Quinn v R

HOEBEN CJ at CL:

The applicant also seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act to appeal against the sentence imposed by his Honour on 2 December 2016 (R v Quinn (No 3) [2016] NSWSC 1699). The applicant was sentenced to imprisonment for 20 years with a non-parole period of 15 years, commencing 9 September 2015.

In summary, the trial judge found that the applicant deliberately stabbed Ms Cherie Vize and that he did so with an intent to kill her (Principal Judgment [PJ] at [6], [7], [226], [232]). He then stabbed himself intending suicide. He was unsuccessful and the resulting injury caused him quadriplegia.

The applicant relied upon the defence of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW).

In the conviction appeal, the applicant relied upon two grounds as follows:

The applicant, who was aged 24 at the time of the offence, and Ms Vize had been in a relationship for a number of years. Ms Vize was fatally stabbed at 10.30am on 22 July 2013 while she was in the front yard of premises occupied by the applicant, his brother and their parents.

The Crown case was substantially circumstantial. By 14 July 2013 Ms Vize told the applicant that their relationship was over, or coming to an end, and that she had commenced another relationship. On 17 July 2013 the applicant sent a message acknowledging this and regretting the fact that it would happen. He could not accept it and repeatedly telephoned and messaged her, despite the fact that she did not often respond.

On the evening of Saturday, 20 July 2013 Ms Vize and the applicant argued over the breakup of the relationship. He threatened self-harm in front of the victim’s mother, Ms Evansueda Vize. He had expressed thoughts about committing suicide in the context of the relationship breakup before that time.

On Sunday, 21 July 2013 the applicant saw a text that Ms Vize sent to a Mr Meyers at around 3.26pm referring to the morning after pill. This distressed him and he told his mother and his brother, Thomas, that Ms Vize was sleeping with somebody else.

On the evening before Ms Vize’s death, she stayed at the applicant’s house. She and the applicant argued over the breakup. The applicant was despairing. The Crown alleged that the combination of the applicant being told the relationship was over and a text message about Ms Vize’s new relationship, led him to deliberately stab Ms Vize in the neck with the intention of killing her on the morning of 22 July 2013. Just after he stabbed her, he stabbed himself in the chest and neck, rendering himself quadriplegic.

It was the applicant’s case that the killing was accidental. In the alternative, he raised the partial defence of substantial impairment.

The applicant gave evidence that he had instituted the breakup with the deceased, that ultimately she wanted to resume the relationship and he was suicidal because he saw no way out of the relationship. He said that he took a knife from the kitchen with the intention of killing himself and went outside. Whilst attempting to stab himself, he accidentally stabbed Ms Vize in the neck when she intervened as she tried to grab the knife.

The applicant gave a similar account to each of the three psychiatrists who examined him to the effect that the killing of Ms Vize was accidental.

It was common ground in the trial that the applicant’s evidence concerning the stabbing of Ms Vize was false. The psychiatric evidence was that he suffered from “an abnormality of the mind arising from an underlying condition”. The psychiatrists approached the matter on the basis that the stabbing of Ms Vize by the applicant was deliberate. Accordingly, the case put on behalf of the applicant was that pursuant to s 23A(1) of the Crimes Act, he had available the partial defence of substantial impairment by abnormality of mind, pursuant to that section.

The evidence relevant to the applicant’s state of mind in the period before the killing and immediately after the killing came from the applicant’s mother, Joanne Quinn, his brother, Thomas Quinn, Ms Vize’s mother and friends of Ms Vize, Medina Hasic, Melody Loke and Andrew Meyers.

His Honour summarised the evidence of Evansueda Vize at PJ [135]-[141]. She said that the applicant often brought her daughter home and stayed late at her house. About three months before she died, her daughter was upset and told her that she was “suffocated” by the relationship with the applicant and that all they did was argue. About a month before she died, she said that she had broken up with the applicant and that she had met someone else.

On the afternoon of 20 July 2013, the applicant drove Ms Vize from her work to her home and he slept there. About 1 or 2am on 21 July Mrs Vize heard her daughter and the applicant arguing. She heard her daughter say “We are not together. …” When Mrs Vize told the applicant to go home, he replied “I'm going to crash the car”. Ms Vize then intervened and told the applicant to come back into her room. The next morning the applicant drove Ms Vize to work at Bondi Junction. They returned that afternoon and that was the last time Mrs Vize saw her alive. Mrs Vize received a phone call on the morning of 22 July from her daughter who said “Mum, I’m coming home soon”.

Medina Hasic’s evidence is summarised at PJ [142]-[151]. She considered herself to be Ms Vize’s best friend. She said that Ms Vize was a friendly, caring person who was capable of great empathy. Ms Hasic formed an adverse view of the applicant. She said that Ms Vize continually complained that he was regularly at her place and she had hardly any time to herself. In 2011 Ms Vize became pregnant and had an abortion. Ms Vize had ended her relationship with the applicant and Ms Hasic did not learn that the relationship had resumed until 2013. Ms Hasic did not know whether Ms Vize was seeing the applicant specifically, but she knew that she was seeing other people.

In the weeks before her death, Ms Vize told Ms Hasic that the applicant was saying that he was going to kill himself if they did not get back together and she felt guilty and concerned for him so she was spending time with him. On 1 July 2013 Ms Vize told her on Facebook that she and Mr Meyers were officially boyfriend and girlfriend.

Ms Vize told Ms Hasic on 14 July 2013 that the applicant found a message on her Facebook account about Mr Meyers. She told Ms Hasic that she had a “very long conversation” with the applicant and they “officially said goodbye to each other”.

On 20 July 2013 Ms Vize posted a picture on Facebook of Mr Meyers sleeping with a sketch next to him, and posted “something about seeing beauty in the things around you and will give you inspiration for artwork”. Ms Hasic did not believe that after July 2013 Ms Vize was sleeping with both Mr Meyers and the applicant.

His Honour summarised the evidence of Melody Loke at PJ [152]-[154]. Ms Loke became friends with Ms Vize when they both studied visual arts at Sydney University. Ms Vize told her on 19 July 2013 that she had broken up with the applicant. She was very worried about him because he was threatening suicide. She told Ms Loke that the applicant “told her that he was OK with - he could handle her sleeping with somebody else but not being in a relationship with someone else”.

On 21 July 2013 Ms Loke noticed that Ms Vize posted a photograph and sketch of Mr Meyers sleeping on Facebook. At about 7.30pm that evening she spoke to both Ms Vize and the applicant on the telephone. Ms Vize sounded emotionally drained and very tired. Ms Loke also spoke to the applicant whom she thought was in a “particularly low mood.” She could not really understand what he was saying “it was very faint”. He asked if Ms Loke knew about the situation with him and Ms Vize to which Ms Loke responded “it's not exactly going swimmingly”. The applicant replied “you can say that again” and, after heaving a deep sigh he said, “I don't know what I'm going to do”. Ms Loke said that he was mumbling and hard to understand and that he “sounded exhausted and really emotionally drained”. The applicant hung up abruptly without saying goodbye.

The evidence of Andrew Meyers is summarised at PJ [155]-[156]. He met Ms Vize through an online dating site in 2011 and they became friends. About three weeks before her death, she told Mr Meyers that her relationship with the applicant was over and they began seeing each other. His Honour found that she spent the evening of 19 July 2013 with Mr Meyers at his house and the next morning he drove her to Bondi Junction for work. At 2.28am on Sunday 21 July 2013, he received a text from her which stated “good and perfect man. Sweet dreams”. He received a further text from her at 3.56pm on 21 July where mention was made of her using the ‘morning after’ pill.

The evidence of Joanne Quinn was summarised by the trial judge at PJ [39]-[59] and [127]-[129]. She was the mother of the applicant. Mrs Quinn objected to giving evidence under s 8 of the Evidence Act 1995 (NSW) and her version of events was adduced by the Crown from a short interview with police on 22 July 2013, a statement prepared on the same day, a recording of a walkthrough of her home on 24 July 2013 and the transcript of her evidence at committal (PJ at [127]).

Mrs Quinn said that the applicant had obsessive compulsive disorder (OCD) which manifested itself in a desire to be clean and obsessive washing. He would not use or go near garbage bins for fear of contamination. He took one Lovan tablet a day for this condition. The night before the killing, the applicant told her that about a week before he found out that Ms Vize had been seeing someone else, and the previous day he had found out that she had slept with whomever she was seeing.

Mrs Quinn said that when Ms Vize woke up on 22 July 2013 she went to the toilet and then went to the front of the house for a cigarette. She went back into the bedroom. The applicant came out of the bedroom, went to the toilet and went back to the bedroom. Later they both came out of the bedroom and had some orange juice. Ms Vize said that they were both going to do some painting and she rang her mother. Mrs Quinn said that while Ms Vize was speaking everything seemed fine but that she had heard her crying the night before.

Mrs Quinn did not see the applicant stab Ms Vize. She said in her statement that she heard Ms Vize call out “Michael, don’t do that”. When she went out the front, she saw the applicant standing in front of Ms Vize and they appeared to be struggling. She tried to get between them. She noticed blood and the applicant with a knife.

The trial judge found that Mrs Quinn did not know whether the applicant had a knife in his hand when she saw him struggling with the victim. Mrs Quinn tried to assist Ms Vize and stop the flow of blood from her neck. As she was helping her, she saw the applicant holding a small paring knife and he was either trying to cut his neck or stab himself in the chest. After the police and ambulance arrived, Mrs Quinn walked to the front footpath and saw the applicant on the ground and a neighbour holding a towel to his neck. The applicant said that he could not feel his arms and legs and that “I can't believe I missed my heart”.

Mrs Quinn said that when she told the applicant to call the police, he did not do so because “he was just blank” and she “could not get any response out of him whatsoever”.

The trial judge summarised the evidence of Thomas Quinn at PJ [67]-[74]. He was the applicant’s brother. He took part in a short video recorded interview on 22 July 2013 and a walk through on 24 July 2013. He gave evidence at trial. Thomas also described the applicant’s compulsive behaviour. He recalled that from about 15 years of age, the applicant became obsessive about cleanliness. He insisted that Thomas wash his hands before using his game console. The applicant would shower at least two times a day.

Thomas said that some years before 22 July 2013, he witnessed the applicant cut himself with a razor blade in the bathroom. He recalled that the applicant turned to him and “seemed to show a level of relief ... with the damage to his body”. Thomas described the applicant as a “cutter” in that he appeared to cut around the knuckles of his hand with a maths compass.

Thomas told police that his brother “had found out that Cherie was cheating on him and I’d spoken to my brother and he was pretty devastated about it”.

On the morning of 22 July 2013, Thomas was in his room watching television when he heard his mother shout “Thomas”. He ran to the front of the house and saw his mother holding up Ms Vize with one hand and trying to hold her neck from where blood was starting to flow with the other. His mother told him to get towels and he went into the house to get them. When he returned to the front yard he handed her some tea towels. A neighbour assisted to apply pressure to Ms Vize’s neck.

Thomas said that at this point he noticed the applicant in the front yard. He had a knife in his right hand and was slowly walking backwards towards the road. There was blood on his hands and he saw him stab himself in the chest at least twice. After he stabbed himself, he “continued to walk backwards, perhaps a couple of steps, and then took the knife up to his neck and began to drag it across his throat”. Thomas screamed out to him to stop. When the applicant collapsed on the driveway, Thomas ran over to him and said “Why have you done this?” Thomas initially got no response. However, at some point the applicant said words to the effect of “leave me alone, I'm ok” and “[D]on't help me, I can't feel anything”.

In cross-examination Thomas said that when he screamed at the applicant to stop, it was the loudest scream he could make. There was no visible response from the applicant and the expression on his face was “blank”. He seemed to have no emotional intelligence at all. Thomas said that he “couldn't get a read on what [the applicant] was thinking or what potentially could be running through his mind” and that he couldn't see any sign of distress” in him. He had never seen him like that in any circumstances.

The trial judge summarised the evidence of Ms Broad, a neighbour, at PJ [75]-[81]. She gave evidence that she heard screaming and went out to the front of her house. She saw Ms Vize bleeding from the neck and Mrs Quinn holding her neck. Mrs Quinn said to call an ambulance and she dialled triple O. She put her phone on loudspeaker and held it towards Mrs Quinn. When the operator asked what had happened Mrs Quinn said “She's been stabbed with a knife”. Thomas yelled at the applicant “What have you done? What have you done?” She saw the applicant walking “downstairs” towards them and she saw a knife sticking out of his stomach. Ms Broad told the operator to send another ambulance because the perpetrator at the scene had stabbed himself. Ms Broad ran back into her house and continued to talk to the operator.

The trial judge at PJ [82]-[84] summarised the statement of Mr Warth, which was tendered. He lived two houses away and heard screaming. He heard a voice say “Stop Michael, stop it, stop it”. He walked towards the applicant’s house and saw Thomas in the front yard and the applicant lying on the nature strip. He asked Thomas to get some towels. He spoke briefly to Mrs Quinn and knelt down beside the applicant. He saw a knife sticking out of his neck and the applicant told him that he could not move his legs or feel anything from the neck down. When police and ambulance personnel arrived, Mrs Quinn was asked what happened and she replied “He found out she was cheating on him with one or two men”.

The trial judge summarised the evidence of the police and paramedics at PJ [85]-[92]. In a statement Constable Zwickl recalled that the applicant said when he was lying on the nature strip “[Y]ou should just shoot me”, [h]ow hard is it to hit your own heart, I can't feel anything and [i]s she all right?”. Mrs Quinn told her that the applicant had just found out that Ms Vize was cheating on him.

The trial judge summarised the post mortem analysis at PJ [99]-[212]. Ms Vize died as a consequence of blood loss arising from a laceration to the carotid artery and jugular vein. His Honour accepted Dr Bailey’s evidence that the fatal wound inflicted on Ms Vize was between 5 and 10cm deep and that the length of the wound was 1cm x 3cm.

The trial judge accepted the evidence of the police and paramedics. He was satisfied that the knife located in the front yard was the knife that cut Ms Vize. He was satisfied that the applicant used the knife, that was taken from the block in the kitchen and later found in the ambulance, to stab himself. He did not accept the applicant’s assertion that after his mother came to the front yard he returned to the kitchen and washed blood from his hands. The trial judge was uncertain as to whether or not the applicant re-entered the house to obtain a knife to stab himself.

