Murray v R

1. [1]

   JOHNSON J: I agree with Price J.

2. [2]

   PRICE J: The applicant, Martin Murray, seeks leave to appeal against the sentence imposed on him by Huggett DCJ (“the judge”) in the District Court on 23 February 2018.

3. [3]

   The applicant pleaded guilty in the Local Court to one count of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). He adhered to his plea in the District Court. The maximum penalty for this offence is 25 years imprisonment. The standard non-parole period is 7 years imprisonment.

4. [4]

   A discount of 25% was allowed by the judge for the utilitarian value of the guilty plea.

5. [5]

   The applicant was sentenced to 7 years imprisonment consisting of a non-parole period of 4 years 6 months, to date from 6 October 2016 and to expire on 5 April 2021, with a balance of term of 2 years 6 months expiring on 5 October 2023.

Grounds of Appeal

1. [6]

   The notice of appeal identifies the following grounds:

The facts of the offences

1. [7]

   A statement of agreed facts was placed before the judge. The facts have been conveniently summarised by the judge as follows:

A statement from the victim

1. [8]

   A statement from the applicant’s sister was tendered by the Crown during the proceedings on sentence which included the following:

Subjective circumstances

1. [9]

   The applicant was 25 years old at the time the offence was committed. He did not give evidence during the sentencing proceedings. The written material tendered in his case included a report by Dr Adams, a forensic psychiatrist, a pre-sentence report, a reference from WEAVE Youth and Community Services, and letters showing attendance in Remand Addiction sessions.

2. [10]

   The applicant’s background is provided in Dr Adams’ report. By way of summary, the applicant was born on 4 June 1991 in Maitland. The applicant identifies as Aboriginal and has reported that both of his parents are of Aboriginal descent. The applicant’s indigenous heritage is important to him.

3. [11]

   At the age of 2, the applicant was placed in formal care as a result of his mother’s use of illicit substances. The applicant does not have a close relationship with his parents.

4. [12]

   The applicant reported to Dr Adams that his paternal aunt initially cared for him until his great aunt took custody of him and his two brothers. The applicant described his environment growing up with his grandmother’s side of the family as “perfect” and that he “felt loved … there was love and comfort”.

5. [13]

   The applicant completed year 10 and has since completed various training courses in welding and horticulture. Thereafter he had worked as a labourer.

6. [14]

   At the age of 16 or 17, the applicant began to smoke cannabis and drink alcohol. He used “ice” when he was 21, which escalated into daily use. The applicant denied using any other illicit drugs or misusing prescription medication.

7. [15]

   The applicant told Dr Adams he was first incarcerated at the age of 18 following the death of his great aunt and an increase in his use of cannabis and consumption of alcohol. He had since been “in and out” of custody.

8. [16]

   The applicant told Dr Adams that in the two weeks prior to the offence he had been informed by his sister that his paternal grandfather had passed away in Brewarrina. He said he hoped to attend the funeral with his sister but stated, “[she] totally ignored me”. The applicant described his resulting frustration and said he travelled to the funeral alone. On his return to Sydney, he relapsed into substance abuse, reporting to Dr Adams that he smoked methamphetamines, cannabis, consumed alcohol and also questioned whether he had taken GHB (gamma-hydroxybutyric acid).

9. [17]

   In the 48 hours leading up to the offence, the applicant described feeling “very paranoid… thinking everyone was taking advantage of me”. Dr Adams reported that:

10. [18]

    Dr Adams opined that “there is no clear evidence to conclude that [the applicant] suffers with an underlying major mental illness such as psychotic disorder” and that “his presentation at the material time can be best understood in terms of the short-lived effects of illicit substance use, either an intoxicated state or withdrawal state”. Dr Adams was of the belief that the applicant’s clinical presentation at the time of the offence was not “consistent with a substance-induced psychotic episode, given the brevity of his disturbed mental state, and reported stable mental state soon after [the offence]”.

