R v Hemsley - [2004] NSWCCA 228

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Hemsley [2004] NSWCCA 228

FILE NUMBER(S):
60084/04

HEARING DATE(S): 17 June 2004

JUDGMENT DATE: 07/07/2004

PARTIES:
Regina
Mashell Joy Hemsley

JUDGMENT OF: Grove J Dowd J Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3096

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

COUNSEL:
Mr G Rowling for the Crown
Ms C Davenport for the Applicant

SOLICITORS:
Director of Public Prosecutions
Legal Aid Commission for the Applicant

CATCHWORDS:
Criminal law
sentencing
no question of principle

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, s44
Evidence Act 1995, s60

DECISION:
(1) Grant leave to appeal against sentence
(2) Appeal allowed
(3) Sentence quashed and, in lieu thereof, re-sentence the applicant to imprisonment for three years commencing on 27 February 2003 with a non-parole period of two years commencing on 27 February 2003 and expiring on 26 February 2005
(4) Order that the applicant be released on parole at the end of the non-parole period.

JUDGMENT:

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IN THE COURT OF
CRIMINAL APPEAL

60084/04
Grove J
Dowd J
Sperling J
Wednesday, 7 July 2004

Regina v Mashell Joy Hemsley

Judgment

Grove J: I have had the advantage of reading the judgment of Sperling J in draft form. I am also of the opinion that the appeal should be allowed and that this Court should proceed to resentence. In expressing my reasons I gratefully adopt his Honour’s sketch of the background facts, his reproduction of extracts from the report of Mr Taylor and the expression of grounds of appeal.
One of the effects of s 60 of the Evidence Act 1995 was to reverse the common law rule affirmed in Ramsay v Watson (1961) 108 CLR 642 that statements contained in a history given to a health practitioner had to be admissibly proved in order to be received as evidence of the facts stated: R v Welsh (1996) 90 A Crim R 364. Should such material be deemed unfairly prejudicial, misleading or confusing, there is statutory discretion (s 136) to limit the use to which such evidence may be put. Sperling J has pointed out that no application for such a ruling was made in respect of the history given by the appellant which was recorded by Mr Taylor. In any event, in the absence of special direction the Evidence Act does not apply to sentencing proceedings, however Mr Taylor’s report was tendered by consent.
That does not mean that the learned sentencing judge was obliged to accept uncritically every such recorded statement. Counsel then appearing candidly told his Honour in discussion after the report had been read that he had sought confirmation of some of the matters therein but his client had not “been willing to divulge certain information”. One claim was that the appellant’s parents were victims of the attack on the World Trade Centre Towers in New York which, noting what the appellant had also said about severance of family ties for many years, his Honour said struck him as beyond credulity. The relevant response of counsel was simply “Yes, your Honour”.
Having made those observations I am, however, of the view that Mr Taylor’s conclusion that the appellant was in need of urgent psychiatric care was not a matter which would engender scepticism. It is appreciated that Mr Taylor is a psychologist and that psychiatric diagnosis is a matter for those differently qualified. His experience and qualifications would enable him, both by application of tests and interview assessments, to determine that it was imperative that the appellant receive appropriate psychiatric treatment. In that circumstance it is an essential implication that there existed an underlying psychiatric condition of some kind and of some significance. On the evidence, a finding ought to have been made to that effect, whether or not there was acceptance of any specific diagnosis proposed by the psychologist.
His Honour’s remarks on sentence included an express intention to factor general deterrence into his sentence assessment. Undoubtedly threat by a syringe said to be infected is objectively very serious and calculated to instil extreme fear in those threatened. It was necessary, however, in the light of the appellant’s condition to consider her suitability as a vehicle for the expression of such deterrence: R v Scognamiglio (1991) 56 A Crim R 81. It is not the case that persons afflicted by an underlying mental incapacity are exempt from any inclusion of an element of general deterrence in sentence assessment but it was requisite for consideration to be given to whether, in the circumstances of this appellant, that element should be included, excluded or ameliorated. To that extent ground 2 is made out.
I agree with Sperling J that ground 1 has also been made out. The only reference in the remarks on sentence to consideration being given for the plea of guilty was that it was taken into account but “not much weight can be attached to it because she was caught virtually red-handed”. Consideration needed to be given to the “utilitarian” value of the plea and the strength of the Crown case is not relevant to that matter (save in cases where it is the disclosure of an accused which is the foundation of the strength of a Crown case, this was not so in the present case).
