Heatley v The Queen

[2008] NSWCCA 226

New South Wales
Court of Criminal Appeal

CITATION:	Heatley v R [2008] NSWCCA 226
HEARING DATE(S):	15 August 2008
JUDGMENT DATE:	2 October 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Barr J at 57; Price J at 58
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – Appeal against sentence – Manslaughter – Robbery armed with a dangerous weapon – Principle of totality – Guideline judgment R v Henry – Discount for voluntary disclosure of offence R v Ellis – Delay in sentencing process – Special circumstances by reason of mental illness – Principles relevant when sentencing offender who is suffering from mental illness – Prior ‘criminal history’ of accused – Whether sentencing judge erred in taking into account previous verdicts of not guilty by reason of mental illness – Whether previous verdicts of not guilty by reason of mental illness capable of disclosing continuing disobedience to the law – Utilitarian value of guilty plea – Characterisation of seriousness of robbery offence – Whether robbery could be characterised as a planned offence – Whether lesser sentence warranted in law
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing) Act Crimes (Sentencing Procedure) Act.
CATEGORY:	Principal judgment
CASES CITED:	R v Ellis (1986) 6 NSWLR 603 R v Engert (1996) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Pham [2005] NSWCCA 314 Pearce v R (1998) 194 CLR 160 R v Henry (1999) 46 NSWLR 346 Ryan v The Queen (2001) 206 CLR 287 R v Dodd (1991) 57 A Crim R 349 O’Keefe v R (1992) 60 A Crim R 201 Irwin v R [2008] NSWCCA R v Price [2005] NSWCCA 285 R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 R v Williams [2005] NSWCCA 99 R v Johnson [2005] NSWCCA 186 R v Ibrahimi [2005] NSWCCA 43 R v House [2005] NSWCCA 88 R v Elyard [2006] NSWCCA 43 R v Simpson (2001) 53 NSWLR 704 R v Carlson (unreported, NSWSC, 16 October 1995)
PARTIES:	Michael Allen Heatley (Applicant) The Crown
FILE NUMBER(S):	CCA 2005/2121
COUNSEL:	M C Ramage QC (Applicant) P G Ingram (Crown
SOLICITORS:	Peter Murphy Solicitor (Applicant) Director of Public Prosecutions
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2005/113
LOWER COURT JUDICIAL OFFICER:	Whealy J
LOWER COURT DATE OF DECISION:	21 November 2006
LOWER COURT MEDIUM NEUTRAL CITATION:	NSWSC 1199

2005/2121

McCLELLAN CJ at CL
BARR J
PRICE J

THURSDAY, 2 OCTOBER 2008

HEATLEY, Michael Allen v R

Judgment

1 McCLELLAN CJ at CL: The Crown presented an indictment against the applicant which pleaded two counts being:

Count 1: On 27 March 2004 at Malabar he murdered Craig Anthony Behr.

Count 2: On 15 March 2002 at Sydney being armed with a dangerous weapon robbed Concettino Auditore and James Rachelle of monies being the property of the Commonwealth Bank of Australia.

2 The applicant pleaded not guilty to murder but guilty to manslaughter. The Crown accepted the plea of guilty in full satisfaction of count 1 on the basis of “overwhelming medical evidence on both sides.”

3 Manslaughter is an offence contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for a term of 25 years: s 24 of the Crimes Act 1900 (NSW).

4 On 30 October 2006 the applicant pleaded guilty to count 2. That count is an offence contrary to s 97(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for a term of 25 years.

5 The applicant was sentenced on both counts in the Supreme Court as follows:

Count 1: A term of imprisonment comprising a non-parole period of 8 years commencing on 27 March 2008 and expiring on 26 March 2016 with a balance of term of 6 years commencing on 27 March 2016 and expiring on 26 March 2022.

Count 2: A fixed term of imprisonment for 4 years commencing 27 March 2004 and expiring on 26 March 2008.

6 The applicant seeks leave to raise five grounds of appeal as follows:

Ground 1: The learned sentencing judge erred in failing to give sufficient regard to the sentencing principle of totality and the Pearce principle.

Ground 2: The learned sentencing judge erred in failing to give sufficient regard to (a) R v Henry ; (b) the Ellis principle; and (c) delay in sentencing.

