Kyriakidis v The Queen
[2004] WASCA 33
•12 MARCH 2004
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: KYRIAKIDIS -v- THE QUEEN [2004] WASCA 33
CORAM: MALCOLM CJ
STEYTLER J
MCKECHNIE J
HEARD: 9 FEBRUARY 2004
DELIVERED : 12 MARCH 2004
FILE NO/S: CCA 148 of 2003
BETWEEN: DIMITRIOS KYRIAKIDIS
Applicant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WA
Coram :MILLER J
File Number : INS 50 of 2003
Catchwords:
Criminal law and procedure - Appeal against sentence - Whether sentencing Judge took into account impermissible factors when sentencing applicant - Whether charges framed in an artificial manner - Effect of applicant's longstanding mental disability on appropriate sentence
Legislation:
Nil
Result:
Application for leave to appeal granted
Appeal allowed
Sentence imposed by primary Judge set aside
Further submissions called for
Category: B
Representation:
Counsel:
Applicant: Mr D Grace QC & Mr L M Levy
Respondent: Mr R E Cock QC & Mr L M Fox
Solicitors:
Applicant: Laurie Levy & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
R v James and James (1979) 70 Cr App R 215
R v Thompson (2000) 113 A Crim R 295
R v Wong (1995) 16 WAR 219
Wade v The Queen [2001] WASCA 252
Case(s) also cited:
Cameron v The Queen (2002) 209 CLR 339
Chua v The Queen [2001] WASCA 353
Jarvis v The Queen (1993) 20 WAR 201
Lauritsen v The Queen (2000) 22 WAR 442
Little v The Queen [2001] WASCA 87
Lowndes v The Queen (1999) 195 CLR 665
Miles v The Queen (1997) 17 WAR 518
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Anderson [1981] VR 155
R v Payne (2002) 131 A Crim R 432
R v Tsiaras [1996] 1 VR 398
R v Ward (1999) 109 A Crim R 159
Thompson v The Queen (1999) 73 ALJR 1319
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
MALCOLM CJ, STEYTLER J: On 28 August 2003 the applicant was sentenced to a total of 8½ years' imprisonment, with eligibility for parole, after pleading guilty to one count of going armed in public so as to cause terror and to another of armed robbery in company. That total sentence of imprisonment was ordered to be served cumulatively upon a 12‑month sentence of imprisonment then being served by the applicant. He has applied for leave to appeal against the sentences imposed upon him.
Before coming to the sentencing remarks of the primary Judge, and to the grounds of appeal, it is necessary to set out something of the history of the matter.
On 2 July 2001 the applicant's father died suddenly, having suffered a heart attack. The applicant, who had been very close to his father, began using stimulants in order to help him deal with his feelings of grief. He said that he used an "eight ball" equivalent to 3.5 grams of methamphetamine or "ice" per week. This progressed to regular heavy use of 0.2 grams of methamphetamine four times per day intravenously. He said that, in addition, he took between 15 and 20 ecstasy tablets per week.
On 2 July 2002, on the anniversary of his father's death, the applicant claims to have taken 22 "blue sky" ecstasy tablets after a period of 12 days continuously on crystal methamphetamine. On that day he committed two offences, one of aggravated burglary and another of unlawful wounding in a so‑called "road rage" incident.
On the advice of his lawyer the applicant saw a psychiatrist, Professor Burvill, in September 2002. However, he did not confide his drug use to Professor Burvill and said that he felt uncomfortable talking to the doctor. He was prescribed the antidepressant Cipramil and was treated as an outpatient.
After his second appointment with Professor Burvill the applicant and his girlfriend, Melissa Caldwell, decided to take a fishing holiday in Karratha. It was in the course of that holiday that the offences giving rise to this application were committed.
Those offences were bizarre. The applicant and Caldwell, while driving along a stretch of highway near Shark Bay, noticed a parked car in which two young men were sleeping. It was then still early in the morning. The applicant told Caldwell to videotape his actions. She did so. He walked towards the car, looked inside, and then walked back towards where Caldwell was standing before saying, "Jim's World.com ‑ episode madness". He then walked back to the car with a crowbar in his right hand and a canister of pepper spray in his left hand. He smashed the driver's side window with the crowbar. The two men hurriedly got out of the car. However, the applicant, who had gone round to the passenger side of the car, beat the passenger across the head and body with the crowbar, causing him to suffer five wounds requiring 60 stitches in all. The driver of the car, in an act of desperation, managed to wrest the crowbar from the applicant's hands. This caused the applicant to remove from his pocket a Glock pistol. He was, by then, some metres from the car. He walked back towards the car, fired the pistol in the air and then removed the car keys from the ignition. He walked away from the car before turning back, walking towards it once again, and demanding the return of the crowbar from the driver of the car, who was standing at the driver's side door. The driver returned the crowbar to the applicant who then left the scene in his car, together with Caldwell.
The applicant was arrested on 22 October 2002. Because of police concerns arising out of what was said by the applicant in the course of an interview with them, he was remanded to a psychiatric hospital for assessment.
Two psychiatric reports were placed before the sentencing Judge.
The first of these was prepared by Dr Raymond Wu, a consultant psychiatrist, on 2 December 2002. The applicant had been unable to explain his actions to Dr Wu. He told Dr Wu that he had been in a "dream state" and admitted to having "snorted " crystal methamphetamines prior to setting off on his car journey from Karratha. He said that what had happened after he stopped at the side of the road was "a blur" and he did not realise the extent of the damage that he had done even though he could vaguely remember the events. He reported that he "had not been feeling right" and that he had been under a lot of stress since the death of his father. He said that he had also been having relationship problems with his girlfriend and, because he could not cope, he had resorted to using illicit substances.
The applicant told Dr Wu that he had been "hearing voices" and "seeing spirits" on various occasions since the age of 14, but that these phenomena had been more prominent and frequent since the time of his father's death. He also said that he had the ability to "foretell the future" and that he could "sense things". He said that television programmes often referred to matters about him and that many things seemed to have a "special meaning" for him. He believed that his father's spirit had made him watch television in order to communicate with him and that television programmes often told him how to do his job. He could hear "spirits" talking to him whenever he passed a cemetery. There were other unusual phenomena which he was unable to explain. He said that, during the period of his offending, he felt as if "someone had overtaken me". He also said that he had previously been "diagnosed with some form of schiz" and that he had been prescribed medication to help in the control of his mood and "anger spells".
Dr Wu said, under the heading "Mental State Examination", that:
"On examination of … [the applicant's] thought content, there was evidence of a pattern of thinking suggestive of psychosis. For example, there were 'delusions of presence', such as being able to feel the presence of his father and spirits. He also described ideas of reference and passitivity phenomena, such as people talking about him in the news … and that there was a 'force' which was 'controlling him', rendering him unable to control his actions. He also described the perceptual disturbances such as auditory hallucinations, such as the spirits and his dead father and others talking directly to him."