Ground 4 asserted that his Honour erred in finding that a more severe punishment than the range suggested in R v Henry (1999) 46 NSWLR 346 was appropriate. His Honour said:
“It seems to me that this case requires a more severe punishment than the range suggested in Henry”.
That approach utilizes the authority as a standard rather than as a guideline. I consider that a principled approach to sentencing requires the assessment of all the objective and subjective factors applicable in a particular case. The guideline judgment is then available to observe whether the sentence thus assessed is within established patterns of sentencing. It is not, in my opinion, a correct approach to commence with the range articulated in the guideline judgment and then conduct an exercise determining whether a particular case falls below, upon or above the guideline range. That appears to have been the approach taken by his Honour.
The imposition in this case falls into the zone of being among the highest impositions upon offenders for similar crimes and with broadly comparable antecedent record in the collated statistics published by the Judicial Commission. Given the matters which must have been advantageous to the appellant which were not appropriately taken into account, I would therefore categorize the sentence as manifestly excessive.
I further agree with Sperling J that there was no error by the sentencing judge in determining that there were not special circumstances attracting departure from the statutory formula when setting the non parole period. In the exercise of fresh discretion I would so find for the reason that in the course of custody it is to be hoped that the appellant’s mental state diagnosis will be clarified, and, if necessary, treated, and it will be appropriate for the Parole Board to be able to respond with some flexibility.
Despite the concern that is engendered by the subjective matters favouring leniency for the appellant, these cannot be allowed to outweigh the very serious objective features of the offence. The fear of contracting disease such as AIDS is widespread in the community. The threat of deliberately infecting someone (whether capable of achievement being unknown to the victim) is at a level approaching inducing terror. I consider that the most lenient assessment of sentence in this instance must be four years imprisonment.
I would order that leave to appeal against sentence be granted, the appeal allowed and the sentence imposed in the District Court quashed. In lieu therefore I would sentence the appellant to imprisonment for four years to date from 27 February 2003 and to expire on 26 February 2007 with a non parole period of two years six months to date from 27 February 2003 and to expire on 26 August 2005. I would specify the earliest date for consideration of release to parole as 26 August 2005.
Dowd J: I have seen the judgments of Grove J and Sperling J in draft form. I agree with the reasons of Grove J down to paragraph 10, but do not agree with his Honour as to the starting point.
I agree with the reasons of Sperling J and his proposed orders.
Sperling J: The applicant seeks leave to appeal against a sentence of imprisonment for six years with a non-parole period of four years and six months imposed by Maguire DCJ for the offence of armed robbery committed on 27 February 2003. The sentence also commenced on that date. The maximum penalty for this offence is imprisonment for 20 years.
The grounds of appeal are as follows:
1.His Honour failed to accord the Applicant an appropriate discount for her plea of guilty;
2.His Honour erred in determining that general deterrence was a factor in determining the sentence;
3. His Honour erred in failing to find special circumstances;
4.His Honour erred in finding that a more severe punishment than the range suggested in Henry was appropriate;
5. The sentence imposed was manifestly excessive.
The objective facts of the case are summarised in his Honour’s remarks on sentence as follows:
At 5.45pm, Thursday 27 February 2003 the victim was working at her hairdressing salon at 79 Scott Street, Liverpool. The victim had one client with her. At this time the accused, Michelle [sic] Hemsley, entered the salon. The accused approached the victim who was standing cutting the witness’s hair at the right of the store, about ten metres from the front of the store. The accused walked up to the victim and demanded money from her. At this time the witness and the victim sighted a syringe in her hand. It appeared that the syringe was filled with blood. The accused yelled at the victim, “I’ve got AIDS”. She moved forward with the syringe held towards the victim. The victim feared for her safety and immediately went to the rear of the shop and took $460 cash – eight $50 notes and three $20 notes – out of her handbag and gave it to the accused. The accused snatched the money from the victim and ran out of the store and was last seen running towards the Liverpool railway station. It is plain that the prisoner was apprehended at the nearby railway station a short time later. When interviewed by police, the prisoner made no meaningful reply to any questions.
