R v Stonestreet

1. [1]

   BELL P: I agree with the reasons of, and orders proposed by, Davies J.

2. [2]

   DAVIES J: The respondent was charged with one count of wound with intent to cause grievous bodily harm contrary to section 33(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years’ imprisonment and there is a standard non-parole period of seven years.

3. [3]

   The respondent pleaded guilty and was sentenced by Judge Grant on 31 March 2020 to imprisonment for four years and six months commencing 15 March 2017 and expiring 14 September 2021 with a non-parole period of three years and one month expiring 14 April 2020. The respondent was not released to parole on 14 April 2020. His next parole review date is 27 August 2020.

4. [4]

   The Director of Public Prosecutions for the Crown now appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the inadequacy of the sentence imposed.

The offending

1. [5]

   In 2015 the respondent was diagnosed with psychosis and was treated with prescription medication. In the weeks prior to the offence, which was committed on 15 March 2017, the respondent had not been taking his medication. At the time of the offence the respondent was residing with his father and mother in Griffith. His brother Aaron was also staying at that address.

2. [6]

   On the morning of 14 March 2017, the respondent was acting in a paranoid manner, completing alterations to the wiring of his car because he thought it was bugged. He left the Griffith residence and drove towards Parkes before encountering car difficulties. He contacted his mother to enquire if he could return home. By the time the respondent’s parents and brother went to bed that evening, the respondent had not returned.

3. [7]

   At about 10pm on 14 March the respondent contacted a friend by telephone and informed her that people were out to kill him. As a result of this conversation the friend contacted the police out of concern for the respondent’s welfare.

4. [8]

   Sometime between 11pm on 14 March and 5am on 15 March the respondent returned to the Griffith house, opened the front door and walked inside leaving the front door ajar.

5. [9]

   Police attended at approximately 5am to conduct a welfare check and noticed the front door ajar. They entered the house and went into the front bedroom where they located Aaron in bed asleep. Aaron woke and told the police that his parents were asleep at the back of the premises.

6. [10]

   Aaron walked to his parent’s bedroom and his parents returned to the front of the premises and spoke with the police about the respondent. Enquiries were made by police for a photograph of the respondent. The respondent’s father said that he had a photo on his mobile phone which was in his bedroom. He left the front of the house to retrieve the phone.

7. [11]

   As his father entered the bedroom he was struck by the respondent who had a knife. The knife was a silver coloured butcher’s knife approximately 40 centimetres in length from the tip of the blade to the end of the handle. The respondent’s father screamed, and the police and family members ran towards the bedroom.

8. [12]

   The respondent stabbed his father multiple times in the chest, arms and leg prior to police and family members entering the bedroom. The respondent was standing over the top of his father holding the knife when police entered the bedroom. Police drew their firearms and yelled at the respondent to drop the weapon. The respondent dropped the knife and lay down on the ground. He was subsequently arrested.

9. [13]

   The respondent’s father was taken by ambulance to Griffith Base Hospital and later transferred to St Vincent’s Hospital in Sydney for further treatment. He sustained stab wounds to the following locations:

10. [14]

    As a result of the stab wounds the respondent’s father suffered the following injuries:

11. [15]

    The respondent’s father underwent multiple surgeries. He continues to suffer from injuries to his right hand and shoulder requiring regular review and treatment.

12. [16]

    The respondent was committed for trial on 14 February 2018. When the matter reached the District Court, the Crown raised the issue of the respondent’s fitness. The matter was listed for trial on 26 November 2018. A fitness hearing was commenced on that day. The fitness hearing concluded with a finding that the respondent was fit to be tried on 14 June 2019. The respondent then offered to plead guilty to the indictment. The plea was ultimately taken on 14 October 2019.

13. [17]

    Before Judge Payne at the District Court at Griffith on 10 December 2019 the respondent’s barrister informed her Honour that the respondent had withdrawn his instructions from his solicitor, and that the barrister could not in the circumstances continue to act unless a new solicitor was instructed. Thereafter, the respondent appeared for himself both in a subsequent unsuccessful bail application before Judge Payne, and at the sentence proceedings before Judge Grant.

14. [18]

    The two grounds upon which the Crown appeals are as follows:

Remarks on Sentence (ROS)

1. [19]

   The sentencing judge noted that the respondent suffered from schizophrenia. His Honour made reference to a statement from the respondent’s brother who said that the respondent had been acutely paranoid in the days leading up to the offending. The respondent believed that people were after him.

2. [20]

   The sentencing judge made reference to a victim impact statement from the respondent’s father. His father did not believe the respondent intentionally caused him harm. His father believed the respondent was unwell and was not guilty of the offence. He felt the healthcare system had let the respondent down.

