R v Broadbent
[2009] VSCA 320
•23 December 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 922 of 2007
| THE QUEEN |
| v |
| NATHAN JONATHAN BROADBENT |
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JUDGES: | MAXWELL P and BUCHANAN JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 October 2009 | |
DATE OF JUDGMENT: | 23 December 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 320 | |
JUDGMENT APPEALED FROM: | R v Broadbent (Unreported, County Court of Victoria, Judge Hampel, 30 November 2007) | |
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CRIMINAL LAW – Appeal – Sentence – Two counts of armed robbery – Mental illness – Offender unable to appreciate effect on victims – Reduced culpability - Subsequent remorse – Offender regretted effect of conduct on victims – Whether ‘qualified’ acceptance of remorse justified – Community protection – Offender’s condition controlled by medication – Whether risk to community – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms G Cannon | Craig Hyland, Solicitor for Public Prosecutions |
For the Appellant | Mr C Boyce | Brugman Mellas |
MAXWELL P
BUCHANAN JA:
This is an appeal against sentence imposed in the County Court. The appellant (‘Broadbent’) pleaded guilty to two counts of armed robbery. He was sentenced as set out below.
| COUNT | OFFENCE | MAXIMUM | SENTENCE | CUMULATION |
| 1 | Armed robbery | 25y | 5y | Fully concurrent |
| 2 | Armed robbery | 25y | 5y | Fully concurrent |
| Total effective sentence: 5y Non-parole period: 3y | ||||
Details of the offending
The armed robbery took place on 19 March 2007, at a pharmacy. Broadbent, who had spent the night in a park nearby, watched the pharmacist and two young female employees as they opened the pharmacy at around 8:45 am. After the security roller door had been unlocked and lowered again (but not locked), Broadbent entered the premises, armed with two knives.
Broadbent grabbed one of the female employees (‘H’). He held a knife to her throat and threatened the others. He then demanded that the pharmacist open the drug safe and place all the narcotic drugs in a backpack he had brought with him. Broadbent continued to threaten the staff. In particular, he threatened to hurt H, whom he was still holding. Once the drugs had been placed in the backpack, Broadbent demanded money from the register. (These events constitute the first count of armed robbery.)
Broadbent then demanded the pharmacist’s wallet. The pharmacist replied that his credit cards would be of no use. Broadbent then demanded the pharmacist’s licence, which he handed over. (These facts constitute the second count of armed robbery.)
Broadbent held H throughout the robbery. Just before he fled, he held the knife even more firmly against her throat and threatened the staff if they tried to prevent or hamper his escape.
Broadbent was born in January 1986. He was 21 at the time of the offences. He had no prior convictions. He had appeared in court (Children’s Court and Magistrates’ Court) on three prior occasions, on a total of nine charges. On each occasion he was sentenced to be released on a bond or probation.
Mental illness and remorse
Grounds 2, 3 and 5 were argued together. These grounds contended (respectively) that the judge had erred:
·in finding that Broadbent’s lack of capacity to consider the effect on his victims, and the profound effect on his victims, was ‘something that needed stern condemnation and punishment’;
·in her assessment of Broadbent’s level of remorse; and
·by failing properly to take into account the evidence of his mental illness.
Defence counsel on the plea informed the judge that Broadbent had been diagnosed with paranoid schizophrenia. He tendered a copy of a treatment plan prepared under s 19A of the Mental Health Act 1986 (Vic), which confirmed that diagnosis and stated that Broadbent was (or had been) an involuntary patient in an approved mental health service. As at the date of the treatment plan (April 2006), Broadbent was on medication for schizophrenia.
According to the plea submission, Broadbent was not taking his medication at the time of the offending. At that time, it was said, he had ‘a deep craving and dependency’ on certain other drugs ‘which enabled him to get in his mind to a comfortable place’. He was, at the time, sleeping in the park, though in fact getting very little sleep, and ‘just thinking about getting to the comfortable place by use of the drugs which he ended up taking from the chemist.’ Since having been in custody, his psychiatric condition had stabilised. He was receiving fortnightly injections. In the course of those submissions her Honour said: ‘It’s a real tragedy that sometimes young people have to go into custody before they get the help they need for the acute mental health problems.’
Because Broadbent’s mental illness was clearly relevant to the sentencing task, her Honour sought a report from Forensicare. That report was inconclusive about whether Broadbent had an ongoing psychotic illness:
It is clear that he has previously had episodes of drug-induced psychosis. It is uncertain whether in the recent past Mr Broadbent has had sufficient time free from the effects of these illicit substances to make a diagnosis of schizophrenia any more certain.
