R v Thompson

[2001] NSWCCA 278

CITATION:	R v Thompson [2001] NSWCCA 278
FILE NUMBER(S):	CCA 60337/00
HEARING DATE(S):	6 April 2001
JUDGMENT DATE:	19 July 2001
PARTIES :	Regina David George Thompson
JUDGMENT OF:	O'Keefe J at 1; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/31/0140
LOWER COURT JUDICIAL OFFICER :	Luland DCJ

COUNSEL :	H. Dhanji (Appellant) G E Smith (Respondent)
SOLICITORS:	D. J Humphreys (Appellant) S. E. O'Connor (Respondent)
CATCHWORDS:	Sentencing - Application of principle of totality - Offender aged 23 - not previously adequately treated and problem of being institutionalised.
CASES CITED:	R v Henry and Barber (1999) 46 NSWLR 346 R v Itamua [2000] NSWCCA 502
DECISION:	1. Leave to appeal granted;; 2. Dismiss the appeal against the sentences of fixed terms of imprisonment of 2 years commencing on 8 February 2000 and expiring on 7 February 2002 in respect of each of the offences of break, enter and steal, the subject of counts 1 and 2.; 3. Allow the appeal against the sentence of 10 years imprisonment for armed robbery taking into account the offences on form 1 with a non-parole period of seven years. Sentence quashed.; 4. In lieu thereof the applicant is sentenced to imprisonment for eight years commencing on 8 February 2002, with a non-parole period of 5 years starting that day and ending on 7 February 2007.; 5. Direct that a copy of this judgment and the report of Ms J. Devlin of 5 April 2001 be sent to Corrective Services to enable that Department to attend to the treatment of the applicant.

IN THE COURT OF
CRIMINAL APPEAL

60337/00

O'KEEFE J
SMART AJ

Thursday, 19 July 2001

REGINA v DAVID GEORGE THOMPSON

JUDGMENT

1   O'KEEFE J: I agree with Smart AJ

2   SMART AJ: David George Thompson seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 2 June 2000. As to counts 1 and 2 of the indictment, being two offences of break enter and steal, he was sentenced on each count to a concurrent fixed term of imprisonment of 2 years, commencing on 8 February 2000. On a charge of armed robbery, taking into account 8 offences of break enter and steal and 2 offences of break and enter with intent, he was sentenced to imprisonment for 10 years to commence on 8 February 2002, with a non-parole period of 7 years commencing that day. His total effective sentence was thus 12 years with a non-parole period of 9 years.

3   Consequent upon his arrest for armed robbery the applicant was interviewed by the police as to a number of break, enter and steal occurences. During this interview the applicant made admissions of guilt of breaking, entering and stealing from the Dowe Street Café, Tamworth. He had been drinking at two hotels on the evening of 27 November 1999. He left the second hotel in the early hours of 28 November 1999 and walked to the Dowe Street Café. He removed the air conditioner from a rear window by force and entered the shop from which he took $50.00 and two bottles of soft drink. He broke into a number of other premises in the vicinity in the early hours of the same morning.

4   On the evening of 3 February 2000 the applicant drank at the City Tavern. He left when he had run out of money. He decided that he did not want to walk home. He wanted money for a taxi home or further drinking. He kicked and broke the glass panel of the front door of the premises of 5 Bourke Street, entered and stole some $80.00 and a small amount of change from a charity box. The applicant also broke into a number of other premises in Bourke Street that night. He volunteered the information about the incidents in Bourke Street.

5   About 4 pm on 8 February 2000 the applicant went to the Colonial State Bank, Bridge Street, Tamworth and made inquiries about opening an account. He observed the Bank's interior. About 4.15pm he returned to the Bank, having placed a long bladed knife down the front of his trousers. The applicant walked up to the counter holding a black sports bag. He threw the bag over the counter, removed the knife from his trousers and jumped the counter holding the knife. He grabbed one of the young female tellers, forced her to the ground and held the knife at her throat. He demanded that one of the other female tellers fill up the bag with money. The teller picked up the bag but was unable to open it. The applicant opened the bag and removed about $4672.00 in cash from the open cash drawer at the front counter.

