Phanekham v R

1. [1]

   THE COURT: On 20 November 2013 Viengsavanh Phanekham (“the applicant”) pleaded not guilty to an indictment alleging that on 20 June 2012, at Ambarvale in the State of NSW, he murdered Mark William Puffett (“the deceased”).

2. [2]

   On 29 November 2013 the jury found the applicant not guilty of murder, but guilty of manslaughter.

3. [3]

   On 2 May 2014 the applicant was sentenced to a non-parole period of 6 years imprisonment commencing on 20 June 2012, with a balance of term of 2 years imprisonment commencing on 20 June 2018: R v Phanekham (No 3) [2014] NSWSC 508.

4. [4]

   By notice dated 7 August 2015 the applicant seeks leave to appeal against that sentence upon a single ground, namely that the sentencing judge erred by failing to have proper regard to the applicant’s mental health in a principled fashion.

THE FACTS

1. [5]

   The sentencing judge found the facts to be as follows (commencing at [4]):

The evidence

1. [6]

   Exhibit 1 in the sentence proceedings was a report of Dr Olav Nielssen, Psychiatrist, of 28 March 2014. The applicant told Dr Nielssen that he was first diagnosed with depression in his late teenage years. He said that he believed that this diagnosis was secondary to the effects of a head injury which he sustained at the age of 12 which had left him with visual and learning impairments. Dr Nielssen noted that the applicant had reported contemplating suicide from that time, and that on one occasion he had been admitted to the Psychiatric Emergency Centre of Campbelltown Hospital after reporting suicidal thoughts.

2. [7]

   The applicant reported to Dr Nielssen that he had suffered “really bad” episodes of depression during his twenties and early thirties, following which he was prescribed anti-depressant medication. Dr Nielssen noted that the applicant did not report experiencing typical symptoms of psychotic illness, such as hallucinations or persecutory beliefs.

3. [8]

   When asked about his current symptoms, the applicant told Dr Nielssen (inter alia) that he felt low and unmotivated. He said that he had always felt anxious in social settings around people and that these feelings had been exacerbated by the crowded conditions in custody. Those things said, the applicant denied any plans to commit suicide. The applicant also told Dr Nielssen that when he was taken into custody arrangements were made for the continued prescription of Escitalopram (an anti-depressant) and Quetiapine (an anti-psychotic drug). He said that the dosage had recently been increased, but that it was “not working very well”.

4. [9]

   Dr Nielssen diagnosed the applicant as suffering from:

5. [10]

   Dr Nielssen acknowledged that these diagnoses were based largely upon the history provided by the applicant, in the absence of an opportunity to view any documentation regarding his past or recent treatment. However Dr Nielssen said that he had no reason to doubt the history with which he had been provided. He assessed the applicant as being significantly depressed, and expressed the opinion that in the event that his mood did not improve he would require “more assertive treatment”. He also expressed the opinion that the applicant would require long term psychiatric care following his release from custody.

The proceedings before the sentencing judge

1. [11]

   The applicant was represented by senior counsel, both at his trial and on sentence. For the purposes of the sentence proceedings, senior counsel provided written submissions to the sentencing judge. These were supplemented by short oral submissions. The principal thrust of the submissions put on behalf of the applicant was that the opinions of Dr Nielssen should be reflected in a finding of special circumstances pursuant to s. 44 of the Crimes (Sentencing Procedure) Act 1999. No submission was put to the sentencing judge that:

The findings of the sentencing judge

1. [12]

   The sentencing judge (commencing at [40]) outlined the applicant’s personal circumstances, before turning to the evidence of Dr Nielssen and the prospects of the applicant’s rehabilitation (commencing at [51]):

Submissions of the applicant

1. [13]

   In written submissions, counsel for the applicant asserted two errors on the part of the sentencing judge namely:

2. [14]

   Those submissions were prepared without counsel being aware of the content of the written submissions which had been provided to the sentencing judge by senior counsel who then appeared for the applicant.

3. [15]

   In oral argument, having had the benefit of reading the written submissions provided on sentence, counsel for the applicant candidly conceded that it had not been put to the sentencing judge that the applicant’s moral culpability was lessened by reason of his mental state, or that principles of general and specific deterrence were of less weight. With equal candour, counsel conceded that it had not been put to the sentencing judge that the applicant’s mental state was such that a custodial sentence would weigh more onerously upon him.

4. [16]

   However counsel submitted that the general issue of the applicant’s mental state had been raised on sentence, in the context of urging the sentencing judge to make a finding of special circumstances. It was submitted that if this Court found error and proceeded to exercise the sentencing discretion afresh, any re-sentence should be reflected in an adjustment of the ratio between the head sentence and the non-parole period.