11. [19]

    In a pre-sentence report dated 20 February 2018, Marie Silling, the author of the report, recounted that at the time of the offence, the applicant claimed he was smoking and injecting ice. The applicant stated that he was “so intoxicated that [he] was unsure of how much or how often.”

12. [20]

    The applicant stated that he felt his sister was “against me” and “I was fearful”. He further reported that he was under the influence of ice at the time of the offence and was not in a position to dispute the evidence as detailed in the “summary of facts” due to his high level of intoxication. The applicant expressed his remorse and his disgust in his behaviour.

13. [21]

    Ms Silling reported that the applicant’s ongoing drug use in custody brought into question his willingness to address his identified drug use and its consequences. Ms Silling had earlier referred to the applicant’s continued drug use in custody, which had resulted in a significant amount of his remand period being served in the Acute Crisis Management Unit at the Long Bay Hospital and Mental Health Support Unit at the Metropolitan Reception and Remand Centre. The applicant had also incurred nine offences in custody.

14. [22]

    Ms Silling considered that the applicant’s potential risk to the community was illustrated by his continued offending behaviour and drug use in a controlled custodial environment. Due to the applicant’s limited recollection of the offence, Ms Silling expressed the opinion that addressing the applicant’s violent offending would present challenges.

15. [23]

    The applicant’s prior criminal history reveals convictions for aggravated break, enter and commit a serious indictable offence, larceny, stalking / intimidation, break, enter and steal, possession of housebreaking implements, assault of a police officer, and assault occasioning actual bodily harm. He has been sentenced to various terms of imprisonment, the most recent being in 2012, when a sentence of 6 months imprisonment was imposed for the offence of assault occasioning actual bodily harm.

Some findings by the judge

1. [24]

   In considering the objective seriousness of the offence, the judge observed that the applicant’s conduct caused wounding to the head, neck, torso and arm of the victim. There was profuse bleeding. Her Honour said the injuries “whilst quite clearly could have been more serious, were nevertheless serious injuries and they were potentially life threatening.” Her Honour noted that the applicant stabbed his sister repeatedly, causing injuries to more than one area of her body. He stopped only when his sister, who was defenceless, said words to the effect, “Martin, what are you doing it’s me, your sister?”

2. [25]

   The judge found as a matter of serious aggravation, there was more than one blow with the knife. Her Honour observed that the victim was unarmed, there was no provocation, and the offence occurred in her house in the presence of her baby where she was entitled to feel safe and secure. Her Honour accepted that the offence was spontaneous and said there was no suggestion that the applicant went to the home intending to do what he did.

3. [26]

   After referring to the submissions of the Crown and the applicant, the judge found that the offence was of the mid-range of objective seriousness.

4. [27]

   The judge then gave detailed consideration to the applicant’s background and subjective circumstances. When referring to Dr Adams’ report, her Honour noted the psychiatrist’s opinion that the applicant did not suffer from symptoms of major mental illness and his mental health at the time of the offence was best understood in the terms of his illicit use of methamphetamine. Her Honour observed that Dr Adams was not of the opinion that the applicant was suffering a drug induced psychotic episode, but was likely intoxicated or in a withdrawal phase.

5. [28]

   The judge remarked there was no evidence the applicant was suffering from any mental illness or condition that contributed to his offending but rather, his methamphetamine use a few days before the offence explained the context in which the offence was committed. Her Honour found that this was not a matter of mitigation.

6. [29]

   After referring to Bugmy v The Queen, [1] her Honour acceded to the applicant’s submission that those aspects of the applicant’s upbringing and childhood, which were said to explain why he had commenced using cannabis at the age of 16, be taken into account in the “general mix of matters relevant to the sentence”.

7. [30]

   The judge found that the applicant’s prior convictions denied him the leniency that would otherwise be available if he had no record.

8. [31]

   Her Honour was satisfied that the applicant was genuinely remorseful.

