Craft v R

1. [1]

   GARLING J: I agree with the orders proposed by N Adams J, and with the reasons which she gives for those orders.

2. [2]

   BEECH-JONES J: I agree with N Adams J.

3. [3]

   N ADAMS J: The applicant, Mr Paiaka Craft, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by Judge King SC on 25 June 2020.

4. [4]

   The applicant pleaded guilty in the Local Court to the following offences:

5. [5]

   The applicant was also sentenced at that time for a breach of an 18-month Community Correction Order imposed at the District Court in Sydney on 16 January 2019 for the offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act.

6. [6]

   Proceedings on sentence were conducted on 25 June 2020. The applicant received a discount of 25% for his plea of guilty. The applicant was sentenced that same day to an aggregate sentence of 3 years and 3 months imprisonment commencing on 1 October 2019 and expiring on 31 December 2022 with a non-parole period of 2 years expiring on 30 September 2021. The indicative sentences were as follows:

7. [7]

   The applicant seeks leave to appeal on the following ground:

Factual background

1. [8]

   The two index offences occurred on 6 September 2019 and the applicant was arrested on 1 October 2019. The agreed facts can be summarised as follows.

2. [9]

   Both the victim and the applicant were homeless at the time of the offences and knew each other from the streets where they both congregated to drink. On this day the victim had been drinking in outdoor area proximate to old cinema known as the “Hub” in Newtown with others. After she purchased two further cans of UDL and returned to the Hub, she noticed the applicant sitting on a seat drinking from a plastic cask bag of white wine. She tried to get his attention so she could have some wine. They subsequently all moved to an area that was undercover and continued to drink.

3. [10]

   When the victim spoke to the applicant he became aggressive towards her. They discussed where they came from and a dispute occurred. The two of them stood facing each other and a scuffle commenced where they were pushing each other and trying to stand over each other.

4. [11]

   The victim made a move to hit the applicant, but it ended up being no more than a tap to his shoulder. The applicant then punched the victim to her face. Witnesses tried to separate them and calm them down, but the applicant and the victim continued to talk aggressively to each other ignoring the attempts by others to calm them down. Their aggressive conversation went on for approximately another ten minutes. They separated from the onlookers and commenced another scuffle. The victim said to the applicant, “[d]on’t throw your section 32 crazy games on me”. She said she thought she could try and settle him down, but it did not work.

5. [12]

   The applicant then head-butted the victim, connecting with her forehead and the bridge part of her nose. He then punched her to the left side of her head near her temple and she fell to the ground. It is that interaction which constitutes the offence of assault occasioning actual bodily harm.

6. [13]

   The two of them then walked back over to where the others were sitting. The victim had a graze to her forehead between her eyes arising from the offender’s conduct. The offender and the victim were still talking aggressively to each other but according to the witnesses they were “not as bad” as before.

7. [14]

   A witness offered the applicant a cigarette to try and get him to calm down. He was sitting away from the victim at that time. He then got up and walked towards the victim whilst speaking to her in an aggressive tone of voice. She got up and started speaking aggressively in return to him. The witnesses present were again trying to get them to stop by saying “[s]top it” without physically intervening.

8. [15]

   The applicant and the victim started saying they were going to call people to deal with each other. The applicant said multiple times to the victim “I’ll shank you”. At one point he said to her, “[y]ou’re gone, you bitch, you’re dead, I’ll kill you”.

9. [16]

   The applicant had a knife in his hand. The victim was not aware of this. With a closed fist the offender moved his right arm, which was holding the knife, around his side, at hip height, and then into the victim’s rib area (reckless wounding). As soon as he did this, he ran off towards Bedford Crescent and turned right into Denison Street.

10. [17]

    The victim sat down on the crate on the footpath and said, “I think my ribs are broken”. A witness who came to the victim’s aid lifted her shirt and saw that she was bleeding and then helped her towards the police station. They got to the corner before the police station when the victim appeared to faint. The witness left the victim on the corner and ran into the police station yelling, “[s]omeone got stabbed”. Police then attended and assisted the victim.

