Turner v R

1. [1]

   LEEMING JA: I agree with R S Hulme AJ.

2. [2]

   McCALLUM J: I agree with R S Hulme AJ.

3. [3]

   R S HULME AJ: Subject to any issue that arises out of delay in lodging documents, the Court has before it two applications for leave to appeal against sentence. The first relates to sentences imposed by English DCJ on 30 May 2013 in proceedings 2009/00058502. The second relates to sentences imposed by Syme DCJ on 15 November 2013 in proceedings 2011/00142641.

Lateness of the Applications

1. [4]

   The Notices of Appeal contained in the Appeal Book were filed on 28 January and 10 February 2016 and during the hearing the issue arose whether the Court should entertain appeals that seemed to be so late.

2. [5]

   However access to the Court records shows that Notices of Intention to Appeal were lodged on 20 November 2013 and 14 January 2014. The time for lodging Notices of Appeal was extended by the Registrar on 8 occasions, ultimately to 30 January 2016.

3. [6]

   The topic was also the subject of affidavits which revealed that on 7 November and 9 December 2013, Mr Turner advised the Aboriginal Legal Service that he wished to appeal against the severity of his sentence imposed by English DCJ and that in the interim and following month or so there were a number of conversations between solicitors and attempted contact with the Court registry. Arguably relevant to the topic of delay, is also the fact that the trial before Syme DCJ occurred in February 2013 and it was listed for sentence on 26 July, 16 August, 4 October and 15 November 2013. However I need not pursue this aspect. The Court records make it clear that both appeals are within time.

2009 Proceedings

1. [7]

   The sentences imposed by English DCJ were in respect of charges that arose out of an altercation which occurred on 5 May 2009 at the Kingswood TAFE between the Applicant and a Clinton Walker. In consequence the Applicant was charged with:-

2. [8]

   The Applicant pleaded guilty to the fourth charge. He stood for trial on the other charges. Taking the view that the injury to the victim did not amount to grievous bodily harm, her Honour directed that the Applicant be acquitted on the first charge. A jury found him not guilty on the second but convicted on the third. Pursuant to s 59(1) of the Crimes Act 1900 that charge carried a maximum penalty of imprisonment of 5 years.

3. [9]

   On 30 May 2013, her Honour sentenced the Applicant to a fixed term of imprisonment of 6 months commencing on 17 April 2011 for the mobile phone offence and, for the assault offence, imprisonment for 2 years 6 months and 16 days including a non-parole period of 1 year 10 months and 26 days, both such periods also commencing on 17 April 2011.

4. [10]

   Her Honour specified that the non-parole period of the longer sentence would expire on 14 March 2013 and that the Applicant would be eligible for parole on that day. As a matter of law both statements cannot be correct but nothing turns on that fact in the instant appeal.

5. [11]

   It is not apparent how her Honour arrived at the somewhat odd periods she nominated although it is clear that some pre-sentence custody was taken into account. Be that as it may, it was not suggested that the unusual nature of the periods bespoke error.

6. [12]

   The Applicant has sought leave to appeal against the sentences imposed by English DCJ upon the grounds:-

7. [13]

   Although the sentences imposed by English DCJ have expired, the duration of the non-parole period her Honour fixed was relied on to determine the commencement of the first of the sentences imposed by Syme DCJ, and no doubt influenced the commencement of the others so has a continuing relevance.

2009 Proceedings – Circumstances of Offending

1. [14]

   The circumstances of the offending involving Mr Walker and some of English DCJ’s findings and remarks were as follows.

2. [15]

   At the Kingswood TAFE the Applicant walked past the victim who said something to him. The Applicant went to the toilets and when he was walking out the victim opened the toilet door quickly causing injury. An argument ensued in which the victim was the aggressor. The Applicant turned away saying words to the effect “leave me alone.” The victim said something further and the Applicant turned and approached the victim. Punches were thrown, some of which caused marks to the Applicant’s face and one of which caused the victim to strike his head on a door jamb and to fall unconscious to the floor. While the victim lay unconscious, the Applicant, according to her Honour, punched and kicked the victim viciously. The Crown submissions to her Honour would indicate that there was in fact only one kick, although a powerful one. By-standers attempted to prevent further assault and the Applicant picked up the victim’s phone and threw it causing it to hit a wall and be destroyed. The Applicant’s demeanour at the time was described by Crown witnesses as “pretty angry” and “raging at the time”.