Ground 3: The learned sentencing judge erred in failing to give the same effect to his finding of special circumstances in relation to the accumulation of sentences and the manslaughter sentence.

Ground 4: The sentence was manifestly excessive.

Ground 5: The learned sentencing judge erred in respect to the armed robbery offence, in:

(a) taking into account prior “criminal history”;
(b) failing to make proper allowance for the plea;
(c) finding that it was a “bad robbery with criminality at a significant level” and “a serious robbery that involved a high degree of criminality”;
(d) taking into account, as a matter of aggravation [at paragraph 20] that “the offence involved the threatened use of violence and the actual use of a dangerous weapon, namely a shortened 22-calibre rifle”;
(e) finding it was a planned offence;
(f) failing to take into account, pursuant to s 21A(3)(j) Crimes (Sentencing Procedure) Act (sic) as a matter of mitigation that the offender was not fully aware of his actions because of the offender’s mental disability.

7 As will emerge the sentencing task facing his Honour was complex and difficult. The applicant had escaped from custody when he committed the offence constituting count 2 and was in custody when he committed the offence constituting count 1. The applicant’s incarceration followed a finding of not guilty in relation to two previous armed robbery charges by reason of mental illness. The sentencing judge’s remarks were detailed. Because of the issues which his Honour was required to consider the sentence hearing occupied a number of days. His Honour both carefully analysed the relevant evidence and considered the detailed submissions made on the applicant’s behalf.

The facts

8 The parties agreed the facts in relation to the armed robbery which his Honour summarised in the following terms:

“About 9.30am on Friday the 15th of March 2002 the Commonwealth Bank of Australia, located on the corner of Liverpool and Castlereagh Streets, Sydney, opened for trading. Approximately 8 people were standing outside the building waiting for the bank to open. In that group was the offender.

When the doors were unlocked and opened by a staff member of the bank, the offender pushed past another customer and walked towards the middle of the counter area of the bank. He approached a bank employee, Nina Vukasinovic, whilst holding a shortened firearm and said “I want all your money now ”. The offender turned and faced the waiting customers and said to get back. The offender shouted “ This is a fucking robbery ”. Vukasinovic ran from the teller area towards the back of the bank.

The offender said “ Hurry up ” a number of times. Another employee of the bank, Concettino Auditore, walked over to where the offender was standing in an attempt to see what the offender wanted. At this stage Auditore was unaware of the situation. A clear dividing screen separated the two. As Auditore got closer to the offender, Auditore entered the teller slot in front of the offender and picked up a plastic bag that the offender had placed on the counter area of the bank. Auditore saw the offender holding and pointing a shortened sawn off firearm at him. The offender told Auditore to take the bag and said “ Hurry up and get me some money ”.

Auditore started to take money from the tellers’ drawer and place it in the plastic bag that the offender had placed on the counter. While doing this Auditore heard the offender say “ Hurry up you have 30 seconds and don’t fuck me around ”. While Auditore filled the bag the offender instructed the other customers to get along a sidewall while pointing the firearm in their direction. He then stated that if anyone did anything stupid, he would fire the gun.

Once Auditore had finished removing the money from the drawer, the offender demanded more money from underneath the counter. This was money that was on hand and was contained in the ‘Under Counter Unit’ or UCU, a lockable cabinet that contains a substantial amount of currency. Auditore attempted to open the UCU belonging to the teller slot he was standing in, however it failed to open.

Auditore walked over to his allocated teller slot and attempted to open that UCU, at which point the offender said “ You’ve got 10 seconds ” while pointing the firearm at Auditore.

Auditore requested someone to help him load money into the plastic bag. Another Bank employee, James Rachelle, loaded money in the bag and during this process the accused said: “ Hurry up, you’ve got 20 seconds, if you don’t fucken move, I’ll jump the counter and turn this place into a hostage situation, I am not kidding ”. Rachelle and Auditore finished loading money into the plastic bag. The offender reached through the screen and took the plastic bag full on money and said “ Thank you ”.

The offender left the bank and walked west along Liverpool Street. Numerous Police attended the surrounding area, but failed to locate the accused.

During the robbery the Banks’ security alarm had been activated together with a number of security cameras. These photographs captured a number of images. These images clearly depict the offender in possession of a shortened firearm and holding a plastic bag during the robbery.

A detailed check of money stolen from the Commonwealth Bank totalled, as I have said, $18,705 in Australian currency.