3. [21]

   A report from the psychiatrist Dr Richard Furst was tendered on behalf of the respondent at the sentence hearing. The sentencing judge set out large portions of that report in his ROS. The report said that the respondent had a serious mental illness in the form of schizophrenia and was prone to paranoid thinking. The report said that the respondent had no insight into his mental illness and treatment. Dr Furst also said:

4. [22]

   His Honour accepted that at the time of the offending the respondent was paranoid and delusional. His Honour was satisfied that the respondent’s mental condition contributed to the commission of the offence in a material way. His Honour said very little weight should be given to general deterrence because of the mental disorder. His Honour found that the respondent’s moral culpability was reduced and that matters of retribution and denunciation had little weight.

5. [23]

   The sentencing judge accorded a discount of 25% to the respondent for his plea of guilty. His Honour assessed the objective seriousness of the matter as being below the mid-range, but said that he did not take into account the mental illness of the respondent in assessing objective seriousness. Rather, he took that into account when making an assessment of the respondent’s moral culpability.

6. [24]

   His Honour found that there were special circumstances because of his age, and the fact that it was his first time in custody, and that there was a need for an adequate treatment program.

Submissions

1. [25]

   The Crown submitted that although the sentencing judge considered the evidence in respect of the respondent's mental illness extensively, and made comprehensive findings concerning the effect of that mental illness upon the respondent's moral culpability and the lack of need for general deterrence (none of which was challenged), the sentencing judge did not consider the effect of the respondent's mental illness upon the need to protect the community. The Crown submitted that it is well established that the protection of the community will be a critical consideration when sentencing an offender who suffers from an untreated mental illness.

2. [26]

   The Crown submitted that where the evidence before the sentencing judge clearly demonstrated that the respondent's illness was treatment resistant, and that, when untreated, the respondent was a danger to the community, the need to protect the community should have been a critical consideration in the sentencing of the respondent. The Crown submitted that this was emphasised because the respondent had manifested similar delusions about his parents and the police on two separate occasions. Further, the respondent refused to participate in an interview when Probation and Parole contacted him in March 2020.

3. [27]

   The Crown submitted that the sentencing judge did not mention the protection of the community in his ROS at all.

4. [28]

   The respondent submitted that the Crown did not expressly submit to the sentencing judge that a critical consideration was the protection of the community, or that the respondent’s mental illness should result in a longer sentence because of the danger he presented to the community and the need to emphasise specific deterrence.

5. [29]

   The respondent submitted that the extent to which his Honour set out portions of Dr Furst’s report, and the careful consideration he gave to it, augured against the proposition that the sentencing judge failed to take into account the protection of the community in fixing an appropriate sentence. That was because his Honour expressly adverted to the very matters which raised that concern, including the treatment recommendations which Dr Furst made in order to address it.

6. [30]

   The respondent drew attention to what was said about considerations for sentencing mentally ill offenders in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. The respondent drew attention to cases such as R v Engert (1995) 84 A Crim R 67 at 68 and Alkanaan v R [2017] NSWCCA 56 at [108] which emphasised the imperative to sentence a mentally ill person with consideration for the facts and circumstances of the individual case, and the application of sentencing principles to those facts and circumstances.

7. [31]

   The respondent submitted that the principles in De La Rosa are well-known to experienced practitioners of the criminal law, and his Honour was an experienced practitioner in the criminal law. It should not readily be inferred that his Honour overlooked the matter of the protection of the community.

8. [32]

   The respondent drew attention to the fact that his Honour’s ROS were made ex tempore, and submitted that this Court should not readily conclude that his Honour’s failure to mention the protection of the community expressly, meant that he did not take it into account, when the respondent’s mental illness was the central issue in the proceedings on sentence.

Consideration

1. [33]

   One of the purposes of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is “to protect the community from the offender”. It is obviously a significant consideration where violent crime is involved, but arises for particular consideration where crimes are committed by mentally ill persons whose moral culpability is reduced and for whom specific deterrence has reduced significance.

2. [34]

   In Veen v R (No.2) (1988) 164 CLR 465; [1988] HCA 14, the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ, said (at 476):

3. [35]

   In De La Rosa McClellan CJ at CL said at [177]:

4. [36]

   In Elturk v R [2014] NSWCCA 61, Beazley P (R A Hulme and Schmidt JJ agreeing) said at [46]:

5. [37]

   One of the significant themes in Dr Furst’s report was the respondent’s lack of insight into his mental illness. When Dr Furst considered some earlier psychiatric reports about the respondent in 2015 he noted that the psychiatrist who examined him made reference to his insight being poor and to the respondent’s preferring the term “autism” to schizophrenia. Dr Furst noted a report from another psychiatrist provided to the Mental Health Review Tribunal in September 2018 where the respondent was described as “guarded” and “insightless” at that time. Dr Furst noted that when the respondent was admitted to the Acute Mental Health Unit at Long Bay Hospital from January to July 2018 as an involuntary patient, he was largely uncooperative and remained lacking in insight during his admission, despite treatment with a combination of Clopixol Depot injections every two weeks and Olanzapine wafers.

