R v Kane
[2013] SASCFC 149
•23 December 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KANE
[2013] SASCFC 149
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
23 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OTHER PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
The appellant appeals against a sentence of 18 years imprisonment, with a non-parole period of 12 years, imposed as a single sentence on convictions of ten counts of aggravated robbery and one count of robbery. A cumulative sentence of one month’s imprisonment was imposed for the appellant’s breach of an earlier bond to be of good behaviour.
The robberies were committed on a number of hotels, pharmacies and a newsagent over a period of about a month in early 2011. The amounts taken were generally less than $1000, but some very large sums, up to $22,000, were taken. The money was never recovered despite the appellant’s arrest the day after the last offence.
The appellant appeals on the ground that the Judge failed to: (a) have sufficient regard to the appellant’s major depressive disorder, and the significance of that disorder in the context of the appellant’s personal circumstances in fixing the head sentence and non-parole period; (b) identify notional individual sentences for each offence; (c) identify the degree of concurrency of imprisonment reflected in the single global sentence imposed for the robberies; (d) apply the principle of totality which requires a consideration of whether the sentence was crushing. The appellant also contends that, if his submissions about the substantial mitigating effect of the major depressive illness were to be accepted, the sentence is manifestly excessive. In connection with ground (a), the appellant asks the Court to receive, as fresh evidence, the report of a psychiatrist to the effect that the major depressive disorder was precipitated by a course of anti-viral medication to treat hepatitis C.
Held (dismissing the appeal):
(1) Section 18A of the Criminal Law (Sentencing) Act 1988, which allows a global sentence for multiple offences, does not require a Judge to first identify individual sentences for each of the offences. It is not necessary, when employing section 18A of the Criminal Law (Sentencing) Act 1988, for a Judge to expressly review the global sentence arrived at for totality. It is generally implicit in the fixing of a single global sentence that all factors, including questions of concurrency and the “crushing” effect of the ultimate sentence, have been considered. Appeal grounds (b), (c) and (d) dismissed.
(2) The Judge had sufficient regard to the appellant’s major depressive disorder. The weight to be accorded to that condition was a matter for the Judge. The Judge expressly found that the offences were committed because the appellant had again become dependent on heroin after falling into depression brought on by the anti-viral treatment. It follows that the report of the psychiatrist tendered by the appellant on appeal does not add, in any material way, to the finding made by the Judge. The fresh evidence is therefore not received on the appeal. The sentence is not manifestly excessive. Appeal ground (a) dismissed.
(3) Appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 (SA) s 137; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Symonds [1999] SASC 217; R v Copeland (No 2) (2010) 108 SASR 398; R v McNamara (2009) 105 SASR 38; R v B, RWK (2005) 91 SASR 200; R v Rossi (1988) 142 LSJS 451; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Major (1998) 70 SASR 488, considered.
R v KANE
[2013] SASCFC 149Court of Criminal Appeal: Kourakis CJ, Vanstone and Stanley JJ
1 KOURAKIS CJ: The appellant appeals against a sentence of 18 years imprisonment imposed in the District Court as a single sentence on the appellant’s convictions on ten counts of aggravated robbery and one count of simple robbery (the robberies). A cumulative sentence of one month’s imprisonment was imposed on the resentencing of the appellant for an offence of driving whilst disqualified for which he had earlier been placed on a bond to be of good behaviour for 12 months. A non-parole period of 12 years was fixed.
2 The robberies were committed on a number of hotels, pharmacies and a newsagent between 14 March 2011 and 11 April 2011. The amounts taken were generally less than $1,000, or thereabouts, but some very large sums were also taken. In the robbery committed on the Reservoir Hotel on 30 March 2011, the appellant took $22,000, and on 11 April 2011, $18,000 was taken from the newsagency. Even though the appellant was arrested on the very next day, no money was recovered.
3 The appellant appeals on the grounds that the Judge: [1]
(a)failed to have regard, or sufficient regard, to the appellant’s major depressive disorder, and the significance of that disorder in the context of the appellant’s personal circumstance in fixing the head sentence and non-parole period;
(b) failed to identify notional individual sentences for each offence;
(c)failed to identify the degree of concurrency of imprisonment reflected in the single global sentence imposed for the robberies;
(d)failed to apply the principle of totality which requires a consideration of whether the sentence was crushing.
[1] I have grouped and summarised the grounds for ease of analysis.
4 The appellant also complains that the sentence is manifestly excessive if his submissions about the substantial mitigating effect of the major depressive illness were to be accepted.
5 In connection with ground (a) the appellant asks this Court to receive the report of a psychiatrist to the effect that the appellant’s major depressive disorder was precipitated by a course of Interferon medication given to treat his hepatitis C illness.
