R v Dunn

[1994] QCA 147

IN THE COURT OF APPEAL [1994] QCA 147

SUPREME COURT OF QUEENSLAND

C.A. No. 29 of 1994

Brisbane
[R. v. Dunn]

BETWEEN

T H E Q U E E N
v.
GEOFFREY AELAIN DUNN

(Applicant)

Pincus J.A.
McPherson J.A.

Mackenzie J.

Judgment delivered 13/05/94
Reasons for judgment by the Court

APPEAL ALLOWED; THE SENTENCE OF IMPRISONMENT IN RESPECT OF COUNT 1 SET ASIDE AND IN LIEU THEREOF SENTENCE OF IMPRISONMENT FOR 7 YEARS IMPOSED WITH A RECOMMENDATION THAT APPLICANT BE CONSIDERED

F OR PAROLE AFTER 3 YEARS.

CATCHWORDSCRIMINAL LAW - SENTENCE - Psychiatric abnormality short of insanity - Armed robbery - Shotgun discharged - Offence committed to impress girlfriend at her mother's insistence - aged 25 years with I.Q. of 59 - Vulnerable to manipulation - Previous conviction for robbery - Whether sentence manifestly excessive.

Counsel:R. Collins for the applicant
P. Callaghan for the respondent
Solicitors:Legal Aid Office for the applicant

Director of Prosecutions for the respondent

Hearing Date:  28 March 1994

REASONS FOR JUDGMENT - THE COURT
Judgment delivered the Thirteenth day of May 1994

The applicant pleaded guilty in the District Court at Townsville to a charge of robbery with violence while being armed, and a further charge of wilful damage to a computer screen. For the second offence he was sentenced to imprisonment for 12 months, which was to be concurrent with the sentence of imprisonment for 9 years imposed for the robbery, but with a recommendation for release on parole after 4 years. The second offence was committed in the course of the robbery when the applicant discharged a loaded shotgun through a closed internal door at the premises where the offences were committed.

The circumstances are that at about 12.30 am on 11 February 1993 the applicant, with a stocking over his head, walked into a service station and menaced one of the attendants there with a 12 gauge shotgun which he was holding. He demanded money and was given $429 from the cash register, and then insisted on money from the safe, pointing the gun barrel at the attendant's face. He then became distracted by a second attendant, whom he also menaced with the gun while demanding that the safe be opened. The first attendant had meanwhile succeeded in locking himself into an office. He was trying to make a telephone call when the applicant fired a shot through the door. It was this that damaged the computer and gave rise to the offence of wilful damage. The shot narrowly missed the first attendant and was in fact discharged within only inches of the face of the second attendant. The applicant then demanded and received car keys from two customers, who in obedience to his command were lying on the floor of the service station.

The sentencing judge rightly regarded the robbery offence as a serious instance of its kind, having in mind that the applicant had threatened people with a loaded weapon, which he had proceeded to discharge in circumstances in which those present might have been seriously or even fatally injured. The conduct of the applicant was plainly calculated to induce fear in those who were in the service station. Persons like the attendants at that place, who provide services to the public late at night are particularly vulnerable to attacks of this kind and merit the fullest protection the law can give. The deterrent element is therefore an important factor in sentencing here.

The personal background of the accused is that he is a man who was 25 years of age at the time of the offence on 11 February 1993 having been born on 21 July 1968. He has a record of previous offences summed up by saying that they consist entirely either of drug or driving offences, but with two minor and one major exception. The minor exceptions are an offence of breaking and entering committed in Cairns in 1990, and an offence of wilfully damaging a plate glass window in Warwick in 1991.

The only really serious offence on his record in any way comparable to the offence under consideration here is one committed in 1986 when he was 18 years of age. On that occasion he attempted to snatch the handbag of a woman who was in a cubicle in a public toilet; she succeeded in retaining possession of the handbag, but the applicant waited outside for her and grabbed the bag from her as she left the building. There is said to be some question now about whether he punched her in the course of committing that offence; her screams were heard by people who came on the scene and they held the applicant until police arrived. As regards that robbery the applicant was sentenced in the Supreme Court to imprisonment for 2 years with a recommendation for parole after 9 months. He has since undergone and successfully completed a period of probation, which was ordered in respect of the breaking and entering offence in Cairns in 1990.

Returning to the offences now before this Court, the applicant was identified by one of the service station attendants as a person with whom he had been in hospital. He was apprehended, but absconded while on bail and had to be brought back from the Northern Territory. When interviewed by the police, the applicant confessed what he had done, although he insisted that in discharging the gun he believed that the cartridge in it was a blank, claiming this was what he had been told by the man who lent the gun to him.

The account he gave of his reasons for committing the offence was most unusual. He said he had formed an association with a girl named Jenny, with whom he was deeply in love. It does seem true to say that there have been very few such associations in his life and the experience seems to have influenced him greatly. It was, he claimed, Jenny's mother who prevailed on him to carry out the robbery. She told him he would lose Jenny's love if he did not come up with some money, and the suggestion was made that he rob the service station. They supplied him with the drug Rohypnol, and he was referred to the man who lent him the shot gun with which to carry out the offence. According to the applicant, it was Jenny's mother who drove the applicant in her car to the service station that he robbed.

