R v Pearson - [2004] NSWCCA 129

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Pearson [2004] NSWCCA 129

FILE NUMBER(S):
60450/03

HEARING DATE(S): 29 March 2004

JUDGMENT DATE: 07/05/2004

PARTIES:
Regina
David Wayne Pearson

JUDGMENT OF: Sperling J Kirby J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3393

LOWER COURT JUDICIAL OFFICER: Sides DCJ

COUNSEL:
Mr P G Ingram with Mr M Seymour for the Crown
Ms R Burgess for the Applicant

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

CATCHWORDS:
Criminal Law
detaining with intent to obtain advantage
appeal against severity of sentence
no question of principle

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999, s22

DECISION:
(1) Grant leave to appeal
(2) Appeal allowed
(3) Sentence quashed, and in lieu thereof the applicant be sentenced to a term of imprisonment for five years commencing on 18 November 2002, with a non-parole period of three years commencing on 18 November 2002 and expiring on 17 November 2005, that being the earliest date on which the applicant will be eligible for release.

JUDGMENT:

- 9 -

IN THE COURT OF
CRIMINAL APPEAL

60450/03
Sperling J
Kirby J
Bell J
Friday, 7 May 2004

Regina v David Wayne Pearson

Judgment

Sperling J: The applicant seeks leave to appeal against sentences imposed by Sides DCJ. The applicant had been committed for trial on 15 counts under s85A(1) of the Crimes Act 1900, detaining with intent to obtain advantage. The maximum penalty for an offence under s85A(1) is fourteen years imprisonment.
When the matter was listed for trial on 3 February 2003, the Crown accepted a plea to three of the charges, with the 12 other matters of detaining with intent to obtain advantage and one matter of having custody of a knife at a school being taken into account on Form 1.
On 1 April 2003, the applicant was sentenced on one count, taking into account the Form 1 matters, to eight and a half years imprisonment with a non-parole period of five and a half years. On each of the remaining two counts, the applicant was sentenced to six years imprisonment with a non-parole period of four years, all sentences to be served concurrently. In view of time in custody before trial, the sentences were dated to commence on 18 November 2002. The effective aggregate sentence was accordingly imprisonment for eight and a half years with a non-parole period of five and a half years.
Grounds of appeal
The applicant relies on the following grounds of appeal:
(1)(a) His Honour erred in taking into account the objective seriousness of the offences when applying s22 of the Crimes (Sentencing Procedure) Act and assessing the utilitarian value of the plea.
(b) His Honour erred in his assessment of the applicant’s contrition by:
(i) taking into account the objective seriousness of the offences,
(ii) concluding that, because the applicant was prepared to accept legal advice in relation to his plea, he did not demonstrate any genuine remorse.
(2)His Honour gave insufficient weight to the applicant’s mental illness.
(3)The sentences are manifestly excessive, taking into account the pleas of guilty, the applicant’s mental illness, the fact the he will have to serve his sentences in protective custody, his prospects of rehabilitation, his prior good character and his subjective background.
Statement of facts and handwritten note
The facts of the episode giving rise to the charges were recorded in a statement of facts which was before the sentencing judge.
Throughout the later half of 2001 the prisoner Wayne Pearson was having a family law dispute with his defacto over access to their 12 month old daughter Skye. Family law proceedings at Goulburn court in December 2001 had been adjourned until February 2002 which resulted in a delay in access orders being made. The prisoner was subsequently devastated that he would not have access to his daughter for her first Christmas.
On the morning of 20 December 2001 the prisoner purchased a tube of glue and a Wiltshire knife in a sharpening holder from Woolworths at Miller shopping centre. He then attended a Caltex petrol station where he purchased a 5 litre petrol can which he filled with unleaded petrol. He placed these items in a black sports type bag which already contained a cigarette lighter and a pair of scissors.
In an effort to contact his defacto regarding the access dispute, the prisoner attended the nearby Miller High School where his defacto’s young brothers attended school as students.
At the High School the prisoner was seen to be acting suspiciously. The principal, Mr David Horton, was informed and escorted him off the school grounds. Pearson then went to the nearby Miller primary school still carrying the black bag.
Shortly after 9am the victim Miss May Dare was teaching a class of 14 Year 5 students in a classroom at Miller public school. It was the last day of the school term. At about 10.15am the prisoner walked into the classroom where Miss Dare and her students were. This classroom was constructed of wood and was separate from the other buildings at the school and located on the edge of the school boundary. All the windows to the room were covered by heavy duty steel security bars.
Pearson placed the black bag on a table and he said to Miss Dare “I want to see the principal”. At this stage Miss Dare was not sure what was happening. She inquired whether she should send a student to the principal’s office and the prisoner stated “yes”. A student, Amne Alrifai, was despatched to the principal’s office.
The principal, Mark Myles, was advised by Amne Arifai that he was urgently required in Miss Dare’s classroom. Together with the assistant principal, Vicki Craze, he went to the classroom. The prisoner saw Mr Myles and he said to Miss Dare “I don’t want to speak to him, I don’t like him.”
The prisoner then barricaded the 2 doors to the classroom with a table and fridge and a book case. As he was doing this the prisoner was saying “I just want to see my daughter, this is the only way they will listen”.
Mr Myles immediately returned to his office and made arrangements for the Police to be notified. He returned to the classroom. Police arrived a short time afterwards and took up positions around the classroom out of sight. Fire Brigade, Ambulance and State Protection Group personnel and trained negotiators subsequently attended the school also.
The accused them removed the can of petrol from the bag and sat it on the floor. He stated “I’m not going to hurt the kids.” Miss Dare and the children had to remain in the classroom. Miss Dare yelled from a window “He’s got petrol”.
Mr Myles noticed from the verandah window the can of petrol on the floor and saw the accused take the lid off the can. The prisoner then moved more furniture from the classroom in front of the doors to further barricade them. The children remaining in the room were screaming and panicking. Mr Myles then spoke to Pearson through a window on the verandah and requested he come to the rear window to talk. This window was situated at the opposite end of the classroom away from where the children were. The prisoner came to the window and Mr Myles stated “What’s up”. The prisoner was in an agitated state and replied “I just want my daughter. Get me a phone, I want a phone.” Mr Myles arranged for a mobile phone to be brought immediately.
