Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: McLaren v Regina [2012] NSWCCA 284
• Hearing dates: 4 December 2012
• Decision date: 19 December 2012
• Before: McClellan CJ at CL at [1]; McCallum J at [2]; Bellew J

Decision

Leave to appeal granted; appeal allowed; sentence imposed in the District Court quashed and, in lieu thereof, applicant sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 17 April 2011 and expiring on 16 April 2014 and a balance of term of 2 years expiring on 16 April 2016. The earliest date of eligibility for parole is 16 April 2014.

• Catchwords: CRIMINAL LAW - sentencing - applicant sentenced under the law as it stood before the decision of the High Court in Muldrock - no lesser sentence warranted on evidence before sentencing judge - new evidence of severely impaired mental state at time of offending - evidence admitted to avoid miscarriage of justice
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912
• Cases Cited: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120; R v Johnson [2005] NSWCCA 186; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; Stumbles v R [2006] NSWCCA 418
• Category: Principal judgment
• Parties: Steven James McLaren (Applicant); Regina (Respondent)
• Representation: Counsel: D Carroll (Applicant); J Girdham (Respondent); Solicitors: Mark Klees & Associates (Applicant); Director of Public Prosecutions (Respondent)
• File Number(s): 2010/329650
• Publication restriction: None

Decision under appeal

• Date of Decision: 2011-06-15 00:00:00
• Before: Berman DCJ
• File Number(s): 2010/032965

Judgment

1 McCLELLAN CJ at CL: I agree with McCallum J.

2 BELLEW J: I agree with McCallum J.

3 McCALLUM J: Steven McLaren seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to attempted murder, contrary to s 30 of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment. There is a standard non-parole period for the offence of 10 years.

4 The applicant was sentenced by Berman DCJ to a term of imprisonment with a non-parole period of five years and a balance of term of 3 years (a total sentence of 8 years). His Honour stated that he had reduced the sentence by 25 per cent to reflect the utilitarian value of the applicant's early plea, indicating that the sentence would otherwise have been a non-parole period of 6 years and 8 months and a balance of term of 4 years (a total sentence of 10 years and 8 months).

5 I note that the remarks on sentence record the learned sentencing judge as having stated that the standard non-parole period for the offence is eight years. As stated above, the relevant period is in fact 10 years, not eight. Neither party addressed that issue in submissions. I doubt whether the sentencing judge, who has substantial experience both in the criminal law and as a judge, proceeded on the incorrect basis recorded. Having regard to the sentence imposed and in light of his Honour's findings of fact, I think it is more likely to have been either a typographical error or a slip of the tongue during the remarks on sentence.

6 The victim of the offence was Mr Barry Harrison, who suffered from advanced motor neurone disease. Mr Harrison was virtually unable to do anything for himself and required constant care. At the time of the offence, the applicant had been Mr Harrison's live-in carer for a period of about seven months. Prior to taking on that role, the applicant had been on a disability pension for some 20 years, having had long-term psychiatric illness, including a diagnosis of bipolar disorder. Upon assuming the role of carer for Mr Harrison, the applicant qualified for a carers' pension from Centrelink.

7 To all appearances, the applicant took to the role of carer with competence and enthusiasm. Mr Harrison described him as a man who, until the night of the offence, had been "full of so much caring" and said that he was a nice man and a gentle man who "just went over the edge". Mr Harrison's ex-wife similarly spoke of the applicant's performance in the role (before the commission of the offence) in glowing terms, describing him as "an angel from heaven". Another carer who did the day shift said that the applicant was "the best thing that had happened" to Mr Harrison.

8 As time went on, however, Mr Harrison became increasingly ill with a chest infection and the applicant was getting increasingly less sleep. Unbeknownst to those around him, the applicant had also stopped taking his medication.

9 Owing to respiratory problems, it was necessary for Mr Harrison to sleep at an angle, with his head raised above his chest. The applicant had been told that, if placed horizontally, Mr Harrison would die. On the night of the offence, the applicant deliberately lowered the top of Mr Harrison's bed as low as it would go, believing it would kill him. He later told police that he had intended to kill Mr Harrison, explaining that he (the applicant) was "at breaking point".

10 The applicant was 54 years old at the time of the offence. In his youth he had qualified as a mechanical engineer employed by BHP; married a primary school teacher and had three children. At the age of 28, the applicant had a psychotic episode and was diagnosed with schizophrenia. He spent several weeks in hospital and was unable to return to work after that time. He spent the next 20 years on a disability support pension and, later, working in a sheltered workshop as a welder.

