Shine v R

BATHURST CJ: This is an application for leave to appeal against the sentence imposed on the applicant, Stephen Shine (the applicant), for one count of causing grievous bodily harm with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years.

The applicant pleaded guilty to the offence charged. He was sentenced to imprisonment for a term of 12 years comprising a non-parole period of 7 years and 6 months with a balance of term of 4 years and 6 months.

The following statement of the factual background is taken from the summary of agreed facts tendered at the sentencing hearing.

The victim in this matter, 46 year old Mr Man Sung Lee (Mr Lee), has been married to his wife, Ms Soo Jong Kim (Ms Kim), since 5 July 2003. Together they have three children aged 9, 8 and 6 years old.

Mr Lee and his family are from South Korea and moved to Australia in March 2009. For four years prior to the offence in question they resided at 1/29 Dudley Street, Lidcombe, with three other housemates.

Since her arrival in Australia, Ms Kim has been studying nursing at the Australian Catholic University at Chatswood and also working in that field. Mr Lee has been assisting with caring for their children and also running his own cleaning business.

The applicant is 58 years old. He was born in Korea but has been residing in Australia since 1987 and became an Australian citizen in 2000. At the time of the offence, the applicant was in his second year of nursing at the University of Western Sydney (UWS), Parramatta campus. He was living in student accommodation on campus.

On 1 February 2014, the applicant and Ms Kim struck up a friendship. The applicant told Ms Kim that he was also a nursing student and offered to help her with her studies. Ms Kim also mentioned that one of her friends was having issues with her studies and the applicant offered to help her also. The pair then exchanged phone numbers and met later that day at the UWS campus at Parramatta.

In the course of this meeting, Ms Kim spoke about her relationship. Ms Kim said there was once a domestic incident back in South Korea and that she was having regular arguments with her husband due to financial hardship.

After this meeting, the applicant and Ms Kim began to exchange text messages and phone calls.

At about 5.00pm on 24 March 2014, Mr Lee and Ms Kim had an argument over how much fuel was in Ms Kim’s car and the fact that she had not returned home until after 9.00pm the previous evening. Mr Lee was suspicious of where his wife had been. Ms Kim explained that she was having trouble studying at home with the children so she pretended she had to go to work and instead went to the Parramatta campus of UWS to finish an assignment. Ms Kim also told Mr Lee about her friendship with the applicant and how the applicant had been helping her and her friend with their studies.

Mr Lee became angry and told his wife to call the applicant. Ms Kim called the applicant on her mobile phone and passed the phone to her husband. Mr Lee and the applicant argued on the phone. The applicant ended up driving to Mr Lee’s address. As he did so, he called triple zero and informed the operator that Mr Lee had threatened to kill him, that he was driving over to Mr Lee’s address and that he was concerned for the wellbeing of Ms Kim. The applicant advised the operator that there was domestic violence involved and that Mr Lee was a criminal in Korea who had escaped to Australia. He also informed the operator that Ms Kim had been suicidal.

When the applicant arrived at Mr Lee’s address, Mr Lee was sitting on his lawn with Ms Kim. This was the first time that Mr Lee and the applicant had met face to face.

The applicant called triple zero again and requested police to attend. He made no mention of any weapon during this conversation with the operator.

The police arrived shortly after 6.30pm. They observed the applicant standing on the footpath and Mr Lee near the main door to his unit. The applicant told the police, referring to Mr Lee, that “[h]e has [a] knife or screwdriver in his pocket”. The police then ordered a search of Mr Lee but no knife or screwdriver was discovered.

During the course of an interview between the police and the applicant immediately thereafter, the following conversation took place:

The police officers then made the assessment that Ms Kim was not in danger and told the applicant to leave, which he did. They also told Mr Lee not to contact the applicant and they left the scene.

The applicant continued to send text messages to Ms Kim, which she showed to Mr Lee.

As a result of the applicant continuing to contact Ms Kim, Mr Lee sent him the following text message at 10.25am on 25 March 2014:

Mr Lee was very irritated and upset by this message and rang the applicant on his mobile phone. For the first 20 minutes of the phone call, both men yelled abuse at each other.

