Harkin v R

HOEBEN CJ at CL:

At the time of the offences, the applicant was on conditional liberty on the following bonds:

His Honour revoked the bonds and imposed the following:

With respect to the reckless wounding causing grievous bodily harm in company and the affray offences, his Honour imposed an aggregate sentence of 6 years imprisonment to commence on 22 April 2019 and expire on 21 April 2025 with a non-parole period of 4 years to expire on 21 April 2023 (wholly cumulative on the fixed term for the 2018 common assault). The aggregate non-parole period was 66.7 per cent of the aggregate head sentence.

The indicative sentence for the reckless wounding causing grievous bodily harm in company offence, after the deduction for the plea of guilty, was 5 years. His Honour did not state an indicative non-parole period (which did not invalidate the aggregate sentence – CSP Act – s 54B(4), 54B(7)).

The indicative sentence for the affray, after the plea of guilty, was 18 months.

The effective sentence for all matters was a head sentence of 6 years and 6 months, commencing on 22 October 2018 and expiring on 21 April 2023, with an effective non-parole period of 4 years and 6 months expiring on 21 April 2023.

The applicant seeks leave to appeal against that sentence on the following grounds:

An agreed statement of facts signed by the applicant was placed before the court. In summary, the applicant and the victim, Mr Munro, were known to one another. They had been socialising in different locations on 21 October 2018. At 3:10am they were socialising together at the entrance to the Village Hostel on Orwell Street, Potts Point with two other men, Mr Duque and Mr Leonard, who had been in the company of the applicant.

At about 3:16am, the conversation between the victim and the applicant became heated with the victim being heard to yell “F--- off, f--- off” and “I’m gonna kill you mother---er” and the applicant telling the victim “F---off, get, get away from me ... don’t come anywhere near me”.

The victim was holding onto the applicant’s hoodie when the applicant punched him in the face and shoulder and swung another punch towards his face before they moved onto the road some distance apart. The victim picked up a beer bottle and threw it in the direction of the applicant. Mr Duque stood in front of the victim and kicked out at him. The victim threw a second bottle towards the applicant which struck him on the side of the head causing a deep wound that later required sutures. The victim pleaded guilty in the Local Court to reckless wounding. (Hospital notes from the following day of the applicant noted a deep laceration to the right temporal area requiring sutures and a dislocated right shoulder).

Bystanders kept the two men apart and the victim was led into the Village Hostel. The applicant yelled at the victim that the victim had just tried to kill him. The applicant looked through the windows of the hostel but walked away at 3:18am (Mr Leonard and Mr Duque stayed at the entrance to the hostel). Much of that incident and the subsequent incident were captured on CCTV.

The applicant then entered the Central Sydney Backpackers Hostel at 3:24am, used a towel to wipe the floor and then obtained a box-cutter knife from his belongings before re-emerging onto the street and talking with Mr Duque about half way back to the Village Hostel.

The victim emerged from the Village Hostel at around 3:24am and picked up a mug and threw it at the applicant. Mr Duque approached and kicked the victim. The applicant said “All right, let’s go, c---.”

The affray then took place with Mr Duque and Mr Leonard assisting the applicant by holding the victim. The applicant threw one punch towards the victim’s head and Mr Leonard threw two punches towards his head. The applicant tried to hold the victim and attempted to kick him after taking a running jump at him. The scuffle moved down the street and around the corner, until the applicant slashed at the victim with the box-cutter. More punches and kicks were administered to the victim by a number of people. When bystanders tried to wrestle the box-cutter away from the applicant he told them “No f--- off, I’m not dropping anything”. The applicant and his two companions ran off towards the Central Sydney Backpackers Hostel.

Police attended a short time later and observed a large amount of blood on the kerb, the wall and coming from the victim’s head, neck, chest and back. He was treated at hospital and sutured for the following injuries, which were consistent with the use of a sharp object:

The victim’s face, chest, shoulders, scalp and back required sutures. He was discharged after three days and was left with significant, permanent scarring together with ongoing pain in his back. Colour photographs of the victim’s injuries were provided to the sentencing court and to this Court. They were extremely graphic and showed extensive wounding.

The applicant later contacted police and gave a version in which he claimed that he was provoked by the victim.

