Shine v R [2016] NSWCCA 149 (3 August 2016)

Last Updated: 25 August 2016

Court of Criminal Appeal

Supreme Court

New South Wales

Case Name:	Shine v R
Medium Neutral Citation:	[2016] NSWCCA 149
Hearing Date(s):	15 June 2016
Date of Orders:	3 August 2016
Decision Date:	3 August 2016
Before:	Bathurst CJ at [1]; Davies J at [108]; R S Hulme AJ at [115]
Decision:	Grant the applicant leave to appeal. Allow the appeal. Quash the sentence imposed on the applicant and in lieu thereof order that the applicant be sentenced to a non-parole period of 5 years, commencing on 19 April 2014 and a balance of term of 4 years. The earliest date the applicant will be eligible for release to parole is 18 April 2019.
Catchwords:	CRIMINAL LAW – appeal – sentencing – delay in entering guilty plea – whether error in calculating utilitarian discount CRIMINAL LAW – appeal – sentencing – mental illness – whether error in failing to provide reasons for rejecting conclusion of psychiatrist – whether failure to consider effect of mental illness on moral culpability – whether failure to consider effect of mental illness on incarceration – whether failure to consider prospects of rehabilitation CRIMINAL LAW – appeal – sentencing – whether manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), s 27 Crimes Sentencing Procedure Act 1999 (NSW), s 21A(3)(h)
Cases Cited:	Carney v R [2008] NSWCCA 277 Carroll v R [2012] NSWCCA 118 Dang v R [2013] NSWCCA 246 Elturk v R [2014] NSWCCA 61; 239 A Crim R 584 Engert v R (1994) 84 A Crim R 67 Haines v R [2016] NSWCCA 90 Kentwell v R [2014] HCA 37; 252 CLR 60 McLaren v R [2012] NSWCCA 284 Millwood v R [2012] NSWCCA 2 Nguyen v R [2008] NSWCCA 280 Piciollo v R [2011] NSWCCA 180 R v AB [2011] NSWCCA 229 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Hemsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 255 R v Nicholson [2010] NSWCCA 80 R v Pham [2005] NSWCCA 314 R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Windle [2012] NSWCCA 222 Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291 TU v R [2014] NSWCCA 155 Turner v R [2011] NSWCCA 189 Veen v The Queen (No 2) [1987] HCA 14; 164 CLR 465
Category:	Sentence
Parties:	Stephen Shine (Applicant) Crown (Respondent)
Representation:	Counsel: Dr J Renwick / M Kalyk (Applicant) H Baker (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/118866
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	04 August 2015
Before:	Garling ADCJ
File Number(s):	2014/00118866

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Stephen Shine (the applicant) was studying nursing at the University of Western Sydney. In his second year of study, he struck up a friendship with a fellow nursing student, Ms Soo Jong Kim. Ms Kim confided in the applicant about troubles in her marriage, causing the applicant to labour under delusions that Ms Kim was in trouble and that her husband posed a threat to her safety. The applicant started harassing Ms Kim, which led to acrimonious phone and text message conversations between the applicant and Ms Kim’s husband, Mr Man Sung Lee.

One evening, the applicant went to the home of Ms Kim and Mr Lee, where Mr Lee was asleep in bed in the same room as his three young children. The applicant had a knife and started stabbing Mr Lee in the neck and back. At one point, Mr Lee was able to escape outside. The applicant ran to his car where he retrieved a second, larger knife. He ran towards Mr Lee and started slashing his face with the knife and attempted to stab his chest. Police eventually arrived and Mr Lee was transported to hospital with life threatening injuries.

Police arrested the applicant and conducted a number of recorded interviews with him. In those interviews, the applicant admitted to attempting to kill Mr Lee and indicated that his reason for doing so was to protect Ms Kim. He admitted “I know its going to be, its problem I will be arrest I will be punished” and in a later conversation indicated that he felt bad, stating “I know I’ve done something bad”.

The applicant was charged with causing grievous bodily harm with intent to murder, contrary to s 27 of the Crimes Act 1900 (NSW). At the trial, a psychiatrist’s report was tendered by both parties. The report indicated that the applicant was awaiting the outcome of his psychiatric evaluation before entering a plea. The conclusion of the report was that the applicant was fit for trial but that he had a defence of mental illness open to him; he had a psychotic illness which involved delusional beliefs and a grossly disturbed capacity for logical thinking, which affected his ability to recognise that his actions were wrong. The report also stated that the applicant was exhibiting “odd behaviours” in prison and paranoia about Corrective Service officers and that he experienced difficulty with other inmates and staff.

The applicant pleaded guilty and was sentenced to 12 years with a non-parole period of 7 years and 6 months. This included a 20% utilitarian discount as the plea had not been entered at the earliest opportunity. The sentencing judge accepted the psychiatrist’s report but stated that whilst the applicant had a mental condition, “he knew what he was doing was wrong, he knew he shouldn’t be doing it”.

The issues on appeal were:

1. Whether the sentencing judge erred in only allowing a 20% discount for the plea of guilty.

2. Whether the sentencing judge erred in finding, contrary to the psychiatrist report, that the applicant knew what he was doing was wrong.

3. Whether the sentencing judge erred in failing to properly evaluate the extent to which the applicant’s mental illness operated to reduce the sentence imposed.

4. Whether the sentencing judge failed to consider the effect of the applicant’s mental illness on the burden that incarceration would have on the applicant.

5. Whether the sentencing judge failed to consider the applicant’s prospects of rehabilitation.

6. Whether the sentence was manifestly excessive.

The Court held (Bathurst CJ, Davies J and R S Hulme AJ agreeing) allowing the appeal and resentencing the applicant to 9 years with a non-parole period of 5 years:

Utilitarian discount

(i) The delay in the entry of the plea could fairly be attributed to the applicant’s mental illness. The delay in waiting for the psychiatric report and in the applicant considering his position could not be said to be unreasonable, as such the applicant was entitled to a 25% discount: [95] (Bathurst CJ); [108], [113] (Davies J); [115] R S Hulme AJ.

(ii) (Per Davies J) While generally, the reasons for delay in entering a plea are irrelevant because the utilitarian value is reduced, that principle must be applied by reference to the particular circumstances in the case. In exceptional circumstances, the reason for a delay in entering a guilty plea can be taken into account: [110], [112] (Davies J).

Nguyen v R [2008] NSWCCA 280; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1; R v Nicholson [2010] NSWCCA 80 distinguished

R v AB [2011] NSWCCA 229; Haines v R [2016] NSWCCA 90 applied

Finding that applicant knew what he was doing was wrong

(iii) If the sentencing judge was to reach a conclusion on a critical matter that was contrary to that stated in the psychiatrist’s report, he was required to set out his reasons for doing so. His failure to do so was an error of law: [70] (Bathurst CJ); [108] (Davies J); [115] R S Hulme AJ.