The children by this stage were terrified. A few children became hysterical and were physically sick. Mr Myles requested the prisoner release some of the children. Initially Pearson refused saying “No, you’re just trying to get into the room and arrest me.” After being assured by Mr Myles this would not occur, the prisoner gradually permitted the most hysterical children to leave. These students were Kirsty McLennan, Kiera Ellis, Samya Abouschmiess, Monique Osgood and Karen Henry. Karen Henry suffers from an intellectual handicap and was particularly distressed.
Mr Myles continued talking with Pearson through the window in an effort to calm him down. He demanded to speak on the phone with his solicitor who was dealing with the family law matter. Pearson had difficulty having the solicitor respond to his phone call. He said to Mr Myles “Okay, tell em I’ve got kids in here and a can of petrol and Police all around the building. I want to speak to my solicitor. Mr Myles then took the phone and attempted to contact the solicitor and explain the predicament he was in. However the solicitor’s office did not take his call seriously and could not assist.
Mr Myles then requested the prisoner release more of the children because it was hot and they were scared. He replied “Don’t worry, I don’t want to hurt the kids. I’’ll kill myself before I kill them. I’ve got petrol over my clothes and skin.” He then offered to buy the children drinks and passed a $10.00 note to Mr Myles saying “I’m holding them here, I’ll buy them some drinks and show them that I don’t really want to hurt them.”
Mr Myles then left the verandah and walked towards Inspector Colin Patemen who was the Officer in Charge at the scene. Pearson called out to Mr Myles “You make sure you come back and tell them if they do anything stupid they’ll be sorry.”
Mr Myles then approached Inspector Patemen. It was decided that as Mr Myles was making good progress with the prisoner then he should continue in the role of negotiator. The drinks arrived and Mr Myles took them to the window. He said to the prisoner “The Police asked if you want to talk to them.” He replied “Get some negotiators here.”
Inspector Pateman spoke to the prisoner on the mobile phone and it was agreed he could approach. He walked onto the verandah of the class room and spoke with the prisoner through the window. Mr Myles remained at the window also. Pearson was still in a distressed state and said to the Inspector “I’ve got petrol, don’t do anything stupid, don’t come in here or I’ll light myself.”
Inspector Patemen then questioned Pearson as to his reasons for his behaviour and he replied “I want to talk to a negotiator, I want to see my daughter. I want to see my daughter here now.” Inspector Pateman then told the prisoner to calm down before leaving the verandah for a short time to update the State Protection Group of the situation and the prisoner’s demands. The Inspector returned to the verandah and observed the prisoner to be holding an orange coloured cigarette lighter in his right hand. The Inspector spoke at length with Pearson about his family law dispute. During this conversation the prisoner’s moods would change dramatically. At times he would appear rational and in control and at other times he became distressed and agitated. At the end of this conversation the Inspector again left the verandah area and updated other Police and Emergency personnel on the situation. Contingency plans were made to force an entry to the classroom in the event of an emergency.
Inspector Pateman returned to the verandah and continued his conversation with the prisoner. During this conversation the prisoner removed a piece of paper from his pocket and appeared to read from the document. He renewed his demand for his daughter to be brought to him. He said “I want my daughter here now, I want her at the window now.” The Inspector made it clear to the prisoner that under no circumstances could his young daughter be brought to the scene. The prisoner again became upset. Pearson then stated he wanted to buy the children some lunch and handed Mr Myles a further $10.00 note for the purchase of some McDonalds.
After further discussions and negotiation Inspector Pateman was eventually able to have the prisoner agree to leave the classroom on the condition that a Police car be brought to the area just outside the classroom and he and the Inspector travel alone to the Police Station to further discuss his problems. The prisoner then passed through the window to the Inspector a jumper containing an object wrapped inside. The prisoner said “Don’t worry. It’s not a gun it’s only a knife. I was going to cut my wrists with it.” The Inspector left the verandah and passed the jumper and knife to other Police waiting nearby out of sight. He then returned to the verandah and had a further brief conversation with the prisoner. A marked Police vehicle was driven to a position outside the classroom.
The prisoner then commenced to remove furniture from a door. The door then opened and Pearson walked out onto the verandah. The time was 11.26am. The siege of the classroom and the detention of the teacher and students had lasted about one hour and ten minutes.
Inspector Pateman removed the cigarette lighter from Pearson’s hand. Other Police then arrested and handcuffed Pearson and escorted him to the Police vehicle.
Other Police then entered the classroom and checked on the welfare of Miss Dare and the remaining children. The petrol can and black bag were retrieved.
The prisoner was taken to Green Valley Police Station. At 12.53 pm that day he was formally interviewed on video tape by Detectives Gary Miller and Christie Moran.
He admitted to going to the class room (Q28) and to barricading the doors. (Q43)
He gave a detailed account of his family law dispute. (Q69-72)
He agreed that he had written on the piece of paper he had in the classroom a list of the problems he was having at the time (Q86-89)
He admitted to purchasing the petrol can and petrol and the knife that morning. (Q90-98)
He stated that what he hoped to gain from going to the classroom and keeping the children and teacher there was for someone to listen to him for once. (Q135)
After the event Miss Dare and each of the children received formal trauma counselling for four to six weeks. Some children required continued counselling for some months. Reshana Carney continues with counselling to this date.
The document which the applicant removed from his pocket and appeared to read while in conversation with Inspector Pateman was a handwritten note. It was in evidence before his Honour, with a typescript as follows.
Transcript of handwritten note
Time/Date: 28 February 2002 2pm
SKYE to me & Kate mariea to negocetion Fraud with Kate David knew find & bring to me & SKYE Delia bankrupsey & New car find out how corupt police & why they never left
I want a police negotior hurt any one who gets in way even the school kids Take Place 20-12-01 at the High School
-1/2 hr find out why the Jude took Christmas & first birthday away from SKYE & I when the law states she has the right to whe takes it from her stay INtill find out truth – 1hr 2nd chance 2hrs 2hr
I am in depresion & don’t care if I die or other people do.
His Honour found the facts relating to the episode in accordance with the statement of facts and the note to which I have referred.