9. [32]

   The judge concluded that the applicant’s prospects of rehabilitation were guarded. After observing that whilst in a sober mind, the applicant did have insight into his offending, her Honour said whether that would translate into good prospects of rehabilitation and a low risk of re-offending depended upon his capacity to abstain from illicit drugs.

10. [33]

    The judge said that she had taken into account that the applicant was a relatively young man at the time of the offence and that poor decision making would lead, in his case, to drug use. Her Honour observed that it was important to have regard to increases in the chances that the applicant could be rehabilitated and the offence and sentence could be “a turning point for him”. Balanced against that, was the very serious offence that had been committed.

11. [34]

    The judge remarked that deterrence and denunciation were important purposes of sentencing for the present type of offences. Her Honour considered that the sentence to be imposed would be sufficient specific deterrence.

12. [35]

    Special circumstances were found so as to vary the statutory ratio between the balance of term and the non-parole period, being the need for extensive supervision and supported rehabilitation upon release.

13. [36]

    After allowing a 25% discount for the guilty plea, the judge sentenced the applicant to 7 years imprisonment with a non-parole period of 4 years 6 months (see [5] above). Her Honour said that the non-parole period imposed was “the minimum period justice” required the applicant to serve for the offence.

(b) The Mental Element – Low Level Intention in this Case Ameliorates Seriousness

1. [37]

   In written submissions, the applicant contended that the submission made to the judge that the offence fell below the mid-range had force and represented the correct view.

2. [38]

   The applicant pointed to, what were submitted to be, the following ameliorating factors: the victim’s injuries as not being at the highest level, the most serious injury being the punctured lung, which was said to have been successfully treated without evident long-term consequences, the short lived nature of the attack which the applicant stopped on his own volition, the lack of known motivation for the attack, the help that the applicant sought for his sister which drew attention to the applicant himself and his demonstrated remorse.

3. [39]

   Conversely, the applicant contended that the absence of specific aggravating features prevented the offence being regarded as occupying at or above the mid-range.

4. [40]

   As to the absence of a known motive, the applicant submitted that there “seemed to be some evidence that unexpressed grief at the death of a significant figure had mutated into violent lashing out.”

5. [41]

   The applicant contended that an assessment of the intention to harm was necessary when evaluating the objective seriousness of the offence. The intentional element was the conspicuous difference between an offence of reckless wounding causing grievous bodily harm, contrary to s 35 of the Crimes Act and an offence of wounding with intent to cause grievous bodily harm, contrary to s 33 of the Crimes Act.

6. [42]

   The applicant was critical of the Crown’s submission to the judge that the mental condition of an offender was excluded from the assessment of the objective seriousness of the offence. The applicant argued that the offence was one of specific intent and the “nature of the offending” as referred to in Muldrock v The Queen, [2] required an assessment of the applicant’s intention.

7. [43]

   The applicant contended that there was limited reference to his mental state in the sentencing judgment and the impact that made on the assessment of the objective seriousness of the offence was not made explicit.

8. [44]

   In oral argument in this Court, Ms Doosey, the applicant’s counsel, argued that it was the nature of the applicant’s intention that would influence the finding of a lower level of objective seriousness. Ms Doosey submitted that the applicant’s intention was spontaneous, short-lived and immediately evaporated. The applicant’s intention, Ms Doosey contended, would fit within an offence contrary to s 35 of the Crimes Act. Another submission by Ms Doosey was that an offence under s 33 contemplates a high level of intention “not just in the consequences of the action but in the actual planning that is contemplated by this section.”

9. [45]

   The Crown pointed out that the applicant had not submitted that it was not open to the judge to find that the objective seriousness of the offence was at the mid-range. This was said to be unsurprising as the applicant had submitted during the sentencing proceedings that the offence was only “slightly below the mid-range”.

10. [46]

    The Crown submitted that ground 1(a) of the appeal was framed in the terms of insufficient weight being given to certain ameliorating factors and that matters of weight are for the sentencing judge. As to those matters complained of by the applicant, the Crown contended that the judge had either taken them into account or was not required to do so. In particular, the Crown argued that the judge was not required to give weight to the apparent absence of any known motivation for the applicant’s attack on his sister.

