R v Harb

[2001] NSWCCA 249

CITATION:	Regina v Harb [2001] NSWCCA 249
FILE NUMBER(S):	CCA 60038/01
HEARING DATE(S):	20 June 2001
JUDGMENT DATE:	20 June 2001
PARTIES :	Regina v Peter Harb
JUDGMENT OF:	Howie J at 1 &46; Smart AJ at 2 ; Mathews AJ at 50

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0208
LOWER COURT JUDICIAL OFFICER :	Luland DCJ

COUNSEL :	(A) P J Hamill (C) M C Marien
SOLICITORS:	(A) King Lawyers (C) S E O'Connor
CATCHWORDS:	Sentences - mental condition - effect on sentences - correct approach - sentences not excessive for robbery in company
CASES CITED:	Wright (1997) 93 A Crim R 48 at 50-51 R v Engert (1998) 84 A Crim R 67 R v Mooney (unreported, CCA Victoria 21 June 1978 R v Anderson (1980) 2 A Crim R 379 at 383-4 R v Fahda (1999) NSWCCA 267
DECISION:	Application for leave to appeal granted. Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

HOWIE J

SMART AJ

MATHEWS AJ

Wednesday, 20 June 2001

REGINA v PETER HARB

JUDGMENT

1   HOWIE J: I will ask Smart AJ to give the first judgment.

2   SMART AJ: Peter Harb seeks an extension of time and leave to appeal against the severity of two concurrent sentences, each of four years imprisonment, with a non-parole period of two years in respect of two offences of robbery in company imposed by the District Court. There is no objection to the extension of time and an order should be made extending the time within which leave to appeal may be sought.

3   The applicant pleaded not guilty to the charges and his trial took place from 10-13 April 2000, when the jury returned a verdict of guilty on each count. The judge found the following facts. On 10 March 1998 at about 7.30 pm the applicant, David Taukitoku and a third unidentified offender entered the home of three young people. The offenders were unknown to the three young people. The unidentified offender grabbed the victim Michael and pushed him into the loungeroom, where he was hit twice on the back of the head by Taukitoku. The unidentified offender struck Michael across the knee with a baton. I will not use the surnames of the young people.

4   The victims were searched and Simon's wallet was taken from him. Shortly thereafter the applicant walked into the loungeroom carrying Simon's safe and steel money box. When asked the combination the young people said they did not know. The applicant threatened to stab them and punched Michael in the jaw.

5   Taukitoku cut the wires to the phone and kept watch whilst his two co-offenders continued to search the home. The three offenders further threatened the three young people and left. The applicant was later identified from photographs.

6   From the summing-up it appears the only live issue at the trial was that of identification. Taukitoku and the applicant asserted that he was not one of the robbers. There was no issue that a robbery had occurred as alleged. The judge analysed the evidence of identification in detail for the jury and gave them extensive directions on identification and pointed to the alleged weaknesses in that evidence. One important matter was that the offenders wore no disguises. The second was that the offenders were in the young people's home for a considerable period of time.

7   At the trial counsel for the applicant made a concerted attack on the identification, claiming it was unfair. There was only one person that the witnesses could have picked as the taller Mediterranean-looking offender; namely, the applicant. He insisted through his counsel that both the identification witnesses, while honest, had made a grave error.

8   The Crown relied on the easily identifiable money box taken from the home of the young people being found in the home of the applicant's mother. An explanation was given by the applicant's mother, which on its face was not convincing. The jury was satisfied beyond reasonable doubt that the applicant was one of the robbers and rejected his defence. It is evident that the applicant conducted a full-blooded defence at the trial. He did not give evidence.

9   In the light of the way the trial was conducted, this written submission on behalf of the applicant is a little precious:

"He claims no memory of the crime and there is no evidence to suggest otherwise. The duty of those representing him at trial was to advise a not guilty plea and without a memory he could not plead guilty."

10   In his sentence, the judge correctly found:

"The victims were not only subject to having their home invaded and their property stolen, but were also the victims of violence and terror."

11   The applicant was born on 10 October 1973 and therefore aged twenty-four at the time of the offence. He had a number of prior offences dating from 1991 and was before the Local Court on some nine prior occasions for driving offences, a drug offence, and dishonesty offences which were at the bottom of the criminal scale. He was fined, placed on recognisance and ordered to perform community service.

12   In August 1997, being the last occasion, he was sentenced to three months imprisonment. The subject offences were the applicant's first involvement in serious crime. The judge adopted a kindly description of his earlier offences, saying:

"His criminality before this was minimal ... No doubt these offences related in some way to his drug problem."

13  The judge had regard to the applicant's other subjective features. He was one of four children and enjoyed a supportive and caring upbringing. He performed well at school and was a good sportsman. He completed his Higher School Certificate, qualifying for a university course. In 1992 he bought a take-away business with his sister. During the ensuing year he developed psychiatric problems, commencing with a withdrawal state and depression. The judge found that this problem developed into a psychiatric condition, which was not correctly diagnosed until 1999 as schizophrenia.