The applicant claimed in evidence during the sentencing proceedings when questioned by the sentencing judge, that he carried the box-cutter just to add more weight to his fist, to make a more damaging punch. As can be seen from the sentencing judgment, his Honour rejected this explanation and found “that it's very, very obvious that he has repeatedly used that tool not to add weight to his fist, but to slice open the victim in various parts of his body” (Sentence judgment [41]). His Honour concluded that the reckless wounding was “beyond the mid-range of objective seriousness” (Sentence judgment [42]). He assessed the affray as “below the mid-range of objective seriousness” (Sentence judgment [43]).

The Crown tendered the fact sheets relating to the breaches of bond. These can be summarised as follows.

The assault took place at Chatswood train station. The applicant abused the victim who attempted to dismiss the applicant and push him away. The applicant became enraged and pushed the victim with both hands. When the victim attempted to punch the applicant, the applicant grabbed hold of him, swung him around and pushed him onto the ground. The applicant kicked him twice in the stomach and punched him with a closed fist several times before the victim ran away.

This offence took place at a bus stop at Coogee when the applicant assaulted a 17 year old female who was not known to him. At about 12:30am she was seated at the bus stop with a group of friends. The applicant approached the victim and told her how pretty she was and moved his face to within 20cm of her. His speech was slurred and he was obviously intoxicated. When the victim gently placed her hands on his shoulders and attempted to guide him away saying “Please go, I don’t want to talk to you” the applicant yelled at her and punched her in the forehead. The victim fell to the ground and her friends held the applicant until police arrived.

The possess prohibited drug offence took place on 4 July 2018 at Kings Cross train station when the applicant appeared to police to have deliberately avoided their sniffer dog. After being questioned by police, the applicant was found to have 1.9g of cannabis in a small plastic bag.

As indicated, the applicant gave evidence in the sentence proceedings. He said that he had stopped his medication before the offences and was smoking cannabis. He said that he had not drunk to excess on the night. He said that he was living at the Central Sydney Backpackers Hostel and was working part time. He explained that his attack on the victim was due to fear and that the fear had taken over. He told the court that this was his first time in custody.

The sentencing judge found that the applicant lacked insight into his offending and had no remorse for the earlier assaults and for what had occurred on the night in question. In relation to the box-cutter, his Honour said:

As well as the applicant’s own testimony, there was a considerable amount of medical material placed before the sentencing judge. There was a report prepared for the 2016 common assault charge, dated 23 November 2016, by a psychologist, Professor Hayes. In that report, Professor Hayes referred to an earlier assessment in 2004. The applicant told Professor Hayes that he drank alcohol occasionally and smoked marijuana in order to relax.

He told Professor Hayes that his prescribed medications were “not doing enough”. She opined that the applicant had a “long term history of cannabis use”. She referred to a 2004 diagnosis of severe anxiety disorder, severe depression and post traumatic stress disorder. She did not identify the author of that diagnosis but it appears that it was her diagnosis in relation to a victim’s compensation proceeding. Professor Hayes noted that the applicant claimed self-defence for his actions and “demonstrated little insight into the incident”. Professor Hayes further found that he had “not demonstrated a high level of motivation to participate in and persist with, appropriate mental health interventions” in previous years. She diagnosed a continuing “mild anxiety disorder with panic attacks, mild depression and mild PTSD which were under control and for which he receives medication”.

There was a pre-sentence report of 21 February 2017 by Mr Issenmann in which the applicant referred to having undergone psychiatric treatment since 2012 (Dr Henson). He admitted to the historical use of cannabis, methamphetamines and cocaine but said he had not consumed any of those substances for over 12 months.

There were reports prepared for the 2018 common assault offence at Coogee. One of those was a breach report by Ms Ross, dated 26 June 2018. In that report, the applicant accepted that he had been drinking heavily, he intended to significantly reduce his alcohol intake and said that he had not consumed cannabis, methamphetamine or cocaine for some time. He said he was not on his medication at the time of the offence because his psychiatrist had taken him off medication for a trial period.

There was a psychiatric report to the applicant’s solicitor setting out a proposed management and treatment regime by Dr Henson, a psychiatrist, dated 15 June 2018. Dr Henson recorded that he had first seen the applicant in 2012 and that he had discussed this incident at Coogee with him. Dr Henson referred to “a history of psychiatric illness and significant psychological disorder as a result of emotional and physical abuse from his step-father, and an earlier diagnoses (again without referring to the author) of “Major Depression, Anxiety Disorder, Complex Post Traumatic Stress Disorder, Psychiatric Illness/Mental Illness with Recurring Paranoid Thinking and that he had undergone hospital care and treatment with medication and psychological therapies”. Dr Henson was of the opinion that as of the date of his report, the applicant had a mental impairment (depression, anxiety, post traumatic stress disorder, psychiatric illness and limited social capabilities).