Dr Wu went on to say:
"Mr Kyriakidis does not have a major personality disorder. However he does have narcissistic/antisocial and schizoid personality traits. These personality traits may affect coping and interaction with his external world but not to the point where they had rendered him dysfunctional. He had at least been able to maintain his job as a mechanic but did show signs that he was not coping too well. Mr Kyriakidis had experienced 'magical' and 'spiritual' experiences since he was an adolescent. These were not consistent with any of his family … [or] cultural traditions and may indicate 'over‑valued beliefs' or, more likely, a prodromal syndrome indicating a psychosis. Mr Kyriakidis had been abusing illicit substances since the age of 20. After the death of his father, he started using illicit substances more heavily and frequently. From the account given by Mr Kyriakidis, the history suggests that he may have been harbouring untreated depressive symptoms, related to a 'pathological grief reaction'. Mr Kyriakidis' increased drug use appeared to be an attempt [to] 'self medicate'. Mr Kyriakidis did exercise appropriate judgment capacity and insight in that he sought the assistance of a private psychiatrist on two occasions for treatment. He was in the process of treatment when the alleged offence occurred. It is likely that Mr Kyriakidis may have been under the influence of the substances whilst committing the alleged offence. It was possible that the substances may have contributed to his dis‑inhibited and violent behaviour. During the first examination, Mr Kyriakidis described symptoms that … [were] consistent with psychosis. The nature of the psychosis is still unclear. It is likely that he may have suffered from 'Drug Induced Psychosis' which had been the result of significant poly substance abuse. However, there is a possibility that some of these symptoms may have even predated the death of his father. This would then suggest that Mr Kyriakidis was harbouring a prodromal psychosis during his adolescent years. The psychotic symptoms had not impaired his ability to plead or to stand trial. The psychotic symptoms appeared to have responded to treatment with antipsychotic medication (Seroquel). During subsequent interviews, I noted that Mr Kyriakidis showed marked improvement in his mental state. His thinking and mentation were much clearer and there was complete resolution of the psychotic symptoms and hallucinations."
Dr Wu recommended that the applicant should continue treatment with the prescribed antipsychotic medication.
In his report dated 17 February 2003 Dr Fellows‑Smith said that:
"On mental state examination Mr Kyriakidis gave a history that was consistent with the presence of the complex partial seizures of temporal lobe epilepsy. From our initial contact I detected that his affect was somewhat curious and he gave an account of magical thinking regarding the spirit world. There was some mild cognitive impairments in that he made one error on the five minute recall of a name, address and flower. Positive phenomena suggesting complex partial seizures included marked déjà vu, time distortion, somatic symptoms (can't eat, can't breath [sic], can't choke). He also described the olfactory hallucination of smelling vinegar in a room. He also described loud techno‑music in his head. These phenomena occur in episodes and have been present since he was fifteen years old. He gave a history of trying to relieve these symptoms by banging his head against the wall. He also stated that these symptoms were made worse by using speed however he felt unaffected by the symptoms when intoxicated. During the period of heavy use he started to develop feelings of persecution and that people were watching him. He also describes ideas of reference particularly for numbers from digital clocks or car registration numbers. He also described forced thinking of the idea 'as if I have to fix the wrongs of the world'. In the context of these ideas he committed the earlier burglary on a man who he felt had undone the good work that he had done at the workshop in O'Connor where he was formally [sic] employed.
Mr Kyriakidis' affect was mildly curious with some perplexity. This was inappropriate and appeared to be related to spiritual ideas that were not culture bound. At the time of the interview he had not used amphetamine for three months. His auditory hallucinations and persecutory ideas had diminished. The frequency of his episodes of temporal lobe auras has also reduced. He continues however to have marked déjà vu phenomena and time distortion. He believes that he has come from a future time. He also has some mild ideas of reference believing he has a special connection with certain people around him. I understand that symptoms are apparent to persons familiar to him including his cellmates. His own understanding however is that these phenomena are part of his reality and therefore he has lost insight into his condition."
Dr Fellows‑Smith expressed the following opinion:
"Although the date of this examination is several months after the dates of his offending the seriousness of these offences which include the use of a firearm and another weapon and the perpetration of physical violence to more than one person is in proportion to the severity of Mr Kyriakidis' psychiatric disorder. The opinion of the psychiatric registrar at Graylands however denies the presence of psychotic illness and I note that Mr Kyriakidis gave a history of excessive use of stimulants including intravenous methamphetamine as well as gambling away thirty five thousand dollars in the year following his father's death. Furthermore it seems that the motivation for his offending appears to be related to impulsive acting out of angry feelings directed towards those who he feels have wronged him. A diagnosis of Borderline/Narcissistic Personalty Disorder however does not explain the bizarre nature of his offending. Perhaps due to his paranoid tendency he did not confide his drug abuse to Professor Burvill however he was prescribed antidepressant medication and was being followed up for out‑patient specialist support. He appears to have responded to antipsychotic medication once in jail and since ceasing to use amphetamines he no longer presents with the marked paranoid symptoms and there has been a reduction in his psychotic symptoms. The quality of these psychotic symptoms are [sic] highly suggestive of temporal lobe epilepsy. In particular his magical thinking, somatic symptoms, olfactory hallucinations, musical hallucinations, time distortion, depersonalisation and déjà vu phenomena occur in episodes that are exacerbated by stimulation and stress. I would advocate that he be investigated further with an EEG and Ct [sic] scan and be considered for a trial of an anticonvulsant."
Notwithstanding his recommendation for further investigations (which had not been carried out at the time of sentencing), Dr Fellows‑Smith provided the following answers to two of the specific questions which had been asked of him:
"2.Mr Kyriakidis is suffering from temporal lobe epilepsy.
3.Mr Kyriakidis gave a history of the onset of abnormalities in his thinking and olfactory hallucinations of the repugnant odour of vinegar as occurring when he was approximately fifteen years old. The abnormalities of his mental state were exacerbated by regular heavy use of methamphetamine and MDMA. It is likely that he was suffering from a combination of the drug induced paranoid psychosis and complex partial seizures at the time of the alleged offences. …"
The primary Judge, when he came to sentence the applicant, described the events giving rise to the offence as amounting to "a senseless unbelievable act of violence". After mentioning the age (30 years) and occupation of the complainant and aspects of his background, his Honour turned to the applicant's history of substance abuse. He said, in that respect:
"You have a history of substance abuse that includes alcohol, cannabis, ecstasy, amphetamines and others. The summary in the pre‑sentence report describes you as a person very immature for your biological age, with extremely poor coping mechanisms for dealing with stressful situations and it is thought that you had difficulty coming to terms with the death of your father 12 months ago and you have probably been suffering periodically from drug‑induced psychosis.
However, I accept what the crown prosecutor says in general terms, that many people experience the grief of losing parents, loved one [sic] and members of families but they don't react in the way in which you have reacted."