R v Thomson & Houlton (2000) 49 NSWLR 383 applied

Effect of mental illness on sentence

(iv) Failure to give attention to the question of whether and in what way an applicant’s moral culpability is reduced by his or her mental illness is an error of law: [74]-[76] (Bathurst CJ); [108] (Davies J); [115] R S Hulme AJ.

Elturk v R [2014] NSWCCA 61; 239 A Crim R 584; R v Isrial [2002] NSWCCA 255; Carroll v R [2012] NSWCCA 118; R v Hemsley [2004] NSWCCA 228; Carney v R [2008] NSWCCA 277; Piciollo v R [2011] NSWCCA 180; R v Pham [2005] NSWCCA 314; R v Windle [2012] NSWCCA 222; Turner v R [2011] NSWCCA 189; Millwood v R [2012] NSWCCA 2; Dang v R [2013] NSWCCA 246 applied

Effect of mental illness on burden of incarceration

(v) A relevant factor to consider in the sentencing process is the fact that a custodial sentence may weigh more heavily on an applicant by reason of his or her mental condition: [81] (Bathurst CJ); [108] (Davies J); [115] R S Hulme AJ.

R v Isrial [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228; Carney v R [2008] NSWCCA 277 applied

Prospects of Rehabilitation

(vi) Prospects of rehabilitation are a relevant factor to be taken into account in the sentencing process. Failure to take the question of rehabilitation into account is an error of law: [86] (Bathurst CJ); [108] (Davies J); [115] R S Hulme AJ.

Carroll v R [2012] NSWCCA 118; TU v R [2014] NSWCCA 155 applied

Manifestly Excessive

(vii) While the offence was very serious, the moral culpability of the applicant was sufficiently lessened by his mental illness and the considerations of personal deterrence and protection of the public were ameliorated by the success of the applicant’s medication: [98]-[101] (Bathurst CJ); [108] (Davies J); [115] R S Hulme AJ.

JUDGMENT

BATHURST CJ: This is an application for leave to appeal against the sentence imposed on the applicant, Stephen Shine (the applicant), for one count of causing grievous bodily harm with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years.
The applicant pleaded guilty to the offence charged. He was sentenced to imprisonment for a term of 12 years comprising a non-parole period of 7 years and 6 months with a balance of term of 4 years and 6 months.

The factual background

The following statement of the factual background is taken from the summary of agreed facts tendered at the sentencing hearing.
The victim in this matter, 46 year old Mr Man Sung Lee (Mr Lee), has been married to his wife, Ms Soo Jong Kim (Ms Kim), since 5 July 2003. Together they have three children aged 9, 8 and 6 years old.
Mr Lee and his family are from South Korea and moved to Australia in March 2009. For four years prior to the offence in question they resided at 1/29 Dudley Street, Lidcombe, with three other housemates.
Since her arrival in Australia, Ms Kim has been studying nursing at the Australian Catholic University at Chatswood and also working in that field. Mr Lee has been assisting with caring for their children and also running his own cleaning business.
The applicant is 58 years old. He was born in Korea but has been residing in Australia since 1987 and became an Australian citizen in 2000. At the time of the offence, the applicant was in his second year of nursing at the University of Western Sydney (UWS), Parramatta campus. He was living in student accommodation on campus.
On 1 February 2014, the applicant and Ms Kim struck up a friendship. The applicant told Ms Kim that he was also a nursing student and offered to help her with her studies. Ms Kim also mentioned that one of her friends was having issues with her studies and the applicant offered to help her also. The pair then exchanged phone numbers and met later that day at the UWS campus at Parramatta.
In the course of this meeting, Ms Kim spoke about her relationship. Ms Kim said there was once a domestic incident back in South Korea and that she was having regular arguments with her husband due to financial hardship.
After this meeting, the applicant and Ms Kim began to exchange text messages and phone calls.
At about 5.00pm on 24 March 2014, Mr Lee and Ms Kim had an argument over how much fuel was in Ms Kim’s car and the fact that she had not returned home until after 9.00pm the previous evening. Mr Lee was suspicious of where his wife had been. Ms Kim explained that she was having trouble studying at home with the children so she pretended she had to go to work and instead went to the Parramatta campus of UWS to finish an assignment. Ms Kim also told Mr Lee about her friendship with the applicant and how the applicant had been helping her and her friend with their studies.
Mr Lee became angry and told his wife to call the applicant. Ms Kim called the applicant on her mobile phone and passed the phone to her husband. Mr Lee and the applicant argued on the phone. The applicant ended up driving to Mr Lee’s address. As he did so, he called triple zero and informed the operator that Mr Lee had threatened to kill him, that he was driving over to Mr Lee’s address and that he was concerned for the wellbeing of Ms Kim. The applicant advised the operator that there was domestic violence involved and that Mr Lee was a criminal in Korea who had escaped to Australia. He also informed the operator that Ms Kim had been suicidal.
When the applicant arrived at Mr Lee’s address, Mr Lee was sitting on his lawn with Ms Kim. This was the first time that Mr Lee and the applicant had met face to face.
The applicant called triple zero again and requested police to attend. He made no mention of any weapon during this conversation with the operator.
The police arrived shortly after 6.30pm. They observed the applicant standing on the footpath and Mr Lee near the main door to his unit. The applicant told the police, referring to Mr Lee, that “[h]e has [a] knife or screwdriver in his pocket”. The police then ordered a search of Mr Lee but no knife or screwdriver was discovered.
During the course of an interview between the police and the applicant immediately thereafter, the following conversation took place:

“Police: ‘Can you tell me how do you know LEE and his wife?’

SHINE: ‘I am friends with his wife he hit and harass his wife all the time, she told me that he hits her, she also tell me she is depressed and wants to kill herself, I called the police about a month ago because she wanted to kill herself[’]

Police: ‘She has no injuries and she said that her husband did not hit her’”.

The police officers then made the assessment that Ms Kim was not in danger and told the applicant to leave, which he did. They also told Mr Lee not to contact the applicant and they left the scene.
The applicant continued to send text messages to Ms Kim, which she showed to Mr Lee.
As a result of the applicant continuing to contact Ms Kim, Mr Lee sent him the following text message at 10.25am on 25 March 2014:

“Mr SHINE why are you sending these messages after I told you not to contact us. My misunderstanding has been resolved but we had an incident where police came and it was not nice so please stop your interest in our family and do not contact us anymore. Husband of Soo Jong KIM.”

The applicant sent the following message in reply:

“The incident is reported to the police so you need to be careful. They might go out to your place again. Be careful.”

