R v Lee - [2003] NSWCCA 391

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Lee [2003] NSWCCA 391 revised - 18/12/2003

FILE NUMBER(S):
60296/03

HEARING DATE(S): 15/12/03

JUDGMENT DATE: 18/12/2003

PARTIES:
Regina
Todd Andrew Lee

JUDGMENT OF: Barr J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/31/0341

LOWER COURT JUDICIAL OFFICER: Kinchington DCJ

COUNSEL:
Ms D Woodburne (Crown)
H Dhanji (Appl)

SOLICITORS:
C K Smith(Crown)
K Longin - Murphys Lawyers (Appl)

CATCHWORDS:
Criminal Practice & Procedure
applicant mentally unwell but not insane
deterrence
whether sentence gave proper weight to mental state

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted
Appeal allowed
Sentence imposed by Kinchington DCJ on 13/12/02 quashed, in lieu thereof the applicant resentenced to 5 years imprisonment to commence 9/4/02 and expire 8/4/07, with a non parole period of 2 1/2 years to commence 9/4/02 and expire 8/10/04. Eligible for release on parole on 9/10/04.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60296/03
BARR J
KIRBY J
Thursday 18 December 2003

REGINA v Todd Andrew LEE

Judgment

BARR J: I agree with Kirby J.
KIRBY J: Todd Andrew Lee (the applicant) seeks leave to appeal against the sentence imposed by Kinchington DCJ at the Tamworth District Court on 13 December 2002. Mr Lee pleaded guilty to the offence of Detaining Persons with an Intent to Obtain an Advantage, the advantage being the avoidance of apprehension. That is an offence under s86(1)(b) of the Crimes Act 1900 (the Act). The maximum penalty is 14 years imprisonment. At the time of entering his plea, Mr Lee asked his Honour to take account of five further offences on a Form 1. They were all offences committed at the same time as the principal offence. The offences were:

That he was armed with a Stanley knife, scissors and items he represented as explosives, with the intent of committing an indictable offence, namely, intimidating others (contrary to s33B(1) of the Act).
That he remained in a building, namely a school classroom, with intent to commit an indictable offence, namely, larceny, contrary to s114(1)(d) of the Act.
That he assaulted three school children, being three counts under s61 of the Act.

