Wornes v R

1. [1]

   SIMPSON AJA: I have read in draft the judgment of Hamill J. I agree with the orders proposed and with his Honour’s reasons. In particular, I should emphasise that, as Hamill J suggests, nothing in my judgment in De Angelis v R [2015] NSWCCA 197 was intended to be, or should be taken as, a proposition of law that personality disorders do not qualify as mental or psychiatric conditions that may bear upon the moral culpability of the offender and potentially the sentence to be imposed. Each case is to be determined on its own facts, upon the application of legal principles. There is no legal principle to the effect that personality disorders are excluded from the principles relating to sentencing offenders suffering from psychological or psychiatric conditions stated comprehensively in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194.

2. [2]

   HAMILL J: This application for leave to appeal against sentence raises an important issue concerning the relevance of an offender’s personal and mental health history to the appropriate penalty for a serious offence of violence. The applicant was diagnosed with a disorder recognised in the field of psychiatry, but the sentencing Judge decided “as a matter of law” that “personality disorders” are “outside the principles stated in De La Rosa.” [1] The applicant submitted that this approach was erroneous and not authorised by the authorities upon which the sentencing Judge relied or otherwise justified by his Honour’s reasons for judgment. The applicant’s submissions are correct. The appeal must be allowed and it is necessary to exercise the sentencing discretion afresh to determine whether a less severe sentence was warranted and should have been passed. [2]

3. [3]

   The case involved a series of domestic violence offences committed by a 46-year-old woman on her 47-year-old partner. The last of those offences was extremely serious. It involved an unprovoked and sustained stabbing attack on the victim in his own home resulting in serious injuries. The applicant was on bail for earlier, far less serious, assaults and was subject to an apprehended domestic violence order (‘ADVO’). She pleaded guilty to wounding with intent to cause grievous bodily harm, an offence carrying a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 7 years. [3] In addition to the principal offence of wounding with intent under s 33 of the Crimes Act 1900 (NSW), the applicant admitted two earlier offences of common assault against the same victim and these were taken into account on a Form 1. [4] Ms Wornes was also sentenced for two summary offences of contravening the ADVO, each of which carried a maximum penalty of 2 years. These offences were before the District Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).

4. [4]

   The applicant entered an early plea of guilty and the sentencing Judge said she “is entitled to and will receive a 25% discount in respect of her plea”. [5] The Judge imposed a sentence of 8 years’ imprisonment with a non-parole period of 5 years for the offence against s 33 of the Crimes Act. In relation to the offences on the s 166 certificate, his Honour recorded a conviction with no further penalty. [6] Ms Wornes seeks leave to appeal against the sentence, and specifically the sentence imposed for the wounding offence.

5. [5]

   Because error is established and the Court must exercise the sentencing discretion afresh, it is necessary to set out in some detail the facts of the offences and the applicant’s personal circumstances. Given its prominence in the proceedings both at first instance and on appeal, and to place the circumstances of the offending in context, I will commence by summarising the evidence of the applicant’s personal and psychiatric history before turning to the factual details of the offences and the approach taken by the sentencing Judge which gives rise to the grounds of appeal.

Ms Wornes’ personal and psychiatric history

1. [6]

   At the sentencing hearing, the applicant tendered three reports of Dr Andrew Ellis, a forensic psychiatrist. The reports were dated 23 May 2020, 5 July 2020 and 7 February 2021. Initially, Ms Wornes’ solicitor (Mr Behan) sought to tender only the last of those reports. However, after discussion with the sentencing Judge, Mr Behan tendered the earlier reports which contained more detail of the applicant’s personal and psychiatric history. Dr Ellis was not required for cross-examination. [7] In the course of those discussions, which were robust, the sentencing Judge raised the question of whether the mental conditions and disorders identified by Dr Ellis attracted the principles summarised by the then Chief Judge at Common Law in the case of De La Rosa. [8] His Honour expressed an interest in “drilling into” the “concept of the personality disorder” and whether it amounted to a “mental condition” for the purpose of relevant sentencing principles. [9] It is unnecessary to parse the discussions between his Honour and the lawyers who appeared in the District Court because his Honour reserved judgment and delivered his remarks around two weeks later. The issues on appeal are to be determined by reference to his Honour’s judgment rather than things said on the hearing that preceded it.