His Honour then turned to the psychological assessment which had been prepared by Dr Wu, noting, in that respect, that Dr Wu had concluded that the applicant did not have any major personalty disorder, but did have a narcissistic anti‑social and schizoid personality. He also mentioned that Dr Wu had said that the applicant demonstrated symptoms consistent with a psychosis but said that the nature of it was unclear and that it was likely that the applicant had "suffered from drug‑induced psychosis from polysubstance abuse which of course you can see is entirely your own cause".
Then, after referring briefly to the report of Dr Fellows‑Smith, and in particular to the passage of that report which said that it was likely that the applicant had been suffering from a combination of the drug‑induced paranoid psychosis and partial seizures at the time of the alleged offences, the primary Judge said:
"So it seems that you yourself, by the use of these narcotic drugs, have caused yourself to be put in a state where you have committed these offences."
His Honour then went on to say:
"In sentencing you I have to have regard to a number of factors. The first is the gravity of these offences. These two offences are extremely serious. The first is punishable by only 2 years' imprisonment for the offence of going armed in public without lawful occasion in such a manner as to cause terror but the offence of armed robbery in company is much more serious. People who park their vehicles in remote areas of the state and sleep in them are entitled to do so without being terrorised and attacked by people like you.
The armed robbery may have only involved the theft of keys but it's the surrounding circumstances and the terror of the robbery which put it at the higher end of the scale in my opinion. It's the circumstances of the robbery that are critical, not what was taken.
As to the effect on the victims, there is no doubt they suffered terror and in one case serious injury. The terror is apparent from the way in which they reacted on the video."
After reading from the victim impact statement of one of the victims, who had described a number of seriously adverse consequences suffered by him as a consequence of the commission of these offences, the sentencing Judge said:
"One can readily imagine that response to the actions that we saw on the video. They speak for themselves and I need not further explain them."
Then, after taking into account other factors, including the applicant's plea of guilty, the primary Judge went on to impose the total sentence of imprisonment to which we have earlier referred. He structured that sentence by imposing a sentence of 1 year's imprisonment on the count of going armed in public so as to cause terror and one of 8½ years' imprisonment on the armed robbery count. He said that those sentences would begin at the expiration of the sentence currently being served and that he had taken into account the fact that the applicant had served nearly 7 months' imprisonment between November 2002 and May 2003.
There are three grounds of appeal. They are as follows:
"1.The learned sentencing Judge erred in the exercise of his discretion and thereby imposed a sentence that was manifestly excessive in all the circumstances of the offence and of the Applicant's personal circumstances.
Particulars
The learned sentencing Judge failed to give sufficient weight to the following mitigating factors:
a) The Applicant's plea of guilty.
b)The Applicant's psychiatric and/or psychological problems.
c) The Applicant's demonstrated rehabilitation.
d)The Applicant's drug problems.
e)The Applicant's remorse.
2.The learned sentencing Judge erred by categorising the offence of armed robbery in company, in all the circumstances of this matter, as being 'at the highest end of the scale' and thereby imposed a sentence that was manifestly excessive.
3.The learned sentencing Judge erred by failing to properly apply the 'totality principle'."
We propose first to consider ground 2.
The primary Judge was faced with a difficult sentencing exercise, given the manner in which the charges had been framed. There were, in all, three charges brought against the applicant arising out of his conduct on 28 August 2003. In addition to the two offences charged in the indictment the applicant was charged with unlawful wounding arising out of the attack on one of his two victims with the crowbar. The applicant elected to have that charge dealt with summarily by a Magistrate, although the charge has never been proceeded with. Consequently, in sentencing the applicant, the primary Judge was obliged to put to one side the unlawful wounding and to deal only with the offences of going armed in public so as to cause terror and armed robbery in company.
In order to avoid any overlap between those two charges, the prosecution proceeded upon the basis that the offence of going armed so as to cause terror related to the use, by the applicant, only of the crowbar and not of the handgun. So far as the armed robbery was concerned (the taking of the car keys with threats of violence), the weapon relied upon by the prosecution was only the handgun and, for the purposes of that offence, the crowbar was to be ignored.
Just why it is that these charges were framed in what seems to us to be a rather artificial fashion is not apparent. We can see no reason why, for example, it should not have been open to the prosecution to charge the applicant, at the outset, under either of s 294 or s 317A of the Criminal Code. The first of those sections (as to which see R v James and James (1979) 70 Cr App R 215) provides, inter alia, that:
"Any person who, with intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person … [u]nlawfully wounds or does any grievous bodily harm to any person by any means whatever … is guilty of a crime, and is liable to imprisonment for 20 years."
The second of those provisions provides that any person who assaults another with intent to do grievous bodily harm to any person is guilty of a crime and liable, in a case in which the victim is less than 60 years old, to imprisonment for 5 years.
Instead, there was this somewhat unreal separation of the offences charged in the manner which we have described, which ultimately had the consequence of placing the primary Judge in the invidious position of having to ignore, for the purposes of the sentencing process before him, acts which were at the heart of the applicant's criminal conduct.
In our respectful opinion, the primary Judge (perhaps not surprisingly, in these circumstances) does appear to have taken account, in an impermissible way, of the violent assault on one of the applicant's two victims in arriving at the sentence ultimately arrived at by him. As we have said, his Honour said that, while the armed robbery may have involved only the theft of a set of car keys, it was "the surrounding circumstances and the terror of the robbery which put it at the higher end of the scale". It seems to us that, in saying this, his Honour was considering the whole of the circumstances of the robbery and not merely the fact of the use of a gun by the applicant. We are reinforced in that opinion by the fact that the primary Judge referred expressly to the serious injury suffered by one of the victims when describing the effect on the victims of the robbery and also by the fact that his Honour referred, in that context, also to a victim impact statement from one of the two victims which dealt with the effect, on him, of all of the events which took place on that day.
The armed robbery (and the applicant's plea to that charge seems to accept that threats of violence were made for the purpose of obtaining the car keys rather than for their own sake) really came at the tail end of the applicant's offending behaviour, after the complainants had already been well and truly terrorised. No doubt, the use of the gun added a new, and terrifying, dimension but, even then, in our respectful opinion, that could not, of itself, justify a sentence of 8½ years' imprisonment for the armed robbery alone when regard is had for the early plea of guilty and the applicant's undoubted psychiatric and psychological problems. While it is true that the applicant had exacerbated his mental state by the use of narcotic drugs, as the primary Judge said, the fact remains that, on the medical evidence, he had suffered a long‑standing mental disability, most probably in the form of temporal lobe epilepsy. We have mentioned, in this last respect, that Dr Wu referred to the fact that the applicant's long‑standing symptoms might indicate "a prodromal syndrome" indicating a psychosis and that he had been harbouring a prodromal psychosis during his adolescent years. We have also mentioned that Dr Fellows‑Smith regarded the quality of the psychotic symptoms suffered by the applicant as being highly suggestive of temporal lobe epilepsy and was prepared to make that diagnosis on the information then available to him.