At about 10.00am on 19 April 2014 (Palm Sunday), Ms Kim was at home and could hear loud Korean music coming from outside. Ms Kim looked out the window and saw the applicant’s car parked outside her unit. Ms Kim then saw the applicant get out of his car and put something under the front windscreen wiper of her car. The applicant then left the location. Ms Kim went outside and saw that the applicant had left a palm leaf under the wiper.

Ms Kim was unhappy about this and rang the applicant and told him never to contact her again. The applicant apologised and said:

Later that evening at about 9.30pm, Mr Lee was home with his family and went to bed with his three children. The whole family shared the master bedroom that was upstairs on the second level of the unit. The two oldest children went to sleep in the bunk beds and the youngest child slept in the same bed as Mr Lee.

Also at this time, two of the three housemates were home, Hyun Joo Im (47 years old) and Jung Sun Kim (57 years old). Both women were in their separate bedrooms with their doors closed.

At about 10.30pm, the applicant knocked on the front door. Ms Kim opened the door and saw the applicant had already opened the front screen door. As Ms Kim opened the wooden door, the applicant attempted to push past her but she stopped him and the following conversation took place:

At this stage, the applicant was holding the door knob and Ms Kim could not close the front door. Ms Kim could smell alcohol on the applicant’s breath and observed that he was acting very abnormally.

Ms Kim went to the toilet and told the applicant to remain in the living area of the house. As she walked away, the applicant made his way up the internal stairs to the second level of the house.

The applicant entered the first bedroom to the right of the stairs where Mr Lee and his three children were asleep. The applicant became enraged on seeing Mr Lee, removed the knife he had in his pocket and stabbed Mr Lee in the neck.

Mr Lee woke to the pain in his neck. Mr Lee and his children were screaming. Ms Kim heard this and came running up the stairs to find the bedroom light on and the applicant lying on top of Mr Lee and moving the knife about Mr Lee’s neck. Ms Kim told the children to hide behind the bed. At that time Mr Lee stood up. He was bleeding and had blurred vision. Ms Kim screamed, “He stabbed you with a knife”.

Mr Lee could not move his right arm to defend himself because of the wound to his neck. The applicant came at Mr Lee again and moved his hand slightly like a jab. Mr Lee took hold of the blade of the knife and held it in his left hand and used his right hand to push down the applicant’s arm which was holding the knife. As they struggled, Mr Lee lost his grip of the blade and the applicant stabbed Mr Lee in the back. Ms Kim screamed out, “Call the police”.

The housemate, Ms Im, could hear the screaming from her bedroom and called the police with her mobile phone.

Mr Lee was now crouched down and the applicant was standing behind him, strangling him with his right hand and punching him in the head with his left hand.

Ms Kim managed to get between the applicant and Mr Lee and held the applicant back from him. Ms Kim pleaded with the applicant to stop. Mr Lee armed himself with a baseball bat to protect himself. Ms Kim took the applicant into the next bedroom and called out to Mr Lee, “Dear please escape to [the] next door neighbours”. Mr Lee managed to walk down the stairs and out the front door. Whilst outside, he saw the applicant’s car parked in the front garden. Mr Lee then tried to walk to the back of his house to get assistance from a neighbour.

Throughout the assault in the bedroom, the three children remained in the bedroom. The youngest child who had been in bed with Mr Lee was not injured but was covered in blood.

Once Mr Lee got out of the room, the children shut the bedroom door and locked it. The oldest child tried to call triple zero on her mobile but didn’t know how. Ms Im could still hear the children screaming and went to their aid. She saw blood throughout the hallway and saw the children crying and scared. Ms Im remained with them.

Ms Kim was still trying to hold back the applicant and keep him from Mr Lee. The applicant managed to overpower Ms Kim and went downstairs and out of the house looking for Mr Lee. Ms Kim could hear her husband saying, “I can’t breathe, I can’t breathe.”

The applicant ran to his car and opened the driver’s side door. He got out a second larger knife from a black bag. This knife was approximately 30cms long. The applicant then ran towards Mr Lee holding the knife in his right hand. Mr Lee was leaning on a brick wall between the front door and the garage door. His body was covered in blood and he was screaming. The applicant ran towards him and slashed his face with the knife.