Further findings of fact by the trial judge
His Honour went on to find, in accordance with the evidence before him, that counselling was provided to the children, one of whom continued to receive counselling, at least until February 2003. There were other repercussions. The parents of the children were contacted and came to the school during the episode. So did Ms Dare’s partner. Her victim impact statement indicated that the episode had had a seriously deleterious effect on her life.
His Honour reviewed the appellant’s personal history up to the time of the subject offences:
The Offender was born in Wollongong on 1 August 1976. He was twenty five at the time of the offence. He is now twenty six. He was apparently raised in the Mt Druitt area. He has an older brother and two older sisters. These children were from his mother’s first relationship. He has an older sister who is a full sibling. She is the only survivor of triplets. His parents separated when the Offender was aged about two. Shortly after that, his mother entered into a relationship with the Offender’s step-father who had three boys by a previous relationship. The Offender has had very little contact with his natural father. According to the evidence, he views his step-father as his real father.
There were about seven children in the household when the Offender was growing up. He claims that discipline was maintained through strict corporal punishment. The history he gave indicates that he hated primary school. He reported to Dr Reznic that he had few friends outside his sporting interests. He said that he frequently became involved in fights at school and was suspended on at least two occasions. On one occasion when he felt that a teacher had falsely accused him, he responded by bailing the teacher up. He left school without obtaining his school certificate. The accounts of his age at that time vary from fourteen to sixteen.
I note that he told Dr Reznic that he was prescribed spectacles when he was in Year 5 at school but did not wear them because he was teased by other people. He has a limited capacity to read or write. After he left school, he worked as a stable hand for two years and then worked on a dairy for a period of time. He claims that he would work up to 100 hours per week on the dairy. In February 1998 he secured a job as a storeman. He held this position until April 2001 when he succumbed to viral meningitis. He has not worked since then.
The Offender entered into a relationship in 1998. As I have indicated there is a daughter to that relation born in January 2001. They separated in June 2001.
The Offender commenced to consume liquor and cannabis on a regular basis at an early age. The accounts he gave as to the age of starting such conduct varied. He told Dr Reznic that he would consume between thirty and forty cones of cannabis a day. I note that he has no convictions connected with his use of liquor or drugs, such as PCA type offences.
In August/September 2000 the Offender and his partner moved from Sydney to Goulburn so that she could be closer to her mother during her pregnancy. The Offender continued to work in Sydney commuting each day. This would involve daily commuting of somewhere between three and four hours. This placed a lot of pressure on the relationship and led to conflicts between the Offender and his partner and between the Offender and his mother-in-law. In his view, his mother-in-law was interfering in his relationship with his partner. The tension and conflict led to him consuming greater quantities of liquor and cannabis.
In about November 2000, the Offender witnessed a terrible motor vehicle accident whilst commuting to work. During it, two people were killed when a motor vehicle burst into flames and they could not be rescued. Afterwards, according to the opinion of Dr Reznic, he experienced symptoms consistent with post traumatic stress disorder. These symptoms included difficulty in sleeping, nightmares, irritability, problems with co-workers and his wife. He did not receive any treatment for his condition at that time.
The birth of his daughter in January 2001 added to the difficulties in his life because of the loss of sleep with a young child in the household. Conflicts within the relationship and with his mother-in-law increased. The Offender responded to these by increasing his intake of liquor and cannabis. In about April of that year, he was admitted to Goulburn Hospital physically exhausted. Apparently he was diagnosed as suffering from viral meningitis the symptoms being a stiff neck, blurred vision, vomiting and complete lack of energy.
The Offender was unable to work after his hospitalisation. Financial difficulties arising because of his inability to work added to domestic conflict and the Offender’s feelings of inadequacy. By June 2001 the relationship had broken down. By this time, he was exhibiting significant signs of a depressive disorder. He was irritable and agitated because of the lack of sleep. The Offender lacked energy and felt guilty most of the time and had problems concentrating. Towards the end of June, he assaulted his partner after an argument. Ultimately he was given a section 9 bond for that matter. It was current at the time of the commission of these offences. That is an aggravating feature.
During the course of the commission of that offence, he would not let the police enter the house where he was with the baby. After his release to bail, he spent two or three weeks in a Goulburn psychiatric hospital. He believes that he was diagnosed as having Schizophrenia and he claims that he was given medication for it. There is no evidence from the Goulburn psychiatric hospital concerning his admission, diagnosis or treatment.
The Offender told Dr Reznic that he ceased taking his medication about two months after on the advice of a local doctor. There is no evidence from that local doctor. This account conflicts with the account provided by the Offender in the ERISP, an account much more contemporaneous with the events. In the ERISP he said that he ceased medication about two weeks earlier because he did not want help any more (Q & A 143).
After the assault at the end of June, an AVO was taken out to protect his partner. After the Offender was discharged from Goulburn Hospital, he moved to Sydney and lived with his mother and step-father. During the ensuing months, he found it difficult to have access to his daughter notwithstanding court orders. It is his belief that his former partner was deliberately frustrating his daughter’s rights to have access to him. Out of frustration, he attempted to cut his wrists on at least one occasion. Whether this was in October or around 15 December is unclear. It is of course possible that there were two such attempts. The histories vary. He makes reference to admissions to Blacktown and Westmead Hospitals. He claims that there was no follow up. He also claimed that he had no where to live at the time of his arrest. It is unclear when he ceased to live with his mother and step-father. The Offender became very distressed as a consequence of the cancellation of court orders entitling his daughter to have access to him just before the Christmas/New Year period. These offences were committed shortly after that, on 20 December.

His Honour made further reference to the cessation of medication, later in the summing up.
When he became frustrated because of the developments in the Family Court case it seems that he ceased his medication. I am not prepared to accept his assertion to Dr Reznic that he ceased it on medical advice.
His Honour reviewed the medical evidence.
There is no reliable evidence that he was intoxicated at the time of the commission of the offence. He may have consumed liquor or drugs on the previous evening but I am not persuaded upon the evidence before me that they had any part to play in the commission of these offences. I note that his excessive consumption of liquor in the past had not led to him being involved in criminal activity or breaches of the law, such as drink driving.
The Offender was seen by Dr Read a psychiatrist in Silverwater Remand Centre on 23 December 2001. Dr Reznic saw him on 15 February 2002. I accept the opinions of Drs Reznic and Westmore. I accept that, at the time of the offences, the Offender was suffering a major depressive illness. It is also probable that he might have had residual symptoms of post traumatic distress disorder.
Dr Westmore expressed the following opinion, that at the time of the offences:
“He had a disturbed mood state, a significant disturbance in his biological functions, suicidal thoughts and self harming behaviours. His depression arose in the context of the break down in his family relationships, in particular the separation from his daughter.
There was no evidence in his history or documents available about him to indicate that he has suffering from a psychotic condition at the time of the incident and while he was suffering from a mental illness, it is my opinion that he would have been aware of the nature and quality of his actions and he would have had some understanding that his actions were wrong. This latter opinion is supported by his repeated statements that he did not intend to harm any of the children and his other behaviours of concealing the knife from the children and releasing some of the children from the class room after they had demonstrated distress. He does not, therefore, in my opinion have a mental illness defence available to him.
The Court however might consider by way of mitigation the nature and severity of this man’s psychiatric problems at the time this incident occurred. The extreme nature of his alleged offending behaviour appears to be quite inconsistent with his autobiographical history and his personality structure. This man does not for example have an anti social personality disorder. While his behaviour has a multi dimensioned aetiology, the role of his major depression in his apparent behaviour was, in my opinion, significant”.
The Offender has been treated with appropriate medication, psychiatric care and counselling since the offence. He has insight into the fact that he has been psychiatrically unwell and remains so. He has received counselling in connection with his abuse of cannabis and liquor. He asserts that he has remained abstinent from these two substances since the offences.
I note Dr Westmore’s opinion that, notwithstanding the treatment he received since the offence, the Offender’s depressive illness was only in partial remission. Dr Westmore saw the Offender on 13 January 2003. His opinion is consistent with the contents set out in the document from Hunter Health (exhibit 5) dated 23 October 2002. Dr Spruce is his most recent treating doctor. In his report of 24 March 2003 he expresses the view that the Offender’s condition is now controlled by medication. Dr Westmore’s opinion demonstrates that the Offender’s depression has only come under control in relatively recent times.
Other evidence available at sentencing hearing concerning the applicant’s mental condition
In addition to the evidence mentioned by his Honour, there was other evidence bearing upon the applicant’s mental state before and at the time of the offences.
Confining myself to the materials before his Honour, there were patent signs of emotional disturbance at the time of the episode involving the prior assault which occurred on 23 June 2001, some six months before the episode giving rise to the subject offences. At that time, the applicant, his partner and the child, were living at Goulburn. The police statement of facts in relation to that episode includes a record that, as observed by the police, the defendant, while holding the baby, went into fits of rage, smashing his head and fist against doors and walls, and that this happened several times. Other conduct by the applicant on that occasion further indicated the applicant’s disturbed state of mind. He told the police that he was on medication following the earlier hospitalisation for viral meningitis which, according to the applicant, made him feel schizophrenic and unable to control his temper. He told the police that he had suicidal thoughts and had tried to kill himself by taking three teaspoons of coffee which he thought would kill him due to the medication he was taking. Whilst in the dock in the police station he began to hyperventilate. Ambulance officers were called to treat him. He was bailed on that occasion subject to conditions which included that he attend the Chisholm Ross Centre at Goulburn, which is a psychiatric unit. He was then hospitalised, either there or in some other psychiatric hospital, for two to three weeks and was discharged on medication. The applicant separated from his partner at that time and moved to live in Sydney. It was in these circumstances that disputation arose concerning access to the child.
There was evidence that, at some time between the June 2001 and December 2001 episodes (subsequent information shows that it was on 2 November 2001), the applicant was admitted to hospital after cutting his wrist. Early in December, the proceedings to do with access to the child were adjourned until February 2002. Precisely what orders were made on that occasion is not known but it was the applicant’s perception that he would be denied access to his daughter until at least February, missing out on her first birthday and on seeing her at Christmas.
The note written by the plaintiff on the night before the December episode indicates that the applicant had formulated a plan to do something of the kind that occurred next day. That is apparent from the reference to a police negotiator, school children and a high school. It is also apparent that, at that time, the applicant was subject to a degree of suicidal ideation, saying in the note that he was in depression and did not care if he died or other people did. The applicant told the police in his ERISP interview that he had bought the epoxy glue and the paring knife intending to superglue his mouth shut, pour petrol over himself, light himself and cut his wrists at the same time (Q94-98). There does not seem to be any other explanation for having bought the glue and the knife. This was further evidence of suicidal ideation.
As for the episode of 20 December 2001 itself, the applicant’s conduct was bizarre from the start. According to the teacher, Ms Dare, the applicant asked to speak to the school principal. Then when he saw the principal and deputy principal walking towards the classroom, the applicant said he did not want to speak to him, adding “I don’t like him”. There is nothing to suggest that the school principal, Mr Myles, was previously known to the applicant to account for that sentiment. The applicant then proceeded to barricade the door of the classroom, saying that he just wanted to see his daughter and that this was the only way that they would listen. Later, the applicant explicitly demanded that his daughter be brought to the school for him to see. This behaviour was irrational in the extreme. What benefit could the applicant possibly have obtained from his daughter being brought to the school for him to see? What kind of pleasure could he hope to obtain from seeing the child in those circumstances? As for the longer term, how could his conduct be anything but counter-productive in resolving the dispute over access to the child satisfactorily? The applicant’s conduct was consistent only with a state of substantial mental disturbance.
The applicant was taken into custody. According to the evidence, he was examined by Dr Reid, a psychiatrist, at Silverwater Remand Centre. There was, unfortunately, no report before his Honour concerning that examination and, indeed, nothing relating to psychiatric assessment earlier than mid-February 2002. His Honour had a report of Dr R Reznik, a forensic psychiatric registrar at the Long Bay Correctional Complex, who examined the applicant on 15 February 2002. His opinion, as recorded in his report of 20 February 2002, includes a retrospective assessment.
Mr Pearson continues to present with Major Depressive Disorder and residual symptoms of Post Traumatic Stress Disorder. In this sense, he continues to manifest a major disorder of mood. At the material time of the alleged offence, he was experiencing a similar constellation of symptoms, which I believe contributed to his behaviour at the material time of the alleged offences. He also continues to manifest a high degree of stress and preoccupation in regard with his familial situation. In my view, he would likely meet the terms of the Mental Health Act and can be regarded as a “mentally ill person” under that Act requiring further psychiatric treatment.
There was no reason to suppose that the applicant’s mental state on 20 December 2001 had been any different from his state in mid-February 2002. The evidence of suicidal ideation and irrational behaviour at that time indicates strongly that it was not.
The reference to post traumatic stress disorder in Dr Reznik’s related to an incident in November 2001, recorded earlier in Dr Reznik’s report, when the applicant had witnessed a motor accident in which two individuals were burnt to death before his eyes. He had watched helplessly as these persons were consumed in a fireball. Thereafter, he had experienced a number of symptoms consistent with post traumatic stress disorder but had received no treatment for that condition.
After being released from custody on bail in May 2002, the diagnosis of major depressive disorder was confirmed by others, medication was prescribed and the applicant was kept under review.
Trial judge’s assessment of the applicant’s mental condition
His Honour’s assessment of the applicant’s mental state at the time of the subject offences and of the applicant’s criminal responsibility in relation to those offences is apparent from the following extract from the remarks on sentence:
I agree with Dr Westmore that the Offender was aware of the nature and quality of his acts and had some understanding that what he was doing was wrong. In my view this is demonstrated by a number of things. Amongst others they are:

that he said that he did not want to hurt the children;
he indicated in the ERISP interview that he did not want the children to see the knife;
when the inspector suggested that they go to the police station to talk the Offender said: “How can I? Look what I have done”; and
the content of question and answer 101 in the ERISP interview. Having indicated that none of the children had seen the knife, he continued with his account without any further question being asked. Answer 101 is recorded in the transcript: “Cause I was in a way concerned about them too if I like if I did lose total control that’s why I kept saying I’m not going to hurt em, I’m not going to hurt em”.
That part of his answer demonstrates that he was in control, conscious of the possibility of losing total control and the consequences should that occur.
I must consider each offence separately. Each is a serious crime. In my view, the offences were executed in a fashion that demonstrated some thought being put into the matter. Not only had he purchased petrol and a knife, but, in my view, he selected his target in a fashion to maximise his chances of securing his demands. He knew his victims were vulnerable and the authorities would deal with the matter with great sensitivity because of the implications if they did otherwise. I have already mentioned my view that he showed some consideration for his victims in order to improve his negotiating position. He was conscious that he was causing emotional distress to his very young victims.
In my view, it is impossible for him not to have had some appreciation of the distress that he caused to the teacher. He must have realised that she would have felt responsible for the safety of the children. All but five children were held for just over an hour. It is unclear how long the other five were held. Their distress was more overt than that of the rest of the children. As I have observed one of them was intellectually disabled. In my view, the fear and terror occasioned to all detainees was great. The victims, the children that is, were entitled to feel safe in their class room. The teacher felt responsible for their safety. The placing of the can of petrol on the floor and the removal of the lid was designed to instil fear into the children and the teacher to ensure that they would not offer any opposition to him. It is clear that these acts had the desired effect upon all of the victims. Question and answer 101 shows that he was in control and he wanted to maintain that position.
I cannot accept the account that he gave in the interview that he was on his way to commit suicide in a house that he and his partner had previously occupied when he just happened to end up in the class room at that school. I am satisfied on all the evidence and satisfied beyond a reasonable doubt that the offence was premeditated.
In my view, the purposes for the detention were threefold.
1. to see his daughter;
2.to have somebody listen to his grievances about the family court proceedings and his inability to have access to his daughter; and
3. to get the attention of his solicitor.

Later in the remarks on sentence, his Honour returned to the question of the applicant’s mental state at the time of the offences.
The Court is troubled by the weight to be given to his disability, that is the mental illness, that was in existence at the time and the weight to be given to deterrence in light of that disability. However, as I have noted, he was aware of the nature and quality of his acts and had some appreciation that what he was doing was wrong. As I have indicated, his answer to question 101 shows that he was aware of the need for him to retain control of the situation and the consequences if he did not do so. On all the evidence, I am satisfied that, for the most part during the events the subject of the siege, that he did remain in control and that when he had felt that he had achieved the one remaining purpose that it was likely he could achieve (that is to have somebody listen to his grievances) he left the room. In those circumstances, in my view, it is appropriate that considerable weight be given to deterrence, not the same amount of weight to be given in the case of an individual who is without any disability, but nonetheless, it should be considerable.
Fresh evidence concerning the applicant’s mental condition
More is now known about an important aspect of the applicant’s medical history. As I have noted, his Honour was not satisfied that the applicant was advised to cease taking medication. His Honour attributed that to the applicant’s frustration with the Family Court proceedings. That view of the facts was open to his Honour on the evidence before him. However, fresh evidence admitted on appeal, without objection, indicates that the relevant facts in that regard are as follows.
The applicant was discharged from Goulburn hospital following the incident in June 2001. He was prescribed Largactil and Valium at that time. Subsequently, on 2 November 2001, he went to a police station, asking for help. (This also appears to be the episode on which the applicant presented with a cut wrist.) He was taken to Blacktown Hospital, a transit station for patients en route to Cumberland Hospital, which is part of the Westmead Hospital complex. At Blacktown Hospital, the applicant was scheduled but, on transfer to Cumberland Hospital, he was discharged the same day into his own care, with instructions to cease medication. It was about six weeks later that the subject offences were committed. All this was patently clear from records tendered on the hearing of the appeal.
The references to Blacktown and Westmead Hospitals now made sense. More importantly, it was now established that the applicant had indeed ceased to take medication on medical advice. And that there was “no follow-up”, as the applicant put it. He then continued without medication and without treatment for his mental condition until the offences were committed in December 2001.
Further matters taken into account by the trial judge
His Honour had regard to the considerations specified in s21A. He found that the applicant had threatened to use a weapon, taking the view that the petrol qualified in that regard. The applicant was found to be of good character in relative terms having regard to the one prior offence (the assault committed on 23 June 2001). His Honour said that the likelihood of re-offending was difficult to assess. That, his Honour found, appeared to depend on the applicant’s response to frustration, compliance with his medication regime and the relationship between the two.
A new light was now cast on the last of these considerations by the additional evidence. There is now no reason to suppose that the applicant might cease medication without advice, whether as a frustration response or otherwise.
His Honour allowed a discount of 15 per cent for the utilitarian value of the applicant’s plea of guilty. He said:
The plea of guilty was entered on the morning that the matter was fixed for trial. That trial was to have been for 15 counts of detain for advantage. The Offender pleaded guilty to three counts with the balance of the charges being taken into account on the schedule. Prior to the date of the plea of guilty, the Crown had indicated (prior to the date of arraignment that is 25 October 2002), that it would accept pleas of guilty to three counts with the balance being taken into account on a schedule. On the face of it, this is a case where the plea of guilty was not entered at the earliest opportunity. However, he was originally charged with false imprisonment. There was considerable delay before the committal proceedings were held, whilst the DPP considered whether that or some alternative charge provided for in the legislation would be appropriate. Ultimately, the decision was to proceed with a charge covered by legislation rather than the common law. Mr O’Mullane, who appears on behalf of the Offender, indicates that he had early instructions to plead guilty to counts of false imprisonment. The matter proceeded in the Local Court by way of paper committal without the calling of witnesses. Upon Mr O’Mullane’s advice the pleas of not guilty were entered at arraignment pending further negotiations and investigations of issues such as the fitness to plead.
This case provides a complex history so far as an assessment of the leniency to be extended based upon the utility of the pleas of guilty. For reasons that will become apparent in due course, I have come to the view that nothing other than a full time custodial sentence is appropriate to reflect the objective seriousness of these offences. In applying s22 of the Crimes (Sentencing Procedure) Act the Court is required to take into account the need to reflect the objective seriousness of the crime, or in this case, the crimes. Having considered all of those matters, I am of the view that he is entitled to a fifteen per cent reduction in the length of the full time custodial sentence to reflect the utility of the pleas of guilty.

Concerning contrition, his Honour said:
In relation to each count, in my view, the Crown case against the Offender is an overwhelming one. However, that is not the only matter to be considered on the question of contrition. Admissions were made to police in the course of an interview conducted shortly after the offence came to an end. The victims and witnesses were relieved of anxiety of giving evidence during a trial. I take into account that he did instruct his counsel at an early stage that he would plead guilty to false imprisonment offences. By the same token, he was prepared to accept advice of his counsel in deferring the entry of the pleas of guilty after it became apparent at arraignment the DPP would proceed on the statutory charges. It is difficult, in these circumstances, to see any genuine remorse beyond that indicated by the admissions and the relief of anxiety to the victims and witnesses from having to give evidence in the course of the trial.
I have carefully looked at all the evidence placed before the Court and I have been unable to find any evidence of expressions of remorse on the part of the Offender. Apart from the matters that I have already enumerated, I have been unable to find any indicators of genuine remorse either.
His Honour went on to refer to the applicant’s conduct at the time of the offences and detected no evidence of remorse by the applicant from one moment to the next in the course of the episode.
His Honour found special circumstances on the basis that the applicant would serve his sentence in protective custody which was likely to curtail access to rehabilitation, educational, psychiatric and psychological services, and that this was the applicant’s first custodial sentence.
The finding that the applicant would serve his sentence in protective custody was a mistake. There remains, however, the fact that this was to be the applicant’s first custodial sentence. It would also be reasonable to take into account as a special circumstance that incarceration is likely to be more onerous for the plaintiff than for the general run of prison inmates by reason of his mental illness.
Ground 1(a): His Honour erred in taking into account the objective seriousness of the offences when applying s22 of the Crimes (Sentencing Procedure) Act and assessing the utilitarian value of the plea.
His Honour misapplied s22. The seriousness of the offence is not relevant to the assessment of the utilitarian value of the plea. That vitiates his Honour’s determination of the discount to be allowed.
I would allow a discount of 22.5 per cent, having regard to the exigencies otherwise mentioned by his Honour, to the nature and the volume of the evidence which would have been called if the case had gone to trial.
This ground of appeal is made out.
Ground 1(b): His Honour erred in his assessment of the applicant’s contrition by:
(i) taking into account the objective seriousness of the offences,
(ii)concluding that, because the applicant was prepared to accept legal advice in relation to his plea, he did not demonstrate any genuine remorse.
As to ground 1(b)(i), it was the overwhelming nature of the Crown case (that is, ease of proof), not the seriousness of the offences, which his Honour referred to as weighing against an inference of contrition from the pleas of guilty. That was not erroneous in legal principle. It was a legitimate consideration that, in pleading guilty, the applicant was merely bowing to the inevitable without other motivation.
This ground is not made out.
As to ground 1(b)(ii), it is the fact, as his Honour said, that the only potential evidence of contrition consisted of the pleas of guilty and admissions made by the applicant. But it was wrong to give less weight – perhaps it was no weight at all – to the pleas of guilty because they were delayed on legal advice, having regard to circumstances more fully set out by his Honour in relation to the discount allowed for the utilitarian value of the pleas.
This ground is made out.
Ground 2: His Honour gave insufficient weight to the applicant’s mental illness.
Ground 3: The sentences are manifestly excessive, taking into account the pleas of guilty, the applicant’s mental illness, the fact that he will have to serve his sentences in protective custody, his prospects of rehabilitation, his prior good character and his subjective background.
As I have mentioned, the reference to protective custody is acknowledged to be an error.
A fresh view has now to be taken of the significance of the applicant’s mental illness having regard to the evidence admitted on appeal.
It is first necessary, however, to state the correct approach to this topic. Mental illness in a case such as the present may be relevant, principally, in two ways. First, it 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).
Secondly, 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 (1999) 46 NSWLR 346 at [254], Jiminez [1999] NSWCCA 7 at [23], Tsiaras [1996] 1 VR 398 at 400 and Lauritsen (2000) 114 A Crim R 333 at [51].
The inapplicability of the M’Naghten rules relating to the defence of mental illness is not in point. It may be noted that, in his report, Dr Westmore did not merely exclude the defence of mental illness, he went on to say that the role of the applicant’s mental illness in his behaviour on the day was, in his opinion, significant. He correctly suggested that this was relevant to mitigation of penalty. Dr Westmore’s opinion in that regard was amply supported by the evidence to which I have referred.
Although his Honour noted Dr Westmore’s opinion with apparent acceptance, it does not appear that his Honour took the applicant’s mental illness into account in that way.
His Honour imposed an effective aggregate sentence of eight and a half years with a non-parole period of five and a half years. That was after a 15 per cent discount for the utilitarian value of the plea of guilty. So his Honour’s starting point was a head sentence of ten years, for which a non-parole period in the same proportion as that fixed would be six and a half years.
Giving due weight to the objective circumstances of the offences and other relevant considerations, that was, on the evidence before his Honour, manifestly excessive, having regard to the applicant’s mental illness and its significance in moderation of general deterrence and in moderation of denunciation and punishment.
The additional evidence admitted on appeal renders the substitution of a lesser sentence the more necessary.
Grounds 2 and 3 are accordingly made out.
Appeal allowed
Grounds 1(a), 1(b)(ii), 2 and 3 being upheld, the appeal should be allowed.
Re-sentencing
I adopt the findings of the trial judge with the modifications and additions to which I have referred, including the finding of special circumstances.
Having regard to the objective and subjective considerations which are then to be taken into account and allowing a discount of 22.5 per cent for the utilitarian value of the pleas, the sentence should be imprisonment for a term of five years with a non-parole period of three years.
Orders
I propose the following orders.
(1)          Grant leave to appeal;
(2)          Appeal allowed;
(3)          Sentence quashed, and in lieu thereof the applicant be sentenced to a term of imprisonment for five years commencing on 18 November 2002, with a non-parole period of three years commencing on 18 November 2002 and expiring on 17 November 2005, that being the earliest date on which the applicant will be eligible for release.
Kirby J: I agree with Sperling J.
Bell J: I agree with Sperling J.

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LAST UPDATED: 11/05/2004