Ney v R

1. [1]

   BEECH-JONES CJ at CL: The circumstances and grounds of this application for leave to appeal are set out in the comprehensive judgment of Campbell J. For the reasons given by his Honour, I agree that grounds 1 and 4 to 5 should be dismissed. In relation to ground 6, it follows from the findings made below that I would reject the complaint of manifest excess.

2. [2]

   In relation to ground 2, I agree that, in his otherwise careful remarks on sentence, the sentencing judge did not expressly address the contention that the applicant’s conditions in custody are likely to be rendered more onerous by reason of his mental illness. The contention was made in clear terms and was supported by evidence (see [69]).

3. [3]

   Some precision is required in identifying the reason why the absence of any reference to this matter in the remarks on sentence might vitiate the sentencing exercise. If the complaint is that the relevant error is the failure to address the submission, then I am doubtful that that amounts to a failure to take into account a material consideration as referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. There is nothing in the relevant legislative regime that makes every component of a party’s submission a matter a sentencing judge is, per se, obliged to take into account. Instead, in a case where a contention supported by evidence such as this is not expressly referred to in the sentencing remarks it may mean that the submission was not addressed, or it was addressed but not included in the judgment. Either of those possibilities may or may not yield an error, being either a failure to comply with the judge’s “paramount judicial duty” to consider a party’s case (Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598 at [62]‑[63]; Baker v David [2015] NSWCA 235 at [24]) or, if it was considered, the judge’s duty to provide reasons for the rejection of the argument (Baker v David). However, both of those possibilities must be approached on the basis that “a judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon at [62] per Gleeson CJ, McHugh and Gummow JJ). Ultimately, these matters are approached by considering, inter alia, the clarity with which the argument was raised and the significance of the point to the party’s overall case (see for example Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 at [121]).

4. [4]

   It is unnecessary to consider this further because the absence of any express reference to the submission in his Honour’s remarks and the absence of any reference by his Honour to the applicant’s likely experience in custody, especially in light of what was accepted concerning his medical condition, yields a conclusion that his Honour failed to take into account a material consideration for the purposes of House v King. At one level, the onerous effect of custody on the applicant might be seen as relatively immaterial given the gravity of his crimes. However, at another level, it had particular significance when it was accepted by all that the applicant would face a long period of incarceration and thus the impact on him of his conditions of custody, in light of his mental condition, was one of the (few) matters in his subjective case that was potentially favourable to him (along with his youth). Once it is concluded that his Honour did not take into account that material consideration, then this Court does not assess whether, and to what degree, the error influenced the outcome (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]).

5. [5]

   However, even though I accept Dr Furst’s conclusion that the applicant’s limited intellectual functioning, high levels of anxiety, propensity towards depression, and suicidal ideation and his poor social skills are likely to make his custody more onerous than the “theoretical average inmate”, I consider that an independent exercise of the sentencing discretion leads to the conclusion that a less severe sentence is not warranted (Criminal Appeal Act 1912 (NSW), s 6(3)).

6. [6]

   The facts and circumstances of the offending are described in detail by Campbell J. Critically, the sentencing judge found that this crime was premeditated, specifically that the applicant “came to the city intending to arrange to meet, in a private location, a young woman so that he could kill her” (R v Ney [2021] NSWSC 529 at [177]; “Ney”). The planned murder of a random, but innocent and vulnerable person is a severe instance of the crime of murder compared to the cases that commonly before the Court. In addition, the murder was carried out by brutal and barbaric means. It was followed by what the sentencing judge accurately described as his “gruesome and bizarre” act in filming himself and “the young victim lying on the floor whom he had just murdered in a savage attack” in some sickening display of apparent bravado and then sending the film to others (Ney at [59]-[63]). The events which then unfolded in the streets of Sydney’s Central Business District as the applicant lashed out and threatened passers-by, which included the stabbing of Ms Bo, confirm what is otherwise apparent, namely, that the applicant represents a significant danger to the public.

7. [7]

   In Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33, at 354, Mason CJ, Deane, Dawson, Toohey and McHugh JJ observed that “…a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”. The objective seriousness of the applicant’s offences was extremely high. The requirements of proportionality do not inhibit or impair my reaching the conclusion that no lesser sentence is warranted. The various findings made by the sentencing judge about the applicant that are either not challenged or have withstood challenge do not advance his subjective case to any substantial degree. His plea of guilty and youth assist him. I have already addressed one aspect of how his mental condition affects the sentencing process. However, overall, the effect of the applicant’s mental condition on the sentencing process represents an example of how such a condition can result in the various sentencing factors pointing in different directions. Thus, in this case it lessens the weight to be attached to general deterrence. However, within the constraints of proportionality, the necessity for specific deterrence and the need to protect the community from the offender predominate in light of the gravity of the applicant’s crimes and the sentencing judge’s findings that the applicant “constitutes a significant risk of committing further offences of serious violence” (Ney at [203]) such that he is a “dangerous man and continues to be a dangerous man” (Ney at [209]) (see Veen v R (No 2) (1987) 164 CLR 465; [1988] HCA 14, at 472, 473-474; R v Dong [2021] NSWCCA 82 at [48]).

8. [8]

   I would grant leave to appeal but dismiss the appeal.

9. [9]

   CAMPBELL J: The applicant seeks leave to appeal from the aggregate sentence passed on him by Johnson J on 14 May 2021 on his pleas of guilty to the murder of Michaela Dunn and the wounding of Lin Bo with intent to cause grievous bodily harm, both of which were offences committed in the Sydney Central Business District (“CBD”) on 13 August 2019. In passing sentence for the wounding offence, his Honour took into account two offences on a Form 1. The first offence was the common assault of the applicant’s sister, Yazel Ney, committed on 7 August 2019 and the second was possession of a prohibited drug, being 1.6 grams of cannabis, which was also committed on 13 August 2019.

10. [10]

    The offence of murder carries a maximum penalty of imprisonment for life: ss 18 and 19A Crimes Act 1900 (NSW). The Court has the power to impose a determinate sentence in which event there is a standard non-parole of 20 years. The wounding offence contrary to s 33(1)(a) Crimes Act is punishable by a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. Each of the Form 1 offences carried a maximum penalty of imprisonment for 2 years.

11. [11]

    After a sentencing hearing conducted on 29 and 30 March 2021, on 14 May 2021 the learned sentencing judge imposed an aggregate sentence of imprisonment for 44 years with a non-parole period of 33 years commencing on 13 August 2019, when the applicant was arrested and taken into custody. No finding of special circumstances was made. The head sentence expires on 12 August 2063 and the applicant will first be eligible for parole after the expiration of the non-parole period on 12 August 2052. For the murder, the sentencing judge nominated an indicative sentence of 40 years imprisonment with a non-parole period of 30 years. For the wounding offence (taking into account the matters on the Form 1), the indicative sentence was one of 8 years with a non-parole period of 6 years.

Preliminary procedural point

1. [12]

   The applicant’s notice of intention to appeal was filed on 18 May 2021 within the time limited by s 10 Criminal Appeal Act 1912 (NSW) (see also rr 3.1 and 3.2 Supreme Court (Criminal Appeal) Rules 2021 (NSW) (“the Rules”)). However, a notice of appeal was not filed until 22 November 2022. The grounds of appeal were not filed until 22 May 2023 with the applicant’s written submissions. It is not apparent that any application was made to extend the validity of the notice of intention in the meantime. By his affidavit sworn on 11 November 2022, the applicant has provided an explanation for the delay in the prosecution of his application for leave to appeal from sentence. To my mind the explanation is reasonably satisfactory in as much as it does not suggest that he personally lacked forensic diligence. Rather, a new legal team was assembled, and it took time to provide an advice as to the merits and other necessary steps before the notice of appeal could be filed. There is no evidence from the solicitor as to whether applications for an extension were made. Given the seriousness of the matter, the non-opposition of the Crown and the consideration that the application for leave to appeal is more than fairly arguable, I would dispense with compliance with the requirements of the Rules to the extent to which they have been breached and extend the time for filing the notice of appeal to 22 November 2022, nunc pro tunc. If necessary, I would grant leave for the application for leave to appeal to be made under r 3.5(5) of the Rules.