While the Director of Public Prosecutions sought manfully to defend both the manner in which the charges had been formulated and the approach taken by the primary Judge, he recognised, early on in his submissions, that the approach of the primary Judge had created "a difficulty for … [the prosecution] in proceeding in respect of the Petty Sessional charges" because it seemed to him to be "apparent that, despite what the prosecutor particularised … as the particular elements of the armed robbery, his Honour has chosen … to take into account all the surrounding circumstances".
In all of these circumstances, it seems to us to be inevitable that the appeal must be allowed and that the sentences imposed by the primary Judge must be set aside.
That leaves the question of what should now be done. We were told by counsel for the applicant that additional psychiatric evidence is now available, or can be made available, with respect to the applicant's mental condition and that this will shed considerably more light on his condition than does the present somewhat unsatisfactory state of the medical evidence. In those circumstances (which render it unnecessary for us to express any opinion on ground 1 of the grounds of appeal), we were urged to send the matter back to the trial Judge for resentencing rather than to adjourn the matter for resentencing by this Court. We have some reservations as regards the question whether or not it would be appropriate for this Court to do so.
That being so, while we would allow the appeal and set aside the sentences imposed by the primary Judge, we would prefer to call for further submissions as regards the question of what should now be done.
MCKECHNIE J:
Introduction
This case is an illustration of the pitfalls that can occur when attempts are made to remedy initial inadequate charging of an offender with offences which do not embrace the totality of the criminal conduct.
The appellant was charged on indictment:
"(1)On 19 October 2002 at Shark Bay DIMITRIOS KYRIAKIDIS went armed in public, without lawful occasion, in such a manner as to cause terror to ANDREW MARTIN HENNESSEY and JOHN FREITAS PESTANA.
(2)AND FURTHER THAT on the same date and at the same place DIMITRIOS KYRIAKIDIS stole from ANDREW MARTIN HENNESSEY, with threats of violence, car keys the property of ROBERT ROBSON
AND THAT DIMITRIOS KYRIAKIDIS was armed with a dangerous weapon, namely a hand gun
AND THAT DIMITRIOS KYRIAKIDIS was in company with another"
The appellant pleaded guilty to each count, the second count being an ex officio count.
The facts giving rise to the offences are very unusual, more so because the crimes were recorded by a video camera operated by the appellant's co‑offender (a juvenile).
On 19 October 2002 two men, Hennessey and Pestana (the complainants), were travelling by car from Carnarvon to Perth. At about 4.30 am Hennessey, who was driving, pulled the car off into a parking bay some 10 kilometres north of the Overlander Roadhouse. Both men then went to sleep in the car.
Unknown to Hennessey and Pestana the appellant and the co-offender were camped in bushland a short distance away. In the early morning the appellant, dressed in dark clothing, wearing gloves, hat, sunglasses and a hood, armed with a metal crowbar and in possession of a black handgun and pepper spray, approached the vehicle containing the sleeping men. Looking at the camera the appellant then said: "Jim'sWorld.com Episode Madness". After checking for vehicles he struck the driver's side window with the crowbar causing the window to shatter. He then sprayed Hennessey in the face with pepper spray before swinging the crowbar through the window narrowly missing him [Hennessey]. Pestana, sleeping in the passenger side, got out of the vehicle but fell. The appellant struck him approximately five times to the head, arms and back with the crowbar causing an open wound with every blow. Hennessey tried to assist but the appellant's co-offender intervened with a knife. Eventually Pestana managed to take the crowbar from the appellant. The appellant then drew the handgun causing each of the complainants to withdraw in fear of their lives. He pointed the gun at Pestana before walking towards Hennessey, raising the gun and firing a shot in the air. As Hennessey and Pestana moved away from their vehicle the appellant approached the driver's window and took the keys from the ignition, pointed the gun at both men and demanded that Pestana hand over the crowbar which he did. The appellant and the co-offender then returned to their vehicle and drove away through the bush. The video remained running in the cab of the vehicle and the appellant said: "They'll be there for days". Hennessey and Pestana managed to wave down a passing truck and an ambulance was called that took both of them to hospital.
At about 9.00 pm on Monday, 21 October 2002, the appellant's vehicle was located in Carnarvon and seized for forensic examination. No admissions were made by the appellant or his co-offender but the next day in the course of a search of the vehicle the videotape was found in a sock concealed in the motor's air filter. Subsequently the appellant showed where the gun had been concealed in the vehicle. The appellant's explanation for the attack was that he wished to start an internet site called Jim'sWorld and broadcast video footage over the website.
After hearing submissions from the State and from counsel for the appellant, Miller J sentenced the appellant to 1 year's imprisonment on count 1 and 8½ years' imprisonment on count 2, the sentences to be served concurrently but cumulatively on any other sentence being served.
The grounds of appeal
The appellant appeals on three general grounds:
•The sentence was manifestly excessive in all the circumstances.
•The Judge erred by characterising the offence of armed robbery as being "at the highest end of the scale" and thereby imposed a sentence that was manifestly excessive.
•Failed to properly apply the totality principle.
Submissions disclose that the grounds are interlinked. I shall concentrate on ground 2 as the ground which focuses attention on the issue.
The ground is drawn inaccurately because the Judge did not describe the offence as being "at the highest end of the scale". In order to understand the nature of this ground it is now necessary to have resort to the court history of the matter.
This was outlined by the State Prosecutor:
"MISCHIN, MR: Before I commence, I will just ‑ … fill you in on the history that this matter has taken, because it is a little unusual. Originally, the accused was charged with offences of criminal damage, unlawful wounding and going armed in public. He pleaded guilty to all of those before a magistrate. The magistrate saw fit to retain the charges of wounding and criminal damage down in the Court of Petty Sessions and he was committed on the only matter that could be dealt with on indictment alone, and that was the going armed in public.
It came to the courts by way then of a committal for sentence. Having examined the brief and the evidence in support of it, and you will get to see a videotape that is the foundation of the prosecution case, the crown took the view that there was a serious undercharging and that there was a more serious offence of armed robbery revealed by it and hence that was an ex officio count. That's how it ends up before this court.
So in respect of count 1, it could be said that he has pleaded guilty at the earliest opportunity. In respect of count 2 on the other hand, different considerations apply. So it comes by way of committal for sentence in respect of count 1 on the indictment but not in respect of count 2."
The State Prosecutor particularised the counts by particularising count 2 as follows:
"It's the stealing of the car keys while armed with a loaded firearm and whilst supported by the knife‑wielding [co‑accused] that is the basis of count 2 on the indictment and it is the wielding of the crowbar in order to avoid any problems with section 11 of the Sentencing Act that is the basis for the going armed in public so as to cause terror to the two men. The wounding and the criminal damage are the subject of separate counts that still are in the Court of Petty Sessions."
