Blake v R

1. [1]

   LEEMING JA: I agree with R A Hulme J.

2. [2]

   FULLERTON J: I agree with R A Hulme J.

3. [3]

   R A HULME J: Andrew Paul Blake (the applicant) seeks leave to appeal in respect of a sentence imposed by his Honour Judge McLennan SC in the District Court at Lismore on 18 June 2020.

4. [4]

   His Honour imposed an aggregate sentence of imprisonment for 5 years with a non-parole period of 3 years and 4 months, dating from 1 April 2019.

5. [5]

   Details of the offences, including the indicative sentences assessed for each, are set out in the following table. The indicative sentences had each been reduced by 25% because of the applicant’s early pleas of guilty.

6. [6]

   The applicant seeks leave to appeal upon the following grounds:

7. [7]

   I propose that leave to appeal be refused because there is no merit in either ground.

Agreed facts as to the offences

1. [8]

   The applicant and Ms Chelsey Campbell were in a relationship for about 30 years and they had three children. The relationship was described as “off and on” for the past 10 years and in the last 5 years the applicant frequently sent messages to Ms Campbell to the effect that he would kill himself.

2. [9]

   At the time of the offending the couple were separated, and Ms Campbell had been in a relationship with another man, Mr David McConchie, for eight months. When that relationship began Ms Campbell told the applicant about it and that her relationship with him was over. The applicant did not take this well. From Christmas 2018 onwards he frequently called and texted Ms Campbell to vent his displeasure about a number of issues.

3. [10]

   In the early hours of 31 March 2019 the applicant drove to Mr McConchie’s home and entered through an open door with a .22 calibre pump action rifle. His intention in entering the property was to intimidate Ms Campbell and Mr McConchie.

4. [11]

   The applicant made his way to the bedroom where the victims were asleep. He turned the light on and started yelling insults and words to the effect that he was going to shoot them and kill them. At one point he said he would shoot himself as well.

5. [12]

   The applicant said he could not believe Ms Campbell had left him for Mr McConchie and she had abandoned her children and the family. His utterances were couched in gross and unseemly language and he was pointing the rifle at them at the same time. They were terrified he was going to kill them.

6. [13]

   The applicant told the couple to get up. He went to the loungeroom and eventually Ms Campbell followed and sat on the lounge. While still holding the rifle, the applicant started “ranting” at her about everything that she had done wrong during their relationship. He returned to the bedroom with the rifle and demanded (with more unseemly language) that Mr McConchie come to the loungeroom.

7. [14]

   He returned to the loungeroom and Mr McConchie followed. The ranting at Ms Campbell continued. After a while the applicant said in relation to the rifle, “this is ridiculous”, and went and put it in the car. He returned and continued his ranting at both victims about his relationship with Ms Campbell, their children, their property settlement and her relationship with Mr McConchie. He referred to her as a “slut”; told her that her children hated her. This went on for about another 20 minutes.

8. [15]

   At one point Mr McConchie sought to intervene, but the applicant responded by threatening to assault him if he said that Ms Campbell was single when they had met. He said words to the effect of, “I will smash your fucking face in”.

9. [16]

   The applicant left and drove away after the incident had lasted just over an hour. The victims had no phone reception at the property and could not call for help. They stayed the rest of the night in a shed out of fear the applicant might return.

10. [17]

    The rifle was lawfully owned by the applicant but (of course) he was not authorised to use it in the manner that he did.

The judge’s assessment of the seriousness of the offences

1. [18]

   His Honour accepted a defence submission that the enter dwelling offence was “just below the midrange of objective seriousness”, although he described it in these terms: [1]

2. [19]

   The detaining offences were regarded as having serious features including that although the gun was unloaded, that made no difference from the victims’ perspective, given the applicant pointed it at them and threatened to kill them. Reference was made to the personal abuse directed at Ms Campbell and the threat to smash Mr McConchie’s face in. Victim impact statements described how terrifying the experience was and there was longer-term psychological consequences. In his ex tempore judgment, his Honour said these offences were “in the broad range of seriousness”. In the course of submissions he described them as being in the midrange and counsel for the applicant agreed. [2]

3. [20]

   As to the incident overall, the judge said: [3]

The applicant’s background and personal circumstances

1. [21]

   The defence case comprised only documentary evidence: a report by Dr Gerald Chew, forensic psychiatrist, an affidavit by the applicant confirming or qualifying some factual aspects of that report, and some testimonials.