The grounds of appeal

1. [13]

   The applicant initially sought leave to appeal from his sentence on six grounds as follows:

2. [14]

   Mr G Brady SC, who appeared with Dr K Fallah for the applicant, withdrew ground 3 at the commencement of the hearing (2.30T). He accepted “that it is not provable on the balance of probabilities there’s an Intellectual Disability” (5.10T).

3. [15]

   It can be seen from the formulation of the grounds that the central issue is the treatment by the learned sentencing judge of the applicant’s mental condition or disorder and his relative youth. The applicant was born in September 1998 and was therefore 20 years and 10 months old on the date of his offending. There was also uncontradicted evidence, accepted by the learned sentencing judge that the applicant had “a diagnosis with metal health issues, including anxiety, obsessive compulsive disorder and depression” (Sentencing Judgment: R v Ney [2021] NSWSC 529 (“SJ”) at [19].

Proceedings on sentence

1. [16]

   As I have already remarked, the proceedings on sentence were conducted over 2 days. Agreed facts and a significant body of documentary evidence were tendered. Pertinent audio-visual evidence was also tendered (Exhibit B) depicting, in graphic detail, the crime scene in the immediate aftermath of the murder of Ms Dunn. This body of evidence includes footage recorded by members of the public and news media of the aftermath of the murder during which the applicant, brandishing a knife, “ran amok” through Sydney streets. Ms Bo was stabbed from behind during this phase of the offending.

2. [17]

   Oral testimony was given by the police officer in charge, Detective Sergeant Mitchell Bosworth, the applicant’s sister Dirench Ney (not the sister the subject of the Form 1 offending), the applicant and by Dr Richard Furst, the forensic psychiatrist qualified to give evidence about the applicant’s mental health for the purpose of the proceedings on sentence.

3. [18]

   The Crown submitted that the applicant’s culpability for the murder of Ms Dunn was so extreme that a just and appropriate sentence was imprisonment for life (Appeal Book (“AB”) 411). This submission was partly, certainly not wholly, based upon the argument that the applicant’s offending was motivated by an adherence to an extremist and violent Salafist interpretation of Islam (AB 417). The learned sentencing judge rejected this aspect of the Crown case (SJ [160]-[168]). This question therefore may be put entirely to one side.

The sentencing judgment

1. [19]

   His Honour found that the applicant had been born in Sydney in September 1998, one of the three children of migrant parents. His father was a computer engineer. His parents separated in 2013 and the applicant continued to reside with his mother and his sister Yazel at Marayong. This is the sister who was the victim of the Form 1 assault offending.

2. [20]

   The applicant attended a state public school and later a state high school. While Dr Furst excluded a diagnosable intellectual disability, the applicant reported difficulties in class. He had few friends, little interest in sport and no identified hobbies except online computer gaming. He claimed to have been bullied at school. He mostly absented himself from Year 9 in 2014 and when asked to repeat in 2015, he attended for only two weeks before finishing school. There was no history of any gainful employment since leaving school.

3. [21]

   The applicant had never formed an ongoing intimate relationship. The only intimacy he experienced was with sex workers.

4. [22]

   The learned sentencing judge accepted that the applicant had a history of mental ill health. He largely accepted Dr Furst’s evidence about this. His Honour seemed to accept the evidence of Dr Furst that the applicant met the DSM-5 criteria for the following diagnoses:

5. [23]

   I do not understand the evidence to suggest that the last is a diagnosable condition. Dr Furst expressed the view that the applicant “probably” fell into the low average to borderline intellectually disabled region. But the expert accepted that there was no evidence that the applicant suffered a diagnosable intellectual disability and as I have said, ground 3 in dealing with that issue has been withdrawn.

6. [24]

   The sentencing judge accepted that the applicant had a history of mental health problems from about the age of 14 in 2012 or 2013. The applicant received treatment on and off from this time up until the time of his offending. But he was not fully compliant with the course of treatment prescribed from time to time.

7. [25]

   From his Honour’s review of the medical records tendered in the proceedings on sentence, the dominant psychiatric presentation of the applicant was one of depression and anxiety, for which he was prescribed various medications and referred for psychological counselling intermittently over the years leading up to his offending. While he sought emergency department treatment (or it was sought for him) on occasion, he was resistant to specialist referral when this was recommended by his general practitioner (“GP”).

8. [26]

   In June 2018, he attended the emergency department of a public hospital with a history of “a possible overdose” (SJ [127]). He recounted a history of unmedicated depression and anxiety. He was scheduled as a mentally disordered person under the Mental Health Act 2007 (NSW) but absconded from the emergency department when he returned for treatment on 9 August 2018. The scheduling lapsed and the applicant did not engage with community-based treatment.

9. [27]

   The applicant’s condition continued into 2019. He obtained treatment from his GP but refused to see a psychologist or psychiatrist. He was very unmotivated. He continued to be non-compliant with treatment.

10. [28]

    On 5 April 2019, he was taken to the emergency department of Westmead Hospital having attempted suicide by consuming a cocktail of medications, alcohol and laundry detergent. He was detained involuntarily under the Mental Health Act at Cumberland Hospital between 6 and 15 April 2019 where he was treated with intramuscular injections of antipsychotic medication. During his transfer from Westmead, he had tried to abscond, and it was necessary to sedate him. After further assessment, the applicant was not regarded as manic, depressed or psychotic. The diagnosis was one of substance induced behavioural disturbance. The history of Obsessive Compulsive Disorder, learning difficulties and poor impulse control emerged. He declined voluntary treatment with antipsychotic tablets. He was prescribed an antidepressant and was discharged on 15 April 2019. He continued to receive treatment from his GP. His last attendance before the offending was on 9 August 2019. On 7 August 2019 he had been admitted to the emergency department of Bankstown Hospital again, but yet again absconded when he was transferred to the Mental Health Ward.

11. [29]

    Notwithstanding the obvious mental health issues, the sentencing judge, on Dr Furst’s evidence (SJ [151]), was not satisfied that the applicant was suffering from a major psychotic illness such as schizophrenia or bipolar disorder. Rather, he was suffering from a lesser form of mental disorder. His Honour concluded that the applicant’s functioning was affected, but not significantly distorted by his mental condition.

12. [30]

    The applicant had not previously been a religious person, but on 25 July 2019 he attended the Blacktown Mosque expressing an interest in the Islamic faith. He attended the mosque frequently leading up to 12 August 2019. He accepted instruction in “the basics of Islam” (SJ [22]) and while members of the mosque observed that he appeared to be affected by alcohol and drugs at times, they attempted to assist him. He expressed a desire to change his life, but he was inconsistent in his observance and on 6 August 2019 he told his mother that he would not be returning to the mosque. Following what the applicant claimed to be the ingestion of “too much” of the prescription drug, Lyrica, his sister Yazel, recommended he attend hospital. This was the attendance of 7 August 2019 about which I have already recorded the sentencing judge’s findings. He was taken to hospital by his mother in an Uber, but as I have said, absconded.