The applicant then pointed the knife towards Mr Lee’s chest area and attempted to stab him in the chest. Ms Kim managed to pull the applicant from Mr Lee. Mr Lee then collapsed to the ground. Ms Kim ran to his aid and saw that the skin on his face had come off and was hanging. He was also missing part of his ear. Ms Kim heard the applicant say to Mr Lee, “Do you feel sorry now?”.

A number of neighbours heard Mr Lee and Ms Kim screaming and called the police. The police arrived at 29 Dudley Street at about 11.05pm and could hear yelling and screaming coming from the rear of the property.

As the police approached they could see Mr Lee, the applicant and Ms Kim lying in the driveway. Ms Kim was screaming and crying hysterically whilst the applicant was quiet and appeared calm. All three persons were covered in blood.

A large chef’s knife was located under Mr Lee’s leg. Police observed a large laceration to Mr Lee’s face and a large amount of blood on his face and chest. Police also saw a red baseball bat nearby on the ground. A police officer kneeled next to Mr Lee to assess his injuries. The applicant had to be physically removed from Mr Lee’s side. Police rendered first aid to Mr Lee until an ambulance arrived. He was then transported by ambulance to Westmead Hospital.

The police arrested and cautioned the applicant, who made the following remarks:

The police then escorted the applicant to Auburn Hospital where they interviewed him. The following statements were made at the interview:

At a recorded interview, which took place following his release from Auburn Hospital, the following questions were asked and answers given (references omitted):

The doctors who treated Mr Lee found that he suffered the following injuries from the assault:

Mr Lee was immediately taken to the operating room for external jugular vein ligation. Doctors also ligated Mr Lee’s left superficial artery and vein, left retromandibular vein and left facial artery. This procedure involved tying a ligature tightly around each vein/artery to stop bleeding as the veins/artery had been severely damaged.

Mr Lee had poor right arm function and an MRI of the right brachial plexus (a network of nerves that passes through the cervico-axillary canal in the neck to reach the armpit region and into the arm including the hand) was performed. Follow up medical treatment for this injury was arranged. Follow-up treatment with the vascular and plastics team was also arranged.

The doctor found that without intervention, Mr Lee’s injuries were life threatening. His left facial injuries resulted in neurovascular and cosmetic injury. His right neck injuries resulted in neurovascular injury and reduced right arm power and motion. His left arm injuries resulted in muscle and tendon injury, which required ongoing physiotherapy at time of discharge. There was also evidence of psychological trauma secondary to the incident.

Critical to this application is the evidence before the sentencing judge of the applicant’s psychological and psychiatric condition. A psychiatrist’s report of Dr Olav Nielssen, dated 27 December 2014, was tendered by both parties at the hearing. There was no dispute as to the accuracy of Dr Nielssen’s observations or the reliability of his conclusions. Dr Nielssen stated that he interviewed the applicant at the Metropolitan Reception and Remand Centre at Silverwater on 5 December 2014. He stated in his report that the applicant confirmed that he had been charged with attempted murder and that he had not entered a plea as he was awaiting the outcome of his psychiatric evaluation.

Dr Nielssen recorded that the applicant told him that he was aware of feeling depressed in high school because of events in his childhood and the stress of being at a selective school and underperforming at school. He said he attempted suicide while in junior high school by swallowing chemicals but did not remember being referred for any kind of counselling or mental health care at the time.

The applicant told Dr Nielssen that his first referral for psychiatric treatment was in 1999 while he was living in Victoria. He said this was at the insistence of his former wife. He said that his wife called the police who arranged for a local mental health team to assess him. He said he was referred to a private psychiatrist in Victoria who prescribed Sertraline, which he said helped a lot. He said he had taken Sertraline ever since and adjusted the dose up or down according to how he felt.

