Furley v Tasmania
[2007] TASSC 35
•8 June 2007
[2007] TASSC 35
CITATION: Furley v Tasmania [2007] TASSC 35
PARTIES: FURLEY, Troy Matthew
v
STATE OF TASMANIA (THE)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 12/2007
DELIVERED ON: 8 June 2007
DELIVERED AT: Hobart
HEARING DATE: 17 May 2007
JUDGMENT OF: Underwood CJ, Slicer and Blow JJ
CATCHWORDS:
Criminal Law – Jurisdiction practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Abnormal mental condition – Schizophrenia – Competing considerations of reduced moral culpability and the need to protect the public.
Sentencing Act1997 (Tas), s75.
Criminal Justice (Mental Impairment) Act 1999 (Tas), s26(1)(a).
Veen v R [No 2] (1988) 164 CLR 465; Channon v R (1978) 20 ALR 1, applied.
R v Engert (1995) 84 A Crim R 67, followed.
Aust Dig Criminal Law [841]
REPRESENTATION:
Counsel:
Appellant: T Jago
Respondent: J Ransom
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 35
Number of paragraphs: 30
Serial No 35/2007
File No CCA 12/2007
TROY MATTHEW FURLEY v THE STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
SLICER J
BLOW J
8 June 2007
Orders of the Court
Appeal dismissed.
Serial No 35/2007
File No CCA 12/2007
TROY MATTHEW FURLEY v THE STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
8 June 2007
Although there are two grounds of appeal, the substance of the appellant's case is that his sentence is manifestly excessive. The learned sentencing judge ordered imprisonment for five years, backdated to 17 January 2006, and fixed a three year non-parole period. A supervision order was made, effective upon release from prison, placing the appellant under the supervision of the Chief Forensic Psychiatrist.
The orders were made upon the appellant's pleas of guilty to robbery (2), attempted robbery (2), and assault (1). All the crimes were committed within a period just short of five weeks between 14 December 2005 and 17 January 2006. The robberies occurred when the appellant twice visited a supermarket. On each occasion he pretended to have a gun or other weapon and forced the female shop assistant to hand over several hundred dollars. Next, the appellant approached a woman who was putting her 15-month old child into her car that was parked in a public car park. He demanded cash. He threatened to kill the child. The victim gave the appellant her handbag but, without looking in it, the appellant gave it back, saying that it had no money in it. Next, the appellant assaulted a woman on her early morning walk by threatening her with a knife and, lastly, he assaulted another early morning female walker by again threatening her with a knife. This time the appellant demanded money, but desisted when his victim told him to go away.
Although only 22 years old at the times the crimes were committed, but for one matter, it could not be said that the sentence is manifestly excessive. The crimes are serious, numerous, committed within a short space of time, and involved violence or threatened violence to females. The victims suffered adverse psychological consequences. The appellant has an extensive criminal record that includes convictions for similar crimes. In 2000 and 2001, when aged less than 18 years, the appellant committed 41 offences of dishonesty. After he was released from detention, he moved to Queensland where, in 2003, he committed two robberies in circumstances similar to the supermarket hold-ups that are the subject matter of this appeal. He was also convicted of assaults on, and obstruction of, a police officer. He was sentenced to imprisonment. Whilst in Queensland he was involved in a 12 hour siege, during which he threatened to take his own life. He has twice been involved in a similar siege and has been admitted to Queensland hospitals. The appellant was placed on the equivalent of a supervision order when released from prison in Queensland, but promptly absconded and returned to Tasmania.
The one matter to which I refer concerns the appellant's mental state. Psychiatric opinion was that the appellant's IQ was only 77 and that since his teenage years he has suffered from schizophrenia. The learned sentencing judge found that "the substantial cause of his crimes is a psychotic disorder, schizophrenia from which he has suffered badly since adolescence". The learned sentencing judge also found that although the appellant was legally sane at the time he committed the crimes, his illness had caused him to suffer from "severe disorganisation of his thinking processes and hallucinations and delusions".
The learned sentencing judge went on to say:
"Control of his disorder by drugs is difficult unless they are administered in a structured environment such as the Wilfred Lopes Centre, where he has been since 17 January last year. As a result of his extended stay there his disorder is somewhat controlled now and he is more settled, but if he is released there is a substantial risk of him re-offending."
The psychiatric opinion of the Chief Forensic Psychiatrist referred to the appellant absconding in Queensland and said that he had "serious concerns about his willingness and ability to comply with any community treatment options". The Chief Forensic Psychiatrist went on to note that the Queensland court supervision orders were similar to supervision orders available in Tasmania, but the appellant "became non-compliant with these".