Records from Ms Vize’s mobile phone carrier, although incomplete, indicated 29 messages between the applicant and her, including five missed calls on 19 July 2013. On 17 July 2013 at around 5pm, the applicant messaged Ms Vize stating:

Spreadsheets prepared from the telephone carrier Optus showed that in the period 10 July to 21 July 2013, 227 contacts, or attempted contacts were made by the applicant to Ms Vize and only nine contacts, or attempted contacts, were made by her to the applicant.

Telephone records for the landline at Ms Vize’s home showed 61 calls from the applicant’s mobile phone to that home phone in the period 10 July to 21 July 2013.

The trial judge summarised the evidence relevant to the applicant’s suspension from Wollongong university at PJ [194]-[203]. When giving evidence, the applicant said that the incident giving rise to his suspension occurred in the context of an extreme OCD reaction in relation to a banana skin in a bin. He denied any further incident relevant to his suspension. However, material from Wollongong University suggested that he had intimidated another student by physically blocking her path and touching her, although not in a sexual way. He was referred to counselling, with the requirement that there be a psychologist’s report before he could resume studies. He did not return to Wollongong University, but enrolled at Sydney University. The trial judge found that the manner in which this evidence unfolded was highly damaging to the applicant’s credibility.

There was no dispute at trial as to the legal principles relating to the application of s 23A. That section relevantly provides:

As was accepted at trial, the partial defence provided by s 23A can be conveniently broken down into three elements:

The parties agreed as to the relevance of the following extract from the judgment of Lord Parker CJ in R v Byrne [1960] 2 QB 396 (Byrne) at 403 as explanatory of the concept of abnormality of mind and its interrelationship with an impairment of an accused’s capacity:

As set out in Byrne, Lord Parker CJ described the concept of control as the “ability to exercise willpower to control physical acts in accordance with a rational judgment” formed about whether an action is right or wrong. Further, in Byrne Lord Parker CJ stated at 404:

In R v Trotter (1993) 35 NSWLR 428 Hunt CJ at CL summarised the issues to be decided in relation to the s 23A defence at p 430:

The trial judge identified relevant features of OCD and Borderline Personality Disorder (BPD) at PJ [236]-[237]. The trial judge described OCD as an anxiety disorder which creates a level of dysfunction in an affected person. Dr Furst stated that individuals affected by OCD typically fear contamination and may have intrusive thoughts which manifest in a compulsive need for order. Their obsessions, which are experienced as unpleasant, unwanted and intrusive thoughts are relieved by their compulsions, such as cleaning, which is time-consuming and impairs feelings of wellbeing and psychosocial function.

The trial judge described BPD as typically involving a prolonged disturbance of personality function characterised by “depth and variability of moods”, unusual levels of instability in mood, chaotic and unstable interpersonal relationships, self-image problems, identity problems and behaviour, as well as a disturbance of the individual’s sense of self. In extreme cases, this disturbance in the sense of self can lead to periods of dissociation.

Dr Furst said that attempted and completed suicides were possible outcomes for persons with BPD. Dr Furst said that one of the diagnostic criteria for BPD was a “fear of abandonment” and rejection, and that “being abandoned or left behind by someone in an interpersonal relationship could be a devastating thing for someone” with the disorder. Dr Allnutt and Dr Nielssen’s descriptions of OCD and BPD were consistent with that of Dr Furst.

The trial judge summarised Dr Allnutt’s evidence at PJ [238]-[255]. His report was dated 12 February 2016 (Exhibit JJ).

Before the preparation of this report, Dr Allnutt was provided with the report of Dr Nielssen, the Crown case statement, the ERISP, interview and statement of Thomas Quinn, statements and walk through interview of Joanne Quinn, statements from Anthony Quinn and Sheree Broad and triple 0 emergency documents. He did not have the statements from Evansueda Vize, Ms Hasic or Ms Loke which contained references to aspects of the applicant’s behaviour consistent with his BPD, nor did he have evidence of the incident at Wollongong University or the telephone records.

Dr Allnutt gave evidence that based on the information provided, the applicant would be regarded as manifesting an abnormality of mind derived from an underlying condition in that he manifested a depressive disorder, obsessive compulsive disorder and histrionic and borderline personality traits. During his evidence he accepted that it was probable that the applicant suffered from BPD, as well as OCD.

Dr Allnutt’s initial opinion that the applicant’s abnormality of mind was not of a nature or severity that would have impaired his capacity to judge events, know right from wrong or control his actions was based on his acceptance of the applicant’s account that the killing was accidental. He gave evidence that if the court excluded the applicant’s account of the circumstances of the killing, any opinion provided in relation to what motivated him at the time was speculative. When asked to assume that the applicant deliberately stabbed Ms Vize in response to rejection by her, Dr Allnutt maintained his earlier opinion as to the applicant’s capacity to understand events and judge whether his actions were right or wrong.

When asked whether the applicant’s capacity to control himself was substantially impaired, assuming that the applicant deliberately stabbed Ms Vize in response to his rejection by her, Dr Allnutt said:

Dr Allnutt emphasised the importance of a narrative by the individual concerned. He said that when this does not exist, one cannot “test” things and “clarify” the decision making process, or why people decide to do things or their “exact” emotional state at the time.

Dr Allnutt believed that impairment of the applicant’s capacity to control himself was the central issue in the case. He said that the loss of control that came with overreaction to rejection would not necessarily be spontaneous, and that this could develop over a period of time.

The trial judge found that interrelated points emerged from Dr Allnutt’s comment, namely the connection between the amount of planning or pre-meditation involved and the difficulty of undertaking “forensic analysis of the behaviours” the applicant engaged in during the time leading up the stabbing, in the absence of an account from him that was consistent with him deliberately stabbing Ms Vize.

When asked about the applicant stabbing himself in the chest, neck and spinal cord in terms of his psychiatric background, Dr Allnutt said:

The trial judge did not accept Dr Allnutt’s opinion that the applicant stabbing himself was an impulsive response to what had happened. He was satisfied beyond reasonable doubt that, at least from the time the applicant obtained a knife from the kitchen, he not only intended to stab Ms Vize, he also intended to kill himself. His Honour reached this conclusion because the evidence suggested that he had been brooding over that possibility for several days. His discussions with his mother and Ms Loke on the evening before the killing revealed a state of despair. His Honour found that the events immediately after the killing revealed a lack of hesitancy, consistent with a determination to end his own life.

Dr Allnutt considered that if the applicant's “behaviour was driven by an underlying condition”, it derived more from his personality disorder and depression than from OCD.

Dr Furst prepared a report dated 5 January 2016. The trial judge summarised his evidence at PJ [256]-[270]. The trial judge noted that the history the applicant provided to Dr Furst was largely consistent with his evidence at trial, except that he told Dr Furst that his obsession with cleanliness commenced after he was sexually abused by a school counsellor.

Dr Furst diagnosed the applicant as suffering from OCD and BPD. He said that the applicant “is probably best regarded as a mentally disordered offender owing to his reported and observed mental state at the time of the offence”. (The trial judge said that this appeared to be a reference to his unresponsiveness at the scene of the stabbing.) Dr Furst concluded that the applicant was “probably unable to control his actions as a consequence of his acute mental disorder and his underlying mental conditions (i.e. BPD and OCD)”. He said that his apparent lack of self-control was consistent with his actions in stabbing himself in a life threatening manner immediately after the offence.

Dr Furst did not accept that the applicant’s capacity to understand events was substantially impaired. He was of the view that the disorder from which he suffered was not of such severity that he wasn't aware of events. He was also of the view that the applicant’s capacity to judge right from wrong was not substantially impaired.

The trial judge noted the following about the evidence of Dr Furst.

The trial judge found that it was unlikely that Dr Furst’s reference to a “disordered state” equated to a state where the applicant lacked the capacity to control his actions. The trial judge referred to Dr Furst’s evidence that it was a reasonable possibility that the arguments on 20 and 21 July 2013 between the applicant and Ms Vize and viewing the text message were precipitating factors to the stabbing. Dr Furst said that the arguments and the phone calls demonstrated an “unstable mental state” for at least some days leading up to the killing. The trial judge said that he understood this to be a reference to heightened agitation which made the applicant more susceptible to a loss of control on the morning of 22 July 2017. The trial judge referred to the evidence of Thomas that the applicant was non-responsive to screams and pleas the morning of the 22 July 2013.

The trial judge noted that Dr Furst considered this to be “consistent with him being highly disturbed emotionally and in some type of abnormal state emotionally” (PJ [270]).

Dr Nielssen prepared a report dated 21 July 2015. He gave evidence after the applicant and had the benefit of reviewing a transcript of his evidence. For the preparation of his report, Dr Nielssen also had the benefit of the statements from all the independent witnesses. The trial judge summarised his evidence at PJ [271]-[284]. The account the applicant gave Dr Nielssen was generally consistent with his evidence, although the applicant did not mention that he was sexually assaulted by a counsellor when he was 11 or 12.

Dr Nielssen concluded that the applicant had an abnormality of mind arising from an underlying condition, being his chronic OCD and mood disorder. He also concluded that the applicant’s capacity to understand events and judge whether his actions were right or wrong was substantially impaired by his abnormality of mind. Dr Nielssen concluded that the applicant’s capacity to control himself was substantially impaired by his abnormality of mind. Dr Nielssen described the applicant’s impairments as “moderate to severe”.

Dr Nielssen conceded that the applicant met the accepted criterion for a diagnosis of BPD. He said that one of the features of BPD, or personality traits, is sudden fluctuations of mood, including sudden severe depression in response to setbacks such as rejection. One of the core features is a fear of rejection and an acute reaction to perceived rejection, and that is typically a state of severe depression often followed by impulsive self harm.

His Honour noted four matters about Dr Nielssen’s conclusion as to the applicant’s capacity control himself.

The trial judge rejected the applicant’s evidence that the killing was accidental and said that he did not accept the applicant’s evidence unless it was confirmed or corroborated by other evidence. His Honour found the applicant’s evidence to be implausible, internally inconsistent and inconsistent with that of other witnesses and the telephone and SMS records. He found that the applicant intended to kill Ms Vize and that the Crown had proved beyond reasonable doubt that he deliberately stabbed her. Those findings were not challenged in the appeal.

The trial judge also found that before the stabbing, the applicant had formed the intention to kill himself. That finding has been challenged.

The trial judge accepted the opinions of each of the psychiatrists that the applicant had “an abnormality of the mind arising from an underlying condition” being a “pre-existing mental or physiological condition other than a condition of a transitory kind”, i.e. OCD and BPD.

His Honour found that the rejection of the applicant’s evidence as to how the killing took place created a difficulty for the psychiatrists in reaching a diagnosis. His Honour articulated that difficulty as follows:

His Honour noted that senior counsel for the applicant at trial sought to overcome that difficulty by relying on the evidence of the observation witnesses to demonstrate the applicant’s state of mind, both before and on 22 July 2013. While his Honour accepted much of that evidence, including that which had been relied upon by the three psychiatrists to make their diagnoses, the problem identified by his Honour still remained. This was because while the evidence of the observation witnesses was capable of justifying the conclusions of the psychiatrists, the extent to which that material supported a finding of substantially impaired capacity, remained a problem.

His Honour’s conclusion was that in the absence of a reliable narrative from the applicant as to his state of mind leading up to the killing of Ms Vize, when he formed the intention to kill and what steps he took to give effect to that intention, he was not persuaded on the balance of probabilities that at the time the applicant stabbed Ms Vize, his capacity to control himself was substantially impaired. For similar reasons, his Honour was not satisfied that it was demonstrated on the balance of probabilities that the applicant’s capacity to understand events or judge whether his actions were right or wrong was substantially impaired. It was for that reason that his Honour concluded that the applicant had failed to satisfy s 23A(1) of the Crimes Act.

As his Honour pointed out, both Drs Allnutt and Furst did not accept that the applicant’s capacity to understand events was impaired. Dr Allnutt’s opinion was that the applicant’s account was not consistent with a delusional belief and that while the applicant might have misjudged his actions at the material time, he had capacity to judge events (T.276.49; T.279.23).

Dr Nielssen was of the opinion that the applicant’s capacity to understand events was impaired because he clearly had “quite a distorted world view” and because the effect of his severe mood swings would also alter his perception of events. The “distorted world view” to which Dr Nielssen referred was the applicant’s evidence that it was he who wished to terminate the relationship.

The trial judge rejected this opinion of Dr Nielssen because he did not accept that it had been established, on the balance of probabilities, that at the time he stabbed Ms Vize the applicant generally held this “distorted world view”. His Honour in his findings had already rejected the proposition that the applicant had that “world view” at the time he stabbed Ms Vize. In the course of his evidence on this issue Dr Nielssen responded to questions from his Honour as follows:

His Honour noted that those responses by Dr Nielssen were predicated on an acceptance that as at 22 July 2013 the applicant correctly perceived that he was being rejected by Ms Vize, which accorded with his Honour’s findings. However, his Honour found that in the balance of the answer Dr Nielssen reverted to either making assumptions or drawing inferences about the applicant’s mental state which were not established on a balance of probabilities. In particular, his Honour did not accept that as at 22 July 2013 the applicant generally believed that Ms Vize wanted to die. There was no independent evidence to that effect and there was no independent evidence that the accused believed that she wanted to die.

The trial judge also rejected Dr Nielssen’s opinion that the applicant set out to kill Ms Vize and then himself “without considering the full consequences” of his behaviour. His Honour did so on the basis that there was no evidence to that effect. This was to be contrasted with his Honour’s finding that the applicant intended to kill Ms Vize and he intended to kill himself. That finding was supported by the evidence that the applicant had ruminated on killing himself for some time. In those circumstances, his Honour considered that it was plausible that the applicant thought about the distress his actions might cause to others but was indifferent to it. His Honour concluded that in the end result there was no satisfactory evidentiary material capable of demonstrating that as at 22 July 2013 the applicant’s “capacity to understand events” was impaired, let alone substantially impaired.

In relation to whether the applicant’s capacity to judge whether his actions were right or wrong was substantially impaired, his Honour noted that Dr Allnutt did not accept that borderline personality traits or depression impaired a person’s capacity to know right from wrong (T.279.27). Dr Allnutt considered that the applicant’s infliction of self harm after the deceased was stabbed was a reaction of “guilt that he had done the wrong thing” (T.272.29).

