AK v Regina

1. [1]

   MACFARLAN J: I agree with Lonergan J.

2. [2]

   N ADAMS J: I agree with Lonergan J.

3. [3]

   LONERGAN J: The applicant, known as ‘AK’, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against a sentence imposed by Wilson SC DCJ in the District Court at Sydney on 19 June 2019.

4. [4]

   AK’s trial, for a series of offences involving his wife and stepchild, commenced on 12 March 2018. Two days into the trial, and whilst the main victim, the applicant’s wife (known as ‘SM’) was giving evidence, the applicant entered pleas of guilty to four offences, these being Counts 2, 3, 4 and 5 as charged on Indictment.

5. [5]

   At the sentencing proceedings, an additional offence was taken into account on a Form 1 and four additional and related offences were taken into account pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

6. [6]

   The offences to which the applicant pleaded guilty were as follows:

   1. (1)

      Detain SM (his wife) with intent to obtain an advantage (psychological gratification) contrary to s 86(1)(b) of the Crimes Act 1900 (NSW) which carries a maximum sentence of 14 years imprisonment;

   2. (2)

      Detain PC (his step daughter) with intent to obtain an advantage (psychological gratification) contrary to s 86(1)(b) of the Crimes Act;

   3. (3)

      Do an act intending to persuade a witness in a judicial proceeding to withhold true evidence with intent to procure an acquittal for a serious indicatable offence (aggravated), contrary to ss 323(a) and 324 of the Crimes Act, which carries a maximum penalty of 14 years imprisonment;

   4. (4)

      Sexual intercourse without consent, contrary to s 61I of the Crimes Act which carries a maximum penalty of 14 years imprisonment with a standard non-parole period of 7 years.

7. [7]

   Taken into account on the Form 1 was one count of enter dwelling house with intent to commit a serious indictable offence contrary to s 111(1) of the Crimes Act which carries a maximum penalty of 10 years imprisonment.

8. [8]

   The four offences on the s 166 Certificate comprised one count of contravene restriction of apprehended violence order (domestic), contrary to s 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) with a maximum penalty of 2 years imprisonment or 50 penalty units or both; two counts of common assault contrary to s 61 of the Crimes Act which carries a maximum penalty of 2 years imprisonment, and one count of intimidation, in contravention of s 13 of the Crimes (Domestic and Personal Violence) Act, which carries a maximum penalty of 5 years imprisonment or 50 penalty units or both.

9. [9]

   The indicative sentences, with discount applied for the guilty plea, were as follows:

10. [10]

    The applicant was sentenced to an aggregate term of imprisonment of 10 years, with a non-parole period of 7 years dating from 20 June 2016.

11. [11]

    The applicant seeks leave to appeal against the aggregate sentence. For the reasons that follow, I propose that leave to appeal should be granted but the appeal should be dismissed.

Facts

1. [12]

   The facts were agreed between the parties and set out in the remarks on sentence as follows:

Findings

1. [13]

   The sentencing judge made specific reference to the context of domestic violence and what the High Court had said about that in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 (“Munda”) at [54]-[55], noting:

2. [14]

   Reference was also made to The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [21], recognising the societal shift in relation to domestic violence and that current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence, because of changes in societal attitudes to domestic relations.

3. [15]

   His Honour concluded that counts 2, 3, and 4 were all in the mid-range of objective seriousness for that type of offending and that count 5 was slightly above the mid-range, given the presence of the young child. He placed the objective seriousness of the breach of the AVO at above the mid-range given that it involved detention and sexual violence, the two counts of common assault at the mid-range, and the stalk and intimidate at about the mid-range. No issue has been taken regarding any of those assessments.

4. [16]

   His Honour listed the aggravating features of the offending at [61] as follows:

Subjective case

1. [17]

   The applicant was 56 years old at the time of offending and is now 60. He has a criminal history which includes previous assaults of SM. He was convicted of assault involving slapping SM in the face and pulling her by the hair on 26 December 2014. He was fined. He was charged for assault occasioning actual bodily harm and breach of an AVO for his conduct on 21 April 2016. The facts of that offending were before the sentencing judge. The applicant was sentenced in 2017 for the April 2016 offending to imprisonment for 2 months and 16 days commencing 22 February 2017 and ending on 7 May 2017.