The applicant also told Dr Nielssen that he was identified as having problems at university and was referred to a psychiatrist at Penrith, but did not take up the referral. He said that he was also referred for an evaluation by a forensic psychologist because of conflict that had arisen within his Church. The material which Dr Nielssen possessed for the purpose of his report included a report by a forensic psychologist, Mr Chris Probets. Mr Probets’ report states that the applicant had told him that there was a fight between two factions at his Church, which involved a group who did not support the priest hitting and pushing older people. He said he became angry at the anti-priest group. He told a member from the group who supported the priest that he wanted to kill the anti-priest group as their behaviour was not acceptable.

The applicant told Dr Nielssen that he did not drink alcohol or use illegal drugs. He told Dr Nielssen he married in 1981 and had two children from whom he was estranged. He said that he had moved to Sydney in 2000 and his former wife and children remained in Melbourne.

Dr Nielssen also recorded that prison officers asked the mental health nurse to review the applicant because of “odd behaviours”, for example, asking to be handcuffed outside his cell. He noted that the applicant was reported to have paranoia about the Corrective Service officers as well as racing thoughts. He was described as having irritability and unusual grimaces.

Dr Nielssen’s ultimate conclusions were in the following terms:

There was also tendered a report by a forensic psychologist, Ms Kathryn Wakely who interviewed the applicant over two and a half hours in two sessions on 30 July and 13 August 2014. Ms Wakely arrived at the following conclusions:

The applicant at the time of the sentencing hearing was aged 58 years and had no prior convictions. As I indicated, he arrived in Australia in 1987 and became an Australian citizen in 2000.

Although he did not give evidence, he informed Dr Nielssen and Ms Wakely that he had had a troubled childhood, telling Dr Nielssen he had “a dark life … I had trouble with socialising”. The applicant told Ms Wakely that he and his wife had divorced in 2000 when he moved to Sydney. He told her that since that time, he had been forced to move from shared houses because other persons in the house complained he was strange or “a psycho”. At the time of the offence, he was studying second year nursing at the University of Western Sydney and living at Parramatta on a university campus. He told Ms Wakely that to begin with, he had been placed with six other students. However, they complained about his behaviour and he was moved to a studio apartment where he lived independently. He had also worked on a casual basis with the Department of Disability, Ageing and Home Care as a case worker in group homes for seven years up to the time of his arrest.

Although the applicant had no prior criminal convictions, he told Ms Wakely that there was domestic violence in his marriage and, at one stage, an apprehended violence order was taken out against him preventing him from being within 100 metres of his wife. He also referred to the incident where he threatened to kill other members of his Church, after which, he was referred to counselling.

The reasons of the sentencing judge were sparse. After briefly summarising the facts, the sentencing judge noted that the applicant was separated from his wife and had not seen his children for 10 years. He noted the applicant’s employment history with the Department of Disability, Ageing and Home Care, to which I have referred, and that the applicant did not drink alcohol or use illegal drugs.

The sentencing judge stated that the attack was premeditated and that there was no provocation. He noted that it was conceded that there were three children in the house and the injuries sustained by the victim were serious and life threatening. The sentencing judge stated, however, that he was not satisfied that the applicant went to the house intending to kill the victim.

The sentencing judge said, without elaboration, that the applicant’s plea was not at the earliest opportunity, although it was before trial. He allowed a 20% discount for the plea.

The sentencing judge agreed with the Crown that there was little remorse towards the victim, rather, the applicant’s remorse was more directed towards the victim’s wife.

In relation to the applicant’s mental illness, the sentencing judge made the following remarks:

However, the sentencing judge concluded that whilst the applicant had a mental condition, he knew what he was doing was wrong and knew he should not be doing it.

The applicant relied upon the following grounds of appeal:

Grounds 3, 4 and 5 of the grounds of appeal relate to the failure of the sentencing judge to deal with matters integral to the sentencing process. At the hearing of the appeal, senior counsel for the Crown conceded that the sentencing judge’s reasons were inadequate and that there was an error in the sentencing process. That concession, in my respectful opinion, was correct and it is thus necessary to resentence the applicant: Kentwell v R [2014] HCA 37; 252 CLR 60 at [40]-[42]. However, prior to considering whether a lesser sentence is warranted in law, I propose to deal briefly with Grounds 2 to 5; first, to show why the Crown’s concession was correct and second, to indicate what I consider are the correct principles to apply on resentencing for the offence in the particular circumstances of the present case. However, the matters relied upon in relation to Grounds 1 and 6 can be dealt with adequately in resentencing.