There were also reports prepared for the current proceedings. There was another short letter from Dr Henson, dated 3 December 2018, addressed to the applicant’s solicitor, in which he referred to “significant childhood psychological trauma and abuse”, and that “this had led to difficulties in his adult life”. Dr Henson referred to the applicant’s close relationship with his mother and to his adverse experiences in adult life. He established that “these adverse experiences had added to his anxiety levels, lack of trust and fear arising from some of his inter-relations with others” and these had continued in recent years. There was no opinion from Dr Henson that any psychiatric or other mental condition was a causative factor in the commission of the current offences.

There was a psychological report from Ms Dombrowski, dated 6 August 2019, addressed to the applicant’s solicitors. The applicant told her that on the night of the current offences he had “consumed four beers and one vodka throughout the course of the evening but did not feel intoxicated”. He had not taken his medication for two months before the current offences because his script ran out and he was regularly smoking cannabis. He claimed that the victim had engaged in intimidatory behaviour for two days leading up to the offences. He told Ms Dombrowski that when the victim had thrown the bottle at him and injured him, and he saw his own blood, he was reminded of his mother being assaulted by his step-father. He wanted to detain the victim for injuring him with the bottle and believed that he was using the box-cutter in self-defence when his shoulder became dislocated during the affray. The applicant conceded to Ms Dombrowski that he may have been paranoid and had “acted like a vigilante”. Ms Dombrowski referred to the psychological report of Dr Hayes, dated 5 July 2004, and to his history of the use of substances, primarily cannabis, and his consumption of alcohol before the present offences. Ms Dombrowski stated that “his Post Traumatic Stress Disorder and his alcohol use are key to understanding his behaviour at the time of the subject offences”. Ms Dombrowski did not otherwise opine that any psychiatric or psychological condition was a causal factor in the commission of the present offences.

The sentencing judge’s assessment of the medical reports was as follows:

In reaching his decision as to the objective seriousness of the offending, his Honour noted that it was no part of the applicant’s subjective case that the offending occurred in the course of any psychotic episode or paranoid state. His Honour further noted that if such a submission was made, he would reject it. His Honour was, however, satisfied that the offences occurred late at night at a time when the applicant was not intoxicated. His Honour rejected the suggestion that the wounding was the result of fear. His Honour found that apart from the almost unfounded, if not totally unfounded, suggestion in Ms Dombrowski’s report as to psychosis and impulsivity, none of this material excused his behaviour. His Honour specifically rejected the suggestion of psychosis in Ms Dombrowski‘s report because of the absence of support for it in any of the other reports.

In relation to the other aspects of the applicant’s subjective case, his Honour found that he did have an abusive childhood. His Honour accepted that the applicant had pleaded guilty at the earliest opportunity and was entitled to the benefit of a 25 per cent discount for the utilitarian value of the plea of guilty. His Honour noted that at the age of 37 the applicant had a criminal history such as would deny him leniency. This was appropriately conceded by his counsel.

His Honour found that there was no readily apparent significant remorse expressed by the applicant. His Honour found because of what the applicant had said in the witness box that there was an overall lack of insight into his behaviour. As a result, his Honour concluded that there was a strong likelihood of the applicant re-offending.

The sentencing judge had regard to s 3A of the CSP Act and formed the opinion that all of the purposes of sentencing were engaged on this occasion, i.e. the need to ensure that the offender was adequately punished, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions and to denounce the conduct while also recognising the harm done to the victim and the community.

His Honour noted that it was clear from the bonds and the circumstances which gave rise to them that the applicant had had the benefit of considerable leniency in the past. His Honour further noted that the applicant’s response to such leniency had been to continue to offend in not only a similar way but in a more serious and heightened fashion.

In fixing the sentences, his Honour had regard to the maximum penalty for each charge and in the case of the wounding offence, the standard non-parole period. His Honour was conscious of the fact that he should not punish the applicant twice for the same conduct, given that the affray and the wounding offences both occurred in the course of the same event. His Honour was also conscious of the need to have regard to the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 in relation to the wounding charge.

His Honour rejected the applicant’s submission that provocation operated as a mitigating circumstance in respect of the wounding offence. This was because on the agreed facts the applicant had left the place where he had been struck by the bottle, armed himself and then returned. In other words, the applicant having managed to extricate himself from a difficult situation did not do what a law abiding citizen would have done, i.e. to stay away from the scene and not arm himself and come back to attack the victim. His Honour concluded that the amount of time available to the applicant to consider his conduct dissipated any suggestion of justification even if it were permissible by way of provocation to attack the victim in the way in which he had.