11 In 2004, the applicant and his wife separated and the applicant became unable to hold his position at the sheltered workshop. He was again admitted as a psychiatric patient. He remained under psychiatric treatment for several years, including a further psychiatric admission.

12 In late 2009, the applicant completed a six-week course as an assistant in nursing for the care of aged or bedridden people. In early 2010, a counsellor introduced him to Mr Harrison and he accepted the role of being Mr Harrison's carer. According to the statement of facts relied upon in the proceedings on sentence, the applicant was "about to be homeless" at that time and the carer position was a live-in position. The applicant was required to assist Mr Harrison with all physical requirements except for a period of about four or five hours each day, when Mr Harrison received home care assistance. An aspect of the applicant's role was that he was required to be on call throughout the night.

13 The applicant continued to see his regular psychiatrist, Dr Weiss, during the first half of 2010. Dr Weiss noted that the applicant was "very positive" about his new role as carer for Mr Harrison. However, the applicant did not reveal to Dr Weiss that he had become non-compliant with his medication.

14 Dr Weiss's final consultation with the applicant before the offence was on 15 July 2010. It was not until December 2010, after the commission of the offence, that Dr Weiss became aware that the applicant had become non-compliant with his medication.

15 In about July 2010, the applicant started to complain to his daughter that he was not getting a break from caring for Mr Harrison. She encouraged the applicant to speak to Mr Harrison about his concerns. He did not heed that advice, and his complaints continued.

16 On 2 October 2010 the applicant complained to his daughter that he had not been getting a lot of sleep because Mr Harrison was unwell and was getting him up to go to the toilet a lot during the night.

17 The offence occurred on the evening of 4 October 2010. Mr Harrison had at that stage been sick for a while. He was dry retching very badly in the afternoon and thought he might need to go to hospital. However, early in the evening, his condition started to improve. He warned the applicant that it might be a difficult night, requiring him to get up a few times.

18 It was during that night that the applicant decided to place Mr Harrison horizontally. The applicant told police that he had been thinking about what a bad day it had been and thought "poor Steve, I've got to get out of this situation, why don't I change the position of the bed, and Barry will die very quickly because there's so much mucus and he's worn out and I won't have to continue to feeling trapped with Barry".

19 When the applicant lowered the bed, Mr Harrison woke almost immediately. He called out for help for a number of hours. The applicant heard his cries for help and walked outside where he could still hear Mr Harrison calling out. He later told police that he had stood on the corner of the street and smoked a lot of cigarettes while Mr Harrison called for help. He then went back inside the house where he closed some doors and turned on the television so that he could not hear Mr Harrison. He said that it made him feel terrible but he was hoping that Mr Harrison would die quickly. He told police that he felt trapped. He could not go and save Mr Harrison because then he would have to explain why he had done what he had done.

20 Mr Harrison survived the ordeal but was not discovered until 8.30 the following morning. By that time, he had spent many hours in great discomfort and grave fear. He in fact died not long after that evening, but it is not, and cannot be, suggested that the applicant's conduct caused his death.

21 The first ground of appeal is:

The Sentencing Judge erroneously attributed weight to the appellant's apparent state of mind when making findings as to the objective seriousness of the offence.

22 This ground may be disposed of briefly. It flows from the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 as to the effect of s 54B(2) of the Crimes (Sentencing Procedure) Act 1999, which applies to offences that carry a "standard non-parole period". Importantly, a standard non-parole period is defined in the Act as representing the non-parole period for an offence "in the middle of the range of objective seriousness" for offences in the table of standard non-parole periods: see s 54A(2) of the Act.

23 Section 54B(2) provides:

When determining the sentence for the offence (not being an

aggregate sentence), the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

24 In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [62], the Court of Criminal Appeal had held that s 54B(2) was expressed in "mandatory terms". In that context, the Court held that the procedure mandated by the section required the sentencing judge to assess the objective seriousness of the offence at hand by comparing it with the putative offence in the middle of the range of objective seriousness (that being the notional measure of seriousness of offending for which the standard non-parole period was prescribed). Importantly for present purposes, the Court in Way allowed that matters personal to the offender, including mental state at the time of offending, would affect that assessment: at [86]-[88].

25 In Muldrock, the High Court rejected the analysis in Way. The Court said (at [27]):

Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness", Sentencing Act, s 54A(2). Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending (emphasis added).