On today’s assessment Mr Broadbent presented with somewhat blunted and expressionless demeanour but otherwise described no clear psychotic symptoms. His violent thoughts towards others and himself appear to be in the realms of violent fantasies. He appeared to understand that these thoughts were his own and did not have delusional interpretation for them. He did not appear to be particularly distressed by these thoughts and understood the judicial consequences of carrying out fantasies of harming others.[1]
[1]Emphasis added.
The issue of remorse was addressed on the plea. The Crown prosecutor took the unusual step of reading out the following extract from Broadbent’s record of interview:
I’m deeply remorseful and I regret my actions. I want to say this is why I have contacted the Victoria Police. I want to put it behind me. I want to get an education. I want to be a social worker dealing with kids with homelessness problems and drug addictions. This is why I’m putting it behind me. I just want to get my time done. And I’m deeply remorseful about it.
Defence counsel opened his submissions by informing her Honour that Broadbent was
deeply ashamed of what he did, deeply ashamed, and if there’s anything that he could do to repair the damage he’s done because, specifically, the Victim Impact Statements have opened his eyes to the consequences that were just beyond what he thought was occurring when he went into the chemist on 19 March, way beyond. The damage that he’s done to the people who were affected by his behaviour, he tells me that he simply had no idea that he was doing the damage that he’s caused to these people.
I am able to indicate that he is … deeply remorseful – and I use the word “deeply” on his behalf because that’s what he says how he feels about what has happened – he deeply regrets what he has done.
Against that background, the grounds of appeal draw attention to the following passages in the sentencing reasons:
The materials before me make it clear that although you had been previously diagnosed as suffering from either schizophrenia or drug induced psychosis, that you did not appear at the time of the commission of the offences to be unable to make calm and rational choices or think clearly, that you were not disinhibited, that you did not have an inability to appreciate the wrongfulness of your conduct or to obscure the intent to commit the offence. However, it would appear that although you have the ability to make calm and rational choices and to think clearly, that your capacity to exercise appropriate judgment seems to be significantly affected by psychosis, schizophrenia or whatever other labels has been applied, because anybody making calm and rational choices would be able to make a much better consideration or appreciation of the likely impact of such conduct on the victim and would not simply say later, “I am sorry, I didn’t realise it”. So I consider there has been an effect on your capacity to exercise appropriate judgment by your past history of mental impairment.
That means, in my view that there is a lessening of your moral culpability and it also means that you are not an appropriate person to make an example of by way of sentence. It also means, however, that I have grave concerns about your dangerousness, about your capacity to reason properly as to what the effects of the consequences of your actions would be and your insights into your behaviour, and therefore I have concerns about your capacity to be rehabilitated. I have concerns about the protection of the community, and I have concerns about the need or the way to deter you specifically from committing any further offences.
It is also clear that there must be very strong condemnation of your behaviour. Whilst it is not appropriate to make an example of you, the lack of capacity to consider the effect on your victims and the profound effect on your victims is something which needs stern condemnation and punishment. …
You are also entitled to a moderation of the sentence that would otherwise be imposed by reason of the fact that you turned yourself in, that you made full admissions, and that you expressed remorse. Although I have qualified my acceptance of the expressions of remorse by reason of the fact that although you said you were sorry it was clear that you were not at the time giving any consideration to the rights and the interests of the others. There is, after the event, a clear expression of remorse and concern for the effect you should have thought of but had not thought of on your victims … [2]
[2]R v Broadbent (Unreported, County Court of Victoria, Hampel J, 30 November 2007), [34]–[37] (emphasis added).
In each of these passages, her Honour referred to Broadbent’s inability, at the time of the offending, to consider the effect on his victims of what he was doing. This contrasted with his later realisation of, and apology for, the damage he had done to them. Her Honour had earlier addressed these issues in the following terms:
Although at the time in an interview with the police you disavowed any intention to harm your victims and on the plea your concern, distress and dismay as to the actual effect and the profoundness of the effect on your victims was conveyed to me. It is in some ways quite unrealistic to say, “I never meant to cause them harm” or “I didn’t realise that this would cause harm, or cause them harm of the sort that has been caused”. It is clear that the conduct that you engaged in has such obvious potential to cause real and significant harm to people directly affected by it, and it is clear that you were at the time well aware of what you were doing and aware that you were making threats of harm in order to achieve your end. You were clearly putting your own needs and interests well above the interests of the others, and indeed in considering your needs and interests in getting the drugs and getting the money I think it is a fair conclusion to say that you had no consideration at all for the rights of those others who were in the pharmacy and so profoundly affected by what you did.[3]
[3]Ibid [16].