6 The grounds (b), (c) and (d) can be quickly disposed of. A Judge who employs the facility provided by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to impose a global sentence for multiple offences is not required, as a matter of law, to first identify individual sentences for each of the offences.[2] In many cases it will be helpful to do so and a failure to do so may result in a manifestly excessive or inadequate sentence because of the failure to pay sufficient attention to the sentences warranted by each offence and the degree, if any, to which they should be concurrent. However, there is no requirement in law to lay that process bare in the sentencing reasons.[3] Nor is it necessary, when employing s 18A of the Sentencing Act, to expressly review the global sentence arrived at for totality. As Vanstone J explained in R v B, RWK,[4] it is the arithmetic accumulation of sentences appropriate to individual offences which calls for a review under the totality principle. It is generally implicit in the fixing of a single global sentence that all factors, including questions of concurrency and the “crushing” effect of the ultimate sentence, have been considered.
[2] R v Symonds [1999] SASC 217, [21].
[3] R v Copeland (No 2) (2010) 108 SASR 398, [92]-[110]; R v McNamara (2009) 105 SASR 38, [27].
[4] (2005) 91 SASR 200, [20]-[25].
7 Grounds (b), (c) and (d) must therefore fail.
8 As to ground (a) it is clear that the Judge did have regard to the appellant’s major depressive disorder. The weight to be accorded to that condition was a matter for the Judge. The Judge expressly found that the offences were committed because the appellant had again become dependent on heroin after falling into a depression brought on by the Interferon treatment. It follows that the report tendered by the appellant on appeal does not add in any material way to the finding made by the Judge. Finally, I am satisfied that the sentence imposed was not manifestly excessive. I elaborate on my reasons for rejecting ground (a) and for refusing to receive Dr Brereton’s report below.
The appellant’s life
9 The appellant was born in August 1980. He was raised by his mother and stepfather in Dubbo, New South Wales, following the separation of his natural parents when he was one year of age. The appellant’s stepfather regularly abused alcohol and other drugs and was psychologically and physically violent towards him. He barely attained a Year 9 educational standard. He left school when he was 15 years of age, and lived on the streets before travelling to Queensland when he was aged 16.
10 The appellant’s drug history commenced with the abuse of the lighter-gas butane. He used cannabis between the ages of 13 and 17. He first administered amphetamine intravenously when he was aged 15. He has been addicted to heroin from when he was 16 years of age.
11 The appellant’s extensive offending history commences with offences as a youth. Later, as an adult, in 1998, he was sentenced to 18 months imprisonment in Queensland for multiple offences which included theft. In 2000, he was sentenced to nine months imprisonment in New South Wales for offences including the possession of illicit drugs and breaking and entering with intent to steal. In 2002, the appellant was sentenced in New South Wales to imprisonment for four years and six months for robbery with an offensive weapon and to four years for an offence of aggravated breaking and entering and committing a serious indictable offence.
12 On 6 May 2009, the appellant was sentenced in the Southport District Court for a range of offences committed in 2007. After taking into account the time the appellant had spent on remand in custody after his apprehension for those offences (586 days), the appellant was released on a suspended sentence.
13 After his release the appellant and his wife moved to South Australia. His wife was formerly a drug counsellor and psychologist. Here the appellant found work in a paving and landscaping business. In a reference provided to the Judge, his employer described him as a reliable and diligent worker. The Judge accepted the appellant’s submission that after his arrival in Adelaide he remained drug free and had made substantial progress in his rehabilitation until shortly before the commission of these offences. As I have already observed, the appellant’ relapse into crime was attributed to depression precipitated by his treatment with Interferon.
The Interferon treatment
14 The appellant was seen at the Royal Adelaide Hospital Hepatology Clinic (Hepatology Clinic) on 21 September 2009. He was found to have Hepatitis C and on 22 February 2010 he was accepted into an Interferon treatment program. The nature of the treatment and its possible side effects, including depression, were explained to him. He commenced the Interferon treatment in October 2010. He did not attend a review appointment scheduled for 13 December 2010 because on 12 December 2010 the appellant was admitted to the Modbury Hospital. He remained an inpatient there until on 13 December 2010. The discharge summary records that the appellant was initially an orthopaedic patient but was admitted for management of his “right arm swelling and pain”. The hospital records show that on admission the appellant admitted to intravenous drug use one week earlier. An ultrasound showed cephalic vein thrombosis. He was placed on Warfarin and discharged several days later.
15 On 10 January 2011, the appellant was reviewed at the Hepatology Clinic. A report of the senior visiting physician Dr Arens, which was before the Judge, records that at that date the appellant was “coping with his treatment but was having difficulties with sleeping”. There was no recorded complaint of depression. Dr Arens also noted that the appellant was being treated at the Modbury Public Hospital for thrombophlebitis.