In his comments on passing sentence, the learned sentencing judge referred to this passage in the Chief Forensic Psychiatrist's report:
"In my opinion, Mr Furley, be he in hospital, in prison, or in the community, must continue to take his anti-psychotic medication and must be abstinent from substances of abuse or psychoactive substances. It is critical that he be in a monitored situation so that the risks that he poses to others can be monitored and attempts to manage him put in place. Furthermore mechanisms need to be in place to ensure any absconding can be responded to quickly."
Quite rightly, no complaint was made about the learned sentencing judge's expressed view that "the only appropriate sentencing orders are imprisonment and either a restriction order or a supervision order". The issue on this appeal is whether the whole of the sentence was manifestly excessive, having regard to the appellant's reduced moral culpability arising from his mental illness.
Sentencing principles owe their origin to the purposes of criminal sanction which were expressed by the High Court in Veen v R [No 2] (1988) 164 CLR 465 at 476 to be the "protection of society, deterrence of the offender, and of others who might be tempted to offend, retribution and reform". These principles find statutory expression in this State in the Sentencing Act 1997 ("the Act"), s3.
Gleeson CJ, presiding in the New South Wales Court of Appeal in R v Engert (1995) 84 A Crim R 67, observed at 68, that the interplay of relevant sentencing considerations might point in opposing directions and said, in effect, that reduced moral culpability does not necessarily lead to a lesser sentence. His Honour referred to Veen [No 2], in which case the High Court said with respect to the above cited purposes of sentence at 476 – 477:
"They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."
Dealing specifically with the issue of mental illness, Brennan J (as he then was) said in Channon v R (1978) 20 ALR 1 at 4 - 5:
"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpabilty of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe. That is not an unusual phenomenon in sentencing, where the court must fashion a sentence which either reconciles or balances the various objectives of sentencing, sometimes giving emphasis to one of the objectives of sentencing, sometimes giving emphasis to another. Although the court necessarily adopts a pragmatic approach, the judicial discretion is not at large, without guidance from principle. That guidance is found in the basic purpose which is to be served by the exercise of the sentencing power."
Of particular reference to this case, his Honour said at 7:
"Mental illness may require treatment, but it does not merit punishment. Where the abnormality has caused or contributed to crime, however, the protection of society may require the imposition of punishment according to the gravity of the threat which the abnormality poses, and the seriousness of the conduct to which it has contributed."
In this case, the learned sentencing judge faced a difficult problem. If the appellant is not under close supervision, the likelihood is that he will cease taking his medication and re-offend. At the time the impugned orders were made, the appellant had been in custody for 12 months. During this time he had been under close supervision and taken the appropriate medication with beneficial effects. The Act, s75(1)(e), empowered the judge to make a restriction order. However, by virtue of the Act, s75(1)(b) and (c), such an order could only be made if the learned sentencing judge was satisfied that:
(i)the appellant appeared to be suffering from a mental illness that required treatment; and
(ii)the treatment could be obtained by admission to, and detention in, an approved hospital or secure mental health unit; and
(iii)the person should be admitted as a patient for the person's own health or safety, or for the protection of members of the public; and
(iv)(relevant to this case) the Chief Forensic Psychiatrist recommended the proposed admission of the appellant to a secure mental health unit.
Clearly this was an appropriate case for the making of a restriction order. Counsel for the appellant on the appeal so submitted. By virtue of the Act, s77 and the Criminal Justice (Mental Impairment) Act 1999, s26(1)(a), had a restriction order been made, it would have operated to detain the appellant in a secure mental health unit for a minimum period of two years before an application could be made to the Supreme Court to discharge it. However, the learned sentencing judge did not have the power to make a restriction order. Although he was satisfied about the existence of the first three matters prescribed by the Act, s75(1)(b) and (c), he was not so satisfied with respect to the fourth. The Chief Forensic Psychiatrist did not make the required recommendation. In his report he only stated that whether or not a restriction order was made was a matter for the Court to determine. That, of course, is correct, but the Court is not empowered to make a restriction order unless there is an express written recommendation by the Chief Forensic Psychiatrist that one be made. Thus, having regard to the time spent in custody prior to the imposition of sentence, a non-parole period of three years had the effect of making a mandatory period in prison where, no doubt, the appellant would receive appropriate treatment, equivalent to the mandatory period that the appellant would have to spend in a secure mental health unit had a restriction order been made.