The applicant submitted that the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194; at [177] (De La Rosa) applied so that the applicant’s mental illness was to be regarded as a mitigating factor. Specifically, the applicant relied upon the following propositions:

The applicant submitted that the medical reports, tendered on his behalf, established that he was suffering from a number of mental illnesses, including post traumatic stress disorder and that he was experiencing increased emotional reactivity (including anger and anxiety), impulsivity and paranoia associated with his PTSD at the time of the subject offending.

The applicant submitted that it followed that he was entitled to a significant reduction in sentence in order to take into account the principles in De La Rosa and that his Honour had erred in not giving effect to those principles by significantly reducing the sentence imposed on him.

There is a threshold difficulty in not only this ground of appeal but in the other grounds of appeal in that they all refer in varying degrees to “not adequately taking a matter into account”, “not giving adequate weight to a factor” and “failing to further apply the principle of totality in favour of the applicant”. Implicit in all of those grounds of appeal is an acceptance of the fact that the relevant principle was applied by the sentencing judge and that the complaint made is that insufficient weight was given to it.

The effect of pleading grounds of appeal in that way was to convert the appeal to one raising manifest excess and to require the establishment of House v R (1936) 55 CLR 499; [1936] HCA 40 error before the particular ground or grounds could be made out.

It follows from the above observation that the principles applicable to a claim for manifest excess apply to these grounds of appeal. Those principles were recently summarised by this Court in JJ v R [2020] NSWCCA 165 at [14] as follows:

With those principles in mind, and having regard to the focus in Ground 1 on moral culpability being affected by mental health, the statement of principle by Simpson J (with whom Adams and McCallum JJ agreed) in Aslan v R [2014] NSWCCA 114 (Aslan) is dispositive:

The clear effect of that statement of principle is that none of the principles in De La Rosa are absolute and the existence of a mental condition affecting a person does not lead to automatic favourable consequences for that person on sentence. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether in the specific case the mental condition has the consequence contended for.

What is significant in the present case, and which was highlighted by his Honour’s analysis of the medical reports, is that there was no statement of opinion either by Dr Henson or Ms Dombrowski that any mental condition of the applicant was causative of his offending behaviour. Nor was there any submission from the applicant’s counsel in the sentence proceedings to the effect that his moral culpability should be reduced because of a causative mental condition.

The written submissions of the applicant’s counsel, dated 14 August 2018, at [8] under “Subjective Features of the Offender” refer to the reports and quoted from Ms Dombrowski that “his PTSD [and alcohol consumption] is key to understanding his behaviour at the time of the offending”. Having said that, there was nothing in her report nor was it submitted on behalf of the applicant, that any of the mental conditions referred to by her played any causative role in the offending. In oral submissions, counsel for the applicant referred to his “mental condition” and a “combination of a number of mental conditions” without submitting that there was such a causative role, or that it was relevant in any other particular way as outlined in either De La Rosa or Aslan.

These were the very things which his Honour was looking for when he carefully examined the medical reports. His Honour specifically raised with counsel for the applicant what he thought Ms Dombrowski meant when she used the expression “his PTSD is key to understanding his behaviour at the time of the offending”. His Honour also raised with counsel that there was nothing contemporaneous with Ms Dombrowski’s diagnosis which supported a connection between that condition and his offending. While counsel for the applicant referred his Honour to the report of Dr Henson of 2018, there was nothing in that report which identified any psychiatric or other mental condition which was a causative factor in the commission of the offences.

In the sentencing judgment, his Honour specifically referred to the difficulty for the applicant in arguing that he acted in fear when he looked through the windows of Village Hostel, armed himself and returned to the scene of the earlier confrontation and sought to again engage with the victim. His Honour was not able to reconcile somebody being genuinely in fear with that conduct.

His Honour noted that Dr Henson’s 2018 report was little more than a bare statement of the history and of a conclusion without any critical analysis. His Honour then observed:

On that state of the evidence, and in the absence of any relevant submissions, the conclusion arrived at by his Honour that there was no link between the mental conditions and the offending was well open to him. Most particularly, there was no statement of opinion from either the psychiatrist or psychologist that the applicant’s mental condition played a causative role in the offending or reduced his moral culpability.

