Hazell v R

1. [1]

   HOEBEN CJ at CL: I agree with Harrison J.

2. [2]

   HARRISON J: The applicant was sentenced by his Honour Justice Blanch in the District Court of New South Wales on 17 December 2013 as follows:

   1. (1)

      On a count of assault occasioning actual bodily harm to a fixed term of imprisonment of 2 years commencing on 5 January 2013 and expiring on 4 January 2015. This is an offence contrary to s 59(1) of the Crimes Act 1900 and carries a maximum penalty of 5 years imprisonment.

   2. (2)

      On a count of aggravated detain for advantage to a non-parole period of 4 years commencing on 5 January 2013 and expiring on 4 January 2017 with an additional term of 2 years expiring on 4 January 2019. This is an offence contrary to s 86(2)(b) of the Crimes Act and carries a maximum penalty of 20 years imprisonment.

   3. (3)

      On a count of reckless wounding to a fixed term of imprisonment of 3 years commencing on 5 January 2013 expiring on 4 January 2016. This is an offence contrary to s 35(4) of the Crimes Act and carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years.

3. [3]

   The applicant was therefore sentenced to a total sentence of 6 years imprisonment commencing on 5 January 2013 and expiring on 4 January 2019, with a total non-parole period of 4 years expiring on 4 January 2017.

4. [4]

   All offences occurred on 5 January 2013 and the applicant has been in custody since his arrest on that day. He pleaded guilty to all three offences in circumstances attracting a 25 percent discount. The applicant contends that the sentences imposed were attended by error and liable to be set aside as manifestly excessive. He seeks leave to appeal and has raised three grounds of appeal as follows:

   1. (1)

      In considering the applicant’s mental health issues, his Honour erred in failing to take into account:

   2. (2)

      The sentences imposed were otherwise manifestly excessive.

   3. (3)

      The learned sentencing judge erred in declining to set a non-parole period for the third count being an offence that carried a standard non-parole period.

Background

1. [5]

   His Honour recited the facts in uncontroversial terms. Although his Honour’s remarks are detailed, they are particularly instructive for present purposes. At pages 1 - 4 of his sentencing remarks his Honour described what happened as follows:

2. [6]

   The applicant’s criminal history was detailed in a pre-sentence report that was provided to his Honour. The applicant was born in March 1985 and was 28 years of age when sentenced. He had what his Honour considered to be a significant criminal history. The applicant was previously sentenced on 28 May 2010 at the Sydney District Court for maliciously inflicting grievous bodily harm to a term of imprisonment of 4 years and 18 days with a non-parole period of 2 years and 9 days. He was released on parole on 6 July 2011. His Honour considered that offending to have involved the sort of violence for which his Honour was required to sentence him. The applicant had a history of other offences that his Honour described as “relating to violence or being unable to control himself” which his Honour characterised as “a matter of concern.”

Ground 1

1. [7]

   His Honour specifically referred to the Probation and Parole report that referred to the applicant’s background in these terms:

2. [8]

   The report of Dr Furst dated 25 September 2013 is central to this ground of appeal. It deals with the applicant’s condition in more detail. As his Honour observed, the report indicates that the applicant’s father was an alcoholic who was very violent towards him, subjecting him to regular physical abuse and domestic violence episodes in the household. The applicant had learning difficulties at school, smoked some cannabis from the age of 15, smoking significant amounts by the age of 18. His cannabis use was associated with transient paranoid symptoms. The applicant used amphetamines and ice from the age of 18, as well as cocaine. He drank heavily from the age of 14.

3. [9]

   Dr Furst observed that the applicant was unable to give details of the offences because he could not remember. He also noted that after the applicant went into gaol he went to the Acute Crisis Management Unit and was on suicide watch for a period of time. He remained there for five months.

4. [10]

   Dr Furst reviewed other reports that had been prepared. They included a report by Dr Allnutt in 2010 indicating an extremely low level of intellectual functioning. Dr Allnutt also thought that there was some paranoid thinking but could not be certain. Dr Furst also referred to a report by Dr Thomas Oldtree Clark dated 1 March 2013. Dr Clark’s conclusion was that the applicant suffered from schizophrenia although Dr Furst did not consider that diagnosis to have been clearly articulated, particularly in the light of atypical features in presentation, heavy substance abuse, low intellectual functioning and apparent personality dysfunction.