His Honour also noted that when Dr Furst was referred to the opinion expressed by Dr Nielssen that the applicant’s impaired capacity to know right from wrong derived support from his preparedness to harm himself in the presence of his mother and brother, Dr Furst responded:

On the same issue, his Honour had regard to the following evidence in chief of Dr Nielssen:

In relation to that evidence, his Honour observed:

The trial judge took into account the importance of assessing an individual’s thought process to determine if their capacity to judge whether their actions were right or wrong was impaired. The problem identified by the trial judge was, however, that there was no evidence from either the applicant or any other source capable of establishing on balance that his capacity in that respect was impaired.

In relation to whether the applicant had established on balance that his capacity to control himself was substantially impaired, the trial judge concluded that the applicant’s OCD did not make any significant or substantial contribution to any loss of control on his part at the time he stabbed Ms Vize. There was no evidence that his actions in stabbing her arose from his giving effect to any impulse, or from frustration, or from being prevented from carrying out any such impulse. The trial judge found that there was no evidence that his actions were connected to any intrusive thought that weighed upon him. His Honour found that the only suggested connection between his OCD and his conduct towards Ms Vize was his evidence that he had some “ritual” or “compulsion” related to his OCD to contact her in the morning or at night that replaced his compulsion to clean or turn the light switches off. His Honour did not accept that his telephoning Ms Vize involved him giving effect to any impulse relating to his OCD. His Honour found that although the applicant was emotionally dependent on Ms Vize, there was insufficient evidence to suggest that she was part of the focus of his OCD.

His Honour accepted, as Dr Furst stated, that the applicant’s OCD was a contributor to a level of dysfunction and agitation on his part. This finding was qualified because none of those close to him observed any significant amount of compulsive behaviours in the weeks before Ms Vize’s death. As a result his Honour was not persuaded that the OCD made much of a contribution to any such level of dysfunction at the time of and leading up to the stabbing.

His Honour accepted the diagnosis that the applicant was affected by BPD and that during the period when a relationship was ending or under strain, the applicant’s BPD had the capacity to increase his feeling of abandonment and reduce his capacity to control his responses. His Honour accepted that the applicant was distressed about the breakup with Ms Vize and was refusing to accept that it would occur. His Honour accepted that the applicant was emotionally dependent on Ms Vize and was desperate to contact and be with her. His Honour accepted that the applicant might have been “unstable” in the immediate period before the stabbing in the sense described by Dr Furst at PJ [268] and so, vulnerable to an impairment of his self-control.

While the trial judge was prepared to accept those matters, he identified the fundamental question as “Has a substantial impairment of his capacity to control himself at the time he stabbed Ms Vize been demonstrated on the balance of probabilities?” (at PJ [306]).

His Honour set out his conclusions on this issue as follows:

The applicant submitted that his Honour had erred in placing determinative weight on the importance of planning and the necessity of an account from the applicant as to his thought processes about this. The applicant submitted that his Honour’s acceptance of Dr Allnutt’s approach and his conclusion that a credible narrative from the applicant as to when he first formed the intention to kill was essential in order for him to discharge the onus on him resulted in his Honour failing to make a proper assessment of the opinions of Dr Nielssen and Dr Furst and the evidence from persons who had observed him and Ms Vize in the days leading up to her death.

The applicant submitted that the opinions of Dr Nielssen and Dr Furst were not dependent on an account from the applicant and they were not undermined by the absence of an account from him. He submitted that neither psychiatrist considered that it was necessary to know precisely what was going through the applicant’s mind before the killing. Both considered that the evidence of independent observers was sufficient to establish that the applicant's capacity to control his actions was substantially impaired at the time of the killing. The applicant submitted that both psychiatrists had taken into account the significance of planning and jealously as a motive, in the context of the applicant’s abnormality of mind. The applicant submitted that the opinions of those two psychiatrists stood to be examined in context on their own merits.

The applicant submitted that his Honour erred in placing greater weight on the opinion of Dr Allnutt than on the other two psychiatrists. This was because Dr Allnutt did not have all the material on which to make a forensic analysis of the applicant’s behaviour in the period leading up to the killing. In particular, he did not have the statements from Ms Vize’s mother, Evansueda, Ms Hasic or Ms Loke. Those statements provided important information concerning the applicant’s behaviour consistent with his BPD and the extent of his dependence on Ms Vize.

The applicant noted that it was also relevant that in preparing his report Dr Allnutt had accepted as genuine the applicant’s description of what had happened, i.e. that Mr Vize’s death was an accident. It was only when giving his evidence that Dr Allnutt was asked to express opinions based on a different assumption, i.e. that Ms Vize intended to leave the relationship and that the applicant had deliberately stabbed.

The applicant submitted that his Honour did not make a finding as to whether the evidence of observers of the applicant was capable of demonstrating that the applicant’s capacity to control himself was impaired to any degree and that his Honour had concluded only that the applicant’s BPD had the capacity to increase his feelings of abandonment and reduce his capacity to control his responses. The applicant submitted that the central issue under consideration was not when he first formed the intention to kill Ms Vize, or the extent of planning involved, but whether there was evidence that his capacity to control his actions was substantially impaired at the time of the killing by his abnormality of mind.

The applicant submitted that his Honour’s focus on the importance of planning and the lack of credible evidence of his [the applicant’s] thought processes about when he formed the intention to kill Ms Vize distracted his Honour from a proper assessment of the opinions of Drs Furst and Nielssen, and the consideration of whether all of the observer evidence was capable of establishing that the applicant’s capacity to control himself was impaired to any degree at the time of the killing and, if so, whether this impairment was substantial for the purpose of s 23A(1).

The applicant submitted that it was unnecessary to know precisely what was going through his mind at the time because taken as a whole, based on all of the evidence, the killing appeared to be an extreme over-reaction to perceived rejection consistent with his psychiatric vulnerability. The applicant submitted that his Honour did not assess Dr Nielssen’s evidence in context. He did not make any findings about Dr Nielssen’s opinion as to the link between the applicant’s psychiatric disorder, his motivation and his attempted suicide. The applicant submitted that his Honour did not properly explain why it was not open to Dr Nielssen to conclude on the evidence from observers that the applicant’s capacity to control himself was substantially impaired.

The applicant submitted that Dr Furst had considered the significance of planning and motivation in the context of his [the applicant’s] abnormality of mind. Dr Furst had agreed that if the stabbing was deliberate the applicant could have been motivated by jealousy, but that should be considered in the context of his mental disorders.

The applicant noted that his Honour had concluded that if his [the applicant’s] thought processes were known, this could affect an assessment of whether his capacity to control himself was impaired at the time he stabbed Ms Vize. The applicant submitted that this was contrary to Dr Furst’s view that it was unnecessary to know precisely when the applicant formed the intention to kill Ms Vize in order to determine whether his capacity to control himself was substantially impaired at the time of the killing. The applicant noted that Dr Furst did not assume that he [the applicant] had in fact formed the intention to kill both himself and Ms Vize at the time he picked up the knife but that he [Dr Furst] could not say what the applicant’s motivation was at that time and that he may have only intended to kill himself.

The applicant submitted that in circumstances where Dr Furst had clearly equated “many disorders” to a state where his [the applicant’s] capacity to control himself was substantially impaired, his Honour did not explain why it was not open to Dr Furst to find from the circumstances of the applicant’s attempted suicide and his demeanour at that time, that his capacity to control his actions was substantially impaired when he stabbed himself. This was in the context of his unstable state of mind leading up to the killing and the fact that he was suicidal at the time he seized the knife. The applicant submitted that his Honour did not explain how Dr Furst’s opinion was undermined by the absence of a credible account from the applicant as to his thought process at the time.

The applicant submitted that the trial judge made no finding as to whether the evidence of the applicant’s brother and the other observer witnesses supported the inference that the applicant suffered an impaired capacity to control himself at the time he attempted to kill himself or at the time of the killing of Ms Vize. This was in a context where his Honour accepted that the applicant’s brother was a truthful and reliable witness. The applicant submitted that in particular his Honour did not give due weight to the evidence of Thomas Quinn to the effect that the applicant was non-responsive to screams and pleas on the morning of 22 July 2013 and that Dr Furst considered this to be consistent with him “being highly disturbed emotionally and in some type of abnormal state emotionally”.

The applicant submitted that the only finding his Honour made about the applicant’s attempted suicide was that it was indicative of a determination to kill himself. He did not make a finding as to whether the evidence of Thomas Quinn, and the evidence of the other observer witnesses, supported the inference that the applicant’s capacity to control himself was substantially impaired at the time he stabbed himself. The applicant submitted that his Honour did not give consideration to whether the proximity in time of this to the killing of Ms Vize, taken with the accepted evidence of his unstable state of mind in the days leading up to the killing, was capable of supporting Dr Furst’s opinion that the applicant’s capacity to control his actions was substantially impaired at the time of the killing of Ms Vize.

The applicant noted that Dr Allnutt was of the opinion that the applicant’s attempted suicide was an impulsive, emotional response to the stabbing of Ms Vize and might be regarded as a loss of control post offence. The applicant submitted that his Honour did not accept that the attempted suicide was impulsive if that was meant to suggest that the applicant only decided to harm himself after he stabbed Ms Vize. The applicant submitted that his Honour otherwise did not consider or make a finding as to whether the circumstances of his stabbing himself might be regarded as a loss of control relevant for consideration of whether his capacity to control his actions was substantially impaired at the time of the killing.

The applicant submitted that his Honour erred by placing undue weight on the lack of a credible narrative from the applicant as to his thought processes leading up to the killing and the importance of knowing when he first formed the intention to kill Ms Vize. In so doing, his Honour did not properly consider the opinions of Dr Nielssen and Dr Furst, nor whether the evidence of observers was capable of supporting them.

The applicant submitted that his Honour erred by failing to give adequate reasons for rejecting these opinions and accepting the opinion of Dr Allnutt. He did not explain why it was not open to infer that the applicant’s capacity to control himself was substantially impaired at the time of the killing, given his actions in attempting to kill himself, against the background of his accepted psychiatric vulnerabilities, unstable state of mind and behaviour in the period leading to the killing.

The applicant submitted that error has been established and that there had been a miscarriage of justice.

The applicant relied upon his analysis of the psychiatric evidence in support of Ground 1 to also support Ground 2.

The applicant noted that in Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at [97] Johnson J (with whom McClellan CJ at CL and Fullerton J agreed) said that there was no reason in principle why an unreasonable verdict ground cannot apply to a case where the applicant bore the onus of proof at trial, on the balance of probabilities, to establish the partial defence of substantial impairment. The applicant further noted that the partial defence under s 23A only arose when his account of accidental killing was rejected. Accordingly, the defence did not turn on his credibility, but on the evidence of the other witnesses, including the psychiatrists.

The applicant submitted that because his Honour found that all of the observer witnesses were reliable, and that each of the psychiatrists who gave evidence was highly qualified and professional in their manner of presentation, it was not a case where the trial judge had an advantage over this Court by seeing and hearing the witnesses. The applicant submitted that this Court was as well placed as his Honour to determine the issue of substantial impairment on all the evidence.

The applicant submitted that a credible narrative from him was not essential for him to discharge the onus on him under s 23A(1)(a). He submitted that his Honour’s verdict was unreasonable and that on the evidence this Court should be satisfied that his capacity to control his actions was substantially impaired at the time of the killing.

The applicant submitted that if the Court was so satisfied, it is open to the Court to consider the issue under s 23(A)(1)(b) as to whether his impairment was so substantial as to warrant liability for murder being reduced to manslaughter. He submitted that this conclusion was readily available.

The applicant submitted that the issue under s 23A(1)(a) involved a finding of fact, whereas the issue under s 23A(1)(b) involved a moral judgment. The applicant referred the Court to Potts v R at [33] where Johnson J said of s 23A(1)(b)

The applicant submitted that the opinions of Dr Nielssen and Dr Furst were based on facts, which his Honour was satisfied were proved. Both Dr Nielssen and Dr Furst were qualified to express an opinion as to the extent of any impairment the applicant suffered, whether it was slight, moderate or severe. The applicant submitted that their evidence was persuasive and their opinions were not dependant on a narrative from the applicant, but were based on the evidence of persons who had observed the applicant at the relevant time.

This evidence, the applicant submitted, demonstrated the extent to which he was not coping with his feelings of abandonment and rejection. His Honour found that the evidence of the applicant’s mother and brother and the telephone and SMS records overwhelmingly suggested that in the weeks preceding her death Ms Vize told the applicant that she had met someone else, that their relationship was over or coming to an end, and that the applicant was so distressed that he threatened self-harm.

The applicant noted that his Honour had accepted Dr Furst’s evidence that “fear of abandonment” was one of the diagnostic criteria for BPD, and that “being abandoned or left behind by someone in an interpersonal relationship can be a devastating thing for someone” with BPD. His Honour accepted that the applicant had told his brother that he was “devastated” and that “Cherie was cheating on him”. His Honour found that the applicant’s discussions with his mother and Ms Loke on the evening prior to the killing, revealed a state of despair.

The applicant submitted that the evidence of his abnormal behaviour in the weeks before the killing, the extent of his distress in this period and on the night before the killing, and the circumstances of his attempted suicide made it more probable than not that his capacity to control his actions was substantially impaired at the time of the killing. The applicant submitted that in those circumstances, an account from him as to when he formed the intention to kill Ms Vize was not essential in the light of all of the evidence.

The applicant submitted that there was no evidence that he intended to kill Ms Vize before 22 July 2013. He submitted that the compulsive phoning and texting Ms Vize in the weeks leading up to the killing and the argument with Ms Vize during the evening before the killing were consistent with him being desperate to continue the relationship.

The applicant referred to the evidence of Ms Loke that he said to her on that night “I don’t know what I’m going to do”. The applicant submitted that this conversation with Ms Loke was also relevant to establish that at that time he lacked any clear plan concerning what he was going to do.

The applicant also relied upon the evidence of Dr Furst that the two conditions of OCD and BPD could feed into each other:

The applicant noted that Dr Furst was unable to say whether he intended to kill both himself and Ms Vize, or just himself, when he picked up the knife but he (Dr Furst) was of the view that it was unnecessary to know precisely what the applicant’s motivation was at that time to establish that his capacity to control himself was substantially impaired at the time of the killing. Dr Furst considered that once the applicant made the decision to kill either himself or the victim, and was in such a mental state as to carry this through (as evidenced by the taking of the knife) he was in a disordered state within the meaning of the Mental Health Act 2007 (NSW) in that his capacity to control himself was substantially impaired.