A number of the matters referred to here were uncontentious. Thus it was not in issue on the plea that, when Broadbent committed the armed robberies, he:
·was putting his own needs and interests ‘well above the interests of the others’;
·had ‘no consideration at all’ for the rights of others in the pharmacy;
·was well aware of what he was doing, in the sense that his conduct was conscious, deliberate and purposeful; and
·was aware – in the same sense – that he was ‘making threats of harm in order to achieve [his] end.’
The sentencing judge was clearly concerned, however, about Broadbent’s subsequent expressions of remorse, which she described as ‘in some ways quite unrealistic’. This view appears to have been based on the ‘obvious potential’ of Broadbent’s conduct to cause significant harm to those directly affected by it. Yet it was precisely Broadbent’s lack of capacity – at the time of the offending – to have any proper appreciation of the likely impact of his conduct on the victims which underpinned her Honour’s conclusion[4] that he was ‘significantly affected by psychosis [or] schizophrenia’. It was on this basis that her Honour viewed his moral culpability as reduced.
[4]See [13] above.
It was submitted for the appellant that, the judge having made that finding about Broadbent’s impaired state of mind at the time of the offending, it was not open to her Honour to treat his failure – at the time of the offending – to consider the effect on his victims as requiring ‘stern condemnation and punishment’, or as justifying a ‘qualified acceptance’ of his expressions of remorse. With great respect to the sentencing judge, we think there is force in these submissions.
As to the first point, her Honour had found that Broadbent’s ‘lack of capacity to consider the effect on his victims’ was symptomatic of – and could only be explained by – his mental illness having been operative at the time of the offending. Her Honour rightly concluded that Broadbent’s moral culpability was thereby reduced.[5] It was not then open, in our view, to conclude that his lack of consideration for the victims was, in effect, an aggravating factor of the offending, requiring ‘stern condemnation and punishment’.
[5]See R v Verdins (2007) 16 VR 269, [26].
Likewise, we do not think that Broadbent’s (admitted) lack of consideration for others at the time of the offending justified any ‘qualification’ of the Court’s acceptance of the remorse which he expressed subsequently. In our view, Broadbent’s expressions of ‘deep remorse’ – to which both the prosecutor and defence counsel had drawn attention – reflected his subsequent realisation of, and deep regret for, the very lack of consideration for others which had characterised the offending. The expressions of remorse were couched in unusually emphatic terms. There being no suggestion by the prosecutor in the course of the plea that Broadbent’s remorse was other than genuine and heartfelt – as it appeared to be – he was entitled to have it given full weight in the sentencing process.
Her Honour also said she had ‘grave concerns about [Broadbent’s] dangerousness, about [his] capacity to reason properly as to what the effects of, the consequences of [his] actions would be and [his] insights into [his] behaviour …’ This meant, in her Honour’s view, that she needed to give considerable weight to community protection.
For similar reasons, these conclusions are not easily reconciled with the distinction which her Honour drew, between Broadbent’s inability at the time of the robberies to appreciate the impact on his victims and his subsequent strong expressions of remorse. It was significant, in our view, that the Forensicare report stated that Broadbent ‘believed that his medication helped him to “think better”,’ and was ‘less confused, with a decreased intensity of thoughts of harming himself or others.’ Although Broadbent described having thoughts of wanting to harm himself, he ‘denied having any actual plans to harm others as he realised the consequences of such actions, including a potentially lengthy prison term.’
The opinion expressed in the report was that Broadbent:
appeared to understand that these thoughts were his own and did not have a delusional interpretation for them. He did not appear to be particularly distressed by these thoughts and understood the judicial consequences of carrying out fantasies of harming others.[6]
On the basis of this report, the risk which Broadbent presented had to be assessed on the basis that he had appropriate awareness that any acting out of his violent fantasies would have serious ‘judicial consequences’. On the assumption that Broadbent would be maintained on his current anti-psychotic medication, as the report recommended, there were sound reasons for optimism about his future.
[6]Emphasis added.