6. [38]

   Dr Furst went on to say:

7. [39]

   At the time Dr Furst assessed the respondent in September 2019 he said that the respondent’s mental state had deteriorated over the previous several months, suggesting that he had stopped taking his medication again. When Dr Furst asked him if he was taking his medication, the respondent said he did not believe he was mentally ill. Dr Furst went on to say:

8. [40]

   In the section of his report headed “Recommendations regarding future treatment”, Dr Furst said:

9. [41]

   Finally, in the section of his report headed “Prognosis”, Dr Furst said this:

10. [42]

    The sentencing judge included almost all of the above parts of Dr Furst’s report into his ROS. His Honour then said this under the heading “Moral culpability”:

11. [43]

    His Honour then recognised the need for the adequate treatment program as outlined by Dr Furst “to take effect during the parole period of the offender”, and for that and other reasons his Honour found special circumstances.

12. [44]

    Whilst his Honour had express regard to the first four of the five matters identified by McClellan CJ at CL in De La Rosa, he said nothing about the issue of community protection. Community protection was not an optional consideration, not only because of s 3A of the Sentencing Act, but precisely because, as McClellan CJ at CL said, the person’s mental illness means that they present more of a danger to the community. In such circumstances an increased sentenced may be imposed, but that is not because the person has a mental illness. Rather, an appropriate sentence must be imposed having regard to the fact that the person is a danger to the community. In the same way, a person without a mental illness who was a continuing danger to the community might expect to receive a longer sentence compared to someone whose offending and subjective circumstances did not place them in that category.

13. [45]

    The respondent relied on an exchange between the sentencing judge and the Crown during submissions being made by the respondent. The respondent had complained that the Crown had not given him beforehand a copy of the decision in Elturk, when the Crown referred his Honour to that case. The exchange was a follows:

14. [46]

    In my opinion, it cannot be inferred from anything his Honour has said in his ROS that he in fact took into consideration the important matter of the protection of the community as a result of the respondent’s lack of insight into his mental illness, and what that might mean in terms of re-offending. In my opinion, error is established in that regard. I would uphold this ground of appeal.

15. [47]

    Although, where specific error is found, it is not strictly necessary to consider a ground of manifest inadequacy Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54 at [33]; CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [34]), I consider that the sentence imposed by the sentencing judge was manifestly inadequate. This flowed from the failure to take account of the protection of the community and the high risk of reoffending without adequate supervision.

Submissions

1. [48]

   In relation to the exercise of the residual discretion, the Crown submitted that the following matters were pertinent to the exercise of that discretion:

2. [49]

   The Crown accepted that the fact that the non-parole period imposed has expired is a relevant consideration. The Crown submitted, however, that this should not outweigh the clear need to protect the community from someone with the respondent’s mental health issues.

3. [50]

   The Crown submitted that the objective criminality of the offence was extremely serious, and that a sentence of four years and six months with a non-parole period of three years and one month was manifestly inadequate, when the protection of the community was taken into account. Any new sentence would need to take that inadequacy into account.

4. [51]

   The Crown submitted that, in the circumstances of the respondent’s mental illness and treatment, there was scope for further amelioration of the ratio between the non-parole period and the head sentence to enable a longer head sentence. That was for the purpose of enabling the sort of treatment that Dr Furst said was vitally necessary, particularly the psychotherapy to overcome what Dr Furst described as the complete absence of insight by the respondent into his illness and treatment needs. The Crown submitted that the imposition of an increased head sentence would not offend the principles in Veen (No 2) because it would not lead to the imposition of a sentence that was greater than one which might have been imposed if the offender was not mentally ill.

5. [52]

   The respondent, in relation to the residual discretion, pointed particularly to the fact that the non-parole period expired in April 2020. The respondent submitted further that principles informing the sentencing discretion in cases of mentally ill offenders require no clarification, and that even if error was established in relation to the sentence, that was no justification for this Court to intervene. Reference was made to R v Primmer [2020] NSWCCA 50 at [39].

6. [53]

   The respondent submitted that the sentence imposed on the respondent was not obviously inadequate. Although the appropriate sentence required a term of imprisonment, the evidence clearly established a strong causal connection between the respondent’s schizophrenic illness and the commission of the offence.