Taking account of the matters on the Form 1, his Honour imposed a sentence of 6 1/2 years with a non parole period of 3 1/2 years, the sentence to date from his arrest on 9 April 2002.
The Offences
The applicant was born on 22 February 1971. At the time of these offences he was 31 years old. He lived with his parents at Kootingal, a small town outside Tamworth. He was unemployed. On 9 April 2002 he decided to visit his brother in Tamworth. He packed a bag, expecting that he may stay overnight. He then walked towards the local primary school, hoping to be given a lift to Tamworth on the school bus.
Mr Lee was familiar with the layout of the school. At one time he had been employed painting the school. When he got to the school, as he later acknowledged to the police, he saw that the gate was open, and the children in the yard. He entered in the hope that a teacher may have left a handbag in one of the classrooms, and he could steal money. However, whilst in the classroom, a number of children (aged between 10 and 12 years) returned. The school teacher, Ms Anderson, followed.
There was a storeroom inside the classroom. Mr Lee retreated to that room and locked the door. He was carrying in his bag some white powder, known as dextrose, used for making beer. He thereafter hatched a plan, which he described to the police in these terms:
"... I had some, some of the dextrose that Dad uses for his, for his home brew, I had some of that so I thought, if I, if I make the teacher scared to come near me, then I can sort of jump the fence and I can be away, sort of thing. But, but then I remembered that I had me bag with me that I was goin' to take to town, so I was, I was pretty well stuck."
The applicant emerged from the storeroom holding the white bag which was tied with a string. Ms Anderson provided a statement in which she said that when she first saw Mr Lee she thought he was the handyman. Instead of walking out of the classroom, Mr Lee addressed her saying:
"I'm sorry, you won't be able to leave now."
Ms Anderson asked why, still thinking he was the handyman. Mr Lee responded:
"There are things I have to do. I want you all to stay in here."
It was then that Mr Lee said that he had explosives, namely, the white bag. The powder in the bag was, of course, quite harmless. Ms Anderson moved to the corner of the room with the children. She was alarmed and the children plainly frightened. The applicant said that he had certain "demands" that he wished to negotiate. As he made this statement, he placed the bag above the door, describing it as a "bomb". He then locked the door. Addressing the children, Mr Lee said that he was not going to hurt them. Not surprisingly the children became upset. Ms Anderson attempted to calm them down.
The applicant apparently then became convinced that the children needed drinks. He opened the door and began to bring their schoolbags into the classroom from the veranda. He said to Ms Anderson that the children needed water. She suggested that a student should be released to see the principal to arrange for water. Mr Lee agreed, saying to the child, as he left the classroom:
"Go and get water, but if you don't come back, I'm going to cut your teacher's nose off."
Whilst the water was being fetched, a number of students knocked on the door, seeking entry to the classroom. Snr Const Wink, in a summary provided to the Court, described what occurred in these words:
"They knocked on the door and the accused opened the door and grabbed a female student by the neck and shoulders and pulled her into the room. He also grabbed a male student and pulled him into the room. The other students ran off and the accused attempted to grab two further male students but they were able to break free and get out of the room. One of the original male students also ran out of the door at this time. The accused shut the door and locked it again."
These actions on the part of Mr Lee, gave rise to two of the assault charges on the Form 1.
The applicant became very agitated. He pushed a large wooden cabinet in front of the door. He directed students to upturn furniture and pile it in front of the door.
The principal of the school then arrived. He spoke to Mr Lee from the verandah, outside the classroom. The applicant said his name was Elvis. He produced from his pocket a Stanley knife, which he had obtained from the storeroom. He said:
"I am prepared to hurt somebody. I've got the place wired up. I'll tell my demands to a higher authority."
The principal arranged for water. Mr Lee grabbed a female student and held a pair of scissors to her side whilst the water was transferred from the verandah into the classroom. He then released the child, and again locked the door. That action was the subject of the further charge of assault on the Form 1. Ms Anderson described the applicant, at this point, as very calm. He poured a cup of water for each child and for her.
Ms Anderson and the children had been in the classroom for about twenty minutes when the police arrived. The police spoke to Mr Lee from the verandah. They asked him to open the door and release the children. Mr Lee then moved towards a pair of scissors on the table. A police officer ripped the flyscreen from the window, and entered the room, tackling Mr Lee. Mr Lee was then handcuffed. He still had the Stanley knife in his pocket.
Mr Lee was taken to the Tamworth Police Station. The police called members of the Tamworth Mental Health Crisis Team. The team spoke to Mr Lee. They told the police that Mr Lee was probably depressed, but not mentally ill. There was, accordingly, no need for him to be scheduled under the Mental Health Act 1990. Mr Lee later participated in an interview with the police, giving the account set out above.
The police statement of the facts included a statement that the teacher and students had all been "traumatised" by the incident and that counselling had been arranged.
Grounds of Appeal
When the matter proceeded, counsel for the applicant sought to substitute the following grounds of appeal for those which had been formulated in Notice of Appeal. Leave was given. The grounds relied upon were:
1.The learned sentencing judge erred in failing to properly take into account the utilitarian value of the applicant's plea of guilty.
2.The learned sentencing judge erred in failing to properly take into account the applicant's mental disorder.
Ground 1: The allowance for the plea of guilty.
In the course of his Honour's remarks on sentence he said this:
"Finally, I note that from the outset the offender has not sought to excuse his criminal conduct and has co-operated with the investigating police from the time of his arrest and I accept that co-operation and his plea of guilty herein as a genuine sign of his remorse and contrition for his criminal behaviour on this occasion. In these circumstances it seems to me that the subjective material herein together with his plea of guilty entitle him to a discount approximating 20% on the sentence that would otherwise be appropriate in his case."
The plea of guilty, as his Honour recognised, had utilitarian value, in saving Court time, and value as a sign of contrition. In respect of the former, the selection of an appropriate discount depended largely upon the timing of the plea (R v Thomson & Houlton (2000) 49 NSWLR 383, per Spigelman CJ at 419). Here, Mr Lee acknowledged his guilt upon arrest. He pleaded guilty thereafter at the first available opportunity. A conventional figure in such circumstances is 25%. His Honour gave "approximately 20%". It is puzzling, according to the applicant, why these facts did not attract the full discount. However, his Honour included in the discount matters which, according to the applicant, ought to have been additional, that is, subjective matters suggesting contrition on the part of Mr Lee. Indeed, according to counsel for the applicant, the Court may infer that the contrition of Mr Lee was the greater (and the utilitarian value to the Crown the more substantial) because the plea avoided the need for the Crown having to call young children in its case.
One cannot imagine, however, that the Crown would ever have had in contemplation calling the children who had been detained. The offence had been committed in front of a class teacher. Much of the dialogue had been witnessed by the principal. The closing stages occurred in the presence of the police.
His Honour's discount for the plea of "approximately 20%" was perhaps lower than one may have expected in the circumstances. However, I do not believe there was error. Nonetheless, if called upon to resentence, I would apply a discount of 25%.
Ground 2: Mental illness.
The applicant had a history of mental illness, induced or exacerbated by drug use and alcohol. He was, as mentioned, 31 years old. He was the youngest of six children. He was described by Dr Nielssen as genetically predisposed towards mental illness. His family had a history of mental illness. His brother had been diagnosed with schizophrenia. He suffered sexual abuse as a child, at the hands of a neighbour. At an early age he began drinking and taking drugs. He was considered an uncontrollable child, and given permission to leave school early. At the age of 19 he began using heroin, which he continued to use for some years. He was intermittently employed.
In 1996 he was admitted to the James Fletcher Psychiatric Hospital at Newcastle. He presented as a voluntary patient, reporting a loss of control. His brother had recently died in a road accident, and his relationship with his girlfriend had terminated soon thereafter.
However, his past was not altogether bleak. He managed, without the aid of methadone, to give up heroin, although he substituted other drugs, and especially amphetamines, cannabis and alcohol. He had several long relationships. He had been able to work more or less continuously for five years before an accident on 19 April 2000, when he injured his knee.
Mr Lee was given worker's compensation as a result of his knee injury. He ultimately received two substantial payments in respect of the disability which remained. Together they totalled approximately $96,000. The first payment was made in June 2001, and the second in November that year. These payments appear to have been Mr Lee's undoing. In the months that followed, before February 2002, Mr Lee spent the entire amount. When asked how he had spent the money he said, "drugs, sluts and gambling".
Once the money was gone, Mr Lee, not surprisingly, became depressed. He again resorted to alcohol and various drugs. He was again unemployed.
As mentioned, the incident giving rise to the charges occurred on 9 April 2002. One month before (10 March 2002), Mr Lee was admitted once more to the James Fletcher Hospital at Newcastle as a voluntary patient. He remained at that hospital for ten days. He was diagnosed as having an adjustment disorder, suffering from polysubstance abuse and having borderline personality traits. He was discharged after a dispute with the treating doctor.
On 22 March 2002, that is after only one day, Mr Lee was again admitted to hospital as a voluntary patient, this time at the Banksia Mental Health Unit at the Tamworth Hospital. He was discharged on 2 April 2002. He was again admitted on 6 April 2002. Whilst at hospital, he climbed onto the roof, holding a scalpel to his throat and threatening to commit suicide unless he received help in respect of the difficulties he was experiencing. He was discharged from hospital on 8 April 2002, that is, the day before the offence. He said he was angry about his discharge. He made the following statement to Dr Olav Nielssen, psychiatrist:
"He said that 'I was extremely displeased about being kicked out ... I thought I still needed help'. He said 'they told me I was not mentally ill and they weren't going to keep me in hospital ... I thought I wasn't in control ... I was worried I was going to lash out and hurt myself'."
Mr Lee was asked by Dr Nielssen what he meant when, in the course of the incident at the school, he had said that he wished to "negotiate his demands with a higher authority". Mr Lee said he could not remember, but he wanted to be taken back to the hospital.
His Honour described Mr Lee's behaviour in the course of the incident as "bizarre". It certainly was. Instead of quietly leaving the classroom, as might be expected of a rational person, he hatched a plan which can only be described as extraordinary and pointless. Once under arrest, the police, as mentioned, arranged to have him examined by a mental health team. Once brought before the Court, the Magistrate directed that Mr Lee be returned to the Banksia Mental Health Unit.
Unquestionably his Honour was conscious of all these matters. The psychiatric evidence was placed before him. He summarised the competing contentions of counsel. The Crown emphasised the objective seriousness of the offences. Counsel for Mr Lee pointed to the impulsive nature of the act and the nature of the act itself. The actions of Mr Lee, it was suggested, were the product of a "disorganised and confused state of mind". Counsel for Mr Lee urged that he be dealt with more leniently than might otherwise be the case.
Mr Lee had a criminal history. It included Childrens' Court offences and a number of relatively minor offences since becoming an adult. In 1994 he had been placed on a recognisance once in 1994 for break, enter and steal, and in 1998 he had been fined for assaulting a police officer. He had, however, never previously been in custody. Dr Nielssen made the following observation in September 2002:
"Mr Lee appeared to have improved considerably after several months institutional care, free from drugs and alcohol and with consistent treatment with antidepressant medication. He would probably receive some benefit from completing the programme offered at the Kevin Waller Unit, a six month group therapy based programme for prisoners with self defeating personality traits considered at risk of self harm. He should also complete a long term residential drug and alcohol rehabilitation programme before his release to the community."
Mr Lee also saw a psychologist. He was assessed as having a high average intelligence. It was submitted by Mr Lee's Counsel to the sentencing Judge that Mr Lee's prospects of rehabilitation were reasonably good, a view shared by the Crown. His Honour did not expressly adopt that finding, although he appeared to accept that the prospects of rehabilitation were reasonable, provided Mr Lee maintained his resolve to seek professional help.
In the course of his remarks on sentence, his Honour said this:
"While the concepts of general and specific deterrence ordinarily play a significant role in determining what sentence to subject an offender to for his objective criminality this case is to my mind an extraordinary case in this regard particularly in light of the offender's bizarre behaviour during the incident, his explanation during the course of the Record of Interview as to how the situation developed and the material contained in the Pre Sentence Report Psychiatric and Psychological Reports which constitute Exhibits C, D, 1 and 2 herein."
His Honour made the following observations upon the offence:
"On the objective facts of the case this is a most serious offence and in my opinion notwithstanding the subjective material herein falls within the 0 to 65 percentile band of criminality so far as that crime is concerned because it involved the terrorising and traumatising of not less than 10 primary school children and their teacher in circumstances where they were all entitled to feel free and protected and in a safe environment. In these circumstances I (cannot) agree with Mr Parker's contention that the offender's criminality falls in the lower range of criminality for this offence. The trauma that the Principal of the school, the children's teacher and the young children affected by this incident underwent because of the offender's conduct on this occasion cannot be assessed at this time but I have no doubt it will impact on them for some undetermined time into the future."
His Honour therefore concluded that the following sentence was appropriate:
"In all the circumstances of this case the objective criminality displayed by the offender in committing this offence when viewed in the light firstly of the subjective material placed before me in these proceedings, secondly the fact that he is entitled to a discount on sentence approximating 20%, and thirdly that he will probably have to serve any sentence imposed on him in protective custody, it seems to me that the community's abhorrence to this type of criminal behaviour can only be appeased by my subjecting the offender to a custodial sentence of 6 1/2 years and fixing a non parole period in relation thereto of 3 1/2 years."
Now it must be accepted that at the time of committing the offence Mr Lee was not insane. Nonetheless, his history in the months preceding the offence, and especially his admission to psychiatric institutions immediately before the offence, together with his behaviour at the time of the offence, certainly suggested that he was afflicted by mental illness falling short of insanity.
The sentencing principle, when dealing with an offender in such circumstances, was stated by Young CJ at and Jenkinson J (with whom Murphy J agreed) in R v Anderson [1981] VR 155 in these terms: (at 160)
"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."

That principle was reaffirmed in R v Scognamiglio (1991) 56 A Crim R 81 at 86 (Clarke JA, Grove and Newman JJ) and Engert (1995) 84 A Crim R 67 at 71 (Gleeson CJ, Allen and Sully JJ agreeing at 72).
Hunt CJ at CL and Hidden J (with whom Gleeson CJ expressed his general agreement) said much the same thing in R v Wright (1997) 93 A Crim R 48 at 50/51:
"Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great."
In R v Henry (1999) 46 NSWLR 346, Wood CJ at CL said this: (at 394)
"... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing."
In R v Israil [2002] NSWCCA 255 Spigelman CJ, applying these principles on a Crown appeal (where a person had pleaded guilty to armed robbery with a blood filled syringe, and had been given a suspended sentence by the sentencing Judge), said this:
"23. To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law." (emphasis added)
Here his Honour's remarks, in the passage quoted (supra para 34), advert to this principle. I do not doubt that his Honour was conscious of it. The issue is whether there was latent error, as revealed by the length of the sentence. Mr Lee had pleaded guilty. His Honour had allowed a 20% discount, so that his starting point was 8.125 years for an offence in respect of which the maximum was 14 years. On these facts, no valid objection could be made if there were no issue of mental illness. Was it too high, taking account of Mr Lee's mental state at the time, and his capacity to make rational judgments, and taking account of the other aspects of his case, his contrition, his good prospects of rehabilitation, the fact that he had not previously been to gaol and would serve his sentence in protection (because of the nature of the offence)?
There is, of course, no doubt that the offence was serious, and the trauma to the children and the teacher was serious, although no-one was physically harmed. I am persuaded, however, that the learned sentencing Judge did err in failing to give proper weight to the mental state of the applicant, such that the sentence imposed was manifestly excessive. I believe therefore that error has been shown.
When resentencing, I would, as I have said, allow 25% for the early plea. I also believe that, with appropriate counselling and arrangements such as those proposed by his Honour, the prospects of Mr Lee's rehabilitation are reasonable. I would, for the same reasons as his Honour, find special circumstances. Mr Lee will benefit from a longer period of supervision than usual.
Order
I would therefore propose the following orders:
1.Leave to appeal be granted.
2. The appeal be allowed.
3.The sentence imposed by Kinchington DCJ on 13 December 2002 be quashed, and in lieu thereof the applicant be resentenced to a term of imprisonment of 5 years to commence on 9 April 2002 and expire on 8 April 2007, with a non parole period of 2 1/2 years to commence on 9 April 2002 and expire on 8 October 2004. He will be eligible for release on parole on 9 October 2004.

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LAST UPDATED: 18/12/2003