11. [47]

    The Crown emphasised that no submission was made at the sentencing hearing, that the applicant’s motive for committing the offence was to express grief at the death of his grandfather. Moreover, the applicant did not submit that his lack of motive mitigated the offence. A further submission by the Crown was that the fact the applicant did not prioritise escaping the consequences of his conduct over obtaining medical assistance and had demonstrated remorse, were subjective factors that were not relevant to the assessment of the objective seriousness of the offence.

12. [48]

    The Crown argued that this Court should not accept the applicant’s submission that the absence of specific aggravating factors prevented an assessment of the offence being in the mid-range of objective seriousness. There was an abundance of evidence that the offence was committed in the context of the applicant’s use of ice.

13. [49]

    The Crown submitted that the judge did have regard to the applicant’s intention in assessing the objective seriousness of the offence and no error had been demonstrated.

14. [50]

    The applicant’s submission before the judge as to the objective gravity of the offence was that it was to be assessed as being “slightly below the mid-range”. The applicant referred to the nature of the injuries that the victim suffered, the applicant’s intention, the degree of violence, the lack of premeditation or planning and the use of the weapon as being matters in the circumstances of the offence which were relevant to the assessment of objective seriousness.

15. [51]

    The applicant accepted that the victim received significant injuries and it would be expected that there were to be some issues in relation to nerve damage. The applicant submitted that the harm occasioned placed the offence below the mid-range of objective seriousness. As to the applicant’s intention, it was contended that there was nothing about the nature of the applicant’s offending which rendered the offence more serious than it is inherently presumed to be. The judge was asked to accept that the applicant was confused as to the reason for stabbing the victim. Particular reference was made to Dr Adams’ opinion that the applicant’s presentation was to be understood in the terms of “the short-lived effects of illicit substance use.”

16. [52]

    It was submitted that there was no evidence that the applicant intended to cause more serious harm than he actually did, that the attack was short in duration and it ended on the applicant’s own volition. As to the degree of violence, the applicant conceded that the level of violence was significant, involving the applicant stabbing the victim repeatedly, wounding her in the head, body, neck and arm. Nevertheless, the assault was of a relatively short duration.

17. [53]

    Another submission was that the offence was an impulsive act. The applicant accepted that the use of the knife was a factor to be taken into account when determining objective seriousness. When all of these matters were taken into account, the applicant’s contention was the offence was slightly below the mid-range of objective seriousness.

18. [54]

    On the other hand, the Crown argued that the objective gravity of the offence fell above the mid-range. Particular matters of difference between the competing submissions were the extent and nature of the injuries, the ferocity of the attack and its unprovoked nature and the diminishment of the absence of premeditation by the degree of harm intended.

19. [55]

    It is plain that the judge gave all of these submissions close consideration. In a careful and well-reasoned sentencing judgment, her Honour assessed the offence to be in the mid-range of objective seriousness.

20. [56]

    No arguments were put to her Honour by the applicant’s counsel in the sentencing hearing as to the lack of known motivation for the attack or that unexpressed grief at the death of the applicant’s grandfather had resulted in the stabbing or as to the absence of specific aggravating factors preventing an assessment of mid-range objective gravity. Furthermore, no submission was made to the judge that when all matters relevant to the assessment of objective gravity were taken into account, the offence “fell below the mid-range”.