26 The applicant was sentenced before the decision in Muldrock was handed down. Unsurprisingly in that context, the learned sentencing judge undertook the task required by a proper application of the principles in Way of stating how the offence before him compared to an offence in the middle of the range of objective seriousness. In doing so, again perfectly in accordance with the principles stated in Way, his Honour took into account aspects of the applicant's mental state at the time of offending in reaching the conclusion that the offence was "slightly below the middle of the range".

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] where it appears in the underlined sentence in the extract above 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).

30 It may be accepted that the sentencing judge in the present case articulated his findings in accordance with principles that have since been overturned. In assessing the significance of that circumstance, it must be borne in mind that the impugned finding (his Honour's conclusion as to how the offence before him compared to an offence in the middle of the range of objective seriousness) is one that, following Muldrock, is no longer required to be undertaken: at [25].

31 In any event, the determinative last step for this Court when considering a ground of appeal alleging Muldrock error is to form an opinion as to whether any less severe sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912. It was acknowledged at the hearing of the present appeal that the sentence imposed was within the range of appropriate sentences on the strength of the evidence before the sentencing judge. It follows inexorably that this Court would not intervene on the Muldrock ground alone: cf R v Johnson [2005] NSWCCA 186 at [33]-[34] per Hunt AJA; R S Hulme and Johnson JJ agreeing at [50] and [57] respectively.

32 Ground 2 is:

A miscarriage resulted from the absence at the sentence of "fresh evidence", being a report of Dr Olav Nielssen, psychiatrist, of 26 May 2012.

33 Notwithstanding the formulation of that ground, it was conceded at the hearing of the appeal that the further report of Dr Nielssen dated 26 May 2012 did not meet the requirements to be classified as "fresh evidence" (T2.11). The applicant nonetheless contended that the Court should exercise its residual discretion to admit and consider the new material so as to prevent a miscarriage of justice.

34 It is necessary to explain the circumstances in which that contention is made. Two psychiatric reports were relied upon by the applicant at the proceedings on sentence. One was a report dated 10 February 2011 prepared by the applicant's treating psychiatrist, Dr Weiss (exhibit C). The other was a report dated 16 February 2011 provided by Dr Nielssen (exhibit B). Importantly for present purposes, although Dr Nielssen's report post-dated that of Dr Weiss, Dr Nielssen had not seen Dr Weiss's report at the time he finalised his own report. However, the applicant was not in a position to put forward any evidence as to why that was the case. There appears to be no better explanation than that there was a slip-up.

35 The relevant chronology in respect of that material is as follows. Dr Weiss is a consultant psychiatrist who first treated the applicant in 2004, when the applicant was admitted to hospital as a psychiatric patient for about a month. He was diagnosed at that time with a major depressive episode, bipolar affective disorder and gambling disorder. Dr Weiss noted that the applicant had a past history of mania with psychotic features and had been on antipsychotic medication for many years.

36 The applicant's mental state became stable after several years but in 2008 he was again admitted to hospital with acute exacerbation of depressive symptoms due to overwhelming stress at work.

37 His mental state slowly improved again with strengthened medication, coupled with extended clinical treatment. With encouragement from a counsellor, he obtained his qualification in aged and disabled care towards the end of 2009 and obtained his employment with Mr Harrison in early 2010.

38 Dr Weiss saw the applicant twice after he began working for Mr Harrison. On the first occasion, in March 2010, Dr Weiss noted that the applicant's affect was "very bright with good reactivity".

39 Dr Weiss saw the applicant again in July 2010. That was the last time he saw him before the commission of the offence. On that occasion, Dr Weiss recorded "mental state improving" and provided a prescription for Lamictal. Dr Weiss was not aware at that time that the applicant had become non-compliant with his medication.

40 The offence was committed in early October 2010.

41 After the commission of the offence, Dr Nielssen was asked to see the applicant, evidently for the purpose of determining whether he had a mental illness defence. The material made available to Dr Neilssen included Dr Weiss's reporting letters, including the letter in respect of the consultation in July recording the applicant's supposed improved mental state. Dr Neilssen saw the applicant only once, in November 2010, whilst he was in custody.

42 Dr Nielssen's report recorded the following in respect of Dr Weiss's records:

The letters from Dr Weiss confirmed the history of treatment with mood stabilising medication, antidepressant and antipsychotic medication, as well as ECT, for schizoaffective disorder. At the last consultation before his arrest on 15.7.10, Dr Weiss noted "mental state improving" and printed a prescription for Lamictal.