2. [7]

   However, it is worth noting that the Judge referred to some judgments of this Court, [10] and questioned whether there was any authority “that a personality disorder otherwise not clearly defined does attract the principles in De La Rosa”. [11] Mr Behan maintained that the principles were engaged although, under considerable pressure from the bench, he made some concessions regarding the absence of mitigation for “self-induced intoxication” [12] and the “weight” that might be afforded to the material in Dr Ellis’ report. [13] He submitted that the applicant’s emotional responses were affected by her personality disorder, that her ability to restrain her impulses was compromised and that there was a causative link between her mental condition and the offending.

3. [8]

   The history taken by Dr Ellis included the following background of childhood and personal dysfunction:

4. [9]

   Dr Ellis also recounted aspects of Ms Wornes’ psychiatric history:

5. [10]

   Dr Ellis’ conclusions and opinions encompassed the following findings and conclusions:

6. [11]

   The impact of the applicant’s dysfunctional background, psychiatric history and personality disorder was complicated by her history of alcohol abuse and Dr Ellis expressed the following opinions in relation to the interaction between those matters:

The facts of the offences

1. [12]

   The facts of the offending were agreed between the parties and reproduced in full by the sentencing Judge. There was a history of domestic violence perpetrated by Ms Wornes upon her long-time partner, but a number of the incidents were not reported. There were increasing tensions in the relationship from around March 2019 and the applicant moved into a separate room of their shared residence. Two incidents resulted in police intervention in July of that year preceding the stabbing in August that resulted in the major charge.

2. [13]

   On 28 July 2019, police responded to reports of a domestic disturbance and attended the couple’s home. The victim told police that the applicant had assaulted him. He later explained in a recorded statement (‘DVEC’) [34] that Ms Wornes punched him and grabbed him around the throat. He told police of the applicant’s ongoing mental health issues and abuse of alcohol. The victim began yelling at the officers and physically thrashing around when they cautioned her and asked her to repeat some admissions she had made regarding the assault on the victim. She was arrested and taken to the police station. She admitted to grabbing and punching the victim and made a comment that she wished she had punched him harder. This conduct resulted in two counts of common assault for which she was released on bail. An interim ADVO was imposed.

3. [14]

   In the early hours of the following day, 29 July 2019, police were again called to the premises. The victim told police he woke up to find the applicant sitting by his bed. She made threats to take her own life and asked why the victim involved the police the day before. She then fled the premises. Police later located Ms Wornes at her parents’ home. She declined to participate in an interview, was charged with breaching the ADVO and was released on bail with various conditions, including not to drink alcohol or approach the victim by any means.

4. [15]

   On the afternoon of Saturday 3 August 2019, the victim was visiting a friend who lived directly behind his home. At about 6:00pm, the victim thought he heard the back gate to his premises closing and returned home to investigate. He discovered Ms Wornes inside preparing a bath. The victim told the applicant she was not allowed to be there and asked her to leave. He called her mother and requested she come and collect her daughter. When the victim told the applicant he had made that call, things escalated. Ms Wornes grabbed a knife from the kitchen bench and charged at the victim, making threats as she did so. She said “if you call the police you’re gonna get this, cunt”. [35] The victim told Ms Wornes he would call the police as she was in breach of the ADVO. Ms Wornes then stabbed him to the left side of his neck and made other unsuccessful attempts to stab him. At some point in the struggle the victim forced Ms Wornes to the floor and disarmed her. While the applicant was on the floor, the victim went to the kitchen and removed all the other knives from the knife block and secreted them under a blanket in their daughter’s bedroom. The victim believed he had secured all of the knives in the premises. He locked himself in the bathroom and applied pressure to his wounds. After a few minutes he returned to the lounge room to locate his mobile phone, intending to call the police. The applicant was nowhere to be seen at this time and the victim assumed she had left.

5. [16]

   The victim sat on his front steps preparing to call police when Ms Wornes unexpectedly approached him from behind and commenced stabbing him again.

6. [17]

   During this second attack the victim suffered wounds to his shoulder and the left side of his forehead which bled profusely. The attack continued as the victim stumbled backwards and attempted to block the knife from connecting with his head. He received cuts to his left and right hands as he attempted to protect himself. While he was protecting his head, Ms Wornes stabbed him repeatedly in the chest and stomach. The victim escaped the attack by running out onto the street, where he was eventually able to connect to emergency services and report that his partner had stabbed him. He collapsed during this phone call and was attended upon by walkers-by who rendered aid. Police officers and an ambulance arrived and the victim was conveyed to the hospital. He required surgery and suturing to clean the many wounds and lacerations he had sustained.