On Wednesday 16 July 2003 Detective Inspector Jacob of the State Crime Command Homicide Squad met with the offender and during that conversation the offender disclosed to Detective Inspector Jacob that he was responsible for the robbery at the Commonwealth Bank on the 15 March 2002.

On Wednesday 21 January 2004 the offender was formally interviewed by Robbery and Serious Crime Squad Detectives. During that interview the offender made full admissions to the robbery at the Commonwealth Bank. The offender also adopted the conversation he had with Detective Inspector Jacob on the 16 July 2003. The offender stated that he used the money to live. He stated that he went on a trip to Victoria and Queensland and purchased clothing. He added that the money lasted about 9 days and he did not use it to purchase drugs or alcohol.

During the commission of the offence a number of bank employees and members of the public suffered from shock and consequently have been traumatised by that fact that a firearm was pointed at them.

9 The facts with respect to the death of Craig Behr were agreed in the following terms:

“About 10.30am on Saturday 27 March 2004 the deceased, was moved to cell 20 of Long Bay Prison Hospital to be in the company of another inmate. The deceased was placed in cell 20 with the offender.

The deceased and the offender had previously shared a cell together with no problems.

About 11.45am the lunchtime ‘lockdown’ occurred and all inmates were returned to their cells. The deceased was locked into cell 20 with the offender. There were no other inmates in the cell.

The adjoining cell, containing inmate Johannes Schmidt, was separated by an interconnecting door. There is a space under this door, which allowed Schmidt to see into cell 20 containing the offender and the deceased.

About 12.15pm a number of inmates heard screaming coming from cell 20. Schmidt heard what he believed sounded like a body hitting the floor of the cell and the sound of a bed banging. Schmidt attempted to raise the alarm on the Emergency Cell Call System at about 12.15pm. At about 12.21pm Schmidt attempted to raise the alarm for a second time. There was no response to either call.

At about 12.28pm Schmidt heard what he believed to be the sound of a body being moved.

At 12.35pm Corrective Services Officers Keith Smith and Brian Corlis received a call regarding an emergency in cell 20. Smith and Corlis immediately attended cell 20 and opened the door. The Officers observed the offender standing in front of the deceased.

The offender said “Get me out, get me out. I’ve got to get out of here.”

The offender attempted to push past the two officers. The officers saw the deceased lying on the floor of the cell with blood and vomit around his head.

The offender was removed from cell 20 and placed in an adjoining cell. The Officers attempted to revive the deceased but were unsuccessful.

Police were contacted and attended the Long Bay Prison Hospital a short time later.

The offender had blood on his hands, legs, clothing and shoes.

The offender was conveyed to Maroubra Police Station where he was interviewed but declined to say anything. After the interview the offender was returned to the dock where he said to Detective Sergeant Davies “ Sorry about the interview but I didn’t want to say anything in front of him .” When asked who he meant the offender said “ The guard .”

He then said: -

‘I didn’t want to kill him man, I didn’t even know him. I’m not schizo but I do have a mental problem. I’m homicidal, I’ve told them that for days. Then they tell me this morning that they’re putting this guy with me and I begged them not to but they said they were going to. I told them I’ll kill him but they just said ‘you’re full of shit’. So about 11.30 they put us together and by 12.30 he’s dead. I didn’t want to do it, I know he’s got a mum and dad and his mum is probably crying now. I know what it’s like to lose someone, I lost my dad.’


The offender was asked what the deceased had done to provoke him and he replied “ Nothing .” He was then asked how he had killed the deceased and the offender responded “ I kicked him to death .”

On Sunday 28 March 2004 Dr Paul Botterill performed a post mortem on the deceased. Dr Botterill found that the deceased could have died from a blow to the head or from asphyxiation caused by vomit in his airways.

On Thursday 1 April 2004 the offender was interviewed at Maroubra Police Station. He stated that after he and the deceased had lunch he punched and kicked the deceased and then stood at the back of the cell. The offender said that he saw the deceased lying on the floor with blood and vomit on his face. He said that he activated the emergency alarm so that he could get out of the cell.

During the interview the offender adopted the conversation with Detective Sergeant Davies in the dock at Maroubra Police Station on the 27 March 2004.”