The applicant was born on 9 March 1973. She was 29 years of age at the time of the offence.
The applicant pleaded guilty at the earliest opportunity.
The applicant’s criminal history records numerous convictions for offences relating to prostitution, offences relating to possession and use of prohibited drugs, and some property offences. The severest sentence the applicant had previously received was that on 23 August 2000, she was sentenced to imprisonment for six months for the offence of break and enter a building with intent to commit a serious indictable offence. The sentence was suspended on entering a bond to be of good behaviour for six months. The applicant had not, prior to the present matter, served a prison sentence, except for short periods of imprisonment for fine defaults.
On behalf of the applicant, a report by Mr W J Taylor, clinical forensic psychologist, dated 1 August 2003, was tendered without objection at the sentencing hearing. His curriculum vitae, tendered with the report, indicates that he is a well qualified and experienced practitioner. I provide the following extracts from the report:
Family History
Miss Hemsley stated that she is an only child She said she was raised in the Melbourne suburb of South Yarra. She said that her father was an accountant. However, she went on to say that both of her parents died in the September 11 Trade Towers [sic] disaster in America. She then said that her father had been very abusive both physically and emotionally. She said that her mother was very afraid of her father and that he assaulted both her mother and herself. She said that her mother always made excuses for her father saying that “dad had a very stressful job”. She said she had always been close to her mother.
She said she left home at the age of 14 years. The reason for that was that her father had been sexually abusing her from when she was a very small child until she was 14 years of age. She said that her mother knew what was happening but that “she was too afraid to do anything”. She said that when she left home, she came to Sydney and lived in Kings Cross. She said she obtained work in one of the strip clubs in Kings Cross.
Marital Status
Miss Hemsley stated that she is single and has never married. She described herself as being homosexual and was in a relationship for 14 years. She said that this relationship ended when she was arrested in relation to the present offence.
Education
She stated that she was educated in Victoria until the age of 14 years. She said she completed her School Certificate in New South Wales and obtained average results. She then went on to say that she was suspended on 2 occasions for using drugs whilst she was at school in Sydney.
Since leaving school, she said she has completed a trade course in hairdressing through TAFE.
Employment
Mis Hemsley provided the following history of her employment since leaving school:-
She worked as a stripper and prostitute from the age of 14 years. She said she has been employed in these capacities on and off up until her arrest and coming to gaol.
She was employed as an apprentice hairdresser at 17 or 18 years of age. She stayed in this area of employment for about 9 years but has not been able to work since then because she has been diagnosed with cancer and has been on a pension.
Health
She said she has been asthmatic all of her life. She said it was more severe when she was a child and had been hospitalised on a couple of occasions. She said that her asthma has become more severe since coming to gaol and she feels that this is due to stress. However, she said she is taking appropriate medication.
She said she was diagnosed with Hodgkin’s Lymphoma at the age of 21 years. She said she had surgery including a mastectomy as well as also having radiation and chemotherapy. She said she has now been in remission for about 12 months prior to coming to gaol.
With regard to her emotional health, she said she feels she has been severely depressed “for as long as I can remember”. She said she has had treatment at the Royal Prince Alfred Hospital as an impatient [sic] on a few occasions. She said this may have been in the last 5 years. She said then that she has been diagnosed with having major depression and a borderline personality disorder. She said she has not told the staff at Mulawa about her psychiatric background “because they would lock me in a safe cell”. She then broke into tears. She said she feels suicidal a lot particularly since coming to gaol.
She also said that prior to coming to gaol, she has slashed her wrists on a few occasions and has also tried to throw herself under the front of trains and buses. She said she is taking Largactil medication. She then said “I find it scary in gaol”.
Alcohol and Drugs
Miss Hemsley stated that she consumes alcohol on a social basis. She said occasionally she would have a drinking binge and said this would occur somewhere between once every 2 weeks and about once a month. She said she has mainly done this to help her with the physical pain that she experiences as a result of her cancer and also emotional distress. She said that in fact she has been drinking this way for many years.
She said she began to use amphetamines at about the age of 14 years. She said she injected it and built up a habit. She said that when she was 15 years of age, she could not sleep due to using amphetamines and so began smoking cannabis. She said she has smoked it up until the present time on an on-and-off basis.
She said that when she was 21 years of age, she was diagnosed with cancer and was put on morphine for pain. Because of this, she became addicted to morphine and then began to use heroin when she could no longer obtain morphine legally. She said she became addicted to heroin and this has been the case ever since. She said that the only time she has not used heroin is when she has been using morphine being MS Contin.
She said she received drug rehabilitation a couple of years ago. However, she said she left the program after a week as she only had detoxification and did not follow up with actual rehabilitation. She then said “my depression makes it hard to go and stay in places like rehab centres”.
Diagnosis and Personality Organisation
Miss Hemsley’s profile indicates that she has a borderline personality disorder and also suffers from major depression. Additionally, she has a number of avoidant, schizoid and self-defeating characteristics in her personality adjustment. She also has an above average to high predisposition towards substance abuse.
Opinions
Miss Hemsley provided a history of having been raised in the Melbourne suburb of South Yarra. Her family life was particularly dysfunctional due to physical and sexual abuse by her father. It was because of this continuing reviews [sic] that she ran away from home at the age of 14 years, came to Sydney, and became involved prostitution [sic] and illegal drugs. She stated that she has lived this type of lifestyle up to the present time. It is hardly surprising therefore that she has a criminal record in which she has a number of offences related to prostitution and substance abuse. It is worthy of note, however, that up until the present offence, she has not been charged with any crime of violence or indeed any other offence of this type previously. She stated that in committing the offence, she had been virtually made to take part by her partner who had threatened her with harm if she did not agree to commit the offence. It needs to be noted that Miss Hemsley claims to have been in a homosexual relationship with her partner for 14 years and that it had ended at the time of the present offence. From comments made by Miss Hemsley, it does appear that her partner had a very strong influence over her. This is consistent with the diagnosis of her having a borderline personality disorder, some of the characteristics of which were outlined earlier in this report. She said she has previously been diagnosed with borderline personality disorder and major depression and indeed has had a number of hospitalisations at the Royal Prince Alfred Hospital in Sydney. People suffering from a borderline personality disorder do have very strong fears of abandonment and rejection and would go to extraordinary lengths to avoid this.
A further factor which must be considered in relation to Miss Hemsley’s offending behaviour is that she would not have been in a position to exercise rational and sound judgment with regard to participating in the offence. This is due to the nature of her borderline personality disorder and her depressive illness. Clearly, what is most urgently needed for Miss Hemsley is for her psychiatric disturbance to be appropriately treated and she is in need of urgent psychiatric care.
[Emphasis added.]
Mr Taylor’s report stood as evidence, not only of his opinions as stated in the report, but also as evidence of the matters recorded by him as having been stated by the applicant. As I have noted above, there was no objection to the report. Nor was there any application for a ruling limiting its use. At the sentencing hearing, the Crown prosecutor made the following observation:
Your Honour, if I can say that I think this would be a matter in which your Honour would be greatly benefited by a psychiatric report from the Corrective Services. That is a report that is occasionally ordered. It would appear that it would be difficult to sentence the offender with some of the information that’s contained in Mr Taylor’s report.
No such report was tendered by the Crown, notwithstanding that the matter was stood over, after submissions, for sentence at a later date. The record does not reveal that any steps were taken by the Crown to obtain such a psychiatric report.

In these circumstances, Mr Taylor’s report stood as unchallenged evidence of the matters stated by the applicant to him, and as opinion evidence unchallenged by cross-examination or by any competing professional opinion.
In the course of submissions made at the sentencing hearing, his Honour expressed scepticism about some limited aspects of the history provided by the applicant to Mr Taylor. However, in his remarks on sentence, his Honour reviewed the history provided to Mr Taylor by the applicant in terms only of what was said by the applicant, and without making any finding concerning those matters one way or the other.
His Honour made no finding concerning the applicant’s mental condition.
There is no obvious reason for rejecting any part of the history provided by the applicant to Mr Taylor, given that there was no objection to the tender and no application to limit the use of the report. Nor is there any obvious reason for rejecting Mr Taylor’s diagnosis concerning the applicant’s mental state or his opinion concerning the significance of her mental state in relation to the offence, in the absence of any challenge to his opinion in that regard.
After recording the history provided by the applicant to Mr Taylor, his Honour went on to make the following observations:
The prisoner has shown no sign of contrition in respect of this offence. She has not placed before the Court any references or testimonials. I note that she has not hitherto served a sentence of imprisonment. I take the view that the prospect of her being rehabilitated is a forlorn one. Indeed, she seems to share that view with me. I take into account the fact that she has pleaded guilty, although not much weight can be attached to it because she was caught virtually red handed. As I understand the community attitude to offences like this, there is a strong view that shop assistants and others working alone in their work places are entitled to the protection of the courts against the action of persons such as the prisoner. I perceive the need for general deterrence to be a factor in determining a sentence in a case such as this.
It was open to his Honour to find that there was poor prospect of rehabilitation and that there was a need for general deterrence as a sentencing factor in relation to offences of this kind. However, there was error concerning the plea of guilty and the relationship between the plea and the question of contrition. The plea of guilty stood to be taken into account in two ways. First, the applicant was entitled to an appropriate discount for the utilitarian value of the early plea irrespective of the strength of the Crown case: Thomson and Houlton (2001) 49 NSWLR 383 at [136]-[139]. Secondly, the plea stood as some evidence of contrition, although, in that regard, his Honour was entitled to find that it should be accorded little weight as such evidence because of the strength of the Crown case.
His Honour referred to the maximum penalty for the offence. He then referred to the guideline judgment of the Court of Criminal Appeal in Henry (1999) 46 NSWLR 346. In that case, it was held that the sentence for armed robbery should fall within the range of imprisonment for four to five years for a case with certain specified features, subject to any other aggravating and mitigating factors. The specified features were:
(i)           young offender with no or little criminal history;
(ii)          weapon like a knife capable of killing or inflicting serious injury;
(iii)         limited degree of planning;
(iv)         limited, if any, actual violence but a real threat thereof;
(v)          victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi)         small amount taken;
(vii)        plea of guilty.
In Thomson and Houlton, it was made clear that the reference to a plea in Henry was to be taken as meaning a late plea. Thomson and Houlton propounded a discount of 10 to 25 per cent for the utilitarian value of a plea of guilty. The guideline range in Henry was accordingly to be taken as having allowed a discount of 10 per cent for a late plea. In the case of an early plea, a discount on the Henry range of up to 15 per cent was accordingly to be allowed.
In the present case, his Honour said, concerning the application of Henry –
It seems to me that this case requires a more severe punishment than the range suggested in Henry. The prisoner’s criminal record deprives her of any right to be dealt with on the basis suggested in that decision.
The only aggravating factor in the present case not taken into account as a feature of the guideline case in Henry was criminal history. In the applicant’s case, that was not a heavy consideration. There was then a failure to take into account the applicant’s mental condition as a mitigating factor.
Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].
Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].
Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].
A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24].
His Honour did not take the applicant’s mental condition into account in any of those respects. That constituted error in view of Mr Taylor’s unchallenged evidence.
His Honour found that there were no special circumstances warranting a variation of the provisional statutory ratio between the sentence and the non-parole period.
I turn then to the grounds of appeal. Ground 1, that his Honour failed to accord the applicant an appropriate discount for her plea of guilty, is made out.
Ground 2, that his Honour erred in determining that general deterrence was a factor in determining the sentence, is not made out in those terms, but his Honour erred in failing to moderate the factor of general deterrence by reason of the applicant’s mental condition. He also failed to take the applicant’s mental condition into account in assessing her moral culpability and failed to recognise the additional hardship of incarceration resulting from the mental condition in this case.
As to Ground 3, that his Honour erred in failing to find special circumstances, I would not uphold this ground of appeal. However, I would, for myself, find special circumstances, by reason of this being the first occasion on which the applicant is to serve any substantial custodial sentence and by reason of prison being an additional hardship for her because of her mental condition. (That will be brought to account on re-sentencing.)
Ground 4, that his Honour erred in finding that a more severe punishment than the range suggested in Henry was appropriate, is made out. The applicant’s criminal history was not a substantial aggravating factor whereas the applicant’s mental condition was a substantial mitigating factor.
Ground 5, that the sentence was manifestly excessive, is made out. The offence was objectively a serious one. The threat of injury with a syringe allegedly containing contaminated blood must have been a terrifying experience for the staff of the hairdressing salon where the offence was committed. On the other hand, the subjective features of the case to which I have referred are such that the sentence was, in my opinion, manifestly excessive.
The sentence should, accordingly, be quashed and the applicant re-sentenced.
Evidence was received on the hearing of the appeal, to be taken into account in the event of re-sentencing. In an affidavit sworn on 11 June 2004, the applicant has given an account of her time in prison to date. She spends two days a week at the prison education centre. She sees the drug and alcohol counsellor at least once a week. She continues to suffer from depression. She sees the prison psychologist weekly or fortnightly. She continues on medication, which has been changed from Largactil to an anti-depressant. She attends meetings of Kairos, a Bible-centred group, fortnightly, and the Alpha course run by the Salvation Army weekly. She expresses contrition for the offence.
In an affidavit sworn on 16 June 2004, the applicant’s solicitor has provided written evidence of a counselling assessment by Major B George, prison chaplain. The report attests to a developing insight by the applicant into the causes of her mental state and a willingness to change her patterns of behaviour. Other prison reports confirm the applicant’s conscientious attitude to employment in the prison and demonstrate progress in her evidence concerning her education programme, drug and alcohol counselling and treatment by the psychologist.
It is apparent that, contrary to the sentencing judge’s expectation, the applicant has made considerable effort and progress in her rehabilitation.
Section 44 of the Crimes (Sentencing Procedure) Act 1999 applies in its present amended form by reason of the offence having been committed after 1 February 2003.
I would set a non-parole period of two years. I would impose an overall sentence of three years, having regard to the guideline range of four to five years in Henry, a minor increment by reason of the applicant’s criminal history, a reduction by reason of the applicant’s mental condition and a further reduction in the order of ten per cent as a discount for the applicant’s early plea of guilty over and above what is to be taken as included in the Henry guideline range in that regard.
The provisional statutory ratio between the non-parole period and the balance of the sentence will have been varied by reason of the special circumstances to which I have referred.
I propose the following orders:
(1)          Grant leave to appeal against sentence;
(2)          Appeal allowed;
(3)Sentence quashed and, in lieu thereof, re-sentence the applicant to imprisonment for three years commencing on 27 February 2003 with a non-parole period of two years commencing on 27 February 2003 and expiring on 26 February 2005;
(4)          Order that the applicant be released on parole at the end of the non-parole period.

-oOo-

LAST UPDATED: 07/07/2004