At 11.22am that same day, the applicant sent a further message:

“I came here as an overseas student. I did cleaning and all sorts of things. There isn’t anything I haven’t done. Being Soo Jong’s senior in nursing I wanted to help her and my effort lead to the situation where police got involved. I am sorry. Soo Jong on the other hand has a lot of knowledge in nursing so she is helpful to a person like me who has difficulties study. Please be considerate so that we could study together. I have been here longer than 30 years. I understand Man Sung hardship. I regret to be related this way in a foreign country. Why don’t we have a drink together when it is convenient for you? I appreciate your apologies.”

At 11.36am, Mr Lee replied:

“Please I wish you wouldn’t contact my wife any more. You have given your word so I will trust you. This is it. I politely refuse your text message as well. I politely refuse to receive your text messages.”

At 11.38am, the applicant replied:

“OKAY, I will do so.”

At 9.30am on 30 March 2014, Mr Lee received the following text message from the applicant:

“You are under police surveillance. Please be careful because I know the President of Korean Nursing Association and many more people in Sydney. So you be careful.”

Mr Lee was very irritated and upset by this message and rang the applicant on his mobile phone. For the first 20 minutes of the phone call, both men yelled abuse at each other.
At about 10.00am on 19 April 2014 (Palm Sunday), Ms Kim was at home and could hear loud Korean music coming from outside. Ms Kim looked out the window and saw the applicant’s car parked outside her unit. Ms Kim then saw the applicant get out of his car and put something under the front windscreen wiper of her car. The applicant then left the location. Ms Kim went outside and saw that the applicant had left a palm leaf under the wiper.
Ms Kim was unhappy about this and rang the applicant and told him never to contact her again. The applicant apologised and said:

“I won’t interrupt your personal life so please don’t tell me not to contact you. I still need your help with studies. I am not going to do things that you don’t like so please forgive me. I almost feel like dying.”

Later that evening at about 9.30pm, Mr Lee was home with his family and went to bed with his three children. The whole family shared the master bedroom that was upstairs on the second level of the unit. The two oldest children went to sleep in the bunk beds and the youngest child slept in the same bed as Mr Lee.
Also at this time, two of the three housemates were home, Hyun Joo Im (47 years old) and Jung Sun Kim (57 years old). Both women were in their separate bedrooms with their doors closed.
At about 10.30pm, the applicant knocked on the front door. Ms Kim opened the door and saw the applicant had already opened the front screen door. As Ms Kim opened the wooden door, the applicant attempted to push past her but she stopped him and the following conversation took place:

“KIM: ‘Get out!’

SHINE: ‘I am here to see your husband’

KIM: ‘He’s sleeping, it’s late at night and why do you want to see him’

SHINE: ‘Is he upstairs? I am going to wake him up’

KIM: ‘This is not right’

SHINE: ‘I need to see your husband’

KIM: ‘You need to talk to me first. Let’s go outside and talk’

SHINE: ‘I want to talk to your husband in your presence’

KIM: ‘Wait a second. After I go to [the] toilet I will wake him up’”

At this stage, the applicant was holding the door knob and Ms Kim could not close the front door. Ms Kim could smell alcohol on the applicant’s breath and observed that he was acting very abnormally.
Ms Kim went to the toilet and told the applicant to remain in the living area of the house. As she walked away, the applicant made his way up the internal stairs to the second level of the house.
The applicant entered the first bedroom to the right of the stairs where Mr Lee and his three children were asleep. The applicant became enraged on seeing Mr Lee, removed the knife he had in his pocket and stabbed Mr Lee in the neck.
Mr Lee woke to the pain in his neck. Mr Lee and his children were screaming. Ms Kim heard this and came running up the stairs to find the bedroom light on and the applicant lying on top of Mr Lee and moving the knife about Mr Lee’s neck. Ms Kim told the children to hide behind the bed. At that time Mr Lee stood up. He was bleeding and had blurred vision. Ms Kim screamed, “He stabbed you with a knife”.
Mr Lee could not move his right arm to defend himself because of the wound to his neck. The applicant came at Mr Lee again and moved his hand slightly like a jab. Mr Lee took hold of the blade of the knife and held it in his left hand and used his right hand to push down the applicant’s arm which was holding the knife. As they struggled, Mr Lee lost his grip of the blade and the applicant stabbed Mr Lee in the back. Ms Kim screamed out, “Call the police”.
The housemate, Ms Im, could hear the screaming from her bedroom and called the police with her mobile phone.
Mr Lee was now crouched down and the applicant was standing behind him, strangling him with his right hand and punching him in the head with his left hand.
Ms Kim managed to get between the applicant and Mr Lee and held the applicant back from him. Ms Kim pleaded with the applicant to stop. Mr Lee armed himself with a baseball bat to protect himself. Ms Kim took the applicant into the next bedroom and called out to Mr Lee, “Dear please escape to [the] next door neighbours”. Mr Lee managed to walk down the stairs and out the front door. Whilst outside, he saw the applicant’s car parked in the front garden. Mr Lee then tried to walk to the back of his house to get assistance from a neighbour.
Throughout the assault in the bedroom, the three children remained in the bedroom. The youngest child who had been in bed with Mr Lee was not injured but was covered in blood.
Once Mr Lee got out of the room, the children shut the bedroom door and locked it. The oldest child tried to call triple zero on her mobile but didn’t know how. Ms Im could still hear the children screaming and went to their aid. She saw blood throughout the hallway and saw the children crying and scared. Ms Im remained with them.
Ms Kim was still trying to hold back the applicant and keep him from Mr Lee. The applicant managed to overpower Ms Kim and went downstairs and out of the house looking for Mr Lee. Ms Kim could hear her husband saying, “I can’t breathe, I can’t breathe.”
The applicant ran to his car and opened the driver’s side door. He got out a second larger knife from a black bag. This knife was approximately 30cms long. The applicant then ran towards Mr Lee holding the knife in his right hand. Mr Lee was leaning on a brick wall between the front door and the garage door. His body was covered in blood and he was screaming. The applicant ran towards him and slashed his face with the knife.
The applicant then pointed the knife towards Mr Lee’s chest area and attempted to stab him in the chest. Ms Kim managed to pull the applicant from Mr Lee. Mr Lee then collapsed to the ground. Ms Kim ran to his aid and saw that the skin on his face had come off and was hanging. He was also missing part of his ear. Ms Kim heard the applicant say to Mr Lee, “Do you feel sorry now?”.
A number of neighbours heard Mr Lee and Ms Kim screaming and called the police. The police arrived at 29 Dudley Street at about 11.05pm and could hear yelling and screaming coming from the rear of the property.
As the police approached they could see Mr Lee, the applicant and Ms Kim lying in the driveway. Ms Kim was screaming and crying hysterically whilst the applicant was quiet and appeared calm. All three persons were covered in blood.
A large chef’s knife was located under Mr Lee’s leg. Police observed a large laceration to Mr Lee’s face and a large amount of blood on his face and chest. Police also saw a red baseball bat nearby on the ground. A police officer kneeled next to Mr Lee to assess his injuries. The applicant had to be physically removed from Mr Lee’s side. Police rendered first aid to Mr Lee until an ambulance arrived. He was then transported by ambulance to Westmead Hospital.
The police arrested and cautioned the applicant, who made the following remarks:

“yeah because today what I’m thinking that today maybe he’s getting big trouble here, maybe someone will die and that’s why I think no I have to go here, I take him I lock the door and her she’s coming up what happened I said nothing I want to talk now where is your husband and he was in upstairs and then I go upstairs I was get knife and then I, I, I push him that was the starting what I did, ... I know I know its going to be, its problem I will be arrest I will be punished I know that I know I can ...”