11. [18]

    The medical records demonstrated that the victim had been stabbed by the accused to her chest with a ten-centimetre kitchen knife. The knife was still in the victim when she arrived at the police station and it fell out whilst she was at the station, prior to paramedics arriving. The stab wound was to the victim’s left axilla (armpit). The wound was to the fourth intercostal space and was two to four centimetres deep. There was no pleural entry and the wound was treated with sutures and pain relief medication.

12. [19]

    The applicant was arrested on 1 October 2019. Police contacted the applicant’s case worker from the Salvation Army’s Oasis Youth Support Network, Ms Bernadette Stephens. Ms Stephens informed police that the applicant had been diagnosed with a brain trauma which impacts on his cognitive functions. As a result, police treated the applicant as a vulnerable person. He did not participate in an electronic interview, and no forensic procedure was completed.

13. [20]

    The sentencing judge also summarised the facts of the previous offence that occurred on 18 August 2018, for which the applicant was sentenced to a CCO. The facts were similar. On that occasion the victim of the offence had been sitting in Belmore Park with a number of friends when he was approached by the applicant who asked for a cigarette. The victim did not have any cigarettes, so he could not oblige. Shortly afterwards the victim walked towards the bus stop on Eddy Avenue to check the timetable. While doing so the applicant approached him from behind, wrapped his arms around the victim’s neck and placed him in a headlock. The applicant then raised his hand and punched the victim to his face multiple times, causing a laceration to the skin above the victim’s left eye and swelling and bruising with some bleeding from a laceration to his lip.

14. [21]

    His Honour observed the following in relation to that incident:

Proceedings on sentence

1. [22]

   Proceedings on sentence were conducted on 25 June 2020. A Crown bundle was tendered comprising a sentence summary, agreed facts, the applicant’s criminal and custodial history, a Sentencing Assessment Report dated 24 June 2020, written submissions on sentence and a bundle relating to the CCO offence.

2. [23]

   Counsel for the applicant tendered a neuropsychological report of Ms Melanie Tucker, clinical neuropsychologist, dated 23 June 2019, and a letter from Ms Olympia Panagos, Oasis Youth Support worker, dated 16 June 2020. Written submissions on sentence were also provided.

3. [24]

   The report of Ms Tucker noted that the applicant indicated severe levels of depression, mild levels of anxiety, and moderate levels of stress. The applicant also indicated significantly elevated depression, hostility, and interpersonal sensitivity. The applicant’s cognitive proficiency was assessed as borderline to extremely low. Overall, Ms Tucker found that:

4. [25]

   The applicant gave evidence at the proceedings on sentence. He stated that he felt remorseful for his actions and acknowledged that he had difficulty controlling his emotions when he was intoxicated.

5. [26]

   Submissions on sentence addressed, inter alia, the applicant’s mental health conditions and deprived background. Counsel for the applicant submitted that the sentencing judge would find a causal connection between the applicant’s cognitive and mental health impairments and his offending, and that this would reduce the applicant’s moral culpability for the offences and moderate the weight to be given to general deterrence. Counsel for the applicant also referred to Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) at [177], per McClellan CJ at CL, and submitted that the applicant’s mental health may be relevant “in other ways”. Counsel for the applicant further submitted that the applicant’s deprived background should be taken into account in assessing his moral culpability.

6. [27]

   The Crown submitted that there was inadequate evidence of a causal link between the applicant’s offending and his psychological conditions. It was further submitted that the applicant’s symptoms were essentially poor impulse control and that even if there was some causal link this would not result in a significant reduction in moral culpability. The Crown did however concede that there was evidence to suggest that the applicant’s time in custody would be more onerous and that this could warrant a finding of special circumstances or otherwise operate to reduce the sentence. The Crown further accepted that there was evidence that the applicant’s moral culpability was reduced as a result of his deprived upbringing.

7. [28]

   After setting out the agreed facts as summarised above, the sentencing judge turned to consider the objective seriousness of the offences. In relation to the sequence 1 offence, the sentencing judge assessed the objective seriousness as falling “below the mid-range of objective seriousness but not at the lowest end of the range”. The sequence 3 offence was found to be “within the mid-range of objective seriousness”. It was noted that it was an aggravating factor under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the applicant was on conditional liberty at the time of the index offences.