5. [11]

   At page seven of his sentencing remarks, his Honour said this:

6. [12]

   In the present circumstances the principles to apply are not in doubt: see Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 at [177]. The burden of the applicant’s contentions is that his Honour failed to apply the principles in this case.

7. [13]

   Dr Furst drew a causal link between the applicant’s mental state and the offending conduct, in association with substance and alcohol abuse. The applicant contended that his Honour did not consider this. It was also contended that his Honour failed to consider that a custodial sentence would weigh more heavily upon the applicant given his conditions.

8. [14]

   However, his Honour included the following passage in his sentencing remarks:

9. [15]

   His Honour went on to say this:

10. [16]

    Finally, as counsel for the applicant has pointed out, his Honour recommended that a copy of the reports of doctors Furst and Hepner should be attached to the warrants so that they go to the gaol with the applicant in order that the prison authorities are aware of his mental health and related problems.

11. [17]

    In my opinion it is abundantly clear that his Honour was aware that he was dealing with an offender with significant and well documented mental health and intellectual issues, associated as well with substance and alcohol abuse. It is not to my mind an error for a sentencing judge in such circumstances to fail in effect to refer to and recite on a point by point basis the factors so clearly identified and explained in De La Rosa. Putting aside the issue of whether his Honour had before him specific evidence of the way in which the applicant’s time in custody would be more onerous for him in the circumstances, it seems to me to be inherent in what his Honour has said that he has taken that (presently assumed but unproved) prospect into account. His Honour’s sentencing remarks are replete with references to medical reports and the competing concerns about the extent of the applicant’s several disabilities. A failure by a sentencing judge in general, or this judge in particular, to articulate the details of his concerns, within the structure of a thorough consideration of the applicant’s particular circumstances, does not generally constitute error and does not do so here. In fact, on one view his Honour’s specific mention that “there should also be a discount where it is found that there are matters affecting his intellectual functioning” is arguably standing alone a complete answer to this ground of appeal.

12. [18]

    It is also clear that his Honour’s reasoning sufficiently accommodated the prospect that the offending was linked to the applicant’s mental health issues. The fact that he does not say so in terms does not amount to an error in this case. That is for the simple but significant reason that none of the medical experts says so in as many words. Dr Furst’s opinion about this is linked to alcohol and substance abuse, as follows:

13. [19]

    However, there would appear to be little doubt that the offences were committed by an offender with serious mental health and related problems and it would be unrealistic to fail to proceed upon the basis that the two were connected to some extent at least. In this respect I consider that there is a clear theme running throughout his Honour’s careful analysis that recognises such a connection. His Honour did not fail to take it into account. Rather, the seriousness of the offending and the applicant’s criminal history would appear to have been factors that required the imposition of a proper sentence notwithstanding the special and particular circumstances of the applicant. There is not in my view any basis to conclude that his Honour misapprehended the relationship between these competing factors or misapplied the respective emphases to be given to them.

Ground 2

1. [20]

   I am unable to accept the submission that the overall sentence in this case is manifestly excessive. The circumstances of the offending are referred to earlier. The mitigating personal circumstances of the applicant were considered by his Honour. The applicant also received the not inconsiderable benefit of significant concurrency, with all sentences commencing on the same date, so that the applicant’s sentence in practical terms coincides, and is coextensive, with the individual sentence for the aggravated detain for advantage offence. As already noted, that is an offence contrary to s 86(2) (b) of the Crimes Act and carries a maximum penalty of 20 years imprisonment.

2. [21]

   It is clear that the applicant subjected the victim to a violent attack over a sustained period. In that last respect I accept that there may be some doubt about the precise length of time over which the events took place but I am satisfied that the description I have chosen is accurate.

3. [22]

   I cannot accept in all of the circumstances of this case that the sentences imposed upon the applicant were unreasonable or plainly unjust. On one available view, the sentences were lenient. The applicant used a knife to terrify the victim, amounting to a serious aggravating feature of the offending. The applicant was also on parole at the time of the commission of these offences for earlier offences involving violence. There is nothing apparent to me to indicate that his Honour’s sentencing discretion was not properly exercised.

Ground 3

1. [23]

   This ground is predicated upon the expectation that this Court would decide to re-sentence the applicant. For reasons that will be apparent, the ground has no independent utility unless resentencing takes place, having regard to the sentences actually imposed by his Honour and the structure of those sentences. It is therefore unnecessary further to consider this ground.

Conclusion

1. [24]

   In my opinion the following orders should be made:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [25]

   R A HULME J: I agree with Harrison J.