Ayoubi v R

[2006] NSWCCA 364

CITATION:	AYOUBI v REGINA [2006] NSWCCA 364
HEARING DATE(S):	5 September 2006; 17 November 2006
JUDGMENT DATE:	24 November 2006
JUDGMENT OF:	Giles JA at 1; Sully J at 2; Latham J at 3
DECISION:	Leave to appeal against sentence granted; Appeal dismissed.
CATCHWORDS:	Sentence Appeal - Break, Enter and Steal offences - sentences imposed on the basis that offences committed while the Applicant was suffering from a mental illness - whether Court should allow fresh evidence - no miscarriage of justice justifying reception of fresh evidence
CASES CITED:	Benitez v R (2006) 160 A Crim R 166 ; [2006] NSWCCA 21 R v Matthews [2004] NSWCCA 112 R v Fordham (1997) 98 A Crim R 359
PARTIES:	Mohamad Ayoubi - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2006/1741
COUNSEL:	DG Dalton SC - Applicant P Barrett - Respondent
SOLICITORS:	J Hajje - Applicant S Kavanagh - Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/3169
LOWER COURT JUDICIAL OFFICER:	Sides QC DCJ
LOWER COURT DATE OF DECISION:	25 November 2005

2006/1741

GILES JA
SULLY J
LATHAM J

24 NOVEMBER 2006

MOHAMAD AYOUBI v REGINA

Judgment

1 GILES JA : I agree with Latham J.

2 SULLY J : I agree with Latham J.

3 LATHAM J : The applicant Mohamad Ayoubi seeks leave to appeal from sentences imposed by Sides QC DCJ at Campbelltown on 25 November 2005, following pleas of guilty to 12 counts of Break Enter and Steal, one count of Break Enter with Intent to Steal and one count of Stealing and Attempting to Break Out. The applicant requested that a further 14 offences be taken into account on a Form One when his Honour came to sentence the applicant on the last count on the indictment (Count 14).

4 The structure of the sentences imposed is as follows :-

Counts 2, 4, 10, 11 and 13 (each carrying a maximum penalty of 14 years imprisonment) : on each, a sentence of 30 months imprisonment to date from 24 January 2004, with a non parole period of 15 months expiring on 23 April 2005.
Counts 1, 3, 5, 6, 7, 8, 9 and 12 (each carrying a maximum penalty of 14 years imprisonment) : on each, a sentence of three years imprisonment to date from 24 January 2004, with a non parole period of 18 months expiring on 23 July 2005.
Count 14 (carrying a maximum penalty of 10 years imprisonment and taking into account 14 matters on the Form One) : non parole period of two years six months, to date from 25 July 2004, expiring 24 January 2007, with the balance of term of two years, expiring 24 January 2009.

5 The aggregate sentence was therefore a head sentence of five years with a non parole period of three years, expiring on 24 January 2007.

A Significant Course of Offending

6 There is no dispute relating to the circumstances surrounding the commission of the offences. His Honour summarised the offences in the following terms which I adopt for the purposes of this appeal :-

Between 24 June 2002 and 3 December that year, the offender broke into one residence and 13 business/commercial premises. On all occasions except one he stole property. In the main, he stole computer equipment. On or about 17 November 2002 he broke into Hong Kong Superstore at Punchbowl with intent to steal but actually stole nothing. This gives rise to count 10. On 3 October 2003, he broke and ended G&G furniture at Greenacre and stole a computer(Count 13).

The following year, on 25 February, he secreted himself in Myer's store in the city and remained there until after it closed. The store was secured by about 6 p.m. Sometime after that, the offender moved computer equipment, valued at $25,800 from the sixth floor to the ground floor near the Pitt Street exit. At about 10:30 p.m., members of staff who were leaving after a staff meeting …. saw the offender trying to hide from them. They saw him pick up some computer equipment and run through the store. Later, security staff found him trying to smash a glass exit door with a chair. This gives rise to count 14. The offender was arrested. Later, he lied to police, telling them he had fallen asleep in the toilet, awoken after the shop had closed and tried to get out. (ROS p 2-3)

7 With the exception of the offences on the Form One and the property the subject of Count 9, the applicant stole property valued at a little over $88,000, of which approximately a quarter was recovered. The offences on the Form One (committed between April 2001 and June 2003) involved the theft of small quantities of cash and approximately $300 worth of electrical equipment.