As has already been raised, the form of this ground of appeal has its problems. The difficulty which has arisen here was referred to by Spigelman CJ in Regina v Baker [2000] NSWCCA 85 (Baker) at [11] when he observed:

It follows from the above that this ground of appeal has not been made out.

The applicant relied upon the principle enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 where the Court said at [44]:

There was no doubt, as the applicant submitted, that there was evidence in the medical reports that the applicant had experienced a relatively happy childhood but that the situation deteriorated when at the age of eight or nine, his mother re-partnered to a man who was very physically and emotionally abusive and controlling and who had instilled a great deal of fear in the applicant. The attacks were often physical and were said to have occurred three times a week. The applicant submitted that in those circumstances, it was not sufficient for his Honour to simply say at [63] of the sentence judgment that he “takes into account the subjective circumstances of the offender”.

The criticism of his Honour’s approach is not entirely fair. His Honour did specifically deal with the applicant’s abusive background when he said in the sentencing judgment at [59]:

There is no basis for submitting that his Honour did not do as he said he would, i.e. take those matters into account.

Another problem for the applicant is that there was no specific submission made in the sentence proceedings which relied upon Bugmy v The Queen. Despite the absence of any specific submission to that effect, his Honour did in fact take the matter into account.

The respondent in submissions also made the point that while the applicant had a difficult background, particularly after his mother re-partnered, there was also evidence in the report by Ms Dombrowski that the applicant primarily lived with his mother and five step siblings, that she worked in an administrative role “and ensured her children were adequately cared for”. The applicant appears to have had a close and loving relationship with his mother. Accordingly, although the applicant had a difficult childhood, which from time to time involved the infliction of violence, the level of violence and disadvantage was not anything like that experienced by such persons as Mr Bugmy.

This ground has not been made out.

The applicant submitted that his Honour failed to have regard to the following mitigating factors associated with the offending:

The applicant noted that his Honour’s findings as to remorse were adverse to him:

The applicant also had regard to a further finding:

The applicant submitted that it was not open to his Honour to rely upon the opinion of Ms Hayes, which was directed towards an incident which happened in 2016 and not these offences. The applicant also submitted that his Honour placed too much weight on the evidence which the applicant gave concerning his intention when he took the box-cutter with him. The applicant submitted that his Honour failed to take into account the possible effects of him having suffered concussion as a result of the blow to the head when the bottle struck him.

The applicant submitted that his Honour had failed to give weight to his expressions of remorse in the agreed facts and to the court when he was giving evidence. The applicant submitted that lack of insight on the part of an offender goes to rehabilitation but is not a necessary prerequisite for remorse and that his Honour erred in taking it into account in the way in which he did.

The applicant noted that his Honour dealt with provocation in the sentence judgment as follows:

The applicant submitted that his Honour erred in not taking into account the effects on him of being hit on the head with the bottle by the victim, i.e. being lacerated and concussed. The applicant submitted that he was hit on the head by the bottle at about 3:17am and the wounding offence occurred at about 3:26am so that from a temporal point of view, the two were connected.

In relation to provocation, there was no evidence either in writing or orally to the effect that the applicant suffered concussion when struck by the bottle thrown by the victim. In that regard, the applicant should be bound by the way in which his case was run in the sentence proceedings.

The fact that following the initial confrontation, the applicant returned to his accommodation, armed himself and then went looking for the victim, is quite inconsistent with the operation of the principle of provocation. Accordingly, it was well open to his Honour to reject, as he did, that submission on behalf of the applicant.

In relation to the finding as to remorse, his Honour noted (Sentence judgment [21]) that the applicant had made excuses in his evidence regarding the Chatswood offence in relation to which Ms Hayes had provided a report. When referring to Ms Hayes, his Honour was highlighting a mode of behaviour which the applicant had engaged in, both in relation to the Chatswood offence and in relation to the wounding offence. This behaviour involved rationalising his conduct and not accepting responsibility for it and its consequences. The applicant’s evidence made it clear that rather than give thought to the consequences of what he had done and its effect on the victim, he lacked insight in that he was continuing to justify his behaviour even though he had pleaded guilty to the wounding offences and affray.

To the extent that the applicant was relying upon the provisions of s 21A(3)(i) of the CSP Act, his Honour was entitled to reject the applicant’s protestations of remorse because they were inconsistent with his evidence and his failure to in any way acknowledge the injury, loss and damage caused to the victim. It was common ground that the applicant carried the onus of persuading his Honour that he was genuinely remorseful and that this should be taken into account as a mitigating factor.

This ground of appeal has not been made out.