7. [54]

   The respondent submitted that treatment of his schizophrenia would be a long-term task, and the evidence suggested that his illness, if not assertively managed, could potentially pose a risk to the safety of other people, particularly his parents. However, the respondent submitted that the evidence did not support the proposition that any longer period of custody would better treat the schizophrenia.

8. [55]

   The respondent submitted that the notional starting point of six years adopted by the sentencing judge was not one that appeared to be a manifestly inadequate term of imprisonment for a first time offender with a schizophrenic illness, for an offence of the type charged. The respondent accepted, nevertheless, that it would have been open for the sentencing judge to have started at a higher point so that any head sentence, after the discount for the plea, was a longer one after the fixing of the non-parole period. The respondent submitted also that it was likely that he would subject to community treatment orders under the auspices of the Mental Health Review Tribunal for the foreseeable future in any event. In that way, it was submitted, the protection of the community is safeguarded.

Consideration

1. [56]

   In my opinion, the Crown has satisfied its onus of demonstrating that the residual discretion should not be exercised. In Primmer, Hamill J (Leeming JA and Harrison J agreeing) said at [39]:

2. [57]

   One matter which would lead to an affront to the administration of justice is a lack of uniformity in sentencing. That is a relevant matter when consideration is given to relatively recent decision of this Court in Elturk, (see below) a case of striking similarity to the present. The present case is also a significant example of the tension which exists between reduced culpability as a result of mental illness and the need for protection of the community.

3. [58]

   As I have indicated earlier, the theme running through Dr Furst’s report is the lack of insight by the respondent into his illness and his need for treatment. Associated with that was the resistance of the respondent to medication which led to the imposition of a Forensic Community Treatment Order in 2018.

4. [59]

   It may be accepted, as Dr Furst said, that custody is much more onerous for a person in the position of the respondent. However, although the respondent’s culpability was reduced by reason of his mental illness, this was a very serious offence. Although Dr Furst’s report suggested that the respondent might have a defence to the charge by reason of his mental illness, the respondent elected to plead guilty to the offence. His lack of insight into his condition and his failure at various times to remain compliant with his medication regime means that the community is at some considerable risk. Although his offending behaviour has so far been directed towards his family because of his delusional beliefs about what they did to him when he was a child, they are as much entitled to protection as the community at large.

5. [60]

   The sentencing judge reduced the statutory ratio to 68.5%, partly to take account of his proposed treatment program, but this left an inadequate time during which the respondent would be under parole supervision to assist with that treatment. Although the Crown submitted that the sentence generally was inadequate, the Crown’s focus was principally on the balance of term to be added to the non-parole period.

6. [61]

   In Elturk, the applicant pleaded guilty, relevantly, to wounding with intent to cause grievous bodily harm. As in the present case, the victim was the applicant’s father who was stabbed by the applicant and the wounds suffered by the victim were very serious. The applicant had experienced mental problems since about the age of 19 with various admissions to psychiatric hospitals. He was diagnosed as suffering from either a major mental illness of schizoaffective disorder or a relapsing psychotic illness with features of both schizophrenia and bipolar disorder. At the time of the offending, the psychiatrist Dr Nielssen said that the applicant was mentally ill and delusional. The applicant had limited insight into his mental condition.

7. [62]

   The sentencing judge accorded him a 20% discount for the plea of guilty and thereafter sentenced him to a non-parole period of four years with a balance of term of four years. This Court reduced the sentence, because of specific errors made by the sentencing judge, to a non-parole period of three years and six months with an additional term of three years. That decision is a useful comparable case for the present re-sentencing exercise.

8. [63]

   There is no doubt that the present applicant needs a lengthy period on parole. Particularly in the light of the expiry of the respondent’s non-parole period, I would not interfere with that non-parole period. It is essential, however, that the respondent has an adequate period under supervision on parole to assist in the stabilisation of his mental health issues. I would find special circumstances for the reasons indicated by the sentencing judge but I would vary the statutory ratio so as not to increase the non-parole period.

9. [64]

   In my opinion, the undiscounted sentence should be one of eight years. The applicant should be sentenced, after the discount for the early plea, to a non-parole period of three years and one month with a balance of term of two years and 11 months. The sentence should commence on 15 March 2017 with the non-parole period expiring on 14 April 2020. The balance of term will expire on 14 March 2023.

Conclusion

1. [65]

   I propose the following orders.

   1. (1)

      Allow the appeal.

   2. (2)

      Quash the sentence imposed by Judge Grant in the District Court on 31 March 2020.

   3. (3)

      In lieu, sentence the respondent to a non-parole period of three years and one month commencing 15 March 2017 and expiring 14 April 2020 with a balance of term of two years and 11 months expiring 14 March 2023.

2. [66]

   N ADAMS J: I agree with Davies J.