7. [18]

   Police located Ms Wornes at the residence and asked what had happened. Her replies were to the effect that the victim had “pushed her too far” and that she “knifed him” and “knifed herself”. [36] Police observed lacerations on Ms Wornes’ neck consistent with her assertion that she had cut herself. Ms Wornes made other suicidal remarks to the police. An ambulance conveyed her to hospital for treatment, and she was arrested enroute. Ms Wornes was refused bail following her discharge from hospital. She has been in custody since.

8. [19]

   A relative of the victim located a note on the fridge which the victim confirmed had not been there before the incident. The note said, “see you at the end of the rainbow.” [37]

Mitigating and aggravating factors and other personal circumstances

1. [20]

   I have already noted that the applicant pleaded guilty at an early stage and received a 25% reduction in her sentence.

2. [21]

   The offences were committed while the applicant was on bail for other offences of violence against the same victim and this breach of conditional liberty constituted an aggravating factor.

3. [22]

   Mr Robson provided a victim impact statement which showed that the crime had a significant impact on his quality of life. He spent three nights in hospital, stayed with his family for around eight weeks and has not been able to return to his usual place of employment, resulting in financial loss. He could not sleep on the first night in hospital because, knowing she was in the same hospital, he was afraid the applicant would attempt to kill him. He has had many appointments with various doctors and suffered an “acute stress reaction” including “PTSD, depression, anxiety, nightmares and headaches”. [38] He is severely traumatised. He detailed various medications he has taken to deal with the pain and psychological impact of the crime.

4. [23]

   Ms Wornes had no previous convictions of any kind. The approach the sentencing Judge took to that matter is the subject of the second ground of appeal.

The sentencing Judge’s approach to the applicant’s mental health

1. [24]

   The sentencing Judge dealt with the applicant’s mental health, and the issues his Honour raised during the sentencing hearing, at some length in his remarks on sentence. [39] In view of their importance to the applicant’s appeal, and in spite of their length, it is appropriate to set out his Honour’s remarks on the issue in full (with my emphasis throughout):

Ground 1: The sentencing judge erred in determining that as a matter of law the applicant’s personality disorder ought to be seen as falling outside of the scope of the principles set out in De La Rosa

1. [25]

   The lengthy passage set out in the last paragraph demonstrates that the sentencing Judge was alive to the relevant principles of which, as his Honour says, “there are no doubts”. Given its prominence in his Honour’s judgment and the grounds and arguments on appeal, it is worth recalling the often-cited passage from McClellan CJ at CL in the appeal of De La Rosa:

2. [26]

   The remarks of the sentencing Judge also show his Honour was well seized of the material in Dr Ellis’ report. The question at the heart of the appeal was whether his Honour was correct in disregarding the applicant’s mental health issues in each of the ways that McClellan CJ at CL explained such matters may provide some mitigation in the task of sentencing. It seems clear that his Honour took the disorder into account in one way, and one way only; that is, in deciding the applicant may represent a danger to the safety of a future romantic partner. The sentencing Judge’s approach appeared to be predicated on his Honour’s “opinion” that a personality disorder – or at least the applicant’s personality disorder – ought not attract the principles discussed in De La Rosa. His Honour then translated or converted this opinion into “a matter of law”. This constituted a significant departure from orthodoxy and the sentencing proceedings miscarried as a result.

3. [27]

   In coming to this opinion, the sentencing Judge placed significant reliance on the judgment of Simpson JA in De Angelis. [40] De Angelis was an entirely different case and, as I read her Honour’s judgment, Simpson JA did not purport to lay down any rule of law of general application. De Angelis was a case involving a lengthy period – about six years – of fraudulent and predatory conduct where the offender was diagnosed with a narcissistic personality disorder. Further, her Honour found there was a strong inference that the offender had “quite deliberately attempted to create an illusion of a psychiatric condition of a dimension which could not be established”. [41] The evidence in the present case gave rise to no such inference and the nature of the offending raised different considerations for the purpose of sentencing.