13. [31]

    After leaving the hospital he returned home at about 6:00am on 7 August 2019, he was angry and said he was looking for his medication. He damaged the walls of his mother’s home by punching them and broke her phone by throwing it on the ground. The racket woke up Yazel who called the police and confronted the applicant, demanding that he leave the house. He ran towards her and struck her with an open fist to her forehead. In the following struggle, he applied a headlock to his sister which he released only when she bit him on the hand; these are the circumstances of the Form 1 assault. The applicant left home before the police arrived. An interim apprehended domestic violence order was taken out on behalf of Yazel. Police attempts to locate the applicant were unsuccessful. After leaving the family home the applicant had been able to arrange crisis accommodation in Blacktown.

14. [32]

    His Honour’s findings of primary fact leading up to the murderous attack on Ms Dunn and the wounding of Ms Bo paint a graphic picture of a young man whose life was then spiralling out of control: his mental health condition was worsening and he refused hospital treatment; his relationship with his mother and sister, Yazel, had broken down and he moved out of the family home in the most acrimonious of circumstances; and the prosocial influence of his contacts at the mosque were unable to moderate his behaviour.

15. [33]

    As I have said, he continued his contact with persons at the mosque right up until 12 August 2019, the afternoon before he offended so seriously. When he last attended there, he smelt of alcohol and cigarettes. One of the members of the mosque dropped him back at his crisis accommodation. I think it important to point out that the sentencing judge found that the applicant’s contacts were a good influence on him. The evidence affirmatively established to his Honour’s satisfaction that those persons were engaged in the peaceful practice of their faith and in this spirit sought to assist the applicant. His Honour said: “regrettably [the applicant] did not take up that opportunity” (SJ [31]). There was no evidence of even the merest suggestion that any of the applicant’s contacts at the mosque sought to radicalise him.

16. [34]

    The applicant unexpectedly returned to his home on 10 August 2019 to obtain some of his belongings. He told his mother that he wished to sever all of his relationships with his family. He burned family photographs stating he wished to erase all memories of his family. This was the last contact his mother had with the applicant before his offending.

Events of 13 August 2019

1. [35]

   The applicant’s aunt, Emine Gulle, contacted him by text message on the morning of 13 August 2019 offering him assistance. The applicant rebuffed her overtures saying he believed she would force him to go to hospital. He texted her that he would be dead in a week (SJ [43]).

2. [36]

   The applicant caught the 11:37am train from Bankstown to Town Hall. From the closed-circuit television (“CCTV”) footage the sentencing judge found that he moved in a purposeful manner. There was nothing unusual about his appearance or his manner. Immediately after disembarking from the train at 12:25pm the applicant went to the library in Townhall House. Ms Dunn, who was then aged 24 years, was working as an escort from a unit in premises in Clarence Street. At about 1:04pm a colleague of Ms Dunn received by text message a booking request from the applicant for a “girlfriend experience” service at 1:30pm that day. The applicant agreed to the cost of $250, which was quoted. His Honour found that this was of some importance in determining the applicant’s intent as he was in no position to pay for the service having only $2 in cash and no credit card. The colleague confirmed the applicant’s appointment with Ms Dunn and provided the address and instructions for entry. His Honour observed that there was no question of the applicant’s functioning being impeded in any respect. While the applicant had some difficulty locating the Clarence Street address, there was nothing in the evidence to suggest that his mental functioning was impeded (SJ [51]).

3. [37]

   The offender gained entry to the premises occupied by Ms Dunn. They were alone. This was his intent; the sentencing judge rejected the applicant’s evidence that he had in mind the possibility of leaving without paying for the services. His Honour specifically found that the applicant had travelled to the city on 13 August 2019 for the purpose of doing physical harm to a person or persons. To his Honour’s mind, this was borne out by what immediately followed (SJ [53]). One may say that it may have also be borne out by the circumstance that the applicant had brought with him “at least 1 knife” from his crisis accommodation. He drew the knife and immediately attacked Ms Dunn inflicting multiple stab and incised wounds to her face, neck, chest and limbs. The applicant had a significant height and weight advantage over Ms Dunn, and she sustained extensive defensive wounds as she fought to fend him off. After she fell, the applicant cut Ms Dunn’s neck through to her spinal cord at the C4/C5 juncture. I interpolate that his evidence that he had done so to hasten her passing is entirely improbable. The learned sentencing judge made the following observations (SJ [55]-[57]):

4. [38]

   In what the sentencing judge described as both “gruesome and bizarre” (SJ [59]), having cut Ms Dunn’s throat, the applicant filmed on his mobile phone a 10 second video clip of himself and his victim. His Honour found that the applicant “appeared to be enjoying the process whereby he filmed the young victim lying on the floor whom he had just murdered in a savage attack” (SJ [60]). On the video he is heard to utter slogans which may be associated with activities of Islamic violent extremists.

5. [39]

   To add to the gruesomeness of his actions, the applicant shared the video with a friend via Facebook. Amongst his comments was, “Allah is laughing bro”. He then abandoned Ms Dunn’s body and as he made good his departure, he exchanged other messages about his actions on social media.

6. [40]

   The applicant departed the building by the fire stairs, leaving a trail of blood. In the process he discarded a knife with a 20cm blade. He exited into a rear laneway where he paused before donning a balaclava which he claimed was a disguise for an intended armed robbery. The sentencing judge rejected this evidence. Bearing in mind the applicant’s clothing was blood stained and he was still armed with one knife, the donning of the balaclava was to maximise the fear that innocent members of the public going about their business at lunchtime in the CBD of Sydney might experience. The applicant ran to York Street and onto the carriageway through stationary traffic wielding his knife. One witness heard him shout what could be a slogan used by Islamic terrorists. Given the findings of the sentencing judge, this was obviously for effect. He turned into King Street heading west. He attempted to stab a young woman walking down the street. Quite fortuitously she moved just out of reach before the applicant struck at her head. Ms Bo was walking back from lunch with a friend. When she was near the corner of King and York Streets, she heard screaming but could not make out what was being said. Looking around she saw two or three men run past her. The sentencing judge observed, from his viewing of the CCTV footage, that the actions of the applicant had engendered bedlam (SJ [72]). The applicant ran past Ms Bo to her left and stabbed her in the back of her left shoulder as he went. Her friend yelled “he has a knife”. Ms Bo required hospital treatment. She suffered a 4cm single stab wound to her left posterior thorax at the level of the shoulder blade. The wound was treated by suturing. She also suffered, as may be expected, significant psychological harm as a result of the random knife attack on her on a public street.

7. [41]

   As the applicant continued west on King Street, he was seen to raise his arm with an extended index finger, in the manner of the salute adopted by jihadists supportive of the Islamic State in Iraq and Syria (“ISIS”) (SJ [76]). A number of civilians bravely formed a posse to pursue, apprehend and control the applicant for the protection of others. His Honour found those members of the public placed themselves at risk in the interests of the safety of their fellow citizens (SJ [77]). As his Honour observed from the Court’s vantage point, the applicant was extremely dangerous, and these members of the community were acting in the interests of others without regard to the possible consequences for themselves. His Honour identified Michael Appleby, John Bamford and Witold Skonieczny. Other members of the public joined the original posse. Two firemen halted their fire engine on York Street, armed themselves with tools and joined the pursuit. Another passer-by took a tool from the fire engine and also joined the “hue and cry”.

8. [42]

   The applicant mounted the roof of a black Mercedes sedan at the intersection of King and Clarence Streets. Again, giving the ISIS salute and shouting slogans. He taunted his pursuers to kill him, slashing at them when one came close to him.

9. [43]

   He headed along Clarence Street toward Barrack Street then turned to face his pursuers. There were many people on the street given it was the middle of the day and the applicant’s actions would have instilled fear into the hearts of many, as his Honour found (SJ [86]).