The applicant pointed out that Dr Nielssen expressly stated that the applicant’s delusional beliefs and grossly distorted capacity for logical thinking affected his ability to recognise his actions were wrong. The applicant submitted that, in finding that the applicant knew what he was doing was wrong, the sentencing judge ignored Dr Nielssen’s conclusion without giving any reasons for doing so.

The Crown submitted that the sentencing judge was entitled to reach the conclusion he did as the applicant’s guilty plea implicitly acknowledged that he knew what he was doing was wrong. The Crown submitted that there was evidence to support this conclusion. The Crown referred to the recorded conversation with the police prior to the applicant’s transportation to hospital (see above at [42]). The Crown also referred to the statements made to the police at the hospital and in the recorded interview (see above at [43]-[44]), as supporting the proposition that the applicant knew what he was doing was wrong.

The difficulty with the Crown submission is that the sentencing judge simply did not deal with Dr Nielssen’s conclusion, which was directly contrary to the conclusion he reached. Although he referred to the conclusion of Dr Nielssen that the applicant had the defence of mental illness open to him and that he had a psychotic illness, he did not refer to Dr Nielssen’s ultimate conclusion that the applicant’s grossly distorted capacity for logical thinking affected his ability to recognise his actions were wrong. If the sentencing judge was to reach a contrary conclusion on a critical matter of this nature, he should have set out his reasons and his failure to do so was an error of law: R v Thomson & Houlton (2000) 49 NSWLR 383 at [42]-[44] and the cases there cited; see also Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291 at [39].

In my opinion, this ground of appeal has been made out.

The applicant submitted that, although the sentencing judge acknowledged that his mental state was a significant consideration in the sentencing process and referred to the report of Dr Nielssen, the sentencing judge did not give consideration to what extent his mental illness in fact affected the sentencing outcome. The submissions pointed to the fact that, although the sentencing judge referred to the passage in Elturk v R [2014] NSWCCA 61; 239 A Crim R 584 (Elturk) to the effect that the existence of mental illness does not necessarily produce a lesser sentence, he did not go on to apply that reasoning – other than stating that the applicant knew what he was doing was wrong – to indicate how the applicant’s mental condition impacted on the sentence which he imposed,.

The Crown referred to the passage from the judgment of Gleeson CJ in Engert v R (1994) 84 A Crim R 67 (Engert) at 71, cited by the primary judge. It noted that that passage specifically refers to the proposition that, despite a causal link between the mental illness and the commission of the offence and the consequent amelioration in weight for general deterrence, such findings might also warrant an increase in the weight to be afforded to personal deterrence and the protection of the community. It was submitted that “despite any further explicit elucidation in the remarks on sentence”, the Court will be satisfied that the sentencing judge formulated the sentence “by offsetting the complete absence of any allowance for general deterrence”. This submission presumably meant that the fact general deterrence was not to be taken into account either contributed to a reduction in sentence or was offset by the increased importance of personal deterrence and the need to protect the public: Engert at 71.

In Elturk, Beazley P, with whom R A Hulme and Schmidt JJ agreed, accepted the submission that although the appellant’s plea of guilty precluded his mental illness from absolving him of criminal responsibility, it could be used to demonstrate that his significantly impaired state of mind at the time of offending affected both his objective criminality and moral culpability. Her Honour stated, at [34], that the following analysis by McCallum J in McLaren v R [2012] NSWCCA 284, at [27]-[29], aptly captured the relevance of moral culpability in the sentencing process:

The approach was consistent with previous authority: R v Israil [2002] NSWCCA 255 (Isrial) at [23]; Carroll v R [2012] NSWCCA 118 (Carroll) at [57], citing R v Hemsley [2004] NSWCCA 228 (Hemsley) at [33]-[36]; Carney v R [2008] NSWCCA 277 (Carney) at [54]-[58]; Piciollo v R [2011] NSWCCA 180 at [45], citing R v Pham [2005] NSWCCA 314 at [35]; R v Windle [2012] NSWCCA 222 at [41]; Turner v R [2011] NSWCCA 189 at [3], [43], [54]; Millwood v R [2012] NSWCCA 2 at [69]; Dang v R [2013] NSWCCA 246 at [25]-[30].