The applicant submitted that his attempted suicide in front of his family, and the evidence from observers about the manner in which this occurred, were not consistent with a rational, well thought out attempt to end his life. The applicant submitted that the attempted suicide was demonstrative, not only of a determination to kill himself but as stated by Dr Nielssen, was consistent with “an extreme overreaction by him, consistent with his psychiatric vulnerabilities”, and with his capacity to control himself being substantially impaired. The applicant submitted that his demeanour at the time, as described by his mother and his brother, strengthened an inference of a substantially impaired capacity to control himself at that time.

The applicant submitted that as set out in support of Ground 1(a), Dr Allnutt did not have all the observer evidence when he formed his initial opinion, which was based on an account of an accidental stabbing. When he was asked to assume that the stabbing was deliberate, he did not give a considered opinion based on all the evidence as to whether the applicant’s capacity to control his actions was substantially impaired. Dr Allnutt’s focus was on the difficulty raised by the absence of a credible account from the applicant. The applicant submitted that in those circumstances, the opinions of Dr Nielssen and Dr Furst, which were based on all of the evidence, were more persuasive than the opinion of Dr Allnutt. The applicant submitted that in the circumstances, his Honour’s acceptance of Dr Allnutt’s opinion was unreasonable in that his Honour gave undue weight to the absence of a credible narrative from him [the applicant] and did not properly assess the opinions of Drs Nielssen and Furst and the evidence of the persons who had observed the applicant in the days leading up to the killing.

The approach to be followed by this Court when considering an appeal from a judge alone verdict was considered by the High Court in Filippou v The Queen [2015] HCA 29; 256 CLR 47. There, the plurality (French CJ, Bell, Keane and Nettle JJ) said:

To the extent that the argument in support of a ground of appeal under s 6(1) takes issue with the correctness of the trial judge’s intermediate findings of fact, this Court must have regard to the reasons stated by the trial judge. In this case, the applicant takes issue with a significant number of his Honour’s intermediate findings of fact. It is therefore necessary to have regard to his Honour’s reasons. The question for the Court, however, is not whether it is satisfied that his Honour’s findings of fact are correct, but whether his Honour’s findings were not reasonably open.

On that issue, Filippou v The Queen is also of assistance, where the plurality said:

The applicant’s case at trial and on this appeal relied upon that part of s 23A(1)(a) which referred to the inability of a person to control himself or herself. This was because although Dr Nielssen opined that the applicant was substantially impaired under all three limbs of s 23A, Dr Furst only supported the proposition that the applicant’s capacity to control himself was substantially impaired. Accordingly, the applicant’s submission is that the trial judge should have found that his capacity to control himself was substantially impaired and the applicant does not take issue with the trial judge’s rejection of Dr Nielssen’s opinion concerning how the applicant was otherwise substantially impaired pursuant to s 23A.

It was common ground that the applicant’s description of the incident to all three psychiatrists that his stabbing of Ms Vize was accidental and that it had occurred as a result of his intention to suicide (PJ at [239], [256], [271]) was false. The applicant repeated that account in his evidence at trial. The trial judge rejected that evidence and other evidence of the applicant unless it was confirmed or corroborated by independent evidence (PJ at [167]; [206]). No challenge is made to that finding by the trial judge.

The applicant did not identify to which of the limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) these sub-grounds relate. Aside from Ground 1(c), they appear to allege errors of fact that might have been better expressed as particulars or submissions with respect to a ground that alleged the applicant’s conviction was unreasonable. This accounts for the substantial level of overlap in the submissions put in support of Grounds 1 and 2. For convenience, however, it is useful to address each sub-ground in turn.

His Honour set out his reasoning at PJ [307]-[312]. His Honour accepted that a person who suffers from an abnormality of mind might find it difficult to resist certain impulses. If the person’s capacity to control himself or herself was substantially impaired and this led to a deliberate killing, then the partial defence of substantial impairment is made out. There is, however, a step between a finding that a person “did not resist an impulse” and “could not resist an impulse”. This distinction was explained in Byrne and quoted by the trial judge at PJ [30]:

Although there was the evidence of observers, such as the applicant’s mother and brother and the mother of Ms Vize, as to the circumstances surrounding the applicant’s killing of Ms Vize, that evidence did not reach the level of detail which would support the conclusion that the applicant could not, as opposed to did not, control a homicidal impulse at the time of the killing (PJ at [285]). There, his Honour accepted that this evidence does support the diagnoses of the psychiatrists and their conclusion that at the time of the killing the applicant had an abnormality of the mind, but his Honour queried the extent to which that evidence supported a finding of substantially impaired capacity. That distinction was well open to his Honour. Just because the condition of BPD, and to a lesser extent OCD, had the capacity to cause a substantially impaired capacity in the applicant that evidence does not establish that at the time he killed Ms Vize that result had in fact occurred.

The limitation inherent in that evidence should have posed a difficulty for the psychiatrists. Dr Allnutt explained the difficulty in his evidence:

The trial judge recognised this difficulty (PJ at [235]). There, the trial judge said:

It was a difficulty in this case because the applicant’s account of the incident was so different to what had actually occurred. What Dr Allnutt was referring to was the total absence of a reliable account from the applicant. While the applicant submitted that what was asserted by Dr Allnutt and accepted by his Honour was the necessity of obtaining a credible account from him, that was not how the difficulty was put. The trial judge did not assert that there must be a reliable account from an accused before an offence of substantial impairment can be made out, rather it was the particular circumstances of this case which required a reliable account.

To overcome the difficulty identified by Dr Allnutt and the trial judge, the applicant submitted that if his Honour accepted that the applicant deliberately stabbed Ms Vize (and impliedly that the applicant’s account of how he came to kill her was unreliable) the evidence from witnesses to the offence and to its lead up could sufficiently explain the applicant’s state of mind. That evidence has been summarised by the applicant in his written submissions on the appeal ([24]-[56]). What the applicant does not identify is how this evidence singly, or in combination, resolves the issue of whether the applicant’s capacity to control himself was substantially impaired in his favour, as distinct from merely revealing a disordered mind, an emotional mind or an offender consumed with jealousy.

As already noted, the trial judge relied upon the evidence of the surrounding circumstances and the applicant’s prior medical history to conclude that the applicant had an abnormality of the mind (PJ at [285]). The trial judge did not go further and on the basis of that evidence, conclude that the applicant was substantially impaired at the time he killed Ms Vize. That approach was reasonably open to his Honour because of the state of the evidence.

The approach of the trial judge in this case is similar to how Hunt CJ at CL treated the psychiatric evidence in R v Trotter. The accused in that case had an abnormality of the mind. He was alleged to have murdered a two and a half year old child by putting him into a river, after committing a sexual offence upon him. In the absence of any direct statement from the accused as to what was in his mind at the time of the commission of the offences, Hunt CJ at CL found that it was not possible to conclude that he was relevantly affected by his abnormality of mind at the time of the killing.

There, Hunt CJ at CL said:

R v Byrne on the other hand was an example where the offender’s lengthy and undisputed statement (at 400) formed the basis for the conclusion of substantial impairment.

The broad common sense way in which the trial judge approached the applicant’s capacity to exercise self-control was to consider whether there had been planning (PJ at [28]-[31]; [307]). While planning and loss of self- control were regarded by the trial judge as not being inconsistent, he found that the greater the degree of planning and the lower the degree of spontaneity, the more likely it was that an accused “did not resist his impulse” rather than “could not resist his impulse” (PJ at [307]). That approach was consistent with the evidence of Dr Allnutt and with the authority of R v Byrne (at 404).

The evidence of Dr Allnutt was:

Dr Allnutt did not view the statements of Ms Vize’s mother, Ms Hasic, Ms Loke, the evidence relating to the incident at the Wollongong University or the record of telephone calls and texts between the applicant and the deceased. That evidence included observations of the applicant’s behaviour that would have supported a diagnosis of BPD. Although Dr Allnutt had been of the opinion that the applicant had some traits consistent with BPD when he gave evidence, he accepted that the applicant had BPD. That ultimately did not matter. Dr Allnutt concentrated on the significance of planning and the lack of reliable evidence from the applicant. Dr Allnutt did not opine that planning was inconsistent with a loss of self-control. Dr Allnut’s common sense approach was consistent with the law.

It is clear from the recitation of the evidence which was not available to Dr Allnutt when he prepared his report, that it does not go to whether there was a loss of control on the part of the applicant when he killed Ms Vize. It does not overcome the difficulty associated with the total absence of a reliable account from the applicant. What it does go to is the existence of an abnormality of the mind such as was diagnosed, i.e. BPD and OCD. Accordingly, it does not affect Dr Allnutt’s evidence as to loss of control.

It follows, therefore, that the applicant’s criticism of Dr Allnutt’s evidence based on him not being aware of that evidence has not been made out.

The trial judge set out his conclusions as to planning at [307]-[309]. It can be seen from that analysis that his Honour did not give determinative weight to the importance of planning. What his Honour did do was to take into account considerations which were consistent with there being some elements of planning. In doing so, his Honour stressed the absence of a narrative from the applicant which would place those actions in context and enable proper inferences to be drawn (at PJ [309]). That was a legitimate method of reasoning and cannot be characterised as involving determinative weight being given to planning. That part of the appeal has not been made out.

Although not directly raised in the grounds of appeal, at [125] of his written submissions, the applicant relied upon the questions that Hunt CJ at CL posed in Trotter at p 430 which were required to be decided when a defence of diminished responsibility pursuant to s 23A of the Crimes Act was raised. The assessment of Hunt CJ at CL took into account the defence as it then was. The relevant part of s 23(1) at that time was:

The defence of substantial impairment does not require proof that an abnormality of the mind substantially impaired the accused’s mental responsibility for the acts or omissions. The trial judge was not required to consider or express the issues raised in this case in the way Hunt CJ at CL described them in Trotter. The lack of a credible narrative from the applicant resulted in the trial judge not being able to determine the degree of impairment that the applicant suffered. The judge was not required to consider whether there was impairment and then its degree. In any event, the trial judge did make a finding as to the applicant’s impairment (PJ at [306]). This submission by the applicant should be rejected.

The trial judge’s assessment of the evidence of the psychiatrists called by the applicant revealed that each suffered from the lack of a reliable account by the applicant as to his state of mind at the time he stabbed Ms Vize and himself.

Dr Furst assumed or inferred that the applicant had become homicidal and/or suicidal when arming himself. It was logical for Dr Furst to reason back from the time when the applicant stabbed Ms Vize and himself to the time he armed himself with the knife. The applicant was homicidal and/or suicidal at least by then. It was, however, not logical to then infer that the applicant was not homicidal and/or suicidal any earlier. A possibility that the applicant had been homicidal and/or suicidal before he armed himself with the knife, could not be ruled out as a reasonable inference.

Dr Furst’s opinion that the applicant had a “disordered mind” did not resolve the issue. The issue for the trial judge was whether there was substantial impairment. Moreover, this conclusion by Dr Furst also suffers from the same limitation referred to in relation to Ground 1(a). The preceding day or days were not the subject of evidence from the applicant as to how he was dealing with the end of the relationship.

Dr Furst’s opinion was therefore based on an assumption that the applicant became homicidal and/or suicidal at the time he armed himself, that was not proven on the evidence. There was in fact no evidence on the subject.

Dr Furst was entitled to state an opinion based on an assumed fact (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85]). That assumed fact, however, must “be identified and proved in some other way” (Makita at [85]; ASIC v Vines [2003] NSWSC 1095 at [39]). Without a reliable account from the applicant that assumed fact could not be proved.

The applicant set out a number of passages from Dr Nielssen’s evidence (at [130]-[133]). That evidence formed part of Dr Nielssen’s opinion that the applicant was substantially impaired. That evidence was then tested in cross-examination by the Crown. In the course of that cross-examination, the Crown asked Dr Nielssen:

The unstated assumption upon which the opinion of Dr Nielssen was based is revealed by this evidence. While it may have appeared to Dr Nielssen that the killing had been “an impulsive and extreme overreaction to perceived rejection by a person who has those psychiatric vulnerabilities”, only the applicant could know whether it was, as Dr Nielssen conceded. Further, Dr Nielssen accepted that the presence of planning would adversely affect the conclusion of a loss of control.

It follows that the evidence of Drs Furst and Nielssen was therefore not able to prove that the applicant was substantially impaired. Their evidence was not discounted by the judge. Rather, the limitations in their evidence resulted in the substantial impairment not being proved as his Honour explained (PJ at [306]). Their evidence was not wholly dependent on the reliable account from the applicant. With respect to proof of an abnormality of mind, that did not matter. Indeed the trial judge was prepared to accept that the applicant was vulnerable to an impairment of his self-control. What their evidence failed to prove was that there had been a substantial loss of control and that this was due to the established abnormality of mind.

The applicant’s submission that the trial judge failed to make a finding of any degree of impairment should be rejected. The trial judge was not required to make such a finding. On the evidence his Honour was prepared to conclude that the applicant may have been “unstable” and “vulnerable” to an impairment of his self-control (at PJ [306]). His Honour went no further because he was not required to do so.

For the above reasons his Honour properly assessed and explained the evidence of Drs Furst and Nielssen and its limitations. Ground 1(b) should be rejected.

The issue at trial was whether the applicant was substantially impaired when he killed the deceased not when he attempted to kill himself. The judge was required to make no particular finding when it came to the applicant’s attempted suicide. The judge properly took into account the evidence from observers, in particular from the applicant’s mother and his brother, as part of the evidence surrounding the attempted suicide.

The observation by his brother of a blank look on the part of the applicant does not advance the matter. That observation was made after the stabbing of Ms Vize and may have been causally related to it. It is also not clear from the evidence whether the applicant had commenced harming himself when the observation was made.

In any event, as already noted, the trial judge concluded that the applicant had by the time he came to kill the deceased intended to kill himself (PJ at [230]; [301]).

Ground 1(c) has not been made out.

The applicant submitted that the trial judge erred by placing undue weight on the lack of a credible narrative. The submission impliedly accepted that the issue was deserving of weight. Contrary to the applicant’s submission, if this error is established, it would be an error of fact not of law.