10. [44]

    At about 2:01pm the applicant was where Wynyard Street becomes Wynyard Lane, near Carrington Street, when the posse caught up with him. Jamie Ingram armed himself with a chair which he used to shove the applicant to the ground. In the process the applicant dropped his knife. When the applicant was down, Jason Shaw pinned him to the ground with a milk crate on his throat. One of the firemen struck him twice on his knee. His Honour remarked (SJ [92]):

11. [45]

    Police arrived soon after and there was an exchange between them and the applicant during which he invited police to kill him. He uttered more faux-terrorist slogans as he was placed in the back of the police truck. A 35cm knife was removed from his possession. At the time of his arrest the applicant had in his possession an antipsychotic drug, two Viagra tablets and 1.6 grams of cannabis (the second Form 1 offence). He also took it upon himself to critique the police methodology and expressed disappointment that the officers had not killed him with the “long guns” used by tactical response police (SJ [100]).

12. [46]

    An examination of the applicant’s personal electronic devices by police revealed a number of significant matters about his mindset in the weeks leading up to the murder of Ms Dunn. There were a number of exchanges with an acquaintance with whom he engaged during online gaming. He spoke of an intention to murder, engaging in a suicide mission and murdering a sex worker while having sex with her. He seemed fixated on mass shootings in the United States. He had also sent a video he had filmed of himself engaged in sex with an unknown female stating he attempted to choke her during the intercourse. This was sent to another online gaming associate.

13. [47]

    By his own account in evidence, he admitted to being “really obsessed” with the Christchurch terrorist massacre. He claimed to have watched the footage “at least 20 times” (SJ [123]).

Sentencing judge’s findings as to gravity and moral culpability

1. [48]

   I repeat that the learned sentencing judge was not persuaded that the offending had a terrorist motivation. However, as I have already said, the Crown submitted that the case was one calling for the imposition of a life sentence for the applicant, in any event. It was argued by senior counsel appearing for the applicant below that the state of his mental health and his youth reduced his moral culpability such that a life sentence was not warranted.

2. [49]

   His Honour found that even absent a terrorist motivation, the offending was “especially grave” (SJ [169]). As I have already recorded, his Honour was satisfied that the applicant travelled to the Sydney CBD with the intention of killing a person and to use violence to terrify others. While he was affected by a mental disorder it did not impede his capacity to plan and implement the “relatively complex series of steps which he took on 13 August 2019” (SJ [169]). His Honour was satisfied beyond reasonable doubt that the applicant’s plan was to confront a young woman in a private and secluded setting for the purpose of murdering her. The attack was savage and brutal, without any provocation whatsoever from Ms Dunn, who was vulnerable due to her isolation in her workplace in the presence of the offender. His Honour found that the “grotesque” act of filming the immediate aftermath of the murder scene “reflected a measure of satisfaction at what he had done” (SJ [171]). His Honour accepted, however, that the applicant’s “mental disorder played a part”. His Honour accepted that the applicant would have been “content to die that day at the hands of the police”, but this did not “operate as a powerful factor in his favour” (SJ [172]). From the record provided by the content of his electronic devices his Honour found that the applicant was influenced by the Christchurch terrorist murders, and other mass killings. He also had a morbid interest in shootings associated with the violent interactive computer games he played. His Honour found that the applicant was “a self-centred individual with no real concern for others”. His offending conduct was “devoid of natural human sympathy or regret for what he had done” (SJ [174]). To his Honour’s mind this conclusion was reinforced by what his Honour made of the applicant’s demeanour giving evidence at the sentencing hearing. His impression was that the applicant’s bearing “demonstrated the lack of sympathy and insight into the suffering of others”. He said, “[h]is matter of fact and emotionless account of the killing of Ms Dunn was disturbing for its absence of empathy and human content (T53-55)” (SJ [175]).

3. [50]

   His Honour summarised his conclusions as follows (SJ [177]-[178]):

4. [51]

   His Honour also assessed the wounding offence against Ms Bo as grave offending of that type. Fortunately, the physical injury was not as bad as it could have been. That this knife attack occurred in the context of the offender running amok in the streets of Sydney forms part of the surrounding circumstances bearing upon the objective gravity of the wounding offence.

Rejection of the appropriateness of a life sentence

1. [52]

   As he was required by law to do, his Honour then turned to the question of whether the statutory criteria prescribed by s 61(1) CSPA mandated the passing of a sentence of life imprisonment on the applicant. His Honour (SJ [185]) directed himself that the primary focus of s 61(1) is “how extreme an offender’s culpability is, with the need for the Court to find features of great or very great heinousness, along with the absence of any facts mitigating the seriousness of the crime”: R v Meritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 at [52]. His Honour said that it was the combined effect of the criteria of retribution, punishment, community protection and deterrence, in their statutory context as expressed in s 61(1) that was important. The absence of one or more of those “indicia” make it more difficult to conclude that a life sentence is required.

2. [53]

   Having so directed himself, his Honour concluded (SJ [188]-[189]):

3. [54]

   The Crown invoked s 25F(2) CSPA to argue that if a life sentence was not to be imposed, no discount should be given for the applicant’s early plea of guilty because of his level of culpability. In the ordinary course his early plea would have entitled him to a 25% discount on sentence. His Honour observed that the language of s 25F(2) is similar to that of s 61(1), but said, “it is clear that s 25F(2) has different work to do” (SJ [201]). His Honour was not prepared to allow the full 25% and reduced the discount to 10%. There is no appeal from this part of his Honour’s decision.

4. [55]

   The sentencing judge found that the applicant constituted a significant risk of committing further offences of serious violence and that protection of the community “looms large in imposition of sentence in this case” (SJ [203]). It is important to point out that his Honour recognised that the applicant’s mental health issues “operate to assist him on sentence in certain respects” but “the protection of the community is a central consideration in the imposition of sentence for [the applicant]”.

5. [56]

   His Honour was of the view that the evidence of Dr Furst provided only limited assistance to the applicant as did his very limited prior criminal history. Prior misconduct in custody pointed to a more entrenched attitude “which does not augur well with his prospects for rehabilitation, his risk of reoffending and the most important consideration of protection of the community” (SJ [204]). His Honour was firmly of the view that there was every reason for serious concern that the applicant was capable of offending in the same way in the future. He was of the view that there was little to indicate that the community, including the prison community, may be protected from the applicant without the imposition of special measures (SJ [205]). His Honour held that the consideration of community protection “operates strongly against the offender with respect to sentence in this case”. Once again there is no appeal from, or challenge to, this part of his Honour’s conclusion. Having regard to the applicant’s mental illness his Honour felt that the significance of general deterrence was reduced, but not eliminated. He emphasised that the applicant was suffering a lesser form of mental disorder. He remained satisfied that specific deterrence was “a most important factor” relating as it does to the protection of the community. His Honour concluded (SJ [209]-[210]):

6. [57]

   In passing the aggregate sentence referred to above, his Honour emphasised the “objective gravity of the offences, the [applicant’s] subjective circumstances and other significant factors including specific deterrence, a measure of general deterrence and protection of the general community” (SJ [211]). He also emphasised the principle of reasonable proportionality (SJ [212]). Having decided to impose an aggregate sentence, his Honour took the 10% discount for the applicant’s guilty plea into account in nominating the relative indicative sentences I have referred to above.

