentence proceedings, when the applicant's medical reports were tendered, the following was said by the Crown and counsel then appearing for the applicant:

In his report of 6 December 2014, Dr Nielssen gave his opinion as follows:

Dr Furst, in his report of 17 September 2014 reviewed all of the applicant's medical records including his Justice Health Records and those from the Prince of Wales Hospital. He also viewed the applicant's ERISP. Under "diagnosis" he set out the following:

Scotting DCJ made the following findings in the sentence proceedings, none of which are challenged on appeal:

His Honour had regard to the wide range of circumstances which can give rise to the offence of manslaughter. His Honour stated:

His Honour noted that a mental abnormality can have two countervailing effects. It can indicate that the offender is a danger to society when he is at large but it also diminishes his moral culpability for a particular crime. His Honour noted one consideration tended towards a longer custodial sentence while the other tended towards a shorter.

When considering the objective seriousness of the offending, his Honour said:

His Honour's conclusion was that "the offence involves the unlawful taking of a human life and the appropriate sentence must reflect the gravity that of the objective circumstance." (Sentence judgment 21.8)

Having made specific findings in relation to the applicant's mental state. His Honour said in relation to the psychiatric evidence:

It is convenient to deal with these two grounds together since they essentially raise the same issue.

The applicant submitted that the sentencing judge's finding as to the degree of impairment suggested that his Honour was of the opinion that the applicant's impairment fell only just under the description of "substantial" so as to warrant the reduction of liability from murder to manslaughter. The applicant submitted that this finding was not consistent with the body of psychiatric evidence tendered by both the Crown and the applicant. The applicant submitted that his Honour's finding in this regard amounted to a rejection of the unchallenged opinions of relevantly qualified experts and it was not open to his Honour to reject this evidence without providing adequate reasons.

On that issue the applicant relied upon the observations of the High Court (Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ) in Mizzi v The Queen [1960] HCA 77; 105 CLR 659 at 663 where the Court said:

The applicant also relied upon the decision of Hone v State of Western Australia [2007] WASCA 283 where the Court of Appeal of Western Australia reviewed cases concerning the approach which should be taken by a judge where there was un-contradicted psychiatric evidence. The Court held that a judge or jury in such circumstances should not reject or ignore medical opinions which were honest, competent and unchallenged.

In the alternative, the applicant submitted that the finding by his Honour, which was inconsistent with the uncontradicted opinions of the expert witnesses, required that his Honour set out the reasoning leading to the finding. The applicant submitted that failure by his Honour to do so amounted to error. On that issue the applicant relied upon Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 and Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.

The Crown submitted that the assessment of the extent of the applicant's impairment was a question of fact and that such a finding might only be reviewed by this Court if it was "not open" to the sentencing judge to make such a finding (R v Kelly (1993) 30 NSWLR 64). The Crown also submitted that these grounds of appeal involved a misreading of what his Honour had found in relation to the extent of the applicant's mental impairment. The Crown submitted that his Honour did not make a positive finding that the applicant's impairment "fell only just within the description of substantial" so as to warrant the reduction to manslaughter. Rather, the finding was that he was not satisfied that the impairment was "significant" beyond that required to make out the partial defence. The Crown submitted that such a finding was fairly open to his Honour and was consistent with the opinion of the psychiatrists.

My reading of what his Honour said accords with the interpretation of the applicant. It seems to me that his Honour was making a finding that the level of the applicant's impairment was only just within the description of "substantial" as set out in s 23A of the Crimes Act (1900). This is consistent with what his Honour said at [28] hereof.

The issue to which these grounds of appeal give rise to was discussed in Catley v R [2014] NSWCCA 249 by R A Hulme J (Bathurst CJ and Johnson J agreeing) as follows:

I also agree with the applicant that given his Honour's findings as to the severity of the mental impairment i.e. that there were psychotic features, that the applicant was in a dissociative state and that the applicant's ability to comprehend the consequences or to control his actions was significantly reduced, do not support a finding that the applicant's impairment fell just within the description of "substantial". They go well beyond and indicate a much higher level of mental impairment.

I am also of the opinion that because of his Honour's specific findings as to the nature and the effect of the applicant's level of mental impairment and because of the combined opinion of the two psychiatrists, for his Honour to make the finding which he did, reasons should have been given. Those reasons need not have been elaborate but some explanation of the apparent inconsistency between the earlier specific findings based on the expert evidence and the ultimate finding as to the level of mental impairment needed to be given.

It follows that error did occur and that these grounds of appeal have been made out.

The applicant submitted that his mental impairment was not taken into account in his Honour's assessment of the objective seriousness of the offending. The applicant submitted that this was an error and relied on the decisions of Martin v R [2015] NSWCCA 6 at [53] and Cowan v R [2015] NSWCCA 118 at [61] - [62] where clear statements of principle were made to the effect that in cases of mental illness this was a matter which should be taken into account when assessing objective seriousness. This was particularly so when a finding was made that there was a causal link between the mental illness and the commission of the offence.

This ground of appeal is not made out. It is clear from his Honour's analysis of objective seriousness that he did take the applicant's mental illness into account. His Honour made this point at p. 20.1 of the Sentencing judgment which is set out at [26] hereof.

Having made that correct statement of principle it is clear from the analysis which followed that his Honour took into account as a surrounding circumstance directly related to the offending, the applicant's mental impairment.

Because the first two grounds of appeal have been made out it is necessary to resentence the applicant. It is not necessary however, to analyse the facts or the evidence as to mental illness. All this was done in an unexceptional way by the sentencing judge. It was only his Honour's conclusion as to the level of impairment which was challenged in the grounds of appeal which were made out. Accordingly, in the re-exercise of the sentencing discretion I have had regard to all of the specific findings made by his Honour (see [23] herof).

It is also necessary for me to have regard to events which have occurred between December 2015 when the applicant was sentenced and the present time. In the event of re-sentencing an affidavit of the applicant affirmed 18 October 2016 was placed before the Court. This affidavit deals comprehensively with the applicant's present state of health and the regime of medication and treatment which he is undergoing. The affidavit makes clear that the applicant has experienced considerable remorse and feelings of guilt as a result of his offence. There is no doubt that the applicant's mental condition has improved while he has been in custody. It is also clear from the affidavit that the applicant's isolation from his family brought about largely by the offence is making his time in custody more difficult than it otherwise would have been.

Taking his Honour's findings into account together with that affidavit material the sentence I propose is imprisonment with a non-parole period of 4 years and a balance of term of 2 years. This is because the evidence supports a finding of special circumstances. In particular, the general tenor of the reports of Dr Furst and Dr Nielssen is that if the applicant is allowed a longer period on parole and receives appropriate treatment, his rehabilitation is more likely to be successful.

The orders which I propose are:

BELLEW J: I agree with Hoeben CJ at CL and with the orders proposed by his Honour.

HIDDEN AJ: I agree with Hoeben CJ at CL.