In the present case, the sentencing judge appears to have paid no attention to this issue. Although he said the case was not appropriate for general deterrence, he gave no attention to the reduction of moral culpability which in my view squarely arose in these proceedings. He was in error in failing to do so. This ground of appeal has been made out.

The applicant referred to the submission, made on his behalf at the trial, that mental illness should be considered in all its relevant respects. He also pointed to the fact that the sentencing judge, in argument, pointed out that mental illness was usually taken into account in three or four different ways.

The applicant pointed to the evidence of the difficulties suffered as a result of incarceration. Ms Wakely referred to the difficulty he had with housemates and the fact that his behaviour in custody has caused difficulty with other inmates and staff. Dr Nielssen also referred to the fact that prison officers asked the mental health nurse to review the applicant because of his odd behaviour, to which I have referred above at [54]. Further, his psychological assessment indicated significantly elevated levels of depression and anxiety.

The Crown accepted that there was evidence before the sentencing judge that whilst in custody, the applicant had experienced difficulty with other inmates and was paranoid in respect of certain Corrective Service officers. The Crown pointed out that submissions dealing with this issue were not developed at any length in the applicant’s submissions in the Court below and submitted that, whilst the sentencing judge did not refer to the matter, the Court could be satisfied that he was well seized of the issue.

There is force in the Crown’s submission that the issue of the difficulties the applicant would suffer in incarceration as a result of his mental condition was not the subject of substantive submissions by the applicant in the Court below. However, the Crown has not contended that it was not raised.

It is well-established, and not disputed in the present case, that a relevant factor to consider in the sentencing process is the fact that a custodial sentence may weigh more heavily on an applicant by reason of his or her mental condition: Hemsley at [35]; Israil at [26]; Carney at [60]. The sentencing judge, at least on the face of his reasons, did not give any consideration to this issue. He was in error in not doing so. This ground of appeal is also made out.

The sentencing judgment is silent on the applicant’s prospects of rehabilitation.

The applicant submitted that each party at the sentencing hearing indicated that rehabilitation was a matter which was required to be taken into account. The applicant submitted that the sentencing judge erred in failing to do so, particularly in circumstances where the applicant’s mental illness was susceptible to treatment.

The Crown submitted that it was implicit in the finding of special circumstances that the sentencing judge took the prospects of rehabilitation into account.

The Crown also pointed to the reference by the sentencing judge at the sentencing hearing to the benefit of continued monitoring of the applicant, which it was submitted was consistent with an acceptance by the sentencing judge that the applicant’s mental illness may well continue to provide challenges upon his release. The Crown, in those circumstances, submitted that the amelioration of the non-parole period for additional supervision showed that weight was given to the mental health issues as the purpose of the amelioration was to provide for additional supervision of the applicant and enhance his prospects of rehabilitation.

It cannot be disputed that prospects of rehabilitation are a relevant factor to be taken into account as part of the sentencing process: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(h). The difficulty in the present case is that it does not appear from the sentencing judgment that consideration was given to this issue. It may be that it provided the reasons for the finding of special circumstances, however, that can only be a matter of inference as the sentencing judge gave no reason for this finding. In light of those matters it cannot be said that the sentencing judge took the question of rehabilitation into account. He was, in my respectful opinion, in error in failing to do so: see Carroll at [63]-[64]: TU v R [2014] NSWCCA 155 at [55]-[56].

It follows that this ground of appeal is made out.

I have set out the facts giving rise to the offence and the subjective features of the applicant above. For the purpose of resentencing, the applicant also relied on an affidavit of 19 April 2016. In that affidavit, he stated that when he first came to gaol, he was bullied and asked to be in protection, where he has remained ever since. He said he is, at present, on Medical Hold in Long Bay Gaol because of his serious sleep apnoea. He said he would like to undertake courses when he came off protection. He said he feels very isolated in custody but has one friend who visits him regularly.