Submissions of the Crown

1. [17]

   The Crown submitted that the applicant faced a fundamental difficulty before this Court, arising from the fact that the position he now sought to advance was at odds with the basis on which the case was conducted before the sentencing judge. It was submitted that in these circumstances it was incumbent upon the applicant to establish that a miscarriage of justice had occurred arising from the failure of senior counsel to put various submissions to the sentencing judge. In this respect, for the purposes of determining whether any such injustice was made out, the Crown effectively invited the Court to consider the affidavit material which had been filed on the applicant’s behalf.

2. [18]

   The Crown further submitted that on a proper reading of what the sentencing judge had said at [56] of his reasons, it was apparent that his Honour had concluded that because of the absence of any causal connection between the applicant’s mental state and his offending, and because of the factual findings made in respect of that offending, the circumstances of this case were such that considerations of general and specific deterrence remained of significance. It was submitted that the factual findings to which the sentencing judge had regard in coming to that conclusion included that:

The affidavit material

1. [19]

   As noted at [17] above, the Crown invited this Court to have regard to two affidavits filed by the applicant in order to determine whether any injustice had arisen as a consequence of the failure to put submissions to the sentencing judge regarding the applicant’s mental state.

2. [20]

   The first affidavit was that of the applicant’s solicitor, Pip Hill, annexed to which were case note reports and clinical notes covering the period between 7 April 2014 and 21 July 2015. We do not propose to set out the entirety of the contents of that material. It is sufficient, for present purposes, to note the following:

3. [21]

   The second affidavit filed was that of the applicant himself of 4 November, 2015. He stated (inter alia) that he found it difficult being forced to live in crowded conditions in custody, and that he continued to feel anxiety arising from interacting with other inmates.

Consideration

1. [22]

   The sentencing judge found (at [56]) that there was no causal connection between the applicant’s mental state and his offending. Contrary to the submission advanced on behalf of the applicant before this Court, the sentencing judge did not impliedly find that because of the absence of such connection it was not open to consider the impact of the applicant’s mental health on questions of general and specific deterrence. Such a submission overlooks the express reference, by the sentencing judge, to the “other findings (he had) made”. On a fair reading, what his Honour found was that in the particular circumstances of this case, and in light of the findings that he had reached regarding aspects of the applicant’s offending, general (and specific) deterrence remained significant considerations.

2. [23]

   In R v Engert (1995) 84 A Crim R 67 Allen J observed (at 72) that even in a case where there is no causal connection between an offender’s mental state and the relevant offending, the offender may nevertheless be an inappropriate vehicle for general deterrence. However as Gleeson CJ pointed out in the same case (at 68) it is erroneous to approach the law of sentencing on the basis that once the mental illness of an offender is established, it will automatically follow that general deterrence will assume less importance in determining the appropriate sentence. In doing so, his Honour emphasised that what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

3. [24]

   The relevance of general deterrence where there is no causal connection between the offender’s mental state and the offending will therefore depend upon the particular circumstances: Iskandar v R [2013] NSWCCA 235 at [27]-[32] per the Court (Beazley P, R A Hulme and Bellew JJ). In the present case, the sentencing judge concluded that general (and specific) deterrence remained significant. That conclusion stemmed, at least in part, from the various factual findings made by the sentencing judge regarding the offending. No challenge is made to any of those factual findings. No error is disclosed, either in the approach adopted, or the conclusion reached.

4. [25]

   Moreover, and as we have noted, no submission was made to the sentencing judge that the applicant was an inappropriate vehicle for general deterrence on account of his mental illness, nor was any submission made that such illness would render his period of custody more onerous. As was properly accepted, those circumstances present the applicant with a difficulty in seeking to argue before this Court that the sentencing judge erred in failing to consider such matters, or otherwise erred in failing to have regard to the principles governing the sentencing of mentally ill offenders.

5. [26]

   In Zreika v R [2012] NSWCCA 44 Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said (commencing at [79], citations omitted):

6. [27]

   Similar observations had previously been made by Redlich JA in Romero v R [2011] VSCA 45 where his Honour said (at [11]):

7. [28]

   More recently in Dicianni v R; Pintabona v R [2015] NSWCCA 201 Hoeben CJ at CL (with whom Price and Davies JJ agreed) said (at [282]):

8. [29]

   There is nothing in the affidavit material filed by the applicant in the present case which would support a conclusion that an injustice of the kind referred to by Hoeben CJ at CL has occurred. The applicant’s difficulties in custody appear to originate, in large measure, from the actions of other inmates. Such a difficulty is not uncommon. Importantly, there is nothing to suggest that the applicant’s mental condition is impacting upon his period in custody in a materially adverse way. On the contrary, the condition is apparently being appropriately treated, and the assessments of the applicant are generally positive.

9. [30]

   For all of these reasons the ground of appeal is not made out.

ORDERS

1. [31]

   For the reasons expressed above, the orders of the Court are as follows:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.