3. [16]

   The striking of his head on the door jamb occasioned a minimally displaced fracture of the victim’s right orbital floor. The victim also suffered lacerations to his facial area, some minor, and some of which required suturing. The victim was discharged from hospital on the same day and her Honour recorded that there was no victim impact statement indicating any substantial ongoing emotional harm suffered by the victim.

4. [17]

   The Applicant was born in July 1982. At the time the Applicant was sentenced by English DCJ (on 30 May 2013) the only significant matters on his record, the relevant charge dates and sentences imposed were:-

5. [18]

   Her Honour referred to the Applicant having “lengthy criminal antecedents” including in those the offences committed in 2010 and those tried before Syme DCJ and of which, by the time English DCJ came to sentence the Applicant he had been convicted. English DCJ continued:-

6. [19]

   Dr Furst’s reports to which reference was made were obtained in April and September 2011. Of these only that of 9 April 2011 was before this Court.

2009 Proceedings – Ground 1

1. [20]

   One issue that arose during the hearing of the appeal was whether the point the subject of this ground was ever taken before English DCJ.

2. [21]

   There was no reference to the matter in oral submissions made by defence counsel in the court below but written submissions he made have been lost. The result is that no-one knows if the point was ever taken before her Honour. In this situation the Court should consider the ground on its merits.

3. [22]

   There is no doubt that the charges of reckless wounding, assault occasioning actual bodily harm and that involving the mobile phone could have been dealt with in the Local Court where the maximum period of imprisonment that could have been imposed for each charge was 2 years and there is in her Honour’s remarks no reference to the fact. The charge of inflicting grievous bodily harm could not have been dealt with in the Local Court.

4. [23]

   It is also clear that as the charges arose out of the fight between the Applicant and Mr Walker, they could only sensibly be tried together. English DCJ concluded that the injury suffered by Mr Walker did not amount to grievous bodily harm but it is not so obvious that a fractured eye socket does not fall into that category that one can say the most serious of the charges should never have been brought.

5. [24]

   That an offence dealt with in the District Court could have been dealt with in the Local Court is commonly considered a matter relevant to a determination of the appropriate sentence. I confess I do not understand why in most cases this should be so. The objective seriousness of an offence and the offender’s subjective circumstances are the factors that should influence a determination of the appropriate sentence and, subject to the qualifications that follow, I can see no reason why, for a particular offence and offender, it should matter which Court imposes a sentence. Of course there is a jurisdictional limit on the Local Court as to the maximum sentence it can impose and there may be particular statutory provisions to which regard must otherwise be had.

6. [25]

   However, there are many cases which decide or reflect a view that the possibility that a matter could have been dealt with in the Local Court is relevant – see e.g. R v Crombie [1999] NSWCCA 297 at [16], Regina v Palmer [2005] NSWCCA 349 at [14]-[15], Regina v El Masri [2005] NSWCCA 167 at [30] and Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460. That said, in Baines v R [2016] NSWCCA 132 at [10] Basten JA observed that how the fact that a matter could have been dealt with in a Local Court contributes to mitigation is by no means clear. See also SM v R [2016] NSWCCA 171 at [26].

7. [26]

   Although I have not carried out an exhaustive search, the earliest case in this line I am aware of is R v Dalton-Morgan (unreported, NSWCCA, 14 December 1989) where however a particular statutory provision provided grounds for the decision reached. That factor does not seem to have been recognised in later cases, e. g. R v Jason Smith (unreported, NSWCCA, 11 September 1991) and R v Crombie. Be that as it may, the general principle was not the subject of debate in the instant application and I shall accordingly proceed in accordance with past practice.

8. [27]

   It was submitted on behalf of the Applicant that, whether or not there was any submission to English DCJ that she should take account of the fact that the assault occasioning actual bodily harm charge could have been dealt with in the Local Court, the relevant circumstances were before her Honour and she was therefore obliged to consider them, including the maximum penalty that was available had the matter been dealt with in the Local Court.

9. [28]

   In that connection counsel for the Applicant referred the Court to Cowan v R [2015] NSWCCA 118 at [40] and Ingrey v R [2016] NSWCCA 31. In the former case Bellew J, with the concurrence of Bathurst CJ and Simpson J, observed:-

10. [29]

    In the second Hoeben CJ at CL, with the concurrence of Adams and Fullerton JJ remarked:-

11. [30]

    In response the Crown relied on remarks of this Court in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [109] – [112] where Johnson J (with the concurrence of McClellan CJ at CL) observed:-

12. [31]

    I hesitate to add more remarks on the topic but it seems to me that the situation is this. A sentencing judge should refer to matters raised in evidence or submissions which have some reasonable prospect of affecting his conclusion. However, experience shows that there are many matters raised which do not answer this description and judges are not obliged to go through the solemn farce of referring to all matters that might possibly, if unreasonably, affect the result, just for the sake of demolishing or rejecting them.

13. [32]

    The sentence English DCJ imposed was well in excess of the jurisdiction of the Local Court. It follows that, if she had turned her mind to the topic, her Honour would have concluded that the limits on that jurisdiction made the case an inappropriate one to be dealt with in the lower Court. Furthermore, consistently with the sentence her Honour imposed there is no rational basis for concluding her decision would have been different if she did or had turned her mind to the possibility that the Local Court could have dealt with the matter. In the circumstances I do not see any error in her Honour omitting to mention the possibility that the nature of the charge meant it could have been dealt with in the Local Court, whether or not accompanying that mention with the observation that the case was one inappropriate to have been so dealt with.

14. [33]

    While the conclusion I have ultimately reached means that the case is one that could have been brought in the Local Court, it was not one which in my view should have been brought there – c.f McCullough v The Queen [2009] NSWCCA 94; 194 A Crim R 439 at [22].

15. [34]

    I would reject this ground of appeal.

2009 Proceedings – Ground 2

1. [35]

   So far as the assault offence is concerned, experience shows that not only is there is a very substantial degree of violence in the community but it has become common for victims unconscious or relatively helpless on the ground to be kicked by their assailants. No longer is attention paid to the old saying that “you don’t hit a man when he is down”, rather is the opportunity commonly taken by assailants to inflict further damage. Generally the kicking is with shoes or boots and not uncommonly the result is brain damage to the victim.

2. [36]

   It behoves the courts to actively discourage such cowardly and dangerous behaviour and in addressing the Applicant’s assault offence English DCJ was clearly correct in reflecting on the need for retribution, specific and other deterrence and protection of the community and in imposing a sentence that gave weight to these factors. However, her Honour had also to take into account the circumstances of the Applicant.

3. [37]

   Her Honour was clearly conscious of the Applicant’s troubled upbringing and psychiatric problems although apart from her recitation of the details, nothing that her Honour said indicates that she gave either of these factors any weight. There is no recognition in her Honour’s remarks of Dr Furst’s view, expressed in his report of 9 April 2011 that:-

4. [38]

   The Applicant did have a significant criminal record although I doubt the correctness of her Honour’s description of it as “lengthy”. More significantly, during the 8 years immediately prior to the offences for which he was being sentenced by English DCJ he had not been convicted of any serious offence. Given his past, that was a substantial achievement. Despite a less than ideal childhood education he had taken it upon himself to further his education in the respect described by English DCJ. He was entitled to have these matters taken into account but again there is nothing to indicate they were.

5. [39]

   Of course their absence was not one of the grounds of appeal and I mention them only to indicate factors that may well have contributed to the sentence imposed being as heavy as it was.

6. [40]

   The Applicant’s offending was unpremeditated and clearly inspired by the actions of Mr Walker. Certainly the Applicant should have exercised more self-control but it is inherently likely that the Applicant’s lack in this regard was significantly contributed to by his upbringing and mental conditions for which he was not primarily responsible. Thus I have no difficulty in accepting the opinion of Dr Furst which I have quoted.

7. [41]

   Her Honour recorded in her remarks that when the Applicant had been in custody previously he was prescribed Seroquel by a psychiatrist but that the Applicant stopped taking this medication in about March 2009. In that connection it may well be that the Applicant contributed to his loss of self-control in May of that year. However experience in the courts shows that discontinuing medication is a common feature of those suffering from schizophrenia and while this discontinuance is relevant I would not weigh it too heavily against the Applicant.

8. [42]

   One factor which may have operated in the Applicant’s favour more than it should have done was English DCJ’s conclusion that the Applicant was a paraplegic. So far as one can judge no challenge was made to that conclusion before her Honour and in any consideration of whether the sentences imposed by her Honour were manifestly excessive this Court should accept her Honour’s view.

9. [43]

   That said, matters raised in the trial before Syme DCJ tend to indicate that in fact the Applicant was not afflicted in the way he suggested. Insofar as this Court is involved in any resentencing of the Applicant it is unreal to think that we can adopt one approach in one resentencing but not in another and while in judging whether English DCJ erred, the Court should accept her Honour’s view on that topic, in any re-sentencing this Court should adopt whatever appears to the court to be correct. For reasons which will become apparent, in my view the Applicant has not been shown to suffer from paraplegia.

10. [44]

    When regard is had to all of the matters to which I have referred, the conclusion at which I have arrived is that the sentence imposed for the offence of assault occasioning actual bodily harm was manifestly excessive. Particularly relevant are circumstances of the Applicant’s upbringing, his mental health, the likely contribution of these factors to the offences for which English DCJ sentenced him, to the fact he reacted to provocation and that, prior to those offences, he made the efforts he did to redeem himself.

11. [45]

    Approaching the matter de novo, in the circumstances to which I have referred an appropriate sentence for the offence of assault occasioning actual bodily harm is imprisonment for 1 year including a non-parole period of 9 months.

12. [46]

    As the duration of the sentence imposed for the offence of damaging Mr Walker’s phone is entirely concurrent with, but less than, English DCJ imposed and I regard as appropriate for the assault offence, I would not give leave to appeal in respect of the lesser sentence.

2011 Proceedings

1. [47]

   On 27 April 2011 the Applicant became involved in an altercation with his former partner who may be referred to as “SE”. Arising out of events on that day he was charged with:-

2. [48]

   A jury convicted the Applicant on all counts and on 15 November 2013 Syme DCJ imposed the following sentences:-

3. [49]

   The effective sentence thus imposed for these four offences was imprisonment for 11 years and 9 months including a non-parole period of 7 years and 9 months. This sentence commenced on the day English DCJ had said that the non-parole period she imposed would end and that the Applicant would be eligible for parole. The effective non-parole period arising from the sentences imposed by English DCJ and Syme DCJ was about 9 years and 8 months.

4. [50]

   The relevant provisions of the Crimes Act 1900 and maximum penalties prescribed for the offences charged are :-

5. [51]

   For the offences the subject of counts 3 and 4, a standard non-parole period of 10 years has been prescribed.

6. [52]

   The grounds upon which the Applicant has sought leave to appeal against the sentences imposed by Syme DCJ are:-

7. [53]

   The circumstances of and leading to the offences are succinctly stated by her Honour:-

8. [54]

   Some other aspects of the incident appear from the “Crown Proposed Facts on Sentence”. Some time after SE arrived at the unit and observed the Applicant bleeding from his wrists, he wanted her to put one of the knives in his chest. Later he returned to the kitchen and again put a knife to his wrist.

9. [55]

   Other findings of her Honour bearing on the length of the sentences she imposed included:-

10. [56]

    The grounds of appeal are primarily concerned with the Applicant’s subjective circumstances and to that topic I now turn. During the sentencing hearing evidence on the topic was given by the Applicant and contained in reports of Dr Furst.

11. [57]

    One of Dr Furst’s reports was that dated 9 April 2011 which had been before English DCJ and provided most of the material I have recounted in [18] above. The other, dated 24 July 2013, was inspired by the conviction of the Applicant in the trial conducted before Syme DCJ. In it Dr Furst did not retreat from anything he had said in the earlier report, including his opinion as to the impact of the Applicant’s upbringing, included a diagnosis that the Applicant was suffering from paranoid schizophrenia, substance abuse and a personality disorder with antisocial and borderline traits and opined:-

12. [58]

    Asked to address the Applicant’s prospects of rehabilitation, Dr Furst said, inter alia:-

13. [59]

    Dr Furst also observed:-

14. [60]

    Although she accepted the diagnosis of schizophrenia Syme DCJ did not accept a deal of what Dr Furst had said. She remarked that Dr Furst’s opinion was apparently made in ignorance of some circumstances of the offending, and was based on Mr Turner’s version of events – a version a number of aspects of which her Honour rejected. Indeed at one stage her Honour said, “there is much to question in Mr Turner’s self-reported history”.

15. [61]

    One matter her Honour regarded as significant in this connection was the preparation in which the Applicant had engaged prior to the sexual offences. Whether her Honour was justified in this view is not apparent because Dr Furst expressly adverted to the fact that the version of events given by the Applicant was at odds with the Crown Case Statement. The Crown Case Statement was not included in the appeal papers.

16. [62]

    Included in her Honour’s remarks was the following:-

17. [63]

    The records to which her Honour referred were a bundle of clinical notes and other health records or reports emanating primarily from Justice Health, bearing dates between December 2010 and July 2013. Based on them Syme DCJ also recorded that the Applicant refused to attend appointments with psychiatrists, psychologists and mental health workers, refused to take prescribed medication and in recent times had refused physiotherapy for his claimed paralysis.

18. [64]

    It should be noted that omitted from the bundle were some early significant records that had been part of Exhibit 4 before English DCJ. These were an Inmate Profile Document and an Alerts Detailing Report from the Prison Authorities, and contain notations:-

19. [65]

    It is not appropriate to take these last mentioned documents into account in deciding whether the sentences imposed by Syme DCJ are affected by error but, as I have indicated above, in any re-sentencing, this Court should adopt whatever view of the Applicant’s incapacity and its consequences appears to the Court to be correct.

20. [66]

    Although quoting most of Dr Furst’s opinion that the Applicant:–

21. [67]

    Later her Honour observed:-

22. [68]

    Elsewhere her Honour remarked that the Applicant’s moral culpability was mildly diminished by his apparently unmedicated mental illness or depression.

23. [69]

    Syme DCJ also observed:-

24. [70]

    Based on the clinical notes to which I have referred her Honour concluded that the Applicant, though aware of the diagnosis of schizophrenia, chose not to take the medication prescribed for him and that his mental illness could be managed when he chose it to be. Her Honour observed that the Applicant was not exhibiting signs of mental illness but had been noted to be aggressive and uncooperative. She declined to make a finding that the Applicant would suffer more from incarceration due to his mental illness and recorded doubts whether the Applicant would comply with any mental health treatment plan on his release.

25. [71]

    These findings of her Honour reflected challenges that had had been made to the Applicant on a number of topics including his use of psychiatric and physiotherapy services and the taking of medication, his ability to walk and need for a wheelchair and the restrictions that being on protection involved. There was no challenge however to what Dr Furst had said concerning the Applicant’s childhood (substantially set out in [18] above) or the Applicant’s own evidence on the topic. Included in that evidence was that his childhood was:-

26. [72]

    Other evidence given by the Applicant and which was not the subject of challenge was that he had a history of self-harm extending back to when he first went to gaol when he was 18. A Concord Hospital “Discharge Referral” of October 2011, included in the documents emanating from Justice Health RSH, records that the Applicant “has had many self harm attempts”.

27. [73]

    Her Honour opined that the Applicant’s willingness to engage in therapy both for his mental illness and to modify his sexual and violent offending is in doubt and concluded that she was not of the view that the Applicant’s paralysis can be taken into account as an ameliorating factor when considering his risk of offending. Her Honour added:-

28. [74]

    Further conclusions at which her Honour arrived included the following:-

2011 Proceedings – Quadriplegia

1. [75]

   One topic to which considerable attention was given was whether after his arrest the Applicant had developed quadriplegia.

2. [76]

   Included in the Applicant’s evidence were statements to the effect that after finding out that SE was cheating on him, that his father was terminally ill and that he was going back to gaol for hitting SE he tried to commit suicide by overdosing on a variety of drugs, he lost consciousness and when he woke up in hospital he was handcuffed and unable to walk. He said that he had been unable to walk since, needing a wheelchair to move around.

3. [77]

   It was accepted that the Applicant’s claimed inability to use his legs was not supported by general medical opinion which found no physical cause for the apparent paraplegia. In the clinical notes produced from Justice Health the Applicant is recorded on 28/2/10 (which may be a misprint for 2012) as saying he had started to feel pain in his legs and was able to move his big toe in his right foot. Notes of 9 March 2012 record that he is getting sensation back in his toe and feet and had moved his right toe “today”. Syme DCJ recorded that the Applicant had fully functioning reflexes on testing and had been observed moving his feet independently.

4. [78]

   Addressing the Applicant’s apparent paraplegia, and assuming it was genuine, Dr Furst expressed the view that the Applicant suffered from a conversion disorder which he explained:-

5. [79]

   Although the relevant evidence is not before this Court in her remarks Syme DCJ observed that Dr Furst had also said that he “could not rule out the possibility of malingering” though if the Applicant was malingering it had gone on for an unusually long time. During the hearing before this Court it was not suggested Dr Furst had not made these remarks.

6. [80]

   Her Honour did not make a finding that the Applicant was malingering but recorded that whether the cause of the Applicant’s apparent paraplegia be conversion disorder or malingering the Applicant was expected to improve and any physical limitations he had would self-correct. She said that she was not of the view that his paralysis could be taken into account as an ameliorating factor when considering his risk of reoffending.

2011 Proceedings – Protection

1. [81]

   Syme DCJ recorded that the Applicant had been placed in protection following a complaint of assault but that more recently Corrective Services no longer recommended protection. Her Honour continued:-

2009 and 2011 Proceedings – Recent Affidavits

1. [82]

   During the hearing of the applications a number of affidavits were read on the usual basis, viz. that they are irrelevant to the issue of error by the sentencing judges but are relevant to any issue of re-sentence. One was from a Ms Betteridge that revealed that the Applicant had refused to supply urine in February 2014, failed to comply with prison routine in April 2014, and committed assaults in September 2014 and April 2015. None of the offences were bad although details of the September assault are worth recounting.

2. [83]

   A nurse attended on the Applicant’s cell with medication. She refused to give it to him unless he stood up. He refused, saying he could not and when she sought to leave he threw a cup of water at her.

3. [84]

   An affidavit from the Applicant was also read. He said that prison staff insisted he could walk and his wheelchair was taken away on 15 August 2014. Then he had to crawl to use the toilet or shower and missed appointments. He was moved to Junee Correctional Centre in January 2015. He began to regain feelings in his legs just before then and soon after arriving at Junee regained the ability to walk. After June 2015 and feeling safer because he was not in a wheelchair he elected to move to a less restrictive form of protection and has availed himself of facilities, including the gaol chess group and choir. He says since being in custody that he has been taking his prescribed medication, Amulsulpride for schizophrenia, Zoloft for depression, Zoccor for high cholesterol and magnesium tablets for cramps.

4. [85]

   The Applicant said that since moving to Junee he has completed a number of courses and since August 2015 he has been working as a painter. He has also put his name down to participate in the CUBIT program.

5. [86]

   The Applicant said that until 4 months prior to moving to Junee he was kept in his cell for 23 hours a day. Thereafter at the MRRC he was allowed out for 3 hours each day.

6. [87]

   Ms Betteridge also referred to a case plan dated 30 June 2015 which involved the Applicant being offered education but that he did not express interest in participating in any TAFE programs.

2011 Proceedings – Ground 1

1. [88]

   This ground is made out. All her Honour said concerning the Applicant’s family history was:-

2. [89]

   Having regard to the evidence that there was before her Honour, this was quite inadequate reference to, and consideration of, the topic. Nor are her Honour’s remarks as to the Applicant’s reliability a sufficient explanation for not saying more. As I indicated the Applicant was not challenged on Dr Furst’s or the Applicant’s own account of his upbringing.

3. [90]

   I have set out above some of Dr Furst’s views as to the significance of the Applicant’s childhood. Indeed one hardly needs evidence that exposure and subjection to appreciable violence while a child is likely to have lasting and detrimental impacts. And it would be surprising if parents who practised such violence ever inculcated in their children proper standards of self-control, resilience in the face of adversity, and as to the treatment of others.