2. [22]

   The applicant was born in 1968 in New Zealand. His parents separated when he was aged 10. His mother re-partnered and there was domestic violence between them and towards him. His father suffered from depression and committed suicide when the applicant was aged 13. [4]

3. [23]

   The applicant told Dr Chew he was bullied at intermediate school (the equivalent of years 6-7 in Australia). He left school at the equivalent of year 9. He obtained employment but migrated to Australia seeking better opportunities. He worked in the mines in Western Australia before moving with his family to northern NSW at the age of 34. [5]

4. [24]

   The applicant said he began using cannabis at the age of 13. His usage had been heavy “off and on” for years. He entered a rehabilitation program in 2017 but left after a week because he could not manage being away from his family. He admitted using cannabis in significant amounts: 2-3 ounces per week. He used alcohol sporadically. [6]

5. [25]

   The applicant has a criminal history but it is minor and historic.

6. [26]

   A description of the period and the cessation of the applicant’s relationship with Ms Campbell was included in the agreed facts (see above). The applicant claimed to Dr Chew that in the nine-months preceding the offending, the period in which she was in a relationship with Mr McConchie: [7]

7. [27]

   The applicant told Dr Chew he had sought help in the past for mental health problems and had been treated for depression and cannabis use disorder. He said a doctor diagnosed him with bipolar disorder in 2014. He had been prescribed medication but had not been compliant in taking it. [8]

8. [28]

   The applicant told Dr Chew of feeling depressed on occasions in the past four to five years. He complained of poor sleep, poor energy and concentration as well as an inability to feel pleasure. He had seen his GP as well as psychologists and counsellors. In the weeks leading up to the offences he had contemplated and planned suicide more. Dr Chew noted that hospital records recorded a long history of depression and presentations after overdose in the context of low mood and relationship difficulties. [9]

9. [29]

   At the time of the offences the applicant had been drinking alcohol – probably 3 beers – and had also taken Valium – perhaps as many as 25 tablets. He told Dr Chew his recollection of the offences was hazy. He had been hosting his 18-year old daughter’s birthday party that night at his home. [10] (There will be reference to this party later, but it is significant to note that this is all that was said on the subject.)

10. [30]

    Dr Chew made a diagnosis of Major Depressive Disorder. He noted a strong genetic disposition for this but also said the applicant’s substance use and psychosocial stressors had contributed to the disorder. He said the applicant was suffering from a Major Depressive Episode at the time of the offending but considered he was also affected by substances, in particular cannabis, alcohol and benzodiazepines which was consistent with his patchy recollection of the event. [11]

11. [31]

    Dr Chew noted that Major Depressive Disorder is a serious psychiatric condition and a “mental illness” under the Mental Health Act 2007 (NSW). He considered that it, combined with the substance use, particularly the benzodiazepines, contributed directly to the commission of the offences. He added:

12. [32]

    Dr Chew also considered the applicant’s:

13. [33]

    In various parts of the report there are conflicting accounts of whether the applicant was being treated, but the position seems to have been that since at least September 2019 he had been receiving appropriate medication. Dr Chew’s final reference to the subject was: [12]

14. [34]

    Dr Chew suggested treatments including ongoing medication and psychological therapy. A community treatment facility such as a drug and alcohol rehabilitation centre would be more favourable. Dr Chew considered that with treatment, the applicant’s prognosis would be good and his risk of reoffending “much lowered”.

15. [35]

    The doctor felt that the applicant appeared to express genuine remorse frequently, with statements such as “I am extremely sorry for my behaviours”.

16. [36]

    Testimonials from the applicant’s mother, his son and his oldest daughter, as well as from two long-term friends paint the picture of a loving and devoted father whose priority was his family, even after the difficulty of separating from his long-term partner, the children’s mother. They are consistent in describing the offending as completely out of character.

17. [37]

    His Honour made findings in the applicant’s favour that there was genuine remorse, good prospects of rehabilitation, an unlikelihood of reoffending and that there were special circumstances for reducing the non-parole proportion of the sentence because the applicant would need support to deal with his depressive illness upon release. [13]

18. [38]

    The judge concluded his sentencing remarks with the following summary which indicated the balance he struck between, on the one hand the gravity of the offences, the need for denunciation, punishment and deterrence, and on the other, the applicant’s personal circumstances, particularly his mental illness: [14]

Ground 1 – failure to properly take into account mental illness at the time of the offence

1. [39]

   The critical passage of his Honour’s reasoning concerning the significance of the applicant’s mental condition was the following: [15]

2. [40]

   His Honour considered the opinion of Dr Chew that the custodial experience would be harsher for the applicant because it was more difficult to obtain optimal treatment. He referred to the seemingly conflicting passages in the report about the applicant receiving medication and concluded that the mental illness seemed to have been treated with some positive effects. On that basis he declined to accept Dr Chew’s opinion. [16]

3. [41]

   Counsel for the applicant referred to the principles relating to sentencing an offender with a mental condition summarised by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. She submitted that the sentencing judge’s description of the applicant’s moral culpability being reduced “somewhat” was not in accordance with the principles or the evidence.

