Martin v R

1. [1]

   HIDDEN J: I agree with Price J.

2. [2]

   PRICE J: Trevor Leonard Martin, the applicant seeks leave to appeal against the sentence imposed on him in the Sydney District Court on 24 May 2013. He applies for an extension of time for leave to appeal, which the Crown does not oppose.

3. [3]

   On 1 March 2012, the applicant was committed to stand trial in the Sydney District Court. However, before a trial date was set, the applicant offered to plead guilty to the following offences which the Crown accepted in full satisfaction of the indictment:

4. [4]

   After allowing a 25 per cent discount for the utilitarian value of the pleas of guilty, the judge sentenced the applicant as follows:

5. [5]

   The total effective sentence was 11 years consisting of a non-parole period of 7 years 6 months with a balance of term of 3 years 6 months. The earliest date that the applicant is eligible to be released on parole is 26 August 2019.

6. [6]

   The judge had found special circumstances being the partial accumulation of the sentences and the benefit to the community and the applicant “from him having a longer period of supervision while on parole” (ROS 10). Accordingly, the ratio of the total non-parole period to the total sentence was 72.7%.

The Grounds of Appeal

1. [7]

   The applicant relies on the following grounds of appeal:

FACTS

1. [8]

   An agreed statement of facts was tendered which her Honour recounted in her sentencing remarks. Shortly stated, the complainant was working as a prostitute in East Sydney when the applicant approached her and negotiated to pay her $70 in exchange for oral sex on him. In a nearby park, the applicant pulled down his pants and exposed his erect penis before handing $70 in cash to the complainant. The complainant put a condom on the applicant’s penis, which he put into her mouth whilst he kissed her right breast.

2. [9]

   After a few seconds, the applicant placed his right hand onto the left side of the complainant’s throat, with the thumb near her windpipe. The complainant continued performing oral sex. He then placed his left hand down onto the right side of the complainant’s throat with his thumb near her windpipe. The complainant became concerned and stopped performing oral sex. The applicant then squeezed both his hands tightly around the complainant’s throat cutting off the airway. She tried to fight back without success. The applicant pushed her backwards onto her back and maintained his hold on her throat. The complainant then lost consciousness.

3. [10]

   The applicant pulled up the complainant’s dress and pulled off her underwear. He moved her legs apart, got on top of her and penetrated her vagina with his penis. The applicant ejaculated into the condom he was still wearing.

4. [11]

   A short time later, the complainant regained consciousness. The applicant still had his hands around her throat and was on top of her. She felt his flaccid penis against her leg. After removing his hands from the complainant’s throat and the condom from his penis, the applicant pulled his pants up and said to the complainant:

5. [12]

   The applicant picked up the complainant’s handbag and the used condom and subsequently ran away. He dropped the used condom on the roadway.

6. [13]

   The complainant got up and ran east. She reported the matter to patrolling police who were in a car. The police discovered the condom, which was subsequently analysed to have DNA on it, which was identical to that of the applicant. The applicant could also not be excluded as a contributor to the DNA that was taken on a swab from the complainant’s right breast.

7. [14]

   On 14 May 2008, Dr Haselton, the applicant’s psychologist, advised police that he had concerns about the applicant’s behaviour. Dr Haselton stated that the applicant had admitted to him that he had recently had sexual intercourse with a prostitute and while doing it, he had squeezed her around the neck to an extent that it became dangerous. The applicant said that he had concerns that he might go too far in that he may kill someone. He also said that he had obtained an adrenalin charge from carrying out the choking.

8. [15]

   When interviewed by police on 11 June 2009, the applicant denied any assault but admitted to thinking about following people and assaulting them and that he had a strong desire to hurt people by hitting them over the head and wanting to do a “Charles Manson.”

Subjective Circumstances

1. [16]

   The applicant did not give evidence during the proceedings on sentence but reports from Professor David Greenberg and Dr Jonathon Adams, both forensic psychiatrists were tendered. Dr Mridula Kayal, a psychiatrist, gave evidence, as did Dr Adams.

2. [17]

   In her sentencing remarks, the judge recounted that the applicant’s childhood was marred by the death of his mother when he was eight and his subsequent removal from his family. He has four siblings with whom he has had no contact since then.