The police then escorted the applicant to Auburn Hospital where they interviewed him. The following statements were made at the interview:

“SHINE: ‘Other man was trying to kill him once. I push him with the knife maybe. I don’t know’

Police: ‘You did what?’

SHINE: ‘I tried to kill him. His wife Stella call me. Met her in University she was crying. I met the man and he said I want to kill you. I come down then grabbed some weapon after I heard that he wasn’t to kill his wife. This all happen long time ago’

Police: ‘What about tonight?’

SHINE: ‘I got a text from Stella. I go to the house with knife. I think it was going to be trouble. I go there to the front door and say where is he. She want to talk to me downstairs. I say no and go upstairs. He was sleeping. That was start tonight. After that I push him. I push him with the knife’

...

SHINE: ‘I feel bad’

Police: ‘Why?’

SHINE: ‘I’ve done something bad’

Police: ‘Stephen, did you have a knife on you when you went to the house tonight’

SHINE: ‘Yes’

Police: ‘What did the knife look like?’

SHINE: ‘Skinny knife. It was a small knife’

Police: ‘What colour was the handle?’

SHINE: ‘Black’

Police: ‘How big was the knife’

SHINE: ‘It’s my paring knife’

Police: ‘Did you just have one knife?’

SHINE: ‘I had 2 knives. One kitchen knife in my car’

Police: ‘Did you get the kitchen knife from your car?’

SHINE: ‘I can’t remember. I took my small knife in my pocket, upstairs he pushed me and that’s when something happened and I don’t remember after that’

Police: ‘So, you live in Parramatta?’

SHINE: ‘Yes’

Police: ‘So when you left your house in Parramatta did you have 2 knives in your car?’

SHINE: ‘Yes, my small knife and the kitchen knife’”

(Stella was another name for Ms Kim)

At a recorded interview, which took place following his release from Auburn Hospital, the following questions were asked and answers given (references omitted):

“Why did you hit him with the knife? Cause I was angry, I was

Did you want to hurt him? I don’t know, emotionally I want to just you know, do the action, that’s why I did it

Why are you looking for him? Because I want to get him

Why were you still looking for him? I want to kill him

I think I picked a bigger knife and came out of a car. Came out of a car

...

What’s your relationship with Stella? Stella relationship is firstly friend --- and secondly I was falling in love with her

And what did you want to achieve from that? I hurt him, yeah. I kill him, yeah.”

The doctors who treated Mr Lee found that he suffered the following injuries from the assault:

Left facial stab wound

15 cm in length from left chin to ear

The depth of that wound resulted in his left superficial artery and vein, left retromandibular vein and left facial artery being cut

Facial nerve injury, and

Injury to the left parotid gland

Right neck stab wound

5 cm in length

Resulted in his right vertebral artery being cut, and

Nerve injury to his right vagus nerve

Left arm laceration – 6 cm length

Left forearm lacerations 2 x 4cm in length

Left palm laceration

Left thumb laceration

Mr Lee was immediately taken to the operating room for external jugular vein ligation. Doctors also ligated Mr Lee’s left superficial artery and vein, left retromandibular vein and left facial artery. This procedure involved tying a ligature tightly around each vein/artery to stop bleeding as the veins/artery had been severely damaged.
Mr Lee had poor right arm function and an MRI of the right brachial plexus (a network of nerves that passes through the cervico-axillary canal in the neck to reach the armpit region and into the arm including the hand) was performed. Follow up medical treatment for this injury was arranged. Follow-up treatment with the vascular and plastics team was also arranged.
The doctor found that without intervention, Mr Lee’s injuries were life threatening. His left facial injuries resulted in neurovascular and cosmetic injury. His right neck injuries resulted in neurovascular injury and reduced right arm power and motion. His left arm injuries resulted in muscle and tendon injury, which required ongoing physiotherapy at time of discharge. There was also evidence of psychological trauma secondary to the incident.

The applicant’s mental condition

Critical to this application is the evidence before the sentencing judge of the applicant’s psychological and psychiatric condition. A psychiatrist’s report of Dr Olav Nielssen, dated 27 December 2014, was tendered by both parties at the hearing. There was no dispute as to the accuracy of Dr Nielssen’s observations or the reliability of his conclusions. Dr Nielssen stated that he interviewed the applicant at the Metropolitan Reception and Remand Centre at Silverwater on 5 December 2014. He stated in his report that the applicant confirmed that he had been charged with attempted murder and that he had not entered a plea as he was awaiting the outcome of his psychiatric evaluation.
Dr Nielssen recorded that the applicant told him that he was aware of feeling depressed in high school because of events in his childhood and the stress of being at a selective school and underperforming at school. He said he attempted suicide while in junior high school by swallowing chemicals but did not remember being referred for any kind of counselling or mental health care at the time.
The applicant told Dr Nielssen that his first referral for psychiatric treatment was in 1999 while he was living in Victoria. He said this was at the insistence of his former wife. He said that his wife called the police who arranged for a local mental health team to assess him. He said he was referred to a private psychiatrist in Victoria who prescribed Sertraline, which he said helped a lot. He said he had taken Sertraline ever since and adjusted the dose up or down according to how he felt.
The applicant also told Dr Nielssen that he was identified as having problems at university and was referred to a psychiatrist at Penrith, but did not take up the referral. He said that he was also referred for an evaluation by a forensic psychologist because of conflict that had arisen within his Church. The material which Dr Nielssen possessed for the purpose of his report included a report by a forensic psychologist, Mr Chris Probets. Mr Probets’ report states that the applicant had told him that there was a fight between two factions at his Church, which involved a group who did not support the priest hitting and pushing older people. He said he became angry at the anti-priest group. He told a member from the group who supported the priest that he wanted to kill the anti-priest group as their behaviour was not acceptable.
The applicant told Dr Nielssen that he did not drink alcohol or use illegal drugs. He told Dr Nielssen he married in 1981 and had two children from whom he was estranged. He said that he had moved to Sydney in 2000 and his former wife and children remained in Melbourne.
Dr Nielssen also recorded that prison officers asked the mental health nurse to review the applicant because of “odd behaviours”, for example, asking to be handcuffed outside his cell. He noted that the applicant was reported to have paranoia about the Corrective Service officers as well as racing thoughts. He was described as having irritability and unusual grimaces.
Dr Nielssen’s ultimate conclusions were in the following terms:

“The diagnosis of psychotic illness is made in part on the basis of the history elicited by Dr Morgan and Ms Wakely of hallucinations of voices, and the bizarre nature of the offence itself, which appeared to have been committed ... because of delusional beliefs regarding his association with Ms Kim, her husband’s behaviour towards her and her wishes. Mr Shine’s behaviour before his arrest was quite abnormal and he has also been reported to have expressed persecutory beliefs and assaulted a female prison officer in response to persecutory ideas since his arrest.