Although the appellant's moral culpability was diminished by reason of mental illness, and although for the same reason general deterrence was not a significant factor in the exercise of the sentencing discretion, the learned sentencing judge had an obligation to impose a sentence which would protect the public from further repetition of the appellant's criminal conduct but which, at the same time, did not in part, constitute preventative detention. He was not able to do that by way of a restriction order. Having regard in particular to the appellant's history of violence, his previous circumvention of a mental health control order which did not call for mandatory detention, and the need to protect the public, it cannot be said that the orders that were made reflected some general error in the exercise of the sentencing discretion. Although the moral culpability of the appellant was reduced by reason of his mental illness, there was the countervailing consideration of the protection of the public.
File No CCA 12/2007
TROY MATTHEW FURLEY v THE STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
8 June 2007
The appellant was sentenced to a term of imprisonment for a period of five years with a non-parole period fixed at three years. The record of the offender and the circumstances of the crimes of robbery, attempted robbery and assault committed over a five week period would, absent the offender's mental condition, warrant the term of imprisonment imposed by the learned sentencing judge.
The appellant has suffered from schizophrenia for many years, a diagnosis first made during his adolescence. The manner and circumstances in which the crimes were committed and psychiatric assessments made following arrest clearly showed the existence of an altered mental state at the time of the commission of the crimes. The mental condition of the offender, although not coming within the provisions of the Criminal Code, s16, was nevertheless "the substantial cause of his crimes … a psychotic disorder, schizophrenia …" which had caused "severe disorganisation of his thinking processes, and hallucinations and delusions".
In the case of an offender suffering a mental disorder or abnormality which is linked to the commission of a crime, or where the commission itself is a product or consequence of that disorder, the factor of general deterrence ought be given little weight (R v Anderson [1981] VR 155; Gilchrist v R 82/1982) and can be recognised as a form of diminished responsibility (Gilchrist (supra)). In Veen v R (1979) 143 CLR 458, Murphy J stated at 495:
"It is a distortion of the criminal law to sentence people to longer terms because they are sick or have diminished responsibility. It is inconsistent with the aims of the criminal law. Also, the techniques, methods, and the information usually available to the courts do not lend themselves to a satisfactory handling of such cases. A sentence is a once-and-for-all decision, not the progressive examination, assessment and, if possible, treatment which are appropriate to preventive detention."
Nevertheless all members of the High Court in Veen and the further appeal in Veen v R (No 2) (1987) 164 CLR 465, recognised the future protection of society as a permitted factor in the assessment of the period of detention, provided that any sentence was not increased beyond what was proportionate to the crime. The balance between moral culpability and liability for criminal responsibility and protection of the community is aptly stated by Brennan J in Channon v R (1978) 33 FLR 433 (subsequently cited with approval in Attorney-General v McDonald (2002) 137 A Crim R 401 at 407; R v Liddy (No 2) (2002) 135 A Crim R 468 at 517; and R v Crabbe (2004) 150 A Crim R 523 at 540).
Here the learned sentencing judge was well aware of those varying considerations and gave them, as far as he was able, full effect. The appellant had pleaded guilty to the crimes on 22 November 2006 and the facts stated on that day. The learned sentencing judge was provided with psychiatric reports and assessments provided by Dr Ian Sale dated 26 July and 10 August 2005, 1 and 14 March, 13 October and 20 November 2006, and Dr Schneider and Dr Crawshaw, both psychiatrists appointed by the Department of Health and Human Services and treating psychiatrists at the Wilfred Lopes Centre, dated 8 May and 31 August 2006, respectively. Those reports were consistent, apart from a modification by Dr Sale of his opinion as to the applicability or otherwise of the Code, s16. There were no differences in the diagnosis of schizophrenia and its relationship with the course of criminal conduct. Dr Schneider, in her report of 8 May 2006, stated her belief that:
"… he needs a further period of acute in-patient treatment which is likely to be at least several of [sic] months and possibly longer. It is likely he would benefit from further non-acute rehabilitation after that."
Dr Crawshaw concluded his comprehensive report of 31 August addressed to Crown counsel and the Legal Aid Commission with a suggested course that:
"While the Court processes need to precede before any thought about his disposition needs to be entertained I could indicate that I do have some views with respect to this man's long term management and risk, I would therefore request that should the Court find him guilty or be looking to make orders under Criminal Justice (Mental Impairment Act 1999) [sic] that a further updated report be requested from me."
At the conclusion of the plea in mitigation made on 20 November 2006, the learned sentencing judge adjourned the hearing until 14 December to enable Dr Crawshaw to provide that update, stating:
"Doctor Crawshaw recommended in his – at the conclusion of his report that the Court should seek a further updated report from him, and he seems to be saying with respect to Mr Furley's long-term management and risk, and I suppose disposition, of this matter, and I will accept that and seek a report from him. A report that particularly deals with the disposition of the proceedings, following Mr Furley's pleas of guilty, and recommendations for his long-term management, and his views as to whether there is a long-term risk of reoffending. Now that's simply reflecting what Doctor Crawshaw says. It's not from my mind, it's from his. I don't know how long he'll take with that, but hopefully it won't be too long.