21. [57]

    As has often been emphasised, this Court is a court of error. [3] This Court will not lightly entertain points that could have been but were not raised in the court below. However, it is recognised that this Court is able to correct a miscarriage of justice or a serious injustice with respect to a sentence in clear and rare cases where the relevant matter was not relied upon at first instance. [4]

22. [58]

    In any event, a lack of motive is not a matter that can be taken into account in determining the objective seriousness of an offence. [5] The absence of motive may be taken into account in assessing such matters as the need for community protection and an offender’s prospects of rehabilitation. [6]

23. [59]

    Should the applicant have contended that he was motivated by unexpressed grief at the death of his grandfather and that was to be treated as a mitigating factor, he was obliged to prove it on the balance of probabilities. Neither did the applicant give evidence nor was there any submission as to his unexpressed grief being a possible motive for the crime. Moreover, there was the applicant’s report to Ms Silling that he was under the influence of ice when he stabbed his sister and Dr Adams’ opinion that the applicant’s presentation was best understood in terms of short-lived effects of illicit substance abuse.

24. [60]

    As to Ms Doosey’s argument that the absence of specific aggravating factors prevented the assessment of objective gravity that her Honour made, it is sufficient to refer to the observation by Fullerton J (with whom Hoeben CJ and Davies J agreed) in GW v R: [7]

25. [61]

    Another submission by the applicant is that the judge erred by failing to properly address his mental state. Her Honour extensively referred to Dr Adams’ report and to his opinion that the applicant did not suffer from symptoms of major mental illness at the time of the offence. It is not surprising that the applicant’s counsel in the sentencing hearing did not make a submission that the applicant’s offending was causally related to his mental health. Importantly, her Honour’s finding that there was no evidence the applicant was suffering from any mental illness or condition that contributed to the offence has not been challenged on appeal. It is unnecessary to consider this issue further other than to state that the question of the applicant’s mental state does not arise when the objective gravity of an offence is being considered. That is part of the applicant’s subjective case. [8]

26. [62]

    Ms Doosey submitted that the applicant’s intention was on the lower end or perhaps “at the threshold level” of the spectrum of that contemplated by s 33 of the Crimes Act. Ms Doosey argued that an offence under s 33 contemplated a high level of intention “not just in the consequences of the action but in the actual planning contemplated by the section.” These submissions were not made to the judge by the applicant’s counsel.

27. [63]

    An offence contrary to s 33(1)(a) requires an intention to cause grievous bodily harm. There is no requirement for an offender to have planned the offence to form the requisite intention. The intention to cause grievous bodily harm may arise without premeditation or planning and be spontaneous. In common with other offences, planning may be taken into account as an aggravating factor [9] or the absence of planning as a mitigating factor. [10]

28. [64]

    In AM v R, [11] Johnson J (with whom McClellan CJ at CL and Garling J agreed) said at [73]:

29. [65]

    The irresistible inference from the applicant’s repeated stabbing of his sister, wounding her in the head, body, neck and arm was that he intended to cause her grievous bodily harm, which was recognised by the applicant in his plea of guilty to the offence. Her Honour found that the offence was spontaneous, noting that there was no suggestion that the applicant went to the home intending to do what he did.

30. [66]

    I do not detect any error in her Honour’s approach to the applicant’s intention when assessing the objective seriousness of the offence.

31. [67]

    The applicant complains that the judge failed to give sufficient weight to what were said to be ameliorating factors. Questions of weight are quintessentially a matter for a sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined. [12] I have already rejected the applicant’s submissions as to the lack of known motive and the applicant’s mental state. The help that the applicant sought for his sister which drew attention to the applicant himself and his demonstrated remorse are relevant to the applicant’s subjective case and not to the determination of objective seriousness.

32. [68]

    When assessing the objective seriousness of the offence, her Honour took into account the extent of the injuries suffered by the applicant’s sister, the degree of violence in the attack by the use of a knife, that the offence was committed in his sister’s home in the presence of her baby, the absence of provocation, the spontaneity of the attack and the absence of premeditation or planning, the short duration of the attack and that it was ended voluntarily after his sister had asked him what he was doing.

33. [69]

    The objective seriousness of a s 33(1)(a) offence is determined by all of the circumstances of the offence that are relevant. [13]

34. [70]

    In my opinion, all relevant matters were taken into account by her Honour when assessing the objective seriousness of the offence. It was open to the judge to find that the offence was of mid-range of objective seriousness.