In any event, contrary to the applicant’s submission, the trial judge did not reject the evidence of Drs Furst and Nielssen and accept that of Dr Allnutt. His Honour’s approach took into account all of the evidence of Drs Furst and Nielssen, but found that it was not proved that the applicant was substantially impaired. The basis for his Honour’s conclusion on that issue has already been set out.

Ground 1(d) has not been made out.

This ground raises whether the conviction should be overturned pursuant to the first limb of s 6(1) of the Criminal Appeal Act. As set out in Filippou v The Queen (at [128] hereof) the plurality said:

Such a ground can be raised when an applicant carries the onus of proof to establish a partial defence (Potts v R at [92]). The trial judge made no finding with respect to s 23A(1)(b) in this case.

As has been submitted by the applicant, the expert evidence can be assessed from the transcript. The applicant also gave evidence before the trial judge. In this respect, the trial judge had an advantage over this Court although for practical purposes, this factor can be ignored because his Honour’s assessment of the applicant’s evidence is not controversial.

The applicant submitted that the trial judge’s conclusion is unreasonable because he found that a credible narrative from the applicant was essential. His Honour’s finding (at PJ [312]) has to be understood in the context of the case. His Honour did not purport to establish that it was an essential requirement for an accused asserting a defence of substantial impairment, to provide a reliable narrative. The evidence in this case gave rise to a number of possibilities about the mental state of the applicant leading up to the incident. The trial judge set some of them out as examples (PJ at [311]). The point being made by the trial judge was that without a reliable narrative from the applicant, there was nothing to distinguish one possibility from another.

The applicant’s submission ([176]) that even without a credible narrative from the applicant the defence was made out, does not take into account the need to establish error. It is not enough for the applicant to assert that on the available evidence it was more probable than not that the applicant’s capacity to control his actions was substantially impaired. The applicant needs to establish that there was no or insufficient evidence to support the finding or that the finding is otherwise unreasonable, or the evidence was all one way.

The applicant challenged the trial judge’s conclusion as to when he formed the intent to suicide. Dr Furst recounted the applicant’s description of the incident and did not accept that the applicant had intended to disable himself. Consistent with what the applicant said at the time of the incident, Dr Furst thought that he was trying to kill himself and that was the most reliable account he had given. In particular, Dr Furst was of the opinion that the applicant was suicidal at the time of the incident and that as a result, it was more likely than not that he was still suicidal before the injuries were inflicted on Ms Vize. Dr Furst reached that conclusion on the basis that the applicant intended to inflict injuries on her and on the applicant’s reports of feeling suicidal leading up to the incident.

The applicant also challenged the trial judge’s treatment of his OCD. In doing so, the applicant misunderstood the trial judge’s conclusion. The trial judge accepted that the applicant’s OCD was “a contributor to a level of dysfunction of agitation on his part”.

The justification for the trial judge’s treatment of the evidence of Drs Furst and Nielssen is set out with respect to Ground 1. Like R v Trotter, this was a case where in the absence of reliable evidence from the applicant, a substantial incapacity to control himself could not be made out. The applicant clearly had an abnormality of the mind. BPD reveals itself in, inter alia, a fear of rejection. That said, the applicant may well have succumbed to jealousy and planned the killing, or did not resist the impulses that arose in him or both, that is the level the evidence reached. His Honour well understood the limitations of that evidence.

In those circumstances, error in his Honour’s approach has not been established and this ground of appeal has not been made out.

It follows from the above, that the applicant has failed to make out the grounds on which his appeal against conviction is based. Accordingly, the order which I propose is that leave to appeal against conviction be granted but the appeal be dismissed.

On 8 September 2016 the trial judge found the applicant guilty of the murder of Cherie Vize on 22 July 2013. On 2 December 2016, his Honour sentenced the applicant to imprisonment for 20 years, with a non-parole period of 15 years, commencing 9 September 2015 and expiring 8 September 2030, with a balance of term of 5 years, expiring 8 September 2035. The maximum penalty for murder is life imprisonment with a standard non-parole period of 20 years applies.

The applicant seeks leave to appeal from his sentence on the following grounds:

Detailed evidence concerning the occurrence of the offence is set out earlier in these reasons. Accordingly, the following is intended to supplement that material.

At the time of her death, Ms Vize was aged 25 and the applicant was aged 24. At the time of sentence, the applicant was aged 27. Both Ms Vize and the applicant were passionate about the visual arts. The applicant graduated from the University of Sydney with a Creative Arts degree in May 2013, but as of 22 July 2013 he had not found work. Ms Vize was enrolled in the same degree at the date of her death. She worked in various art stores across Sydney.

The following additional factual information is taken from the sentencing judgment (R v Quinn (No 3)) and I do not understand any of it to be controversial.

Ms Vize and the applicant commenced a relationship in about May 2010. They saw each other continuously from that time until her death, although during that period they saw other people as well. At times the relationship was tumultuous, but there is no suggestion that the applicant was violent towards Ms Vize before he killed her, although he did threaten self‑harm on at least one occasion. The volatility in their relationship was most likely a result of the manifestation of the applicant’s BPD and compulsive traits. Ms Vize’s mother recalled that the applicant constantly telephoned their home to find out where she was. By contrast, the witnesses invariably described Ms Vize as a caring person who was conciliatory towards everyone.

Approximately three weeks to a month before her death, Ms Vize commenced another relationship with Andrew Meyers. On the morning of 22 July 2013, the applicant and Ms Vize were asleep in his bedroom until some time after 9am. Subsequently, each of them came out of the bedroom separately for a brief period and then returned. Later they both came out of the bedroom together and had some orange juice in the kitchen. Ms Vize told the applicant’s mother that they were going to spend the day painting together. The applicant’s mother observed “While I was speaking with them, everything seemed fine”. Mrs Quinn, however, had heard them argue the night before during which time Ms Vize cried. The applicant told his mother about his distress that Ms Vize was seeing somebody else. The sentencing judge was satisfied that the argument the night before the murder arose out of Ms Vize telling the applicant that their relationship was over and that she intended to continue seeing Mr Meyers.

At around 10.30am on 22 July 2013 Mrs Quinn saw Ms Vize walk outside the front of the house. About a minute or so later, she heard the front door “bang”. A short time later, Mrs Quinn heard Ms Vize say “Michael don’t do that”. It seems that the applicant had taken a knife from the kitchen that was approximately 20cm in length. He went to the front yard and attacked Ms Vize. She resisted and suffered defensive slash wounds to her right hand. She also suffered four superficial incised wounds to her neck as the applicant tried to cut her throat. The applicant stabbed her fatally in the neck, inflicting a wound of between 5cm and 10cm in depth which cut her carotid artery and jugular vein.

On hearing what appeared to be a struggle, Mrs Quinn ran to the front yard and arrived at or shortly after the time when Ms Vize was fatally stabbed. She observed Ms Vize to be bleeding profusely and attempted to help her. A neighbour came to her assistance and rang triple 0.

By this time the applicant’s younger brother, Thomas, had run to the front yard in response to his mother’s screaming. He observed Ms Vize’s eyes were rolling and she was “gasping for air”. He ran into the house to obtain some towels. When Thomas returned, he saw the applicant in the front yard stabbing himself in the chest with a knife. Thomas ran inside and telephoned his father. He returned to find the applicant near the nature strip. By this time the applicant had already stabbed himself in the neck. The knife was protruding from his neck. It was this injury that rendered him a quadriplegic.

Paramedics and police began to arrive at the scene. Both Ms Vize and the applicant were transported to hospital. Ms Vize’s neck was operated upon, but to no avail. Sometime during the evening of 22 July 2013, she died at Wollongong Hospital from blood loss consequent upon the wound in her neck. Her parents were by her side.

In the Principal Judgment, the sentencing judge concluded that the applicant had deliberately stabbed Ms Vize in the neck. He was satisfied that the applicant intended to kill her and then kill himself. The sentencing judge accepted that he did so because he realised that his relationship with Ms Vize was “over or coming to an end” and that he was distressed from reading the text messages she sent to Mr Meyers on 21 July 2013. As for how long the applicant held an intention to kill Ms Vize and himself, the sentencing judge found:

The sentencing judge observed that since there was no reliable evidence of the applicant’s state of mind before he seized a knife in the kitchen, he was not able to conclude whether or not the applicant formed an intention to kill Ms Vize before that point in time. By reference to R v Olbrich [1999] HCA 54; 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ) the sentencing judge directed himself that he could not take into account facts adverse to an offender unless they were established beyond reasonable doubt and might take into account facts favourable to an offender if they were proved on the balance of probabilities. As a result, the sentencing judge could not be satisfied that the murder of Ms Vize was either premeditated or spontaneous.

The sentencing judge referred to the recording of the triple 0 call in which Ms Vize’s distress could be heard in the background. In relation to that, the sentencing judge observed:

In relation to the impact of Mr Vize’s death, the sentencing judge found:

In addition, his Honour had regard to a victim impact statement from Ms Vize’s mother. Having received the statement, the sentencing judge considered it appropriate to take the statement into account in connection with the determination of punishment for the applicant, in particular as part of the assessment of the harm done to the community by him killing Ms Vize.

Ms Vize was her parents’ only child and her mother and her father’s lives revolved around her. They hoped that she would have a family of her own and a successful career in the arts. Instead, Mrs Vize said that their “lives were shattered and our future was destroyed” and all they were left with were memories. Those memories included the times when their daughter helped them care for sick animals in their family pet shop, as well as the occasions when she assisted children with disabilities with their artwork.

By way of illustration of the suffering experienced by Ms Vize’s parents, the sentencing judge took note of the fact that later on the afternoon of 22 July, Mrs Vize was contacted by a social worker from the Wollongong Hospital. She and her husband caught a taxi to the hospital. During the taxi ride, she heard on the radio that someone had been stabbed and realised that it was her daughter. When they arrived at the hospital, she was advised of what had happened and spent some time with her daughter before she died. Ms Vize’s mother and father live in southern Sydney. The taxi ride to a hospital in the Illawarra region would have taken at least an hour. The sentencing judge noted that “the events of that day, including that journey, could have been nothing other than pure agony for Mrs Vize and her husband”.

As part of the applicant’s subjective case, the sentencing judge had regard to the applicant’s defence at trial because those aspects which related to his mental condition had an ongoing significance for the sentencing exercise, both in terms of the level of criminality involved in the murder and his present functioning.

The sentencing judge noted that he had rejected the applicant’s evidence at trial, which was not confirmed or corroborated by independent evidence, including his assertion that he did not intend to harm Ms Vize. His Honour did so because the applicant’s evidence on disputed matters was implausible, internally inconsistent and inconsistent with the objective evidence, or a culmination of those matters.

His Honour further noted that at trial the applicant argued that his criminal culpability should be reduced from murder to manslaughter because of the partial defence of substantial impairment by an abnormality of mind provided for by s 23A of the Crimes Act. The onus of proof in respect of that defence was on the applicant and it was to the standard of the balance of probabilities.

His Honour noted that to establish the defence, the applicant was required to demonstrate that at the time he stabbed Ms Vize, he was subject to an abnormality of mind arising from an underlying mental or physiological condition, other than one of a transitory kind and that his capacity to control himself was substantially impaired by that abnormality and that this impairment was so substantial as to warrant his criminal liability being reduced from murder to manslaughter.

The sentencing judge found in the Principal Judgment that at the time he committed the act that caused Ms Vize’s death, the applicant suffered from an abnormality of mind arising from an underlying condition which was not of a transitory kind, being OCD and BPD. The sentencing judge did not accept that the applicant’s capacity to understand events, judge whether his reactions were right or wrong, or control himself, was substantially impaired by those abnormalities. The sentencing judge further noted that in the Principal Judgment he did not accept that the applicant’s OCD made any significant or substantial contribution to any loss of control on his part when he stabbed Ms Vize. The sentencing judge further noted that in terms of his present condition, the applicant’s OCD had apparently abated as his physical limitations precluded him from giving effect to his compulsions which consequentially reduced their effect on his mental state.

The sentencing judge reiterated his finding in the Principal Judgment that BPD involves a “prolonged disturbance of personality function characterised by a depth and variability of moods” which typically “involved unusual levels of instability of mood, chaotic and unstable interpersonal relationships, self image problems, identity problems” and “behavioural problems”, as well as a disturbance of the individual’s sense of self. Attempted and completed suicide were possible outcomes for persons with BPD.

The sentencing judge noted that even though in the trial he had not been satisfied on balance that the applicant’s impairment was so substantial as to warrant his criminal liability being reduced from murder to manslaughter, this did not mean that the applicant’s BPD was not of significance to an assessment of his criminality.

In the Principal Judgment, the sentencing judge had accepted that the applicant’s BPD “had the capacity to increase his feeling of abandonment and reduce his capacity to control his responses”. The sentencing judge also found in the Principal Judgment that the applicant was:

Accordingly, the sentencing judge accepted that the applicant’s BPD contributed to his offending. The sentencing judge accepted that it operated to diminish his moral culpability for the offence, but only to a small degree. His Honour referred to Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] which cited, inter alia, R v Pearson [2004] NSWCCA 129 at [43].

The sentencing judge found that although the applicant’s BPD was still present, it was difficult to gauge its effect on a person who was in prison and was dealing with quadriplegia. His Honour noted that the applicant presented as bitter and angry when he gave his evidence and while in custody there had been difficulties with support staff. His Honour accepted that the applicant’s BPD would make his conditions of custody more difficult, especially the enforced separation from his family.

The sentencing judge noted that at the time of the murder of Ms Vize, the applicant had no previous criminal convictions and there was no suggestion that he had engaged in any previous instances of domestic violence. Accordingly, his Honour found that he was a person of good character. His Honour also found that the applicant had, and continued to have, very supportive parents.

The sentencing judge noted that after he stabbed himself in the neck on 22 July 2013, the applicant remained in a coma until September. He was not charged with murder until 10 September 2013 when bail was granted to allow him to be treated in the Spinal Injuries Unit at the Prince of Wales Hospital. While there, the applicant sent a message via Facebook to Ms Hasic which was disparaging of both her and Ms Vize. Despite Crown submissions to the contrary, his Honour was not prepared to find beyond reasonable doubt that this message was intimidatory.

The applicant was discharged from the Prince of Wales Hospital in June 2014 and his bail conditions were altered to allow him to be treated at Coledale Hospital from that time. His bail was revoked on 9 September 2015 (see Director of Public Prosecutions (NSW) v Quinn [2015] NSWSC 1326). Since that time the applicant had been detained in the hospital facility at the Long Bay Correctional Centre.

