Duane Dudley Broad v R No. SCCRM 94/144 Judgment No. 4640 Number of Pages 5 Criminal Law and Procedure

[1994] SASC 4640

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PRIOR(2) AND PERRY(3) JJ

CWDS
Criminal law and procedure - sentence - larceny from the person 8 months' imprisonment - larceny of motor vehicle 10 months' imprisonment cumulative - suspension of Previously suspended 3 month sentence revoked - total period of imprisonment 21 months - non-parole period 9 months - serious mental condition reducing moral responsibility - proportionality and general deterrence of little relevance - necessity of personal deterrence where mentally ill offender not confined to institution - on appeal sentences for present of fences made concurrent reducing total period to 13 months but non-parole period affirmed.

HRNG ADELAIDE, 24 June 1994 #DATE 24:6:1994

Counsel for appellant:     Mr W F Braithwaite

Solicitors for appellant:    Paul Charman

Counsel for respondent:     Mr B J Jennings QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against sentences imposed in the District Court. The appellant pleaded guilty to a charge of larceny from the person, the offence being committed on 16 April 1993. He also pleaded guilty to a charge of larceny of a motor vehicle, that offence being committed on 8 December 1993.

2. The learned judge imposed a sentence of imprisonment for eight months for the crime of larceny from the person, and ten months for the crime of larceny of a motor vehicle. She made those two sentences cumulative upon one another.

3. The crimes involved a breach of a three year bond into which the appellant had entered on 8 October 1992, upon condition of which a sentence of imprisonment for three months for false pretences had been suspended. that suspension was revoked. The total period to be spent in prison in consequence of the judge's orders were therefore 21 months. Her Honor fixed a non-parole period of nine months.

4. Mr Braithwaite, who appeared for the appellant before us, has not disputed that Her Honor was required to estreat the recognisance, and revoke the suspension of the three month sentence, but he has contended that the sentences imposed for larceny from the person, and for larceny of a motor vehicle, and the non-parole period were excessive.

5. The problem in the case is the appellant's mental condition. There can be no question, to my mind, that if it were not for that mental condition, the learned judge's sentences would be regarded as appropriate, and perhaps moderate. Nevertheless, she was obliged to have regard to what was disclosed in a psychiatric report which was before her as to the appellant's mental condition.

6. He has had a long mental history, and has spent considerable time in mental institutions since the age of 15 years, including one 10 month period in 1987. He had been living in the community for some time prior to these offences. He was apparently living with a woman, but a crisis developed in that relationship, and he, in consequence, lost his accommodation.

7. It appears that on the morning of the day on which the larceny from the person occurred, he had sought to be readmitted to the Glenside Hospital, but had been refused. The offence was committed in the near vicinity of the Glenside Hospital. It consisted of snatching the bag of an elderly lady, and running off with it.

8. The larceny of a motor vehicle was committed on the morning of the day on which he was to be sentenced for the bag snatching crime. It seems clear enough that he panicked at the thought that he might be sent to prison, borrowed his friend's motor vehicle, and then drove it to Mount Gambier and sold it.

9. I think that consideration of the circumstances surrounding these offences, indicates clearly enough that there was a direct relationship between his mental condition and the offences which he committed.

10. The psychiatric report which was before Her Honor indicated that the appellant had been diagnosed at various times as suffering from a schizo-affective disorder, a condition which is characterised by recurrent mood swings, coupled with schizophrenic symptoms such as delusions and hallucinations, poor self care and motivation, and also from a personality disorder, as well as the effects of substance abuse. He is a man of low average intelligence.

11. In the course of the report, the psychiatrist referred to difficulties of precise diagnosis of his condition. He certainly has a personality disorder, and the psychiatrist thought, on balance, that he was suffering from psychiatric illness.

12. There seems to be no doubt, from the psychiatric report, the history of institutionalisation and treatment, and the circumstances surrounding these offences, that the appellant is suffering from a serious mental condition, and that that is directly related to the offences which he committed, and connected in a way which must significantly reduce his moral responsibility for his actions.

13. I think that a perusal of the learned judge's remarks on sentencing, indicates that she underestimated the seriousness of the mental condition, and perhaps its relationship to these particular offences. She referred to it simply as a personality disorder. At one point she said, "According to the doctor, you fit into a behavioural disorder group. He appears to question that you have a psychiatric illness as such, although he does not definitely dismiss it."

14. I rather read the psychiatric report as indicating that, on balance, there is a psychiatric disorder, and that the difficulty really lies in diagnosing the precise condition.

15. A further important factor in this case, as emerges from the psychiatric report, is that the appellant's mental condition is such that he is likely to upset other prisoners, and perhaps those in authority, and that that will make his life in prison very difficult. I think that that is the sort of condition which is likely to result in imprisonment bearing more harshly upon the appellant than it would upon a person who does not suffer from that condition. That is an important consideration in assessing sentence.

16. The learned judge does not refer to it expressly and it is not, by any means, clear that she took that factor into account.

17. I think the matters that I have mentioned lead to the conclusion that the sentencing discretion miscarried and that this court ought to look at the sentence afresh.

18. A person suffering from the condition of the appellant presents a great problem to a sentencing court. His moral responsibility is diminished by his condition. On the other hand, he is living in the community and has to function in the community and the community has to be protected from crime; R v Evan Lloyd Mason-Stuart, (1993) A Crim R 163.

19. I do not think that consideration of proportionality and general deterrence should play a significant role in sentencing a person whose moral responsibility is substantially diminished by mental illness.

20. Nevertheless, protection of the community requires that some effort be made to deter the offender personally from continuing in criminal ways. How effective punishment is for that purpose, of course, depends upon the precise condition of the offender.

21. Many offenders with mental illnesses are far less capable than other people of learning from their mistakes and the consequences of them including the punishment that is imposed and the consequences of them. Nevertheless, that is the only method open to a court to endeavour to protect the community from actions by people with diminished responsibility.

22. All these matters have to be balanced in arriving at what is a sentence which is fair to the community, in providing such protection to it as the court can, and fair to the offender, whose moral responsibility is diminished by his mental condition.

23. In all the circumstances of this case I think that the appropriate course is to vary the total period of imprisonment by making the sentences for larceny from the person and larceny of the motor vehicle concurrent with one another. That would have the effect of reducing the total period of imprisonment to 13 months.

24. I have given careful consideration to the non-parole period but, even giving full weight to the mental condition, and giving full weight to the fact that prison will bear more harshly on this prisoner than on others I am unable to see that the duty to the community could be discharged by a non-parole period which is less than that which was fixed. I would not interfere with the non-parole period.

25. In my opinion the appeal should be allowed in the terms that I have mentioned. We recall the sentence previously imposed in the matter of Broad and order the following order: Appeal allowed. Sentences for larceny from the person and larceny affirmed, but order that the sentences be served concurrently with one another, order for the revocation of the suspension of the previously suspended sentence be affirmed and that it commence at the expiration of the concurrent sentences. The non-parole period is affirmed.

26. The concurrent sentences and the non-parole period are both to commence on 28 February 1994.

JUDGE2 PRIOR J I agree.

JUDGE3 PERRY J I agree.