Ground 1: failing to provide reasons by which it can be determined what “unwarranted double counting on sentence” means in relation to how the applicant’s mental health issues were considered on sentence

1. [58]

   Ground 1 specifically impugns the conclusions expressed by the sentencing judge which his Honour made clear flowed from his decision that a life sentence was not called for by application of s 61 CSPA to the circumstances of this case. It is clear that the applicant presents this complaint as a “reasons” ground. However, Mr Brady and Dr Fallah recognised that the resolution of this ground involves an understanding of the principle governing the interplay of s 19A Crimes Act and ss 21 and 61 CSPA. Reference was made to CC v R; R v CC [2021] NSWCCA 71; (2021) 289 A Crim R 453. While no obvious consensus emerged from the decision of that five-judge bench, Adamson J’s (as her Honour then was) analysis has been approved in subsequent cases. Her Honour said (at [80]-[83]):

2. [59]

   Whilst counsel acknowledged, as I have tried to demonstrate, that his Honour took into account the applicant’s mental health condition in the instinctive synthesis for the purpose of s 21(1) CSPA, the position was maintained that his Honour’s expression was too opaque.

3. [60]

   Mr G Newton SC, Crown Prosecutor, argued by reference to Taylor v R [2018] NSWCCA 255, that the learned sentencing judge aptly discharged his judicial obligation in that regard. Applying this authority, the Crown submitted that reading his Honour’s sentencing judgment as a whole and focusing on how his Honour dealt with the mental health issue, it is abundantly apparent what his Honour did and why. It is also clear that the principle applied can be identified and the manner in which it was applied to the facts as his Honour found them to be, was sufficiently clear.

Consideration

1. [61]

   I am not satisfied that there is any inadequacy in the sentencing judge’s reasons with reference to the manner in which he dealt with the mental health issue and the principles which informed his decision. While there are many cases concerning a judge’s obligation regarding reasons in sentence appeals, Taylor v R is a sufficient expression of those principles for present purposes. The passage relied upon by the Crown is at [51]-[56] (per Wilson J, White JA and Walton J agreeing). The purpose of the provision of reasons is to enable the offender and the Crown (and the public) to understand how the sentencing judge arrived at the sentence passed. The path of reasoning actually followed must be disclosed to permit the parties and the Court of Criminal of Appeal to ascertain whether appellable error has occurred in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40. Wilson J pointed out that the reasons of a first instance judge must be considered as a whole and read fairly. As it is frequently put, the reasons must not be read with an eye finely attuned to the detection of error (eg Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6).

2. [62]

   I am well satisfied that his Honour’s reasons accord with the relevant legal standard. His Honour correctly, with respect, regarded the applicant’s mental illness as relevant to the assessment of moral culpability for the purpose of s 61(1) CSPA and said so (SJ [181]). His Honour considered that issue for the purpose of assessing whether the case at hand fell into the category of cases calling for a life sentence (SJ [188]). Having recognised that in the circumstances of the case, mental illness and the applicant’s youth had a significant mitigatory effect removing the matter from the reach of s 61(1), he also recognised that, while these matters remained relevant, their mitigatory effect should not be overworked. This last aspect is made clear inasmuch as his Honour recognised that the applicant’s mental illness did not point in one direction only. While it was relevant to the applicant’s subjective case in the process of the instinctive synthesis following determination of the s 61 CSPA question, his mental condition also contributed to the applicant’s dangerousness as assessed by the sentencing judge and accordingly brought the purpose of the protection of the community and the significance of specific deterrence into focus for determining the appropriate sentence for this offending and this offender. His Honour also recognised that the applicant’s mental disorder attenuated but did not eliminate the relevance of general deterrence (SJ [207]). There are no inadequacies in the sentencing judge’s statement of reasons.

3. [63]

   Nor am I persuaded that there is any implied error of principle at work. As the statement in Adamson J’s judgment in CC v R (at [84]) makes clear, the extent to which the same factor may inform a sentencing court’s decision at the s 61 CSPA stage and also at the s 21 stage, is itself fact sensitive. This is borne out by her Honour’s statement at the commencement of [84]: “in the present case”.

4. [64]

   Adamson J’s statement of principle was approved in Rogerson v R [2021] NSWCCA 160; (2021) 290 A Crim 239 at [635] (Bell P (as the Chief Justice then was) RA Hulme and Beech-Jones JJ (as the CJ at CL then was)). Their Honours undertook a full review of the interplay of the common law principles and statutory provisions dealing with the need to consider the imposition of a life sentence, on the one hand, and fixing a determinate sentence, on the other (Rogerson v R at [616]ff). It is unnecessary for me to chart that same course. Their Honours concluded their analysis as follows (at [636]-[637]):

5. [65]

   It is quite apparent from the passage I have emphasised (the fourth point, at [636]), only “some matters” may be relevant at both the s 61(1) stage and the subsequent s 21(1) stage. All of the matters relevant to each stage are essentially facts, matters and circumstances to be evaluated by the sentencing judge, rather than matters of principle. While the CSPA may justify a limited two-stage approach, as explained by the Court in Rogerson v R, this certainly does not mean that they are separate or unconnected. What matters is whether the same factor is relevant at both stages. Clearly, having decided that a life sentence is not called for, the sentencing judge does not start entirely afresh on fixing the appropriate sentence. An assessment of objective gravity, for instance, which must always be made for the purpose of s 61 will necessarily carry over for the purpose of s 21.

6. [66]

   It is clear that in some circumstances the mitigatory effect of a circumstance relevant to culpability for the purpose of s 61 may be fully expended in the decision to fix a determinate sentence as opposed to a life sentence and Potts v R [2012] NSWCCA 229; (2012) 227 A Crim R 217 (Johnson J, McClellan CJ at CL and Fullerton J agreeing) provides an example of this. But that was a factual decision, not one of principle. Likewise, R v Lowe [2003] NSWCCA 313 was such a decision. From those cases, once a discount for a plea of guilty and assistance had operated to make a life sentence inappropriate, no further discount for those matters could be applied in fixing the determinate sentence. One appreciates that the current jurisprudence interpreting s 61 would not permit the discount for a plea of guilty or for assistance to be taken into account in determination of the s 61 question: see CC v R (per Adamson J at [81]). As her Honour observed (at [81]), there is a significant overlap in the matters germane to s 61(1) and those germane to sentencing generally. The weight to be afforded to those overlapping factors, for each purpose, is a matter for the sentencing judge.

7. [67]

   I would reject ground 1.

Ground 2: failing to take into account the fact that a custodial sentence is likely to be more onerous for the applicant than for the theoretical “average” inmate and/or the impact of custody on his mental health.

1. [68]

   By reference to the oft cited passage in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”), of the principles to be applied in sentencing an offender who is suffering from a mental illness (at [177]), Mr Brady pointed out that one of those principles is that a custodial sentence may weigh more heavily on the person. For this reason, the sentence will be more onerous and the length of the term or the conditions under which it is served may be reduced.

2. [69]

   Senior counsel pointed out that this subject was specifically dealt with in the report of Dr Furst dated 15 March 2021 (p 18; AB 169). It was addressed specifically in the written submissions of senior counsel for the applicant at sentence (p11 [14]; AB 432) and also in oral submissions (107.10-20T; AB 564). The sentencing judge’s reasons do not disclose that his Honour considered this matter or took it into account.

3. [70]

   The Crown did not join issue with the proposition that this matter was not specifically referred to by the learned sentencing judge, rather it was argued that the principles distilled by McClellan CJ at CL in De La Rosa were not hard and fast, inflexible rules: Richardson v R [2021] NSWCCA 304 at [62]-[64] (per Johnson J, Lonergan and Dhanji JJ agreeing); Aslan v R [2014] NSWCCA 114 at [33]-[34] (per Simpson J (as her Honour then was), N Adams J and McCallum J (as her Honour then was) agreeing); Blake v R [2021] NSWCCA 258 at [42]-[43] (per RA Hulme J, Leeming JA and Fullerton J agreeing). The Crown argued that Dr Furst’s opinion had to be considered in the context of all of the evidence and that the sentencing judge referred to the applicant’s history of misconduct in custody, his risk of further violent offending, poor prospects of rehabilitation and “the most important consideration of protection of the community” (SJ [205]). In light of these circumstances, it was not incumbent on his Honour to deal specifically with the onerousness of custody for a person with the applicant’s mental disorders.