It follows, in our view, that these grounds should be upheld. The sentencing discretion is therefore reopened.
Resentencing
The appellant had also contended that the sentence was manifestly excessive. It is unnecessary to decide that question, but the task of resentencing is aided by the fact that, at the request of the Court, counsel for the appellant and counsel for the Crown each provided a written submission addressing the question of the applicable sentencing range. Both submissions were helpfully supported by references to decisions of this court in appeals against sentence for armed robbery.
We have collected together in the table attached to these reasons the appeal decisions relied on, noting the key features referred to in the submissions. In all, the table covers 32 decisions over the period 2000–09. Although necessarily confined to those cases where the sentence was challenged, the table does provide useful information about current sentencing practices.[7]
[7]Sentencing Act 1991 (Vic) s 5(2)(b).
Both counsel drew attention to the Sentencing Snapshot published by the Sentencing Advisory Council, which showed that in the period 2002–03 to 2006–07:
·sentences for armed robbery ranged from seven days to 11 years;
·the median length of imprisonment was two years and nine months;
·the most common length of imprisonment was two years; and
·the average length of imprisonment was two years and six months in 2003–04 and three years and two months in 2006–07.
The submission for the appellant was that the upper limit of the sentencing range for the armed robbery offences which he committed was between two and a half and three years. According to the written submission:
From counsel’s survey of many recent armed robbery sentences the following may be essayed in a very broad sense: that sentences of 6-8 years’ imprisonment can be attracted in the instance of bank robbery-type cases where a loaded gun is employed and the offender is of mature years etc, that sentences of 3-5 years imprisonment will arise in the instance of drug affected armed robberies by persons with prior convictions who are of mature years and sentences of 18 months to 3.5 years might ensue in instances of youthful offenders who are drug affected and who plead guilty and perhaps who also have some form of mental illness.
It is submitted that the present case fits broadly into the final above category and that the relevant range here was, at its outer-most limit something in the order of 2.5 to 3 years. There ought in the present case be a large amount of concurrency between the individual sentences given the objective circumstances.
The submission for the Crown was as follows:
… [W]eighing all of the factors involved in this case, including the maximum penalty, and in keeping with her Honour’s findings, … the appropriate range was between five and three years head sentence, with a non-parole period between three years and 20 months. The offending was so serious that immediate imprisonment was warranted.
In our view, this was a serious example of armed robbery. The experience must have been quite terrifying for those involved. At the same time, as discussed earlier, the appellant was suffering from an active mental illness at the time, such that his culpability for the offending is reduced; his condition is now controlled by medication, so that he represents a much reduced risk to the community; he has expressed deep remorse; and he is a person without prior convictions.
In our view, the appellant should be sentenced to three years and six months’ imprisonment on each count. Like the sentencing judge, we would make no order for cumulation. We will fix a non-parole period of two years and six months.
SENTENCE APPEAL DECISIONS – ARMED ROBBERY
| Case | Plea | Sentence on individual count(s) of armed robbery | TES | NPP | Notes |
| 1. R v Drinkwater [2000] VSCA 62 | G | 1 y 6m (1y suspended) | · 26 year old offender · Drug addict | ||
| 2. R v Swingler [2001] VSCA 26 | G | 3y 2y 6m | 4y 6m | 2y | · 30 year old offender · Low IQ |
| 3. R v Van Staveren [2001] VSCA 41 | G | 2y 6m 2y (YTC) | 2y 6m | · 19 year old offender | |
