Kokaua v Regina

[2008] NSWCCA 111

New South Wales
Court of Criminal Appeal

CITATION:	Kokaua v Regina [2008] NSWCCA 111
HEARING DATE(S):	19/05/2008
JUDGMENT DATE:	26 May 2008
JUDGMENT OF:	James J at 1; Hislop J at 2; Hoeben J at 3
DECISION:	Leave to appeal is granted. Appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - Sentence appeal - misstatement of fact in remarks on sentence - mental illness and deterrence - whether sentence should have been backdated - whether sentence manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	Callaghan v R [2006] NSWCCA 58 R v Engert (1995) 84 A Crim R 67 R v Jones (NSWCCA, 30 June 1994) R v Simpson (2001) 53 NSWLR 704 at [79]. R v Wright (1997) 93 A Crim R 48 Scognamiglio v R (1991) 56 A Crim R 81
PARTIES:	Jack Kokaua - Applicant Regina - Respondent Crown
FILE NUMBER(S):	CCA 2007/00002998
COUNSEL:	Mr T Gartelmann - Applicant Ms J Dwyer - Respondent Crown
SOLICITORS:	Mr S O'Connor - Legal Aid Commission - Applicant Mr S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0111
LOWER COURT JUDICIAL OFFICER:	Donovan DCJ
LOWER COURT DATE OF DECISION:	11/05/2007

2007/00002998

JAMES J
HISLOP J
HOEBEN J

Monday, 26 May 2008

Jack KOKAUA v REGINA

Judgment

1 JAMES J: I agree with Hoeben J and the orders he proposes.

2 HISLOP: I agree with Hoeben J and the orders he proposes.

3 HOEBEN J:

Offence and sentence
The applicant pleaded guilty to one count of assault with intent to rob contrary to s94 of the Crimes Act 1900 committed on 27 May 2006. The offence carries a maximum penalty of imprisonment for 14 years.

4 The applicant was sentenced by his Honour Judge Donovan QC in the Sydney District Court on 11 May 2007. He was sentenced to imprisonment with a non-parole period of 1 year and 9 months to commence on 30 January 2007 and to expire on 29 October 2008 with a balance of term of 1 year and 9 months to expire on 29 July 2010.

5 The applicant seeks leave to appeal from this sentence.

Factual Background

6 At about 4.30pm on Saturday 27 May 2006 the victim, then aged 62, was walking his two small dogs near the lake in “Wiley Park”. The applicant approached the victim and stood in front of him. The victim picked up one of the dogs. The applicant grabbed the victim and made demands on the victim to the effect of “give me money”. The victim said “No, no, no”.

7 The victim kept a hold of the dog but the offender grabbed both of his hands and began patting him down while restraining him. The applicant put his hand in the victim’s right jacket pocket and a struggle ensued. As the victim struggled physically with the applicant, he was unable to keep hold of the dog and the dog jumped free from the victim’s arms.

8 The applicant ran after the dog in a westerly direction towards Mary Street. The victim followed by walking as quickly as he could. When the victim reached Mary Street, he saw the applicant running back towards him. The applicant appeared to have something under his jacket, and the victim believed this to be his dog. The victim then lost sight of the applicant. The applicant gave evidence and said that he did not in fact have the dog under his jacket. He said that he had not seen the dog and that the dog had run away.

9 The following day the victim reported the incident at the Riverwood Police Station. The victim returned to the scene to look for the dog. He saw a group of men and followed them to a nearby unit where he recognised the applicant as part of the group. He made contact with the applicant.

10 The applicant told the victim that he had a friend who looked similar to him and that he might have taken the dog. The victim told the applicant that if he could help him find the dog, he would pay him $500. The applicant led the victim to an address in Kingsgrove. The applicant entered the premises while the victim waited outside. A short time later the applicant came out and said that his friend was sorry for doing it, but had sold the dog to a person in Campbelltown. The applicant then described the dog in detail to the victim, saying it was white in colour and that it was wearing a jacket. The applicant said that his friend had thought the dog was an expensive breed and that is why he took it. The applicant told the victim that he would be able to take him to the person who purchased the dog the next morning.

11 On the next day, the applicant engaged in a course of conduct which involved taking the victim to various addresses with the promise that the occupants of those addresses would know where the dog was. On occasions during this process the applicant requested money from the victim. The applicant took the victim to five different locations, but no-one knew anything about the dog. The victim gave to the applicant three payments which amounted to $50 in the hope of locating the dog. At the end of these inquiries the applicant told the victim that the dog had last been seen at the RSPCA.

12 A few days later the victim attended the original address he had been taken to. The occupant told the victim that he knew the applicant but he did not buy any dog. When the victim approached the applicant again, the applicant told the victim that he did not want to see him any more.

13 The applicant had been subject to conditional bail in relation to another matter since 16 May 2006. On 27 June 2006 the applicant failed to report to the Kingsgrove Police Station, as required by his bail conditions. He was arrested on 28 June 2006 for breach of his bail when he attended the Kingsgrove Police Station. When questioned about the dog, he denied any knowledge of its whereabouts.

14 The applicant had been sentenced to imprisonment for 18 months with a non-parole period of 9 months commencing 29 June 2005 for the offence of robbery. He was released to parole on 28 March 2006. The parole authority revoked his parole, effective from 27 May 2006, on the basis that he was “unable to adapt to normal lawful community life (outstanding charges and drug use)”. The applicant completed his outstanding parole on 30 January 2007.

15 On 2 March 2006 the applicant was given a two year good behaviour bond by the Central Local Court for the offence of “be carried in a conveyance taken without consent of owner” which offence was committed prior to 29 June 2005. The applicant was subject to this bond when the offence, the subject of this application, occurred.

16 In the victim impact statement the victim and his wife who had come from China, said that a church minister had given them the puppy as a present from God to help them forget the past. For the last ten years the dog had been a great source of peace and joy in their lives. They said that the offence deprived them of a sense of security. The loss of the dog was like the death of a child. They said:

“We feel it everywhere in every moment. We feel so trapped in anger and grief: We found the guy, the police got the guy, and he confessed, but still no trace of our dog David. Why?”

Remarks on sentence

17 Having reviewed the facts and the evidence of the applicant, his Honour concluded that the applicant’s conduct in leading the victim on after the offence severely aggravated the loss and harm suffered by the victim. Although his Honour suspected that the applicant had in fact taken the dog, he was mindful that he was sentencing the applicant on the basis of agreed facts which included the applicant’s assertion that he did not take the dog.

18 His Honour then set out the applicant’s subjective case. He was born in Australia on 14 March 1987. His father was from the Cook Islands and his mother was Maori. He was the youngest of three siblings. He was residing with his father at Punchbowl at the time of the offence. His parents had separated at about the time of his birth. Except for a period of six months at age sixteen when he resided with his mother in New Zealand, the applicant lived with his father.

19 The applicant said that his childhood and upbringing were tough because his father applied punitive discipline. He was described by his aunt as being easily influenced by negative peer groups. Inquiries by the Probation and Parole Service indicated that he had a supportive extended family and that his father was willing to accommodate him when he was released. The applicant had a daughter aged approximately two years, but he had had no contact with her.

20 His Honour found that the applicant had mental health issues. He told the Probation and Parole Service that he had experienced auditory and visual hallucinations since he was 13 years old. He said that at the time of the offence the symptoms intensified and that they appeared to be associated with regular use of cannabis. The applicant had experienced periods of depression and had self-harmed once by slashing his wrists.

21 During the applicant’s most recent term of supervision, he was directed on many occasions to present himself to the mental health services by his supervising officer but he had failed to do so. Inquiries of Justice Health confirmed that the applicant was diagnosed as suffering from schizophrenia type symptoms. While in prison the applicant was prescribed anti-psychotic medication and anti-depressants. He had now recommenced his medication regime and was compliant. As a result he was more stable.

22 A report from Justice Health of 29 June 2006 (ie one month after the offence) said that he had a mental illness at that time. He was hearing voices and he was noted during the assessment to be responding to voices. There was evidence of formal thought disorder such as thought blocking, disorganised thought processes and paranoid thoughts. He was guarded and suspicious with the interviewer. He believed that the police tampered with his food while he was in their custody and he refused to eat food given by them.

23 Doctor Allnutt, psychiatrist, provided two reports dated 16 February and 19 October 2006. In the second report Dr Allnutt made a differential diagnosis which included Schizoaffective Disorder and Schizophrenia. Doctor Allnutt considered Drug Induced Psychosis but based on his history, Dr Allnutt thought that it was more likely that the applicant had an underlying schizophrenic illness aggravated by substances.

24 Because the Justice Health assessment took place approximately one month after the offence, his Honour thought it likely that the applicant was suffering from a mental illness at the time of the offence.

25 His Honour next considered aggravating and mitigating features of the offence. By way of aggravation he took into account the applicant’s previous convictions, the injury and emotional harm caused to the victim and the fact that the offence was committed while the applicant was on conditional liberty. His Honour also took into account that “the victim was vulnerable because of age and the fact that he was walking with a stick at the time.”

26 By way of mitigation, his Honour accepted that the offence was not planned and that because of the applicant’s mental condition he may not have been fully aware of the consequences of his actions. His Honour expressed some reservations on that last issue because the fact that the applicant had led the victim on by giving hope that the dog could be found, suggested that he did have a reasonable degree of understanding of what he was doing. His Honour accepted that the plea of guilty had been made at the earliest opportunity.