4. [28]

   The sentencing Judge also relied on the judgment of Spigelman CJ in R v Lawrence. [42] That judgment included a passage (at [23]) that said no more than the fact that a diagnosed disorder attracts a “label” that falls within the diagnostic criteria contained in DSM-IV [43] does not result in any automatic consequence or necessarily reduce the weight to be given to general deterrence. That is not a surprising conclusion. In any event, the former Chief Justice was “satisfied [the sentencing Judge] did give the element of general deterrence less weight”. [44]

5. [29]

   Mr Averre, counsel for the applicant in this Court, referred to the decision of a five-judge bench in the Victorian case of Brown v R (2020) 62 VR 491; [2020] VSCA 212. In Brown, the Victorian Court of Appeal overturned an earlier decision in Director of Public Prosecutions (Vic) v O’Neill (2015) 47 VR 395; [2015] VSCA 325 which, on one view, excluded personality disorders from what were described as “the Verdins principles”. That is a reference to the case of R v Verdins (2007) 16 VR 269; [2007] VSCA 102 which sets out principles of the same nature as those discussed by McClellan CJ at CL in De La Rosa. The Court held in Brown:

6. [30]

   The decision of the full Court in Victoria is correct. It follows that the sentencing Judge in the present case erred in giving effect to his opinion that the applicant’s personality disorder (let alone such disorders more generally) did not attract the De La Rosa principles. The cases to which his Honour referred did not support the opinion stated in the sentencing judgment. The opinion seemed to derive from his Honour’s rejection of the “determinist view of human behaviour”, a philosophical concept or behavioural theory to which neither party referred and upon which the applicant did not seek to rely. On the contrary, she accepted legal responsibility by her plea of guilty and her solicitor made restrained submissions consistent with the complexity of the evidence in the case. With respect to his Honour, that part of the judgment on sentence did little to fulfil the purposes of remarks on sentence.

7. [31]

   The sentencing Judge’s alternative approach – that “the particular personality disorder of Ms Wornes provides no justification for a reduction in her moral culpability” – was not supported by Dr Ellis’ unchallenged expert evidence. Dr Ellis explained that her disorder and personality style led to distorted views of relationships and impaired her emotional responses. Dr Ellis explained the continuation of the attack by reference to her poor emotional regulation. While acknowledging the role that intoxication played, the evidence nevertheless established a connection between the diagnosed condition and the offending. It should also be remembered that this was not a case of a post-offence diagnosis of psychological problems or personality disorder. There was a history of self-harm (cutting), auditory hallucinations, “schizoid” symptoms, admissions to hospital and several earlier diagnoses. Ms Wornes was diagnosed with “schizoaffective disorder” by Dr Petroff who prescribed lithium and antipsychotic medications. The victim himself told the police about the applicant’s mental health problems in the days before the incident. It was also significant, and consistent with the severity of her mental health issues, that the applicant harmed herself immediately after the attack and wrote the note that was somewhat whimsical if not bizarre. The agreed facts included the “offender had experienced mental health issues for a number of years, for which she has sought the assistance of a psychiatrist”. [45]

8. [32]

   This body of evidence was to be considered in the light of a childhood marred by violence, dysfunction and an instance of sexual abuse. The evidence was relevant to a proper assessment of the applicant’s moral culpability and was also to be considered as part of the complex question of how much weight should be afforded to deterrence, both personal and general. The inescapable conclusion is that the sentencing Judge underestimated the importance of the psychiatric evidence in this case and fell into error in doing so.

9. [33]

   Ground 1 is established.

Ground 2: The sentencing Judge erred in concluding that the applicant’s lack of prior convictions took on less significance in the context of domestic violence offending and thus denying the applicant the leniency to which she was otherwise entitled.

1. [34]

   Despite her alcohol dependence and psychiatric condition, the 46-year-old applicant had no previous offences recorded against her. His Honour acknowledged this was a mitigating feature under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act but held:

2. [35]

   Paragraph 3 of the agreed facts referred to other occasions, before 2019, where the applicant had acted violently or threateningly towards the victim. The details of these incidents were not provided and, as Mr Averre submitted, the offence for which the applicant was to be sentenced was not “said to be representative”. [47]

3. [36]

   I accept the applicant’s submission that “the absence of a criminal history was a significant factor and one which entitled the applicant to a reduction in the sentence which the crime would otherwise attract.” [48] I also accept that the applicant’s case did not fall within the categories of offending where prior good character or a lack of criminal history is less significant because, for example, the good character enabled the offender to commit the offence or because the charged offences were part of a pattern of offending going back many years. It is unnecessary to revisit the law in this area other than to refer to some cases which have dealt with the subject: see R v Kennedy [2000] NSWCCA 527 at [21]-[22] (Howie J, Simpson J agreeing), Athos v R [2013] NSWCCA 205; (2013) 233 A Crim R 302 at [35]-[36] (Price J, Beazley P and Johnson J agreeing) and Decision restricted [2022] NSWCCA 24 at [234]-[242] (Hamill J, Fullerton and Adamson JJ agreeing).