Some remarks of the sentencing judge

10 His Honour described the robbery as a “bad robbery”. Because of the threatened use of violence and the actual use of a dangerous weapon his Honour concluded that the criminality was at a significant level. His Honour said that there were aggravating features: “the victims, as bank tellers going about their daily task, were in a vulnerable position. The offence involved more than one victim and was, to a degree, a planned offence. As the agreed facts indicate, a number of bank employees and members of the public suffered from shock as a consequence.”

11 With respect to the manslaughter offence his Honour identified that it was necessary to determine the offender’s mental state at the time of the death of Mr Behr. His Honour also believed it necessary to assess the current and future dangerousness of the applicant. There was a suggestion in the applicant’s evidence on sentence that he had been subjected to a sexual threat from Mr Behr. His Honour believed it necessary to make findings in relation to that matter.

12 The evidence in relation to the applicant’s mental state was complex. Although there was evidence which may have justified a diagnosis of schizophrenia, the psychiatrists, Dr Allnutt and Dr Westmore rejected this diagnosis and agreed that at the time of the killing the applicant was affected by a substantial impairment of his ability to control his urges and actions. His Honour found that both doctors accepted that the applicant had some ability to understand the nature and quality of his actions and, in particular, that they were wrong. His Honour concluded that the applicant is a very disturbed young man with complex medical problems and displays the characteristics of a “paranoid and persecuted man.”

13 Although the applicant asserted that Mr Behr had made a sexual advance to him and may have sexually assaulted him his Honour rejected that suggestion. His Honour’s careful analysis of the evidence clearly supports that finding.

14 His Honour recognised the difficulties involved in the sentencing task. In his remarks he firstly gave detailed consideration to the robbery offence. Although the applicant pleaded guilty this did not occur until 30 October 2006. Although the applicant had admitted his involvement in the offence at a much earlier time his Honour concluded that the delay in entering a plea was due to consideration by his advisers as to whether the robbery charge would be resisted having regard to a potential claim of mental illness. For these reasons his Honour concluded that although the applicant was entitled to a discount for his plea it should be at the low end of the available range.

15 The applicant voluntarily disclosed that he had committed the robbery. Accordingly he was entitled to a further discount for his voluntary disclosure (see R v Ellis (1986) 6 NSWLR 603). His Honour concluded that this discount should be reasonably generous. He ultimately determined to allow a discount of 25% in recognition of both the plea and the disclosure of the offence to the authorities.

16 His Honour considered the applicant’s criminal history. Of concern were the two previous charges of robbery with a dangerous weapon. His Honour said (at [21]-[22]):

“The offender has a reasonably extensive criminal history although the only matters that are particularly relevant for this offence relate to earlier charges he faced in January 2001 and November 2002. On 29 January 2001, the offender, facing a charge of robbery with a dangerous weapon, was found not guilty at trial by reason of mental illness by Shillington DCJ. The offender was referred to the Mental Health Review Tribunal. On 12 November 2002, the offender, again charged with robbery with a dangerous weapon, was, once again found not guilty at trial by reason of mental illness. The Judge in this trial was Tupman DCJ. It is the fact, of course, that these findings are not, strictly speaking, part of the offender’s criminal record. They do however, have a limited relevance.

I should, at the outset, make it clear that while I have regard to the offender’s criminal antecedents, I do not do so to impose punishment upon the offender in relation to any of those earlier matters. I take them into account, but only for the limited purpose of noting that the instant offence is not an uncharacteristic aberration. Rather it shows in this area, an attitude of continuing disobedience of the law. The mental illness findings, on the two occasions in the District Court, have some impact, however, on the present sentencing process. I shall of course, have more to say about the offender’s mental status when I come to consider the manslaughter charge. As will become apparent, the offender has suffered from an underlying chronic psychotic disorder for many years and, although this did not appear to impact on the commission of the Commonwealth Bank robbery on 15 March 2002, there is a possibility that the offender’s persistent mental condition was, in general terms, operative at the time.”

17 His Honour recognised that the applicant’s mental illness reduced the suitability of his sentence as a vehicle for general deterrence. However, he found that there was a need to impose a sentence which reflected an element of personal deterrence. His Honour found that the applicant had expressed remorse although he appears to have been sceptical about the extent to which there was a genuine recognition of his offending conduct.