Consideration

1. [71]

   Of the five principles distilled by McClellan CJ at CL in De La Rosa from his Honour’s review of the authorities concerning the effect of an offender’s mental health for sentencing purposes, it is clear that the sentencing judge referred specifically to four of them: the reduction in moral culpability; the attenuation of the significance of general deterrence; the effect on the significance of specific deterrence; and whether the person presents more of a danger to the community. Of these, the sentencing judge applied the first two, to which I have referred, in a mitigatory fashion and the second two as matters tending to point in the direction of a longer sentence. As the Crown argued, the principles are not absolute or inflexible, nor do each of them necessarily point in the same direction for sentencing purposes. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ, presiding in this Court, said:

2. [72]

   However, I think it apposite to refer to the judgment of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129]-[130]. His Honour pointed out, by reference to Pettitt v Dunkley [1971] 1 NSWLR 376 at 382, “the failure to discharge the duty to give adequate reasons may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction”. His Honour continued:

3. [73]

   To my mind, taking the sentencing judge’s reasons at face value and understanding them as recording the steps that his Honour actually took, it must follow that his Honour did not consider whether the mental condition, which he found affected the applicant by his acceptance of the diagnoses of Dr Furst, might have had a mitigatory effect by reason of the applicant’s experience in custody being more onerous. It was Dr Furst’s opinion that the applicant had “obvious emotional vulnerabilities, including low level intellectual functioning, high levels of anxiety, a propensity toward depression and suicidal ideation, limited social skills and limited personal supports”. Those factors were likely to make a custodial sentence more onerous. While the principles distilled by McClellan CJ at CL may not all point in the same direction in a given case as explained by Gleeson CJ, given that his Honour accepted Dr Furst’s diagnosis, so far as it went, it was an error for the sentencing judge to have failed to consider the matter. Dr Furst’s opinion about the onerousness of custody for the applicant was not challenged by the Crown in cross-examination.

4. [74]

   It is not to the point to say that had his Honour considered the matter, its mitigatory effect may have been cancelled by his Honour’s concern with imposing a sentence that adequately addressed the need for specific deterrence and protection of the community. The very point of the applicable principle is that the same factor will not necessarily yield the same outcome in every case.

5. [75]

   It seems to me that his Honour’s failure to address this issue may be characterised in accordance with House v The King (at 505), as an error by failing to take into account a material consideration. As the High Court pointed out in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37(at [42]), the establishment of error in this area of discourse does not depend on the demonstration of materiality. It is only once the sentencing discretion is exercised afresh that a determination can be made as to whether some lesser sentence is warranted in law having regard to all the facts, matters and circumstances relevant to sentencing a given offender for a given offence, including the correction of errors made at first instance.

6. [76]

   For these reasons, I am satisfied this ground has been established and it will be necessary to re-sentence the applicant in accordance with Kentwell v The Queen.

Ground 4: failure to take into account material facts when assessing the applicant’s demeanour as a witness and [his Honour’s] subsequent conclusions about the applicant’s insight, empathy and remorse.

1. [77]

   This ground is a challenge to the findings of fact made by his Honour at SJ [174]-[175] and by extension at SJ [209]-[210]. Learned senior counsel acknowledged that these findings were in no small part demeanour based. Senior counsel specifically referred to the limitations upon the Court of Criminal Appeal’s power to interfere with demeanour-based findings of primary fact as expressed in Rogerson v R (at [548]) in the following terms:

2. [78]

   To outflank this principle and its apparent entrenchment in criminal appeals by the decision in Rogerson v R, senior counsel attempted to categorise the ground as involving a question of the judge failing to take relevant considerations into account in accordance with the House v The King principles. Three matters in particular were relied upon: (a) the applicant’s demeanour was consistent with his mental disorder; (b) there was uncontested evidence from his sister, Direnc, that he had expressed “real remorse”; and (c) that his presentation in court was borne of his sensitivity to avoid distressing the family victims of Ms Dunn who were present in court “an explanation supported by the questioning of senior counsel and the applicant’s disclaimers in evidence”.

3. [79]

   The Crown joined issue with each of these contentions.

Consideration

1. [80]

   At the outset, it should be said that this ground appears to represent a challenge to findings of fact by the sentencing judge in relation to the applicant’s motivation for the murder of Ms Dunn and whether the evidence established remorse. To the extent to which the applicant’s evidence of his motivation was mitigatory in as much as he gave evidence that his actions were spontaneous and he was armed only because he always carried a knife for self-protection in and around Blacktown and not because he had premeditated killing a young woman, he bore the onus of proof: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. Naturally, evidence of remorse was tendered in mitigation and was required to be established by the applicant on the balance of probabilities. The sentencing judge was not bound to accept the evidence of any witness, whether uncontradicted or not. And there is no complaint that his Honour failed to explain his reasons for rejecting the evidence of the applicant and his sister Direnc about remorse.

2. [81]

   Moreover, the prevailing jurisprudence of this Court is that where findings of fact are challenged on appeal, it is incumbent on the applicant to show that the finding challenged was not open: Turnbull v Chief Executive of Office of Environment and Heritage [2015] NSWCCA 278 at [32]-[35] (per Button J, Meagher JA agreeing, McCallum J reserving her position); AB v R [2014] NSWCCA 339 at [44]-[55] (per Simpson J, Meagher JA and Wilson J agreeing); contra Clark v R [2015] NSWCCA 232; (2015) 254 A Crim R 150 at [34] (per Basten JA, Hamil J agreeing, Garling J contra).

3. [82]

   Mr Brady conceded that his Honour’s findings of fact in this regard were open (14.10-30T) as did learned senior counsel who appeared for the applicant at first instance (AB 566.30-40). In my judgment, these concessions were properly made and I would reject the ground of appeal on the authority of AB v R.

4. [83]

   In deference to the argument of Mr Brady, I will observe that I am unpersuaded by the three factors he relied upon to make good his ground that there was a failure to take into account material evidence. My own view is that the medical evidence, which the sentencing judge accepted, did not support the conclusion that the applicant’s flat affect in giving evidence was consistent with the mental disorders that Dr Furst diagnosed. Dr Furst’s evidence was to the effect that “emotional deficits” including being unemotional and detached may be clinically significant in people with Autistic Spectrum Disorder, low IQ or Schizophrenia. But he was “not saying [the applicant] has those disorders.” Indeed, it was his evidence that the applicant did not suffer from a major psychiatric disorder. While there was other evidence from other clinical material tendered that the applicant’s presentation on clinical examination was of flat affect or he gave restricted or blunt answers, there was no evidence that that presentation was clinically significant.

5. [84]

   As to the second contention, I have already observed that his Honour was not bound to accept “uncontradicted or uncontested evidence”. His Honour raised his concerns about the evidence with counsel and sought assistance in relation to how he should understand it. His Honour was entitled to reject it if unpersuaded by it. The second contention in any event proceeds upon the unproven assumption flat affect is due to his mental illness, which I have already dealt with.