Mr Shine was assessed by a mental health team in Victoria in 1999, apparently at the behest of his wife and the police, for what may have been a previous episode of mental illness. There was also sufficient concern about his behaviour while at university for them to arrange an assessment by a forensic psychologist.

Aspects of Mr Shine’s presentation that indicate the presence of an underlying mental illness include the bland and unsurprised way in which he described the offences, and his incongruous emotional responses when discussing his situation. His initial correspondence to his solicitor indicate that he wanted to enter a plea of not guilty on the basis of the delusional belief that he was acting to protect Ms Kim.

It seems that Mr Shine developed the plan to kill Mr Lee with very little knowledge of him, and was prepared to go to his home armed with two knives and stab him in front of his young children, on the basis of a very brief acquaintance with Ms Kim and a brief exchange with Mr Lee. If the statements of Mr Kim and Mr Lee are truthful, then it seems more likely than not that Mr Shine’s beliefs regarding Mr Lee and his relationship with Ms Kim were delusional beliefs that are a manifestation of a psychotic illness.

With regards to your specific questions, I belief Mr Shine is fit to enter a plea and is fit for trial. He should remain fit provided he continues to receive an adequate dose of antipsychotic medication.

In my opinion, Mr Shine has the defence of mental illness open to him. He has a disease of the brain in the form of a psychotic illness, which has produced a defect of reason in the form of a delusional belief that Ms Kim was in danger, that he had some kind of relationship with her and that she wanted him to intervene to protect her. His psychotic illness did not affect his ability to understand the nature and quality of his actions. However, his delusional belief, and his grossly disturbed capacity for logical thinking, affected his ability to recognise that his actions were wrong.”

There was also tendered a report by a forensic psychologist, Ms Kathryn Wakely who interviewed the applicant over two and a half hours in two sessions on 30 July and 13 August 2014. Ms Wakely arrived at the following conclusions:

“45. Stephen’s presentation and the available history obtained from him, along with the nature of offending behaviour and circumstances surrounding this are suggestive of a psychotic illness, such as a Schizophrenia spectrum disorder. This is something that does not appear to have been formally diagnosed as yet. The client had previously avoided seeking assistance, despite numerous suggestions by others that this was necessary. Since being incarcerated he has been placed on antidepressant and antipsychotic medications. His behaviour in custody has created difficulties with other inmates and staff and again Stephen remains unaware of how he may have contributed to these difficulties, seeing himself as having been the victim of unprovoked and unjust mistreatment.

46. Stephen appears to interchange between partially acknowledging mental health problems and having little to no insight regarding this and his behaviour. This however is not unusual and is generally a symptom of a psychotic illness, rather than an avoidance or coping strategy. This symptom is a common predictor of non-adherence to treatment, poorer psychosocial functioning and greater rates of aggression (American Psychiatric Association, 2013, pp. 101).

47. Stephen’s insight regarding the seriousness of the offending behaviour is limited. He appears to have been experiencing delusions regarding his relationship and involvement with the victim’s wife. He quickly developed an intense attachment to this woman and this prompted his strange behaviour prior to the offence, as well as the offence itself. He used his mother’s history of apparent victimisation by his father as justification for the offence and appears to have genuinely believed he was assisting the victim’s wife in engaging in the offence.

48. Stephen’s account of the time preceding the offence and the nature of their relationship was quite different to the account provided by the victim’s wife in her statement. Again however it would not be unusual for someone with a psychotic illness and limited insight to have misunderstood the situation, the relationship and communications of those involved due to the very nature of such an illness.

49. The client’s insight regarding the seriousness of the offence and his level of functioning remains limited. He requires a thorough psychiatric assessment and treatment regime in order to assist him to gain some stability and to minimise his risk of further offence. Treatment may need to be mandated in order to ensure compliance in the future.”

Other subjective matters

The applicant at the time of the sentencing hearing was aged 58 years and had no prior convictions. As I indicated, he arrived in Australia in 1987 and became an Australian citizen in 2000.
Although he did not give evidence, he informed Dr Nielssen and Ms Wakely that he had had a troubled childhood, telling Dr Nielssen he had “a dark life ... I had trouble with socialising”. The applicant told Ms Wakely that he and his wife had divorced in 2000 when he moved to Sydney. He told her that since that time, he had been forced to move from shared houses because other persons in the house complained he was strange or “a psycho”. At the time of the offence, he was studying second year nursing at the University of Western Sydney and living at Parramatta on a university campus. He told Ms Wakely that to begin with, he had been placed with six other students. However, they complained about his behaviour and he was moved to a studio apartment where he lived independently. He had also worked on a casual basis with the Department of Disability, Ageing and Home Care as a case worker in group homes for seven years up to the time of his arrest.
Although the applicant had no prior criminal convictions, he told Ms Wakely that there was domestic violence in his marriage and, at one stage, an apprehended violence order was taken out against him preventing him from being within 100 metres of his wife. He also referred to the incident where he threatened to kill other members of his Church, after which, he was referred to counselling.

The reasons of the sentencing judge

The reasons of the sentencing judge were sparse. After briefly summarising the facts, the sentencing judge noted that the applicant was separated from his wife and had not seen his children for 10 years. He noted the applicant’s employment history with the Department of Disability, Ageing and Home Care, to which I have referred, and that the applicant did not drink alcohol or use illegal drugs.
The sentencing judge stated that the attack was premeditated and that there was no provocation. He noted that it was conceded that there were three children in the house and the injuries sustained by the victim were serious and life threatening. The sentencing judge stated, however, that he was not satisfied that the applicant went to the house intending to kill the victim.
The sentencing judge said, without elaboration, that the applicant’s plea was not at the earliest opportunity, although it was before trial. He allowed a 20% discount for the plea.
The sentencing judge agreed with the Crown that there was little remorse towards the victim, rather, the applicant’s remorse was more directed towards the victim’s wife.
In relation to the applicant’s mental illness, the sentencing judge made the following remarks:

“I accept, as Dr Nielssen says, that the offender has a disease of the brain in the form of a psychotic illness which produced a defect of reasoning. However his psychotic illness did not affect his ability to understand the nature and quality of his actions. It provides an explanation of why he did what he did. I do not accept the Crown’s submission that what he said about his belief was a falsehood to lessen his responsibility. It is quite clear on the evidence before me that he believed that he needed to act as he did to protect the victim’s wife and there is no other explanation for his behaviour. He is not an appropriate vehicle for general deterrence.”