16 The appellant was readmitted to the Modbury Hospital on 13 January 2011. Another ultrasound was taken on 14 January 2011. It showed some thrombophlebitis in the right forearm and right leg. An abscess was also noted on the dorsum of the right wrist. The appellant also was noted to have old injuries in his right wrist and right knee. The appellant was treated in the Modbury Hospital for phlebitis and thrombophlebitis until he was discharged on 18 January 2011.
17 The appellant was to be reviewed at the Hepatology Clinic again at the end of this treatment in March 2011 but did not attend for that review because by that time he had embarked on the course of offending which has brought him before the Court. The appellant was arrested for the robbery offences on 12 April 2011 and has remained in custody since that time.
18 On 5 September 2011, whilst in custody, the appellant was seen by Dr Arens. Dr Arens records that the appellant had completed his treatment six months earlier. Dr Arens reported that the appellant told him that he had not tolerated the treatment well. The appellant reported “a depressed mood” that had resolved upon withdrawal of the treatment. In his report, Dr Arens confirmed that “mood disturbance is a recognised potential side effect of Interferon therapy”, but that it can be treated with mood stabilising or anti‑depressant medication. Dr Arens did not know whether the appellant had sought medical assistance and whether he had been prescribed anti‑depressant medication when he became depressed.
19 The appellant’s submission before the Judge was that he did not receive medical treatment for his depression but self medicated by resorting to heroin. The appellant did not provide any report from his general practitioner who could have been expected to provide relevant information about the appellant’s mental state over the time he was taking Interferon. The appellant’s general practitioner was informed by the Hepatology Clinic that the appellant had been placed on the Interferon treatment programme and information about that drug’s side effect was sent to him.
20 The Judge received a report from the psychologist, Mr Balfour. Mr Balfour observed that the appellant lacked self-esteem but did not have a history of depression or suicidal ideation before receiving the Interferon treatment.
21 Mr Balfour reported the following history of Mr Kane’s depression after he was placed on the Interferon Program:
Within three months of commencing anti‑viral treatment, Mr Kane became severely suicidally depressed. He made two suicide attempts of high lethality, consisting of injecting himself with battery acid, for which he was hospitalised for treatment. He did not disclose to his treating doctors what he had done. He clearly was suffering from a major depressive disorder. He would also have clearly been detainable under the Mental Health Act, but his treating doctors did not know his clotting disorder was caused by failed suicide attempts.
There is recent literature which has demonstrated a clear association between using Interferon and the development of the side effects of depression and suicide in some individuals. However, there is still considerable debate regarding the causal relationship.
Prior to his treatment with anti‑virals Mr Kane had never felt severely depressed or become actually acutely suicidal. He did not really understand what was happening to him when he was being treated with Interferon. He felt too ashamed to seek help for his depression. He was not aware of the possibility his Interferon may have made him develop depression. His severe depression resulted in a relapse of his intravenous heroin addiction which led to him committing the current offences. He had developed a $1,000 heroin addiction.
Mr Kane’s belief that his use of Interferon is responsible for him becoming suicidally depressed, and developing a relapse of his intravenous heroin addiction, is plausible. However I believe the Court would require a report from an appropriate medical expert to further explore this issue because it is beyond my area of expertise. Nevertheless I have had numerous clients report to me that they have become suicidally depressed whilst being treated with Interferon for their Hepatitis C.
22 In the appellant’s written submissions on the appeal, the following chronology was asserted:
·the Interferon treatment commenced on 1 October 2010;
·his depression and use of heroin commenced in January 2011;
·he attempted suicide by injecting himself with battery acid on 13 January 2011 and again in March 2011.
Several observations should be made about that history. First, it is inconsistent with the dates of his admissions to the Modbury Hospital. Secondly, the claim that he was admitted to the Modbury Hospital for phlebitis secondary to injecting battery fluid is inconsistent with the initial outpatients contact being with the orthopaedic outpatient service of the Modbury Hospital. Thirdly, it is surprising that on his second admission in as many months, the hospital’s investigations did not reveal the cause of the phlebitis to be related to the injection of battery acid. Indeed, the inference from the discharge summaries is that it was related to his orthopaedic complaints. Fourthly, it is difficult to understand why the appellant complained of no more than some sleeplessness when he was reviewed at the Hepatology Clinic within days of what was said to be a suicide attempt in January 2011. Fifthly, the appellant did not place reports from the Modbury Hospital, other than the bare discharge summaries, or his general practitioner before the Court.
23 All in all, the appellant was fortunate that the Judge accepted the connection between the Interferon treatment, the appellant’s depression and his subsequent relapse into heroin use. The Judge found:
However, as a result of commencing a course of Interferon, an anti‑viral treatment for the Hepatitis C infection, you became suicidally depressed and returned to the use of heroin. You made two suicide attempts and were diagnosed as suffering a major depressive disorder. Mr Balfour confirmed that research has demonstrated a clear association between using Interferon and the possible development of depression and suicidal ideation. ...
In the present case I consider the offending while carried out over a period of four weeks, constitutes, in effect, a single course of conduct by the common thread of addiction to heroin exacerbated by the development of serious depression related to use of Interferon.
24 It is clear from that finding that the Judge had regard to the connection between the appellant’s Interferon induced depression, his heroin addiction and the commission of the offence. It is not an appellable error in the exercise of a discretion for a Judge to put more or less weight on a relevant consideration than the appellate court may have. Ground (a) must therefore be dismissed.
Further evidence
25 Finally, I turn to the report of Dr Brereton which the appellant seeks to adduce as further evidence on appeal. In his report dated 22 November 2013, Dr Brereton provided the following record of the history obtained from Mr Kane:
·A side effect of the Interferon Therapy the appellant was receiving appears to have been a significant deterioration in his mental health from about two weeks into therapy which developed into a severe depressive episode within a number of months.
·Mr Kane’s depression significantly affected his thinking in that he experienced distorted, negative thoughts about himself and the world around him, eventually coming to the view that his life was not worth living and that his wife would be better off without him.
·He became preoccupied with thoughts of suicide and reports that he made two high‑lethality attempts by injecting battery acid but told no‑one he had done so.
·Mr Kane’s severe depression and distorted thinking led to the abuse of heroin and this provided considerable relief.
·When he became increasingly dependent on heroin he stopped work, stole from his wife and eventually returned to crime to support his habit.
·He formed a plan to repay his wife and then kill himself, but each time he spent the stolen money on heroin and committed another robbery.
·On ceasing anti‑viral medication Mr Kane’s mental health recovered quite quickly and within two months he had returned to his usual self with no residual features of psychiatric illness. There is nothing in the Prison Medical Record to indicate mental health problems.
26 Mr Brereton gave the following opinions subject to the express qualification that he was heavily reliant on the truth of Mr Kane’s account because there was limited objective information available:
·Depression as a side effect of Interferon Therapy in Hepatitis C is well recognised. There is a substantial body of academic research and articles supporting its existence.
·Symptoms generally develop within two weeks of starting therapy. Mood changes appear to be related to the dose and duration of therapy and can be reversible once treatment has been discontinued.
·Symptoms described are in keeping with those described by Mr Kane, e.g. depressed mood, emotional lability, fatigue, apathy, anhedonia, loss of appetite, sleep disturbance and sexual dysfunction.
·Suicidal thoughts and suicide attempts are rare with Interferon Therapy but are nonetheless a recognised problem.
27 It can be seen that Dr Brereton’s opinion goes no further than the finding succinctly made in the Judge’s sentencing remarks. The report does not add in any material way to the information which was before the Judge. Moreover there is no reason why the report or one like it could not have been provided to the Judge.
28 I would not receive the report on the appeal.
Manifestly Excessive
29 In R v Place,[5] this Court affirmed that, generally speaking, the appropriate penalty for armed robberies of retail businesses was between six to eight years subject to an appropriate reduction to reflect remorse and contrition if there has been a guilty plea. A single offence of the kind committed by the appellant, if sentenced in isolation, generally could be expected to attract a sentence of between four to seven years having regard to his guilty pleas. In the appellant’s case large amounts were taken and there is little reason to reduce the sentence in the hope of future rehabilitation given his extensive criminal history. Moreover, the failure to recover the proceeds suggests that his contrition is limited.
[5] (2002) 81 SASR 395. See also R v Harradine and Harradine [2012] SASCFC 103, [22].
30 On the other hand, the appellant has in his favour a favourable finding concerning the medically induced depression which led to his relapse into heroin use and, ultimately, his criminal ways. There is some reason to allow a large degree of concurrent operation in the sentences given the common cause of the offending and the relatively short period over which it was committed. However, it should not be thought that once an offender has embarked on a crime spree there is little reason to exercise restraint. Frenetic offending like the appellant’s calls for a strongly deterrent response.
31 When a Judge sentences for multiple serious offences the variables affecting the length of the term of imprisonment are so great that the range in which the sentence might properly fall is a wide one. Sentences of the order imposed by the Judge have often been imposed for multiple offences of armed robbery.[6] It cannot be said that the sentence in this case was manifestly excessive.
[6] R v Copeland (No 2) (2010) 108 SASR 398 - a sentence for fewer offences, but following a trial. See also R v Rossi (1988) 142 LSJS 451; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217.
Conclusion
32 I would dismiss the appeal
33 VANSTONE J: For the reasons given by the Chief Justice I agree that the appeal should be dismissed.
34 STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
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