2. [18]

   The applicant chose not to give evidence but provided a letter stating that he “accepted responsibility” for his actions and that what he did was “inappropriate”. The sentencing judge gave the letter very little weight, because the applicant was provided with the opportunity to give sworn evidence of remorse, but refused and had initially pleaded not guilty and in doing so, subjected his wife to giving evidence.

3. [19]

   The sentencing judge noted the medical reports from Dr Adams and Dr Chew, both psychiatrists. Dr Adams was retained to assess the applicant’s fitness for trial. He assessed the applicant on 22 September 2016 and 21 October 2016. Dr Adams stated that the applicant found it difficult to provide an accurate account of his mental health history and that the applicant reported to him that he was “worried” he was “losing his memory”. He had no history of alcohol or drug abuse. He had worked as a bus driver in Australia. Dr Adams concluded that at that point, the applicant did not satisfy the Presser minimum standards and was not fit to plead. Dr Adams diagnosed a neurocognitive disorder with possible dementia type illness and psychotic symptoms.

4. [20]

   On reassessment on 5 June 2017, Dr Adams noted that the applicant’s mental state had improved with medication and that he was fit for trial.

5. [21]

   Dr Chew reviewed the applicant in March 2019 by AVL. He took the view that the applicant suffered a serious mental illness, likely major depression with psychotic features and prominent cognitive features. He also stated that in his view it was likely that the applicant had suffered from that condition at the time of the offending.

6. [22]

   The sentencing judge noted that there was controversy as to the source of the information Dr Chew has included in his report regarding medical records and medications, although this was clarified in a subsequent report from Dr Chew to indicate that the information came from Justice Health Records.

7. [23]

   His Honour analysed the effect of the medical reports at [67]-[69] of the remarks on sentence:

8. [24]

   The issue of special circumstances was discussed at [74]-[76]. His Honour noted that issue was taken by the Crown as to whether special circumstances existed such as to justify a departure from the statutory ratio for parole. The Crown argued that the only relevant basis would be that this is the applicant’s first time in custody for any lengthy custodial sentence, however the standard statutory ratio of parole to non-parole was sufficient to deal with any need for rehabilitation.

9. [25]

   The applicant submitted that in addition to this being his first time in custody, the Court should also consider his age and his health issues.

10. [26]

    His Honour approached the issue this way:

The application

1. [27]

   The applicant raised four grounds of appeal:

   1. (1)

      The sentencing judge erred by failing to properly consider the mental health of the applicant;

   2. (2)

      The sentencing judge erred by failing to appropriately take into account the special circumstances of the applicant;

   3. (3)

      The sentencing judge erred by failing to appropriately vary the statutory ratio in recognition of the special circumstances and the mental health of the applicant;

   4. (4)

      The sentence is manifestly excessive.

2. [28]

   No written submissions were provided on behalf of the applicant in support of ground 4. In oral submissions, counsel for the applicant informed the Court that ground 4 was only pressed to the extent it “embodies or encompasses” grounds 1 to 3. It was not pressed as a separate ground, and so is not dealt with as a separate ground in this judgment.

Ground 1: Failure to properly consider the mental health of the applicant

1. [29]

   Counsel for the applicant asserted that the conclusion that the sentencing judge should have reached, given the mental health evidence, and in particular Dr Chew’s 2019 report, was that the applicant’s moral culpability was significantly reduced, not, as his Honour found, only slightly reduced.

2. [30]

   There was no apparent exercise of the necessary “sensitive discretionary decision” as required by R v Engert (1995) 84 A Crim R 67 at [67] that explained how his Honour applied the facts and circumstances of the case to the purposes of criminal punishment.

3. [31]

   There was inadequate explanation for the conclusion that the applicant “may present more of a danger to the community than others who do not suffer from those conditions”. [3] It was argued that this approach led to an increase in sentence, because more weight was placed on specific deterrence. The factual basis for that conclusion should have been properly set out in the ROS, but was not. [4]

4. [32]

   The evidence supports a finding that this applicant was not an appropriate vehicle for the expression of the full weight of general deterrence, given his mental health problems based on Dr Chew’s opinion that the applicant was suffering from a mental disorder or disability at the time of the commission of the offence.

5. [33]

   The sentencing judge gave no consideration to the risk that imprisonment will have a significant adverse effect on the applicant’s mental health. (I interpolate however that no evidence from the expert psychiatrists’ evidence was cited to support this proposition, and the evidence tendered suggests the applicant’s mental health has significantly improved whilst in custody).