4. [42]

   The principles set out by McClellan CJ at CL are not expressed in mandatory or unqualified terms. Simpson J pointed out in Aslan v R [2014] NSWCCA 114 at [33] that the Chief Judge had described in respect of each principle how it may have a certain affect upon the assessment of sentence. Moreover, where a principle does apply, it remains a matter for the sentencing judge to make a discretionary evaluation as to the extent of its significance.

5. [43]

   The latter point is illustrated by something said by Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 50-51. His Honour described how “general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others”. His Honour concluded the discussion of that principle by saying:

6. [44]

   In the present case, the judge found that the applicant’s moral culpability was “reduced somewhat” because of his major depressive illness”. He also found that the significance of general deterrence was also diminished “to some extent”. These were evaluative findings that accorded with principle and were open on the evidence.

7. [45]

   Another illustration of the learned judge’s appreciation of the applicable principles is to be seen in him considering the question whether the applicant’s mental condition would render his custodial experience more onerous. The finding he made in relation to this issue was also one that was open to be made.

8. [46]

   Counsel for the applicant contended that it was the opinion of Dr Chew that the major cause of the offending was the applicant’s underlying mental condition. However, the judge’s conclusion that the applicant’s mental condition “played a role in his conduct” but that “the disinhibiting effects of the drugs” was “a precipitant for what happened” was, again, a finding that was open on the evidence.

9. [47]

   Other submissions made on behalf of the applicant were based on factual assertions which had no foundation in the evidence. A stark example of that was an attempt to persuade the Court there was a causal link between the 18th birthday party for the applicant’s daughter and his offending, a matter about which there was no evidentiary foundation at all. It is unsurprising that counsel appearing in the court below did not make such a submission.

10. [48]

    The contention that his Honour failed to properly take into account the applicant’s mental illness is not sustained. He was clearly alive to the relevant principles and was astute in applying them to the facts and circumstances of the case in a careful and discriminating way.

11. [49]

    There is no merit in this ground.

Ground 2 – sentence is manifestly excessive

1. [50]

   It was submitted that a lower sentence was required because of the following factors: [17]

2. [51]

   Counsel for the applicant confined her search for comparable sentencing data to material that had been handed up to the sentencing judge by counsel then appearing. This comprised four case summaries and some statistical printouts with meagre sample sizes. No attempt was made to identify any sentencing range or unifying principles from any of this material: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]-[55]. This material was of no assistance to the applicant’s case.

3. [52]

   Counsel said in oral submissions that it was difficult to provide anything helpful because of the wide range of circumstances in which the offences in question can be committed, particularly the offence of specially aggravated enter dwelling with intent. [18]

4. [53]

   The offences for which the applicant was sentenced were significantly serious and resulted in considerable psychological trauma to the two victims. They were intimidated to the point of being seriously frightened by what occurred, including fearing they might be shot and killed. They were detained for an hour or so in such circumstances. They were vulnerable because of their isolated location and were forced to hide in a shed for the remainder of the night.

5. [54]

   There is no doubt that such favourable circumstances as there were in the applicant’s subjective case were taken into account in his favour. Nevertheless, it was necessary for the judge to impose a sentence that was commensurate with the overall criminality of the applicant’s offending and there was no dispute about his assessment of the objective seriousness of the offences. The indicative sentences of 4 years, 3 years, 3 years and 1 year being reflected in an aggregate sentence of 5 years suggests a substantial overlap or concurrency between each of them. Considering the maximum penalties that applied to the offences, the indicative sentences are quite reasonable.

6. [55]

   The finding of special circumstances, which brought a reduction of the non-parole period to 3 years and 4 months (it otherwise would have been 3 years and 9 months) was a further reflection of his Honour’s regard for the applicant’s mental condition.

7. [56]

   The sentence is not manifestly excessive.

Orders

1. [57]

   I propose the following order: