R v Smith No. Sccrm-98-137 Judgment No. S6888

[1998] SASC 6888

R v SMITH

[1998] SASC 6888

Court of Criminal Appeal:  Prior, Lander, Wicks JJ

PRIOR J

1 This is an appeal against a sentence of imprisonment imposed in the District Court. On the day set for trial, pleas of guilty were entered to charges of illegal use of a motor vehicle, creating risk of bodily harm and damaging property . There were two admitted breaches of s29(3) of the Criminal Law Consolidation Act 1935. One was within a day of the other.
2 The sentencing judge was also asked to sentence the appellant on matters brought up from the Magistrates Court.  They were one admitted breach of driving a motor vehicle whilst disqualified from holding a driver’s licence and one of carrying an offensive weapon.  The sentencing judge imposed a sentence of six months imprisonment for the driving whilst disqualified.  That was to be served concurrently with the single sentence of four years he imposed for the four admitted offences charged on information.  For carrying an offensive weapon, the sentencing judge simply convicted the appellant without penalty having regard to the totality of the sentences he had already imposed. 
3 The illegal use admitted on the first count of the information occurred the day after the appellant was released on parole with respect to a sentence of 2½ years imprisonment with a non-parole period of 15 months, imposed in November 1995 for various offences, including seven counts of illegal use of motor vehicles.  Given that the appellant had committed offences whilst on parole, the appellant had to serve the balance of the sentence in respect of which he was on parole upon a sentence of imprisonment being imposed.  Any term of imprisonment then imposed had to be cumulative upon the sentence in respect of which the appellant was on parole .  The result was that the appellant had to serve a total head sentence of five years, two months and 28 days from when he was sentenced in the District Court.  A non-parole period of three years was fixed with respect to that total period. 
4 As the sentencing judge described it, not only did the appellant commit a serious offence immediately upon his release on parole, he used the motor vehicle to drive directly at someone who was trying to get him to stop.  That person managed to jump out of the way.  Then, in the early hours of the following morning, the appellant drove the same vehicle at a police officer.  That officer would have been run down had he not jumped out of the way.  The damaging property charge arose out of the fact that the appellant rammed the car he was illegally using into a police car, completely disabling the police vehicle and preventing it from following him. 
5 The appellant was apprehended the next day.  A knife then found in his possession was one of the two matters brought up from the Magistrates Court for disposition in conjunction with the four charges on the information. 
6 The sentencing judge took into account victim impact statements, a psychologist’s report, prepared in 1995, a pre-sentence report and other reports then before him.  The sentencing judge observed that the reports indicated that the appellant came from a socially chaotic family.  The appellant had a seriously dysfunctional childhood, never disciplined by his parents and allowed to get away with just about anything.  The sentencing judge observed that the appellant was frequently in trouble for disorderly behaviour in school.  His Honour noticed that the appellant had been twice expelled.  As for employment, it was noticed that the appellant had only ever had eight months work as a landscaping labourer when 15 years of age.  That came to an end because he was sentenced to a period of detention.  The appellant was known to have been addicted to amphetamines and heroin between the ages of 13 and 17.  Since turning 17, he has regularly abused prescription drugs such as Rohypnol, Rovatrol and Serapax. 
7 After referring to the 1995 psychological assessment, which concluded the appellant did not suffer from a psychotic illness, a serious personality disorder, a major mood disorder or any significant brain damage, the sentencing judge referred to the fact that the appellant had a borderline intellectual disability and poor literary skills.  The appellant’s level of intelligence had been assessed as being in the bottom 2 per cent for his age group.  His reading age was equivalent to that of a child aged 10.  When the appellant was 18 years of age his general level of intellectual functioning was said to have approximated  that of a 13 year old child.
8 The sentencing judge then referred to an authority of this Court which affirms the principle that the subjective responsibility of a person may be so diminished that the importance of fixing a sentence proportionate to the gravity of the crime and which operates as a deterrent to other members of the public may be considerably reduced.  By that authority a person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others .  The sentencing judge said that there was no evidence before him that there was a substantial degree of diminished responsibility as was found in Mason-Stuart.  I think His Honour was correct in saying that.  His Honour observed that the appellant must have understood the implications of taking a car that did not belong to him, because he had done so so many times before.  Again, plainly, His Honour was correct.
9 I do hope that the appellant is aware, in this Court today, that the courts do regard him as being in the position that he has to understand the implications of what he does and that he must continue to reflect upon how he has got himself here and before the courts again.  He cannot continue to behave in this way and expect that the courts will treat him leniently.
10  The sentencing judge referred to things said by the appellant to the psychologist.  In particular, the appellant spoke of his main recreational interest being stealing cars, going on joy rides and participating in smash-up derbies in deserted paddocks, where stolen cars are smashed into each other.
11 His Honour said that the appellant had shown no remorse or contrition for his behaviour.  He noted that the appellant’s capacity to feel remorse was said to be limited by his borderline intellectual disability.  Accepting that may be so, again, I for one would wish the appellant here today to understand that he has to be ready to get help from people to understand what is proper behaviour and what is not proper behaviour.  These things that have happened, have happened far too often and, whatever else needs be said, the appellant has to understand that he runs a real risk of long periods of detention in gaol if he continues to behave in anything like the way in which he did behave when he got out from gaol.  I hope the appellant remembers what happened before he was released.  People tried to help him.  People will no doubt do that again.  The appellant must seek help whilst he stays in custody again so that, hopefully, things will not happen again like they have before.
12 The sentencing judge also noticed that, by the latest offending, the appellant had frustrated a plan set up by those involved with his parole to assist him through the early weeks of his release.  As the probation officer put it, the appellant himself was the weak link in that plan given that he met up with his brother the day after his release, got drunk and then committed the offences then before the court.
13 The sentencing judge then said:
"I am obliged to impose a sentence that will ensure that you are adequately punished, that will serve to protect the community, and that will operate as a deterrent to you and others who may be tempted to act in the same way that you have.  At the same time I must have regard to the possibility of rehabilitation, although in your case that possibility seems extremely remote at this stage.