However, the sentencing judge concluded that whilst the applicant had a mental condition, he knew what he was doing was wrong and knew he should not be doing it.

The grounds of appeal

The applicant relied upon the following grounds of appeal:

“1. His Honour erred in allowing only a 20% discount for the appellant’s plea of guilty.

2. His Honour erred in finding as a matter of fact that ‘[the offender’s] psychotic illness did not affect his ability to understand the nature and quality of his actions’ and that ‘[w]hilst the offender had a mental condition he knew what he was doing was wrong, he knew he shouldn’t be doing it’.

3. His Honour erred in failing to properly evaluate the extent to which the appellant’s mental illness operated to reduce the sentence imposed.

4. His Honour failed to consider the effect of the applicant’s mental illness on the burden that incarceration will have on the appellant.

5. His Honour failed to consider the appellant’s prospects of rehabilitation.

6. The sentence is manifestly excessive.”

The inadequacy of reasons

Grounds 3, 4 and 5 of the grounds of appeal relate to the failure of the sentencing judge to deal with matters integral to the sentencing process. At the hearing of the appeal, senior counsel for the Crown conceded that the sentencing judge’s reasons were inadequate and that there was an error in the sentencing process. That concession, in my respectful opinion, was correct and it is thus necessary to resentence the applicant: Kentwell v R [2014] HCA 37; 252 CLR 60 at [40]- [42]. However, prior to considering whether a lesser sentence is warranted in law, I propose to deal briefly with Grounds 2 to 5; first, to show why the Crown’s concession was correct and second, to indicate what I consider are the correct principles to apply on resentencing for the offence in the particular circumstances of the present case. However, the matters relied upon in relation to Grounds 1 and 6 can be dealt with adequately in resentencing.

Ground 2

The applicant pointed out that Dr Nielssen expressly stated that the applicant’s delusional beliefs and grossly distorted capacity for logical thinking affected his ability to recognise his actions were wrong. The applicant submitted that, in finding that the applicant knew what he was doing was wrong, the sentencing judge ignored Dr Nielssen’s conclusion without giving any reasons for doing so.
The Crown submitted that the sentencing judge was entitled to reach the conclusion he did as the applicant’s guilty plea implicitly acknowledged that he knew what he was doing was wrong. The Crown submitted that there was evidence to support this conclusion. The Crown referred to the recorded conversation with the police prior to the applicant’s transportation to hospital (see above at [42]). The Crown also referred to the statements made to the police at the hospital and in the recorded interview (see above at [43]-[44]), as supporting the proposition that the applicant knew what he was doing was wrong.
The difficulty with the Crown submission is that the sentencing judge simply did not deal with Dr Nielssen’s conclusion, which was directly contrary to the conclusion he reached. Although he referred to the conclusion of Dr Nielssen that the applicant had the defence of mental illness open to him and that he had a psychotic illness, he did not refer to Dr Nielssen’s ultimate conclusion that the applicant’s grossly distorted capacity for logical thinking affected his ability to recognise his actions were wrong. If the sentencing judge was to reach a contrary conclusion on a critical matter of this nature, he should have set out his reasons and his failure to do so was an error of law: R v Thomson & Houlton (2000) 49 NSWLR 383 at [42]-[44] and the cases there cited; see also Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291 at [39].
In my opinion, this ground of appeal has been made out.

Ground 3

The applicant submitted that, although the sentencing judge acknowledged that his mental state was a significant consideration in the sentencing process and referred to the report of Dr Nielssen, the sentencing judge did not give consideration to what extent his mental illness in fact affected the sentencing outcome. The submissions pointed to the fact that, although the sentencing judge referred to the passage in Elturk v R [2014] NSWCCA 61; 239 A Crim R 584 (Elturk) to the effect that the existence of mental illness does not necessarily produce a lesser sentence, he did not go on to apply that reasoning – other than stating that the applicant knew what he was doing was wrong – to indicate how the applicant’s mental condition impacted on the sentence which he imposed,.
The Crown referred to the passage from the judgment of Gleeson CJ in Engert v R (1994) 84 A Crim R 67 (Engert) at 71, cited by the primary judge. It noted that that passage specifically refers to the proposition that, despite a causal link between the mental illness and the commission of the offence and the consequent amelioration in weight for general deterrence, such findings might also warrant an increase in the weight to be afforded to personal deterrence and the protection of the community. It was submitted that “despite any further explicit elucidation in the remarks on sentence”, the Court will be satisfied that the sentencing judge formulated the sentence “by offsetting the complete absence of any allowance for general deterrence”. This submission presumably meant that the fact general deterrence was not to be taken into account either contributed to a reduction in sentence or was offset by the increased importance of personal deterrence and the need to protect the public: Engert at 71.
In Elturk, Beazley P, with whom R A Hulme and Schmidt JJ agreed, accepted the submission that although the appellant’s plea of guilty precluded his mental illness from absolving him of criminal responsibility, it could be used to demonstrate that his significantly impaired state of mind at the time of offending affected both his objective criminality and moral culpability. Her Honour stated, at [34], that the following analysis by McCallum J in McLaren v R [2012] NSWCCA 284, at [27]-[29], aptly captured the relevance of moral culpability in the sentencing process:

“[27] The appellant contends that his Honour's conclusion may now be seen to have entailed error in that the decision in Muldrock renders impermissible any consideration of the applicant’s state of mind in assessing the objective seriousness of the offence at hand.

[28] In my view, that submission misconceives the effect of the decision in Muldrock. The phrase ‘objective seriousness’ in Muldrock at [27] ... refers specifically to the definition in s 54A(2) of the Act as to what a ‘standard non-parole period’ denotes. That is the ‘concept’ referred to in the previous sentence of that paragraph. The point there made by the High Court, as I would understand it, is that there is no sense in attempting to place the offence at hand (with all its features, including matters personal to the offender where relevant to an assessment of the nature of the offending) at a point along a purely hypothetical range which, of its nature, is ignorant of those matters.

[29] The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the ‘objective seriousness’ of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender’s mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing).”