4. [91]

   These factors were quite separate from, and additional to, the Applicant’s schizophrenia and were and are required to be taken into account in the sentencing of the Applicant. They were not.

2011 Proceedings – Ground 2

1. [92]

   I would uphold this ground also.

2. [93]

   Contrary to her Honour’s view it is notorious that being on protection generally carries a stigma that the person was there for conduct anathema to the general prison population, sometimes for offences against children – see R v Burchell (1987) 34 A Crim R 148; R v Totten [2003] NSWCCA 207 – but commonly because the person is thought to be a “dog” or informer. Persons who have been on protection are not given any presumption of innocence by the rest of the prison population and accordingly it is quite understandable that the Applicant may feel the need to remain on protection. In these circumstances, it is not unlikely that the Applicant will remain on some form of protection. That said, there are many degrees of it and the change in type which has already occurred demonstrates that it is in the highest degree unlikely that the Applicant will continue to suffer the same degree of restriction in the future as he has in the past.

3. [94]

   In that connection the Applicant gave evidence before Syme DCJ that, except for the not infrequent days when there was a lockdown and prisoners were confined to their cells all day, he was normally allowed out of his cell for only 2 hours per day. He said that this has continued since about May 2012.

4. [95]

   The uncertainty as to the nature of the conditions of future incarceration obviously made difficult any determination of what impact it should have on the length of the sentence to be imposed but, that said, protection is a factor that commonly arises and one that the Applicant was entitled to have taken into account.

2011 Proceedings – Ground 3

1. [96]

   I would not uphold this ground. As a factor in mitigation, the onus of establishing the ground, and the facts that underlay it, was on the Applicant. In the circumstances of the case this involved the Applicant showing that, on the balance of probabilities, the wheelchair was necessary and not the result of him malingering.

2. [97]

   Relevant in this regard were numerous findings of her Honour. She observed that “the history given by Mr Turner is unreliable” and contrasted his complaints about being unable to access psychiatric and psychological support with medical records that were in evidence. Her Honour noted another inconsistency between a complaint of Mr Turner to the effect a broken wheelchair was not replaced and the content of clinical notes. She remarked also on inconsistencies between accounts given to Dr Furst by Mr Turner as to the circumstances of his offence and treatment in custody with other evidence. She described other of Mr Turner’s evidence as “vague and contradictory”. She described Mr Turner as “manipulative and aggressive”.

3. [98]

   While undoubtedly some of her Honour’s remarks were directed towards the future, many had application to the past and though it appeared that the Applicant had not walked and had availed himself of a wheelchair for 2 years or so, it is clear that the Applicant did not satisfy the onus he bore on the topic of this ground.

2011 Proceedings – Ground 4

1. [99]

   Subject to remarks made later under this ground, the ground also should be upheld. Syme DCJ stated that the maximum period of imprisonment prescribed for assault occasioning actual bodily harm is 7 years. As I have already indicated, the maximum period of imprisonment prescribed is 5 years not 7 years as stated by her Honour.

2. [100]

   Although there are cases where it has been held that an erroneous statement as to the maximum penalty does not, of itself warrant another sentence in law – see e.g. Des Rosiers v R [2006] NSWCCA 16; 159 A Crim R 549 at [20]; Smith v R [2007] NSWCCA 138 at [34]; R v Couch-Clarke [2010] NSWCCA 288 at [39] – the maximum penalty is one of the guideposts to which sentencing judge are required have regard in imposing a sentence – Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. I would not readily infer a sentencing judge’s reference to it was not a factor taken into account and, if misstated, not something that influenced the sentence for that offence.

3. [101]

   However, I would not uphold a further submission that flowed from this ground, viz. that the error was liable to have influenced her Honour in the sentences she imposed for the offences the subject of the second, third and fourth charges. There is simply no basis for contending that the error the subject of this ground was not confined in its operation to the sentence imposed for the offence of assault.

4. [102]

   However, in her remarks her Honour said:-

5. [103]

   In these circumstances, the sentence imposed for the offence of assault occasioning actual bodily harm had no practical effect and I would refuse to grant leave to appeal against it.