3. [18]

   The judge observed that the applicant’s criminal history as an adult was “fairly limited” (ROS 6), but her Honour noted he was convicted of manslaughter in 1972, indecent assault in 1993 and possession of prohibited drugs in 2009.

4. [19]

   Her Honour said (ROS 6):

5. [20]

   The applicant was born on 26 November 1955 and was 57 years old when sentenced.

6. [21]

   The material before the judge included the following:

The Psychiatric Evidence

1. [22]

   In her sentencing remarks, the judge reviewed the psychiatric evidence noting that that applicant had a well-documented and longstanding history of psychiatric problems. Her Honour observed that “the medical evidence diverges to some extent in identifying his precise diagnosis” (ROS 6-7).

2. [23]

   Her Honour mentioned that both Dr Adams (retained by the applicant) and Professor Greenberg (retained by the Crown) were of the opinion that the applicant’s problems were complex. Her Honour recounted Dr Adams’ summary of the applicant’s diagnostic formulation which appears in his second report (ex 2) (ROS 7):

3. [24]

   The judge quoted Dr Adams’ belief (ROS 7):

4. [25]

   Dr Adams’ opinion was that there were reasonable grounds to conclude that at the time of the offending, the applicant was suffering from a mental illness, namely an underlying schizophrenic illness. The judge quoted what was said by Professor Greenberg in his second report (ex D, 5):

5. [26]

   Her Honour noted that Professor Greenberg considered that there was a reasonable possibility that the applicant did not have a schizophrenic illness but rather some other form of psychosis. Her Honour said (ROS 8):

6. [27]

   In oral evidence before the judge, Dr Kayal said that there was likely an underlying schizophrenic illness. He also agreed that the applicant probably had a recurring depressive disorder and a probable paraphiliac disorder. After further quoting various passages from the reports of Dr Adams and Professor Greenberg, her Honour said (ROS 8):

Some further findings by the judge

1. [28]

   The judge considered that the robbery (count 1) was an opportunistic taking of the complainant’s handbag and assessed the objective gravity of the offence as being “at a low level” (ROS 5). As to count 2, her Honour said (ROS 5-6):

2. [29]

   As to the applicant’s prospects of rehabilitation, her Honour observed that the applicant’s mental health had stabilised since his remand in custody. She recounted that Dr Adams stated that the applicant’s prognosis depended on the applicant’s management in custody and outside the prison system. He would need ongoing psychiatric and psychological treatment and the input of other support services. Her Honour concluded that if all the recommendations of Dr Adams were put in place, both in custody and upon release, the applicant’s prospects for rehabilitation were reasonable and his risk of re-offending would be significantly reduced.

3. [30]

   These Grounds of Appeal may be conveniently dealt with together.

Argument

1. [31]

   Mr Turnbull SC, for the applicant submitted that the entirety of the remarks on sentence made by her Honour on the principles applicable to the role of mental illness in the applicant’s sentencing are stated in the quotation at [26] above. He contended that a fair reading of her Honour’s remarks supports the conclusion that her Honour was articulating a general principle of mandatory application. Mr Turnbull submitted that there is no support for such a principle in the authorities. He argued that the protection of the community is not a mandatory and aggravating consideration when sentencing an offender with a mental disorder; it is a factor, which is to be balanced against other factors.

2. [32]

   Another submission was that the majority in the decision Veen v The Queen (No 2) (“Veen (No 2)”) [1988] HCA 14; (1998) 164 CLR 465 (Mason CJ, Brennan, Dawson and Toohey JJ) articulated a nuanced approach which has been repeatedly affirmed by the court as the guiding principles in assessing the relationship between mental health and the protection of society. Mr Turnbull submitted that “the protection of the community is a discretionary matter and one which would intuitively and in practice apply in limited circumstances” (AWS 30).

3. [33]

   Mr Turnbull pointed out that her Honour did not refer to the test articulated in Veen (No 2) anywhere in her judgment, and in the course of her sentencing hearing, expressly disavowed its application. He submitted that her Honour appears to have erred in law in applying a wrong principle.

4. [34]

   Mr Ingram SC, for the Crown contended that the applicant’s submissions ignore her Honour’s consideration of the psychiatric evidence. He submitted that it could be seen from the material that was tendered during the proceedings on sentence, that the proceedings were dominated by the issue of the of the applicant’s mental illness.

5. [35]

   Another submission was that the protection of the community is but one of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and that the purposes of sentencing overlap and should not be considered in isolation.

6. [36]

   Mr Ingram submitted that her Honour correctly concluded that, notwithstanding the applicant’s mental illness, his criminal record did not of itself bear upon her sentencing discretion in the way that it had in Veen (No 2).

Consideration

1. [37]

   It is evident from the entirety of the judge’s sentencing remarks that her Honour was not articulating as a matter of general principle that the protection of the community is of increased importance when sentencing offenders suffering from mental disorders. Her Honour’s conclusion that protection of the community was of increased importance in the sentencing exercise was tailored to the circumstances of the applicant.

2. [38]

   In Director of Public Prosecutions (Cth) v De La Rosa (“De La Rosa”) [2010] NSWCCA 194; (2010) 273 ALR 324 at [177] (McClellan CJ at CL) summarised the principles that apply when an offender is suffering from a mental illness:

3. [39]

   During cross-examination, Dr Adams’ evidence included the following (T7 46-50; T8 1-14):

4. [40]

   The applicant’s complex psychiatric problems, the circumstances of the offence and the possibility of non-compliance with medication justified the weight placed by the judge on the protection of the community.

5. [41]

   There is no merit in the applicant’s complaint that the principles in Veen (No 2) were erroneously applied.

6. [42]

   In Veen (No 2), the majority said at 477 (Mason CJ, Brennan, Dawson and Toohey JJ) that a prior criminal record was relevant:

7. [43]

   During the proceedings on sentence, in oral discussion with the applicant’s counsel, the following exchange occurred (T15 23-39):

8. [44]

   The judge’s observation that “[t]his isn’t a Veen” was not a disavowal of the relevance of the applicant’s mental illness but merely an acknowledgement that his prior criminal history did not warrant increased weight being given to retribution, deterrence and protection of the community.

9. [45]

   I would dismiss Grounds 1 and 2 of the appeal.

Argument

1. [46]

   Mr Turnbull pointed out, that although no reference was made to any authority, her Honour correctly identified that “general deterrence has less weight” (ROS 8) when sentencing offenders with a mental illness. However, apart from this, he contended that no further mention was made to any of the principles relevant to the applicant’s mental health. Mr Turnbull submitted that her Honour failed to have regard to how this affected an assessment of the objective seriousness of the offences and the applicant’s moral culpability. Mr Turnbull relied on the relevant principles from the decisions of R v Hemsley [2004] NSWCCA 228; MDZ v Regina [2011] NSWCCA 243 and Ayshow v R [2011] NSWCCA 240.

2. [47]

   Mr Ingram submitted that this ground implies that because the judge did not expressly enunciate each, and all of the relevant principles when sentencing a mentally-ill offender, her Honour appears to have failed to take into account and apply those principles. Mr Ingram referred to the extensive consideration of the psychiatric evidence that her Honour summarised in her sentencing remarks. Mr Ingram argued that in the circumstances of this case, where the central issue was the applicant’s mental illness, and where her Honour spent more than two pages of her judgment discussing that issue and its relevance to the sentence to be imposed, the court would reject the submissions that the judge failed to take into account and apply the relevant legal principles.

Consideration:

1. [48]

   Where an offender suffers from a mental illness which contributes to the commission of an offence in a material way, the offender’s moral culpability may be reduced: De La Rosa at [177]; R v Hemsley at [33]. In Ayshow v R at [39] (Johnson J with whom Bathurst CJ and James J agreed) said:

2. [49]

   In MDZ v Regina [2011] NSWCCA 243 at [67] (Hall J with whom Tobias AJA and Johnson J agreed) said:

3. [50]

   The judge made no reference to the applicant’s moral culpability in her sentencing remarks nor did counsel who appeared for the applicant specifically submit that she should do so. The evidence however, before her Honour included the following:

4. [51]

   In his addendum report dated 18 March 2013, Dr Adams wrote (ex 3, 6.3):

5. [52]

   Professor Greenberg in his report dated 6 May 2013 opined (ex D, 6):

6. [53]

   It is evident from these opinions that the applicant’s mental disorders may have contributed to his offending. Although a specific submission was not made by the applicant’s counsel on this issue, the focus of the applicant’s case on sentence was his mental health. In my respectful opinion, the judge was obliged to expressly make some assessment as to whether the applicant’s moral culpability for the serious crimes that he committed was reduced by his mental condition. In assessing the objective seriousness of the offences, her Honour did not make any reference to the applicant’s mental health and erred in not doing so.