The approach was consistent with previous authority: R v Israil [2002] NSWCCA 255 (Isrial) at [23]; Carroll v R [2012] NSWCCA 118 (Carroll) at [57], citing R v Hemsley [2004] NSWCCA 228 (Hemsley) at [33]-[36]; Carney v R [2008] NSWCCA 277 (Carney) at [54]-[58]; Piciollo v R [2011] NSWCCA 180 at [45], citing R v Pham [2005] NSWCCA 314 at [35]; R v Windle [2012] NSWCCA 222 at [41]; Turner v R [2011] NSWCCA 189 at [3], [43], [54]; Millwood v R [2012] NSWCCA 2 at [69]; Dang v R [2013] NSWCCA 246 at [25]- [30].
In the present case, the sentencing judge appears to have paid no attention to this issue. Although he said the case was not appropriate for general deterrence, he gave no attention to the reduction of moral culpability which in my view squarely arose in these proceedings. He was in error in failing to do so. This ground of appeal has been made out.

Ground 4

The applicant referred to the submission, made on his behalf at the trial, that mental illness should be considered in all its relevant respects. He also pointed to the fact that the sentencing judge, in argument, pointed out that mental illness was usually taken into account in three or four different ways.
The applicant pointed to the evidence of the difficulties suffered as a result of incarceration. Ms Wakely referred to the difficulty he had with housemates and the fact that his behaviour in custody has caused difficulty with other inmates and staff. Dr Nielssen also referred to the fact that prison officers asked the mental health nurse to review the applicant because of his odd behaviour, to which I have referred above at [54]. Further, his psychological assessment indicated significantly elevated levels of depression and anxiety.
The Crown accepted that there was evidence before the sentencing judge that whilst in custody, the applicant had experienced difficulty with other inmates and was paranoid in respect of certain Corrective Service officers. The Crown pointed out that submissions dealing with this issue were not developed at any length in the applicant’s submissions in the Court below and submitted that, whilst the sentencing judge did not refer to the matter, the Court could be satisfied that he was well seized of the issue.
There is force in the Crown’s submission that the issue of the difficulties the applicant would suffer in incarceration as a result of his mental condition was not the subject of substantive submissions by the applicant in the Court below. However, the Crown has not contended that it was not raised.
It is well-established, and not disputed in the present case, that a relevant factor to consider in the sentencing process is the fact that a custodial sentence may weigh more heavily on an applicant by reason of his or her mental condition: Hemsley at [35]; Israil at [26]; Carney at [60]. The sentencing judge, at least on the face of his reasons, did not give any consideration to this issue. He was in error in not doing so. This ground of appeal is also made out.

Ground 5

The sentencing judgment is silent on the applicant’s prospects of rehabilitation.
The applicant submitted that each party at the sentencing hearing indicated that rehabilitation was a matter which was required to be taken into account. The applicant submitted that the sentencing judge erred in failing to do so, particularly in circumstances where the applicant’s mental illness was susceptible to treatment.
The Crown submitted that it was implicit in the finding of special circumstances that the sentencing judge took the prospects of rehabilitation into account.
The Crown also pointed to the reference by the sentencing judge at the sentencing hearing to the benefit of continued monitoring of the applicant, which it was submitted was consistent with an acceptance by the sentencing judge that the applicant’s mental illness may well continue to provide challenges upon his release. The Crown, in those circumstances, submitted that the amelioration of the non-parole period for additional supervision showed that weight was given to the mental health issues as the purpose of the amelioration was to provide for additional supervision of the applicant and enhance his prospects of rehabilitation.
It cannot be disputed that prospects of rehabilitation are a relevant factor to be taken into account as part of the sentencing process: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(h). The difficulty in the present case is that it does not appear from the sentencing judgment that consideration was given to this issue. It may be that it provided the reasons for the finding of special circumstances, however, that can only be a matter of inference as the sentencing judge gave no reason for this finding. In light of those matters it cannot be said that the sentencing judge took the question of rehabilitation into account. He was, in my respectful opinion, in error in failing to do so: see Carroll at [63]-[64]: TU v R [2014] NSWCCA 155 at [55]- [56].
It follows that this ground of appeal is made out.

