R v Dutton

[1996] QCA 40

IN THE COURT OF APPEAL	[1996] QCA 040
SUPREME COURT OF QUEENSLAND

C.A. No. 485 of 1995

Brisbane

Before Pincus	J.A.
McPherson J.A. Helman J.
[R. v. Dutton]

T H E Q U E E N

v.

NICHOLAS JOHN DUTTON

Pincus J.A.
McPherson J.A.

Helman J.

Judgment delivered 05/03/96
Reasons for judgment by the Court

1.          APPLICATION FOR LEAVE TO APPEAL GRANTED AND THE APPEAL ALLOWED.

2.          ORDER THAT THE TERM OF SIX MONTHS IMPRISONMENT IMPOSED ON THE APPLICANT BE SET ASIDE

3. ORDER THAT THE APPLICANT PERFORM 240 HOURS OF COMMUNITY SERVICE UPON THE REQUIREMENTS SPECIFIED IN S.103(1) OF THE PENALTIES AND SENTENCES ACT.

4.          VARY THE PROBATION ORDER FOR A PERIOD OF THREE YEARS MADE BELOW SO AS TO TAKE EFFECT FROM THE DATE OF THIS ORDER AND REQUIRE THE APPLICANT TO REPORT TO AN AUTHORISED OFFICER OF THE QUEENSLAND CORRECTIVE SERVICES COMMISSION IN BRISBANE WITHIN 24 HOURS OF THE MAKING OF THIS ORDER; OTHERWISE THE TERMS OF THE PROBATION ORDER MADE BELOW ARE CONFIRMED.

CATCHWORDS	CRIMINAL LAW - SENTENCE - Armed robbery of newsagent - Whether sufficient account taken of offender's mental condition at time of offence. R. v. Cumming (C.A. 170 of 1991); R. v. Dunn (C.A. 29 of 1994).
Counsel:	S. Hamlyn-Harris for the applicant Mrs L. Clare for the respondent
Solicitors:	Legal Aid Office for the applicant Director of Public Prosecutions for the respondent
Hearing Date:	23 February 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 5th day of March 1996

On 15 December 1995 the applicant pleaded guilty to one count of armed robbery committed on 8 January 1995. He was sentenced to imprisonment for 6 months to be followed by probation for 3 years. This is his application for leave to appeal against that sentence.

On the night of 7/8 January 1995 the applicant decided to rob the McDonalds outlet at Aspley. He took with him a 6" knife, a rubber hammer, and a balaclava, all of which he concealed in his clothing. On arriving at McDonalds, he saw a security guard on duty, so he went on to a 24 hour newsagency. It was then 1.00 a.m. He entered the shop and put on the balaclava.

A Mr Hayman, who is a man of 55 years, was working at the shop counter. The applicant approached him brandishing the knife and saying "Give me your money". Hayman handed over a sum of $950 from the cash takings. The applicant took it and ran out into the street. He was chased by a security officer but succeeded in making his escape by car.

Some time later the police searched the home of the applicant's parents, where they found clothing matching the description given by Mr Hayman. They located the applicant at a caravan park. He admitted his involvement in the robbery saying "Yeah, I know about that. I just want to get this over and done with". He told the police he had been watching television on the night in question, when he saw a report about an armed robbery and decided he would commit one himself. After doing so, he had travelled to Noosa by taxi and spent the proceeds of the robbery on the fare, on accommodation there, and on buying food, marijuana, alcohol and compact discs.

In sentencing the applicant, the learned District Court judge remarked that he was a first offender, who was 19 years old when he committed the offence and 20 when sentenced; and that armed robbery was a serious offence particularly when carried out on someone like Hayman, who, as a late night worker, was particularly vulnerable.

In imposing sentence the judge took account of the applicant's mental condition at the time of the the offence. His Honour said: "There is no doubt that your mental illness played a very significant part in the commission of this offence." In accordance with R. v. Dunn (C.A. 29 of 1994), he first determined what he considered to be the appropriate penalty, which he said was three years imprisonment, for this "very serious offence". He then added that, having regard to the applicant's co-operation and plea of guilty, he would ordinarily have recommended him for release on parole after serving 9 months of that sentence. However, because of the applicant's mental condition at the time of the offence, he reduced the period of imprisonment by 3 months ordering that the applicant should serve a term of 6 months imprisonment followed by probation for 3 years.

