Orchard v The Queen
[2004] WASCA 23
•3 MARCH 2004
ORCHARD -v- THE QUEEN [2004] WASCA 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 23 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:84/2003 | 3 FEBRUARY 2004 | |
| Coram: | MALCOLM CJ STEYTLER J WHEELER J | 3/03/04 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal against sentence granted, Appeal allowed, Sentence reduced from 9 years' imprisonment without eligibility for parole to , 6 years' imprisonment with eligibility for parole | ||
| D | |||
| PDF Version |
| Parties: | JUSTIN ORCHARD THE QUEEN |
Catchwords: | Criminal law and procedure Appeal against sentence Effect of the drug Interferon on applicant's reasoning process Whether moral culpability of applicant lessened Effect of applicant's improved response to community based orders on eligibility for parole Effect of applicant's mental condition at time of offending on eligibility for parole |
Legislation: | Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 29, Sch 2 |
Case References: | Lauritsen v The Queen (2000) 22 WAR 442 R v Payne (2002) 131 A Crim R 432 R v Tsiaras [1996] 1 VR 398 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ORCHARD -v- THE QUEEN [2004] WASCA 23 CORAM : MALCOLM CJ
- STEYTLER J
WHEELER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Appeal against sentence - Effect of the drug Interferon on applicant's reasoning process - Whether moral culpability of applicant lessened - Effect of applicant's improved response to community based orders on eligibility for parole - Effect of applicant's mental condition at time of offending on eligibility for parole
Legislation:
Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 29, Sch 2
(Page 2)
Result:
Leave to appeal against sentence granted
Appeal allowed
Sentence reduced from 9 years' imprisonment without eligibility for parole to 6 years' imprisonment with eligibility for parole
Category: D
Representation:
Counsel:
Applicant : Mr R D Young
Respondent : Mr D Dempster
Solicitors:
Applicant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lauritsen v The Queen (2000) 22 WAR 442
R v Payne (2002) 131 A Crim R 432
R v Tsiaras [1996] 1 VR 398
Case(s) also cited:
Nil
(Page 3)
1 JUDGMENT OF THE COURT: The applicant has applied for leave to appeal against the sentences imposed upon him in respect of his convictions on one count of stealing a motor vehicle and two counts of armed robbery while in company. He was sentenced to serve a total of 14 years' imprisonment.
2 On 21 February 2003 the applicant and his co-accused, Dennis Biggers, stole a Ford Fairlane motor vehicle from the carpark at the Bentley Plaza shopping centre on Albany Highway in Bentley. They did so by smashing the rear driver's side window in order to gain entry to the car and then, having done so, by using the car's dipstick in order to start the engine.
3 Later that morning the two men drove the stolen car to the National Australia Bank at 64 Attfield Street in Maddington. They entered the bank wearing balaclavas. Each of them was armed with a sawn-off .22 calibre rifle. They pointed the firearms at the bank staff and demanded money from the tellers. They threatened the bank staff with violence if they did not comply with their demands. They obtained approximately $32,000 in cash and, after placing the money in a sports bag, left the bank. However, while they were leaving the bank, a dye-bomb which the bank staff had inserted in the money exploded, contaminating the cash with red dye. None of the money has been recovered.
4 Then, on 26 March 2003, the two men returned to the Maddington branch of the National Australia Bank. Once again they entered the bank wearing balaclavas. On this occasion only Biggers was armed. As before, he carried off a sawn-off .22 calibre rifle. Biggers pointed the firearm at bank staff while the applicant demanded money. Both of them threatened the bank staff with violence if they did not comply with their demands. The two men left with approximately $4000 in cash but, once again, the bank staff had inserted a dye-bomb which exploded, contaminating the money with red dye. The money was recovered after the two men had been arrested.
5 The applicant pleaded guilty in respect of all three offences at the first available opportunity.
6 A pre-sentence report was prepared in respect of the applicant by a community corrections officer on 28 May 2003. That report was placed before the sentencing Judge. The report, and the applicant's criminal
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- record, revealed three things which were of importance to the sentencing process.
7 The first is that the applicant's criminal record is particularly bad. On 14 October 1989 he was sentenced to a term of 10 years' imprisonment in respect of five counts of robbery whilst armed and in company. While serving that term of imprisonment he assaulted a senior prison officer at Albany Regional Prison and was sentenced to a further 3 months' imprisonment. On 2 June 1999 he was sentenced to a total of 9 years' imprisonment in respect of three counts of armed robbery, four counts of receiving stolen property and various counts involving motor vehicle offences. He also has an interstate record encompassing such matters as common assault, possessing a shortened firearm and the use of an offensive weapon with intent to commit an indictable offence. The pre-sentence report records that misuse of illicit substances was a causal factor in relation to the applicant's antisocial behaviour.
8 The second matter of significance is that the applicant's response to community based orders has been somewhat patchy. On 4 September 1993 he was released to community based work release with a special condition that he should attend random urine testing as directed. The report records that his response to supervision, testing and community work was erratic and that the programme was suspended on 1 December 1993. The suspension was lifted on 16 December 1993 and, for a time, the applicant complied with his obligations before being released to parole on 3 March 1994. Then, on 29 August 1994 he was arrested on a charge of conspiracy to commit armed robbery and his parole order was suspended by the Parole Board on 21 October 1994. After that charge was dismissed he was again released to State parole on 24 February 1995. After serving the sentences imposed upon him in June 1999, he was released to parole on 21 September 2002. His response was generally favourable and he appeared to be making good progress until he was remanded in custody in respect of the current offences on 6 May 2003.
9 The third matter of significance is that the report reveals that the applicant suffered from hepatitis C and that he had been prescribed medication, in the form of the drug Interferon, to treat this. He said that this medication caused him a number of side effects, including poor judgment, lack of memory, paranoia, loss of appetite and weight, delusions and depression. The report also records that its author spoke to the applicant's "hepatitis co-ordinator from Royal Perth Hospital" who said that "the medication could have made … [the applicant] weak or may have resulted in a personality change whereby he could have become
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- more irritable and angry than usual". The co-ordinator also said that there was a psychotic component related to the medication, which could trigger episodes of anxiety, paranoia and depression if the applicant was prone to those symptoms. Finally, the report reveals that its author was informed by the applicant's brother that the applicant had undergone a personality change which, the brother said, was due to his use of the drug Interferon. The brother said that the applicant had broken down physically, mentally and emotionally. The applicant's mother, and the applicant himself, both spoke of similar personality changes in letters which they wrote to the sentencing Judge.
10 It was also brought to the attention of the sentencing Judge that, at the time of sentencing, the applicant "owes 1655 breach of parole days" in respect of the periods of imprisonment imposed upon him on 2 June 1999. The transcript reveals that, in the course of an exchange between the sentencing Judge and the then counsel for the applicant, the sentencing Judge said, in this respect, that the applicant "owes the Parole Board so much that if I were to not make a parole order he would in any event be able to be released on parole in due course".
11 His Honour's sentencing remarks were brief. After referring to the offences committed by the applicant, to the applicant's age (he was then 33 years old) and to the applicant's prior criminal record, he said:
"I have read the pre-sentence report and also a psychological report which was obtained in New South Wales in 1998. It appears you have had a long history of drug dependence but I accept that you have taken positive steps over the years to deal with that and that is to your credit. I have also read today your letter and the letter of your mother who must truly despair of you.
Your counsel has made much of the Interferon and the fact that it has affected you. I note that your brother and your mother both report a personality change which you have undergone in relation to it. If you were a first offender more could be made of this, but the fact is that you are well versed in armed robberies and prone to turn to armed robbery as a means of solving immediate problems. The objective facts do indicate clearly enough and you accept responsibility, which is to your credit, that you were a willing participant in each of them.
(Page 6)
- As I say, in my view the appropriate starting point for each armed robbery is a sentence of 12 years. I will, however, make a reduction for that for the plea of guilty in the order of 25 per cent, and in your case I will make a specific reduction further because of what I think is some of the effect of the medication upon you and also to overcome any sense of grievance that you might have if you received precisely the same sentence as the person who has in fact committed three armed robberies, notwithstanding the logic of that."
12 The last reference was one to the co-accused, Biggers, who had committed a third armed robbery on his own. Biggers had been sentenced to a term of 2 years' imprisonment in respect of the theft of the motor vehicle and to a term of 8 years' imprisonment in respect of each of the armed robberies committed by him. In his case the sentences imposed in respect of the car theft and two of the armed robberies were ordered to be served concurrently with each other but cumulatively upon that imposed in respect of the third armed robbery, giving rise to a total sentence of 16 years' imprisonment.
13 After referring to the sentences which had been imposed in respect of Biggers, the sentencing Judge went on to sentence the applicant to a period of 2 years' imprisonment in respect of the theft of the motor vehicle and to terms of 7 years' imprisonment in respect of each of the armed robberies. He directed that the sentences imposed on the first two counts be served concurrently with each other but cumulatively upon that imposed in respect of the second armed robbery, making up a total of 14 years' imprisonment. He went on to say that there was "nothing positive to point to parole and everything against it" and that he declined to make a parole eligibility order.
14 There are three grounds of appeal. Ground 1 challenges the total sentence of 14 years' imprisonment upon the basis that it is manifestly excessive, more particularly given the effect on the applicant of the Interferon. Grounds 2 and 3 challenge the sentencing Judge's refusal to declare the applicant to be eligible for parole. Those grounds contend that his Honour was in error in assuming that the applicant would, in any event, be released on parole because of the 1655 days "owed" by him and in concluding that there was nothing positive to point towards the appropriateness of a parole order.
15 With the consent of the respondent, new evidence (the respondent was prepared to regard it as fresh evidence) was placed before us as
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- regards the potential effect of the Interferon on the applicant. This took the form of a report dated 3 February 2004 prepared by Dr Steve Patchett, the acting director of the State Forensic Mental Health Service. In his report Dr Patchett says that neuropsychiatric complications of Interferon treatment were first recognised in the early eighties and now represent one of the most disturbing adverse effects of the drug. He said, in this respect, that:
"The acute neuropsychological disturbances take the form of a flu like syndrome with headache, fatigue and weakness, drowsiness, somnolence, subtle impairment of memory or concentration and lack of initiative. Sub acute or chronic neuropsychiatric manifestations are more typically identified after several weeks of treatment and among the most frequent treatment limiting toxicities. They start with non specific cognitive impairment and go on to psychomotor slowing, hypersomnia, loss of interest, depression or mania, irritability, agitation, delirium, paranoia, aggressiveness and homicidal impulses …".
"I am of the view that … [the applicant] did indeed suffer a treatment emergent neuropsychiatric syndrome as a result of Interferon therapy. In his case it was characterised by neuropsychological changes including subtle cognitive impairment, depressive disorder and paranoia. Evidence for that is the development of characteristic systems 2 to 4 weeks after commencing Interferon with significant weight loss and return to a pre-morbid mental state following cessation of the drug in April 2003.
…
With respect to culpability, it is of course difficult to make definitive judgments on retrospect without the benefit of a psychiatric examination at the time. It is my belief however that … [the applicant] was suffering from a neuropsychiatric syndrome exhibiting the afore mentioned symptoms and in such a state, I am of the view that he would be less able to exercise logical reasoning processes, less able to make rational judgments and choices and possibly more suggestible as a consequence. I am of the view that one could make a
(Page 8)
- reasonable argument that … [the applicant's] reasoning processes would have been impaired at the time of commission of the offences with obvious implications for his criminal responsibility at the time."
17 It is apparent from the primary Judge's sentencing remarks that his Honour gave little weight to the effect, on the applicant, of the Interferon. In the extract from his judgment quoted above he makes it plain that, in circumstances in which the applicant had a history of committing armed robberies, not a great deal could be made of the effects of the drug in the context of these offences. It is also apparent that his Honour made only a very limited reduction in the sentence imposed by him on account of the effects of the Interferon. He reduced the 12-year sentence which he would have imposed for each robbery by an amount in the order of 25 per cent on account of the plea of guilty and then allowed a further reduction of only about 1 year on account of the effect of the Interferon and also because of the need to overcome any grievance which the applicant might have if he received the same sentence as Biggers.
18 In our respectful opinion, that reduction was too low. There was evidence before the sentencing Judge, if in a somewhat unsatisfactory form, as regards the effect of the Interferon on the applicant. While it is true, as the sentencing Judge said, that the applicant had a history of committing crimes of the kind under consideration, that did not mean that the effect of the Interferon on the applicant's reasoning processes and general mental state, as described by him, his brother and his mother, and as described in the pre-sentence report, did not contribute to his commission of these offences. Rather, it seems to us to be probable, on the strength of that evidence, that it did. The new evidence of Dr Patchett (which, as we have said, was led with the consent of the prosecution) seems to us also to support and, indeed, to reinforce that conclusion. We have mentioned that Dr Patchett has said that, because of his ingestion of the Interferon, the applicant was less able to exercise logical reasoning processes and to make rational judgments and choices. That necessarily reduced the applicant's moral culpability, albeit not, of course, his legal responsibility. The law accepts that, where a mental disorder has contributed to the commission of an offence, the moral culpability of the offender will be lessened (and it may be appropriate to attach less significance to either or both of general and personal deterrence) and that that should, ordinarily at least, be reflected in the penalty imposed: R v Tsiaras [1996] 1 VR 398 at 400; Lauritsen v The Queen (2000) 22 WAR 442 at 456 - 459; and R v Payne (2002) 131 A Crim R 432 at [40], [43] - [48] and [67].
(Page 9)
19 In this case, the Interferon did not only impair the applicant's reasoning processes. Dr Patchett said that it may also have made the applicant "more suggestible". This may be significant as the applicant said, in the course of the interview conducted for the purposes of the pre-sentence report, that it was his co-offender who had suggested that he join in the offences. He also said that he was "pushed" into committing the second robbery.
20 In these circumstances it seems to us that the application for leave to appeal should be acceded to, the appeal allowed and the sentences of imprisonment imposed by the sentencing Judge set aside.
21 In the light of all of the evidence now available, it seems to us that, under the regime in force at the time of sentencing, it would have been appropriate to sentence the applicant to a term of 18 months' imprisonment in respect of the car theft and to one of 6 years' imprisonment in respect of each of the armed robberies. Having regard for the totality principle, it would also have been appropriate to structure those sentences so as to give rise to a total period of 9 years' imprisonment.
22 Because the applicant must now be resentenced under the new sentencing regime which followed the coming into force of the Sentencing Legislation Amendment and Repeal Act 2003 and the Sentence Administration Act 2003, by virtue of s 29 of the first-mentioned Act, read with Sch 2 thereof, each of the sentences which we would have imposed is required to be reduced by one third. In those circumstances, it seems to us that the applicant should be sentenced to a period of 12 months' imprisonment in respect of count 1 on the indictment (the car theft) and to a period of 4 years' imprisonment in respect of each of the armed robberies. Also, because of the totality considerations to which we have referred, it seems to us that the sentences imposed in respect of counts 1 and 2 should be ordered to be served concurrently with each other and that the sentence imposed in respect of count 3 should be ordered to be served partly concurrently with that imposed on count 2, so that the term of 4 years' imprisonment imposed in respect of the second armed robbery should commence after the applicant has served 2 years' imprisonment in respect of the sentence imposed on count 2, giving rise to a total period of 6 years' imprisonment.
23 That leaves the question of parole.
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24 As counsel for the respondent conceded, the sentencing Judge was in error in his assumption that, even if he was not to make a parole order, the applicant would be able to be released on parole in due course. Because his Honour made no order as to whether or not the total sentence of 14 years' imprisonment imposed by him was to be served concurrently with or cumulatively on the breach of parole days owed by the applicant, the sentence ran concurrently with those days (s 88(1) of the Sentencing Act), with the result that he would, at the end of that sentence, have been left without the prospect of a supervised release.
25 More importantly, perhaps, given that the sentencing Judge also considered that there was "nothing positive to point to parole", it seems to us that the evidence of the applicant's mental condition at the time of his offending does bear upon the question of whether or not he should be declared eligible for parole. We have said above that, while the applicant's response to community based orders has been somewhat patchy, he appeared to be making good progress after his release on parole on 21 September 2002 until he was remanded in custody in respect of the current offences on 6 May 2003. If, as we have accepted to be the case, the applicant's reasoning processes and suggestibility were impaired by his ingestion of the Interferon in such a way as to contribute to the commission of the current offences, then it would, in our opinion, be preferable to ensure that the applicant's release into the community is supervised in circumstances in which there will then be a better prospect of an improved response to parole by him, given that he will by then have completed (if he has not already) his course of medication. We will consequently declare him to be eligible for parole in respect of each of the sentences imposed.
26 This will have the result that the applicant will be eligible for release on parole after serving a total of 4 years' imprisonment. We should add that the sentences imposed in respect of counts 1 and 2 should be directed to take effect as from 24 April 2003, being the date upon which the applicant was first taken into custody.
27 The upshot of all of this is that we would grant to the applicant leave to appeal, allow the appeal and substitute for the sentences imposed by the sentencing Judge a sentence of 12 months' imprisonment in respect of the car theft (count 1) and sentences of 4 years' imprisonment in respect of each of the armed robberies (counts 2 and 3), with the sentences imposed on counts 1 and 2 to be served concurrently with each other and that imposed on count 3 to be served partly concurrently with that on count 2, so as to commence after the applicant has served 2 years of the sentence
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- of imprisonment imposed in respect of that count. The sentences imposed in respect of counts 1 and 2 are to take effect from 24 April 2003. The applicant is declared to be eligible for parole in respect of all three sentences.
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