Coming from any normal person, the applicant's account sounds improbable. Not surprisingly, he was subjected to psychological assessment. From the report that followed, it appears that at the age of 9 he was involved in a car accident in which he sustained head injuries and lost consciousness. According to members of his family, the applicant's behavioural problems postdate that event. It was the applicant's impression that he was not wanted at school, where he was a slow learner. The applicant told the examining psychologist that he liked snakes and used to take them to school with him, which he thought also accounted for his unpopularity there. Later he attended a special school at Nambour but was expelled at the age of about 14½ for stealing. After that, he seems to have left home and gone off on his own.

The assessment carried out showed that the applicant had an IQ of only 59, with a verbal IQ of 55 and a performance IQ of 67. He was described as having a "low level of mental functioning" owing to brain damage caused by a combination of trauma and drug use. He has been abusing alcohol regularly since the age of 13, and before his arrest was consuming about one carton of beer a day. In addition he is a regular user of cannabis and has been sniffing glue and petrol for many years.

From time to time he has used various other forms of drug and on occasions has taken Rohypnol for its disinhibiting effects and in order to increase his confidence. According to the psychological assessment, the applicant was not deprived of mental capacity within the meaning of s.27 of the Criminal Code, but his decision-making ability is impaired and he is suggestible and gullible, and consequently vulnerable to manipulation by others. For a sentencing tribunal the applicant thus presents a real difficulty, the more so as, apart from imprisonment, there is no system or establishment in the State that caters for persons whose criminal conduct is in part the result of a mental condition, which, while falling short of insanity, renders them somewhat less than fully responsible for their actions.

There was discussion before us of the significance that such a condition might have for the level of the sentence to be imposed. The resulting dilemma was described by Brennan J. in Channon v. R. (1978) 20 A.L.R. 1, 4, as follows:
"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality.

An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to sentence which is severe."

Most of the authorities on the subject are collected in R. v. Champion (1992) 64 A.Crim.R. 244, 254. Without committing this Court to everything that is said on the subject in all of those sources, it is enough to refer here to the statement of Bray C.J. in R. v. Kiltie (1974) 9 S.A.S.R. 452, approved in R. v. Masolati (1976) 14 S.A.S.R. 124, that low intelligence and diminished responsibility falling short of insanity will (if otherwise relevant) operate on sentence as a mitigating factor.

In R. v. McGlynn [1981] Qd.R. 526, 530, the proper approach was held to be, first, to determine the "objectively appropriate" sentence, and then to decide whether it should be diminished because of the offender's mental condition.
With these considerations in mind we turn to the sentence that was imposed in the present case. The offence was, as we have said, a serious one, particularly in view of the use and discharge by the applicant of a loaded firearm. Whether in his apparently partly impaired mental state the applicant was fully aware of the dangers of his actions may be open to question; on the other hand the risk that such conduct may be repeated is not one that society can lightly afford to take. For the applicant it was suggested that such risks could be best catered for by a period of probation which would involve a degree of supervision over the applicant. The success of the previous probation was advanced as a demonstration of its usefulness in the case of the applicant.

Allowing some weight to all of the circumstances involved, we have come to the conclusion that a head sentence of 9 years imprisonment for the robbery offence must in the case of this applicant be considered manifestly excessive. Sentencing is a matter in which generalisations are seldom possible or useful. In R. v. Cohen (CA 395/1993 Jmt. del. 16.12.1993), this Court reduced from 9 to 7 years the sentence imposed on a 36 year old man for armed robbery in company. The applicant with his companion wearing balaclavas and gloves entered a bank on a busy Friday afternoon brandishing a sawn-off shotgun. Customers were ordered to lie on the floor and some $26,517 was stolen. Extensive planning preceded the offence and cars were stolen for use as getaway vehicles. The shotgun was admittedly not loaded and it was not discharged, but the applicant had an extensive criminal record involving offences for dishonesty and he was on probation at the time of the robbery. His moral responsibility and blameworthiness for the offence was considerably greater than that of the applicant in the present case but, on the other hand, Cohen had not, for many years, committed an offence sufficiently serious to warrant a term of imprisonment.

From what has been said in these reasons it will be clear we consider it desirable that the applicant be provided during sentence with such psychiatric treatment or assistance as may be available and can be useful to him. We also think it proper to draw the attention of the Corrective Services authorities to the applicant's complaint that on the occasion of a previous term of imprisonment he was the victim of sexual assault by other prisoners. If that complaint is well founded, we expect that arrangements will be made to ensure that on this occasion the applicant will not be put at risk of further treatment of that kind, of which he is naturally in some fear.

The order we make is that the appeal is allowed; the sentence of imprisonment in respect of count 1 is set aside and in lieu thereof the applicant is sentenced to imprisonment for 7 years with a recommendation that he be considered for parole after 3 years.