| 4. R v Roy [2001] VSCA 61 | G | 4y 4y | 5y | 3y | · 27 year old offender · Heroin addict · ‘Soft targets’ |
| 5. R v Cotry [2002] VSCA 13 | G | 2y | 2y | 1y | · 22 year old offender |
| 6. R v Diss [2002] VSCA 14 | G | 3y 6m | 3y 6m | · 21 year old offender · Prior convictions | |
| 7. R v Wright [2002] VSCA 46 | G | 2y 6m 3y | 3y 6m | 13m | · 33 year old offender · ‘Soft targets’ · Tsiaras factors relevant |
| 8. R v Izzard [2003] VSCA 152 | G | 2y 6m | 3y 9m | 1y 9m | · 23 year old offender · Prior convictions (including for armed robbery) · Schizophrenic |
| 9. R v Hennen [2004] VSCA 42 | G | 2y 2y | 5y | 3y | · 22 year old offender · Prior convictions |
| 10. R v Ulla [2004] VSCA 130 | G | 3y 3y 6m | 6y | 4y | · 21 year old offender · Prior convictions · Tsiaras factors relevant |
| 11. R v Wilson * and Carman [2005] VSCA 78 | NG | 8y / 8y | 8y / 8y | 5y 6m / 6y | · 31 and 30 year old offenders · Prior convictions · Used guns |
| 12. R v Kilmartin [2006] VSCA 12 | G | 4y | 4y 3m | 2y 6m | · 24 year old offender · Prior convictions · ‘Very serious example’ of armed robbery |
| 13. R v Lee [2006] VSCA 80 | G | 3y | 3y | 1y 6m | · 23 year old offender · Limited prior convictions · ‘Soft target’ |
| 14. R v Jones [2006] VSCA 266 | G | 1y 5y | 6y 9m | 4y | · Older offender · Prior convictions · Serious psychiatric illness · 2nd robbery included kidnap |
| 15. R v Schneider* [2007] VSCA 103 | G | 2y 6m | 3y 6m | 2y | · 22 year old offender · Prior convictions · In breach of suspended sentence and intensive corrections order · Drug and alcohol abuse · Possible ADHD as a child |
| 16. R v Rowlands* [2007] VSCA 14 | G | 4y 6m | 4y 6m | 2y | · 32 year old offender · Threatened with knife |
| 17. R v Tayar* (2007) 17 VR 65 | G | 4y 6m | 5y | 3y | · 22 year old offender · Prior convictions · Threatened with knife · Drug use |
| 18. R v Campbell* [2007] VSCA 189 | NG G | 5y 4y 9m | 7y 6m | 5y | · 26 year old offender · Prior convictions · Including reckless conduct endangering person relating to the use of a knife · Had previously breached suspended sentences · Drug use |
| 19. R v Awad* [2007] VSCA 299 | G | 4y | 6y | 3y | · 22 year old offender · Prior convictions · Drug use |
| 20. R v Males [2007] VSCA 302 | G | 2y 6m | 3y 9m | 2y 9m | · 29 year old offender · Prior convictions · Low IQ · ‘Soft target’ |
| 21. R v Ozbec* [2008] VSCA 9 | G | 2y 6m | 3y | 1y | · 23 year old offender · Prior convictions · ‘Soft target’ |
| 22. R v Carmichael*[2008] VSCA 10 | G | 3y 3y 3y | 6y | 3y | · 22 year old offender · Prior convictions · Serving suspended sentence at time of offending · Mild intellectual impairment · Drug and alcohol abuse |
| 23. R v Mourad* [2008] VSCA 4 | G | 3y for each of 15 armed robberies | 8y 10m | 6y | · 40 year old offender · Prior convictions · Multiple offences |
| 24. R v Kittson* [2008] VSCA 77 | G | 1y 6m | 1y 9m | 10m | · 30 year old offender · No prior convictions · Offending at the lowest end of the range |
| 25. R v Morgan* [2008] VSCA 258 | G | 4y 6m | 6y 9m | 3y | · 23 year old offender · Prior convictions · Drug and alcohol abuse |
| 26. DPP v Kennedy* [2008] VSCA 263 | G | 3y 5y 5y 5y | 8y 6m | 5y | · 43 year old offender · Prior convictions · Double jeopardy considered · Low IQ · Depression, anxiety, tended towards sociopathic, schizoid and paranoid · Drug use |
| 27. R v Parker* [2009] VSCA 19 | G | 4y | 4y | 2y | · 35 years old at sentencing · No prior convictions · Drug use |
| 28. R v Lamb* [2009] VSCA 37 | G | 5y | 5y 10m | 4y 6m | · 27 year old offender · Prior convictions · Offences committed while on parole · Heroin addict |
| 29. R v Harrison [2008] VSCA 65 | G | 3y | 3y | 1y 5m | · 23 year old offender · ADHD · Psychological difficulties · Prior convictions |
| 30. R v Maltez* [2009] VSCA 36 | G | 1y intensive corrections order | · 19 year old offender · No prior convictions | ||
| 31. R v Stevens* [2009] VSCA 81 | G | 5y | 8y 9m | 6y 9m | · 36 years old at sentencing · Prior convictions · Drug and alcohol abuse |
| 32. R v O’Blein* [2009] VSCA 159 | G | 2y 6m Youth Justice Centre | · 20 years old at sentencing · Prior convictions · Mental illness |
* Relied on by the Crown
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