Craig v The Queen
[2014] NSWCCA 243
•31 October 2014
Court of Criminal Appeal
New South Wales
Case Title: Craig v R Medium Neutral Citation: [2014] NSWCCA 243 Hearing Date(s): 13/10/2014 Decision Date: 31 October 2014 Before: Leeming JA at [1];
Fullerton J at [2];
Bellew J at [30]Decision: 1. Leave to appeal granted.
2. Appeal dismissed.Catchwords: CRIMINAL LAW - appeal against sentence - threaten injury to person with intent to prevent lawful detention - guilty pleas - whether sentence was manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), s 33B(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 43, 44(2)
Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)
Mental Health (Forensic Provisions) Act 1990 (NSW), s 55(1)Cases Cited: Dinsdale v R [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
Veen v R (No 2) [1988] HCA 14; 164 CLR 465Category: Principal judgment Parties: Dion Anthony Craig (Applicant)
The Crown (Respondent)Representation - Counsel: Counsel:
P Lange SC (Applicant)
P Ingram SC (Crown)- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)File Number(s): 2012/214745 Decision Under Appeal - Court / Tribunal: District Court - Before: Woodburne SC DCJ - Date of Decision: 09 September 2013 - Court File Number(s): 2012/214745
JUDGMENT
LEEMING JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal sentences imposed in the District Court on 9 September 2013 after pleas of guilty were entered on 28 August 2013 to two counts of threatening injury to a person with the intention of preventing the applicant's lawful apprehension contrary to s 33B(1)(b) of the Crimes Act 1900 (NSW). Against a maximum penalty of 12 years imprisonment an aggregate sentence of 6 years and 9 months was imposed with a non-parole period of 4 years and 3 months. The person threatened in each count was a child. The applicant was the father of both children.
In the same sentence proceeding the applicant also pleaded guilty to entering inclosed lands contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW). The maximum penalty for that offence is equivalent to 5 penalty units, that is a monetary penalty of $550. A fixed term of imprisonment of 3 months, to be served concurrently with the aggregate sentence, was imposed for that offence.
On 15 October 2013 the sentence imposed on the charge brought under the Inclosed Lands Protection Act was corrected and, in substitution for the fixed term of imprisonment, the matter was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Although the record of the proceedings on that date did not form part of the appeal papers, on the hearing of the appeal it was not suggested that her Honour's exercise of the jurisdiction under s 43 of the Crimes (Sentencing Procedure) Act was not available.
In imposing the aggregate sentence the sentencing judge indicated that after applying a discount of 15 per cent for the pleas of guilty she would have imposed terms of imprisonment of 6 years for each offence. The aggregate term of 6 years and 9 months reflects a notional accumulation of nine months.
The non-parole period of 4 years and 3 months was appointed after a finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act on two distinct bases: first, the notional accumulation inherent in the aggregate sentence and, second, the need for the applicant to have an extended period of supervision and assistance upon his release from custody with a view to consolidating his adherence to the treatment regime to be administered by Justice Health whilst he was a serving prisoner and to assist him in dealing with what her Honour described as his "long-standing psychological issues".
The grounds of appeal
The applicant's filed grounds of appeal included a complaint that her Honour erred in imposing a sentence in excess of the maximum penalty provided for in s 4(1)(b) of the Inclosed Lands Protection Act. That ground was not pressed on the hearing of the appeal. The sole ground of appeal was directed to the aggregate sentence, it being contended on the applicant's behalf that it was manifestly excessive.
Counsel did however advance the submission that the weight the sentencing judge must have given to the fact that the offences were committed in a place to which the applicant had no right of entry, as evidenced by her Honour imposing a separate sentence of imprisonment for that conduct (albeit erroneously), supported the submission that she must have afforded weight to that feature of the applicant's conduct in threatening injury to his children and that an unjust and plainly unreasonable aggregate sentence has resulted (see Dinsdale v R [2000] HCA 54; 202 CLR 321).
That analysis is flawed in a number of respects. Even were her Honour to have had regard to that feature of the applicant's conduct when sentencing for the s 33B(1)(b) offences (that is, that he threatened injury to his children in a place to which he had no right or entitlement to enter), she was obliged to deal with the offence laid under the Inclosed Lands Protection Act as part of the sentencing exercise. It simply does not follow that because she treated the breach of s 4(1)(b) of the Inclosed Lands Protection Act as serious enough to warrant a fixed term of imprisonment that her Honour has inflated the objective seriousness of the conduct the subject of the s 33B(1)(b) offences and, in that way, imposed an aggregate sentence that is manifestly excessive. As I read her Honour's sentencing reasons, the opposite is the case. By imposing a discrete period of imprisonment (albeit in excess of jurisdiction) for the breach of s 4(1)(b) of the Inclosed Lands Protection Act she may be taken to have excluded that fact from her assessment of the sentence to be imposed on the related and much more serious offending against s 33B.
The evidence on sentence
The applicant was sentenced referable to a detailed set of agreed facts from which the following summary is drawn.
The two children the applicant threatened with injury were aged, respectively, three years and seventeen months. At the time of the offending the children were in the care and custody of their maternal grandmother by order of the Family Court. The applicant seized the children from their grandmother's home against her protestations, taking his infant son in his arms and commanding his young daughter to walk beside him. As the sentencing judge described it, he then "walked off with them into the night and through the town and scrubland".
When police ultimately located the applicant in bushland he held a set of bladed scissors to the throats of his children threatening to stab them. A stand-off between the police and the applicant persisted over some time with the applicant maintaining his entitlement to have his children with him. At one stage he said to police, "I'll finish them off if you come any closer".
Ultimately, in negotiation with a senior police officer, the applicant agreed to submit to arrest after surrendering the children and relinquishing the scissors. He told police that it was not his intention to hurt his children.
Her Honour regarded the applicant's threats to harm his children, accompanied by the obvious risk of harm to them given that bladed scissors were being applied to their throats over a sustained period of time during which he was verbally and physically aggressive to police, as amounting to grave offending against the section, despite her Honour accepting that the applicant did not wish to hurt his children.
On the appeal it was submitted that her Honour had failed to preserve the distinction created by the breadth of the statutory language of a charge brought under s 33B between the actual use of harm by means of an offensive weapon in s 33B(1)(a) and the threatened use of harm in s 33B(1)(b). Counsel also submitted that in this case the children were not at any risk of being harmed. That submission is not only against the weight of the evidence, but ignores the fact that although the charges were laid under s 33B(1)(b), her Honour was entitled to take the risk of harm to the children into account in the assessment of objective seriousness of that offending.
Her Honour noted that although there was no evidence that any psychological harm the children suffered was substantial, such as to amount to an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act, the volatility of the situation created by the applicant must have frightened them. That finding is not under challenge.
In the appointment of an appropriate sentence her Honour also had regard to the applicant's personal history and circumstances and his mental health, both at the time of the offending and at the time of sentence.
In proof of those matters the applicant relied principally upon a report of Dr Patfield, a psychiatrist with Justice Health, dated 16 August 2012. The applicant also gave evidence and was supported by close family members.
Her Honour referred to Dr Patfield's report in summarising the applicant's personal history, his various encounters with the criminal justice system since his early teen years and with various mental health practitioners at regular intervals thereafter, both in community and custodial settings. The most serious entry on the applicant's antecedent criminal record was a conviction as a juvenile in 1991 for murder, kidnapping and the use of an offensive weapon with intent to prevent his lawful apprehension. As her Honour observed, there were disturbing similarities between the facts and circumstances of that offending and the matters for which he was to be sentenced.
It was not suggested on the appeal that her Honour referred to the applicant's prior criminal record otherwise than for the legitimate purpose of informing the issue of future dangerousness and in order to determine whether, and to what extent, any leniency could be extended to the applicant (see Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 477). In particular, it was not submitted that the aggregate sentence was erroneously inflated because of the applicant's criminal record generally, or because of the prior offending of a similar kind or, more accurately, offences committed in a similar context.
The issue of future dangerousness was a consideration which had particular currency in the sentencing process in light of the applicant's psychiatric ill health at the time of the offending, and an assessment in July 2013 (twelve months later) that he remained at a moderate risk of reoffending, in both a violent and non-violent manner, despite attending regular psychological therapy and being compliant with medication as a remand prisoner, a risk that was considered likely to increase to a moderate to high risk of reoffending if the applicant refused therapy or was not compliant with his medication.
Her Honour also noted an order made pursuant to s 55(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) in April 2011 under which the applicant was transferred to the Long Bay prison hospital as a remand prisoner awaiting trial on a charge of sexual assault (for which he was later acquitted at trial). The Justice Health file records a diagnosis by a resident psychiatrist of "pathological jealousy secondary to psychosis" with the applicant at that time in an acute phase of "a schizo-affective disorder". Throughout the period of that remand and his most recent remand following his arrest on the subject charges (within months of his release in March 2012 following his acquittal) the applicant was maintained on medication specific to that diagnosis.
On his release from custody, the applicant was self-medicated on a range of psychotropic medications although his intake was irregular. Her Honour accepted that over time some symptoms of his underlying psychiatric disorder resurfaced which were compounded by what she described as his "heightened emotional state" on the day of the offending, overlaid with stress, depression and his intoxication. Her Honour accepted that this explained, at least in part, his offending conduct towards his children and, although his mental state served to reduce his moral culpability to some extent, a non-custodial penalty was not a sentencing option.
Dr Patfield consulted with the applicant within days of his arrest at which time he returned a diagnosis of "chronic psychosis, possibly schizophrenia". He also noted that the applicant was generally compliant and responsive to treatment but that he found it easier to engage with mental health services (as I understand, both in the community and under the auspices of Justice Health) than coping on his own. Her Honour accepted that the applicant was developing insight into his mental illness and recognising the need to maintain treatment to address it and to seek treatment once released from custody if he was to be successful in his wish not to reoffend. She also accepted that by the time of sentence the applicant had accepted full responsibility for his actions. That said, her Honour expressed a most guarded view as to the applicant's prospects of rehabilitation which she regarded as contingent on his willingness to submit to treatment and to adhere to it once released from custody. She noted that in the past the applicant had neither the insight nor the opportunity to obtain long-term treatment for his psychiatric condition or counselling to address the abuse he suffered as a child.
It was not submitted on the appeal that in determining an appropriate sentence her Honour dealt with the evidence bearing upon the applicant's mental health other than as consistent with established sentencing principles (see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1).
Finally, her Honour referred in terms to the purposes of sentence in s 3A of the Crimes (Sentencing Procedure) Act. When considering the need for general deterrence to be reflected in the sentence imposed, she accepted that a degree of moderation was required by reason of the applicant's mental health. However, she remained of the firm view that personal deterrence also needed to be reflected in the sentence as did the need to protect the community and promote the applicant's rehabilitation which would also be ultimately in the community's interests. None of these findings were the subject of challenge on the appeal. The consideration given by her Honour to these matters was also entirely consonant with settled authority.
I am not persuaded that the sentencing discretion has been shown to have miscarried or that the aggregate sentence exceeded a legitimate sentencing discretion.
Orders
Accordingly, the orders I propose are:
(1)Leave to appeal is granted.
(2)The appeal is dismissed.
BELLEW J: I agree with Fullerton J.
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