43 On the strength of those records and the history given to him by the applicant, Dr Nielssen did not think the applicant was suffering from any mental illness at the time of the offence that was causally connected with his offending. Dr Nielssen said:

I did not elicit symptoms of active mental illness associated with his behaviour towards Mr Harrison or that his conduct was due to the effects of an acute episode of mental illness. However, it does seem clear that Mr McLaren has a residual disability arising from his illness, particularly in the area of coping with stress or the expectation to perform at a certain level when compared to his premorbid function. Prior to the onset of illness he had achieved a good pass in the Higher School Certificate and had completed some tertiary training and was working full time and supporting a young family. For twenty years after the onset of illness he worked in a sheltered workshop at well below his potential and his employment since leaving that workshop appears to have been unstable because of difficulty coping with the pressure of new positions. Hence it seems likely that Mr Harrison's demanding condition and the associated sleep deprivation caused him significant distress. Sleep deprivation is known to trigger symptoms of mood disorder. Chronic mental illnesses such as bipolar disorder and schizoaffective disorder are also associated with an increased tendency to act on impulse and impaired capacity for problem solving.

44 His report concluded with the following statement:

I believe the effects of Mr McLaren's circumstances and his underlying chronic mental illness resulted in significant impairment in his capacity to control his actions and his perception of the seriousness and likely consequences of his conduct.

45 As already noted, at the time of his last consultation with the applicant, Dr Weiss was unaware that the applicant had become non-compliant with his medication. His note as to the applicant's "mental state improving", relied upon by Dr Nielssen, was made in that context.

46 In early December 2010, the applicant was granted bail and went to see Dr Weiss. It was then that the applicant reported that he had stopped using lithium and lamotrogine twelve months earlier. That additional information prompted Dr Weiss to revisit some of his earlier observations. He stated:

The absence of these drugs, destabilised the Bipolar Disorder and was out of control. It was my impression based upon the mental state described above that Mr McLaren had been cycling and was in a mixed state over the early part of 2010. Prior to the attempted murder it is my opinion that the symptoms had exacerbated into mania and grandiosity mixed with despair and depression. This menial state resulted in impairment of judgment and a desperate need to find a "final solution to the problem".

I note in my correspondence to his GP after the consultation in December, that "Steve's affect was very bright and animated. In hindsight, it would appear that he was hypomanic. He described himself as being able to work long hours and meet all of the demands of his charge without question".

This was in marked contrast to his presentation on this occasion, in which he displayed symptoms of a Major Depressive episode. It is not possible for me to comment on Mr McLaren's mental state at the time of the alleged attempted murder. However, it is my opinion that the Bipolar Disorder was out of control in the first six months of 2010 due to non-compliance with medication and the emerging psychosis with grandiose Ideation. This was exacerbated by to (sic) the increased demands placed upon him after Barry developed a chest infection increasing his level of dependence and need for care.

47 Dr Neilssen's report as an expert witness was prepared in ignorance of those revised observations. As already noted, Dr Neilssen's opinion was expressly based on the observation recorded by Dr Weiss as at July 2010 that the applicant's mental state was improving and that a prescription had been provided on that date.

48 The sentencing judge accepted Dr Nielssen's opinion, noting that it was not challenged by the Crown. He stated "this means that the offender's moral culpability is substantially reduced and reduces also the effect that general deterrence should have on the sentence I will impose upon the offender".

49 However, his Honour noted that the sentence must bear a reasonable relationship to the objective gravity of the offending. His Honour said "that principle does not cease to apply in a case where an offender's moral culpability is reduced because of mental illness and in this case the offender well knew what he was doing was seriously wrong. He well knew that Mr Harrison was suffering for six hours and his sole motivation was, I repeat, a selfish one".

50 The judge later repeated the remark that the offender "well knew" what he was doing.

51 The Crown did not dispute the applicant's contention that, at the time sentence was passed, Dr Nielssen had not seen the report of Dr Weiss dated 10 February 2011, even though that report pre-dated the report of Dr Nielssen tendered at the proceedings on sentence.

