R v Russon

[2001] NSWCCA 166

CITATION:	R v Russon [2001] NSWCCA 166
FILE NUMBER(S):	CCA 60153/00
HEARING DATE(S):	7/5/01
JUDGMENT DATE:	7 May 2001
PARTIES :	Regina Paul William Russon
JUDGMENT OF:	Carruthers AJ at 1; Badgery-Parker AJ at 25

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0393
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

COUNSEL :	W. Robinson QC (Crown) P. M. Strickland (Appellant)
SOLICITORS:	S. E. O'Connor (Crown) D. J. Humphreys (Appellant)
CATCHWORDS:	Sentencing - Robbery - Assault Police - Whether Judge erred in holding that the appellant's psychiatric or psychological conditions played no role in the commission of the offence.
LEGISLATION CITED:	Crimes Act 1900
DECISION:	Leave to appeal granted. Appeal upheld. Sentences set aside. New sentence: overall term of six years to date from 12 August 1999 and to expire on 11 August 2005. Non-parole period of three years to date from 12 August 1999 to expire on 2002.

- 8 -1    CARRUTHERS AJ: Paul William Russon seeks leave to appeal against sentences imposed upon him by his Honour Judge Coolahan at the Newcastle District Court on 16 March 2000.

2 The applicant had earlier pleaded guilty to an indictment containing two counts. The first count was one of armed robbery under s 97(1) of the Crimes Act 1900 which carries a maximum penalty of twenty years. The second count was one of assault police under s 61 of the Crimes Act, which carries a maximum penalty of five years imprisonment. Both offences were committed on 12 August 1999.

3    His Honour sentenced the applicant on count 1 to a term of six years imprisonment with a minimum term of four years, to date from 12 August 1999 and to expire on 11 August 2003, with an additional term of two years to date from 12 August 2003 and to expire on 11 August 2005.

4    With respect to count 2, his Honour sentenced the applicant to imprisonment for two years, by way of a fixed term, to date from 12 August 1999. Both sentences are therefore to be served concurrently.

5    The applicant was born on 14 October 1963 and was accordingly 35 years of age at the date of the subject offences. He is a single person with a young son who is dependent upon him.

6    The applicant's criminal record commenced in February 1982, when he was eighteen years of age, and thereafter he has been dealt with in various New South Wales courts for offences as diverse as break, enter and steal, malicious damage, misappropriation of money, stealing from a dwelling, supplying a prohibited drug (cocaine), stealing from the person, assault, fraudulent misappropriation of money and stealing. However, it was not until 20 May 1998 that he was sentenced to a term of full-time imprisonment. That was in respect of two offences, one of using an offensive weapon to prevent police investigation, and one of false imprisonment. He was still on parole at the time of the commission of the subject offences.

7    The armed robbery offence was committed after the applicant hailed a taxi cab to be driven home. As the taxi was coming to a halt, the applicant produced a knife, which he held in his left hand against the victim's throat and demanded money. When the victim resisted, the applicant and the victim struggled. The applicant said: -

“There is no use in fighting. I’ll stick it into your face.”

The victim activated an alarm and the applicant left the taxi without any money.

8    A short time after leaving the taxi the applicant approached two persons at the front of a nearby residence. He then saw approaching police officers who were clearly searching for him. He said: -

“Can you call the police. I’m the guy they’re looking for.”

The police duly arrived. The applicant brandished a piece of wood under his shirt, pretending it was a gun. He repeatedly abused the police, pointed the covered piece of wood at the police and threatened to shoot them. There is no doubt that the police officers were genuinely under the impression that the applicant was armed with a weapon. However, they ultimately overpowered him and took him into custody.

9    The applicant conducted a record of interview with the police in which he freely admitted committing the offences. He said that he attempted to rob the taxi driver “just to get enough money to score”. When asked about his confrontation with the police, the applicant said:

"My state of mind at the time, I would have preferred to be shot dead than face going back to gaol.”

The applicant said that he picked up a piece of wood in the bush to

"pretend I had a gun, so that I could get shot.”

10    Counsel for the applicant contends that his conduct in confronting the police in the manner in which he did, was consistent with the desire to get shot. The applicant contends that he said to the police "shoot me”. The statements by the police officers themselves do not, however, relate any statement to that effect by the applicant.

11    At the sentence proceedings a considerable amount of evidence was tendered on behalf of the applicant relating to his psychological and psychiatric history. I shall not recount that detail in any extensive way. There is no doubt that the applicant has a long history of personality disturbance, abuse of prescription drugs and alcohol.

12    Indeed, the applicant consulted Dr Alexander Murray, a consultant psychiatrist, in Newcastle, on 5 August and 11 August 1999. It will immediately be noted that the second consultation was the day prior to the commission of the subject offences. Dr Murray prepared a report dated 8 November 1999 in relation to his assessment of the applicant's psychiatric condition. Dr Murray thought it highly likely that the applicant had an underlying personality disorder, which seemed to be his basic problem. However, constitutional factors and early life adversity seemed likely contributors to this problem. Dr Murray also said there was a likely residual Attention Deficit Disorder, and certainly polysubstance abuse, with highly likely benzodiazepine/alcohol dependence, and highly likely hypnosedative withdrawal. Dr Murray also thought an anxiety disorder was quite likely, and a panic disorder seemed the lead contender, although insufficient information was available to make that precise diagnosis.

13    Dr Murray thought the most pressing difficulty seemed to relate to anxiety and agitation, fuelled by hypnosedative withdrawal. On the basis of the diagnostic possibilities, Dr Murray suggested to the referring General Practitioner, a trial of Alprazolam, notwithstanding the addictive potential of that drug.

14    A report by Ms Anita Duffy, psychologist, referred to several admissions to psychiatric hospitals during the period prior to the applicant's arrest for the current matters. The applicant told her he had been diagnosed variously as suffering from schizophrenia, manic depression and substance abuse. However, there was no expert evidence available before his Honour in this regard.

15    Having administered the appropriate psychometric tests, Ms Duffy concluded that the highest measure on the clinical scale was that of anxiety, reflective of an anxiety disorder which might manifest itself in panic attacks, social phobias and agoraphobic attacks, which were often related to or triggered by fear of separation. Mood disorders were also represented by associated elevations on the clinical measures of disthymia and depression. There was also evidence of post-traumatic stress disorder.

16    Whilst in custody in relation to the earlier offences, the applicant claimed that he experienced traumatic events involving violence by fellow inmates of a high order. During the course of his remarks on sentence, Judge Coolahan said:

"It has been submitted on his behalf by Ms Zahra that at least to some extent these psychiatric or psychological conditions played a part in the commission of these offences. I am not satisfied that is really the case. I think that what did play a significant part in the commission of these offences was the long standing drug and alcohol abuse which the prisoner has had over the years, and of course, that is a matter that whilst it might explain the offences, cannot be used in mitigation.
Having considered these matters carefully, I am prepared to find that special circumstances exist. Indeed, this has not been argued against by the Crown. However, bearing in mind that the prisoner was already on parole for other offences at the time of the commission of these offences, and bearing in mind that he had the benefit of a recognizance in the past, it seems to me that there is no real justification for varying the statutory ratio to any great extent.”

17    His Honour then, as is evident from the sentence which he imposed in relation to the armed robbery, made some adjustment to the prima facie ratio. The main thrust of the application before this Court is directed to the passage which I have cited above.

18    It is submitted that his Honour clearly appears to have concluded that the psychiatric or psychological conditions demonstrated in the evidence before his Honour played no role in the commission of the subject offences. One is hesitant to be critical of a passage such as that under consideration here in an ex tempore judgment, by a District Court Judge who was no doubt dealing with a number of sentence matters on the day in question. However, the conclusion to which I have come is that his Honour does appear to have taken the view that the psychiatric or psychological conditions played no role at all in the commission of the subject offences.

19    In view of the evidence that was before his Honour (difficult as it was to conclude as to what extent the psychiatric or psychological problems played a role in the commission of the offences) the conclusion is irresistible that these conditions played some role. The difficulty is to calculate in any reliable way the extent of the role that they would have played. Nevertheless, with all due respect to the learned district Judge, they must necessarily have played some role.

20    There are other matters of concern. There is no doubt that there was evidence before his Honour of anxiety agoraphobia and a tendency to panic attacks on the part of the applicant. These would undoubtedly make the service of a full time custodial sentence more onerous than in the average case. Again, without attempting to be critical, his Honour has made no reference to this aspect in the sentencing process. I would be minded, on this basis, alone to conclude that sufficient has been demonstrated to grant leave to the applicant to appeal.

21    The Court, not without some hesitation, admitted evidence which cannot be classified as fresh evidence. Nevertheless, because of the psychological problems from which the applicant clearly suffered, it was of sufficient cogency to justify admission. It is constituted by the clinical record of the applicant's admission to the Newcastle Misericordiae Hospital, Emergency Department on 7 August and his discharge on 8 August. On presentation, the history records that the applicant had earlier in the evening attempted to kill himself by an overdose of amphetamines, but he only presented at hospital when “he realised he wasn't dead", which seems, with respect, to be a rather curious expression. He was discharged the following day and provided with medication. There was evidence of a panic attack, according to the clinical notes. Evidence has also been presented to the Court on behalf of the applicant of his attendance since his incarceration at a methadone course, which is encouraging.

22    However, when one comes to sentence, one is still faced with the very serious objective circumstances. The taxi driver must have been submitted to a terrifying experience, as, indeed, the arresting police who, after all, were only doing their duty. It is obvious from the reports which they have filed and the evidence before his Honour that they were indeed genuinely fearful that the applicant was armed with a weapon, and therefore they were placed in a very difficult and fearful situation.

23 In these circumstances, I am not persuaded that the overall term represented by the two sentences which his Honour imposed were incorrect. However, the evidence does, by way of the subjective circumstances and the relevant case law to which the Court was referred, call for some adjustment of what will now be the non-parole period. I would propose, therefore, that this Court grant the applicant leave to appeal, that the appeal be upheld, and the sentences imposed by the learned sentencing Judge be set aside. In lieu thereof, in relation to the count under s 97 (1) of the Crimes Act, I would propose that the applicant be sentenced to an overall term of six years to date from 12 August 1999, the date upon which he was taken into custody, and to expire on 11 August 2005. I would propose that there be a non-parole period of three years to date from 12 August 1999 and to expire on 11 August 2002, on which date the applicant will be eligible to apply for parole.

24    In relation to the second count, I would propose the applicant be sentenced to a fixed term of imprisonment of two years to date from 12 August 1999 and to expire on 11 August 2001.

25    BADGERY-PARKER AJ: I agree.

26    CARRUTHERS AJ: The Court will therefore make the orders in terms of those which I have proposed.