R v Murchie

[1999] NSWCCA 424

Reported Decision: 108 A Crim R 482

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v MURCHIE [1999] NSWCCA 424
FILE NUMBER(S):	CCA 60392/98
HEARING DATE(S):	27 October 1999
JUDGMENT DATE:	27 October 1999
PARTIES :	REGINA v Richard MURCHIE
JUDGMENT OF:	Simpson J at 1; Smart AJ at 41

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0693
LOWER COURT JUDICIAL OFFICER:	Kinchington DCJ

COUNSEL:	R D Ellis - Crown J I Doris - Applicant
SOLICITORS:	S E O'Connor - Crown Neil J O'Connor & Associates - Applicant
CATCHWORDS:
ACTS CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Sentencing Act 1989
CASES CITED:	R v De Simoni 147 CLR 147 CLR 383 R v Henry and Ors unreported NSWCCA 107 R v Jurisic 1998 45 NSWLR 209 R v Letteri unreported NSWCCA 18 March 1992 R v Engert (1995) 84 A Crim R 67 R Fahda NSWCCA 267
DECISION:	see page 10 - 11

IN THE COURT OF
CRIMINAL APPEAL

60392/98

SIMPSON J
SMART AJ

17 October 1999
REGINA v Richard MURCHIE

JUDGMENT

SIMPSON J :

1 The applicant seeks leave to appeal sentences imposed upon him by Kinchington DCJ in the District Court on 29 May 1998 following his pleas of guilty to three charges. The first was a charge of robbery in company, brought under s 97A of the Crimes Act 1900 and carries a maximum penalty of penal servitude for twenty years. That offence was committed on 26 June 1997.

2 The second offence was of assault and was committed on 11 July 1997. S 61 of the Crimes Act under which that charge was brought carries a maximum penalty of imprisonment for two years.

3 The third charge was of malicious damages and was committed also on 11 July 1997. S 195 of the Crimes Act provides a maximum penalty of penal servitude for ten years.

4 His Honour was also asked to take into account a single count under s 21 of the Criminal Procedure Act, 1986 that being a count of possession of a prohibited article.

5    On the first and most serious count and taking into account the matter on the Form 1, Kinchington DCJ sentenced the applicant to a total term of penal servitude for six years. He found that there were special circumstances justifying departure from the statutory ratio provided in s 5 of the Sentencing Act 1989 and divided the sentence into a minimum term of three years and an additional term of three years. He specified that the sentence was to commence on 11 July 1997, the date on which the applicant was arrested in relation to all matters. On the remaining two counts, his Honour sentenced the applicant to terms of twelve months' penal servitude or imprisonment to commence on the same date and therefore to be served concurrently.

6    The offence of robbery in company was committed during the day on 26 June 1997. In company with three other young men, the applicant entered the National Australia Bank at Caringbah, jumped over the counter and opened the staff access door, thereby permitting two of his co-offenders to enter the staff area. They removed cash amounting to $16,610. The statements of the bank employees were before his Honour. It is apparent that these employees and no doubt customers who were present in the bank were subjected to a terrifying experience.

7 During the course of this application, we have seen photographs taken from the video surveillance equipment in the bank and those photograph confirm what one would otherwise infer: that is that there were customers present in the bank who were subjected to a degree of violence or threats of violence by the offenders. One of the men said that he was going to shoot somebody. The same man shouted at employees to open the drawer in which cash was held and it is apparent from the statements of the witnesses that these directions were given in a threatening manner. Another man was holding a Phillips head screwdriver in an attempt to open the lock of the drawer. There is no suggestion that this implement was actually used to threaten employees but again it is apparent that it was the kind of implement that could have been used in that way and was capable of creating fear in the employees and customers. Another witness thought that one of the men had a knife but this was not supported by any other witness and as no finding of fact was made in this respect by the sentencing judge it should not be taken into account as an aggravating factor, even if, having regard to the principles stated in The Queen v De Simoni 147 CLR 383 it would otherwise be proper to do so.

8    I should add that despite the threats made by one of the men to shoot somebody, no witness saw a gun and the Crown does not suggest a gun was present and the charge to which the applicant pleaded guilty was not a charge of armed robbery.

9    The second and third offences were committed on 11 July 1997 when the applicant was interviewed by police in relation to his role in the robbery of the bank. By that time, police had executed a search warrant at his home and had located a good deal of material about which they asked him. During the course of the interview, a sabre or sword was lying on the table. At the conclusion of the interview, the applicant seized the sword, pointed it towards one of the police officers, claimed to be "crazy" and threatened to stab the policeman. He continued to hold the sabre out in front of his body as the two detectives backed out of the room. They left and shut the door and the applicant stabbed the sword into the back of the door five times. These events constituted the assault and malicious damage charges to which the applicant also pleaded guilty.

10    The offence on the Form 1 was of possession of a prohibited article, that being a can of pepper spray which was found in his room during the execution of the search warrant.

11    The applicant was born on 21 June 1979 and was only five days past his eighteenth birthday at the time of the offence. He was twenty at sentencing. He had committed offences as a juvenile, these being offences of break, enter and steal when he was sixteen years of age and common assault. There were also possession of firearms offences also dealt with in the Children’s Court.

12    As I have said, he was interviewed extensively on 11 July 1997, the interview being predominantly directed towards establishing his possession of and the source of various items that were found during the search. He was not forthcoming with any explanation for these items. However, as his Honour observed, the applicant stood for sentence only for those offences to which I have already referred. He was shown photographs taken by the surveillance cameras at the bank but he denied that any of the persons depicted therein was himself. He denied knowing the identity of any of the other persons depicted in the photographs.

13    Before his Honour was also a pre-sentence report which described the applicant's history. He was described as having suffered from hyperactivity as a child and to have been generally uncontrollable to the extent that he had been placed in foster care on one occasion, expelled from several schools and placed in several special schools because of his apparent behavioural and learning problems. He was expelled from the last of these also. He was said to have had significant contact with the Department of Juvenile Justice. He was described as being easily led, to have associated frequently with an undesirable peer group. His parents were said to have had little control over him since the age of fifteen years. He had little contact with his biological father, who had left the home when the applicant was very young. His mother had married again but his relationship with his stepfather was not good.

14    The applicant was unable to explain his involvement in the offences to the Probation and Parole officer who interviewed him and he claimed that the robbery was committed on the spur of the moment. He was described as appearing to show no remorse. He was also described as inarticulate, to have had problems associated with concentration, verbalisation of feelings and a low frustration tolerance level. The officer suggested the possibility that he suffered from an attention deficit disorder for which he had not had treatment, because it had been unrecognised by his parents and others responsible for his care.

15    As a result, his solicitors had him examined by a neuro-psychologist and the result of two tests by that professional resulted in a diagnosis of attention deficit hyperactivity disorder.

16    Further, the officer expressed the opinion that, the disorder having been diagnosed, it would be possible for it to be stabilised by medication. That having been discussed with the applicant, he expressed the wish to complete his Year 10 studies while in custody.

17    The diagnosis was referred to by Dr O'Dea, a psychiatrist who appeared to accept the diagnosis although it is apparent from the dates of the reports that Dr O'Dea did not have the benefit of the reports of the neuro-psychologist, or the tests which had been conducted by him.

18    On behalf of the applicant, four grounds were argued. The first was that the sentence imposed was outside the range properly available to a sentencing judge, particularly in the light of the subjective circumstances. Reference was made to the guideline judgment of this Court in Queen v Henry and Others unreported New South Wales Court of Criminal Appeal 107 18 May 1999. In that case, in relation to offences of armed robbery and to an offence profile which is in some other respects relevant to the present offence, this Court promulgated a guideline sentence of a total term of four to five years.

19    There are, as I have indicated, some of the features nominated in Henry which are not here present. The first is the existence of some kind of weapon, such as a knife or gun, in the commission of the offence. However, that fact is balanced in my opinion by the fact that this was an offence committed by four young men who, it can be seen from witness statements and from the photographs, behaved in a violent and very aggressive fashion. As I observed during the course of argument during the application, we have been able to see that the applicant is a large, well built and apparently fit and healthy young man and the photographs suggest that the same description can be applied to the co-offenders.

20 The legislature has prescribed the same maximum penalty for robbery in company as it has prescribed for armed robbery. I consider that the guideline promulgated by this Court in relation to armed robbery offences is equally applicable to offences of robbery in company which can be seen as broadly equivalent. I would therefore proceed on the basis that the sentence promulgated in Henry in relation to offences of armed robbery provides equally a guideline in relation to offences of robbery in company. Of course, as was stressed in Henry and Jurisic 1998 45 NSWLR 209, a guideline sentence is precisely that and is not to be applied inflexibly.

21    Another feature described in Henry which is not here applicable is the taking of a relatively small amount of money. It can hardly be said that an amount in excess of $16,000 was a small amount. However, it does not seem to me that the amount taken warrants a sentence increased by one-fifth to one-quarter of the guideline sentence if that is otherwise the appropriate starting point.

22    I pause to note that the present sentence was imposed before the decision in Henry.

23    A further matter which should be noted is that contrary to the profile set out in Henry it is apparent that a certain amount of planning attended the commission of this offence.

24    As I have mentioned above, the guideline sentence is precisely that. Just as a sentencing judge may, in an appropriate case, impose a sentence which is less than the promulgated guideline, a sentencing judge may equally impose a sentence in excess of that if the circumstances are appropriate.

25    If comparison with the guideline sentence in Henry were the only matter argued, I would find it difficult to conclude that the sentencing judge so far departed from the guideline as to justify interference by this Court. However, there were other matters argued. The second ground was that the sentencing judge failed to give proper weight to the diagnosis of attention deficit hyperactivity disorder and the significance of this condition to the applicant's offending behaviour.

26 It is well established that where an offender is shown to be suffering from a mental disorder or severe intellectual handicap, a sentencing judge is justified in reducing the weight given to considerations of general deterrence. In an extreme case, the question of general deterrence may be totally outweighed: R v Letteri unreported, NSW Court of Criminal Appeal 18 March 1992 per Badgery-Parker J. This principle has been frequently cited and applied, including for example in R v Engert 1995 84 A Crim R 67 and R v Fahda NSW Court of Criminal Appeal 267, unreported

27    I have mentioned the diagnoses given by the psychiatrist and the neuro-psychologist and I have observed that Dr O'Dea did not have the benefit of the clinical testing performed by Mr Severt. Dr O'Dea's report might be read as giving only lukewarm support to the suggested diagnosis and it seems to me that the sentencing judge was also somewhat lukewarm in his acceptance of that diagnosis. Certainly in my opinion, although he mentioned the diagnosis, he gave little weight to it in some important respects. Indeed, he said he was prepared to accept it only "with some qualifications" although he did not specify what those qualifications were.

28    It seems to me that the diagnosis was on the evidence well established and having regard to all of the material that was before his Honour, and it was not reasonably open to the judge to approach the matter as he did.

29    Of particular importance is that he did not appear to weigh the fact of the diagnosis in his assessment of the weight that should have been given to both specific and general deterrence considerations. The judge obviously gave those questions very considerable weight. In the ordinary course, that would be quite unexceptional and a proper approach. The judgments in Henry if nothing else make that plain. But in my opinion in this case it was necessary for greater weight to be given to the diagnosis.

30    It is of considerable significance that the applicant had a long history of obvious behavioural problems which for the first time appear to be explained by the neuro-psychological evidence. This has, as I have said, an impact on the weight to be given to the important questions of general deterrence. What his Honour said at page 10 of the sentencing remarks was this:

"Even accepting Mr Severt's diagnosis, that diagnosis to my mind does no more than set a background in which the offender acted in this criminal manner. He did not have to involve himself in this criminal activity unless he freely sought to do so. That diagnosis in my opinion does not excuse his conduct. It might help to explain it to some extent but to what extent I do not know."

31    In my opinion, the diagnosis also goes to questions of possible rehabilitation, particularly having regard to Mr Severt's reports to the effect that with appropriate medication, rehabilitation might be affected. In my opinion, this was a matter that should have been taken into account and does not appear to have been so taken into account.

32    Accordingly, I am of the view that error has been demonstrated in the failure to balance the diagnosis against the need for the sentence to reflect the principles of general deterrence and rehabilitation.

33    In addition, or perhaps as part of the same point, it is proper to treat the applicant's culpability for the offence as rather less than it would be if unexplained by his previously undiagnosed disorder.

34    Another matter that was raised on behalf of the applicant concerned parity with the sentencing of co-offenders. This Court was told that a juvenile co-offender was sentenced in the Local Court to a control order of twenty months, made up of a minimum term of fifteen months and an additional term of five months. His Honour expressed himself in strong terms about the appropriateness of co-offenders who are guilty of serious offences and whose ages are not significantly different being treated in different courts. This applicant was only five days beyond his eighteenth birthday at the time of the offence. The precise age of the juvenile co-offender is not clear. However, his Honour had been given little information about the subjective circumstances relevant to the co-offender and this Court has no more information and is in no better position than his Honour to assess the parity consideration. Parity is not limited to a direct comparison of the sentences imposed.

35    The final point argued is that the sentencing judge failed to make proper allowance for the long period of custody served pending sentence. He remained in custody for ten and a half months before sentence. The Crown has argued that this was attributable to the applicant's wish to have the medical examinations which were a very significant part of his case in mitigation. In any case, the sentence was backdated to the date he was taken into custody. The argument was that periods in remand may be seen as more burdensome than periods in final and determined custody when the prisoner is classified, absorbed into the general prison population and involved in the rehabilitative and other programs available. As well, it might be said that the offender has, after sentence, a fixed date upon which to aim for release. No doubt this is true of prisoners on remand but there was no evidence before his Honour as to any difficulty or stresses suffered by the applicant during the remand period. I do not think in the circumstances that failure specifically to mention that circumstance constitutes any error on the part of the sentencing judge.

36    I am however satisfied that error has been demonstrated in relation to the treatment of the applicant's psychological condition and that fact, together with the fact that the sentence is at the very upper end of the range that would be appropriate if that fact did not exist, satisfies me that the applicant has established that the sentence was in all the circumstances manifestly excessive.

37    The sentencing judge found that special circumstances existed justifying departure from the statutory ratio and I would adopt that finding.

38    I propose that the following orders be made.

(1) Leave to appeal be granted. The sentence imposed in relation to the charge of robbery in company be quashed.
(2) In lieu thereof the applicant be sentenced to a total term of penal servitude for five years, divided into a minimum term of two years and three months commencing on 11 July 1997 and expiring on 10 October 1999 and an additional term of two years and nine months commencing on 11 October 1999 and expiring on 10 July 2002. I would not interfere in the sentences imposed in relation to the other charges.

39    The orders I have proposed would mean that the applicant was eligible for release on parole on 10 October 1999. I would recommend that the parole authorities give urgent consideration to any application made by the applicant and the Correctional Services authorities give urgent consideration to involving the applicant in any programs preparatory to release if he is not already so involved.

40    I am reminded that in case it is not clear I should have noted that the sentence I propose also takes into account the matter that was on the Form 1.
41    SMART AJ: I agree.
42    SIMPSON: The orders of the Court will be as I have proposed.

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