14  The applicant was admitted to Rozelle Hospital for seven days in October 1992 with a diagnosis of organic hallucinations, organic delusional disorder and polysubstance abuse. He admitted to heavy recent abuse (at that period) of THC, heroin, LSD, speed and cocaine. He became very agitated after 24 hours in hospital and tried to strangle himself with a rope. He recovered over four days in a drug-free environment.

15   In April 1993 he spent four days in Rozelle Hospital. The diagnosis was:

"? substance abuse, narcissistic personality traits, and antisocial personality traits."

16   His condition was precipitated by a domestic conflict within his family and with his family.

17   On admission he was extremely enraged and violent. Faced with involuntary admission and with sedative medication, he quickly composed himself.

18   In July 1993 he spent eight days in Rozelle Hospital, having earlier been in Long Bay Gaol psychiatric unit because of his dangerous conduct. A provisional diagnosis of schizophreniform psychosis was made. Dr Ali, staff psychiatrist at Long Bay, wrote:

"He appears to be suffering from a psychotic state which may be the result of a schizophrenic illness or drug induced."

19  In November 1999 he spent four days in Rozelle Hospital. The diagnosis was: "Schizophrenia with prominent negative symptoms, and polysubstance abuse." His mother gave a history of odd behaviour by the applicant, including staring into space for hours, ruminating, becoming suspicious of food, weight loss and neglect of his personal hygiene. He was not co-operative when interviewed by the doctors, remaining detached and aloof.

20   The applicant's eldest sister gave evidence that he was withdrawing and becoming very depressed while working in the business. He claimed that people were talking about him or that he was hearing voices and did not respond when spoken to. He experienced auditory hallucinations. She said that in 1991 he started to show signs of deterioration. She said he had now changed and was looking towards the future.

21  Another sister, Noelle, also gave evidence of the applicant's difficulties. She confirmed that he had responded well to the drugs he had been prescribed on his last discharge from Rozelle Hospital and that he was now a changed person.

22   The judge said that it was not possible to know why the applicant involved himself in these robberies. The difficulty is that there was no evidence which indicated that it was the taking of drugs that caused the applicant to commit these offences or contributed in large measure to that eventuality.

23   In the report of 7 June 2000 of Dr Parmegiani, consultant psychiatrist, it is stated:

"With respect to the incident leading to the charges, which allegedly took place in March 1998, Mr Harb claims to have no memory of the event, although he does accept that he was a participant in the events described in the Fact Sheet."

24  In view of this last-mentioned statement, it is not easy to understand why the applicant pleaded not guilty.

25   The applicant told the doctor that after his release from Goulburn gaol in November 1997 he returned to using large amounts of psychoactive drugs. He also told the doctor that during the years 1992 to 1998 he was abusing drugs substantially. They included heroin, cannabis and benzodiazepines. The applicant told the doctor that he felt the need to self-medicate his symptoms of psychosis. The doctor thought the applicant suffered from schizophrenia, paranoid type, but that it was under good control due to the use of regular antipsychotic medications. The doctor wrote:

"I have no reason to believe that Mr Harb's actions on the day of the events leading up to his charges were in any way directly caused by his psychiatric illness. The most likely explanation for his failure to recall the events is substantial intoxication with drugs at the time."

26   The judge thought this observation was speculative.

27   Dr Parmegiani concluded:

"Provided that the history given to me by Mr Harb is correct - and I have no evidence to the contrary - and conceding that it is difficult to accurately assess symptoms and events that date back up to nine years, it is possible that Mr Harb had been suffering from a schizophrenic illness, with onset in about 1991. Except for the acute episodes, where he experienced auditory hallucinations, and frank delusions, the symptoms of his illness appeared to be mainly of the negative type, and included ambivalence, confusion, and thought disorder. He may have sought to alleviate some of these symptoms through the use of drugs in the past, and it is possible that if he had been correctly diagnosed and treated at the onset of his illness in the early 1990s he might now not present with the history of drug abuse and antisocial behaviour."

28  The judge found on the balance of probabilities that the applicant's mental illness played a role in his behaviour and very likely played some role in the commission of the offence. He accepted that general deterrence usually played a lesser role where the offender has a significant handicap. The judge stated that accordingly he proposed to moderate the applicant's sentence. The judge found special circumstances in the applicant's need for ongoing psychiatric assistance and counselling.

29   The applicant submitted that the judge failed to appreciate sufficiently that mental illness further dilutes sentencing so far as personal deterrence and culpability is taken into account. It was submitted that mental illness affected the applicant's ability to exercise judgment and any measure of responsibility for his actions. It was submitted that if the offender had no memory of the situation and the events, the lack of capacity was underlined and that his responsibility was seriously diminished in the most pertinent area of criminal activity and not just deterrence.

30  The applicant submitted that the judge erred in failing to apply the principles of diminished responsibility for any criminality involved in the commission of the offences, and in failing to take into account the deterioration in mental health prior to the adjourned trial hearing in April 2000 due to the November 1999 breakdown and hospitalisation and the cancellation of the earlier trial.