I suggest I remand Mr Furley effectively to the end of the sittings, and hope we'll have all that by then. That's about three weeks' time. So that's what I'll do, Mr Furley. I'm going to remand you effectively for about three weeks, and ask Doctor Crawshaw to give me any recommendations he has as to the future for you, as to the need for treatment or – any other views he might have concerning what orders I might appropriately make in your case, to finally dispose of these Court proceedings."
On 12 December, Dr Crawshaw provided a further report which concluded:
"In my opinion Mr Furley be he in hospital in prison or in the community must continue to take his anti-psychotic medication and must be abstinent from substances of abuse or psychoactive substances. It is critical that he be in a monitored situation so that the risks that he poses to others can be monitored and attempts to manage him put in place. Furthermore mechanisms need to be in place to ensure any absconding can be responded to quickly.
The court has a number of options at its disposal and is in possession of more information than just my report. It is therefore a matter for the Court to decide between the various sentencing options. Similarly it is a matter for the Court to determine whether the seriousness of the charges would warrant a custodial sentence as distinct from a community based sentence.
Should the Court be of a mind to explore the options under Section 75 of the Sentencing Act with respect to a Supervision Order or a Restriction Order I can indicate that in my opinion Mr Furley does suffer from a mental illness that requires treatment and that the treatment could be obtained within the Secure Mental Health Unit. As I have indicated above I have concerns about the effectiveness of a Supervision Order in that he was in effect placed on such an order in Queensland and promptly absconded. I have concerns that his current lack of insight and willingness to look at any effective rehabilitation and discharge planning would indicate that compliance with a community based order such as a Supervision Order would be likely to fail. Thus I could state to the Court, in terms of Section 70 (2A)(b)(ii), treatment could be obtained by releasing him under my supervision. However, the concerns I expressed above indicates [sic] that I have concerns that this would be effective.
It would therefore be a matter for the Court to determine having weighed up all the factors to do with his offending and his mental illness as to whether the criteria in that part of the Sentencing Act are satisfied as to where [sic] or not a Restriction Order would be justified bearing in mind the Court is required to make an Order which is in the least restrictive manner.
Whatever sentence the Court should determine I can assure the Court that the Forensic Mental Health Services will endeavour to provide adequate ongoing mental health care for Mr Furley within the limitations of the Courts [sic] Order.
I trust this report is of assistance to the Court in its deliberations."
The advice was less helpful than it otherwise could have been. The Sentencing Act 1997, Pt10, provides for "Assessment, Continuing Care, Supervision and Mental Health Orders". Relevant to this appeal is s75(1), which provides:
"(1) If, on the trial of a person for an offence ¾
(a)the person is found guilty; and
(b)the court is satisfied, by the production of the report of the Chief Forensic Psychiatrist or another psychiatrist and any other evidence that it may require, that –
(i)the person appears to be suffering from a mental illness that requires treatment; and
(ii)the treatment can be obtained by admission to and detention in an approved hospital or secure mental health unit; and
(iii)the person should be admitted as a patient for the person's own health or safety or for the protection of members of the public; and
(c)the court has received a report in writing from an approved medical practitioner at the approved hospital to which it is proposed to admit the person, or from the Chief Forensic Psychiatrist if it is proposed to admit the person to a secure mental health unit, recommending the proposed admission –
the court may ¾
(d)instead of, or in addition to, any sentence it may impose, make a continuing care order in respect of the person; and
(e)if the court is the Supreme Court, make a restriction order in respect of the offender."
Dr Crawshaw did not recommend the admission of the appellant. No reason was provided as to why that recommendation was not made. The learned sentencing judge was left with but limited options. In his comments on passing sentence he stated:
"The protection of the public suggests to me that a restriction order should be made. However, under the Sentencing Act, Section 75(1)(C), a restriction order may not be made unless it is recommended by the Chief Forensic Psychiatrist, or by an approved medical practitioner. No such recommendation has in fact been made, so that a restriction order cannot be made. I interpolate this (a), that the Chief Forensic Psychiatrist merely said he left it to the Court to decide which order should be made, and made no recommendation. However, I take the report of the Chief Forensic Psychiatrist to recommend, at the very least, eventual release under his supervision, and for that reason a supervision order will be made for the period after his release from prison.
Now the orders are as follows. He is convicted. He is sentenced to imprisonment for five years from the 17th of January 2006. It is ordered that he not be eligible for parole until he has served three years of that sentence.
In addition it is ordered that upon his release from prison, he be released under the supervision of the Chief Forensic Psychiatrist, subject to conditions that he take such medication, and submit to the administration of such medical treatment, as is determined by the Chief Forensic Psychiatrist, and that he comply with any directions as to supervision given by the Chief Forensic Psychiatrist, including directions as to his place of residence, and directions requiring that he not leave or stay outside Tasmania without the permission of the Chief Forensic Psychiatrist."
The order which he made was necessary and appropriate, given the failure of the Chief Forensic Psychiatrist to recommend admission. Whilst it is appropriate that the provision of a responsible medical report should be sought and obtained before a restriction order is made and it is not in every case that the preconditions stated in the Sentencing Act, s75(1)(b)(i) and (ii), have been satisfied that admission is appropriate, the option should be seriously considered and some reason provided by the relevant medical authorities for rejection. The request by the learned sentencing judge made in November clearly stated the purpose for the obtaining of a further report. The fact that the Wilfred Lopes Centre is within the confines of the prison complex and that the appellant can be transferred to and from the prison does not fully maintain the necessary distinction between punishment for moral culpability and treatment allied with future protection of the community. The distinction is real and important. The statement of Everett J in Gilchrist (supra) and his annexure of a journal extract to his published reasons are apposite to this case. In his reasons at 10, his Honour stated:
"But I wish to sound a warning that administrative viewpoints should not be allowed to interfere with the attempt to effect some improvement in the mental condition of the applicant. It is notorious that at bureaucratic level there is conflict in relation to the accommodation and treatment of mentally disturbed prisoners. I am unable to describe the conflict as clearly as it was discussed in an article in the issue dated the 7th April 1981 of the New Zealand Law Journal, portion of which is reproduced as an appendix to these reasons for judgment in the hope that the problem, relevant to this case and known to exist in Tasmania, will not be allowed to impede the attempt to effect some amelioration in the mental condition of the applicant, for which he is not responsible."
The extract referred to by Everett J states:
"Two sets of institutions have been set up by society to deal with criminal offenders and with the psychiatrically disturbed - prison for one, psychiatric hospitals for the other. When a criminal offender is also psychiatrically disturbed, then each institution feels uncomfortable and inadequate in dealing with the double problem. Thus the Minister of Justice, the Hon J K McLay, in a nutshell, identifies a very real problem in our criminal justice system.
The Minister's primary concern is not with those who, in the jargon of the Mental Health Act 1969, are 'Mentally disordered' (and so may be committed to a psychiatric hospital) but with those who suffer a lesser degree of mental disturbance. He makes the pragmatic point that if an offence was committed largely because of a person's mental condition, and if the offender continues to suffer from that condition, the most appropriate course is to treat that condition. Indeed he sees a particular obligation to provide treatment where the underlying cause is contributed to by 'the competitive, harsh conditions of life that the majority of us impose and in which the majority generally prospers'.
Even for those who enter prison as, at least superficially, well-balanced people the 'unnatural and stressful physical conditions' are likely to take their toll and lead to a degree of psychological disturbance. 'Consequently', as the Minister says, 'it is not hard to see why prison populations have a high proportion of psychiatrically disturbed people, and also why efforts at psychiatric treatment in prisons have failed. It is very difficult, if not impossible, to treat a person in the very environment that may be the principal cause of the problem."
We have then a prison system that contains psychiatrically disturbed persons, that creates psychiatrically disturbed persons, and that cannot treat them effectively while they remain in that prison environment. These people may, with their consent, be transferred to a psychiatric hospital and treated there. However, as the Minister points out, most psychiatric hospitals are 'unwilling to accept offenders from the Courts or from prisons, and when they do accept them they make their reluctance plain.'
This attitude is not hard to understand when it is considered that the psychiatrically disturbed offender is likely to be a major source of nuisance that cannot readily be accommodated within the open door policy that is today seen to be of therapeutic value.
So the mentally disturbed offender yo-yos back and forth between two institutions neither of which is really suited to deal with him and each of which would prefer the other to have him."
Here the learned sentencing judge made his orders in terms which were an appropriate reflection of those principles. It would have been preferable that he could have couched them in different terms but absent a recommendation provided for by statute, could not do so.
There was no error in the learned sentencing judge's approach and no basis for determining the sentence was manifestly excessive. I would dismiss the appeal.
File No CCA 12/2007
TROY MATTHEW FURLEY v THE STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
8 June 2007
I also would dismiss the appeal. I agree in substance with the reasons of the other members of the Court.
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