R v McKenna No. Sccrm-98-212 Judgment No. S6964

MONDAY, 16 NOVEMBER 1998

R v McKENNA
[1998] SASC S6964

Court of Criminal Appeal: Cox, Prior, Olsson JJ

COX J: I am in substantial agreement with the reasons of Prior J. This was a high sentence, but not so high, in my opinion, that we would be justified in interfering with it.
I would dismiss the appeal.
PRIOR J: This is an appeal against a sentence imposed in the District Court.
The appellant first appeared in that court, charged with two counts of threatening life, on 9 March 1998. She then pleaded not guilty. On 11 May, a plea of guilty was entered to one of the two counts. A nolle prosequi was entered on the other. The matter was adjourned pending the receipt of medical reports. The matter was finally dealt with on 12 August 1998, when the medical reports were tendered and submissions received. The sentence imposed for this offence was one of three years imprisonment with a non-parole period of two years, that sentence being suspended upon the appellant entering into a bond to be of good behaviour for two years, be under the supervision of a probation officer during that time and continue with counselling, particularly as to her drug and alcohol abuse.
It is said that the sentence imposed by the District Court judge is manifestly excessive. The sentencing judge is said to have erred by giving too much weight to principles of general deterrence in the particular circumstances of this case. It is also complained that the judge failed to give sufficient weight to the appellant’s plea of guilty and to her mental state at the time the offence was committed.
Late in the evening of Monday, 13 October 1997, police received a number of telephone calls from the appellant. In the first she referred to a rape of a young girl at Henley Beach and said that she had also been raped there. The officer who took this call was abused, before the appellant hung up. Within 10 minutes, another police officer received a further call from the appellant. She then referred to the fact that she had rung up before and said that she now had a 357 magnum in her hand and that she was waiting for the police. The officer receiving this call heard a click over the telephone consistent with the sound of a trigger being pulled on an unloaded revolver. The officer managed to obtain the appellant’s name. He traced her address and caused a police patrol to go to that address. The appellant made a further telephone call, speaking to the same officer, inquiring whether he was going to meet her, saying that she had the gun in her hand and that she wanted the police officer to do the job for her because she was a “shit case”.
One of two police officers who went to the scene was the person named in the charge to which the appellant pleaded guilty. That officer said that when approaching the premises at which the appellant was, the appellant was seen to be standing beside a letterbox, under a street lamp, at the end of driveway of the house. The officer saw that the appellant had a gun. He told the officers then present to get down. The officer called upon the appellant to drop her gun. After less than a minute, the appellant began to move towards him and the officer named in the charge the subject of the nolle prosequi. The two officers ran further down the street, with the appellant walking into another street. A torch shone on the appellant indicated that she had her right arm extended forward and was pointing a hand gun in the direction of one of the officers. She continued diagonally across the street towards that officer and the officer referred to in the admitted charge, moving the gun from side to side, alternately pointing it towards the two officers. When she was some two metres from the victim of the admitted offence, the other officer, believing the victim’s life was endangered, fired one shot at the appellant with the victim discharging his firearm soon after. The appellant fell to the ground. The police then discovered that the gun was a replica. The appellant was seriously injured. She suffered a fractured left tibia and fibula, and the loss of three fingers on her right hand. They had to be amputated because of gun shot wounds. She now has a scar below her right knee from a graze from a bullet which entered her left leg. A muscle transplant was performed for her left leg and a skin graft to that leg as well.
The appellant admitted that she had threatened to kill the officer, intending to rouse a fear that the threat was likely to be carried out, or be recklessly indifferent as to whether such a fear was aroused. The appellant’s counsel sought to emphasise the fact that the appellant was in a psychiatric state, subject to significant stress and anxiety at the time leading up to the commission of this offence. She had recently broken off a close relationship with a man, terminated a pregnancy by him and turned to alcohol. Three weeks before the offence she had sought assistance from a psychiatrist, Dr Kent. In her report, tendered to the court, Dr Kent said that she first saw the appellant at Modbury Hospital on 26 June 1997, having been referred to the Outpatients department there by the appellant’s general practitioner, Dr Munro, for a psychiatric assessment relating to depression and alcohol dependence. Dr Kent has continued to see the appellant on a regular basis. Dr Kent had her first interview with the appellant in September 1997. The appellant then presented with a history of child sexual abuse by her step-grandfather and cousin, unresolved grief issues over the death of her father in 1992, as well as the recent separation from her boyfriend. There were also symptoms of obsessive compulsive disorder, which had been present since childhood. The appellant acknowledged to Dr Kent that she had used alcohol excessively and that she had chronic low self-esteem. Dr Kent did not think that the appellant demonstrated features of depression at the interview on 26 September 1997, although the appellant was then receiving medication used as a treatment for depression, anxiety and excessive compulsive disorder. Dr Kent’s view was that the appellant was suffering from mild, intermittent, low-grade depression, together with obsessive compulsive disorder, complicated by alcohol abuse. The doctor increased the appellant’s medication, referred her for psychological assessment treatment and arranged to review her again. Dr Kent was informed of what happened on the date of the offence, 13 October 1997. She saw the appellant after she was released from hospital. At that time, the doctor thought the appellant felt less anger than before she was shot and less inclined to place blame and resentment on others, whilst being more aware of her own responsibility in given situations. The doctor said the appellant’s prognosis was guarded and thought that it would be of benefit to her if she were to continue in therapy with a psychiatrist and psychologist.
The appellant was also assessed by another psychiatrist, Dr Raeside. He interviewed her in March of this year. The doctor referred to the injuries sustained by the appellant in her exchange with the police. Dr Raeside referred to the circumstances surrounding the commission of the offence. In particular, he noted that the appellant had a blood alcohol level of not less than .255 per cent and, that despite telling him that she had little memory of what had happened, nonetheless insisted, to Dr Raeside, that she was not wanting to suicide and that had she wanted to do that, she would have pursued a painless, quick way rather than threaten police or to let them believe that they were in danger. The material before the court indicated that the appellant apologised to the two police officers at the scene. Much emphasis was placed upon that fact by the appellant’s counsel before this Court. However, Dr Raeside suggested that the level of the appellant’s alertness and orientation was questionable, given the contradictory statements made by ambulance officers. Dr Raeside’s view was that the appellant has an obsessive compulsive disorder in association with a major depressive disorder. In his view, the material before him suggested the appellant was considerably depressed at the time of the offence but that there had been substantial improvement since then. In Raeside’s opinion, the appellant was mentally ill at the time of the offence. She was severely depressed. However, she knew both the nature and quality of her actions at the time she called for police to attend at her house and when she pointed a gun at them. Dr Raeside said that it appeared that the appellant’s motive was to have the police shoot her, indicating a knowledge and awareness that if she pointed a gun towards them, then they would be likely shoot her. The doctor found no evidence suggesting that the appellant was unable to control her conduct. Dr Raeside raised the possibility of a defence of diminished capacity, indicating that the appellant was in need of close, on-going psychiatric supervision and treatment, needing assistance to deal with her alcohol abuse as well as unresolved issues in relation to her past abuse.
The sentencing judge had before him a victim impact statement. The police officer, identified in the admitted charge, said that he felt he could have been killed on at least three separate occasions. For some two weeks after the offence, he had difficulty sleeping and felt responsible for the other officer being forced to discharge his firearm in order to protect him. The officer seemed troubled at the thought that had he discharged his firearm earlier the situation may have quelled sooner.
In his sentencing remarks, the sentencing judge reminded the appellant of what was put to him in submissions. He then referred to the Victim Impact Statement and observed that police officers are there to assist the community. He said to the appellant that she could see the two officers, “going there and you brandishing a pistol in a mad and irrational state and then, the only option eventually was what happened and you were shot”. His Honour then said:
“You can see all the pressures on those men, and, indeed in regard to the officer who has written to me outlining his problems in his own life, in his own work, and he says ‘I am glad that it finished in the manner in which it did’. Obviously, that you weren’t killed. On the other hand, you can see many people would say, confronted with a person who is irrational and hysterical, brandishing a pistol, a pistol being pointed at them especially, that they were justified to shoot to kill you. You indeed are very fortunate that that did not occur by the reserved actions of the officers on this evening. Anyway, I won’t dwell on that. You now appreciate the effect of your actions this night.”

He then referred to the reports he had received, making special mention of Dr Kent’s report. His Honour then said that he had no doubt whatsoever that there was a residue of alcohol and drugs in the appellant’s system and expressed the view that the very high reading of .255 per cent was, “perhaps responsible for (the appellant’s) actions”. His Honour then referred to the appellant’s plea of guilty and Dr Raeside’s reference to diminished responsibility. The sentencing judge acknowledged that the appellant had made plain to him that she wished to plead guilty, expressing her regret and apologising to all those involved.

The sentencing judge then referred to the injuries sustained by the appellant. He then said he was obliged to impose a gaol sentence because he thought the community demanded that anyone who faced police officers with firearms and acted in the way that she did must go to gaol to deter others from acting in such a way, because there is far too much use in the community of firearms, and the threat of them. That being said, His Honour indicated that he was going to suspend the sentence of imprisonment. He made particular mention of the appellant’s age and the fact that she had no previous convictions before imposing the sentence complained of.
I am not convinced that this court could properly interfere on the grounds that the sentencing judge placed undue emphasis on principles of general deterrence and failed to give sufficient weight to the appellant’s mental state. Reference was made to the decision of this Court in Mason Stuart v R[1]. I do not regard that case as relevant to this case as the submission suggested. That case involved a person of low average intelligence and a substantial degree of diminished responsibility. In that case King CJ observed that a person of seriously diminished responsibility is not an appropriate object for exemplary punishment with a view to deterring others, the ends of justice not being served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively as distinct from the subjective gravity of the particular offenders offending[2].
[1] (1993) 61 SASR 204
[2] (1993) 61 SASR 204 at 205, 206
In R v Anderson[3], it was acknowledged that less weight is given to public deterrence when an offender is mentally ill. Young CJ and Jenkinson J quoted from an earlier decision from the Victorian Court of Criminal Appeal[4], in which the then Chief Justice observed:
”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 would 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.”[5]

In the same case, Lush J referred to the fact that where violence had been offered to police officers in the execution of their duty that any sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to that offenders situation and to the needs of the community. Where a person does not pursue a defence because of mental instability the sentencing court must proceed upon the basis that the offender has accepted legal responsibility for the offence. That person’s mental condition, and in particular the possibility that the mental condition in the future may be different from that existing at the time of the offence remains significant in the determination of what is an appropriate course to be adopted in relation to that offender as an individual and to the protection of the community from that person and from those who might be disposed to imitate that person. Ultimately the question is whether the particular offender is an inappropriate person to be made the medium of a deterrent sentence[6].”

[3] (1981) VR 155

[4] R v Mooney (21 June 1978)

[5] R v Anderson (1981) VR 155 at 160, quoting from R v Mooney VCCA 21 June 1978

[6] See (1981) VR 155 160, 161

The principles and sentiments reflected in those observations are the easier when mental illness alone is relevant. However, in this case, the appellant’s behaviour was very much affected by her having consumed far too much intoxicating liquor. Had this not been such a powerful factor in this case good cause to interfere for demonstrable may have been made out. The appellant has not been shown to be an inappropriate person to be made the medium of a deterrent sentence.
In cases of this kind sentencing views may differ. It is another thing to say that the sentencing judge erred. I am not convinced about that. I think the sentence imposed by the judge was severe, but, in all that has been put, I am not convinced that this is a case where this Court could say that the judge has failed to make due allowance for the plea of guilty and, in particular, the remorse shown by the appellant at the scene, on the occasion the subject of the charge.
I would dismiss the appeal.
OLSSON J: I agree with what has been said by my brethren. I, too, would dismiss the appeal.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1993) 61 SASR 204
(1993) 61 SASR 204 at 205, 206
(1981) VR 155
R v Mooney (21 June 1978)
R v Anderson (1981) VR 155 at 160, quoting from R v Mooney VCCA 21 June 1978
See (1981) VR 155 160, 161

[1998] SASC 6964

16 November 1998