The applicant has continued to have no contact with his children. He saw his former wife once, who asked him not to contact the children.

The applicant stated that when he first came to gaol, he had almost overwhelming problems sharing a cell. He said he was trying hard to cope with having a cellmate. He said he has had problems and has had to change cellmates three times so far.

The applicant stated that he takes two medications, Zoloft for his depression and Zyprexon for his anxiety, the latter drug only having been prescribed since he was taken into custody. He said he feels calmer and less anxious as a result. He said he now accepts he has a mental illness and needs medication to keep him mentally well.

The applicant stated he has been seeing a psychiatrist and psychologist regularly. He said he had been seeing the psychologist every two weeks but stopped late last year when the psychologist decided he was well enough not to be seen.

The applicant stated that he now realises he was mentally ill at the time of the offence. In his affidavit, he expressed remorse for both the victim and his wife. He stated the medication he has been taking has made it possible for him to acknowledge his behaviour and mental illness.

The applicant is entitled to a discount for the utilitarian value of his plea. In submissions at the sentencing hearing, the prosecution acknowledged that the delay in entering the plea was so that the applicant could be psychologically and psychiatrically assessed and there was the need for the applicant to confer with his counsel so it could be explained to him that he had a mental health defence which he decided not to avail himself of. Taking a somewhat different approach on the appeal, the Crown pointed out that the plea was not in fact entered until a little over 12 months after the date of arrest, six months after committal for trial and four months after receipt of the report of Dr Nielssen.

In my opinion, in the present case, the delay in the entry of the plea can fairly be attributed to the applicant’s mental illness. The applicant at no time denied committing the offence and he confirmed with Dr Nielssen he had not entered a plea because he was awaiting the outcome of his psychiatric evaluation. Having regard to the conclusion of Dr Nielssen, the further delay whilst he considered his position could not be said to be unreasonable. In the circumstances, I am of the view that the applicant should be allowed a 25% discount for the utilitarian value of his plea.

In dealing with the ground of appeal related to manifest excess the Crown pointed to a number of factors which were said to warrant the sentence imposed. They included the contention that the applicant knew what he was doing was wrong, that the sentence gave appropriate weight to considerations of personal deterrence and protection to the community, that the objective criminality was high and that the injuries were life threatening. The Crown also pointed to the fact that the evidence established the victim, Mr Lee, is unable to work and continues to suffer post-traumatic stress disorder.

The Crown also pointed to the fact that the offence was aggravated, in that it occurred in the victim’s bedroom whilst his children were present and noted that, although it had not been established beyond reasonable doubt that he went to the victim’s home intending to kill him, the attack was premeditated.

The Crown is correct in concluding the offence was very serious indeed. As the Crown pointed out, it involved a premeditated attack on the victim in his bedroom in the presence of his children, followed up by a further attack with a large knife outside the premises. The injuries were extremely serious and the attack has had an ongoing effect on the life of the victim. The seriousness of the offence can be shown by the maximum penalty of 25 years and the standard non-parole period of 10 years.

Notwithstanding, the moral culpability of the applicant is sufficiently lessened by his mental illness. Dr Nielssen’s conclusion that he did not know that what he was doing was wrong, as I have pointed out, is a matter that can be taken into account in assessing the gravity of his conduct.

It is correct that the fact that there is a causal relationship between the offence and the mental illness does not automatically lead to a reduction in the sentence which would otherwise be imposed. As Gleeson CJ in Engert stated, whilst the fact of mental illness may reduce the need for general deterrence, it may increase the need for personal deterrence or protection to the public (subject to the principle that a sentence should not be imposed beyond what is proportionate to the crime merely to protect society against recidivism: Veen v The Queen (No 2) [1987] HCA 14; 164 CLR 465 at 472-473).

In the present case, the evidence does demonstrate that the applicant, at least without treatment and medication, does have a propensity to commit irrational and violent acts. However, in his affidavit, the content of which was neither objected to nor disputed, he deposed to the treatment he has received and its helpful effect on him.

Further, although it may be accepted that the applicant showed little remorse at the time he was sentenced, there is now evidence in the applicant’s affidavit that he now feels remorse both towards the victim and his wife.