52 After the applicant was sentenced, Dr Nielssen became aware that Dr Weiss had revised his opinion following upon his learning that the applicant had become non-compliant with his medication. In light of Dr Weiss's further opinion, Dr Nielssen revised his own opinion, importantly concluding that the applicant was mentally ill at the time of the offence. That was contrary to the basis on which the applicant was sentenced. Dr Nielssen's revised opinion (set out in a letter dated 26 May 2012) was as follows:

Based on the further information from Mr McLaren's treating psychiatrist, I now believe that on the balance of probabilities Mr McLaren was mentally ill at the time of the offence. Based on the additional information, rather than any account of his own symptoms that Mr McLaren was able to provide, it seems likely that he was affected by a defect in reason in the form of severely impaired judgment, decision-making and impulse control arising from a mixed state of mania and depression, and that he was unable to reason with sense or composure about the likely consequences of his actions or consider the alternative courses of action that were available to him.

53 On the strength of the evidence that was before the sentencing judge, it was plainly open to his Honour to conclude, as his Honour did, that the applicant "well knew that what he was doing was seriously wrong". However, I do not think it is possible to reconcile that finding with Dr Nielssen's further opinion that the applicant was "unable to reason with sense or composure about the likely consequences of his actions or consider the alternative courses of action that were available to him".

54 The restrictions upon the reception of evidence of events occurring after sentence has been imposed are well known. The relevant principles are conveniently summarised in the judgment of Latham J in Stumbles v R [2006] NSWCCA 418 at [7] to [8]. Her Honour there emphasised that special and unusual circumstances are required to justify departure from the general principle. The applicant acknowledged the sound policy reasons lying behind the general prohibition on the receipt of such evidence. It was submitted, however, that this is an exceptional case such as to warrant departure from the general position, in accordance those principles.

55 The applicant identified the subsequent event in the present case as being Dr Nielssen's receipt of Dr Weiss's report. As already noted, it was frankly acknowledged at the outset of the hearing that Dr Weiss's report was constructively available to the applicant at the time of sentence (in the sense that it existed and could have been reviewed by Dr Neilssen). The simple fact, however, is that Dr Nielssen did not see it. Upon reviewing that report, whereas he had not previously thought that the applicant was suffering from mental illness causally connected with the commission of the offence, he came to the opinion on the balance of probabilities that the applicant was mentally ill at the time of the offence. Dr Neilssen's earlier, contrary opinion was based on the incorrect premise that the applicant's mental state was improving as at July 2010, only a few months before the commission of the offence, and in ignorance of the additional significant information that the applicant had in fact been non-compliant with his medication since the beginning of the year.

56 In my view, those circumstances indicate that, through no fault on the part of the learned sentencing judge or either psychiatrist, the sentencing process miscarried. Further, in my view, the circumstances are sufficiently special to warrant reception of Dr Nielssen's further report, notwithstanding the fact that it is not "fresh evidence" in the strict sense. The opinion evidence before the sentencing judge provided a proper foundation for his Honour to take a stern view as to the offender's moral culpability, articulated in the finding that the offender "well knew that what he was doing was seriously wrong". That finding, however, cannot be reconciled with Dr Nielssen's further opinion.

57 It remains to consider whether, on the strength of that additional evidence, a less severe sentence should be imposed: cf s 6(3) of the Criminal Appeal Act 1912. I have concluded that it should. The applicant's moral culpability must be seen as significantly less than was found to be the case on the strength of the incomplete evidence before the sentencing judge. Rather than "well knowing" that what he was doing was seriously wrong, and being selfishly motivated, the applicant may be seen in the light of Dr Nielssen's further opinion to have been acutely affected in his sense and reason by a spiralling mental state, which saw his judgment severely impaired.

58 It must be acknowledged that there were other factors contributing to the objective seriousness of the offending, as noted by the learned sentencing judge. In particular, his Honour noted the vulnerability of the man in the applicant's care, the extent of his suffering as he called in vain for help, the fact that the applicant ignored those calls over a lengthy period and the breach of trust which the offence represented. Those are important factors which must be given due weight, and which point inexorably to the need for condign punishment by the imposition of a period of full-time imprisonment.

59 However, as serious as the applicant's offending was, once it is viewed through the prism of his unhappy psychiatric history and his severely impaired mental state at the time of the offence, in my view it may be concluded that a less severe sentence was warranted in law and should have been passed.

60 The order I propose is that the sentence passed at first instance be quashed and, in lieu thereof, that the applicant be sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 17 April 2011 and expiring on 16 April 2014 and a balance sentenced of term of 2 years expiring on 16 April 2016. The first date on which the applicant will be eligible for parole is 16 April 2014.

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Decision last updated: 21 December 2012