8 The offences on indictment and 12 of the Form One offences were committed in breach of a two year bond imposed at Burwood Local Court on 28 May 2002 for the offences of Break Enter and Steal, Goods in Custody and Drive Manner Dangerous. In addition, the applicant was placed on an 18 month bond at Sutherland Local Court on 4 March 2003 in respect of an offence of Malicious Damage. This latter bond was current at the time the applicant committed the offences covered by Count 13 and 14 on the indictment, as well as the offences numbered 12 to 15 on the Form One. These latter offences were also committed in breach of bail.

Grounds of Appeal

9 Two grounds of appeal are pressed, the second relating substantially to the first. Principally, the applicant complains that his Honour failed to properly take into account the applicant's mental illness. It is also submitted that the sentence is manifestly excessive.

10 There was a substantial amount of material tendered in the course of the sentencing proceedings, relating to the applicant's history of mental illness. The bulk of that material post-dated an assault upon the applicant in September 1999, during which he was struck to the face and head with a metal torch. The applicant was hospitalised for a number of months following this assault, in respect of both the physical and psychiatric sequelae. His Honour reflected that material in the remarks on sentence :-

Included amongst the diagnosis are : schizophrenia; major depressive disorder; post traumatic stress disorder. Further, [the assault] adversely affected his intellectual function. Before the attack he functioned at the average level, after the attack his functional level fell to low average range. The doctors cannot exclude the possibility of frontal lobe damage arising from the assault in 1999.

Although there are some inconsistencies in the histories provided for the various reports, I am satisfied that since the assault in 1999 the offender has suffered from significant psychiatric illness. Some may pre-date the assault. I note that there is a history of mental illness in the immediate family.

…………………………………………………………………….

After his arrest on 25 February 2004, the offender remained in custody, bail refused. Whilst in prison, Dr Thompson has treated him and he has been on a combination of antipsychotic and antidepressant medications as well as mood stabilisers. ….. Since he went into gaol in February last year, the offender's mental health has slowly improved to the point where he is now probably stabilised. In theory, if he remains compliant with the prescribed medication, he should be able to live a stable lifestyle in the community.
…………………………………………………………………….
In all the circumstances, it is reasonable to conclude that at the time of these offences the offender was suffering from a mental illness. On the evidence presented, the court found it difficult to assess to what extent the offender’s mental illness reduces his criminality.
…………………………………………………………………….
Because of the offender’s mental health, these sentences will not be as lengthy as in the case of an individual not afflicted with such a disability. (ROS pp 5-9)

11 The written submissions filed on the applicant's behalf assert that his Honour “made no finding as to the level of reduction of the sentence as a result of the applicant’s mental illness and perhaps even more importantly the basis upon which he reduced the applicant's sentence”. Counsel submits that the applicant's mental health "required specific findings on the subject and not simply a reference to an intuitive unspecified reduction at some un-nominated level." It is said that the medical evidence "reported, at least by reference to the applicant's accounts, [that] his offending behaviour was caused by his mental illness." It is then submitted that “his Honour should have made a specific finding in what order the applicant’s mental illness affected his offending conduct and reduced his moral culpability".

12 The thrust of these submissions appears to be that his Honour erred in failing to articulate the causative link between the applicant’s mental illness and his offending behaviour, and in failing to quantify the reduction of the sentence, otherwise appropriate to the applicant’s criminality, on account of the relevant disability.

13 When the matter first came on for hearing before this Court on 5 September, it was observed that there was very little, if any, evidence in the various expert reports that addressed the relationship between the applicant's mental illness and the subject offences. All of the expert reports before his Honour were directed to the question of the applicant's fitness to be tried. There were reports prepared to this end in February, March, April and May of 2004. The applicant was originally found unfit to plead at a fitness inquiry at Campbelltown District Court on 9 August 2004. An updated psychiatric report was prepared in November 2004. On 27 June 2005 the Mental Health Review Tribunal assessed the applicant as fit for trial. A further fitness inquiry was held at Campbelltown District Court on 2 November 2005, at which time the applicant was found fit for trial. The applicant was then arraigned and pleaded guilty. It is not surprising therefore, that the reports focussed on the applicant's capacity to understand the nature of a trial and to participate in the proceedings in the period prior to August 2004 and November 2005.

