Arbili v The Queen
[2012] NSWCCA 48
•30 March 2012
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: ARBILI v R [2012] NSWCCA 48 Hearing dates: 10 February 2012 Decision date: 30 March 2012 Jurisdiction: Criminal Before: Basten JA at [1]
RS Hulme J at [8]
Schmidt J at [9]Decision: 1. Leave to appeal is granted.
2. The appeal is dismissed.
Catchwords: CRIMINAL LAW - appeal against sentence - whether error was made in the manner in which account taken of applicant's mental illness - whether error in the conclusion that there was a notable degree of planning - application of guideline judgment R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 - whether sentence was manifestly excessive - whether there was a failure to apply a 25% discount for the utilitarian value of the plea - lesser sentence not warranted in law Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Hawkins v R [2011] NSWCCA 153
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Lewis v R [2011] NSWCCA 206
Legge v R (2007) NSWCCA 244
Mercael v R [2010] NSWCCA 36
Mill v The Queen [1998] HCA 70; (1998) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Baxter [2007] NSWCCA 237; (2007) 173 A Crim R 284
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Jarrold [2010] NSWCCA 69
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Thompson; R v Houlton [2000] NSWCCA 309; (2009) 49 NSWLR 383
R v Wilson [2005] NSWCCA 219
Wilmot v Regina [2007] NSWCCA 278Category: Principal judgment Parties: Morad Arbili (Applicant)
Regina (Respondent)Representation: Counsel:
Mr I Nash (Applicant)
Ms N Gouda (Respondent)
Solicitors:
B Sandland, Legal Aid NSW (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)
File Number(s): 2009/240076 Publication restriction: None Decision under appeal
- Jurisdiction:
- 9101
- Date of Decision:
- 2011-11-11 00:00:00
- Before:
- Moore ADCJ
- File Number(s):
- 2009/148485
2009/240076
Judgment
BASTEN JA: The circumstances of this application are set out by Schmidt J and need not be repeated here. Subject to what follows, I agree with her reasons. However, in my view the Court should intervene to reduce by four months the balance of term from two years, six months, to 26 months.
The majority view is that there was error in failing to accord a 25% discount for the plea of guilty in the circumstances of the case, but that the sentence was nevertheless one warranted by law because it was seen to be lenient. As I understand the reasons, the element of leniency derives from the fact that the sentence was made entirely concurrent with a 10 month sentence imposed in the Local Court for a separate offence. In other respects the sentence was not properly described as lenient. The commencement date was in accordance with the Director's submission to the sentencing judge (judgment, p 11). It is difficult for the respondent now to rely upon the adoption of his submission in resisting correction of error. In fact, he relied upon that aspect of leniency only as a basis for resisting a finding that the sentence was manifestly excessive, a ground on which the applicant fails in any event.
The difficulty caused by the sentence imposed in the Local Court was that it did not commence until almost a year after the applicant was arrested, and during which period he had been in continuous custody, as it appears. As explained by Schmidt J, his Honour said, somewhat by way of afterthought, having been invited by counsel to indicate whether he had given a discount for the plea:
"Yes I meant to say and I think now I didn't say so, that what I had allowed when I was going through all the features that the plea of guilty would merit a discount of 20%. As I say, I didn't do some arithmetical feature with that, but came to a global decision."
Despite his denial of an "arithmetical" exercise, the majority in this Court state that to accord such a discount must have resulted from acceptance of the appropriate sentence, prior to the discount, as six years, three months. A better understanding may be that, as in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, the appropriate range of four to five years for similar offending included taking into account a plea of guilty, the significance of which is limited by a strong prosecution case: at [162](vii) and [163]-[164] (Spigelman CJ). Thus, the error lay not in the starting point well in excess of the Henry guideline, but in failing to allow a greater discount than would have been incorporated into the Henry guideline.
Two other concerns arise from the circumstances of the case. The first relates to the difficulty in understanding the factors which drove the applicant to commit the particular offence. Whether or not, as in Wilmot v Regina [2007] NSWCCA 278 at [27] it would be correct to describe the conduct as "bizarre", it certainly bore the hallmark of irrational and disturbed behaviour. It was followed by conditions later identified by Dr Kasinathan as demonstrating paranoid schizophrenia and psychogenic amnesia. The applicant asserted no memory of any kind, relevant to his conduct. The possible explanations might have involved a neurological disability caused, for example, by a blow to the head; a psychiatric illness, or a disturbed state induced by drugs. A neuro-psychologist, Dr Susan Pulman, opined that there was "no history of organic brain injury or neurological disorder which could account for Mr Arbili's global amnesia." Nor did she think the condition was consistent with the sequelae of traumatic brain injury. Dr Kasinathan's psychiatric diagnosis did not extend back to the time of the offence. Although there was evidence that the applicant took drugs, the sentencing judge was not satisfied on the evidence that this accounted for his offending conduct: judgment, p 7.7.
Accepting that a diagnosis of mental illness at the time of offending does not necessarily lead to a diminution in moral responsibility or the reduced relevance of general and personal deterrence as a basis for sentencing, these factors are commonly engaged. As in Wilmot, there must be a concern that the applicant's mental illness, diagnosed shortly after the offence in question, was present at the time of the offending and had a bearing on his conduct: Wilmot, at [31]-[32] (Hidden J). While it is true that an applicant bears the onus of establishing such mitigating factors on the balance of probabilities, the uncertainty resulting from the evidence in the present case raises a doubt as to whether the Court had been as fully informed as it might have been about the circumstances of the offending. Nevertheless, the deficit is not one which can be remedied by this Court and for that reason the grounds relating to the possible effects of mental illness at the time of the offending must be rejected.
I would grant leave to appeal and reduce the balance of term by four months.
RS HULME J: I agree with the orders proposed by Schmidt J and with her Honour's reasons.
SCHMIDT J: The applicant seeks leave to appeal from a sentence imposed upon him by Moore ADCJ on 11 November 2010. On 9 June 2010, the applicant entered a plea to a charge brought under s 97(1) of the Crimes Act 1900, assault with intent to rob while armed with an offensive weapon. The applicant was sentenced to a term of imprisonment of 5 years to date from 29 October 2009, expiring on 28 October 2014, with a non-parole period of 2 years, 6 months, expiring on 28 April 2012.
The maximum penalty for the offence was 20 years.
The grounds of Appeal
Four grounds of appeal were initially advanced:
"1. His Honour erred in the manner in which he took into account the applicant's mental illness;
2. His Honour erred in concluding that there was "a notable degree of planning";
3. His Honour erred in his application of Henry (1999) 46 NSWLR 346, 106 A Crim R 149;
4. The sentence is manifestly excessive.
The applicant sought leave to advance a fifth ground:
5. His Honour erred in failing to apply a 25% discount for the utilitarian value of the applicant's plea."
While that leave was opposed by the Crown, it was granted in circumstances where it was explained for the applicant that the reason for the delay in advancing this ground was error on the part of his legal representation and where it was accepted for the Crown that no prejudice would flow from the grant of the leave.
The sentencing judgment
His Honour noted that the offence had been committed while the applicant was on bail in respect of another charge before the Local Court, of demanding property in company with menaces and with intention to steal. His Honour noted the relatively early plea entered in circumstances where the applicant said he had no memory of anything in the past, including the commission of the offence. The plea was entered as the result of legal advice which his Honour observed, in his view, was very properly given in the circumstances. His Honour took the view, however, that in those circumstances, the question of remorse had to be considered in the context of a strong Crown case.
His Honour noted the applicant's subjective circumstances. He was 31 years of age, with a criminal record comprising 2 convictions for common assault in 2003, in respect of which he received bonds; another common assault in 2005, in respect of which a $500 fine was imposed; a fine in 2008 for entering into enclosed lands, as well as bonds for another common assault and a charge of stalking or intimidating, with conditions that he accept drug and alcohol rehabilitation; and 18 months imprisonment in 2009, for an offence of demanding property in company.
His Honour referred to the agreed facts as to the circumstances of the offence:
"The victim, Jihan Thejil, works at his father's tobacconist shop at Liverpool. His father, Hamid Saddy, on 28 October 2009 told Jihan Thejil that an incident at the store where a male tried to exchange a tobacco grinder purchased several weeks earlier and had threatened Mr Saddy before he left the store.
On 29 October 2009, Mr Thejil was working at the tobacconist at about 6.30pm. The offender entered the store and started to swear at Mr Thejil in Arabic. Mr Thejil realised that this was the same man who had entered the store yesterday and spoken to his father.
That man produced a tobacco grinder, defined that it didn't work, and demanded a refund of $30. Mr Thejil told him that the item needed to be sent back to the manufacturer. There was another customer in the store. When the customer left, the offender looked out into Bigge Street, came back to the store, pulled out a brown-handled-knife, and unfolded the blade of it which was approximately 10 centimetres in length.
He pointed the knife at Mr Thejil several times, and said 'give me the $30, give me anything, give me a phone, I will fuck your mother, you don't know me, I will break your shop, I will cut you.' All of this was said in Arabic. Mr Thejil said 'please don't hurt me, I just work here, I'll call my father.'
The offender got angry and slammed his hand down on the counter, cracking the counter glass. Mr Thejil picked up the telephone and managed to call his father while the offender was saying 'don't call the fucking police, the police are scared of me, just give me the money.'
The offender tried to get into the cash register to get money. Mr Thejil leant forward and closed the cash register drawer with his left hand. The offender swiped at him with the knife, giving him a cut on the left tricep. Mr Thejil managed to close the drawer. At this point a customer came into the store, the offender closed the knife and put it away and walked out of the shop.
Mr Thejil's brother came into the store and Mr Thejil told him what had happened. Mr Thejil's father then came into the store and saw the offender outside. Mr Thejil's father asked the offender to come back in to the store and he will give him his money. The offender refused and shouted 'fuck off, I'm going to break your shop, just wait a minute and my friends will be here."
His Honour also referred to events which occurred subsequently, which he did not take into account by way of aggravation of the offence, but 'in assessment of the question of the offender's mental illness which has been made a feature of this case'. They were:
"The offender walked a short distance up the road and again started threatening Mr Saddy, Mr Thejil's father, constantly saying that he was going to break his shop. Mr Saddy and Mr Thejil walked up to him to try and calm him down and keep him at the scene until the police arrived. The offender started swearing and saying 'fuck you' to Mr Saddy, pushing Mr Saddy to the ground.
Mr Thejil said 'what are you doing.' The offender said ' I will show you what I am doing, ' pulled the knife from his pocket, unfolded it and started to walk towards Mr Saddy who had regained his feet. The offender was holding the knife over his head. Mr Saddy was speaking to him, trying to calm him, Mr Saddy tripped over and fell again to the road. Mr Thejil ran towards Mr Saddy and a passer-by joined in to help him.
They grabbed the offender with the knife and tried to get it out of his hand. Mr Thejil's brother was also there. At that stage the police arrived.
It was the offender then who fell down, saying that he needed an ambulance. Mr Thejil and his brother took the knife, and the offender's wallet and tobacco grinder, and went back into their store.
On 30 October 2009, the offender took part in an interview with the assistance of an Arabic interpreter. When the allegations were put to him he said he was bashed by four different males for no reason and that they had a knife, not he. He was kept under arrest and has remained in custody ever since."
His Honour referred to records of the applicant's triage at the police cell complex that day, as well as to a report from Dr John Kasinathan, a psychiatrist who saw the applicant on 6 May 2010. His Honour noted that Dr Kasinathan came to the conclusion that the applicant had a mental illness, 'paranoid schizophrenia and psychogenic amnesia'.
His Honour noted that there was a history of the applicant having been assaulted in October 2009, but without any loss of consciousness. He also noted the report of Dr Susan Pulman, to whom the applicant was referred after he fell out of a bed in his cell in December 2009. His Honour noted her opinion that:
"Although a period of retrograde amnesia is often observed following a traumatic brain injury, the inability to recall any details from his past is inconsistent with the details of his injuries. Individuals with extremely severe trauma head injuries are able to recall some details of their past, details of an individual's childhood and formative years are typically well reserved in such injuries.
Based on Mr Arbili's presentation and the information available from medical records, there is no history of organic brain injury or neurological disorder which could account for Mr Arbili's global amnesia."
Reference was made by his Honour to a pre-sentence report, which reflected that the applicant had answered most questions asked of him with 'I don't remember' and which had been prepared by reference to an earlier report prepared for the applicant's appearance in the Local Court in March 2008. His Honour noted the opinion expressed there that the applicant's mental health 'may have been a factor in the offence.'
His Honour also noted the submission advanced for the applicant, that the commission of the offence may have been influenced by drugs or alcohol, but his Honour was unable to make any finding on the evidence in that respect. His Honour rejected the argument that the offence was not premeditated, on the agreed facts.
His Honour noted that there was an issue as to whether the mental illness from which the applicant was later diagnosed to have been suffering, existed prior to the commission of the offence. His Honour considered evidence as to the applicant's prior offending, including the circumstances of the assault of another shopkeeper in March 2009. His Honour concluded:
"Given the equivocal nature of the medical evidence, I do not feel as a lay person, without the doctors having been given that material to consider, and without it having been considered in any way in conjunction with today's sentence, that I should take it into account in assessing whether there was an earlier mental health issue with the offender which may be demonstrated by the earlier crime. So I put the details of the crime to one side, whilst still taking the result into account by way of criminal record in the requisite fashion.
I believe that as much as can be said from the material before the court is that the mental illness - from which I accept the offender presently suffers - cannot be said to have arisen before the commission of the present crime. It may, however, well persist. Dr Kasinathan does not deal with prognosis other than to say that treatment is required.
I feel that I should find that there is a likelihood presently indicated of persistence of the mental illness after his release. The Parole Board will be in a better position to assess that at the time of the considering parole, but I must deal with the issue presently in determining the sentence. The courts are familiar with crimes being committed by persons with paranoid schizophrenia but it does not follow that a person with paranoid schizophrenia may, for that reason, commit crime.
On assessment of all the evidence I am left, on balance, but only on balance, with a distinct unease that the offender may now have a tendency to commit further crime if, on release, he is not given sustained treatment.
This is a matter pertinent to consider, see Helmsley 2004 New South Wales Court of Criminal Appeal 228 para 36 citing Israil 2002 New South Wales Court of Criminal Appeal 255."
His Honour did not consider that the applicant's mental illness reduced his moral culpability for the offence, nor rendered the matter an inappropriate vehicle for general deterrence. His Honour noted that mental illness might be relevant to the issue of specific deterrence, but did not indicate that he had adopted that approach. He did come to the view that special circumstances existed, requiring a lengthy period of parole with medical supervision of treatment and to the view that a custodial sentence would weigh more heavily on the applicant than on the normal run of prisoners. An allowance was made in this respect in the applicant's favour.
His Honour had regard to sentencing statistics put before him and referred to the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, which he observed did not strictly apply to this offence, but which required consideration in the particular circumstances. His Honour observed:
"However, I do note that the features of the characteristics are all present in one degree or another in the present matter, with the exception that here the criminal history is worse and the degree of planning could not be described as limited. The violence involved was also more than limited. The plea of guilty could not be described as early although it was relatively ... (not transcribable)... "
He concluded that the plea warranted a discount of 20%, which had been reflected in the sentence imposed.
The evidence
In evidence was the agreed statement of facts; a Probation and Parole Pre-sentence report; Dr Kasinathan's report; NSW Justice Health records as well notes from St George and Liverpool Hospitals; and Dr Pulman's report. Mr Arbili gave no evidence.
Dr Pulman's opinion was:
"Based on Mr Arbili's presentation and the information available from medical records there is no history of organic brain injury or neurological disorder which could account for Mr Arbili's global amnesia. It is noted from Justice Health medical records that Mr Arbili has been diagnosed with a psychotic disorder. Issues relating to his fitness to stand trial are therefore a matter for psychiatric opinion rather than neuropsychological expertise.
In summary, on the basis of information available to the writer, there is no evidence of any neuropsychological deficits which are consistent with the cognitive sequelae of a traumatic brain injury."
The applicant's case below
It was argued that the offence was not premeditated and that it was low range, because of a lack of planning. It was accepted that aggravating factors were the prior convictions, the offence being committed while the applicant was on conditional liberty; and the vulnerable victim, a young shopkeeper. The mitigating matters were that the offence was not planned; and that the applicant was not fully aware of the consequences of his acts, because of his mental state and the plea. It was argued that special circumstances would be found, because this would be the applicant's first gaol term and because of his mental state, for which he was receiving treatment.
As to the Henry guideline judgment, it was submitted that the applicant's mental illness affected the objective seriousness of the offence, which was not planned, was of short duration and committed in the context of frustration and drug and alcohol abuse issues, with the result that it was a lower range offence. It was argued that given his time in custody of almost one year, the applicant ought to be released after preparation of a case plan for parole.
Ground 1 - His Honour erred in the manner in which he took into account the applicant's mental illness
The applicant submitted in written submissions that contrary to his Honour's finding, the evidence established that he was mentally ill at the time of the commission of the offence in October 2009; and that as a result, his moral culpability for his offence was limited, because his illness contributed to the commission of the offence in a material way. In the result his Honour had erred in failing to conclude that the applicant was an inappropriate vehicle for general deterrence; and in failing to reduce the head sentence, by virtue of that mental illness. In oral submissions it was urged that the mental illness should have ameliorated general deterrence as a factor in the sentence.
In my assessment these submissions should not be accepted.
The evidence was that on 1 October 2009 the applicant was admitted to St George Hospital, seemingly after he was assaulted. He was released the next day, with no evidence found as to any head injury, he having been found to be alert and oriented. There was then no suggestion of mental illness. The offence occurred on 29 October 2009. At that time the applicant was on bail in respect of the offence he had committed in May, of which he was later convicted.
The applicant's conduct that day was clearly irrational, but whether that was the result of a mental illness, or the effects of drugs, is not apparent. In the submissions advanced below, it was conceded that the applicant had drug and alcohol issues, there having been evidence of drinking scotch, smoking $20 pot per day, taking one table of morphine a day, as well as panadeine forte for headaches. That was another possible explanation for the applicant's conduct, but that this was the cause was not established on the evidence.
The records also show that the applicant was agitated after his arrest on 29 October, then only admitting to marihuana use. On 31 October, florid speech and mood swings were noted, with the question of mental health then raised. On 2 November, the applicant was noted as being tearful, agitated, demanding, irrational and emotionally unstable, distressed and fearful. It is on 6 November that the notes are suggestive of mental illness, recording complaints, for example, of the TV giving the applicant messages, albeit it is also noted that the applicant then suggested that this was a symptom of withdrawal.
The plea was entered on 9 June 2010, after the applicant was assessed to have been fit to plead on 6 May 2010 by Dr Kasinathan. His report noted that he had spoken to Dr Nguy, consultant psychiatrist who advised that:
"... upon arrival to jail, Mr Arbili had presented as anxious and fearful and was able to speak English. Within weeks his mental state deteriorated, he would only speak Arabic, admitted to hearing voices and feeling paranoid. Dr Nguy diagnosed Mr Arbili with a psychotic disorder and commenced appropriate treatment."
There was no report from Dr Nguy in evidence, but Dr Kasinathan noted that the applicant was able to speak English on arrest, when he was anxious and fearful and soon began to suffer symptoms consistent with drug withdrawal. Dr Kasinathan was of the view in 2011 that the applicant was suffering from a mental illness, but neither he nor any other expert expressed the view that the applicant was suffering from such an illness at the time of the offence.
The onus fell on the applicant to establish that the mental illness existed at that time. His Honour concluded that this onus had not been met. That conclusion was open. The evidence relied on to suggest the existence of mental illness was also consistent with the applicant suffering from the effects of his habitual drug use on arrest and later from withdrawal.
Even if either mental illness or drug and alcohol abuse was a factor in the commission of the offence, that would not necessarily result in the conclusion that a lesser sentence should have been imposed. As discussed in Henry at [173] - [177]:
"173 As a joint judgment of the Court put it in Valentini (1989) 46 ACrimR 23 at 25:
"This Court has said on countless occasions that addiction to heroin is not to be considered as a factor for the reduction of what would otherwise be an appropriate sentence for the nature of the offences which have been committed. It serves, however, to provide an explanation for the commission of the offences."
This has been reiterated in a number of later cases (eg Stanford NSWCCA 23 November 1993; Atkins NSWCCA 27 May 1998).
174 Drug addiction is one of the circumstances of a particular offence that is relevant to the sentencing exercise. It may, for example, be pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case.
175 In Engert (1995) 84 ACrimR 67, Gleeson CJ emphasised the complexity of the sentencing task and the multiplicity of the, sometimes conflicting, objectives it must serve. His Honour concluded:
"It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." (68)
176 His Honour went on to say that the existence of a causal relationship between a mental disorder and the commission of an offence does not automatically produce the result that the offender will receive a lesser sentence (at 71). Nor, in my opinion, should the existence of a causal relationship between drug addiction and the commission of an offence.
177 The circumstances in which motive may be a mitigating factor should, in my opinion, be confined to cases in which motive impinges upon the moral culpability of the offender. This can include mental, emotional or medical problems or impulsive conduct. In any event the degree to which motive may be pertinent must depend on the whole of the circumstances. (White NSWCA 23 June 1998 at 24)."
In Wilmot v Regina [2007] NSWCCA 278, the trial judge did not accept the opinion of an expert that the applicant was suffering a mental illness at the relevant time. Hidden J observed at [26] - [32]:
"26 It is unnecessary to revisit the familiar line of authority dealing with the bearing of mental illness upon sentence: see, for example, R v Engert (1995) 84 A Crim R 67. Undoubtedly, a finding that the applicant's mental illness contributed to his criminal behaviour would have been relevant to an assessment of the objective gravity of his offences. However, that is a matter in mitigation as to which the applicant bore the burden of proof, and there needed to be evidence sufficient to establish it.
27 Certainly, there is a bizarre quality to both offences. This can be seen in the somewhat elaborate planning of the malicious wounding of Mr Mostafa and the ferocity of the attack upon him, as well as in the applicant's expression to police of a preference to be shot rather than be imprisoned. As to the planning of the first offence, it may be that that is not inconsistent with its being the product of mental illness. Moreover, one might question the effectiveness of the applicant's disguise when committing that offence in the presence of members of his family. As I have said, it did not prevent his daughter recognising him.
28 Nevertheless, a finding that the applicant's mental illness contributed to the offences would need to have been supported by expert evidence disclosing the basis upon which that finding was available. In his second report Dr Westmore did not elaborate at all upon his assertion of a link between the illness and the applicant's behaviour. His ability to proffer a basis for that opinion must have been hampered by the fact that the applicant declined to provide him with an account of the offences. Nor did the applicant give evidence in the sentence proceedings, and Ms Davenport was unable to take us to any part of his recorded police interview which might have provided a foundation for the doctor's opinion.
29 Ms Davenport referred to a passage in the Justice Health material from which it appears that the applicant told a health professional that he believed that Mr Mostafa was planning to sexually abuse his daughter. This appears in notes made on 12 July 2004, five days after his arrest. Nothing of the kind was suggested elsewhere in the evidence. In particular, he said nothing about it in his recorded police interview and there was no reference to it in Dr Westmore's reports or in his father's evidence. Nor is it referred to in his Honour's remarks and, indeed, it does not appear to have been raised at the sentence proceedings.
30 It is difficult to place any weight on this assertion, or to afford any significance to it. There appears to have been no material before his Honour by which it might be decided whether there was some factual basis for it, whether it was a fabrication or whether it was a delusional belief. Certainly, there was no evidence, expert or otherwise, to establish that it was engendered by mental illness.
31 Ms Davenport emphasised the fact that almost immediately after the applicant's arrest he was found to be suffering from a psychiatric condition, previously undiagnosed and apparently of long standing. She argued that this alone warranted a conclusion that his condition influenced the commission of the offences.
32 I must say that this aspect of the matter has troubled me. However, as I have said, the question of a link between the applicant's mental illness and his offences was a matter for expert evidence. Whilst acknowledging the undoubted expertise of Dr Westmore, his second report was wholly inadequate to establish that link. The bare assertion of a link, without elaboration, was insufficient: cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. It was open to his Honour to find that the connection had not been established."
This approach has been followed in a number of later cases (see for example Mercael v R [2010] NSWCCA 36 and Lewis v R [2011] NSWCCA 206).
In this case there was no expert evidence that the applicant was suffering from a mental illness at the time of the offence, or as to any causal connection between the offence and the mental illness the applicant was later diagnosed to be suffering from. His Honour carefully considered the evidence, but concluded that it did not establish that mental illness was suffered at the time of the offence. That conclusion was plainly open. The evidence was not all one way, as was submitted for the applicant.
If his Honour had come to the conclusion that a mental illness was suffered at the relevant time, he would also have had to consider the causal connection between the illness and the offence and whether the result should be the imposition of a lesser sentence, because the applicant's circumstances were such that the need for deterrence to feature in the sentence needed to be modified.
While such a connection was not established, the mental illness which the applicant was suffering from at the time of sentence, was still a factor to be taken into account in determining sentence. That illness was taken into account by his Honour, who determined as a result that special circumstances existed, warranting a longer than usual non-parole period. In adopting that approach his Honour did not err.
Accordingly, this ground of appeal must fail.
Ground 2 - His Honour erred in concluding that there was a notable degree of planning
The applicant's case below was that there was no premeditation or planning involved in the offence. His Honour rejected that submission, finding that there was a 'notable degree of planning'. That conclusion was open on the agreed facts, which included that on the day before the offence, the applicant went to the shop and sought to exchange a pepper grinder. He threatened the victim's father, when he did not agree to the exchange. It was the following day that the applicant returned to the shop armed with a knife. He entered the shop and swore at the victim, speaking to him about the grinder, only after the other customer in the shop had left. The applicant then looked out into the street, returned to the empty shop and pulled out a knife with a 10cm blade, which he pointed at the victim, while demanding money and threatening to cut him. It was in the ensuing altercation over the till, that the victim was injured.
The Crown's case was that there had been a limited degree of planning, but his Honour found that the facts revealed a degree of planning involved in the offence which 'could not be described as limited'. That conclusion was clearly open on the evidence. Accordingly, this ground of appeal must also fail.
Ground 5 - His Honour erred in failing to apply a 25% discount for the utilitarian value of the applicant's plea
It is convenient next to deal with Ground 5.
The applicant was arrested on 29 October 2009. Justice Health triage notes of 31 October 2009 record "mental health issues & mood swings". A Notification Form of that organisation dated 2 November records, inter alia, "Tearful agitated man", "became demanding and irrational", and "Behaviour escalation angry emotionally unstable and demanding". Although the records available to the Court are by no means complete, there seem thereafter to have been a number of health issues until, on 6 May 2010 Dr Kasinathan reported that although the applicant had a mental illness he was fit to plead. On 9 June 2010 the applicant pleaded guilty and shortly afterwards he was committed for sentence. His Honour took the view that the plea as "relatively early although by no means at the outset".
Otherwise, his Honour made no reference in his original remarks on sentence to a discount for the applicant's plea. After he had concluded those remarks, Counsel asked him if he had applied such a discount. His Honour responded: -
"Yes, I meant to say and I think now I didn't say so, that what I had allowed when I was going through all the features that the plea of guilty would merit a discount of 20%. As I say, I didn't do some arithmetical feature with that, but came to a global decision. Thank you for reminding me ..."
The amount of the discount was a matter for his Honour's discretion. As discussed in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, a 25% discount is not automatic. The applicant relied on the conclusions reached in Hawkins v R [2011] NSWCCA 153, to submit that the discretion had miscarried. There a delay in the entry of a plea and a hearing, as the result of an investigation into the applicant's health, a fitness hearing and plea negotiations, was considered to have been fairly attributed to the applicant's mental illness, with the result that the relvant discretion to grant a discount of only 20% had miscarried.
His Honour took the view that the plea of guilty could not be described as early, although it was a useful and a responsible acceptance of guilt in circumstances where the applicant had no recollection of the crucial events.
It seems to me, as in Hawkins, in the applicant's circumstances the exercise of the discretion miscarried. In the circumstances the plea was an early one, properly attracting the grant of a 25% discount. While the evidence did not establish the existence of any mental illness at the time of the commission of the offence in October 2009, that the applicant succumbed to such an illness not long afterwards is apparent. He received treatment for that illness and his fitness to plead was investigated. Having been found to be fit in May, he was given prompt advice and soon entered a plea despite ongoing problems with his memory. The plea was entered before committal proceedings in the Local Court. In those circumstances a 25% discount was plainly warranted.
This ground of appeal must be upheld.
Ground 3 - His Honour erred in his application of Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
Ground 4 - The sentence was manifestly excessive
The applicant directed the same case in respect of these two grounds. In respect of ground 4, he must establish that the sentence was unreasonable or plainly unjust.
Both parties addressed Henry in their submissions. It was a guideline judgment given in relation to the offence of armed robbery under s 97(1) of the Crimes Act. At [165], Spigelman J observed that in his view, offences in which the following factors are shown to be present, ought to result in four and five years for the full term:
"162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:
(i) young offender with no or little criminal history;
(ii) weapon like a knife, capable of killing or inflicting serious injury;
(iii) limited degree of planning;
(iv) limited, if any, actual violence but a real threat thereof;
(v) victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) small amount taken;
(vii) plea of guilty, the significance of which is limited by a strong Crown case."
His Honour also observed at [169] - [170]:
"169 Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point.
170 In addition to factors which may arise in any case, for example, youth, offender's criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:
(i) nature of the weapon;
(ii) vulnerability of the victim;
(iii) position on a scale of impulsiveness/planning;
(iv) intensity of threat, or actual use, of force;
(v) number of offenders;
(vi) amount taken;
(vii) effect on victim(s)."
The judgment was clearly a relevant consideration in his Honour's determination of the sentence (see Legge v R (2007) NSWCCA 244 at [37]), as was the maximum penalty for the offence. The applicant's case was that the sentence imposed, 5 years after a discount of 20%, at the upper end of the range established in Henry was manifestly excessive; that being the result of his Honour's failure to have regard to the distinguishing features in this case, particularly the early plea and the applicant's mental illness.
These submissions should not be accepted.
Mental illness and discount for the early plea are the subject of separate grounds of appeal. Otherwise, the facts in this case were outside the factors discussed in Henry, in a number of relevant ways. The applicant was 31 years of age when he committed the offence, while on bail for another offence of violence. He had a relevant criminal history and by the time of sentencing, the applicant had been convicted of the offence he had committed in March 2009, for which he had been sentenced to 18 months imprisonment, with a non-parole period of 10 months. It was found there was more than limited planning involved in this offence. The applicant not only went to the shop armed with a knife, he threatened and actually wounded the victim, a shopkeeper, while wrestling with him over the cash register. While he was unsuccessful in taking any money, he then also made further threats with the knife, against others who were immediately outside the shop.
While mental illness was not established to have existed at the time of the offence, that the applicant was mentally ill was taken into account in the sentence imposed. The non-parole period imposed for this offence was only 50% of the term of the sentence. The non-parole period for the earlier offence is to expire on 8 July 2011. The sentence for this offence was backdated to 29 October 2009, with the result that the non-parole period of 2 years, 6 months imposed, totally subsumes the 10 months non-parole period imposed for the earlier offence.
This result reflected considerable leniency in the circumstances. In reaching his conclusion his Honour observed that he had accepted the approach urged by both parties, which he had accepted with some reluctance. His Honour did not explain why.
In the circumstances the totality principle required that his Honour give consideration to questions of cumulation and concurrency of the sentence imposed (see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 and R vMMK [2006] NSWCCA 272; (2006) 164 A Crim R 481.) The two offences in respect of which the applicant received concurrent sentences, each offences of violence, were not the result of one course of conduct, or criminal enterprise. Sentences for two such offences should not be made concurrent, simply because of the similarity of the conduct involved in each offence (see R v Jarrold [2010] NSWCCA 69 at [56]).
When concurrent sentences are imposed, it is settled that there needs to be an identification and evaluation of relevant factors pertaining to the offences, including their respective nature and seriousness, which leads to the concurrency which is imposed (see Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]). Complete concurrency is usually not warranted where there are separate offences and separate victims. As Simpson J discussed in R v Wilson [2005] NSWCCA 219 at [38]:
'...In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s3A of the Sentencing Procedure Act. The first purpose so specified is ensuring adequate punishment for crime; others here relevant include crime prevention by deterrence, denunciation, making an offender accountable, and recognition of the harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims.
It follows that these grounds of appeal were not made out. This was not a manifestly excessive sentence in the circumstances.
A lesser sentence is not warranted in law
Despite the conclusion that his Honour erred in relation to the discount given, having in mind the sentence which his Honour imposed, which was made entirely concurrent with the sentence imposed for the March 2009 offence, it is necessary to consider whether any lesser sentence is warranted in law (see s 6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79]). That requires consideration of whether the sentence imposed is outside of the appropriate range for the offence (see R v Baxter [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [16] - [18]).
Arithmetical calculations based upon the five years total sentence and the 20% discount referred to by his Honour would indicate a starting point of six years and three months. Accepting his Honour's statement that he had not indulged in that degree of precision, it may be inferred that his starting point was of the order of six to six and a half years. The division of the five year term into a non-parole period of two and a half years and an additional term of two and a half years meant that the non-parole period was an unusually low percentage of the total term albeit his Honour saw good reasons for this. As has been said, that non-parole period was made entirely concurrent with the 10 month non-parole imposed upon the applicant for his earlier offence."
The sentence imposed was, in my view, not only within the appropriate range, but a lenient sentence, having in mind the gravity of this offence; the aggravating and mitigating factors which had to be taken into account; the mental illness from which the applicant now suffers, as reflected in the finding of special circumstances; the 25% discount which ought to have resulted from the early plea; and the proper application of the totality principle.
In my view of the circumstances, a lesser sentence than that imposed was not warranted in law, with the result that the appeal should not succeed.
Orders
I propose the following orders:
1. Leave to appeal is granted.
2. The appeal is dismissed.
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Decision last updated: 05 April 2012
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