In circumstances like those, no one could fairly cavil at a sentence of 3 years imprisonment for an armed robbery like this. Three years is plainly not beyond the "tariff" penalty, particularly when coupled with a recommendation for early parole. See, by way of comparison, R. v. Cummings (C.A. 170 of 1991), where the sentence was 3 years imprisonment with a recommendation for parole after 1 year. Cummings was a 19 year old, who accompanied a companion, said to be in a "disturbed" state, in robbing the proprietress of a steakhouse by wielding a replica pistol. He had one conviction for stealing some two months earlier.

The point of the present application is, however, the applicant's mental condition at the time of the offence and his treatment for that condition he has been undergoing both before and after it. The evidence is that he is and has for some time past been suffering from bipolar affective disorder. Indeed, he later came before the Mental Health Tribunal in relation to the subject offence, but was found fit to plead at that time.

The only question now before us is whether, in the result, sufficient account has been taken in the sentencing of the applicant's mental condition at the time of the offence, and the likely impact that a period in prison will have on efforts to bring about an improvement in his condition.

The applicant's mental illness is, in this instance, well documented. His earliest consultation was in February 1993. In July 1993 he was diagnosed as suffering from bipolar affective disorder with manic features. It followed a history of social deterioration in the context, so it is reported, of chronic marijuana use, which began in 1991. He is or was an intelligent youth but, because of his disorder, was unable to complete his schooling and ended up on an invalid pension. In July 1993 he was admitted to the Winston Noble Psychiatric unit, where he spent 7 weeks. He was admitted to the Unit again in September 1994 for a 3 week period, and for a further short period in November 1994. It was after his discharge on that occasion that he committed the subject offence.

The applicant was then admitted as a voluntary patient on 20 January 1995 exhibiting symptoms, which he denied, of manic illness. He absconded from the unit on at least two occasions and was then transferred to a locked ward at John Oxley Memorial Hospital, where he became a "regulated" patient under the Mental Health Act. His previous behaviour was linked to failure to continue with the medication prescribed for him. In John Oxley Memorial Hospital his condition improved markedly and in consequence he was granted bail on 11 July 1995 subject to his living at his parents' home under supervision.

Since then, the applicant's condition has been kept under control. He has been taking the medication prescribed for him and has been working three afternoons a week at the Eventide Nursing Home at Brighton. He has enrolled at college with a view to returning to studies this year. He has at all times complied with his bail conditions and has now saved enough from his disability pension to make restitution of the $950 he stole in the robbery. He has refrained from using marijuana and his condition has stabilised.

Dr T. George, of the Winston Noble Unit, who has been consulted throughout, is satisfied with the present arrangement and considers it has been working well. He does not say that the applicant will recover completely from his illness, but observes that it is often difficult to predict the possible future course of bipolar affective disorder. In November 1995 Dr George reported that it was important to ensure that his treatment was continued without interruption.

Essentially the issue before this Court is whether the learned judge exercised his discretion correctly in deciding that this young man should serve a period of imprisonment. His Honour acted on the principle in R. v. Dunn in taking account of the applicant's mental state when the offence was committed in early January 1995. As has been said, he reduced the effective period of imprisonment that he would otherwise have imposed from 9 to 6 months. The question is whether that gave sufficient weight to the impact of the applicant's mental illness at the time, which the judge had said had played a very significant part in the commission of the offence.

After much reflection, we have come to the conclusion that it did not. The case is close to the borderline, but it is a comparatively rare instance in which the existence of the disorder, its evolution and its treatment, before the offence is well documented and established. As Dr George has said elsewhere, at the time of the offence the applicant was exhibiting signs of immaturity, symptomatic of his disorder, that were appropriate for a person considerably younger than his years. The assessment is no doubt one of degree, but a reduction by only one third in the period of imprisonment which would otherwise have been imposed does not appear to us to be an accurate reflection of the applicant's mental condition and level of culpability for the offence at the time it was committed.

The application for leave to appeal should therefore be granted and the order that the applicant serve a term of imprisonment should be set aside. In view of his satisfactory response to his current treatment and conditions and the demonstrated desirability of his maintaining that treatment, we consider that he should be ordered to perform a total of 240 hours of community service, and should be admitted to probation forthwith.

The formal orders, therefore, are as follows:

1.         Application for leave to appeal granted and the appeal allowed.

2.         Order that the term of six months imprisonment imposed on the applicant be set aside

3. Order that the applicant perform 240 hours of community service upon the requirements specified in s.103(1) of the Penalties and Sentences Act.

4.         Vary the probation order for a period of three years made below so as to take effect from the date of this order and require the applicant to report to an authorised officer of the Queensland Corrective Services Commission in Brisbane within 24 hours of the making of this order; otherwise the terms of the probation order made below are confirmed.