R v Stafford

[2014] NSWCCA 6

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Stafford [2014] NSWCCA 6
Hearing dates:	11 February 2014
Decision date:	19 February 2014
Before:	Hoeben CJ at CL [at 1] Schmidt J at [2] Barr AJ at [3]
Decision:	Grant leave to appeal Dismiss the appeal
Catchwords:	CRIMINAL LAW – sentence appeal – doing an act with intent to pervert the course of justice – whether sufficient weight given to the applicant’s disclosure to police of his offence – whether applicant’s mental illness reduced the role of general deterrence – whether lesser sentence warranted
Legislation Cited:	Criminal Procedure Act 1986 Crimes Act 1900
Cases Cited:	Church v R [2012] NSWCCA 149 R v Engert (1995) 84 A Crim R 67 R v Giang [2011] NSWCCA 276 R v Letteri, Court of Criminal Appeal, NSW, 18 March 1992 unreported R v Nguyen (2004) 149 A Crim R 343
Category:	Principal judgment
Parties:	Blake Andrew Stafford - Applicant Regina - Crown Respondent
Representation:	Counsel: Mr I H Wallach - Applicant Ms H Wilson SC - Crown Respondent Solicitors:David Davidge - Applicant Solicitor for Public Prosecutions - Crown Respondent
File Number(s):	2011/136471
Decision under appeal	Date of Decision: 2013-03-13 00:00:00 Before: Payne DCJ File Number(s): 2011/136471

Judgment

The Application

1. HOEBEN CJ at CL: I agree with Barr AJ

1. SCHMIDT J: I agree with Barr AJ

1. BARR AJ: This is an application for leave to appeal from sentences imposed in the District Court. The applicant, Blake Andrew Stafford, was committed to that Court for sentence on charges that may be summarised thus -

(1)   On 23 April 2011 at Willbriggie, New South Wales, by wanton and furious driving causing bodily harm to a person, namely RS;

(2)   On 23 April 2011 at Willbriggie, New South Wales, by wanton and furious driving causing bodily harm to a person, namely AC;

(3)   On 23 April 2011 at Willbriggie, New South Wales, doing an act with intent to pervert the course of justice;

1. In addition, a charge of failing to stop and assist after an impact causing injury was included in a Certificate under s 166 of the Criminal Procedure Act 1986.

1. The first two counts were laid under s 53 of the Crimes Act 1900. Each attracted a maximum penalty of imprisonment for two years. On each, Payne DCJ sentenced the applicant to imprisonment for a fixed term of three months commencing on 10 March 2013 and expiring on 9 June 2013. The third count was laid under s 319 of the Crimes Act and attracted a maximum penalty of imprisonment for fourteen years. On that count, her Honour sentenced the applicant to imprisonment for a term of one year and ten months comprising a non-parole period of ten months, commencing on 10 May 2013 and expiring on 9 March 2014, and a balance of term of one year, expiring on 9 March 2015.

1. For the offence in the Certificate her Honour imposed a fixed term of one month, concurrent with the sentences on the first two counts.

1. The effect was an aggregate sentence of two years, comprising a non-parole period of one year and a balance of term of one year.

The Facts

1. The facts were agreed. In the remarks on sentence her Honour put them this way -

On the 23rd of April 2011, the victims RS, his girlfriend AC, her brother AC and his girlfriend KK, were in Griffith in relation to othe LA Festa festival. They travelled over from Leeton in RS's vehicle, being a white Toyota Hilux dual cab utility bearing number plates New South Wales RP1172 ("the ute").

While in Griffith they had disagreements with other persons in regards to historical events. The other persons were Blake Stafford ("the accused"), his partner Joseph OToole ("the co-accused"), KS, her friend CC and her boyfriend SB. Blake Stafford was driving his group around in his silver Toyota Camry station wagon registration New South Wales BJ67DM ("the station wagon").

RS and his friends left Griffith at about 4.00pm, leaving in his ute from the council car park at the corner of Banna Avenue and Jondaryan Avenue.

As they were leaving the car park, the accused arrived in his station wagon and four other passengers, one of them being the co-accused in the front passenger's seat and the others, being CC, SB and KS, in the back seat. The accused did a burnout in front of RS's ute and drove away.

RS proceeded to drive back towards Leeton on Jondaryan Avenue and looking in his rear view mirror noticed the station wagon being driven by the accused was following them, swerving in and out of traffic, and passing them between Griffith and Hanwood.

Between Hanwood and the North Kooba Settlers Road turnoff, the

co-accused hung out of the station wagon window, gesturing for RS to pull off the side of the road. The accused all of a sudden pulled off to the side of the road in the gravel, maintaining a high speed. RS continued driving, passing the station wagon. The accused drove back onto the road and continued driving in pursuit of RS's ute.

AC at this stage called triple-0 from her mobile phone, such was her fears that they were being followed and taunted by the accused and his friends.

Several other vehicles turned into North Kooba Settlers Road, as well as the accused in his station wagon.

The accused caught up to RS and drove closely behind his ute. The accused drove into the westbound lane, driving up alongside RS's ute. One of his passengers threw an item, described as a cup or a bottle, at RS's ute, hitting it in the side of the rear passenger's door.

RS continued to drive in the middle of the eastbound lane. The

accused's passengers were jeering at RS and his friends. The accused drove his station wagon into the eastbound lane, bumping his vehicle into RS's ute.

This action caused RS to drive off the road to the left hand side, driving through the gravel. The accused continued to drive forward, and RS attempted to re-enter the eastbound lane. RS has overcorrected his vehicle and lost control, crossing the entire road to the southern side of the road at speed, and flipped the ute. The ute rolled three or four times before landing on its side.

The accused continued to drive on.

RS and his passengers got out of the vehicle through the front window as the windscreen had fallen out. Other drivers stopped and rendered assistance. AC's phone was still connected to triple-0 and RS spoke to the operators. Minor bodily harm, such as lacerations and abrasions, were sustained by all of the occupants of the ute, and were conveyed to the Griffith

Base Hospital by paramedics.

...

After the accused drove from the scene, he turned left onto Stacy Road. After a short distance, he pulled up due to being shaken by the incident. KS, who holds a learners licence, got into the driver's seat. The accused is a P2 provisional licence holder. KS drove to their address of Farm 1993 Orchard Road, Willbriggie, where the accused spoke to triple-0 and told operators that they were the victims of an accident where they were rammed by another car.

Police attended this location. Constable Burton placed a form of demand in accordance with Road Transport legislation on KS, who stated:

"I pulled up to swap drivers on the Darlington Point Road as Blake (Stafford) was driving. I got into the driver's seat and Blake got into the passenger's seat. I turned down the road towards Leeton. This is the road the accident was on. There were a few cars in the front so I overtook them. I came up behind RS's car and they slowed down to like 60ks and putting arms out the window. I didn't want to be behind them, just in case they threw anything out. I overtook them. They swerved across and hit us. I looked in the rear view mirror and saw that vehicle rolling. I panicked and kept going."

The accused was required to indicate who was driving at the time of the accident in accordance with Road Transport legislation. The accused signed Senior Constable Harrison's notebook stating KS was the driver. The accused signed Senior Constable Harrison's notebook underneath the jurat indicating he would be prosecuted if he stated anything he knew to be false. The accused had already told police radio his friend "K" was the driver at the time

of the accident.

...

Police conducted further investigations over the next several days,

obtaining numerous statements from persons involved in the crash and other independent witnesses.

On Sunday the 24th April 2011, the co-accused OToole attended the Griffith Police Station and made a three page statement in relation to the matter. The accused made a statement in relation to KS being the driver at the time of the collision, and the accused Stafford being a passenger. The coaccused read this statement and signed it after agreeing with its contents.

After obtaining all statements pertaining to the crash, police were able to discern that it was the accused, Stafford, who was driving the vehicle at the time of the collision.

On 27 April 2011, the accused participated in an electronically recorded interview. He stated he was driving the car and he was not going to lie any more. He agreed he had given K's name as the driver but that was false.

The Grounds of Appeal

1. The first grounds of appeal pressed on the Appeal were these -

(3) The sentencing judge erroneously failed to take into account the applicant's disclosure to investigating police of his offence contrary to section 319

(4) The sentencing judge erroneously failed to give adequate weight in sentencing the applicant to the applicant's disclosure to investigating police of his offence contrary to section 319

1. It was submitted that only three days elapsed between the first occasion on which the applicant lied to the police about the identity of the driver and his admission at the police station that he was the driver. Mr Wallach, Counsel for the applicant, acknowledged that her Honour noted that the applicant admitted to the police that he had been the driver before they had taken any action against the young person who had been said to be the driver. However, he submitted that her Honour erred in then observing, at RS 10 -

But the difficulty is that - or the case law had indicated that the gravamen of the offence or one of the features of the offence is that it is the actions which are done in respect of perverting the course of justice.

But in short, just because the person has subsequently disclosed that they have done what they have done does not make it necessarily less serious. What the Court has to focus on is, in my view, what indeed Mr Stafford did in the context of all of the surrounding circumstances.

1. It was submitted that although her Honour correctly referred to R v Giang [2011] NSWCCA 276 and Church v R [2012] NSWCCA 149, authorities which emphasise that the offence constitutes an attack on the criminal justice system, her Honour erred in not giving due weight to the other objective features of the offence, particularly the brief period of the offending, which came to an end when the applicant freely admitted that he had lied and named himself as the driver.

1. It would not be correct to say that the applicant changed his story because he believed that the police had ascertained that he was the driver. There was no finding to that effect. However, the fact, as appears from the Agreed Statement of Facts, was that when they invited the applicant to the police station to be interviewed, the police had already ascertained that he was the driver. So, before he was interviewed, the applicant's lie had lost its capacity to pervert the course of justice. The applicant's disclosure during the subsequent interview that he had lied changed nothing. The police already had the information on which they would charge him.

1. The applicant's assertion on appeal that her Honour gave no weight, or not enough weight to the applicant's disclosure of his offence was misconceived in so far as it attacked her Honour's assessment of the objective seriousness of the offence. In making that assessment her Honour was well aware of the limited practical effect of the applicant's deceit. Her Honour was correct in observing that the gravamen of the offence lay in the applicant's actions, meaning his lie and the intention with which he told it.

1. That did not mean, of course, that the applicant's change of heart was not to be taken into account for subjective purposes. Her Honour said this at RS 12 when considering contrition -

All right. Well Mr Wallach did emphasise that, that his client did, three days after the event, make an admission. It is the case that the plea is some indication of contrition and remorse and he did go to the police, and on balance I will give him the benefit of that mitigating factor.

1. These grounds of appeal have not been made good.

1. The next grounds of appeal argued were these -

(5) The sentencing judge erroneously applied the principle of general deterrence despite finding that the applicant was diagnosed with ADHD and a possible emergent bipolar condition at the time of the offences

(6) The sentencing judge failed to take into account, either adequately or at all, that the applicant's mental condition was not in remission and that he had not taken his medication for his mental condition at the time of the offending.

1. Two medical reports were tendered on sentence going to the applicant's mental condition. On 30 April 2011 Dr Moursi wrote -

Mr Stafford suffers from major depressive disorder with anxiety and ADHD. He reports symptoms of insomnia, feeling down, lethargy, anhedonia, difficulty with memory and concentration, agitation, lots of anger and aggressive outbursts. He also reported some auditory hallucinations. He denied any thought disorder or paranoia. He has been on anti-depressant since March 2010. He has history of ADHD since early childhood and was tried on Ritalin with increased dosage and Catapres. Currently he is on Efexor 150 mg daily.

Mr Stafford reported that he stopped the medication 2 weeks ago because he could not afford it. He also reported that his symptoms were aggravated since then.

As his mental condition was not in remission prior to stopping the medication the symptoms are likely to worsen if treatment was stopped abruptly.

1. On 19 October 2011 Dr Furst, Consultant Forensic Psychiatrist, wrote a report. Under the heading "Psychiatric History", Dr Furst wrote -

There has been a lengthy history of emotional and behavioural problems in his childhood at home and at school. He told me that he had trouble concentrating at school and used to "snap and go off' quite easily. He was suspended on occasions due to oppositional behaviour towards his teachers and the School Principal at Griffith High School, telling him to "Shove his fuckin' school up his arse." He tended to blame other people for "making him angry." He acknowledged truanting on a regular basis to smoke.

He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at school and treated with the stimulant medications Ritalin (Methylphenidate) and Concerts, with limited effect. There was also a trial of the antidepressant medication Zoloft

when he was 16 years of age that did not improve things much.

Mr Stafford said that he can change quite quickly from feeling happy to feeling depressed and angry. He has been taking antidepressant medication prescribed by his GP. He has also been seeing a psychologist, Ms Emma Kelly, since the offence in

question before the Court and a psychiatrist at the local mental health service, Dr Greg Patterson.

Mr Stafford said that he often felt depressed and that he had tried to end his own life on three previous occasions that included an attempted carbon monoxide poisoning in 2008, and cutting his wrist in 2010 and 2011. He was not admitted to psychiatric hospitals after those attempts but saw Dr Moursi. He described feeling down for weeks on end, not sleeping well, and having racing thoughts. He often feels irritable. His concentration remains poor.

There was also a suggestion of paranoid symptoms in that Mr Stafford claimed to "see people in the house" and often felt as though his body was being "taken over by something." He said that he heard 'voices' in the past that told him to hurt himself. He

also thought he saw someone standing over his bed with a knife, which could have been a visual hallucination. He said that he "saw a man flying into his parent's room." There were no delusions of reference from the television.

His mother Wendy said that she tried to get him tested for ADHD when he was 6 years of age. She described a deterioration in his mood earlier this year, bad outbursts, and one episode in particular where "his eyes changed.. .they went all black.. .he was very angry." He often took things the wrong way and spent time shaking and rocking when stressed. She was very concerned about his condition and his capacity to cope away from the support of his family or in a custodial setting.

Mr Stafford was generally unhappy about the treatment his GP and Dr Hopp had given him, using derogatory names during the interview. He was quite disrespectful towards authority figures. There was also a history of difficulty sustaining employment and some issue with his most recent employer at Coles Express

1. Dr Furst dealt with the applicant's current condition and prognosis thus -

1.CURRENT CONDITION

Answer:

DIAGNOSIS (DSM-IV TR)

Axis I Conduct Disorder

Attention Deficit Hyperactivity Disorder

Chronic dysthymia

Axis II No indication of a developmental disability

Axis III Bilateral hearing loss

Possible genetic abnormality

Axis IV Current legal difficulties

Poor problem solving abilities

Impulsivity

Axis V Global Assessment of Function = 40/100

Mr Stafford presents as an angry and disgruntled young man who has a lengthy history of oppositional behaviour, poor frustration tolerance, impulsivity, and conflict with authority figures.

His pattern of attentional deficits at school and general maladjustment to the demands of living in society probably warrant the diagnosis of ADHD and a conduct disorder.

Although he complains of low mood and some odd symptoms, such as hearing voices, his presentation was more in keeping with a chronic dysthymia than major depressive disorder; however there is a possibility of an emerging mental illness such as bipolar affective disorder, especially given his family history of depressive disorders.

He has not coped well with the charges or legal process he is facing and remains very fearful of gaol. He will be at high risk of suicide if incarcerated and should receive appropriate support.

2. HIS PROGNOSIS

Answer:

Mr Stafford will require a period of observation and support for his emotional instability and behavioural problems. Given that he appears to have ADHD, a trial of stimulant medication may be warranted again.

There was also a history of depression and it may be necessary to continue his Efexor and Olanzapine medication.

Anger management and supportive counselling are probably also indicated.

His prognosis is guarded at this stage, especially in light of ongoing negative attitudes towards authority figures, his poor judgement, impulsivity, and the difficulty he has had in controlling his anger in the past.

1. Dr Furst recommended a treatment plan comprising, among other things, oversight by his local Mental Health Service and his General Practitioner, Dr Moursi, appropriate medication and abstinence from drug abuse.

1. There was also a letter from a psychologist, Mr Haley.

1. Having identified the relevant material, her Honour said at RS 10 -

In particular, Mr Wallach relied on the diagnosis of ADHD with the possibility of an emergent bipolar condition. He submitted accordingly both general deterrence and specific deterrence are of a reduced significance. I take into account these mental conditions, but as against that, in my view, general deterrence cannot be put completely to one side, even though those conditions are present.

1. It was submitted on appeal that her Honour's summary of the applicant's mental condition was inaccurate. Counsel observed that her Honour did not mention that the applicant's symptoms were not in remission, that he was unmedicated, that he was angry and aggressive and that he experienced auditory hallucinations. As a result, it was submitted, her Honour failed to recognise those features as part of the objective assessment of the applicant's criminality and as subjective features favouring him on sentence.