6. [34]

   The Crown submitted that it is apparent from [67]-[69] of the ROS that his Honour expressly applied the relevant considerations from the judgment of McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”):

7. [35]

   The criticism made is, in effect, that his Honour should have given more weight to the mental health issue in reducing moral culpability. The question of weight is part of the instinctive synthesis that has to be undertaken by the sentencing judge. As stated by Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11]:

8. [36]

   Here the assessment of the applicant’s moral culpability had to be considered in the context of his history of domestic violence towards his wife, his ability to enter the home, forcibly detain both victims, and keep control of them for many hours notwithstanding his asserted mental condition. He threatened his wife, including a threat he would kill her and her daughter, he pressured her in relation to the court case - the subject matter of which was previous serious domestic violence on his part - in close proximity to the next listing of that case. The applicant also acknowledged to police a few days later that he knew that he was in breach of the AVO that was in place at the time of this offending.

9. [37]

   Contrary to what was submitted on behalf of the applicant, his Honour in fact made a finding that a custodial sentence “may weigh more heavily” [5] on the applicant, despite Dr Adams noting in the his second report that the applicant’s mental health had improved and that the applicant himself had commented that he was “fine”, he was “very well” and that he “felt safe”. The applicant told Dr Chew in March 2019 that he was now “all better” on treatment, and denied any mental health symptoms. His Honour’s finding was, in the circumstances, a generous one.

10. [38]

    The sentencing judge was obliged to carefully consider the applicant’s criminal record and prior behaviour towards his wife. The 10 May 2016 offences were not isolated. There had been other incidents of violence during the relationship. The Court was required to take into account that the present offences were committed in breach of bail and in breach of an AVO. Dr Adams referred specifically to the possible danger posed by the applicant to others based on his assessments in 2017 [6] before the improvement in the applicant’s condition whilst in custody and on medication.

11. [39]

    The conclusion in Dr Adams’ first report regarding the possible danger posed by the applicant to others is a significant consideration that his Honour was required to weigh in reaching an appropriate sentence to impose.

12. [40]

    Contrary to the submissions made on behalf of the applicant, there is no evidence that in taking that matter into account, his Honour increased the sentence because of potential dangers presented by the applicant. He clearly weighed up the relevant factors as described in De La Rosa and gave some weight to the issue of the future dangerousness of the applicant. This is not at all surprising against a background of repeated, violent offending, where an AVO and bail conditions in place seem to have made no difference to this offender’s willingness to attack, detain, humiliate, terrorise and rape his partner in the presence of her children.

13. [41]

    In some respects the mental health evidence was incomplete, but his Honour was required to take into account such evidence as was before him. It was open to him to find that the applicant presented as a risk, despite some demonstrated improvement in custody where he is under medication, supervision and the structured circumstances of custody away from his wife.

14. [42]

    His Honour made a generous finding that the custodial sentence may weigh more heavily upon the applicant. He specifically declined to find that the applicant’s mental health could underpin a finding that the applicant was not an appropriate vehicle for the expression of general and specific deterrence, as is well within his discretion to so find, particularly given the High Court’s observations in Munda, and the nature of the offending.

15. [43]

    There is no requirement based on De La Rosa, that where there is a finding by a court that a person’s mental health contributed to the commission of the offence in a material way, that the offender’s culpability must be reduced; only that it may be reduced. Having considered the relevant evidence, the sentencing judge concluded that the evidence warranted a slight reduction in the applicant’s moral culpability.

16. [44]

    Such a finding was clearly open to him and was the result of weighing the various competing considerations, which is very much a matter within the province and discretion of the sentencing judge.

17. [45]

    There is nothing in the sentence imposed that suggests no such reduction was applied. The offending was very serious, as reflected in the maximum sentences the legislature has chosen to impose for such offending.

18. [46]

    His Honour’s approach was consistent with authority. No error has been demonstrated. Ground 1 must be dismissed.

Grounds 2 and 3: Special circumstances

1. [47]

   The applicant submitted that the Remarks on Sentence betray a lack of any clear finding of special circumstances, and the effect any such finding had upon the sentence imposed is not evident. Because of this approach, there was error in setting an excessive non-parole period. This had the effect of depriving the applicant of the benefit of any special circumstances his Honour may have found.

2. [48]

   Alternatively, his Honour having made a finding of special circumstances failed to adequately alter the statutory ratio in a manner appropriately reflecting his finding.