In the sentencing proceedings, a report from Dr Lee, a specialist in spinal cord injuries, was tendered on the applicant’s behalf. Dr Lee examined him upon his release from Prince of Wales Hospital in June 2014 and re-examined him on 9 November 2016. In the report, Dr Lee described the applicant as having “incomplete C3-4 tetraplegia”. At the time of sentence, the applicant was using a powered wheel chair controlled by a chin operated joystick. He was overweight. He managed his bladder with a catheter but required an enema to clean his bowels every second day. The applicant continued to be vulnerable to deep vein thrombosis, having experienced it while in custody. The applicant had only limited movement in his shoulders, his left elbow and fingers. He had no movement in his hips, but some limited movement in his knees. Dr Lee noted that there was “worsening power in his elbows and knees” and that this was indicative of a deterioration in his neurological status since 2014.

Dr Lee recorded that the applicant was taking an array of medications. Three or four staff were required to assist him with hoist transfers and he required “assistance with all activities of daily living”. Dr Lee described the level of care that the applicant required as “[equating] to 24 hour care”. Dr Lee opined that the resources required to care for him did not “exist outside an institution and were not compatible with community living”.

Dr Lee identified the health risks that the applicant faced as including “skin issues”, a risk of pneumonia as well as heart disease and stroke from sleep apnoea and obesity, kidney disease, autonomic dysreflexia (being a sudden onset of high blood pressure), fractures, pressure sores, a heightened risk of DVT, urinary tract infections, neuropathic pain, sepsis and suicide. Dr Lee estimated that the applicant had a life expectancy which was approximately in the range of 64 – 69 per cent of a normal life expectancy, i.e. somewhere between 51 and 55 years.

Dr Lee considered that the applicant had deteriorated since June 2014. Because of his “non-compliance with therapy interventions” and his dependence on assistance to arrange transfers, Dr Lee concluded that the applicant would require ongoing institutionalisation unless there were some significant psychological and behavioural changes.

At the sentence hearing, it was common ground that the applicant’s disabilities were such that he would never be accommodated within the general prison population. Instead he would continue to reside in a hospital facility within the prison system.

It was submitted, on behalf of the applicant, that he was in a virtually “unique position” within the criminal justice system by reason of the combination of his mental condition and physical disabilities. Senior counsel for the applicant submitted that he could only obtain intellectual stimulation through electronic means, such as television, and through social contact with prisoners and family, yet these avenues would be significantly limited. In written submissions, senior counsel contrasted his position in prison with that of a residential care facility in which he would have free access to the internet and more frequent and longer visits from his parents. Ultimately, senior counsel submitted that the consequence was that he was a person who will be “imprisoned within his body” for the rest of his life. Senior counsel submitted that when that was coupled with the limitations of the correctional system, the applicant’s position was “intolerable”.

The sentencing judge noted that the circumstances now faced by the applicant, being his mental condition and his quadriplegia albeit that the latter was of his own doing, raised difficult issues for a sentencing court. His Honour took as his starting point to resolve those issues that equality before the law was a fundamental norm of the legal system. His Honour referred to the explanation by Gaudron J in Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461 at 71 where her Honour said that equality before the law required the equal treatment of that which is not relevantly different and the differential treatment of that which was relevantly different in a manner which reflected that difference.

The sentencing judge took into account the purposes for which a court imposes a sentence as stated in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) in the context of the applicant’s crime and personal circumstances, including his quadriplegia. His Honour found that those purposes included the specific deterrence of the applicant from committing an offence, the protection of the community and the need to promote the rehabilitation of offenders (s 3A(a),(c),(d)). The sentencing judge noted that were it not for the applicant’s physical disabilities, there would be a need to specifically deter him from committing an offence and a need to protect the community. His Honour found that although he had no prior criminal convictions, the nature of his mental condition was such that there would have been a significant risk of him engaging in serious anti-social conduct if the same or similar circumstances were to recur (DPP (Cth) v De La Rosa at [177] citing R v Israil [2002] NSWCCA 255 at [24]). His Honour concluded, however, that the applicant’s physical disabilities were such that he did not represent a danger to the community other than possibly to his carers.

The sentencing judge took into account that s 3A(b) of the Sentencing Act identified the need to deter others from committing similar offences as one of the purposes for which a court might impose a sentence. The sentencing judge rejected the submission by senior counsel for the applicant that general deterrence should play a significantly diminished role in a case such as this where the applicant’s unsuccessful suicide attempt was inextricably linked to his murder of Ms Vize and he was otherwise suffering from BPD. This was because, as his Honour explained, the killing of a woman as a consequence of her decision to leave a relationship was a persistent evil (see for example R v Maglovski (No 2) [2013] NSWSC 16). His Honour noted that it was not uncommon in such cases for the offender to be experiencing extreme distress and for the personal circumstances of the offender to warrant some sympathy. His Honour found that despite such considerations, the necessity for a sentence to reflect the need for general deterrence in such cases remained high, even in cases as extreme as that of the applicant.

The sentencing judge referred specifically to s 3A(g) of the Sentencing Act which specified that recognition of the harm done to the victim and the community from the offence was one of the purposes for which a court imposes a sentence. His Honour found that that principle applied irrespective of the applicant’s circumstances.

In relation to the Sentencing Act generally, his Honour noted that s 3A(a) identified the necessity to ensure that an offender was adequately punished for the offence, that s 3A(f) identified the need to denounce the conduct of an offender and that s 3A(e) specified that making an offender accountable for their action was also one of the purposes of sentencing.

Senior counsel for the applicant submitted that he had inflicted on himself a “far greater punishment than any court could inflict on him” and that he would, for the rest of his life, be imprisoned within his body. Senior counsel submitted that public awareness of the extent of his injuries ameliorated the extent of any denunciation that might be required.

When considering that submission, his Honour found that two lines of authority were engaged. The first concerned what is called “extra curial punishment” where in some circumstances, an offender who suffered harm from a third party as a consequence of their offending, such as a vigilante, would have their penalty mitigated so that overall they were adequately and not excessively punished. On that issue, his Honour found that he was bound by authority not to afford any leniency where the harm was deliberately self-inflicted (Christodoulou v R [2008] NSWCCA 102 at [42] per Grove J with whom Johnson J agreed; Betts v R [2015] NSWCCA 39).

The second line of authority concerned the hardship occasioned to the applicant from being in custody while experiencing his mental and, most significantly, his physical disabilities. Where matters of that kind have the result that imprisonment “will be a greater burden on the offender”, the second line of authority dictated that they warranted leniency (R v Smith (1987) 44 SASR 587 at 589). His Honour noted that he had already discussed the particular hardships that will be occasioned to the applicant from incarceration in a prison hospital compared to a care facility. His Honour accepted that this was compounded by his BPD. His Honour had no doubt that a gaol sentence would seem like an eternity to the applicant because he would only have his thoughts to contend with. His Honour found that given the applicant’s circumstances, the differential impact of the effect of custody on him was a matter that warranted substantial leniency.

The sentencing judge noted that s 21A(2) of the Sentencing Act set out a series of aggravating factors which the court was to take into account when determining the appropriate sentence. His Honour noted that those factors could not be considered as aggravating the offence if they were elements of the offence. Section 21A(3) set out a series of mitigating factors.

In the sentence proceedings, the Crown pointed to four potentially aggravating factors. The first two were that the offence involved the actual use of violence (s 21A(2)(b)) and the use of a weapon (s 21A(2)(c)). The Crown did, however, accept that these were essential elements of the offence and should not be considered separately from it. The third factor identified by the Crown was that the offence was committed in the “home of the victim or any other person”. The Crown contended that the crime was committed in the applicant’s home but that it was also the home of his family and a temporary home for Ms Vize. His Honour rejected the proposition that the applicant’s home was a “temporary home” for Ms Vize. In addition, his Honour was not prepared to interpret s 21A(2)(eb) as extending to a home occupied by the offender but not the victim. The fourth aggravating factor suggested by the Crown was that the crime was part of some planned criminal activity (s 21A(2)(n)). His Honour declined to take that matter into account as an aggravating factor.

His Honour noted that six mitigating factors were raised on behalf of the applicant. The first two were that he had no prior convictions and was a person of prior good character. His Honour accepted that those factors had been made out, although they were diminished by his conduct at university in 2009.

The third and fourth factors relied upon were that he was unlikely to offend again and had good prospects of rehabilitation. His Honour accepted that submission, although noting that it mainly followed from the applicant’s physical limitations.

The fifth mitigating factor concerned the conduct of the trial. His Honour noted that s 21A(3)(l) provided that the degree of pre-trial disclosure by the defence was a mitigating factor in sentencing. Section 22A(1) expanded upon this by enabling a court to impose a lesser penalty than would otherwise be the case, having regard to the degree to which the administration of justice has been facilitated by an offender’s defence, including by disclosures made before or during the trial. The qualification was that any such lesser penalty must not be disproportionate to the nature and circumstances of the offence (s 22A(2)).

The sentencing judge agreed that the manner in which the trial was conducted on behalf of the applicant meant that these provisions were enlivened. His Honour accepted that in many respects the trial was not an easy one for the parties. The sitting hours of the court were reduced to accommodate the applicant’s impaired capacity. His Honour noted that if every Crown witness had been required for an exhaustive examination on all issues, the trial might still be continuing. Instead, in advance of the trial, the Crown and the court were advised by the defence what the issues in the trial would be. During the course of the trial, many witnesses’ statements were tendered without the author being required to attend. His Honour found that the cross‑examination of Crown witnesses was conducted efficiently and that overall he was satisfied that the defence facilitated the administration of justice. His Honour found that some leniency was to be afforded on that account.

The sixth potentially mitigating factor concerned the applicant’s remorse. Section 21A(3)(i) of the Sentencing Act provided that the remorse of an offender is a mitigating factor, but only if the offender has provided “evidence that he or she accepted responsibility for his or her actions” and “has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage”. His Honour found that throughout his evidence at the trial, the applicant expressed regret and sorrow for Ms Vize’s death but he did not in any real sense accept that it was his responsibility.

His Honour noted that in the sentencing hearing a letter dictated by the applicant was tendered by consent. The applicant asked the court to accept it as a “letter of remorse”. In that letter, he stated that he had “taken a life, the life of a daughter, a sister, a niece, a friend” as well as the possibilities for Ms Vize of “motherhood”, a “satisfying and meaningful career” and “grandchildren for her parents”. He also expressed regret for the hardship that he had occasioned to his own family. The applicant stated that he was “so very deeply, so very sorry”.

His Honour accepted that the applicant regretted both the death of Ms Vize and the terrible hardship that had befallen her family and his own family. However, having heard him give evidence over a number of days, his Honour did not accept the belated statement of personal responsibility that was set out in his letter. His Honour noted that the remorse described in s 23A(3)(i) is one which involves the applicant accepting that Ms Vize’s death and the suffering that ensued were caused by his actions in deliberately stabbing her. His Honour was not satisfied that the applicant accepted that.

His Honour set out his conclusions as follows:

His Honour then proceeded to impose the sentence which was taken to have commenced on 9 September 2015 and in relation to which the applicant would be eligible for release on parole on 9 September 2030.

The applicant submitted that this case differed from the usual case involving domestic violence leading to death in that the applicant had a recognised abnormality of the mind at the time of the offence which not only impacted upon his moral culpability for the offence but also was causally connected with the attempt to end his own life. The applicant submitted that his mental condition was such as to cause him to seriously attempt to kill himself and the fact that he continued to suffer suicidal ideation was relevant to the nature and extent of his mental abnormality and the effect of it on him and to whether he was an appropriate vehicle for general deterrence.

The applicant relied upon the statement of principle by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa at [177]-[178] where his Honour said:

The applicant submitted that in accordance with that authority whether general deterrence should be moderated or eliminated as a sentencing consideration depended on the nature and severity of the symptoms of the condition exhibited by the offender, and its effect on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

The applicant submitted that his Honour found that he was suicidal at the time he picked up the knife in the kitchen and that he intended to kill himself at that time as well as Ms Vize. Dr Furst and Dr Nielssen considered that the applicant's attempted suicide arose from, and was a consequence of, his BPD. Accordingly, his psychiatric disorder ultimately gave rise to the motive to do what he did, including the attempt to end his own life. The applicant submitted that his Honour failed to take these matters into account when considering the weight to be given to general deterrence.

The applicant further submitted that his Honour erred in not considering whether the applicant’s mental condition, both at the time of the offence and at the time of sentence, made him an appropriate vehicle for general deterrence. The applicant submitted that the need for general deterrence did not remain high but was significantly diminished. He was not an appropriate vehicle for general deterrence.

It needs to be kept in mind that his Honour gave careful consideration to the weight which should be given to general deterrence in the sentencing of the applicant. His Honour went into considerable detail in setting out the basis for the conclusion which he reached, i.e. that while the applicant’s moral culpability was to be reduced because of the effect his abnormal mental condition had on him at the time of the offending, general deterrence should still play a significant role in the applicant’s sentence. This was not one of those cases where there had been a failure to consider, or fully consider, a sentencing principle but rather one where the applicant challenged the result, i.e. the analysis and therefore the exercise of discretion, by the sentencing judge.

The process to be followed by this Court when a challenge of that kind is made to a finding on sentence was discussed by the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) in Munda v Western Australia [2013] HCA 38; 244 CLR 600 at [34]:

In this case the sentencing judge, both in the principal judgment and in the sentence judgment, accurately described the applicant’s mental condition at the time of the offence (Sentence judgment, [24]-[35]). His Honour accepted that the applicant suffered from an abnormality of the mind and that although he was not substantially impaired, his BPD was still of significance. It contributed to his offending (Sentence judgment, [33]-[34]). His Honour did not accept that the applicant’s OCD played a role in his offending. Despite the judge’s finding that the applicant’s BPD contributed to his offending in the way his Honour described it (Sentence judgment, [33]), the applicant still had an ability to control his actions.