2011 Proceedings – Ground 5

1. [104]

   All her Honour said on the topic of accumulation was as follows:-

2. [105]

   There would seem to have been no evidence before her Honour as to the sentence imposed for the 11 March 2011 events. Her reason for making the sentences she imposed concurrent with that sentence provide no explanation as to why her sentences were made entirely cumulative to those imposed by English DCJ and her Honour otherwise provided no reasons for this occurring.

3. [106]

   Of course, one possibility is that her Honour thought that the concurrency that was reflected in her sentence was sufficient but this is contradicted by her remarks that I have quoted above.

4. [107]

   It is highly unusual to simply aggregate sentences without reference to totality. However Syme DCJ made no reference to that topic and provided no reasons why the sentences she imposed should simply be accumulated on the effective non-parole period imposed by English DCJ.

5. [108]

   General principles of totality lead to the conclusion that her Honour erred.

2011 proceedings – Ground 6

1. [109]

   The conclusions at which I have arrived in respect of Grounds 1 and 2 make it unnecessary for me to pursue this ground. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 requires that I consider de novo the sentences appropriate for the Applicant’s offending. Of course in doing so I must accord due regard to her Honour’s primary findings.

2. [110]

   Undoubtedly a determination of appropriate sentences in this case is difficult. On the one side are the serious nature of the Applicant’s offending, the fact of four offences, the statutory guides and in particular the 10 years non-parole period, his criminal record, Syme DCJ’s findings as to the Applicant’s prospects of re-offending and the risk he poses to the complainant and her relatives. On the other are his upbringing and mental health although insofar as these argue for the possibility that he will continue to be a danger to the complainant or the community generally they do not operate only in the direction of leniency. Also arguing for lesser sentences are the Applicant’s previous achievement in redeeming himself and making positive efforts at Junee.

3. [111]

   The above list is not of course exhaustive. There was the impact on the complainant to which Syme DCJ adverted and I have referred to other factors above. I have paid attention to the Remarks on Sentence that have been canvassed and the dozens of pages of written and oral submissions advanced in the proceedings.

4. [112]

   One factor to which I have given no weight is the previous sexual relationship between SE and the Applicant. That such a relationship is entitled to weight in some circumstances is clear – NM v R [2012] NSWCCA 215 – but the luring of SE to the premises and the violent nature of what then transpired make the approach recognised in NM inappropriate.

5. [113]

   The Applicant’s actions preparatory to the offences committed in April 2011 led Syme DCJ to reject Dr Furst’s opinion that the Applicant was psychotic. On the other hand, nor could his mental faculties be regarded as close to normal. While jealousy inspired by a belief that the victim was having an affair and that his daughter did not belong to him may have had aspects of rationality, cutting himself with a knife and inviting the victim to push the knife into his chest did not, at least unless induced by major depression. Experience shows that many with schizophrenia do cease to take their medication and that fact should not be weighed too heavily against the Applicant. Particularly is that so when it appears that the medication prescribed at that stage had side effects that the Applicant found unpleasant.

6. [114]

   When to the Applicant’s mental disability is added the impact of his upbringing, the Applicant’s offending is not to be judged by normal standards.

7. [115]

   If the Applicant was malingering on the issue of paraplegia, it must have been demonstrated to him by now that doing so does not work and he has made life more difficult for himself. It is now over 5 years since the offences and 3 years since his trial so there has been a significant amount of time for his feelings toward the victim to moderate and at some time he does have to be released. His actions at Junee to some extent echo the efforts to improve himself that occurred before the offence dealt with by English DCJ.

8. [116]

   In these circumstances it seems to me that, in lieu of the sentences imposed by Syme DCJ, appropriate sentences for the sexual intercourse offences are concurrent terms of imprisonment for 8 years including non-parole periods of 5 years and for the attempted intercourse offence imprisonment for a fixed term of 4 years, and involving 9 months accumulation. On grounds of totality, I would commence the earliest of these sentences 4 months before the non-parole period of the sentence for what I may call the English DCJ offences concludes. The result will be that the Applicant will have an effective total non-parole period of 6 years and 2 months and a total sentence 3 years longer.

9. [117]

   Accordingly,