18 His Honour concluded that because the applicant was to be sentenced for the armed robbery and for the more serious charge of manslaughter which raised questions of accumulation, it was appropriate to impose a fixed term of imprisonment for the robbery offence. His Honour determined that term as being the equivalent of the non-parole period that would have been appropriate if other than a fixed term had been imposed. The parties agreed that the sentence should be backdated to 27 March 2004, being the time at which, although a forensic patient, was the date he should be regarded as being held in custody in relation to the manslaughter charge. His Honour said:

“From a practical point of view, it is, in my opinion, a more satisfactory method of structuring the sentence by placing the fixed term sentence below or beneath the sentence for manslaughter and then later to consider questions of accumulation or concurrence. In addition, the manslaughter sentence is for a more serious crime and will involve the selection of a non-parole period and a balance of term. It is for those reasons that I will first impose the fixed term sentence and backdate it to the agreed date for commencement of the overall sentence, namely 27 March 2004.”

19 In relation to the offence of manslaughter his Honour recognised the wide variety of sentences which have been imposed for such an offence. His Honour was mindful of the remarks of Hunt CJ at CL in R v Carlson (unreported, NSWSC, 16 October 1995) where his Honour said that where a conviction for manslaughter is based upon the partial defence of substantial impairment a sentence at the higher end of the range will normally be appropriate. However, his Honour emphasised that the sentence for any particular manslaughter must depend upon the facts of the particular case.

20 With respect to the applicant’s medical condition the sentencing judge said:

107 Secondly, the Crown argued that the offender’s capacity to understand events, and his ability to judge whether his actions were right or wrong were not impaired by his mental illness. The Crown submitted that the impairment impinged upon his capacity to control his homicidal urges. For that reason, it was submitted that the impairment, although substantial, was not as serious, for the purposes of gauging the level of culpability, as other types of impairment.

108 In general terms, I accept this submission. It is necessary to add that the substantial impairment suffered by the offender has already been taken into account in relation to reducing the offence from murder to manslaughter. It is not inappropriate, however, to have regard to the nature of that impairment when assessing the criminality of the manslaughter offence itself. It is necessary to take special care not to “double count” the impact of the substantial impairment. But, as I have said, it is not inappropriate in a particular case, to examine the mental illness or disorder for the further purpose I have mentioned.

21 His Honour identified the principles relevant when an offender who is suffering from mental illness is sentenced (see R v Engert (1996) 84 A Crim R 67 at [68], R v Hemsley [2004] NSWCCA 228, R v Pham [2005] NSWCCA 314).

22 His Honour then said at ([112]):

“There are three ways in which mental illness may be relevant in sentencing so as to moderate the sentence otherwise to be imposed. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration which would otherwise be of significance. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person.”

23 His Honour also recognised that in cases involving mental illness there was a need to evaluate the danger which an offender presents to the community. His Honour said (at [113]-[114]):

“On the other hand, there is a countervailing consideration, namely the need in cases involving mental illness, to evaluate the danger which the offender presents to the community. This entails consideration of the need for special deterrence. As the majority said in Veen (No 2) at 476: -

“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.”

As Gleeson CJ said in R v Engert at 68: -

“In the case of a particular offender, an aspect of the case which might mean the deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. …In a particular case, a feature which lessens what might otherwise be the importance of general deterrence might, at the same time, increase the importance of deterrence of the offender.”

24 His Honour concluded that these principles had particular significance in the case of the applicant. His Honour recognised that it was because of his psychotic disorder and personality difficulties that the applicant found it difficult to control his “homicidal urges”. His Honour said (at [115]-[116]):

“The recognition of this aspect requires the moderation of the level of criminal culpability in the present case. That moderation is, however, offset to a degree by the fact that the offender recognised the wrongfulness of his actions and, indeed, recognised a dangerousness of the urge to kill.
At the same time, the very condition that diminished the offender’s capacity for self control plainly increases the need for protection of the public, including those persons with whom the offender is likely to come into contact during his time in custody or perhaps, on release.”

25 His Honour accepted that the applicant was entitled to a discount for the utilitarian value of his plea. That plea was only entered at the outset of the trial for murder. Accordingly, it could not justify a discount greater than 10%. His Honour detected very little remorse or contrition on the part of the applicant for his killing and concluded that the applicant had little insight into his actions.