The circumstances of this court history and the actual charges that were laid, including those to which the appellant had pleaded guilty before the sentencing Judge, required a very careful articulation by all concerned as to the facts and circumstances of each offence and the limits to which one could use the facts in arriving at an appropriate sentence. This is perhaps best illustrated by the counts of unlawful wounding. These remained in the Court of Petty Sessions because the appellant elected to have them dealt with summarily and the Magistrate, for reasons not entirely clear, did not exercise jurisdiction to commit for sentence so allowing the sentencing Judge to have a more complete picture. The provisions of s 32 of the Sentencing Act were not availed by the appellant and so the sentencing Judge did not have the ability to take account of the unlawful wounding in any real way notwithstanding that it was arguably one of the more serious aspects of the whole transaction. Nor could the Judge deal with the count of criminal damage which related to the use of the crowbar on the complainant's vehicle. The decision of the Magistrate to retain jurisdiction, and the decision of the appellant not to use the provisions of Sentencing Act s 32, meant that the State could do little to enable one court to have the power to deal with the entire criminal transaction. Had the State indicted to cover the whole criminal conduct, there was a real risk that the indictment would be an abuse of process. The decision to indict for armed robbery was infelicitous but perhaps all that could be done.
Before the sentencing Judge and before this Court the submission on behalf of the appellant was that the gravamen of the offending lay in the behaviour encompassed by the first count on the indictment. The stealing of the keys was said to be an after‑thought. I am not sure that any inference can be drawn from the stealing of the keys as to whether it was or was not a deliberate act in the sense of being part of the overall plan. As the appellant was making away from the scene he gave a sufficient reason for stealing the car keys in order to effectively disable the complainants. The Director, who appeared on behalf of the State, strongly argued that the circumstances of the armed robbery, as particularised by the State, themselves make it a very serious offence justifying the sentence imposed. There is force in that submission. The armed robbery involved the use of a firearm which was discharged shortly before the keys were obtained. It is clear from the victim impact statement referred to by the Judge that the production of the firearm caused the complainants to fear for their lives and effectively overcame any further resistance by them.
The difficulty I have is that the Judge did not clearly find facts and articulate the difference between the first offence of going armed in public so as to cause terror and the second offence of robbery.
In the course of his sentencing remarks the Judge noted:
"The occupant of the vehicle who had been attacked received 60 stitches to wounds which resulted from the attack upon him. I can only describe what I have seen on the video and what I have read in the statements as a senseless unbelievable act of violence."
This passage immediately follows the recounting of the circumstances of the whole of the events commencing at the start of the video recording.
The Judge then said:
"In sentencing you I have to have regard to a number of factors. The first is the gravity of these offences. These two offences are extremely serious. The first is punishable by only 2 years' imprisonment for the offence of going armed in public without lawful occasion in such a manner as to cause terror but the offence of armed robbery in company is much more serious. People who park their vehicles in remote areas of the state and sleep in them are entitled to do so without being terrorised and attacked by people like you.
The armed robbery may have only involved the theft of keys but it's the surrounding circumstances and the terror of the robbery which put it at the higher end of the scale in my opinion. It's the circumstances of the robbery that are critical, not what was taken.
As to the effect on the victims, there is no doubt they suffered terror and in one case serious injury. The terror is apparent from the way in which they reacted on the video. In a victim impact statement from Mr Andrew Hennessy he says:
'Since the offence I've been unable to sleep. I find I can't get to sleep and I lie awake for hours, even though I'm exhausted ‑ totally and utterly exhausted and feel ill from lack of sleep.'
One can readily imagine that response to the actions that we saw on the video. They speak for themselves and I need not further explain them."
It was incumbent upon the Judge to sentence appropriately for each offence. The first offence carries a maximum of 2 years' imprisonment. The second offence carries a maximum penalty of life imprisonment. Although the State did articulate between the two counts, the piecemeal way in which the matter had to be presented to the Court was highly likely to lead to error because the Judge was necessarily dealing only with aspects of the criminal conduct not the whole transaction. The Judge in the course of discussion with counsel reacted to counsel's suggestion that the offence must be at the lowest end of armed robberies. He said:
"MILLER J: That would be so in terms of what was stolen, stealing a set of keys, but it's the circumstances surrounding the armed robbery and the aggravating circumstances associated with it which make it a very ‑ I think the crown is going to say, a very serious armed robbery. You can't say it's not a serious armed robbery because he only stole a set of keys.
LEVY, MR: In my submission, that's precisely what I am saying, with respect, your Honour. It's a serious going armed in public to cause terror, as a result of which keys were taken, in my submission, for a probably very brief time.
MILLER J: But isn't it a case where a series of events have occurred in which your client has been armed so as to cause terror and has caused terror and has done so in the course of an armed robbery? It's true he only stole a set of keys but the way in which he did that and the circumstances surrounding it put it, in my view, at the higher end of the scale rather than the lower."
This interchange highlights the difficulties.
In Wade v The Queen [2001] WASCA 252 at [37] ff I set out the difference between circumstances of aggravation, aggravating circumstances, and uncharged offences, explaining the difference each might make to a sentence.
In the present case, the acts of criminal damage and unlawful wounding were actually charged offences but not within the Supreme Court's jurisdiction.
By referring to facts involving these charged offences the Judge understandably, but impermissibly, took into account facts to which he was not entitled to have regard and thereby fell into error.
The argument in respect of the first ground of appeal directed attention to the appellant's psychiatric condition. The appellant's background was outlined to the Judge by counsel and also in a pre-sentence report and two psychiatric reports, one obtained for the pre-sentence report and the other obtained by counsel for the appellant.
What was described as a sentinel event was the death of the appellant's father on 2 July 2001. Although reputed to be a man of temper, the appellant was nevertheless very close to him. Exactly one year later, on 2 July 2002, the appellant committed an aggravated burglary and an unlawful wounding in a random act of road violence.
The current offences were committed shortly after - on 19 October 2002.
Following his arrest the appellant was remanded to Graylands Hospital but was found to be fit to plead and on 6 November entered a fast track plea of guilty.
On 19 May 2003 in the Court of Petty Sessions the appellant was convicted of unlawful wounding and sentenced to 12 months' imprisonment with parole eligibility. He pleaded guilty to aggravated burglary on 4 August 2003 in the District Court. That sentencing was adjourned until after the Supreme Court matter was disposed of.
Despite the apparently motiveless nature of the crime, the psychiatric evidence put before the Judge was not particularly clear. Dr Fellows-Smith thought that the appellant was acting out an internal psychotic state under a delusional brief that he was in a film like Mad Max. The appellant, when intoxicated with ecstasy, had in fact seen the video Chopper a few days prior to the offence.
From the appellant's statements to the pre-sentence report writer, it does appear that the events of 19 October 2002 had been preceded by a lengthy period of intoxication on amphetamines. Certainly the amphetamine usage and crimes may be, in part, explained by an abreaction to the grief experienced on the loss of his father.
Dr Fellows‑Smith expressed the opinion that the appellant's history was consistent with the presence of complex partial seizures from temporal lobe epilepsy and advocated that he be investigated further with an EEG and CT scan and be considered for a trial on an anti‑convulsant.
The Judge, in the course of discussion with counsel, said:
"MILLER J: The whole episode is entirely bizarre, as indeed Dr Fellows‑Smith himself says.
LEVY, MR: Yes, and without explanation, that is psychiatric explanation, one couldn't even begin to put any explanation to the behaviour.
MILLER J: But the bottom line is that it seems that the combination of psychological and psychiatric assessment is that he doesn't have a psychotic illness. Dr Fellows‑Smith says there is suggestions of temporal lobe epilepsy but they need further investigation. The psychologist says that he doesn't have a major personality disorder but he has certain traits, narcissistic, anti‑social, schizoid, so he hasn't been able to cope basically with life.
LEVY, MR: Yes.
MILLER J: But that's not really a very satisfactory explanation for performing an act like this.
LEVY, MR: No."
In his sentencing remarks, the Judge referred to the reports of Dr Wu and Dr Fellows‑Smith before concluding:
"So it seems that you yourself, by the use of these narcotic drugs, have caused yourself to be put in a state where you have committed these offences."
It was open for counsel for the appellant to have requested the Judge to adjourn sentencing until the tests recommended by Dr Fellows‑Smith were carried out. He did not do so.
The Judge's last statement may dismiss to some degree the possibility of a prodromal psychosis. In my opinion, the appeal should be allowed on ground 2. Despite the unsatisfactory way in which psychiatric evidence was presented to the Judge, in the interests of justice the appellant should be given an opportunity to make submissions as to what should now be done.
It is open for this Court to remit for re‑sentencing: see R v Thompson (2000) 113 A Crim R 295; R v Wong (1995) 16 WAR 219.
For my part, I would require some persuading that there should be a remitter.
This Court can as readily determine the appropriate sentence: Criminal Code s 689(3).
The appellant should have leave to adduce further evidence bearing upon his psychiatric condition with liberty to the State to respond. Both parties may then make submissions on the appropriate sentence to be imposed.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: KYRIAKIDIS -v- THE QUEEN [2004] WASCA 33 (S)
CORAM: MALCOLM CJ
STEYTLER J
MCKECHNIE J
HEARD: 9 FEBRUARY, 12 MARCH & 24 MAY 2004
DELIVERED : 12 MARCH 2004
SUPPLEMENTARY
DECISION :11 JUNE 2004
FILE NO/S: CCA 148 of 2003
BETWEEN: DIMITRIOS KYRIAKIDIS
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WA
Coram :MILLER J
File Number : INS 50 of 2003
Catchwords:
Criminal law and procedure - Sentence - Effect of mental condition on sentence - Totality of criminal conduct - No new principles
Legislation:
Sentencing Legislation Amendment and Repeal Act 2003
Result:
Appellant resentenced to 4 years 5 months
Category: B
Representation:
Counsel:
Appellant: Mr L M Levy
Respondent: Mr M Mischin
Solicitors:
Appellant: Laurie Levy & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Camerson v The Queen (2002) 209 CLR 339
Kyriakidis v The Queen [2004] WASCA 33
R v Payne (2002) 131 A Crim R 432
R v White[2002] WASCA 112
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Case(s) also cited:
Nil
JUDGMENT OF THE COURT: On 28 August 2003 the appellant was sentenced to a total of 8½ years' imprisonment, with eligibility for parole, after he pleaded guilty to one count of going armed in public so as to cause terror and to another of armed robbery in company. That sentence was ordered to be served cumulatively upon a term of imprisonment then being served by the appellant. The appellant applied for leave to appeal against the sentences imposed upon him and, on 12 March 2004, leave was granted, the appeal allowed and the sentences imposed set aside: Kyriakidis v The Queen [2004] WASCA 33. The Court did not then re‑sentence the appellant but, instead, called for further submissions.
This last step was taken primarily because the Court was told by counsel for the appellant that additional psychiatric evidence in respect of the appellant was now available, or could be made available, and that this evidence would shed considerably more light on his condition than did the then somewhat unsatisfactory state of the medical evidence. Additional psychiatric evidence has now been obtained by way of a further report from Dr Fellows‑Smith.
The appellant's offending behaviour appears to have had its origin as far back as 2 July 2001 when his father died suddenly. The appellant, who was then 28 years old, began using stimulants in order to help him deal with his feelings of grief. This use became heavy, involving the intravenous use of amphetamines and also the ingestion of between 15 and 20 ecstasy tablets per week.
On 2 July 2002, the anniversary of his father's death, the appellant committed two offences, one of aggravated burglary and another of unlawful wounding in a so‑called "road‑rage" incident which followed a period of very heavy drug taking. On 19 May 2003 at the Joondalup Court of Petty Sessions the appellant received a sentence of 12 months' imprisonment with parole eligibility for the offence of unlawful wounding. On 19 September 2003 the appellant received a sentence of 18 months' imprisonment with parole eligibility for the offence of aggravated burglary. The sentencing Judge ordered that the sentence be served cumulatively on the sentences imposed by Miller J, the subject of this appeal.
In September 2002 the appellant consulted a psychiatrist, Professor Burvill, by whom he was treated as an out‑patient. He was prescribed the anti‑depressant drug Cipramil. After his second appointment with Professor Burvill, the appellant and his girlfriend, Melissa Caldwell, decided to take a fishing holiday in Karratha. It was in the course of that holiday that the offences, the subject of these proceedings, were committed on 19 October 2002. The offences the subject of the indictment were set out by Malcolm CJ and Steytler J in Kyriakidis at [7]:
"… The applicant and Caldwell, while driving along a stretch of highway near Shark Bay, noticed a parked car in which two young men were sleeping. It was then still early in the morning. The applicant told Caldwell to videotape his actions. She did so. He walked towards the car, looked inside, and then walked back towards where Caldwell was standing before saying, "Jim's World.com - episode madness". He then walked back to the car with a crowbar in his right hand and a canister of pepper spray in his left hand. He smashed the driver's side window with the crowbar. The two men hurriedly got out of the car. However, the applicant, who had gone round to the passenger side of the car, beat the passenger across the head and body with the crowbar, causing him to suffer five wounds requiring 60 stitches in all. The driver of the car, in an act of desperation, managed to wrest the crowbar from the applicant's hands. This caused the applicant to remove from his pocket a Glock pistol. He was, by then, some metres from the car. He walked back towards the car, fired the pistol in the air and then removed the car keys from the ignition. He walked away from the car before turning back, walking towards it once again, and demanding the return of the crowbar from the driver of the car, who was standing at the driver's side door. The driver returned the crowbar to the applicant who then left the scene in his car, together with Caldwell."
In this Court on 24 May 2004 the appellant pleaded guilty, pursuant to the provisions of the Sentencing Act s 32, to a series of offences which formed part of the criminal conduct of the 19 October 2002 or ancillary to it.
•Charge No CA981 of 2002 - unlawful assault of Andrew Martin Hennessey.
•Charge No CA983 of 2002 - unlawful wounding of John Freitas Pestana.
•Charge No CA984 of 2002 - wilful and unlawful damage to a window of a Mitsubishi Colt sedan Registration No. 8FT 563
•Charge No CA985 of 2002 - possession of a Glock semi‑automatic sub‑compact handgun, two magazines and 17, 9‑millimetre calibre rounds, whilst not the holder of a licence under the Firearms Act. The appellant also acknowledged two aggravating circumstances in that the firearm was a handgun and that a number or identification mark had been defaced or removed.
•Charge No CA896 of 2002 - possession of two large fireworks without a licence under the Explosives Regulations.
The charge of wilful damage to a window of the car related to the smashing of the car window with the crowbar as captured on the video‑tape. That offence was the effective commencement of the criminal conduct. The unlawful assault on Mr Hennessey, who was the driver of the vehicle, consisted of spraying pepper‑spray into his eyes and swinging the crowbar into the car window, narrowly missing Mr Hennessey's face.
The unlawful wounding of Mr Pestana occurred following the sustained attack by the appellant upon him with the crowbar. The attack resulted in wounds requiring some 60 stitches and associated pain and discomfort.
The appellant voluntarily disclosed the location of the firearm to police officers after his arrest.
The two fireworks were found in his possession on arrest.
The effect of these pleas of guilty, which we are prepared to treat as early pleas of guilty, is that, unlike Miller J, this Court now has before it the totality of the criminal conduct of 19 October 2002.
After the appellant's arrest on 22 October 2002, he was remanded to a psychiatric hospital for assessment. That ultimately resulted in the preparation of two psychiatric reports which were placed before the sentencing Judge.
The first of these was prepared by Dr Raymond Wu, a consultant psychiatrist, on 2 December 2002. The relevant parts are set out in Kyriakidis at [13] and [14].
It is also necessary to refer to Dr Fellows‑Smith's report dated 17 February 2003 and set out in Kyriakidis at [15], [16] and [17].
Although his recommendation for further investigations had not then been carried out, in answer to questions specifically asked of him, Dr Fellows‑Smith expressed the opinion that the appellant was suffering from temporal lobe epilepsy and said that it was likely that he was suffering from a combination of a drug‑induced paranoid psychosis and complex partial seizures at the time of the offences committed on 19 October 2002.
Following the judgment of this Court, Dr Fellows‑Smith reviewed the appellant on 3 April 2004. He also watched the video‑tape.
In his earlier report, Dr Fellows‑Smith had said that the appellant described himself as being paranoid and fearful that he was going to be attacked by people on the road. In his report dated 6 April 2004, Dr Fellows‑Smith says:
"On further examination on this point Mr Kyriakidis' anxiety is understandable based on the psychopathology that he was experiencing in the days preceding this offence. Furthermore although it is likely that his use of amphetamines greatly exacerbated his condition[,] his symptoms, in particular his 'fear of being attacked by people on the road,' were part of a recognisable psychiatric condition, temporal lobe epilepsy (TLE) that Mr Kyriakidis has had since early childhood."
After referring to a number of hallucinations reported by the appellant as occurring in different sense modalities, and to other aspects of the appellant's psychiatric history, Dr Fellows‑Smith said:
"When I examined him on the 3 April 2004 Mr Kyriakidis reported that he had been free of illicit substances since his apprehension eighteen months previously and that he had been treated with an anti depressant, an anti‑psychotic and an anti‑convulsant however, due to side effects he had been non‑compliant of his medication for six to eight months. Significantly the episodes of impaired reality testing had ceased when he was on his medication however he described himself as becoming lonely as he believed he had a special access to the spirit worlds [,] in particular his deceased father during these episodes. Having ceased his anti‑convulsant he returned to having approximately two episodes a week of TLE lasting up to thirty minutes occurring on waking or when stressed."
Dr Fellows‑Smith also said:
"Mr Kyriakidis' explanation of his motivation for the offence was that it was directly related to his psychological state. In the video he is seen dressed inappropriately for the weather conditions, pacing around in an odd way. He starts by addressing the camera by saying 'Jim's World.com Episode One. Madness.' However instead of appearing frightened of being attacked by people on the road as he states [,] it is he who attacks the occupants of a car with a crowbar and pepper spray. Significantly he drops the crowbar and in quixotic fashion it appears that he is then being assailed by two men, one with a knife and the other with the crowbar, thus acting out his internal psychotic state. It is then that he starts to play out the role of 'hero' in the drama by making noises reminiscent of Bruce Lee in a Kung Fu film and by producing a firearm, which he discharges into the air. He does not appear to point the gun at the two men[,] however he does retrieve the crowbar (his property) from one of the men. Interestingly, he does not take the knife from the other man. Rather he takes the car keys presumably to stop them pursuing him in his get away.
Again somewhat ironically Mr Kyriakidis views his imprisonment as a good thing in many ways. He expressed what I thought was genuine remorse for the men he had terrorised at Shark Bay. Thus there was little evidence of the antisocial traits that one would attribute to such an act. Mr Kyriakidis stated that he found the prison environment as calming, allowing him to lead a more ordered life. He had returned to his year twelve studies, regularly exercised and ate well. He continued to see his partner Melissa now aged nineteen years old and their daughter Anastasia age one year on regular visits."
Under the heading "Opinion", Dr Fellows‑Smith concluded:
"I understand that an EEG has been performed and that it was normal. This is not inconsistent with a diagnosis of temporal lobe epilepsy as the condition is episodic and might better be detected by a sleep deprived EEG. Clinical evidence based on Mr Kyriakidis' subjective account and my own observations including examination of the video evidence at the time of the offence support the opinion that Mr Kyriakidis has since childhood been suffering from temporal lobe epilepsy and that his offending occurred in the context of his psychiatric condition that was exacerbated by drug abuse.
The drug‑induced component of his psychosis appears to have resolved with abstinence from illicit drug use and the prescribing of anti‑psychotic medication. He has however relapsed with a return of temporal lobe auras with the cessation of anti‑convulsant therapy over the past six to eight months. As his non‑compliance with medication is in part due to his lack of psychological understanding into his condition this suggests that there remains a degree of dangerousness in his untreated state. Given the risk of further violent offending I would advocate that ongoing specialist supervision and treatment is necessary should he be released from gaol."
There are other matters which bear upon sentence.
The appellant pleaded guilty to the offence of going armed in public so as to cause terror at the first reasonable opportunity. While his plea of guilty to the offence of armed robbery in company came later, it was still a relatively early plea. The offences to which the appellant pleaded guilty on 24 May 2004, as we have said, can be regarded as early pleas. They were indicated in the Court of Petty Sessions.
The range of offences which comprise the criminal conduct on 19 October 2002 amounts to serious criminal conduct. The sentencing Judge impermissibly took into account some offences which were not before him. They are now before this Court. We would, with respect, agree with Miller J's characterisation as "a senseless unbelievable act of violence".