14 To the extent that some of the reports touched upon the nature and extent of the applicant’s mental illness in the latter half of 2002, and the latter half of 2003, none of these reports proffered any opinions on, or provided any insight into, the extent to which the applicant's mental illness contributed to the commission of the offences. True it is that the applicant himself reported in the course of a number of consultations that “evil spirits came over him” and that he was not aware of what he was doing, but the applicant’s predominant account to his treating psychiatrists and legal representatives was that he could remember nothing of the offences.

15 Accordingly, the applicant sought and was granted an adjournment of the application for leave to appeal, so that psychiatric evidence filling this lacuna could be placed before the Court. On the further hearing of the application, the Court received on a provisional basis two affidavits sworn by the applicant’s solicitor. The first of those affidavits, sworn 25 October 2006, included by way of annexure two letters from Dr Brendan T O’Sullivan, Consultant Psychiatrist, dated 5 October and 18 October 2006 respectively. The second affidavit, sworn 15 November 2006, recounted the efforts made by the applicant’s solicitor to ascertain from the Legal Aid Commission the identity of the applicant’s legal representative on sentence, with a view to explaining the failure to place the further material from Dr O’Sullivan before the sentencing Judge.

16 Before passing to the content of the “fresh” evidence, it is pertinent to note that a number of letters concerning the applicant’s mental health by Dr O’Sullivan were before Sides QC DCJ on sentence as Exhibit 8. A document headed “To whom it may concern” dated 27 February 2004 from Dr O’Sullivan stated that the applicant :-

has been a patient undergoing care. He suffers from schizophrenia and severe depression which requires ongoing treatment. … His main symptoms have been auditory hallucinations .. and paranoid delusions.

In addition, a handwritten document seeking to have the applicant scheduled as a mental health patient at Rozelle Hospital, dated 1 April 2004, referred to paranoid delusions and to Dr O’Sullivan’s knowledge and treatment of the applicant for “more than 12 months”. A further letter of 27 April 2004 simply referred to the applicant as a “long-term patient with schizophrenia.” Finally, a letter addressed to the Supreme Court dated 11 March 2004 stated that Dr O’Sullivan “first saw [the applicant] in March 2003”, yet later states “when I first saw him in September last year his major symptoms were of depression with feelings of hopelessness, helplessness and low self-esteem.” All of these documents were consistent with Dr O’Sullivan’s treatment of the applicant dating from approximately March 2003 at the earliest.

17 However, within a report from Professor Greenberg dated 28 May 2004, which was before the sentencing judge as Exhibit 4, Dr O’Sullivan is mentioned as the applicant’s treating psychiatrist “for the past two years”. This information came from the applicant himself and was the only basis upon which one might have doubted Dr O’Sullivan’s own account of his knowledge of the applicant. As the evidence stood at sentence, it seemed that Dr O’Sullivan was not treating the applicant during the latter half of 2002, when the bulk of the offending occurred.

18 Returning then to the “fresh” evidence, Dr O’Sullivan states that he had treated the applicant “for several years prior to his legal problems” and that :-

In late 2002, [the applicant] could no longer be relied upon to keep his appointments. I became concerned that he had ceased his medication and was deteriorating again. At about the time of [his] arrest, I had in fact drafted a Schedule to have him sent to Rozelle Hospital.
[The applicant] has laboured under a diagnosis of Paranoid Schizophrenia since at least 1999. This has affected his perceptual and cognitive processing. He was, in my view, clearly mentally ill throughout all of 2002.

19 Further, Dr O’Sullivan offered the opinion that :-

[the applicant] had a mental incapacity at the time of his offences and that his illness is well known to affect prefrontal brain functions including social (dis)inhibition, moral judgment and other higher cognitive capacities. I have little doubt but that this was a biological contributing factor in the crimes in which he was involved.

20 The applicant’s counsel submits that Dr O’Sullivan’s “mistake” in the documents making up Exhibit 8, effectively misled the applicant’s legal representative before Sides QC DCJ as to the existence of psychiatric material bearing upon the causal relationship between the applicant’s mental illness and his offending. Had that material been before his Honour, so the argument goes, it would have resulted in the imposition of a lesser sentence. In other words, the applicant maintains that the absence of that material has occasioned a miscarriage of justice.

21 As the submissions of the Crown make clear, evidence in addition to that tendered in the sentencing proceedings will not be received by this Court unless the applicant establishes that :-

(1) ..the additional material ….. is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision ;

(2) .. although its existence may have been known to the applicant, its significance was not realised by him at the time ; and
(3) .. its existence was not made known to the applicant’s legal advisers at the time of those sentencing proceedings.
R v Goodwin (1990) 51 A Crim R 328 at 330 .

22 I do not regard the content of Dr O’Sullivan’s most recent correspondence as so significant that it may have materially influenced Judge Sides QC. The fact is that his Honour did have regard to the applicant’s mental illness and placed lesser weight on general deterrence in arriving at the overall sentence (as the applicant’s counsel conceded on the hearing of the appeal). In order for this Court to be persuaded that the “fresh” evidence may have had a real bearing on the exercise of the sentencing discretion, something more than an assertion that the applicant’s mental illness was a “biological contributing factor” in the commission of the offences is required. That statement does not allow a court to determine the extent to which the mental illness contributed to the offending behaviour, that is, was it a major contribution, a minor contribution or something in between ? That was the dilemma facing his Honour and the “fresh” evidence does not resolve it.

23 Furthermore, the existence of Dr O’Sullivan and his relationship with the applicant was known to the applicant’s representatives or was reasonably discoverable by them well before sentence. Dr Greenberg’s report referred to it directly. All of the reports relied upon by the applicant’s representatives were tendered on 2 November 2005, three weeks before sentence. In the body of Dr Allnutt’s report of 21 April 2004 (Exhibit 2) reference is made to the applicant’s psychiatric treatment through Canterbury Hospital since 1999. Exhibit 3 was a letter under the hand of Dr Gilandas, Canterbury Community Mental Health Service, dated 9 October 2000, to the Dept. of Housing, referring to the applicant’s bipolar disorder and anti-psychotic medication. Dr Gilandas was noted by Mr Rolfe, clinical psychologist, (Exhibit 10) as the applicant’s psychiatrist at Canterbury Community Health Service in 2000. Mr Rolfe’s report refers to admissions to Canterbury Hospital and to Rozelle in 2002. Dr O’Sullivan’s letter of 11 March 2004 (Exhibit 8) also referred to Dr Gilandas as the applicant’s treating psychiatrist over a three year period, presumably 1999-2002.

24 In short, there was ample material alerting the applicant’s representatives to the potential availability of psychiatric reports for the period 2001-2002. It may be that closer scrutiny of that period of the applicant’s treatment could have clarified the connection between his psychiatric condition and the particular type of offending upon which the applicant embarked, so as to allow an assessment of the causal relationship between the applicant’s mental illness and the offences.

25 In any event, the settled law in relation to an offender’s mental illness does not require such an exercise to be undertaken. The authorities bearing upon this question have been helpfully summarised by Simpson J in Benitez v R (2006) 160 A Crim R 166 ; [2006] NSWCCA 21 at [36]-[38] :-

For mental illness or a psychiatric condition to be relevant to sentencing it is not necessary that it be the cause of the commission of the crime. Indeed, authorities suggest that it is not necessary that it be a cause of the crime. I refer to the decision of this court in R v Fahda [1999] NSWCCA 267 at [40] – [48]. There reference was made to a number of authorities of which the following are, on this issue, relevant. In R v Letteri (unreported, NSWCCA, 18 March 1992), Badgery-Parker J. said:
In each of those cases [which he had, in the preceding paragraph, cited], it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle. . (Emphasis added)
In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said:
In truth, however, … the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to the circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system .(Emphasis added)

A mental disorder such as the applicant's depression was identified by Gleeson CJ in Engert as being part of the circumstances of the individual case. Generally speaking, the well-known authorities indicate that mental disorder may be relevant to the assessment of the offender’s culpability and to the level to which it is appropriate to give greater or lesser emphasis to principles of general or specific deterrence: see also R v Scognamiglio (1991) 56 A Crim R 81 ; Letteri ; R v Champion (1992) 64 A Crim R 244 ; R v Wright (1997) 93 A Crim R 48.

26 It is also relevant in the present context to refer to what was said by Wood CJ at CL in R v Matthews [2004] NSWCCA 112, namely that ;-

[A]s was made clear in R v Elchami NSWCCA 15 December 1995, and also in R v Wright (1997) 93 A Crim R 48, and in R v Bus NSWCCA 3 November 1995, these principles have a lesser relevance for an offender with a low level of intellectual functioning, or a developmental disorder, where, notwithstanding that incapacity or disorder, he or she has a clear knowledge of what is being done, an awareness of its wrongness, and a capacity for impulse control.

27 It may, of course, be helpful to undertake an assessment of the extent to which an offender’s mental illness has contributed to criminal behaviour, whether that be by way of disinhibiting the offender, removing or impairing the capacity for judgment or, at one extreme, inducing the commission of offences (see Wood CJ at CL in Matthews at [27]).

28 In the absence of any evidence from the applicant’s legal representative before the sentencing Judge, I am not prepared to infer that there was any incompetence on his part. There was more than sufficient psychiatric evidence to support the finding that his Honour made. Further clarification of the extent of Dr O’Sullivan’s contact with the applicant may have been desirable, but it was far from a mark of incompetence.

29 The following observation by Howie J in R v Fordham (1997) 98 A Crim R 359 is relevant to the circumstances of this matter :-

Absent sentencing error which requires the Court to re-sentence an appellant, the Court should, in my view, resist attempts to place before it material which was not before the sentencing judge. Simply because the legal representatives of an appellant (very often not the particular solicitor and barrister who acted for the appellant at the hearing on sentence) feel that some aspect of the personal circumstances of the appellant was not properly investigated and, therefore, not placed before the sentencing judge, or because they consider that more attention should have been given to some subjective factor than was paid to it by the legal representatives of the appellant at the sentencing hearing, it should not generally follow that a proper basis has been made out for this Court to receive such material.

30 For these reasons, I would not admit the affidavits as fresh evidence for the purposes of this appeal. The appeal is to be determined according to the evidence before Sides QC DCJ.

31 The applicant’s counsel concedes that his Honour placed less weight on general deterrence because of the applicant’s mental illness. It is however submitted that his Honour erred in finding that the offences displayed “some planning” and that “the number and nature of offences convey a picture of a professional thief”, primarily because planning was said to be inconsistent with the applicant’s mental illness. In my view, it was open to his Honour to find that the applicant was capable of planning the offences, to the extent that particular premises and particular items were targeted. These were not random or opportunistic offences ; the applicant travelled from his home in Lakemba to a number of commercial premises in different suburbs (including Greenacre, Bankstown, Riverwood and Punchbowl) in order to commit the offences and the applicant was able to dispose of a large quantity of computer equipment in a relatively short period of time. The observation that the hallmarks of a professional thief were present does not equate to a finding that the applicant was a professional thief.

32 I cannot accept the applicant's submission that there was any obligation upon his Honour to quantify or nominate a reduction from the sentence otherwise thought appropriate, solely on account of the applicant’s mental illness. The applicant received the benefit of the full discount applicable to his early pleas of guilty. Any further quantified reduction cannot be supported by authority and is contrary to the exercise of the sentencing discretion as an undertaking in instinctive synthesis. In these circumstances, I fail to see how his Honour could be said to have fallen into error.

33 It follows from the views that I have expressed regarding the significant number of offences (including the Form One offences), the evidence before his Honour concerning the applicant’s mental illness and the fact that the offences were committed in breach of conditional liberty, that the sentences imposed by his Honour were wholly within his sentencing discretion. Notwithstanding the applicant’s psychiatric condition, whatever its contribution to the spate of offending, the sentences are not manifestly excessive. Indeed, given that the sentences imposed for all but one of the fourteen counts on the indictment are wholly concurrent, the aggregate sentence might be seen as lenient.

34 I propose the following orders :-

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

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