Further, having regard to what I have said in relation to Ground 4, it is clear that incarceration will occasion him particular difficulties.

Nothing of what I have said is to gainsay the seriousness of the offence or the effect it has had on the victim. However, the matters to which I have referred are matters that are required to be taken into account, along with questions of retribution and personal deterrence, in considering the appropriate sentence to be imposed.

So far as the non-parole period is concerned, I would find special circumstances. The applicant will require an extended period of supervision following his release to parole. Further, particular difficulties the applicant will face in incarceration warrant a finding of special circumstances.

In the result, I would grant leave to appeal, allow the appeal and quash the sentence imposed by the sentencing judge. In lieu thereof, I would sentence the applicant to a term of imprisonment of 9 years, commencing on 19 April 2014 with a non-parole period of 5 years. The earliest date on which the applicant will be eligible for release to parole will be on 18 April 2019.

The orders I would make are as follows:

DAVIES J: I agree with the orders proposed by Bathurst CJ and his Honour’s reasons therefor. I wish, however, to add some brief remarks in relation to the discount to be given for the applicant’s plea. Although error has otherwise been found making it unnecessary to consider ground 1, the issue concerning the utilitarian value of the applicant’s plea arises at the re-sentencing stage.

The Crown correctly submitted that the plea was not in fact entered until a little over 12 months after the date of arrest, six months after committal for trial and four months after receipt of the report of Dr Nielssen who examined the applicant on 5 December 2014 partly to determine whether the applicant was fit to enter a plea and partly to assess, if he was fit to plead, whether he had a defence of mental illness open to him. The Crown submitted, in the circumstances, that the appropriate discount was a 20% reduction as the Sentencing Judge accorded.

It has been held in a number of decisions of this Court including R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 at [11]; Nguyen v R [2008] NSWCCA 280 at [27]; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] and R v Nicholson [2010] NSWCCA 80 at [36], that generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced. In R v AB [2011] NSWCCA 229 Bathurst CJ said at [3] that while sentencing courts should generally continue to follow the approach in Borkowski, the principles had to be applied by reference to the particular circumstances in any case. That statement was noted and applied recently in Haines v R [2016] NSWCCA 90 at [27] .

The chronology in Haines was this. The applicant killed the deceased on 3 March 2001. She was found unfit to be tried on 14 February 2013 and remained unfit until 4 November 2013 when she was found fit to be tried. She was arraigned on 7 March 2014 and entered a plea of not guilty on the basis of a defence of mental illness. The trial was set for 26 May 2014. On 29 April 2014 the psychiatrist provided a further report expressing an opinion that the applicant probably did not have available to her the mental illness defence. However, he sought access to other Justice Health material to resolve his doubts. That resulted in the trial being vacated. He subsequently provided a further report on 30 June 2014 in which he concluded that she probably did not have available a defence of mental illness. On 4 July 2014 she was re-arraigned and entered a plea of guilty.

The primary judge accorded her a discount of 15% for the utilitarian value of the plea. This Court held that in the exceptional circumstances of the case the reason for the delay in entering a guilty plea had to be taken into account. The Court held further that the applicant had cooperated in confining the issues to be dealt with at the judge-alone trial to the testing of the psychiatric evidence. In the circumstances the Court held that the utilitarian value of the plea, although late, remained high and a discount of 25% was appropriate.

In my opinion, the circumstances of the present case, detailed in Bathurst CJ’s judgment, are sufficiently analogous. It was not reasonable for a decision to be made about a plea until the applicant’s fitness to plead had been examined nor until it was ascertained whether he had a defence by reason of mental illness. Within a reasonably short period after Dr Nielssen’s report was received the applicant pleaded guilty to the offence charged. I consider that the circumstances in the present case would lead to an unjust result if the delay for the purpose of obtaining Dr Nielssen’s report and its consideration by the applicant was not taken into account in assessing the appropriate discount for the guilty plea.

I, therefore, agree with Bathurst CJ that a discount of 25% should be accorded to the applicant for the utilitarian value of his plea.

R S Hulme AJ: I agree with the orders proposed by the Chief Justice and with his Honour’s reasons.