Subject to the effect of the appellant's psychiatric condition, a sentence for this criminal conduct would ordinarily contain a strong deterrent aspect.
The appellant was 29 years old at the time of the commission of these offences. He has had previous convictions for common assault and for assault occasioning bodily harm (on 2 February 1994 and 22 July 1997 respectively). He had not previously been sentenced to a period of imprisonment.
While in prison, the appellant has made some attempts to rehabilitate himself. He has abstained from the use of illicit substances while in custody and has returned to his Year 12 studies. On the other hand, it is disturbing that the appellant had been non‑compliant with his medication for some six to eight months when seen by Dr Fellows‑Smith on 3 April 2004. We were informed that the appellant has submitted, on request, to see the prison psychiatrist. The prison has been given a copy of Dr Fellows‑Smith's report. The appellant is undergoing a 3 month trial of Epilim.
The appellant has been in custody since 6 November 2002. For a period of 15 days prior to that he was remanded on a hospital order for psychiatric assessment. By 19 May 2003 (the date of the unlawful wounding and aggravated burglary convictions) he had served approximately 7 months' imprisonment on remand in respect of the charges of armed robbery and going armed in public so as to cause terror.
The appellant's co‑offender was sentenced to a period of 20 months' imprisonment in respect of her part in these offences. However, she was then only 17 years of age and was dealt with as a juvenile. We agree with Miller J that no issue of parity with her sentence can arise.
Weighed against the undoubted seriousness of the offences are mitigating circumstances in the form of the appellant's pleas of guilty, his psychiatric condition, his reasonable antecedents and his efforts to rehabilitate himself.
As to his pleas of guilty, these demonstrate a willingness to facilitate the course of justice and an acceptance of responsibility: Camerson v The Queen (2002) 209 CLR 339. His pleas are also indicative of some remorse. Dr Fellows‑Smith was of opinion that the appellant's remorse for those he terrorised was genuine.
The appellant's psychiatric illness or psychological condition raises difficult questions. Dr Fellows‑Smith is of opinion that the appellant suffers from temporal lobe epilepsy. He maintains this opinion despite the results of an EEG which did not reveal any abnormality.
Dr Fellows‑Smith's opinion was not based on the contents of the video‑tape. However, his observations of the video‑tape reinforced his opinion. In significant respects his observations are wrong. It is not apparent from the video that the appellant dropped the crowbar. Rather, the crowbar appears to have been wrested from the appellant's hands by the driver of the car in an act of desperation. Nor was the appellant ever assailed by his two victims. The reverse was only ever the case. Thirdly, neither of the appellant's victims had a knife. While it may be that the reference by Dr Fellows‑Smith to "quixotic fashion" suggests that this was how the appellant saw what was happening, there seems to be no evidence to support that proposition.
Dr Fellows‑Smith's observations on the video must be rejected. However, there is no evidence to reject his diagnosis of frontal lobe epilepsy, formed before he viewed the video, and we accept it. That diagnosis is reinforced by the fact that episodes of impaired reality testing ceased while the appellant was on his medication but returned when he stopped taking it. Dr Wu referred to the fact that the appellant's longstanding symptoms might indicate "a prodromal syndrome" indicating a psychosis and that the appellant had been harbouring a prodromal psychosis during his adolescent years. Dr Wu recommended that the appellant should continue treatment with anti‑psychotic medication.
In our opinion, the appellant's psychiatric illness is a significant mitigating factor notwithstanding that it must also be accepted, having regard for the evidence of Dr Wu and Dr Fellows‑Smith, that the appellant's use of amphetamines greatly exacerbated his condition. That is so because the appellant's mental illness was, on the evidence of Dr Fellows‑Smith (even setting to one side his observations based upon the video evidence), a contributing factor to the commission of his offences,
Steytler J discussed the dilemma faced by a court in circumstances in which, because criminal conduct was voluntary and intentional, the law holds the offender responsible for his acts, but those acts were contributed to by a mental illness which affected the judgment of the offender: see R v Payne (2002) 131 A Crim R 432 at 442 ‑ 444. It is unnecessary to reproduce that part of the judgment but we adopt the principles therein set out to determine the proper sentence here.
The prosecution argues that the mental disturbance does not explain the motivation and trigger for this offending conduct. It was submitted that many people have temporal lobe epilepsy and do not resort to violence. The answer to that submission is in the evidence from Dr Fellows‑Smith in his report dated 6 April 2004 to which we have referred.
There is considerable room for considerations of general and personal deterrence (particularly having regard for the significant contribution by way of the appellant's drug taking) even though those considerations are lessened, at least to some degree, by the appellant's mental illness. Because the appellant exacerbated his mental condition by his drug abuse, less weight can be given to that condition although it is still a mitigatory factor reducing the appellant's moral culpability to some degree.
The appellant's age and antecedents also afford some mitigation.
We have noted the early pleas of guilty and give some regard to efforts at rehabilitation.
It is important to bear in mind the total sentence. In Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Anderson J said at 6:
"…it is well settled that special considerations arise for a sentencing court dealing with a defendant convicted of multiple offences even where more than one sentencing court is involved: Mill v R (1988) 166 CLR 59; R v Todd (1982) 2 NSWLR 517. The general rule that individual crimes must be punished proportionately to their gravity is qualified by the principle that consecutive sentences passed for individual crimes must not be allowed to result in an aggregate sentence which is inappropriately long, having regard for the course of criminal conduct viewed as a whole…"
The fact that the offences arose out of the one criminal enterprise must also be considered.
In R v White [2002] WASCA 112 the Court recognised that [26]:
"There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognised and that distinct acts may in the circumstances attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing Judge's discretion."
Resentence
In resentencing the appellant we apply the provisions of the Sentencing Legislation Amendment and Repeal Act 2003 which have the effect of reducing, by one‑third, a sentence calculated in accordance with the law before the amendment. We deduct 7 months from the sentence to be imposed for armed robbery to take express account of the time spent by the appellant in custody not applicable to the service of a sentence for any other offence.
We make a parole eligibility order for each of the terms of imprisonment which we now impose as follows:
•Count 1 - going armed to cause terror: 8 months.
•Count 2 - armed robbery: 3 years 5 months
•Charge CA981/02 – unlawful assault: 6 months
•Charge CA983/02 - unlawful wounding: 1 year
•Charge CA984/02 - wilful and unlawful damage: 4 months
•Charge CA985/02 - possession of unlicensed firearm: 4 months
•Charge CA986/02 - possession of fireworks: fine $100
We direct that sentences on counts 1 and 2 be served concurrently with each other and with the sentences on charges CA981/02, CA984/02 and CA985/02 but cumulatively upon the sentence on charge CA983/02, being that of unlawful wounding.
The total sentence is one of 4 years and 5 months' imprisonment. The sentences are to be served cumulatively on the sentence for aggravated burglary imposed on 19 September 2002.
We order that the Glock handgun, magazines and ammunition, and the two fireworks, be forfeited to the State.
8
1