31   While the judge found that the applicant's mental illness very likely played some role in the commission of the offences he was not able to quantify that role. The judge stated that he was moderating the sentence because general deterrence played a significant role.

32  Upon the hearing, the applicant developed the written submissions and advanced a number of other submissions. It was submitted the decision of this Court in Henry had not been correctly applied. I do not think there is any substance in this submission because this simply was not a Henry-type case. It was also submitted that the judge had made a number of minor factual errors, none of these were of consequence.

33  Counsel developed the submission that the judge failed to give adequate weight to the psychiatric condition and failed to take into account the psychiatric condition in relation to moral culpability. It was submitted that insufficient attention had been given to the drug addiction, in that the applicant's prior record and these offences evolved out of a drug addiction which was attributable to the applicant's mental condition. In short, it was put that we should look not just at the symptoms but at the underlying disease.

34   It is a tragedy that it took so long for the client's mental condition to be correctly diagnosed.

35  The Crown submitted that where culpability in the commission of the offence is reduced by mental illness, moderation in the sentencing exercise is achieved not by asking whether the offender's responsibility for the offence should be regarded as having been reduced, but by giving little or less weight to considerations of general deterrence.

36   That proposition is a little broad and needs refinement. It is one way of approaching the problem but there may be cases where it is necessary to go further than just giving weight to general deterrence. There is considerable authority for the proposition that it is an accepted principle that general deterrence should often been very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. See Wright (1997) 93 A Crim R 48 at 50-51.

37   At page 55 Gleeson CJ confirmed the views which he had expressed in Engert (1998) 84 A Crim R 67. There, the Chief Justice, after pointing out that the interplay of Ca consideration relevant to sentencing may be complex and on occasions even intricate (page 68), continued at p 71:

"In truth however ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."

38   In the present case the applicant's condition impacts upon personal deterrence and rehabilitation and his need to take medication.

39  I should refer to the judgment of Young CJ in Mooney (unreported, CCA Victoria, 21 June 1978) as extracted in Anderson (1980) 2 A Crim R 379 at 383-4:

"In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight. ... General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender's responsibility for the offence should be regarded as having been reduced."

40   Those remarks have been in the forefront of the consideration of the problem of what weight should be attached when sentencing to the mental condition of an offender.

41   The cases have been collected by Simpson J in R v Fahda (1999) NSWCCA 267. The Court is required to approach the question of the weight to be given to the mental condition of the offender by asking whether the interests of society permit or the interests of the offender require that the sentence be reduced from what otherwise would be appropriate. In doing this the significance of the offender's mental capacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case.

42  It frequently happens that when an offender has a significant mental condition much attention is concentrated on the lesser importance of general deterrence. But that does not mean that it is only of relevance on that aspect of the sentencing exercise, or that it is the only means of adjusting the sentence.

43  On one view of the judge's remarks he does seem to have limited the significance of the applicant's mental condition to the aspect of general deterrence. But I am far from sure that that is what the judge intended. His remarks on sentence reveal that he gave anxious consideration to the mental condition of the applicant.

44  The judge has allowed for an extended period of rehabilitation and supervision, having regard to the applicant's psychiatric condition and the clear need for medication. There were special circumstances, If by his remarks on sentence the judge intended to limit the consideration of the mental condition of the applicant to general deterrence, I would respectfully disagree with him. However, as I have said, I am not at all sure that that is what the judge meant. In every sentencing exercise a court considers closely the moral culpability of the offender.

45   The sentences imposed by the judge were lenient. Even if I came to re-sentencing, I would not impose a lesser sentence. Having regard to the gravity of the offences in this particular case, the sentences imposed by the judge, even making the maximum allowance for the applicant's mental condition and his subjective features, were right. The application for leave to appeal should be granted but the appeal against sentence should be dismissed.

46   HOWIE J: I agree. In my opinion, the sentence imposed by his Honour was so lenient, having regard to the serious nature of the offences committed by the applicant, and the fact that he was not entitled to any discount by way of a plea of guilty or contrition, that his Honour must have given appropriate and sufficient weight to the applicant's mental condition at the time of the commission of the offence, as it both reduced his criminal responsibility for what he did and significantly reduced the importance of general deterrence by reason of that mental condition.

47   Had it not been for the applicant's mental disorder, the sentence would have been manifestly inadequate. Nor can it be accepted, as was submitted by Mr Hamill on behalf of the applicant, that in having regard to the co-offender's sentence the applicant must have been given insufficient mitigation by reason of his mental illness.

48  The co-offender's sentence was also lenient and his Honour could not have given any more weight to general deterrence in imposing that sentence. In my opinion, the sentence imposed below reflects the significance of the applicant's mental illness and was an appropriate sentence in all the circumstances of the case.

49   MATHEWS AJ: I agree with the orders proposed by Smart AJ and with the reasons which he gave.

50   HOWIE J: The orders of the Court therefore are that the application for leave is granted but the appeal is dismissed.

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