The criminal law gives significant weight to general deterrence, denunciation and community protection when sentencing an offender who takes the life of his partner or former partner as it does with respect to offences of domestic violence generally. On this issue, the observations of the plurality at [54]-[55] of Munda v Western Australia are of assistance:

One aspect of the protection accorded by the law to persons, particularly women in a domestic relationship who wish to end that relationship, is explained by Adamson J (Bathurst CJ and Leeming JA agreeing) in Patsan v R [2018] NSWCCA 129 at [39] where her Honour said:

In The Queen v Kilic [2016] HCA 48; 259 CLR 256 the Court (Bell, Gageler, Keane, Nettle and Gordon JJ) at [21] recognised a societal shift in relation to domestic violence when their Honour said:

Part of that change in approach can be seen in Glynn Kaderavek v R [2018] NSWCCA 92 at [12] where Hamill J (Beazley P and Schmidt J agreeing) said with respect to a domestic violence case that “the weight to be given to general deterrence was substantial notwithstanding his Honour’s findings concerning the applicant’s mental health problems”.

For the purposes of general deterrence, it is not of significance that the applicant intended to take his own life. The applicant is taken as a member of the general population, not a limited class of the population who contemplate a murder/suicide. Gleeson CJ in Engert v R [1995] 84 A Crim R 67 said at 68 when referring to the relevance of mental illness to the sentence process:

In this case the sentencing judge exercised his sentencing discretion when concluding that there was a need for general deterrence. In doing so, he accurately and completely reviewed the relevant facts, including the applicant’s mental health and its effect on the offending. As indicated earlier, that discretion is well recognised and for it to be successfully challenged, House v The King error needs to be identified. In Lowndes v The Queen [1999] HCA 29; 195 CLR 665 the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) stated that principle in clear terms:

This ground of appeal has not been made out.

The applicant submitted that his Honour erred in limiting the mitigatory effect of the applicant’s injuries on his onerous conditions of custody. The applicant submitted that in doing so, his Honour fettered his discretion to take the applicant’s injuries into account as a further mitigatory factor.

The applicant submitted that the courts have recognised that mitigation of sentence is warranted on the basis of extra curial punishment where:

The applicant accepted that it has not been generally accepted that mitigation of sentence is warranted where an offender has intentionally caused himself or herself serious injury. The applicant accepted that the foundational case for that proposition is Christodoulou v R which was followed in Cvetkovic v R [2013] NSWCCA 66 and Betts v R. The applicant submitted that to the extent that Christodoulou and Betts have been considered to mandate that deliberately self-inflicted injuries may never be taken into account as an independent mitigating factor, such an approach places an impermissible fetter on judicial discretion. In that regard, the applicant relied upon Parente v R [2017] NSWCCA 284.

By a review of decided cases, the applicant sought to fashion a principle that self-inflicted injuries could amount to extra curial punishment where those injuries were caused by somebody with a mental illness, particularly where the mental illness explained both the primary offence and the actions which led to self-inflicted injuries. The leading example relied upon by the applicant was a single judge decision by Mathews AJ in R v Riley [2008] NSWSC 1477. The facts of that case involved the offender shooting his estranged wife’s lover at point blank range in the abdomen and head and then attempting suicide by discharging the shotgun into his mouth. He was charged with murder, but found guilty of manslaughter on the basis of substantial impairment. He had no memory of the killing but there was evidence that he was suffering from depression which was related to his relationship with his wife. As a result of the suicide attempt, he suffered a very severe traumatic brain injury resulting in a number of permanent and serious intellectual and emotional deficits.

Her Honour found that the attempted suicide was integrally related to the killing and that the offender’s abnormality of mind had led him to perform both actions. Her Honour found that the offender would not have attempted suicide had he not already killed the deceased. Accordingly, her Honour found that the offender was entitled to have his sentence mitigated as a result of extra curial punishment, even though the injuries were self-inflicted. Her Honour did not refer to any authority in reaching that conclusion. It was handed down 13 days before the decision of Christodoulou v R.

The applicant submitted that there is no Court of Criminal Appeal authority where there has been a considered analysis of whether extra curial punishment could operate as a mitigating factor in the context of an offender who has an abnormality of the mind which is integrally related to both the offence in question and the contemporaneous self-infliction of serious injuries.

The applicant therefore invited this Court to accept the proposition that where an abnormality of mind is integrally related to both the offence in question and the self-infliction of serious injuries, to prohibit taking into account the nature of the injury suffered is to exclude important facts relevant to the offence, the offender and to punishment. In support of that proposition, the applicant relied upon the statement of principle in Regina v Daetz; Regina v Wilson [2003] NSWCCA 216; 139 A Crim R 398 where James J (Tobias JA and Hulme J agreeing) said:

The applicant submitted that because of the extent of the applicant’s injuries, the purposes of punishment were served to a high degree. He submitted that he intended suicide, not to survive suffering catastrophic injuries. He submitted that he will be in prison for the rest of his life in his body with all its physical restrictions. The applicant submitted that in the light of his injuries, accountability, retribution, denunciation and deterrence all had a diminished role to play.

The applicant has mischaracterised his Honour’s approach to extra curial punishment in this case. His Honour was not binding himself in an absolute way to a principle of law. His Honour was merely following the authority of this Court in Christodoulou v R and Betts v R. In that regard, the issue dealt with in Parente v R does not arise.

The background to Parente was that there was a statement in an earlier decision of this Court to the effect that in cases of substantial drug supply, a custodial sentence should normally be imposed. That was interpreted in subsequent decisions, both of this Court and in lower courts, as establishing a principle that substantial drug supply must always be met with the imposition of a prison sentenced. Parente is authority for the proposition that such an approach was incorrect because it unduly fettered the sentencing discretion of judges in such matters.

That is not the approach followed by the sentencing judge here.

Extra curial punishment was recognised as a mitigating factor in R v Daetz. With some qualifications, a limit to the concept of extra curial punishment is harm that is self-inflicted by the offender. In Christodoulou, Grove J at [42], Johnson J agreeing at [45] and Campbell JA not deciding, held that the concept of extra curial punishment should not be extended to injury deliberately caused by an offender to himself or herself as opposed to injury to an offender that arises out of the commission of the offence.

In Christodoulou v R the offender had committed offences of assault, intimidation and malicious damage. When police arrived, he threatened to inject himself if they came close. He continued offending. At some stage, the contents of the syringe which consisted of hydrochloric acid did enter the offender’s arm resulting in a substantial and permanent disability. Grove J with the concurrence of Johnson J declined to regard the disability as extra curial punishment. His Honour observed:

The sentencing judge in this case did no more than follow that authority.

The applicant in Cvetkovic v R was sentenced for wounding with intent to murder his former wife by repeatedly stabbing her. After she escaped, the applicant began to stab himself. He contended that the judge should have taken his wounds into account as extra curial punishment. McCallum J (Price and Schmidt JJ agreeing) noted (at [30]) that the judge was bound to apply Christodoulou v R and therefore did not err in rejecting the offender’s claim of extra curial punishment. Special leave to appeal to the High Court was refused. The High Court judges hearing the application for special leave (Bell and Gageler JJ) remarked that “an appeal on the ground that Christodoulou v R was wrongly decided would enjoy insufficient prospects of success to warrant a grant of special leave to appeal” (Dragan Cvetkovic v The Queen [2013] HCASL 131).

Betts v R was another case where the offender attempted to kill the victim as well as commit suicide. RS Hulme J (Meagher JA and Hidden J agreeing) held (at [35]) that “there was no basis advanced upon which this Court could conclude that Christodoulou v R was wrongly decided”. The appeal to the High Court did not deal with this issue: Betts v The Queen [2016] HCA 25; 258 CLR 420.

The applicant’s submission as to there being a lack of clarity in the law on this issue, should also be rejected. The distinction to be drawn, as set out by Christodoulou v R and Betts v R is clear. Injuries suffered by an applicant in, or in connection with, the commission of the offence even if the result of deliberate acts are able to be taken into account as extra curial punishment. Harm which an offender deliberately inflicts upon himself or herself lies outside what is regarded as extra curial punishment.

The applicant referred to the sentencing remarks of Mathews AJ in R v Riley. The sentence in R v Riley was imposed after the hearing of the appeal in Christodoulou v R but before judgment. That Mathews AJ took into account the offender’s self inflicted injuries does not detract from the decisions of this Court that are set out above. Further, the case appears to be restricted to its own facts. The offender was no longer himself as a result of his attempted suicide (R v Riley at [34]).

In this case, the applicant’s BPD contributed to his offending in the way described by the sentencing judge (Sentence judgment, [33]-[34]). The applicant’s assertion that there is no authority of this Court that deals with the self-inflicted injury of an offender with an abnormality of mind should be contrasted with the states of mind of the offenders in the cases that have been cited. The applicant in Christodoulou v R was in a “highly disturbed and emotional state”. The applicant in Cvetkovic v R was depressed when he stabbed his former wife. The applicant in Betts v R was motivated by jealousy. Self-inflicted injuries usually result from a highly emotional or disordered state of mind. Distinguishing an offender with an abnormal mind, as defined in s 23A of the Crimes Act does not take into account the reality of this type of offending. What is also common to these cases and to this case is violence committed by a male against a partner, former partner or, as in the case of R v Riley, the lover of the offender’s wife. Jealousy or a desire to control are common motives. The sentencing judge was well aware of this (Sentence judgment, [48]).

Allowing the applicant’s self-inflicted injuries to mitigate the sentence as extra curial punishment fails to take into account that, in the light of the judge’s findings, the applicant’s injury was at least in part his own choice. There is also something abhorrent and against public policy in murder/suicide cases where an offender who is unsuccessful in his suicide attempt can in some way be rewarded for that lack of success by the results of the failed suicide being taken into account by way of mitigation.

In that regard, the remarks of the sentencing judge in Betts v R (at [22]) are relevant:

The sentencing judge did not err in following Christodoulou v R and Betts v R and in rejecting the applicant’s contention that he had suffered extra curial punishment. No good reason has been put forward by the applicant as to why Christodoulou v R and Betts v R were wrongly decided. This ground of appeal has not been made out.

The applicant submitted that the fact that his psychological condition and physical disabilities were taken into account when fixing the head sentence did not obviate the need to consider whether in the unusual circumstances of this case his circumstances were “sufficiently special” to amount to special circumstances and for the non-parole period to be reduced. While the applicant accepted that a finding of special circumstances is a discretionary finding of fact, in respect of which this Court will be slow to intervene (Jiang v R [2010] NSWCCA 277 at [83]) the applicant submitted that given the evidence in the present case, his Honour’s discretion miscarried.

The applicant submitted that in this case the purposes of punishment were limited. His Honour found that the protection of the community and specific deterrence had no role to play in the sentencing. The applicant’s moral culpability for the offence was reduced because of his abnormality of mind. The extent and nature of his catastrophic injuries placed him in a unique situation in the prison population. The applicant submitted that mercy required that there be a variation in the statutory proportion. The applicant submitted that the non-parole period of 15 years was well in excess of the minimum period which was required in all the circumstances.

The sentencing judge declined to find special circumstances because the applicant’s mental and physical condition had already been taken into account in determining the appropriate sentence. His Honour also determined that the term of the sentence which was imposed would provide for a long period of supervision on parole.

The variation of the statutory ratio between the head sentence and the non-parole period is a discretionary matter and is confined by the need to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender, including the objective gravity of the offence and the need for general and specific deterrence R v Wong [2018] NSWCCA 20 at [75]. In Caristo v R [2011] NSWCCA 7 R A Hulme J (with whom Giles JA and Adams J agreed) noted (at [27]) that the non-parole period is the minimum period of actual incarceration that the offender must spend in custody, having regard to all of the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender’s subjective circumstances. It is clear from his Honour’s conclusions (at Sentencing judgment [63]-[64]) his Honour had determined that 15 years was the minimal period of actual incarceration for the applicant, having regard to all of the matters which he had earlier set out in his review of the objective seriousness of the offending and the applicant’s subjective circumstances.

What his Honour was saying in [64] of the sentencing judgment was that “double counting” for matters already taken into account in reduction of the head sentence and therefore already reflected in the non-parole period, must be avoided. That was a legitimate explanation for why, having acknowledged the existence of special circumstances, his Honour did not make a finding to that effect so as to otherwise adjust the sentence (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [47]).

As was explained by Spigelman CJ, an adjustment for special circumstances “raises so many matters of a discretionary character that this Court should be very slow to intervene” (R v Cramp [2004] NSWCCA 264 at [31]). It is only if the non-parole period provided is manifestly inadequate, or manifestly excessive, that this Court should intervene: R v Simpson and R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]. Ultimately, the degree or extent of any adjustment of the “statutory ratio” is a matter for the discretion of the sentencing judge: R v Cramp at [31], Trad v R [2009] NSWCCA 56 at [33]. Just because there are factors which could amount to special circumstances does not mean that it is erroneous not to make such a finding.

This ground of appeal has not been made out.

The applicant submitted that when his Honour characterized this case as an example of extreme infliction of domestic violence and found that it fell in the mid-range of objective seriousness, he did not take into account the applicant’s abnormality of mind and his consequent diminished moral culpability. The applicant submitted that this did not have to amount to an excuse in law to be a relevant consideration.

The applicant submitted that his Honour had accepted Dr Furst’s evidence that “fear of abandonment” was one of the diagnostic criteria for BPD and that being “abandoned or left behind by someone in an interpersonal relationship can be a devastating thing for someone” with BPD. The applicant noted that his Honour had found that he was affected by his BPB, that he was distressed at the ending of the relationship and vulnerable to an impaired capacity to control his actions. The applicant noted that his Honour considered that this diminished his moral culpability to a small degree. In those circumstances, the applicant submitted that given the evidence of the extent of his unstable state of mind and his vulnerability, his moral culpability was diminished to a significant degree. The applicant submitted that taking into account all of the evidence of the effect of the applicant’s BPD on him, and his diminished moral culpability, the objective seriousness of the offence was below the mid-range.

The sentencing judge made a finding of the objective seriousness of the offence, taking into account that the applicant may have been in an unstable mental condition at the time of the offence but that substantial impairment was not proven. His Honour’s reference to “relevantly impaired” should be construed as “not substantially impaired as per s 23A of the Crimes Act”. That being the case, his Honour took into account not only the objective circumstances of the offending but also the applicant’s mental state at the time of the offence. The way in which the applicant has sought to substantiate this ground in reality seeks to traverse his Honour’s finding that the applicant had not proved on balance that he was “substantially impaired as per s 23A of the Crimes Act”.

His Honour found that the applicant’s moral culpability was diminished but only to a small degree. His Honour’s finding of objective seriousness is consistent with that finding and with the authorities referred to by the applicant (Biddle v R [2017] NSWCCA 128 at [68], McLaren v R [2012] NSWCCA 284; Elturk v R [2014] NSWCCA 61 at [33]-[35] and Yun v R [2017] NSWCCA 317).

