R v Basawa

[2001] QCA 222

[2001] QCA 222

COURT OF APPEAL

McMURDO P
THOMAS JA
ATKINSON J

CA No 81 of 2001

THE QUEEN

v.

NEIL ISHWAR BASAWA  Appellant

BRISBANE

..DATE 05/06/2001

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty to one count of armed robbery in the District Court at Southport on 20 March 2001.  He was sentenced to three years imprisonment suspended after 12 months with an operational period of three years.  A declaration was made as to the 130 days already spent in pre-sentence custody.  The applicant claims that the sentence was manifestly excessive and that the primary Judge erred in not taking into account the rehabilitative factors in this case. 

Whilst the offence of armed robbery is extremely serious this was one of the less serious examples of that type of offence. The female complainant was walking with another female and a two month old child in a stroller through the car park of a service station at Burleigh Heads at 7.50 p.m.  She was carrying a six-pack of beer.  The applicant approached her and asked her for a beer.  The complainant politely refused his request and walked on.  The applicant then approached the complainant from behind, produced a pocket knife which he held at waist level with the blade extended and demanded a beer.  Understandably the complainant then gave him a bottle of beer. The applicant then left.  The complainant contacted police who located the applicant shortly afterwards in a nearby garden bed with a half consumed bottle of beer and a pocket knife with a nine centimetre retractable blade.

The applicant told police he merely showed the complainant the hilt of the knife without pulling it out of his pocket but his counsel said he took the knife out of his pocket and held it at his side.  It is not entirely clear whether or not the blade was extended.  The learned sentencing Judge merely noted in his sentencing remarks, "You were in possession of a knife which you showed to the complainant" and it seems he was sentenced on that basis.  In any case there is no suggestion that the applicant lunged at or threatened the victim with the knife beyond showing it to her. 

Shortly before the offence he smoked some hashish and felt he was suffering a schizophrenic episode which he believed would be calmed by drinking beer. 

The applicant was 23 at the time of the offence and 24 at sentence.  He had a significant criminal history for drug- related offences, traffic offences and minor property offences for which he received initially community based orders including some involving drug testing and psychiatric, medical and psychological treatment.  Before long his persistent offending resulted in short periods of imprisonment.  Most significantly in September 1999 he was convicted in Victoria of the offence of robbery and sentenced to two months imprisonment suspended for 12 months, a sentence which suggests it too must have been a less serious example of that offence.

The applicant committed some further relatively minor offences during the operational period and as a consequence the operational period was extended for two years from 31 January 2000.   The result is that this offence occurred during that operational period.  It is also concerning that he was convicted of possession of a knife in September 2000.
I note he was dealt with in the Coolangatta Magistrates Court for drug offences only 12 days before the commission of this offence. 

The applicant pleaded guilty at an early stage by way of an ex-officio indictment.  He was born in Melbourne but his parents live in the USA where his father is a mathematics lecturer.  The applicant completed high school and obtained excellent grades at university but left when he was diagnosed with schizophrenia in 1997.  His criminal history postdates this point in his life.  He was unemployed and virtually homeless at the time of his arrest. 

Whilst incarcerated prior to his sentence he was receiving anti-psychotic medication.  A report from psychiatrist
Dr Paul White was tendered at sentence on the applicant's behalf.  Dr White opined that the applicant's capacity to control his actions when he committed this offence was impaired because of his psychiatric illness.  He noted:

"It would appear to me that Mr Basawa's future     well-being and the safety of the community depends on adequate treatment and management of his schizophrenia and comorbid drug abuse.  If this is achieved I would think that recidivism of the nature of the current alleged offence is unlikely. 

May I respectfully suggest to the Court that a continued period of custody may be prejudicial to Mr Basawa's well-being.  His illness is currently well treated and controlled and he is abstinent from drugs in the Arthur Gorrie Correctional Centre.  The greater challenge to Mr Basawa is to find skills to live in the community. 

May I respectfully suggest that a period of non-custodial sentence where an Intensive Correctional Order is applied is likely to be of benefit.  If the Court is so disposed may I also respectfully suggest that conditions requiring Mr Basawa to refrain from all alcohol and illicit drugs and submission to random urine test/drug testing by the relevant authorities are applied.  He should also be required to attend a community mental health service on a regular basis."

The applicant, through his counsel, below submitted that on his release from custody he would live at Buranda and obtain a job as a labourer which was available to him.  He hoped to further his studies at the University of Queensland majoring in chemistry with a view to eventually becoming a pharmacist, perhaps, it should be noted, not the wisest career choice in the light of his history of drug abuse.

Whilst recognising the seriousness of any offence of armed robbery and the significance of the applicant's prior criminal history I am finally persuaded that the learned sentencing Judge erred, in the unique circumstances of this case, in imposing a three year sentence suspended after 12 months.  Such a sentence gives insufficient recognition to the important factor of rehabilitation and is not in the applicant's interests nor the community's interests. 

There were a number of mitigating factors in the applicant's favour; the circumstances of the offence, his plea of guilty, co-operation with the authorities and his youth.  In
the unusual circumstances of this case it would have been appropriate had the primary Judge imposed either an Intensive Correction Order or a period of six months imprisonment followed by three years probation especially as the applicant had by that time spent 138 days in custody. 

The applicant has now spent over seven months in custody so that an Intensive Correctional Order is, in my view, no longer appropriate.

A suspended sentence will not provide this applicant with any supervision for his psychiatric illness and his drug abuse when he is released into the community, something which is in both the applicant's and the community's interest.  To release the applicant with his myriad of complex problems into the community without supervision is to invite disaster, not just for him but also for the community. 

I would grant the application for leave to appeal against sentence, allow the appeal, delete the sentence imposed below and instead convict the applicant and sentence him to six months imprisonment and three years probation on the terms and conditions set out in s.93 Penalties and Sentences Act 1992 together with the following special conditions:

1. That he refrain from partaking in all alcohol and illegal drugs.

1. That he submit to random urine and other drug testing as directed by his Corrective Services Officer.

1. That he attend regularly at a Community Health Service as directed by his Corrective Services Officer.

I would also declare that the period of 215 days spent in custody from 5 October 2000 until 14 December 2000 and from 11 January 2001 until today be part of the sentence already served. 

Mr Moynihan, I should have asked you before I got this far, do you have his consent to such an order?

MR MOYNIHAN:  I have consent, your Honour, in relation to probation.

THE PRESIDENT:  Yes, well I note that.  They are the orders
that I would propose.

THOMAS JA:  I agree.

ATKINSON J:  I agree.  In this case, in my view, the sentence was manifestly excessive, in particular the period of suspension of two years imprisonment suspended for an operational period of three years was, in my view, excessive given that the applicant would have no access to the benefit of the supervision of a community order during that period.  I agree with the orders proposed by the President.

THE PRESIDENT:  The orders are as I have proposed.

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