1. It was submitted that her Honour's conclusion that general deterrence could not be put completely to one side misstated the applicable principle, which was that persons who suffer from mental conditions are inappropriate vehicles for general and specific deterrence.

1. Counsel referred to no authority for putting the principle so widely and the submission should be rejected. The principle was stated thus by Badgery-Parker J in R v Letteri, Court of Criminal Appeal, NSW, 18 March 1992 unreported -

The principle then is clear enough It is correctly stated as follows; that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.

1. In R v Engert (1995) 84 A Crim R 67, an appeal by an applicant who had been diagnosed as suffering from schizophrenia, Gleeson CJ, with whom Allen and Sully JJ agreed, said at 68 -

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

1. In my opinion this was not a case in which considerations of general deterrence were totally outweighed by other factors. While not irrelevant, the applicant's mental condition fell a long way short of having that effect. There was no evidence of any causal link between the applicant's illness and the act constituting his principal offence. That was a simple lie, told and repeated with a complete understanding of the position in which the applicant found himself and with the intention of misleading the police. Dr Moursi reported that the applicant had a major depressive disorder with anxiety and ADHD. Dr Furst saw only the possibility of an emerging mental illness. Neither asserted the existence of any causal link.

1. There was no precise evidence that the applicant's condition was more severe because he had not taken his medication. He told Dr Moursi he had not taken it for two weeks. He told Dr Furst three days. Dr Moursi's notes apparently recorded a period of three weeks. The applicant gave no evidence about the period or about any change in his symptoms at the relevant time.

1. Her Honour expressly accepted Mr Wallach's submission that there should be some moderation of the generally deterrent effect of the sentence to be imposed. Her Honour's remarks show that she did understand the applicant's condition and did take it into account. Her Honour was entitled to conclude that the evidence did not justify putting general deterrence completely aside as a consideration.

1. These grounds of appeal have not been made good.

1. The last grounds of appeal pressed were as follows -

(9) The sentencing judge erroneously found that a suspended sentence was inappropriate;

(10) The sentencing judge erroneously sentenced the applicant to a term of full-time imprisonment;

(11) The sentences, both individually and cumulatively, were manifestly excessive in all the circumstances.

1. Mr Wallach cited a passage from the remarks on sentence at 21 thus -

The Court though must not be deflected in any case from its duty to impose appropriate sentences by giving excessive weight to subjective matters. The Court must have regard to the maximum penalty for the offence and there are repeated statements of principle by the court of Criminal Appeal in respect of the seriousness with which offences of this type are viewed.

1. The passage, it was submitted, demonstrated error. First, it was submitted, her Honour gave "excessive weight" to the maximum penalty in concluding that a sentence of full-time custody was appropriate. Secondly, it was submitted, a view that full-time custody was "necessarily appropriate" was contrary to authority. On sentence, Counsel had drawn her Honour's attention to a number of cases, chiefly in Victoria, one in Western Australia and one in New south Wales, in which offences under s 319 or an equivalent provision had been visited with sentences of less than full-time custody. Mr Wallach referred to the cases again in this Court. The New South Wales case, R v Nguyen (2004) 149 A Crim R 343, was a Crown Appeal against an inadequate sentence in which this Court substituted a sentence of periodic detention for a suspended sentence.

1. In summary, these grounds and the submissions made in support of them amount to no more than an assertion that the sentences were excessive. The cases cited all involved non-custodial sentences. They do not establish a range of available sentences, much less that the sentences appealed from fell outside the range of her Honour's discretion.

1. In my opinion a fair reading of her Honour's remarks on sentence does not show that her Honour was of the view that she had no discretion to impose any sentence less than one of full-time custody. Her Honour made clear that she had listened to the submissions of the Crown and defence Counsel and that she accepted the Crown's submission that nothing but a sentence of full-time custody was appropriate.

1. In view of the objective seriousness of the offence against s 319, her Honour's conclusion fell within the proper bounds of her Honour's discretion. So was the sentence imposed, a period of one year and ten months after the deduction of 25 percent for an early plea of guilty.

1. These grounds of appeal have not been made good.

1. I propose the following orders -

(1) Grant leave to appeal

(2) Dismiss the appeal

Decision last updated: 03 March 2014