As has been stated by this Court on many occasions, the assessment of objective seriousness (and therefore moral culpability) of an offence is a discretionary matter for the sentencing judge (Mulato v R [2006] NSWCCA 282 at [37], [46]; Ali v R [2010] NSWCCA 35 at [33]; Baines v R [2016] NSWCCA 132 at [15]).

The applicant has not shown that his Honour erred in his assessment of the applicant’s moral culpability. The applicant’s submission goes no further than to assert that putting the argument at its highest, another conclusion might have been reached. His assessment of moral culpability and the objective seriousness of the offending was well open to his Honour. This ground of appeal has not been made out.

The applicant accepted that in order to establish manifest excess, it is necessary to establish that the sentence is unreasonable and plainly unjust (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6], Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]).

The applicant submitted that in this case, the head sentence and the non-parole period were unreasonable and plainly unjust in the light of the applicant’s abnormality of mind, his facilitation of the course of justice, his catastrophic injuries and the limited purposes of sentencing which apply to him.

His Honour did not find any aggravating factors but found five mitigating factors, pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). These were:

The applicant submitted that his Honour found that he was affected by his BPD, that he was distressed at the ending of the relationship, was vulnerable to an impaired capacity to control himself and that his moral culpability for the offence was reduced because of this to a small degree. His Honour found that specific deterrence had no role to play in the sentencing. This was because the applicant could not physically re-offend and considerations of rehabilitation did not arise. The applicant submitted that in those circumstances, full weight should have been given to the impact of his mental condition on him while in prison.

The applicant submitted that given his Honour’s findings and the nature of the applicant’s injuries relevant to his onerous conditions of custody, the sentence was unreasonable and plainly unjust. The applicant submitted that the extent of his injuries placed him in a unique situation in the prison system. He would remain in a hospital facility and would never be able to serve his sentence in the general prison population. The applicant submitted that given his reduced life expectancy, a 20 year sentence and a 15 year non-parole period would weigh particularly heavily upon him. In all the circumstances, the sentence was excessive.

The relevant principles with respect to a ground asserting manifest excess were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86]:

The applicant killed his partner with an intention to kill. She had wanted to end the relationship. The objective seriousness of the offence was in the mid-range. It was “a serious example of the infliction of extreme domestic violence upon women” (Sentence judgment, [63]). The applicant’s moral culpability was only diminished to a small degree because of BPD. The trial judge took into account the relevant mitigating factors, although remorse was not one of them because of the applicant’s attitude to how the offence was committed.

His Honour took into account the difficulties that the applicant has in custody from his BPD and from his quadriplegia and its effects which warranted “substantial leniency”. The applicant’s life expectancy was taken into account by his Honour (Sentence judgment, [52]).

As has already been stated, the sentence imposed by his Honour, given the seriousness of the offending, was in all the circumstances lenient. His Honour explained why. His Honour exercised his discretion in balancing the objective circumstances and the subjective factors so as to arrive at the sentence. No House v The King error has been established.

This ground of appeal has not been made out.

It follows from the above that the orders which I propose are:

WHITE JA: I agree with Hoeben CJ at CL.

FAGAN J: I agree with the Chief Judge, with respect to both the application for leave to appeal against conviction and that for leave to appeal against sentence.

On ground 2, the otherwise entirely general contention that the verdict of guilty of murder was unreasonable is narrowed by the applicant’s written and oral submissions. There is no challenge to his Honour’s findings beyond reasonable doubt that the applicant deliberately stabbed the deceased (PJ [226]) and that he intended to kill her (PJ [232]). The applicant only asks for reduction of liability to a conviction for manslaughter, contending that his Honour ought to have found that s 23A of the Crimes Act applied to that effect.

Even under s 23A the issue on ground 2 is narrowed by the submissions. His Honour accepted that the applicant suffered from an abnormality of mind at the time of the homicide (PJ [285]-[286]). For the purposes of s 23A(1)(a) there is no challenge on appeal to the findings that the applicant had not proved on the balance of probabilities that his “capacity to understand events” (PJ [294]) or his “capacity … to judge whether [his] actions were right or wrong” (PJ [302]) had been substantially impaired by his abnormality of mind. All that is in issue on ground 2, applying the law in Filippou v The Queen at [12], is whether it was reasonably open to the learned trial judge not to be satisfied on the balance of probabilities that the abnormality had substantially impaired the applicant’s “capacity … to control himself”.

It is inherent in the verdict that his Honour found the applicant had not proved that his capacity to control himself was substantially impaired. But his Honour’s finding in this respect was also explicit and supported by reasons (at PJ [303]-[312]). The verdict has “for all purposes, the same effect as a verdict of a jury”: s 133(1); Filippou v The Queen at [11]. It follows that ground 1 and its four sub-grounds must be regarded as particulars of why and how it is said that it was not open to the learned trial judge to find that substantial impairment of capacity for self-control was not proved.

Under any of those sub-grounds the question for this Court is whether it was reasonably open to his Honour to evaluate the particular sub-issue or sub-category of evidence in the way he did and, even if not, whether it was nevertheless reasonably open to his Honour to have decided the ultimate issue under s 23A adversely to the applicant. For the purposes of both grounds 1 and 2 I have reviewed the trial evidence so far as it bears upon this ultimate issue of substantial impairment of the applicant’s capacity to control himself at the time of the homicide.

That evidence includes the reports and oral evidence of the three psychiatric experts. It includes the evidence of the deceased’s mother and of her friends, Ms Hasic and Ms Loke, particularly as to the applicant’s behaviour and mood over the weeks and days prior to the homicide in apparent reaction to the ending of his relationship with Ms Vize. Evidence relevant to the appeal grounds also includes the telephone records of the applicant’s numerous and persistent attempts to contact Ms Vize over approximately 11 days prior to the homicide. A very important component of the evidence was that of his mother and brother who observed him in the hours before the attack on the deceased and who saw him in the immediate aftermath. The neighbour, Ms Broad, also saw him immediately after the stabbing. I consider it was well open to his Honour to find on all the evidence that substantial impairment of self-control was not proved on the balance of probabilities.

With respect to sub-ground 1(a), is not the case that his Honour gave “determinative weight to the importance of planning”. At PJ [307] his Honour identified that, in general, the level of planning for an act and the length of time over which the plan has been formed before being implemented will be relevant to determining whether or not the perpetrator carried out the act under an irresistible impulse. It was open to his Honour to regard any planning by the applicant as relevant in this way. This was, as his Honour said, common sense. But on the evidence his Honour could find only a limited level and duration of planning, “namely, seizing of a knife some minutes before Ms Vize was stabbed, the selection of her neck as the place to administer the fatal [wound] and the plan to kill himself” (PJ [309]). His Honour found it was only 4-5 minutes from when the applicant seized the knife to when he stabbed the victim.

Far from “giving determinative weight to the importance of planning”, his Honour said that the level of planning in these circumstances was “not necessarily inconsistent with the accused possessing a substantially impaired capacity for self-control” (PJ [309]). At the end of [309] and continuing to [312], his Honour attributed his lack of persuasion on this issue not to “the importance of planning” but largely to the absence of any reliable account from the applicant of his thought processes leading up to the killing. The Chief Judge has quoted (at [95] above) the learned trial judge’s reasons at [309]-[312]. They constitute the critical part of the judgment for the purpose of the limited issue on the grounds of appeal against conviction. Those paragraphs explain fully and cogently why his Honour concluded that the absence of such an account from the applicant left the Court without proof on the balance of probabilities that the applicant’s self-control had in fact been substantially impaired. The conclusion was reasonably open to his Honour on this analysis. It expressly took into account the psychiatrists’ opinions.

The applicant’s written submissions on sub-ground 1(a) conclude with the proposition (at par 126) that:

So far as this is directed to the learned trial judge’s “focus on the importance of planning”, there was no such focus for the reasons given above. The rest of the quoted submission is relevant to sub-grounds 1(b) and 1(d). It is correct that his Honour was significantly influenced by “the lack of credible evidence of the [applicant’s] thought processes about when he formed the intention to kill Ms Vize”. For reasons given below, that did not “distract” his Honour from assessing the opinions of Drs Furst and Nielssen or from considering the “independent evidence”. On the contrary, the inconclusiveness of the “independent evidence”, in his Honour’s assessment, led to the view that a reliable account from the applicant regarding his thought processes leading up to stabbing Ms Vize would be necessary to provide a proper foundation for those doctors’ opinions. No such reliable account was in evidence.

With respect to sub ground 1(b), which asserts failure properly to assess the opinions of Drs Furst and Nielssen, having read their reports and the transcript of their cross-examination on days 7 and 13 of the trial I consider his Honour’s assessment of their evidence (primarily at PJ [256]-[283], [305]-[306], and [310]-[311]) was open to him. The opinions which his Honour did not accept, referred to in sub-ground 1(b), were Dr Furst’s view that the applicant “was probably unable to control his actions as a consequence of his acute mental disorder and his underlying mental conditions (borderline personality disorder and [obsessive compulsive disorder])” and Dr Nielssen’s conclusion that “his abnormal state of mind … significantly affected his ability to control his actions, as it seems the alleged offence and his subsequent suicide attempt was committed on impulse, with little in the way of warning”.

The evidence of Drs Furst and Nielssen, from which the applicant has quoted extensively in written submissions in support of this sub-ground, reveals that their opinions on this issue were based primarily upon the clinical features of the applicant’s mental disorders as they diagnosed them and upon inference from the fact that the stabbing was an extreme reaction to the termination of the applicant’s relationship with the victim. By reviewing the applicant’s behaviour and his reported symptoms over a timeframe of years prior to the stabbing, the psychiatrists arrived at their diagnoses of obsessive compulsive disorder and borderline personality disorder. (In lieu of the latter, Dr Nielssen preferred depressive disorder). They were also able to opine, in medical terms upon the basis of their experience and expertise, as to the likely mental and behavioural responses of the applicant to the emotional stress of the end of his relationship with Ms Vize, under the influence of these disorders. But his Honour had to decide, on the balance of probabilities and taking into account all the evidence, whether substantial impairment of the applicant’s capacity to control himself had in fact occurred in this case. Opinions, based upon medical knowledge and experience, as to the likelihood of such substantial impairment were not determinative of his Honour’s application of the legal standard proof.

It was submitted that the opinions of Drs Furst and Nielssen were supported by “the independent evidence”, by which term the applicant referred to evidence which established that in the weeks preceding the homicide the applicant “was not coping with his feelings of abandonment and rejection” as a result of his relationship with the deceased having come to an end. This “independent evidence” did not compel that his Honour should have found substantial impairment of self-control at the time of the killing or that it was unreasonable not so to find.

His Honour took fully into account the “independent evidence” and made findings about the applicant’s distress concerning the breakup, his relentless attempts to contact Ms Vize by phone and his threat to the deceased’s mother, about 36 hours prior to the stabbing, to crash his car. His Honour had regard to the applicant’s extremely low mood when speaking to the deceased’s friend, Ms Loke, by phone on the evening before the stabbing and his expression to his own mother, also that evening, of upset concerning Ms Vize’s new relationship. It was well open to his Honour to regard this evidence as not sufficient to prove on the balance of probabilities that there was loss of self-control at the time of the attack upon Ms Vize.

It is self-evident that in explaining a mental state and its causal relationship to behaviour, psychiatrists will in many situations be highly dependent upon reliable reportage from the subject of what occurred within his or her mind. It was open to his Honour to regard this as such a situation, taking the view that the evidence of observations of the applicant in the weeks and hours before the stabbing and in its immediate aftermath were not sufficient to support an inference that self-control was impaired when Ms Vize was stabbed. The evidence of Dr Allnutt supported the conclusion that, in this case, a sound psychiatric opinion that the applicant’s disorders impaired self-control would depend upon reliable account from the applicant, which was not available.

Dr Allnutt’s evidence summarised by his Honour at PJ [254] was that, from a psychiatrist’s point of view, trying to determine whether or not the applicant acted impulsively and without ability to control his actions involved speculation “in the absence of a proper history from him and an account from him”. It was well open to his Honour to adopt and act upon that view. Dr Nielssen’s evidence that knowledge of what was going through the applicant’s mind could only come from the applicant himself (quoted by his Honour at PJ [282]-[283]) was to similar effect. It was open to his Honour to conclude that the absence of a reliable account from the applicant left the opinions of Drs Furst and Nielssen without a sufficient basis to justify reliance upon them. It was open to him not to be persuaded by their view that the applicant had been unable to control his actions, as he explained at PJ [310]-[311].

Sub-ground 1(c), asserting a failure to make relevant findings of fact in relation to the applicant’s attempted suicide, is primarily concerned with evidence of the applicant’s brother, Thomas. Thomas said the applicant was unresponsive when he screamed at him to stop stabbing himself, that the applicant’s expression was “blank” at this time and that Thomas “could not see any sign of distress”. The applicant complains that his Honour:

His Honour expressly found beyond reasonable doubt that “at least from the time the [applicant] obtained a knife from the kitchen, he not only intended to deliberately stab Ms Vize he also intended to kill himself” (PJ [230]). Later, in referring to the opinion of Dr Allnutt that the applicant’s self-harm was “an impulsive response” to having killed Ms Vize, his Honour said (at PJ [253]):

The fact in issue was whether the applicant’s self-control was substantially impaired when he stabbed Ms Vize. It was open to his Honour to find that that was not proved on the balance of probabilities, without making any finding about loss of control after the event and with respect to the self-infliction of harm. It was not a critical step in fact-finding that his Honour should determine whether the applicant’s capacity to control himself was substantially impaired after the homicide, with a view to reasoning back in time.

Sub-ground 1(d) contends that his Honour erred in finding that, absent a history from the applicant of his state of mind leading to the deliberate killing of the deceased, he had not discharged his burden of proving that his control of his actions was substantially impaired by abnormality of mind. The applicant offered only brief written submissions in support of this sub-ground, recognising that it is substantially repetitive of sub-ground 1(b).

In support of ground 2 the applicant reiterated in more general terms the arguments made under the sub-grounds of ground 1.

In relation to the application for leave to appeal against sentence, I agree with what the Chief Judge has written. I agree with the orders which his Honour proposes for disposition of the applications for leave and the appeals pursuant to leave.