Ground One:

26 The applicant submitted that his Honour had failed to have appropriate regard to principles of totality. Consideration of his Honour’s remarks confirm that this submission should be rejected. His Honour said (at [102]-[104]):

“I have decided that, because the offender comes for sentence in relation to the more serious charge of manslaughter as well, and because questions of accumulation will and do inevitably arise, a fixed term of imprisonment should be imposed for the present offence. I propose to impose, after discount, a sentence of four years fixed term of imprisonment for this offence and to backdate it to 27 March 2004. The term is intended to be the equivalent of the appropriate non-parole period that would have been applicable if other than a fixed term had been imposed.

Strictly speaking, this back dating process is brought about by the situation, as is agreed between the parties, that the offender, although remaining a forensic patient at the time, might notionally be regarded as having been held in custody in relation to the manslaughter charge from that day onwards. By contrast, although the offender was formally interviewed in relation to the robbery in January 2004, it does not appear that the offender was held in custody (or even in notional custody) as from that date in connection with the robbery offence.

From a practical point of view, it is, in my opinion, a more satisfactory method of structuring the sentence by placing the fixed term sentence below or beneath the sentence for manslaughter and then later to consider questions of accumulation or concurrence. In addition, the manslaughter sentence is for a more serious crime and will involve the selection of a non-parole period and a balance of term. It is for those reasons that I will first impose the fixed term sentence and backdate it to the agreed date for commencement of the overall sentence, namely 27 March 2004.”

27 It is apparent that his Honour was conscious of the fact that he was sentencing the applicant for two offences. His Honour expressly acknowledged the need to consider questions of accumulation or concurrence. By ultimately structuring the sentences as he did his Honour endeavoured to ensure that the overall sentence adequately reflected the total criminality involved.

28 The applicant further submitted that his Honour had not followed the sentencing process required by the High Court in Pearce v R (1998) 194 CLR 160 at [45]. I reject this submission. His Honour was clear in his discussion of the matters relevant to the sentence for each offence. Furthermore, he identified the sentence appropriate for each offence and then dealt with the issue of totality by structuring the sentences to be cumulative and providing a fixed term for the armed robbery offence.

29 To my mind his Honour appropriately addressed the principles in Pearce.

30 I reject this ground of appeal.

Ground Two

31 The applicant submitted that his Honour had failed to appropriately consider the guideline judgment in R v Henry (1999) 46 NSWLR 346 and the judgment in Ellis [17] and did not sufficiently recognise the delay in the sentencing of the applicant.

32 In my judgment the submissions must be rejected.

33 The guideline judgment in Henry was concerned with an offence of armed robbery contrary to s 97(1) of the Crimes Act which carries a maximum penalty of 20 years imprisonment. Count 2 was an offence of aggravated armed robbery in contravention of s 97(2) which carries a maximum penalty of 25 years. The present robbery offence was more serious than the offence contemplated in Henry. The applicant threatened a high level of violence brandishing a weapon and threatening to shoot persons in the bank and to turn “this place into a hostage situation.” There were multiple victims and the amount of money taken was not small.

34 His Honour concluded that the plea entered in relation to the armed robbery count was entered at a relatively late stage. He concluded that a discount toward the bottom of the range was appropriate. With respect to the Ellis discount his Honour was satisfied that a reasonably significant discount was appropriate. For both the plea and Ellis considerations his Honour provided a total discount of 25%. Although a greater discount could have been provided I am not persuaded that the discount his Honour determined was erroneous. If, as would seem appropriate his Honour allowed only 10% for the utilitarian value of the plea a discount of 15% for brining the robbery to the attention of the authorities was not beyond the available range: (Ryan v The Queen (2001) 206 CLR 287; R v Dodd (1991) 57 A Crim R 349; O’Keefe v R (1992) 60 A Crim R 201; Irwin v R [2008] NSWCCA 7).

35 The Crown does not dispute that there was a significant delay between the time of the commission of the robbery offence and when the applicant was sentenced. The applicant committed the offence on 15 March 2002 but did not disclose the matter until 16 July 2003. It was not until 21 January 2004 that the applicant was interviewed and charged. He did not immediately plead guilty and was committed to the District Court for trial. It was not until shortly before 30 October 2006 that the applicant communicated an intention to plead guilty to this count. Accordingly there was a period between July 2003 and January 2004 where there was a delay which was not attributable to the applicant. During that period the applicant was being held in custody. In these circumstances the Crown submitted that considerations of delay were not material to the appropriate sentence. Most of the delay was occasioned by the fact that the applicant did not acknowledge his guilt. There was a period of six months when no action was taken although he had acknowledged his guilt. However, during this time he was being held in custody for other offences and I am not persuaded that a lesser sentence was required by reason of this delay.

Ground three

36 When considering the appropriate sentence for the manslaughter offence the sentencing judge found that there were special circumstances. Having determined that a fixed term was the appropriate sentence for the armed robbery offence no question of special circumstances could arise for that matter. His Honour said:

129 The offender, however, is entitled to the recognition of special circumstances. There are two reasons for this. The first is the cumulative structure of the two sentences. The second relates to his mental illness. In my opinion, the offender should be encouraged to co-operate with his clinicians and medical specialists. He should be encouraged to be frank and truthful in his dealings with them, and to take medication and other treatment, if prescribed. A principal reason for the finding of special circumstances is the need for the offender to be encouraged to realise that his co-operation, in the process of medical rehabilitation, may yield him the prospect of earlier conditional release than would otherwise have been the case.

37 The portion of the non-parole period of the total term for the manslaughter offence was 57%, clearly a recognition of the finding of special circumstances. However, the applicant complains that when considered as a proportion of the total effective non-parole period the proportion is 66%.

38 It is apparent from his Honour’s careful consideration of the length of the individual sentences and the overall term that he intended by his finding of special circumstances to adjust the ratio between the parole and non-parole periods in relation to the sentence for the manslaughter offence. His Honour was concerned to ensure that, if released, the applicant would serve an appropriate period under supervision. However, to achieve this result a finding of special circumstances for the manslaughter offence was necessary. But this does not mean that the ratio between the periods of non-parole and parole required further adjustment. His Honour’s concern was to impose an appropriate period of supervised release which the total sentence provided.

Ground four

39 I will consider this ground after considering ground five.

Ground five

40 Under this ground the applicant raises a number of discrete issues.

41 The sentencing judge described the applicant as having a reasonably extensive criminal history. Amongst other matters his Honour was referring to two previous offences of armed robbery in respect of which there had been special verdicts of not guilty by reason of mental illness. Although a conviction is not recorded a special verdict involves a finding that the offender has carried out the actus reus of the relevant offence. The sentencing judge recognised that the findings were not strictly part of the applicant’s criminal record. However, he indicated that he would have regard to them although he said they “had limited relevance” (see [16] above).

42 The error of which the applicant complains is the finding by his Honour that the armed robbery offence was not an uncharacteristic aberration and showed an attitude of disobedience to the law. It was submitted that because the finding assumed that not only did the applicant commit the actus reus of a particular offence but the necessary mens rea was present. Because a special verdict involves a finding of mental illness it was submitted that his Honour’s conclusion was not open.

43 In my judgment this submission should be accepted. As would be the case in respect of a child lacking legal capacity to commit a crime an act committed by a person whilst lacking the mental capacity to commit a crime should not be considered part of his criminal history or reflective of his or her attitude toward obedience to the law. Only offences of which a person has been convicted are relevant to a later sentencing task. The decision in R v Price [2005] NSWCCA 285 is instructive. In that case although the offender was found guilty a conviction was not entered the offender being given the benefit of s 10 of the Crimes (Sentencing Procedure) Act. This Court held that prior offending was not relevant to a later sentencing process. The present case is analogous.

44 The applicant submitted that the sentencing judge had not made proper allowance for the plea of guilty. It was submitted that the applicant’s mental problems which were responsible for the delay in the plea should have been taken into account. A discount for a plea is provided in recognition of its utilitarian value: R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510. Attention should be focused on the real utilitarian value of the plea. If, as happened in the present case, that value is lessened because of the actions of an offender and/or his advisors the discount will usually be reduced. There will be many reasons why a plea is delayed. There may be a legitimate need to consider the offender’s position and give him or her appropriate advice before the plea is entered. This was one such circumstance. However, that circumstance does not justify a greater discount. The applicant’s mental condition was of course relevant to the need for the sentence to provide for general deterrence (see [54] below).

45 The applicant submitted that his Honour erred in finding that it was “a bad robbery” and a robbery with “criminality at a significant level” or one that “involved a high degree of criminality.” It was submitted that the appropriate finding was that this was “almost a standard type” of robbery.

46 I reject this submission. The words chosen to describe the criminality of a particular offence may vary. Consistency of language may not always be possible. However, in this case the applicant carried a gun, repeatedly threatened to use it, put a number of persons in fear and stole a significant amount of money. His Honour’s description that the robbery involved a high degree of criminality was not inappropriate. Having regard to the maximum penalty for the offence (25 years imprisonment) the sentence which his Honour imposed could not be criticised as being beyond the available range.

47 A further criticism of the sentencing judge was that he had regard to the threatened use of violence and the actual use of a dangerous weapon as matters of aggravation. It was submitted these are common incidents of an armed robbery and could not be further taken into account under s 21 of the Crimes (Sentencing) Act (see s 21A(2); R v Williams [2005] NSWCCA 99; R v Johnson [2005] NSWCCA 186; R v Ibrahimi [2005] NSWCCA 43; R v House [2005] NSWCCA 88; R v Elyard [2006] NSWCCA 43.

48 There is no substance in this submission. His Honour found that the offence itself involved the threatened use of violence and the actual use of a dangerous weapon. He then proceeded to separately determine the aggravating features. He did not repeat a reference to violence or the use of a dangerous weapon.

49 It was submitted that his Honour erred in finding that the armed robbery was a planned offence. This submission must also be rejected. There was evidence before the sentencing judge from the applicant’s ERISP. When interviewed he admitted that he had gone to the bank on the preceding Wednesday to examine it and had determined upon the robbery after establishing that there were no significant security screens. He received the firearm from a relative at whose behest he committed the robbery. He carried the firearm in a backpack and drove his own motorbike to the scene. He parked the bike some distance away to enable his escape to go unchecked. These circumstances justified a finding that the offence was “to a degree a planned offence”. It was certainly not spontaneous.

50 The applicant complained that this Honour failed to take into account as a matter of mitigation that the applicant was not fully aware of his actions because of mental instability (s 21A(3)(j) Crimes (Sentencing Procedure) Act).

51 It is apparent both from the planning of the robbery and his actions during it that the applicant was well aware of his actions. No doubt his mental instability is related to his preparedness to break the law and at the same time threaten violence to others. However, there was no question that he appreciated that what he was doing was wrong and a breach of the law.

52 In his remarks on sentence his Honour commented upon the applicant’s underlying chronic psychotic disorder and said that although this did not appear to impact on the commission of the Commonwealth Bank robbery on 15 March 2002 there is a possibility that the offender’s persistent mental condition was, in general terms, operative at the time.

53 Later, in his remarks his Honour said:

“On the other hand, it is impossible to put to one side altogether the history of the offender’s mental illness. This matter must diminish or at least reduce, the suitability of the offender as a vehicle for general deterrence. There is a need, however, to insist upon a sentence which reflects an element of personal deterrence in the area of armed robbery.”

54 The applicant pleaded guilty to the robbery offence and thereby acknowledged that he had the requisite mens rea. His Honour’s identification of the applicant’s mental illness and its impact upon the sentencing process was entirely appropriate. The applicant emphasised that the robbery was committed when the offender had escaped from Kenmore Hospital where he had been an inmate pending a determination of the Mental Health Tribunal. When captured he was initially diagnosed as suffering from schizophrenia. Accepting that this diagnosis was at that time appropriate his Honour nevertheless had regard to the evidence before him as to the applicant’s mental condition at the time of the offence and had appropriate regard to its significance when determining the ultimate sentence.

Ground 4

55 The applicant has identified only one problem in an otherwise complex sentencing task carried out by his Honour with great care. That issue, the matter of prior offending was, to his Honour, of only “limited relevance”. Having regard to the objective seriousness of both offences and the various aggravating and mitigating matters to which his Honour had regard and, in particular, allowing appropriate weight for the applicant’s mental health problems, I am not persuaded that the sentences imposed were inappropriate. I am not satisfied that some other less severe sentence (whether as to the full term or the non-parole period) was warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912; R v Simpson (2001) 53 NSWLR 704.

56 Although I would grant leave to appeal the appeal should be dismissed.

57 BARR J: I agree with McClellan CJ at CL.

58 PRICE J: I agree with McClellan CJ at CL.

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