3. [49]

   As stated in R v GDR (1994) 35 NSWLR 376 at 381, an explicit addressing within the sentencing remarks of the length of the parole period as a proportion of the total, in circumstances where it is less than one third of the non-parole period, is required. Whilst it was acknowledged that there is no principle of law that requires that a parole period must not be less than one third of the non-parole period, it is desirable to address what approach has been applied, lest it be considered that there was an error of oversight or omission. In support of this submission reliance was placed on Wakefield v R [2010] NSWCCA 12 at [26]; Briggs v R [2010] NSWCCA 250 (“Briggs”) at [34]; Etchell v R (2010) 205 A Crim R 138; [2010] NSWCCA 262 at [49]-[50] and Brennan v R [2018] NSWCCA 22 (“Brennan”) at [69].

4. [50]

   The sentencing judge’s silence on this aspect is submitted to be something that leads to a “sense of disquiet that he may have overlooked giving appropriate focus to the statutory ratio”, as was the case identified in Briggs per Fullerton J at [34].

5. [51]

   Given the findings made about the applicant’s mental health and ongoing risk to the community, there is a recognised need for the applicant to undergo suitable rehabilitative treatment. That amounts to special circumstances which ought to have resulted in a variation of the statutory ratio to reflect that the applicant would benefit from treatment while in full-time custody, but he may not receive it due to factors out of his control: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [57]-[58].

6. [52]

   The Crown submitted that it is well-established that a finding of special circumstances is discretionary in nature and the degree to which the ratio of the non-parole period to the head sentence is varied is also discretionary and very much a matter for the sentencing judge. As noted in R v Fidow [2004] NSWCCA 172 (“Fidow”) at [18]-[24], particularly at [19] per Spigelman CJ (reiterating his earlier statement in R v Simpson (2000) 153 NSWLR 704; [2001] NSWCCA 534 (“Simpson”) at [73]):

7. [53]

   As pointed out by Johnson J (with whom McClellan CJ at CL and Bellew J agreed) in R v GWM [2012] NSWCCA 240 (“GWM”) at [118]:

8. [54]

   Similar observations were made in Simpson at [65] per Spigelman CJ:

9. [55]

   It is evident that the sentencing judge expressly considered the submissions made about special circumstances and decided that there should be an adjustment made, as set out in his remarks at [74]-[76]. Contrary to the applicant’s submissions, the length of the adjustment is clear, being a reduction in the non-parole period of 6 months from the 7 years and 6 months that would have been 75% of the aggregate head sentence.

10. [56]

    The Court was required to ensure that it did not “double count” mental health considerations already taken into account in imposing the sentence. As stated by Spigelman CJ in Fidow at [18]:

11. [57]

    As observed by Spigelman CJ in R v Cramp [2004] NSWCCA 264 at [31]:

12. [58]

    There are many obvious reasons why this must be so. Aspects of the evidence led in the applicant’s subjective case had countervailing factors that had to be weighed. Treatment in custody had brought about an acknowledged improvement in the applicant’s mental state, both objectively and subjectively but he had been unwell in the community. He was not so unwell, however, that he could not plan and execute his crimes with some resourcefulness to avoid detection. He arrived and left in darkness, capturing SM and her children when he knew that they would be at home, 3 days before his previous domestic violence matter was listed before the court. All of these considerations are relevant to the criminality, and thus need to be reflected in the minimum period in custody, “having regard to all the purposes of punishment and not simply his rehabilitation” as observed by Johnson J in GWM.

13. [59]

    These are the type of considerations that comprise part of the required instinctive synthesis. They are not matters capable of specific, “plus and minus” equations of the type that seems to be implied by the applicant’s submission are required to be set out in the ROS.

14. [60]

    However, contrary to what was submitted by the applicant, his Honour’s approach to this task was clearly articulated. He accepted the Crown’s submissions and concluded that it would be appropriate to provide a “minor adjustment” to the statutory ratio. There was no need for him to provide lengthy reasons for doing so: Brennan at [40].

15. [61]

    It is simply not correct to argue, as the applicant does, that there was “no effective adjustment made to reflect his finding of special circumstances”. There was clearly an adjustment of 6 months. Six months is a significant additional period of time to add to the potential time in the community under the assistance of parole supervision. There is no error, manifest or otherwise, in structuring the sentence as his Honour did.

16. [62]

    Grounds 2 and 3 are not made out.

Orders

1. [63]

   I propose the following orders:

   1. (1)

      Leave to appeal sentence granted

   2. (2)

      Appeal dismissed