27 In summary, his Honour said:

“In this case it is my view that the principles of both general deterrence and specific deterrence play an important role in sentencing the offender. This is particularly so because he committed the present offence while on parole. The pre-sentence report concludes that he is a young man who at times displays immaturity in his thoughts and speech. A causal matter or factor may well be his mental illness in my view. It would appear that he is easily led by peers and they have a negative influence on him. On his release he will have the support of his family and they have knowledge of his mental health needs. Reports state that if he is sentenced to a term of imprisonment, then drug and alcohol and psychological services are available by way of group and individual counselling for him.”

28 Because of the applicant’s need for close supervision upon release from custody, his Honour found special circumstances and varied the statutory ratio between the parole and non-parole periods.

Appeal
Ground of Appeal 1: The sentencing judge mistook the facts

29 The applicant submitted that his Honour’s reference to the victim “walking with a stick” was an error of fact in that there was no evidence to that effect. The Crown concedes that proposition.

30 The applicant submitted that because of this mistake the extent to which the offence was aggravated on account of the victim’s vulnerability was incorrectly assessed. Such a matter, it was submitted, was significant in assessing the objective seriousness of the offence.

31 I am not persuaded that his Honour’s error in this regard had any effect on the sentence. It is not in dispute that the victim was vulnerable because of his age. I infer from the sentence “The victim followed by walking as quickly as he could” in the context of the applicant running after the dog, that in some respects the victim’s mobility was impaired. Whether this was because he needed to use a stick or for some other reason is not material. Conceptually the difference between a person being vulnerable because of age and some impairment of mobility and a person being vulnerable because of age and the requirement to use a stick for mobility is marginal at most.

32 I am not persuaded that his Honour’s factual error in this regard had any material effect on the sentence which his Honour passed. It follows that this ground of appeal is not made out.

Ground of Appeal 2: The sentencing judge erred in failing to consider whether general and specific deterrence ought to be given less weight on account of the applicant’s mental illness.

33 The applicant submitted that his Honour erred in saying (see para [27] hereof) that the principles of both general deterrence and specific deterrence played an important role in sentencing this offender. This was because his Honour had already found that the applicant was mentally ill at the time of the offence and “may not have been fully aware of the consequences of his actions”.

34 It was submitted that his Honour’s reference to general and specific deterrence, in the absence of any reference to the ameliorating effect of his mental illness on the application of those principles, indicated error on his Honour’s part. It was submitted that the error was the same as that identified by this Court in Scognamiglio v R (1991) 56 A Crim R 81.

35 It is clear that the presence of a mental illness can have an ameliorating impact on the sentencing exercise in certain circumstances. The extent of that impact will always depend on the circumstances of the case (R v Engert (1995) 84 A Crim R 67). In this case his Honour’s finding as to the applicant’s mental illness was significantly qualified. While allowing for the fact that the applicant may not have been fully aware of the consequences of his actions, his Honour observed that leading the victim on in the hope of finding the dog suggested that the applicant had a reasonable degree of understanding of what he was doing.

36 In those circumstances the remarks of Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 (at 50-51) are relevant:

“It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender’s mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case.”

37 I am not persuaded that in the circumstances of this case, his Honour failed to take the applicant’s mental illness into account in ameliorating his sentence so far as deterrence was concerned. It is not without significance that in his Honour’s remarks on sentence the paragraph in which deterrence is referred to also takes into account the applicant’s mental illness.

38 Just because his Honour did not in terms indicate precisely how he took into account the applicant’s mental illness does not mean that he ignored it or that he did not have regard to its ameliorating impact on the principle of deterrence. It would have been preferable for his Honour to set out more clearly how and to what extent he took the applicant’s mental illness into account. Nevertheless, it is clear from his Honour’s analysis of the medical evidence and his conclusions therefrom that he did take it into account to the benefit of the applicant, albeit with the qualification previously referred to.

39 This ground of appeal has not been made out.

Ground of Appeal 3: The sentencing judge erred in failing to exercise the discretion to backdate the sentence to a date prior to the expiration of the applicant’s balance of parole.

40 The applicant submitted that his Honour’s failure to provide reasons for choosing 31 January 2007 as the commencement date for the applicant’s sentence was indicative of a failure to properly exercise his discretion in that regard. It was submitted that his Honour should have had regard to the fact that in part the revocation of the applicant’s parole in relation to the earlier robbery offence was due to this offence for which he was being sentenced by his Honour. It was submitted that the absence of a reference to the existence of the discretion and to the matters to be taken into account in its exercise were indicative of a failure on the part of his Honour to properly exercise the discretion which he had.

41 A letter from the State Parole Authority was before the Court which set out the reason for the revocation of the applicant’s parole in relation to the robbery offence as follows:

“On 20 July 2006 the Parole Authority, in a private meeting, revoked the parole orders of Jack Kokaua issued at the Downing Centre Local Court on 16 February 2006 and Central Local Court on 2 March 2006, effective from 27 May 2006 on the basis of a breach of prescribed condition (c) of such parole – ie “unable to adapt to normal lawful community life (outstanding charges and drug use)”.

42 It was common ground that in Callaghan v R [2006] NSWCCA 58 Simpson J had reviewed the relevant authorities in this area and set out her conclusions as follows:

“21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly , the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced.
22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule.
23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.

24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.”

43 It is not without significance that no submission to backdate the commencement of the applicant’s sentence to a date earlier than 31 January 2007 was made on behalf of the applicant during the sentence proceedings. Accordingly, it is not surprising that his Honour did not make specific reference to why he chose not to backdate the commencement of the applicant’s sentence in the way submitted. In those circumstances, the absence of specific reasons is not indicative of a failure to exercise the discretion.

44 Had his Honour set out the considerations relevant to whether or not the commencement date of the sentence should have been backdated, they overwhelmingly favoured the commencement date which his Honour chose.

45 The applicant’s parole was not revoked solely because of this offence. The Authority also took into account his drug use and his breach of bail conditions imposed on 16 May 2006. The applicant was in breach of a s9 good behaviour bond imposed on 2 March 2006. The offence for which his Honour was sentencing the applicant was of the same general character to that in relation to which parole had been granted. The balance of term which the applicant was required to serve was comparatively short, ie less than 7 months.

46 It follows that his Honour’s decision not to backdate the commencement of the applicant’s sentence to a date earlier than 31 January 2007 was well open to him and no error has been demonstrated.

Ground of Appeal 4: The sentence is manifestly excessive.

47 The applicant submitted that taking into account all of the circumstances of the case, including the objective circumstances of the offence, the applicant’s antecedents, his mental illness and the plea of guilty, the sentence was excessive.

48 The applicant conceded that his conduct subsequent to the offence was relevant to its objective seriousness because of the distress which it occasioned to the victim. Nevertheless, it was submitted that the actus reus of the assault was relatively minor consisting of grabbing the victim by the hands and restraining him while patting him down and putting a hand in his pocket.

49 The applicant submitted that in assessing the objective seriousness of the offence, the applicant’s mental illness needed to be taken into account. His mental illness was also relevant to the weight to be given to general and specific deterrence.

50 His Honour accepted that the applicant’s plea of guilty had been entered at the earliest opportunity. It was submitted that although his Honour had not quantified the extent of the discount for that plea of guilty, it would have been in the range of 20% - 25%. Applying such a discount to the sentence produced a result that was towards the upper end of the statistics from the Judicial Commission relating to such offences. The statistics showed that the median term of sentence for this offence was one of 2½ years. The applicant submitted that in all the circumstances a lesser sentence was warranted in law.

51 Statistics can be useful in setting out a range of sentences which have been previously passed in respect of similar offences. Each offence, however, depends very much upon its own facts. Moreover, sentencing statistics do not indicate the upper range for any offence. That is provided by the maximum sentence which in this case was imprisonment for 14 years.

52 Nor do statistics indicate what, if any, aggravating factors applied. A matter of considerable aggravation is that this offence was committed in breach of conditional liberty in several respects. The applicant had only been released to parole for the offence of robbery on 28 March 2006. He was on parole for the offence of assault an officer in execution of duty also from 28 March 2006. He was subject to a 2 year s9 good behaviour bond for the offence of being carried in a stolen motor vehicle, that bond having been imposed on 2 March 2006. He was subject to conditional bail in respect of another matter, which bail was granted on 16 March 2006, 11 days before the offence.

53 In R v Jones (NSWCCA, 30 June 1994) Finlay J with whom Badgery-Parker and Carruthers JJ agreed said at p 6:

“Here the applicant committed this offence while on conditional liberty following his conviction for an identical offence. That is, undoubtedly, a matter of major aggravation. When offenders are given conditional liberty – be it on parole or when they are subject to periodic detention orders, community service orders, or on recognizance to be of good behaviour or, indeed, on bail for alleged offences – the commission of additional offences is a serious matter.”

54 I am not persuaded that the sentence imposed by his Honour was outside a proper exercise of his Honour’s sentencing discretion or that a lesser sentence was warranted in law. As has been said on a number of occasions, this is a court of error and its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act, 1912. The court will interfere with a sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms a positive opinion that some other, less severe sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79]. In my opinion error has not been established nor has it been established that some lesser sentence is warranted. This ground of appeal has not been made out.

Conclusion

55 The orders which I propose are as follows:

(1) Leave to appeal is granted.
(2) Appeal is dismissed.

**********