The applicant submitted that he was subject to an accumulation of sentences by virtue of the breach of two bonds which added, in effect, an additional 6 months to his sentence. The applicant submitted that this additional 6 month period needed to be taken into account when considering the question of totality.

The applicant submitted that an effective 4 years and 6 months minimum sentence did not adequately take into account the principle of totality, given that this was his first time in prison. The applicant submitted that there should have been much more concurrency in the sentence. The applicant submitted that when one looked at the starting point before the deduction for the utilitarian value of the plea of guilty, this was a very heavy sentence for a person going to prison for the first time. The applicant submitted that the finding of special circumstances made by the sentencing judge should have been reflected by a significantly shorter non-parole period of imprisonment than was actually awarded.

It was conceded by counsel for the applicant at first instance that there could be some degree of notional accumulation, even though there should be “a significant degree of concurrency”. Written submissions on that issue were put forward by both parties. His Honour was well aware of the issue and referred specifically to it in his sentence judgment at [69].

It is well established that sentencing courts have a discretion when applying the principle of totality as to how much concurrency and accumulation are to be allowed. This is particularly so when the sentence for one offence cannot comprehend fully the criminality involved in a separate offence.

The principle stated in Cahyadi v Regina (2007) 168 A Crim R 41; [2007] NSWCCA 1 (Cahyadi) at [27] remains valid and is frequently applied:

Cahyadi was cited with approval in Regina v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52] by Hall J (Tobias JA and Kirby J concurring). The summary of the case law relating to totality by Hall J is relevant in this case, especially subparagraph (8). Given the quite distinct instances of violence engaged in by the applicant on two occasions in public places, the sentence imposed did not offend the principle of totality.

The relevant principle as discussed by Hall J in Regina v XX is as follows:

In relation to the initial discussion as to manifest excess, the following factors were relevant to the seriousness of the offending and well justified the sentence imposed. The coloured photographs which were made available to the sentencing judge and this Court were of particular importance. When they are correlated with the description of the wounds and their depth, it is clear that this was a very serious example of wounding.

Other relevant factors were:

It follows from the above that this ground of appeal has not been made out.

The orders which I propose are:

BUTTON J: I agree with Hoeben CJ at CL, and with the additional analysis of N Adams J.

N ADAMS J: I have had the advantage of reading, in draft form, the reasons for judgment of Hoeben CJ at CL. I agree, for the reasons given by his Honour that the appeal should be dismissed. I would add two brief observations to clarify the basis upon which I agree that Grounds 1 and 2 have not been made out. Those grounds contended that the sentencing judge erred in both “not adequately” taking into account the ‘reduced moral culpability of the applicant by reasons of his mental health condition (ground 1) and “not adequately” taking into account the applicant’s “disadvantaged early life” (ground 2).

As for Ground 1, a significant volume of material was placed before the Sentencing Judge setting out the applicant’s mental health history. As Hoeben CJ at CL has already observed, none of that material suggested that the applicant was in a psychotic or paranoid state at the time of the offending. The high point of the evidence, insofar as any causal connection between the applicant’s mental illness and the commission of the offences was concerned, was an observation by the psychologist Ms Dombrowski that the applicant’s “PTSD and alcohol abuse” is “key” to understanding his behaviour at the time of the offending. The difficulty with this assertion is that the nature of any causal connection is not identified. Nor does it explain why, at 3am in the morning, the applicant went back home, armed himself and went out again to the same area where the victim had been and where a confrontation then took place. It is to be accepted that a symptom of PTSD can be hyper vigilance but at no stage was any submission made on this issue, nor, it seems to me, did the expert evidence explain the significance of the applicant’s PTSD to his offending.

As for Ground 2, it was not submitted to the sentencing judge that his Honour should have regard to the principles in Bugmy v The Queen. Recently in Kliendienst v R [2020] NSWCCA 98 this court (Simpson AJA, Rothman J and I) upheld a similar ground of appeal where no Bugmy submission was made at first instance. But the facts in that matter were very different; the offending was a spontaneous act of violence. In circumstances where no submission was made that the Bugmy principles applied, this was not a case where failure to mention them suggests error. In any event, the sentencing judge observed at [59] that he proposed to take into account the applicant’s “childhood trauma for which he is in no way responsible” and noted that he had already set out the details of the applicant’s childhood earlier in his Reasons. His Honour approached the matter consistent with that adopted by the Court (Bell P, Davies and I) in Dungay v R [2020] NSWCCA 209 at [153]: