Ionatana v The Queen
[2008] NSWCCA 95
•1 May 2008
New South Wales
Court of Criminal Appeal
CITATION: IONATANA v R [2008] NSWCCA 95 HEARING DATE(S): 1 April 2008
JUDGMENT DATE:
1 May 2008JUDGMENT OF: McClellan CJ at CL at 1; James J at 25; Hoeben J at 26 DECISION: 1. Grant leave to appeal
2. Dismiss the appeal.CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - robbery while armed with an offensive weapon - finding of special circumstances - diminished prospects of rehabilitation - whether trial judge gave adequate consideration to mental health of applicant - whether sentence and non-parole period manifestly excessive LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999CATEGORY: Principal judgment CASES CITED: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 PARTIES: Ben (Peniamina) Ionatana (Appellant)
The CrownFILE NUMBER(S): CCA 2007/2830 COUNSEL: T S Corish (Appellant)
G I O Rowling (Crown)SOLICITORS: Legal Aid Commission of NSW (Appellant)
Director of Public Prosecutions (CrownLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/0326
06/21/0209LOWER COURT JUDICIAL OFFICER: Ellis DCJ LOWER COURT DATE OF DECISION: 2 March 2007
2007/2830
THURSDAY 1 MAY 2008McCLELLAN CJ at CL
JAMES J
HOEBEN J
1 McCLELLAN CJ at CL: The applicant pleaded guilty to three counts as follows:
1. On 29 March 2006 at Burwood – robbery while armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act 1900.
3. On 9 August 2006 at Mt Druitt – robbery while armed with an offensive weapon, namely, a paring knife, contrary to s 97(1) of the Crimes Act 1900.2. On 29 March 2006 at Burwood – robbery while armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act 1900.
2 When sentenced, the following further matters were taken into account by the sentencing judge pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 in relation to the third count:
(a) larceny on 9 August 2006;
(b) possession of a prohibited drug on 9 August 2006;
(c) armed robbery on 7 August 2006 at Blacktown.
3 The offences contrary to s 97(1) of the Crimes Act carry a maximum penalty of 20 years imprisonment. There is no relevant statutory non-parole period.
4 The applicant was sentenced as follows:
Count 1: a fixed term of 2½ years imprisonment commencing on 30 July 2006.
Count 2: a fixed term of 2½ years imprisonment commencing on 30 January 2007.
Count 3: a non-parole period of 3 years and 6 months with a further term of 3 years. The sentence commenced on 30 July 2007.
5 The effective overall sentence was a non-parole period of 4 ½ years with a further term of 3 years. The non-parole period is 60% of the overall term.
The application for leave to appeal
6 The applicant submitted that both the head sentence and non-parole period are manifestly excessive. In particular it was submitted that the sentencing judge failed to give adequate consideration to the mental health of the applicant.
The relevant facts
7 The offence on 29 March was committed when the applicant, armed with a knife and with his face partly covered, entered a chemist shop in Burwood. He threatened to hurt a sales assistant and demanded money from her. He was given $190 which he spent on liquor.
8 Later on the same day and again armed with a knife, he demanded money of an attendant at a Woolworths liquor store in Burwood. On this occasion he stole $1,705 and some liquor.
9 He was arrested in relation to these two offences on 5 April 2006 and when shown CCTV footage which recorded him having been in Burwood on that day, he admitted the offences. He expressed contrition and was released on bail.
10 The third offence was committed on 9 August 2006, when disguised with sunglasses and a beanie and wearing a blue singlet and armed with a knife, the applicant entered the Woolworths liquor store at the Westfield complex in Mt Druitt. He threatened to break an attendant’s nose, demanded money and was given $410. When arrested he was found in possession of the knife, the money and a quantity of cannabis.
11 The applicant has a previous record of convictions for offences of dishonesty, for some of which he has served terms of imprisonment. These offences include convictions for assaulting an officer in the execution of his duty, resisting an officer in the execution of his duty, shoplifting, larceny, taking and driving a motor vehicle and some traffic matters. He has also been convicted of offences in relation to the use of public transport.
The applicant’s mental health
12 The applicant was involved in a motor vehicle accident in February 2006. He was the driver of a vehicle carrying three other passengers. He lost control of the vehicle and it appears that he may have fallen asleep. There was a collision and the applicant suffered significant injuries. He suffered a head injury with damage to his brain, lost one eye and, the evidence indicates, suffered for a period some psychological impairment. The sentencing judge had before him evidence of neuropsychological testing of the applicant by Dr Pulman. This disclosed that the offences in March 2006 occurred when the applicant was continuing to experience the effects of the brain injury. However, the report of Dr Pulman indicated that those effects were less apparent at the time of the commission of the offence on 9 August 2006.
13 The sentencing judge also had a report from Ms Anita Duffy, a psychologist. She expressed the opinion that the applicant’s armed robberies were out of character and reflected an individual who was “under considerable stress, more impulsive and erratic in mood and generally acting in desperation for a ‘quick fix’.” However, she was not able to express a view as to whether the offences committed after the accident were related to the sequelae of his head injuries. That issue was addressed by Dr Pulman.
14 His Honour recognised that the longer term mental health assessment was that the applicant was in need of intensive drug and alcohol counselling. His capacity to function as an effective member of society upon release from custody would be assisted by educational and vocational training programs commensurate with his cognitive abilities. There was also a need for the applicant to receive appropriate counselling with respect to an identified depressive state during his incarceration.
The remarks of the sentencing judge
15 The sentencing judge recounted the facts of each of the offences and was careful to identify matters relevant to the objective criminality of the offences and the subjective circumstances of the applicant. His Honour approached the sentencing of the applicant mindful of the guideline judgment of this Court in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. His Honour identified the fact that although Henry concerned an offender who was young with little or no criminal history, the applicant had “a reasonably lengthy criminal history, mostly for matters of dishonesty”. The sentencing judge identified the fact that there was no actual violence in the offences but each of them involved a real threat to persons in vulnerable positions. The applicant was aged 21 at the time of the first two offences and 22 when he committed the third offence.
16 The sentencing judge said that “the amounts taken were not necessarily small”. He acknowledged the pleas of guilty and provided a discount of the order of 25%. The sentencing judge identified the fact that the third offence was committed when the applicant was on bail in relation to the first two offences and that this was a matter of aggravation. His Honour also identified the fact that the applicant’s prior criminal history was relevant to the assessment of the applicant’s prospects of rehabilitation and to the need for personal deterrence. His Honour concluded that the applicant had been shown leniency in the past but had not availed himself of the mercy granted to him on the previous occasions.
17 The sentencing judge was also mindful of the fact that there was no evidence of any substantial harm or injury to the persons who were threatened.
18 Of particular significance to this application is the fact that his Honour gave careful consideration to the report of Ms Anita Duffy and Dr Susan Pulman. His Honour concluded that there were a number of mental health issues which needed to be considered. At the time of the commission of the first two offences, his Honour accepted that by reason of his emotional and depressive state, the applicant was not fully aware of the consequences of his actions. However, his Honour said: “this is not to say that he was not capable of rationally sitting down and considering them but rather that the combination of mental health issues and the sequelae of his motor vehicle accident some one month before the first offences was likely to have had a significant impact on his ability to think clearly at the time of the first two offences”. His Honour expressed the opinion that any suggestion that the offences on 7 and 9 August were affected by his mental condition were “a little more problematic”.
19 His Honour further said:
- “Without going into any further detail the court has closely considered all the material set out both in terms of the physical injuries that he suffered and the long term consequences of those injuries and the psychological impact of the motor vehicle accident. The Court has also had regard to the substance abuse issues, namely the alcohol abuse issues set out within the various reports. The Court also notes that it would seem that while there were some underlying factors, there can be no doubt that the motor vehicle accident had a significant impact upon this young man both physically and psychologically.”
20 The sentencing judge found that by reason of the mental health issue there were special circumstances reflecting a need for a longer than normal period on parole.
Resolution of the appeal
21 The applicant submitted that his Honour inappropriately had regard to the guideline judgment in Henry and failed to properly recognise the impact of the applicant’s injuries in the motor car accident on his reasoning ability and propensity to commit criminal offences. I do not accept this submission. Consideration of his Honour’s remarks on sentence reveals a careful consideration of the psychological and psychiatric material and a recognition that his mental health difficulties may have impacted upon his cognitive processes when committing the first two offences. However, his Honour correctly identified that the evidence did not support this conclusion in relation to the third offence.
22 When sentencing the applicant, his Honour was required to have careful regard to the applicant’s prior criminal history. The offences for which he was being sentenced were more serious than his prior offences – they involved the use of a weapon and the threat of violence – but the applicant had nevertheless demonstrated a disregard of the law over a significant period. Although his Honour accepted that the effects of the applicant’s accident may have diminished the need for a sentence reflecting specific deterrence for the first two offences, his criminal history suggested a need for the sentence for the third offence to reflect matters of personal deterrence and justifiably led his Honour to conclude that there were diminished prospects of his rehabilitation.
23 The offences which the applicant committed were serious. On each occasion he carried a knife and threatened violence upon his victims unless they provided him with money. The third offence was committed when the applicant was on bail for the first two offences. The maximum penalty for each offence was twenty years imprisonment. Having regard to the nature of the offences and the applicant’s personal circumstances including his criminal history and psychological difficulties, in my view the sentences imposed by his Honour were well within the appropriate range.
ORDER
24 Although I would grant leave to appeal I would dismiss the appeal.
25 JAMES J: I agree with McClellan CJ at CL.
26 HOEBEN J: I agree with McClellan CJ at CL.
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