7. [54]

   I would uphold Ground 3 of the appeal. As specific error has been found, it is the duty of this court to exercise its independent discretion and to consider the appropriate sentence: Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451 at [42]-[43].

8. [55]

   Accordingly, it is not necessary to consider in detail Ground 4 of the appeal in which the applicant complains that the sentence for count 2 was manifestly excessive. The principal contention was that the undiscounted starting point of 14 years was outside the legitimate exercise of her Honour’s sentencing discretion. Another submission was that consideration of the relevant statistics (AWS, annex A) and like cases, support the contention of manifest excess. The Crown pointed to the objective seriousness of the offence and to the mitigating factors and submitted that the court would not be persuaded of the manifest excess of the sentence.

9. [56]

   These submissions will be taken into account with all other relevant matters in determining whether a lesser sentence is appropriate for the applicant and the offence.

Decision

1. [57]

   For the purpose of considering whether the sentence imposed by the judge is appropriate or that a lesser sentence is warranted in law, the objective and subjective considerations to be taken into account are disclosed from what I have written to this point.

2. [58]

   I agree with the judge’s assessment that count 2 is a very serious example of an offence contrary to s 61J(1) Crimes Act. The applicant inflicted considerable violence on the complainant before the sexual assault. He squeezed both his hands tightly around her throat cutting off the airway. She tried to fight back without success. The applicant pushed her onto her back and maintained his hold on her throat. The applicant then had penile sexual intercourse with his unconscious victim ejaculating into the condom that he was wearing. When she regained consciousness, the applicant still had his hands around her throat and was on top of her. He threatened to kill her if she screamed.

3. [59]

   Her Honour appears in the passage quoted at [27] above to have considered that the applicant’s use of a condom mitigated the seriousness of the offence. In Dawson v R [2013] NSWCCA 61 at [74] (Schmidt J with whom McCallum J and I agreed) expressed the opinion that the lack of ejaculation in that case could not be considered to reduce the objective seriousness of an offence of sexual intercourse without consent contrary to s 61I Crimes Act. Similarly, I do not consider that the wearing of a condom in the circumstances of the offending in the present case mitigates in any way the gravity of the offence.

4. [60]

   As to the assessment of the applicant’s moral culpability for his offending, Dr Adams was unable to elicit any history from him to clearly suggest that he was experiencing symptoms of psychosis at the time of the offence. Professor Greenberg considered that any Schizophrenic Disorder did not play a significant role in the applicant’s offending behaviour. I am satisfied on the balance of probabilities that the applicant’s mental disorders slightly reduce his moral culpability for the offences. I otherwise endorse her Honour’s findings on sentence.

5. [61]

   The upper limit of the range of sentence for s 61J(1) offence is neither provided by comparative cases nor Judicial Commission sentencing statistics. The maximum penalty of 20 years imprisonment and standard non-parole of 10 years are to be borne in mind when the court comes to a consideration of the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the applicant: Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154.

6. [62]

   My conclusion is that the overall sentence imposed by the judge is the appropriate sentence. I am not satisfied that some other sentence is warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912 (NSW).

Orders

1. [63]

   Accordingly, I propose the following orders:

2. [64]

   SCHMIDT J: I agree with Price J. In re-exercising the sentencing discretion, it must be considered that the applicant choked his victim, who fought back unsuccessfully until she was pushed onto her back and became unconscious. He then had penile sexual intercourse with her and on her regaining consciousness, threatened to kill her if she screamed. The seriousness of that offence was not reduced by the applicant having ejaculated into a condom and but little reduced by the applicant's mental disorders. On the evidence they are of such a nature that the applicant does pose a danger to the community when at large. While, as her Honour accepted, general deterrence must in the result be given less weight in this sentencing exercise, considerations of specific deterrence must feature in the sentence imposed upon him. Despite her Honour's error in not making an assessment as to whether the applicant’s moral culpability for his very serious offence was reduced by his mental condition, I have also concluded that no lesser sentence than that which her Honour imposed upon the applicant is warranted in law.