8. [29]

   The sentencing judge then considered the applicant’s subjective case. He observed that the applicant’s criminal history commenced in 2015 when he was a juvenile and that a number of his previous offences involved violence and aggression towards others. It was further noted that the applicant was under the influence of alcohol at the time of the offences and that the applicant believed his offending behaviour was linked to alcohol consumption, although he also acknowledged that he was unable to regulate his emotions and impulsivity when he was not intoxicated. The applicant was assessed as having a medium to high risk of re-offending.

9. [30]

   Significantly, for the purposes of the sole ground of appeal, the sentencing judge summarised the findings of the neuropsychological report as follows:

10. [31]

    The sentencing judge noted that the applicant had been involved in three breaches of prison regulations involving violence since his arrest on 1 October 2019, and observed that:

11. [32]

    The sentencing judge noted the importance of general and specific deterrence and reflecting the objective seriousness of the offences. The sentencing judge also accepted that the applicant was genuinely remorseful. His Honour further observed that the applicant’s criminal history was not an aggravating factor, but it would disentitle him to leniency.

12. [33]

    The sentencing judge then paused to confer with counsel and the following exchange occurred between his Honour and counsel for the applicant, Ms Sanders:

13. [34]

    The sentencing judge then imposed the sentences set out above at [6] and noted that the statutory ratio had been varied due to his finding of special circumstances and the applicant’s need “to have a longer period potentially on parole to assist him with his problems”.

Ground 1

1. [35]

   The nub of the complaint under this ground is that the sentencing judge erred in his conclusion that there was insufficient evidence of a causal link between the applicant’s mental health conditions and his offending such as to reduce the applicant’s moral culpability.

2. [36]

   The “causal link” to which the sentencing judge referred was submitted to be a reference to the first “dot point” at [177] of De La Rosa:

3. [37]

   The applicant submitted that the sentencing judge’s finding of insufficient evidence of a causal link was inconsistent with his Honour’s later reference to making “some reduction in sentence as a result of accepted lower moral culpability”. It was further submitted that the sentencing judge did not engage in an analysis of whether the objective seriousness of the offences was reduced as a result of the applicant’s mental health and cognitive impairment.

4. [38]

   The applicant’s cognitive and mental health conditions were submitted to be relevant to the offending in that they “directly affected his ability to appreciate the circumstances posed and to respond in a proportionate (not criminal or violent) way”. This was submitted to be a matter that was both personal to the applicant and relevant to the applicant’s moral culpability. Counsel for the applicant submitted that it was not useful to search for a “bright line” between characteristics personal to the offender and those impacting on the nature of the offending. It was submitted that it was not only open to the sentencing judge to find that the applicant’s conditions reduced his moral culpability but that his Honour “should” have made such a finding.

5. [39]

   The Crown submitted that it was entirely open to the sentencing judge to find that there was no demonstrated causal relationship between the applicant’s cognitive weakness and his offending. It was further noted that the neuropsychological report of Ms Tucker, which was prepared prior to the relevant offences and for therapeutic purposes, did not address any link between the applicant’s mental conditions and his offending.

6. [40]

   The Crown further submitted that the sentencing judge gave full weight to the applicant’s subjective case, including by the finding of reduced moral culpability as a result of childhood deprivation. It was observed that the sentencing judge may have balanced the applicant’s reduced moral culpability with his Honour’s finding that there was still a need for general and specific deterrence and protection of the community.

Consideration

1. [41]

   The sole complaint made in this application is that although the sentencing judge made a finding that the applicant’s moral culpability was reduced on one basis (based on Bugmy principles), his Honour erred in failing to find that the applicant’s moral culpability was also reduced on another basis (based on his cognitive impairment).