I doubt that any sentence of imprisonment that I impose will have any deterrent effect on you.  I have to say that the likelihood of you reoffending is extremely high.  However, a sentence of imprisonment will at least protect the community from your criminal and antisocial behaviour for the duration of the sentence."

14 After reference to provisions in the Correctional Services Act 1982 and Criminal Law (Sentencing) Act 1988 , and acknowledging that any sentence of imprisonment could not be backdated to the date when the appellant was taken into custody, but had to be cumulative upon the sentence in respect of which the appellant was on parole, the transcript shows an incorrect reference by the sentencing judge to five counts on the information when referring to the total of the maximum penalties applicable for the offences on the four counts on the information. Nevertheless, the judge was correct in identifying a maximum period of imprisonment of 16 years for the four offences then before the court once the penalty for a second or subsequent conviction for illegal use was taken into account. Despite the criticisms levelled in the grounds of appeal against the judge for saying what the maximum penalties were, I think it must be noticed that, in this particular case, with this particular appellant, that could be seen as a necessary step taken by a judge trying to get a message through.
15 Leave to appeal was granted upon amended grounds of appeal.  Those amended grounds are:

1. The Learned Judge erred in his consideration of the applicant’s antecedents.

1.1    He failed to recognise a distinction between appearances in the Children’s Court and matters in respect of which convictions were recorded.

1.2    He erroneously treated prior appearances for driving without a licence as offences of driving whilst disqualified.

1.3    He failed to take into account the relative intellectual age of the applicant and the sentencing approach that applied to the Children’s Court matters.

1. The Learned Judge erred in approaching the question of the maximum penalty applicable to all the offences upon the basis of an accumulation of the maximum sentences applicable, rather than by considering whether the offences were part of a course of conduct, determining the question of concurrency, and arriving at a sentence proportionate to the circumstances of the offender and the crime.

1. The Learned Judge erred in failing to give any or adequate weight to the applicant’s intellectual disability and his special problems in relation thereto in conjunction with his Aboriginality.

1. The Learned Judge failed to give any or adequate weight to intellectual disability in his consideration of the questions of general and personal deterrence."

16 The sentencing remarks disclose that the sentencing judge referred to the appellant as having an absolutely appalling list of convictions for anyone, let alone someone who had just turned 21.  His Honour spoke of 33 convictions for stealing motor vehicles, nine for illegal use and 27 other convictions for burglary or theft, besides three convictions for damaging property.  His Honour then noticed that the conviction for driving whilst disqualified was the twentieth conviction for that offence or the offence of driving without a licence.  It is plain that the sentencing judge erred in treating previous appearances for driving without a licence as offences of driving whilst disqualified in that he sentenced the appellant as a subsequent offender when he had no previous convictions for driving whilst disqualified at all.  On that approach, the maximum sentence for the offence of driving whilst disqualified was one of six months, not two years.  It is pointed out by counsel for the respondent that the sentence of six months imprisonment was to be served concurrently with the sentence imposed for the other offences to which the appellant had pleaded guilty.  The end result therefore was that the appellant did not received any greater head sentence because of the conceded error.  That may be correct.  It may also be that this error cannot be dealt with in isolation against other errors.  In any event, a sentence of six months imprisonment is not appropriate.  I would substitute a sentence of two months imprisonment for the admitted charge of driving whilst disqualified.
17 There are other errors in the sentencing judge’s summary of the appellant’s antecedents.  Fifteen counts for stealing motor vehicles were dealt with in the Children’s Court in Perth in September 1994.  The antecedent report does not disclose that convictions resulted.  Earlier larcenies dealt with in Victoria in 1990 and 1991 do not appear to have attracted convictions.  Six counts in January 1993 did attract a detention order, presumably with a conviction being recorded.   As for illegal use charges, six were not the subject of a conviction.  Only one of the 27 charges of burglary or theft attracted a conviction. 
18 As the judge properly observed, the reference to previous offending was however not to punish the appellant again for any past offending but as, the sentencing judge correctly put it, because they indicated the absence of respect for the law, other people and their property and the fact that previous sentences of imprisonment appear to have had no deterrent effect on the appellant whatsoever. 
19 The appellant’s counsel submitted that, with the incorrect references to Children’s Court convictions, the sentencing judge has treated those appearances more seriously than was warranted.  It was put that any reference to Children’s Court penalties must be tempered, not only by the sentencing approach generally in that jurisdiction but also, in this case, by what must have been the appellant’s intellectual capacity over those years.  The report of Mr Balfour, in 1995, described the appellant as a person with a borderline intellectual disability.  The submission was that this would be the more so between 1989 and 1995 and would thus have significantly diminished the appellant’s criminal responsibility for those breaches of the law.  Against that, the respondent’s submission was that the sentencing judge did not err in making the observations just summarised given the appellant’s extensive previous court appearances and, in particular, not overlooking his appearance in the District Court in November 1995, when he received a total sentence of two and a half years imprisonment with a non-parole period of 15 months for a number convictions which included escaping from custody, driving or using a motor vehicle without consent, breaking and entering a building, receiving and other like offences.
20 As to the third point made within ground one of the ground of appeal, the second part of that is sufficiently dealt with with respect to the first two points within ground one.
21 It seems to me that the appellant has made good the complaint made in the first two parts of ground one of the grounds of appeal.  However, with respect to the complaint that the judge failed to take into account the relevant intellectual age of the appellant, it seems to me that the submission put by the respondent is itself persuasive in that, in what he did say, the sentencing judge made clear references to the nature and extent of the appellant’s diminished responsibility as evidenced by the various reports that were before the court.
22 As for the second ground of appeal, I do not think that the things which were said by the judge with respect to the maximum penalty themselves create an appealable error. In the context of the sentencing remarks, the judge was simply making plain that he intended to invoke s18A of the Criminal Law (Sentencing) Act and identified the maximum sentence applicable. The actual sentence passed by the judge appears to be consistent with principles relating to concurrent and cumulative penalties as well as to the totality principle.
23 There remains the third and fourth grounds of appeal, linked as they are in some way with the reference to the failure to take into account the appellant’s relative intellectual age, in the third part of the first ground of appeal.
24 The appellant acknowledges that the judge referred to his borderline intellectual disability but the submission was that although the appellant’s diminished responsibility may not be as severe as in Mason-Stuart, the principles, as enunciated in that case, should still play a significant part and that that did not occur in this case.  It was said that merely because a degree of diminished responsibility is not as great as Mason-Stuart it does not mean the principles have no application.
25 Emphasis was placed upon the observations of King CJ about the importance of fixing a sentence proportionate to the gravity of the crime and which operates as a deterrent to other members of the public being considerably less when the court is dealing with a person of diminished responsibility than it otherwise would be.  That principle was said still to have application to the facts of this case and the judge’s sentencing remarks did not allow for it.  It was submitted that those remarks, contrary to the effect of Mason-Stuart, showed the judge had fixed a penalty principally having regard to general deterrence and protection of the community.
26 Overall, I think that it has been established that insufficient regard was paid to the appellant’s borderline intellectual disability.  I think the sentencing judge failed to make sufficient allowance for the number and nature of offences committed while the appellant was under 18 years of age and the error made with respect to the sanctions actually imposed on the appellant for those offences calls for intervention by this Court and a consideration afresh of the sentencing discretion.
27 That being said, I should say that I do not think that the complaint that there was a failure to give any or adequate weight to the applicant’s special intellectual disability problems in conjunction with his Aboriginality is made out.
28 I agree with the submission put by the respondent that, against the material before the court relating to the appellant’s background and Aboriginality and clear reference by the sentencing judge to those materials when passing sentence, there is nothing to support the contention that the judge failed to have any or sufficient regard to the appellant’s Aboriginality.
29 In all of the circumstances, I would allow the appeal, quash the sentence imposed, substitute a sentence of three years imprisonment for the offences referred to in the information and substitute a sentence of two months imprisonment for the offence of driving whilst disqualified.  I would direct that these sentences be concurrent, but served cumulatively on the sentence of 14 months and 28 days to commence on 11 December 1997.
30 I would fix a non-parole period of two years and three months.
LANDER J

31 I agree.
WICKS J

32 I agree.
PRIOR J

33 The order of the court is therefore as indicated.