6. [85]

   Dealing with the third contention, that the applicant’s demeanour was borne of his sensitivity for the family victims’ presence in court, this was the very type of thing that the sentence judge’s forensic advantage allowed him to assess and adjudge. With all due respect to the ingenuity of counsel, both on appeal and at first instance, his Honour was not obliged to accept that statements by the applicant such as; “this is graphic” (AB 511.32); “this is pretty extreme” (AB 511.50); or “the next thing is pretty graphic” (AB 511.17), were attempts to soften the blow of the content of his evidence and thereby displaying empathy. Acknowledging the limitations of an appellate court considering the transcript, I am well satisfied that his Honour’s assessment of the evidence was well open to him.

7. [86]

   One may accept the caution counselled in authorities such as State Railway Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306 and Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, about attempting to tell truth from falsehood accurately on the basis of demeanour: Fox Percy (at [31]). But this was not a case where the question to be determined by the sentencing judge was apt to be decided “on the basis of contemporary materials, objectively established facts and the apparent logic of the events.” Nor was it a case like State Railways Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) where demeanour findings were able to be displaced “by the proof of objective documentary evidence” (Fox v Percy at [33]). To put things in perspective, as Gleeson CJ, Gummow and Kirby JJ observed in Fox v Percy, exercising caution before drawing demeanour-based findings (at [31]):

8. [87]

   I would reject ground 4.

Ground 5: failing to take into account the applicant’s youth other than in consideration of s 61(1) CSPA

1. [88]

   The applicant argued that as youth was not mentioned specifically other than for the purpose of s 61(1) CSPA this Court should infer that the sentencing judge did not take it into account other than for that purpose. Reference was made to BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 (at [4]-[6] per Hodgson JA) as to the mitigatory effect of youth and also to Bullock v R [2016] NSWCCA 131 at [69] (per Rothman J). Senior counsel, however recognised the difficulty presented by KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [25] (per McClellan CJ at CL).

2. [89]

   The Crown took issue with the premise on which this ground rests. That is, the Crown contended that the sentencing judge did take into account the applicant’s relative youth even if his Honour did not refer to it expressly. Emphasis was laid upon the following passage (SJ [211]):

Consideration

1. [90]

   I am satisfied that his Honour’s reference to the applicant’s subjective circumstances, generally, for the purpose of fixing the appropriate sentence extended to including the mitigatory effect of the applicant’s relative youth. In this regard, the gravity of the offending must be regarded as a countervailing consideration. As McClellan CJ at CL said in KT v R (at [25]):

2. [91]

   For these reasons, I reject ground 5.

Ground 6: manifest excess

1. [92]

   As I have found ground 2 has been made good it is necessary to re-sentence the applicant. Therefore, it is pointless to separately consider the manifest excess ground.

Re-sentencing

1. [93]

   Given that ground 2 has been made good, it is necessary to re-sentence the applicant for both offences. A number of points may be made about this. First, other than in relation to ground 2 and the consideration of the effect of the applicant’s mental disorder on his experience in custody, there is no successful challenge to the substantive findings of fact made by the sentencing judge. Indeed, there has been no challenge at all to many of the central aspects of his Honour’s reasoning. Secondly, as I have rejected ground 4, which was the challenge to his Honour’s finding of the absence of remorse, I will proceed on the basis of his Honour’s findings in relation to that consideration. Thirdly, affidavits have been read on the usual basis concerning the applicant’s experience in custody since the sentencing proceedings and it is necessary for me to give consideration to that material. Finally, for practical and pragmatic reasons it is unnecessary for me to revisit the s 61(1) CSPA question. As was said by the High Court in Kentwell (at [43]):

2. [94]

   It is also relevant to record that there has been no challenge to any fact which informed the contribution of the wounding of Ms Bo with intent to the aggregate sentence. I will proceed on the basis that there is no challenge or complaint about his Honour’s assessment of the facts, matters and circumstances relevant to that separate offending bearing in mind that offence carries the Form 1 offending.

3. [95]

   At the hearing, the applicant read the affidavit of his solicitor, Zemarai Khatiz, sworn on 22 May 2023. The affidavit attaches a number of documents relevant to the applicant’s experience of custody to which I will return. It also annexes a report of Mr Andrew Wong, a clinical psychologist, dated 31 October 2022. That report was prepared on a medico-legal basis for the applicant’s plea in mitigation on his plea of guilty to a charge of assault occasioning actual bodily harm committed in custody on 23 February 2021 and dealt with at the Penrith District Court on 2 February 2023. It may be necessary to return to that sentence for the purpose of s 59 CSPA. However, in the usual way Mr Wong’s report covers a wide range of matters relevant to the applicant’s mental health, both before and after he was sentenced for the murder of Ms Dunn and the wounding of Ms Bo. The report details the usual constellation of matters relevant to an offender’s subjective circumstances for sentencing purposes. I am not satisfied that the report is admissible on re-sentence having regard to the decision in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, and I have rejected the whole of it.

4. [96]

   Otherwise, the Correctional Services NSW (“CSNSW”) documents attached to the affidavit cover the applicant’s experience in custody. It must be said he has been managed in very difficult conditions which seem likely to continue for the foreseeable future. Since sentencing, he has been classified at the highest level of A1 and is housed in the High Risk Management Correctional Centre at Goulburn. He is managed by the Serious Offender Review Committee. And is regarded as a high security and extremely high-risk restricted inmate. This requires him to be escorted by the extreme high security unit when on external escorts such as when he has been taken to hospital for incidents of self-harm. He has also been held in segregation, or isolated in safe cells, for extended periods of time. These confinements, it may be said, are due to his own (mis)behaviour and (mis)conduct. Accepting that the measures taken by CSNSW to manage the applicant are reasonable in the circumstances, they also indicate a detention of considerable hardship.

5. [97]

   I should point out that in her review dated 7 December 2022, a departmental psychologist, Lauren Haywood, considered there had been a perceptible degree of improvement in the applicant’s behaviour, albeit remaining far from perfect. However, his overall rating according to internal standards, in Ms Haywood’s opinion, represented “a reduced severity rating compared to the previous reporting period” (Khatiz affidavit p 20).

6. [98]

   It should also be pointed out that he has been the victim of a serious assault at the hands of another inmate armed with a prison-fashioned “shiv”. He was stabbed multiple times with that weapon about his head. He was also kicked and punched to the head and face and was taken to Goulburn Bay’s emergency department.

7. [99]

   He has also engaged in a number of incidents of serious self-harm including swallowing batteries and razor blades. These incidents seem to be a form of manipulation when his will is denied. He has continued to receive psychological and psychiatric review in custody. He has reported apparent psychotic symptoms which have been accepted as such from time to time and he has been treated with antipsychotic medication with which he is not always compliant. The evidence does not allow me to say that he has developed an ongoing psychotic illness. But the evidence seems to confirm that he continues to suffer from ongoing depressive symptoms which fluctuate. Some of his depression relates to him struggling with his lengthy sentence.

8. [100]

   The Crown read the affidavit of Steven Thomson, solicitor, sworn 29 May 2023. The solicitor’s affidavit mainly attaches the applicant’s criminal and custodial records demonstrating a number of convictions and infringements since he was sentenced. Dealing with custodial infringements, eight are listed since his sentence. None involve violence and two involve destroying or damaging property. It should be said that six of the infringements were incurred within the first six months following the imposition of the sentence. Only one occurred in 2022 and another in April 2023.

9. [101]

   Turning to his criminal record, on 23 May 2021 he committed the crime of assault occasioning actual bodily harm which was dealt with in the Penrith District Court on 2 February 2023 and a term of imprisonment commencing on 12 February 2053 having a non-parole period of 8 months expiring on 11 October 2053 and an additional term of 7 months expiring on 11 May 2054 was imposed.

10. [102]

    On 15 October 2021, he committed the offence of assaulting a law officer, being a corrections officer, for which he was dealt with in the Goulburn Local Court on 7 June 2022 by the imposition of a fixed term of 15 months commencing on 13 November 2051 and expiring on 12 February 2053.