4. [37]

   The sentencing Judge erred in finding that the applicant’s lack of criminal record “assume[d] less significance” and I would also uphold ground 2.

Ground 3: The sentence imposed was manifestly excessive

1. [38]

   Because the sentencing discretion is to be exercised afresh, it is not necessary to deal with ground 3.

A less severe sentence is warranted

1. [39]

   The principal offence was extremely serious. It involved a sustained and unprovoked attack on the applicant’s domestic partner with serious physical and psychological consequences for the victim. The offence occurred in the victim’s own home and involved the use of at least one (and probably two) weapons. There was some planning involved although the offences also reflected the applicant’s inability to regulate her emotions and exercise self-control. Objectively, I assess the offence as falling within the broad spectrum that encompasses the mid-range of objective seriousness for offences charged under s 33 of the Crimes Act.

2. [40]

   The applicant was on conditional liberty at the time of the offence for offences involving the same victim. She breached bail and an apprehended violence order, each of which was calculated to protect the victim. The matters to be taken into account (two offences of assault) require that personal deterrence and retribution assume more importance in the sentencing exercise. While the applicant’s mental health issues reduced the weight to be afforded to general deterrence, the nature of the offences – being domestic violence offences – means that general deterrence remains a matter of significance.

3. [41]

   As I have made clear in dealing with ground 1, the moral culpability of the offender is reduced by her mental health issues, although this aspect of the case is complicated by her use of alcohol. Her alcohol dependence, not uncommonly, [49] related to her personal history of trauma and mental health issues, but she had managed to control her reliance on alcohol for many years and the bail conditions and ADVO specifically forbade her from drinking.

4. [42]

   The applicant was a first offender, and her offending is to be considered in light of her “distorted views of relationships” and impaired emotional self-regulation which resulted from her personality disorder. While it is difficult to predict, I am satisfied the applicant has reasonable prospects of rehabilitation. This finding is based largely on her absence of prior convictions and the applicant’s affidavit which was read on the usual basis. Her affidavit suggests she has made the most of her time in custody, has completed some courses and has some family support.

5. [43]

   I am unable to make a positive finding as to remorse, noting that the sentencing assessment report suggested that she tended to “minimise her offending behaviour”.

6. [44]

   I have taken into account the standard non-parole period (7 years) but would not impose a minimum sentence of that length in view of the plea of guilty, lack of criminal record and other subjective matters referred to in this judgment.

7. [45]

   Bearing in mind the maximum penalty and standard non-parole period and having considered sentences imposed in similar cases, a full-time custodial sentence of some significance is inevitable. I would commence with a sentence of 8 years’ imprisonment. Applying a 25% discount for her early plea of guilty, the total sentence will be 6 years.

8. [46]

   Given her intermittent but chronic alcohol dependence and mental health issues, as well as the fact that she has never been incarcerated before, the applicant will benefit from an extended period of supervised parole to assist her to re-integrate into the community upon release. For those reasons, I find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. I would set a non-parole period of four years.

9. [47]

   Accordingly, I would impose a total sentence of 6 years with a non-parole period of 4 years. The sentence should commence on the day she was taken into custody.

Orders

1. [48]

   I would make the following orders:

   1. (1)

      Application for leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Confirm the orders made under s 10A of the Crimes (Sentencing Procedure) Act 1999 for the offences of contravening the apprehended domestic violence order.

   4. (4)

      Quash the sentence imposed in the District Court for the offence under s 33 Crimes Act 1900 and in lieu thereof the applicant is sentenced to a non-parole period of 4 years commencing on 3 August 2019 and expiring on 2 August 2023 with a balance of term of 2 years expiring on 2 August 2025.

   5. (5)

      The applicant will be eligible for release to parole at the conclusion of the non-parole period.

2. [49]

   IERACE J: I also agree with the orders and reasons of Hamill J.