35. [71]

    I would reject this ground of appeal.

Ground 2: the sentence is manifestly excessive

1. [72]

   In written submissions the applicant submitted that the undiscounted starting point of the sentence appeared to have been some 9 years 3 months. However, the judge identified some factors that may have warranted some leniency for the applicant which included genuine remorse, insight when not intoxicated and relative youth and immaturity.

2. [73]

   It was put to the Court that “by inference, the instinctive synthesis process by which her Honour arrived at the pre-discount starting point must also have taken into account the mitigating factors identified by her. Accordingly, the starting point for this sentence must have been higher than that produced by a mere adding on of the 25% discount.”

3. [74]

   The applicant contended that “allowing for modest reductions for the identified factors, this indicates an original sentence of about ten years was regarded as otherwise indicated.” The applicant argued in the circumstances of this case such a starting point is indicative of excess and was at the top end of those imposed over the preceding 10 years.

4. [75]

   The Crown referred to this Court’s frequently made observation that sentencing is not a mathematical exercise. The Crown submitted that the judge did not err in concluding that the tendered statistics and case summaries were of limited utility. Furthermore, the fact that her Honour may have imposed a sentence towards the top of the statistical range was not determinative of error. The Crown pointed out that despite finding that the offence was of mid-range, her Honour imposed a non-parole period of 4 years 6 months, which was well below the standard non-parole period of 7 years.

5. [76]

   This Court has often stated that to succeed on a ground where a complaint of manifest excess is made, the applicant must establish that the sentence was unreasonable or plainly unjust. [14] Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features. [15] It follows that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. [16]

6. [77]

   I do not understand the applicant’s submission that the “original sentence” must have been about 10 years. There is no suggestion that her Honour adopted a “two stage approach” of arriving at a sentence, in which an “objective” sentence is first determined and then “adjusted” by a mathematical value given to subjective features of the case. [17]

7. [78]

   It is apposite to note that her Honour said at the commencement of her sentencing judgment:

8. [79]

   Her Honour assiduously considered the Crown case and the applicant’s case, made her findings and provided reasons for them. After balancing the competing considerations, her Honour arrived at the sentence to be imposed. The starting point of the sentence before the discount for the plea of guilty is 9 years 3 months and not about 10 years.

9. [80]

   The Sentencing Table of cases that was provided to the judge during the sentencing proceedings does not lead me to conclude that the sentence is manifestly excessive. I agree with her Honour’s observation that “given the breadth of conduct encompassed by an offence pursuant to s 33(1)(a) and the variation of the subjective circumstances covered by those statistics and case summaries… are of limited utility.”

10. [81]

    This is a serious offence. The applicant stabbed his sister repeatedly with a knife. Her injuries included a punctured lung and three deep wounds with nerve damage to the left hand. She continued to suffer from tendon damage in the left hand and scarring from the wounds. Although the attack was spontaneous, of short duration and it ended voluntarily, it was unprovoked. The applicant’s sister was defenceless and was attacked in her home in the presence of her baby.

11. [82]

    The applicant does not challenge her Honour’s finding that a serious matter of aggravation was that more than one blow was struck with the knife. Nor is there any challenge to the findings her Honour made as to the applicant’s subjective case.

12. [83]

    During debate in this Court, Ms Doosey accepted that the applicant’s intoxication with illicit drugs at the time of his offending fell within s 21A(5AA) of the Crimes (Sentencing Procedure) Act which provides:

13. [84]

    The maximum penalty for an offence contrary to s 33(1)(a) of the Crimes Act is 25 years imprisonment with a standard non-parole period of 7 years imprisonment. In my view, the sentence imposed of 7 years imprisonment with a non-parole period of 4 years 6 months was within the legitimate exercise of her Honour’s sentencing discretion. I am not persuaded that the sentence is manifestly excessive. I would reject this ground of appeal.

Orders

1. [85]

   The orders that I propose are:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [86]

   LONERGAN J: I agree with Price J.