11. [103]

    For the offence of damage property by fire, which involved setting a fire in his cell, committed on 2 June 2022, he was dealt with in the Goulburn Local Court on 14 September 2022 and sentenced to a fixed term of imprisonment of 12 months commencing on 14 September 2022 expiring on 13 September 2023, obviously running wholly concurrently with the sentence passed on him by the sentence judge, the subject of this appeal.

12. [104]

    I turn then to re-sentencing the applicant. With one exception I would proceed on findings of fact and conclusions drawn from them by the learned sentencing judge. As I have said, mainly, they were not in dispute. I proceed on the basis that the murder of Ms Dunn is a very grave offence. While Ms Dunn as victim was chosen purely by chance, which itself is a factor relevant to objective seriousness, the murder was premeditated and involved a degree of planning. The murder itself was cruel, brutal and cold-blooded. His conduct toward Ms Dunn including after her death was entirely devoid of empathy or any natural human sympathy for his victim. Given the principle of proportionality as expressed in the provisions of s 25F(2) CSPA, like the trial judge I would allow a 10% discount for the early plea of guilty. I repeat that his Honour’s approach was not the subject of any challenge. I accept that the offender’s mental disorder and comparative youth reduced somewhat his moral culpability for this horrendous offence. I am of the view that one should bear in mind that these were the factors which reduced the offender’s culpability below the s 61(1) standard which would otherwise have applied. However, I accept that a fact, matter or circumstance relevant for one purpose of sentencing may be relevant to another or others. Where that is so, no double counting is necessarily involved but proportionality must be borne in mind. The attenuation of moral culpability borne of his mental disorder and youth are relevant mitigatory considerations in re-sentencing.

13. [105]

    Since he has been in custody, it is apparent that the applicant’s mental disorder continues to affect his behaviour. However no real definitive diagnosis different from those proffered by Dr Furst has emerged since he was sentenced. I have noticed some tentative views expressed about the possibility of an emerging Antisocial Personality Disorder but the evidence does not rise to a level where one can act upon that with any degree of confidence whatsoever. Part of the applicant’s misbehaviour, in my view, must be put down to his self-centredness bordering on narcissism, as identified by the learned sentencing judge.

14. [106]

    While there has been some apparent recent improvement in his behaviour in custody, he appears to represent a very significant risk of reoffending, even in a serious way, and to the extent permissible in sentencing, protection of the community is a significant factor. I also agree with the sentencing judge that notwithstanding his mental disorder, general deterrence continues to have a role even if somewhat reduced. I am of the view that given his apparent dangerousness, notwithstanding some improvement, specific deterrence remains an important factor. I accept the learned sentencing judge’s findings that the applicant is not suffering from a major psychotic illness. He suffers a lesser form of mental disorder and while his functioning at the time of the offences was affected it was not significantly distorted.

15. [107]

    There is nothing to gainsay the accuracy of the sentencing judge’s assessment that the applicant is dangerous, and he continues to be dangerous even though there may now be some early signs of a capacity for improvement. I agree that he has displayed no empathy nor an appropriate emotional reaction to his offending, and he certainly has not expressed any genuine remorse. All of this means that one must remain pessimistic about the applicant’s prospects of rehabilitation. Given some degree of improvement in his conduct in the last 18 months, perhaps the learned sentencing judge’s assessment of the applicant’s prospects as “bleak in the extreme” may be a little too pessimistic.

16. [108]

    I am of the view that the applicant’s mental disorder has and will continue to make his experience of custody more onerous than that of other offenders free from such conditions. I am conscious of the consideration that notwithstanding this finding it does not automatically follow that the sentence should be reduced. To a significant extent, this factor may be balanced in the instinctive synthesis by the need for community protection. It is obvious that a long sentence is called for in this case and whatever mitigation is factored into it will not deprive the community of much by way of the protection that is properly available in sentencing. I say nothing of the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW).

17. [109]

    I have not overlooked the seriousness of the offending against Ms Bo. I have taken into account the victim impact statements given by Ms Dunn’s mother and Ms Bo at the proceedings on sentence. I have taken them both into account to the extent permissible by law. Obviously in Ms Bo’s case, her ongoing psychological difficulties are relevant to the assessment of the seriousness of the applicant’s offending, which as the sentencing judge remarked, was a grave example of offending by wounding with intent. It involved an indiscriminate attack on Ms Bo in a public street in broad daylight as part of a course of conduct on which the applicant had engaged to instil fear into members of the public. He is not charged for running amok, but that overall conduct is relevant to the seriousness of the offending against Ms Bo.

18. [110]

    I have come to the conclusion that a somewhat lesser sentence than that passed at first instance is warranted in law, having regard to the slightly different view I have taken from the learned sentencing judge. I would impose an aggregate sentence of 40 years with a non-parole period of 30 years. Given the length of the possible parole period, I would not make a finding of special circumstances. So far as indicative sentences are concerned, bearing in mind both offences are standard non-parole period offences, I nominate the following: (a) for the murder of Michaela Dunn – imprisonment for a period of 36 years with a non-parole period of 27 years; (b) taking into account the Form 1 offences, for the offence of wounding with intent to cause grievous bodily harm to Lin Bo, I maintain those indicated by the sentencing judge – imprisonment for 8 years with a non-parole period of 6 years.

19. [111]

    Before pronouncing orders, it is necessary for me to refer to the provisions of s 59 CSPA. As the orders I will propose involve quashing the orders at first instance and re-sentencing the applicant, it will be necessary for me to make orders varying the date of commencement of the sentences passed in each of charge number H85969280 (assault law officer) in the Goulburn Local Court and charge number H79387308 (assault occasioning actual bodily harm) in the Penrith District Court. I have maintained the degree of accumulation in each of the sentences as originally passed in accordance with s 59 CPSA.

20. [112]

    The orders I propose are:

    1. (1)

       Under r 3.5(5) Supreme Court (Criminal Appeal) Rules 2021 (NSW) grant leave for the application for leave to appeal from sentence, filed on 22 November 2022, to be made.

    2. (2)

       Grant leave to appeal.

    3. (3)

       Appeal allowed.

    4. (4)

       Quash the aggregate sentence passed on the applicant in the Common Law Division of the Supreme Court on 14 May 2021 and instead order that the applicant is sentenced to an aggregate term of imprisonment for the murder of Michaela Dunn and the offence of wounding Lin Bo with the intent to cause grievous bodily harm for a term of 40 years comprising a non-parole period of 30 years commencing on 13 August 2019 and expiring on 12 August 2049 with a balance of term of 10 years commencing on 13 August 2049 and expiring on 12 August 2059.

    5. (5)

       Under s 59 Crimes (Sentencing Procedure) Act 1999 (NSW) vary the date of commencement of the sentence passed on the applicant in the Goulburn Local Court on 7 June 2022 for the offence of assault law officer (not police officer) (charge number H85969280) so that it commences on 13 November 2048 (and expires on 12 February 2050).

    6. (6)

       Under s 59 Crimes (Sentencing Procedure) Act 1999 (NSW) vary the date of commencement of the sentence passed on the applicant in the Penrith District Court on 2 February 2023 for the offence of assault occasioning actual bodily harm (charge number H79387308) to 12 February 2050 (and expires on 11 May 2051) with a non-parole period of 8 months (expiring on 11 October 2050).

    7. (7)

       The earliest date on which the applicant is eligible for release on parole is 12 October 2050.

21. [113]

    WEINSTEIN J: I have had the considerable advantage of reading the judgment of Campbell J in draft. I agree with the proposed orders and his Honour’s reasons.