Resentencing

I have set out the facts giving rise to the offence and the subjective features of the applicant above. For the purpose of resentencing, the applicant also relied on an affidavit of 19 April 2016. In that affidavit, he stated that when he first came to gaol, he was bullied and asked to be in protection, where he has remained ever since. He said he is, at present, on Medical Hold in Long Bay Gaol because of his serious sleep apnoea. He said he would like to undertake courses when he came off protection. He said he feels very isolated in custody but has one friend who visits him regularly.
The applicant has continued to have no contact with his children. He saw his former wife once, who asked him not to contact the children.
The applicant stated that when he first came to gaol, he had almost overwhelming problems sharing a cell. He said he was trying hard to cope with having a cellmate. He said he has had problems and has had to change cellmates three times so far.
The applicant stated that he takes two medications, Zoloft for his depression and Zyprexon for his anxiety, the latter drug only having been prescribed since he was taken into custody. He said he feels calmer and less anxious as a result. He said he now accepts he has a mental illness and needs medication to keep him mentally well.
The applicant stated he has been seeing a psychiatrist and psychologist regularly. He said he had been seeing the psychologist every two weeks but stopped late last year when the psychologist decided he was well enough not to be seen.
The applicant stated that he now realises he was mentally ill at the time of the offence. In his affidavit, he expressed remorse for both the victim and his wife. He stated the medication he has been taking has made it possible for him to acknowledge his behaviour and mental illness.
The applicant is entitled to a discount for the utilitarian value of his plea. In submissions at the sentencing hearing, the prosecution acknowledged that the delay in entering the plea was so that the applicant could be psychologically and psychiatrically assessed and there was the need for the applicant to confer with his counsel so it could be explained to him that he had a mental health defence which he decided not to avail himself of. Taking a somewhat different approach on the appeal, the Crown pointed out that the plea was not in fact entered until a little over 12 months after the date of arrest, six months after committal for trial and four months after receipt of the report of Dr Nielssen.
In my opinion, in the present case, the delay in the entry of the plea can fairly be attributed to the applicant’s mental illness. The applicant at no time denied committing the offence and he confirmed with Dr Nielssen he had not entered a plea because he was awaiting the outcome of his psychiatric evaluation. Having regard to the conclusion of Dr Nielssen, the further delay whilst he considered his position could not be said to be unreasonable. In the circumstances, I am of the view that the applicant should be allowed a 25% discount for the utilitarian value of his plea.
In dealing with the ground of appeal related to manifest excess the Crown pointed to a number of factors which were said to warrant the sentence imposed. They included the contention that the applicant knew what he was doing was wrong, that the sentence gave appropriate weight to considerations of personal deterrence and protection to the community, that the objective criminality was high and that the injuries were life threatening. The Crown also pointed to the fact that the evidence established the victim, Mr Lee, is unable to work and continues to suffer post-traumatic stress disorder.
The Crown also pointed to the fact that the offence was aggravated, in that it occurred in the victim’s bedroom whilst his children were present and noted that, although it had not been established beyond reasonable doubt that he went to the victim’s home intending to kill him, the attack was premeditated.
The Crown is correct in concluding the offence was very serious indeed. As the Crown pointed out, it involved a premeditated attack on the victim in his bedroom in the presence of his children, followed up by a further attack with a large knife outside the premises. The injuries were extremely serious and the attack has had an ongoing effect on the life of the victim. The seriousness of the offence can be shown by the maximum penalty of 25 years and the standard non-parole period of 10 years.
Notwithstanding, the moral culpability of the applicant is sufficiently lessened by his mental illness. Dr Nielssen’s conclusion that he did not know that what he was doing was wrong, as I have pointed out, is a matter that can be taken into account in assessing the gravity of his conduct.
It is correct that the fact that there is a causal relationship between the offence and the mental illness does not automatically lead to a reduction in the sentence which would otherwise be imposed. As Gleeson CJ in Engert stated, whilst the fact of mental illness may reduce the need for general deterrence, it may increase the need for personal deterrence or protection to the public (subject to the principle that a sentence should not be imposed beyond what is proportionate to the crime merely to protect society against recidivism: Veen v The Queen (No 2) [1987] HCA 14; 164 CLR 465 at 472-473).
In the present case, the evidence does demonstrate that the applicant, at least without treatment and medication, does have a propensity to commit irrational and violent acts. However, in his affidavit, the content of which was neither objected to nor disputed, he deposed to the treatment he has received and its helpful effect on him.
Further, although it may be accepted that the applicant showed little remorse at the time he was sentenced, there is now evidence in the applicant’s affidavit that he now feels remorse both towards the victim and his wife.
Further, having regard to what I have said in relation to Ground 4, it is clear that incarceration will occasion him particular difficulties.
Nothing of what I have said is to gainsay the seriousness of the offence or the effect it has had on the victim. However, the matters to which I have referred are matters that are required to be taken into account, along with questions of retribution and personal deterrence, in considering the appropriate sentence to be imposed.
So far as the non-parole period is concerned, I would find special circumstances. The applicant will require an extended period of supervision following his release to parole. Further, particular difficulties the applicant will face in incarceration warrant a finding of special circumstances.
In the result, I would grant leave to appeal, allow the appeal and quash the sentence imposed by the sentencing judge. In lieu thereof, I would sentence the applicant to a term of imprisonment of 9 years, commencing on 19 April 2014 with a non-parole period of 5 years. The earliest date on which the applicant will be eligible for release to parole will be on 18 April 2019.

Conclusion

The orders I would make are as follows:
- (1) Grant the applicant leave to appeal.
- (2) Allow the appeal.
- (3) Quash the sentence imposed on the applicant and in lieu thereof order that the applicant be sentenced to a non-parole period of 5 years, commencing on 19 April 2014 and a balance of term of 4 years. The earliest date the applicant will be eligible for release to parole is 18 April 2019.
DAVIES J: I agree with the orders proposed by Bathurst CJ and his Honour’s reasons therefor. I wish, however, to add some brief remarks in relation to the discount to be given for the applicant’s plea. Although error has otherwise been found making it unnecessary to consider ground 1, the issue concerning the utilitarian value of the applicant’s plea arises at the re-sentencing stage.
The Crown correctly submitted that the plea was not in fact entered until a little over 12 months after the date of arrest, six months after committal for trial and four months after receipt of the report of Dr Nielssen who examined the applicant on 5 December 2014 partly to determine whether the applicant was fit to enter a plea and partly to assess, if he was fit to plead, whether he had a defence of mental illness open to him. The Crown submitted, in the circumstances, that the appropriate discount was a 20% reduction as the Sentencing Judge accorded.
It has been held in a number of decisions of this Court including R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 at [11]; Nguyen v R [2008] NSWCCA 280 at [27]; R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32] and R v Nicholson [2010] NSWCCA 80 at [36], that generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced. In R v AB [2011] NSWCCA 229 Bathurst CJ said at [3] that while sentencing courts should generally continue to follow the approach in Borkowski, the principles had to be applied by reference to the particular circumstances in any case. That statement was noted and applied recently in Haines v R [2016] NSWCCA 90 at [27] .
The chronology in Haines was this. The applicant killed the deceased on 3 March 2001. She was found unfit to be tried on 14 February 2013 and remained unfit until 4 November 2013 when she was found fit to be tried. She was arraigned on 7 March 2014 and entered a plea of not guilty on the basis of a defence of mental illness. The trial was set for 26 May 2014. On 29 April 2014 the psychiatrist provided a further report expressing an opinion that the applicant probably did not have available to her the mental illness defence. However, he sought access to other Justice Health material to resolve his doubts. That resulted in the trial being vacated. He subsequently provided a further report on 30 June 2014 in which he concluded that she probably did not have available a defence of mental illness. On 4 July 2014 she was re-arraigned and entered a plea of guilty.
The primary judge accorded her a discount of 15% for the utilitarian value of the plea. This Court held that in the exceptional circumstances of the case the reason for the delay in entering a guilty plea had to be taken into account. The Court held further that the applicant had cooperated in confining the issues to be dealt with at the judge-alone trial to the testing of the psychiatric evidence. In the circumstances the Court held that the utilitarian value of the plea, although late, remained high and a discount of 25% was appropriate.
In my opinion, the circumstances of the present case, detailed in Bathurst CJ’s judgment, are sufficiently analogous. It was not reasonable for a decision to be made about a plea until the applicant’s fitness to plead had been examined nor until it was ascertained whether he had a defence by reason of mental illness. Within a reasonably short period after Dr Nielssen’s report was received the applicant pleaded guilty to the offence charged. I consider that the circumstances in the present case would lead to an unjust result if the delay for the purpose of obtaining Dr Nielssen’s report and its consideration by the applicant was not taken into account in assessing the appropriate discount for the guilty plea.
I, therefore, agree with Bathurst CJ that a discount of 25% should be accorded to the applicant for the utilitarian value of his plea.
R S Hulme AJ: I agree with the orders proposed by the Chief Justice and with his Honour’s reasons.

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Amendments

04 August 2016 - pars [76] and [82] and coversheet change "Isrial" to "Israil"

par [87] change "Crimes Sentencing Procedure Act" to "Crimes (Sentencing Procedure) Act"

par [100] close bracket at end of paragraph

25 August 2016 - coversheet - added applicant's junior counsel

Authorities Cited24

Referred to (24)