2. [42]

   The two most common situations in which a sentencing court may make a finding that an offender’s moral culpability is reduced is either as a result of a finding of profound childhood deprivation or a finding of mental illness/cognitive impairment. The former of these two derives from the decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 in which the High Court considered the relevance of an offender’s deprived background to offending as an adult. On that issue the Court observed the following at [44]:

3. [43]

   The second most common basis upon which a finding of reduced moral culpability will be made is mental illness/cognitive impairment. The complex issues arising when sentencing such an offender were considered by the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 (“Veen [No 2]”) where Mason CJ, Brennan, Dawson and Toohey JJ observed the following at 476-477:

4. [44]

   The High Court revisited this question in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. After citing Veen [No 2] and other decisions (including R v Engert (1995) 84 A Crim R 67 (“Engert”)), the Court went on to observe the following at [54]:

5. [45]

   The principles derived from the numerous decisions of this Court concerned with the sentencing of mentally ill offenders were summarised by McClellan CJ at CL in De La Rosa at [177] as follows:

6. [46]

   In the context of these principles, the scope of the error alleged under this ground is narrow. It is submitted that it was “not open” for the sentencing judge to observe (in the passage extracted above at [30]) that he was “unable to find on the information before [him] that there [was] any causal link between the offender’s conditions and the offending such as to warrant a reduction in his moral culpability” as contemplated by the first point in De La Rosa.

7. [47]

   A question arose at the hearing of this application as to what the relevant test was for error when the allegation is that the primary judge failed to make a particular finding: in other words, where there has been a “non-finding”. I propose to proceed on the basis that the question is whether it was open to the sentencing judge to conclude that there was insufficient information before him to find the causal link urged upon him by the applicant: R v O’Donoghue (1988) 34 A Crim R 397.

8. [48]

   The first difficulty with the complaint made under this ground is that the only expert evidence before his Honour came from the report of Ms Tucker who had not been asked to provide her expert opinion on the specific question of any causal link. I have extracted the relevant portions of her report above at [24]. She described the applicant as having a history of concentration and memory difficulties, being a victim of early childhood domestic violence, and as demonstrating weaknesses in immediate auditory attention span, working memory and memory/new learning on a background of borderline range general intellect (5th percentile). He was also depressed. Significantly, she described him as having “lifelong cognitive weaknesses of an unclear aetiology”. She suggested this could have been from:

   1. (1)

      possible hypoxic injury, potentially at birth;

   2. (2)

      previous heavy cannabis use;

   3. (3)

      a traumatic brain injury during childhood; or

   4. (4)

      complex trauma.

9. [49]

   At no stage did Ms Tucker ever opine that there was any causal connection between the applicant’s cognitive weaknesses and his offending.

10. [50]

    A second difficulty with this complaint is that there appears to be a close nexus between the applicant’s deprived childhood and his mental health issues. The expert evidence before his Honour was that the suggested causes of the applicant’s cognitive deficits included his childhood experiences. In that context, his Honour did make a finding of reduced moral culpability based on his childhood of deprivation.

11. [51]

    His Honour accepted that the applicant had difficulty “in not responding in adverse circumstances with violence” and that he had a “certain lack of control in that response”. These findings are consistent with his Honour’s satisfaction that Bugmy principles applied. Accordingly, his Honour reduced the sentence. I do not accept the submission made on behalf of the applicant that there is any inconsistency in this approach.

12. [52]

    A similar complaint was recently considered by this court in Johnston v R [2021] NSWCCA 86 and rejected on the same basis. In that decision Ward JA and Wilson J observed at [82] that:

13. [53]

    A third difficulty with the complaint under this ground is that the applicant gave this evidence at his proceedings on sentence:

14. [54]

    It was open to his Honour to conclude that alcohol was a causative factor in the applicant’s offending.

15. [55]

    Having regard to the lack of expert evidence, the overlap between the two bases upon which a reduction in moral culpability was sought and the real doubts as to whether it was the applicant’s intoxication which led to the commission of the offence, I am satisfied that it was open to his Honour to make the finding that he did based on the evidence before him.

16. [56]

    As Gleeson CJ observed in Engert at 68:

17. [57]

    In the present matter the applicant’s mental condition clearly was taken into account in a number of ways. His Honour expressly stated that the applicant’s time in custody would be more onerous because of it, his moral culpability was reduced on the basis of his childhood deprivation which had ties to his cognitive difficulties and there was a finding of special circumstances such that the non-parole period was reduced to only 61% of the head sentence.

18. [58]

    Overall, I am not satisfied that any error is disclosed in the manner in which the sentencing judge approached the issue of the applicant’s cognitive impairment.

ORDERS

1. [59]

   I would propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.