6   Pointing the knife at the Bank staff the applicant demanded money. One of the tellers told him that there was no more money available due to the safe having a time-delayed opening. The applicant placed the knife on a filing cabinet behind the counter, stating that he was leaving the knife behind for fingerprints. The applicant jumped the counter again, taking the bag and the money, and ran out the front door of the Bank. He climbed several fences of adjoining properties. He summoned a taxi which took him to a point fairly close to his sister's home unit. He walked the short distance to it. When she returned home he told her that he had robbed the Colonial Bank and showed her the money. She telephoned another sister, who in turn contacted the police. When they attended at the unit the applicant ran away. He was pursued a short distance by the police and arrested. The police recovered $4550.00. The financial loss was thus about $122.00.

7   The applicant made admissions to the arresting police that he had committed the armed robbery. A little later in the afternoon he made further admissions in his ERISP. He stated that his motive for committing the robbery was to obtain money so he could leave Tamworth.

8   None of the three female tellers present at the Bank were injured but each was severely traumatised, particularly the teller at whose throat the knife was held.

9   As to other offences taken into account, the applicant in each instance smashed a glass panel on the front door of the shop and entered when there was no person present. The amounts or items taken were mostly under $100.00. There were 2 exceptions where amounts of $400.00 and $700.00 respectively were taken.

10  The applicant was born on 1 August 1976. His criminal history began in 1988 in the Toowoomba Children's Court. There were offences in 1991, 1992, 1993 and 1994. They included assaults, driving offences and dishonesty offences. In October 1994 he was sentenced to a minimum term of 12 months with an additional term of 12 months on some 7 counts of break enter and steal. There were some further 9 counts of break, enter and steal for which he was sentenced to the rising of the Court. In March 1995 he was sentenced to a fixed term of 5 months from 19 October 1995 for attempting to escape from lawful custody. In September 1996 he was sentenced to imprisonment for 8 years on 2 counts of stealing with actual violence whilst armed with a dangerous weapon. There were concurrent shorter sentences for other offences which were not of the same gravity. He was eligible to be considered for parole after serving 2.5 years. In 1997 he was sentenced to further terms in gaol. He was released from gaol on parole on 30 September 1999. His parole for the earlier armed robbery offences has been revoked. He is required on this account to serve the balance of parole from 8 February 2000 to 18 February 2005. It was the current offences which led to the revocation of parole.

11   The Probation and Parole Service has had contact with the applicant since 1994. Its report of 16 May 2000 stated that the consistently recurring motive for the property and related offences was the financing of an alcohol problem. He starting misbehaving at school from about age eight. He left school at age 15 without obtaining the School Certificate. He is of average to below average intelligence.

12   He feels that he does not fit in. He states that he always feels depressed. He has a history of self-harm attempts while in prison. He has found it difficult to come to terms with an accident in 1993 in which he was the driver of a motor vehicle in which two persons were killed, although he was completely absolved from blame. He has a significant alcohol abuse/dependency problem. As well as matters of aggression/violence committed whilst intoxicated there are offences committed to gain money for alcohol. The alcohol problem has existed for many years. He cannot keep off alcohol once released from prison. There were suggestions that the applicant is becoming "institutionalised", albeit at only 23 years of age.

13   The Probation and Parole Officer concluded:

"Given the nature of his obvious problems, the young age at which he commenced offending and his repeated comments about his inner feelings/thoughts since only a young boy, it may be that thorough psychological and psychiatric assessment and treatment should be directed toward him whilst he is now imprisoned. His record suggests, and he states his agreement, that at present he lacks the capability to function in the community without offending against its laws."

14   The judge stated that he would give the applicant a discount for his early plea of guilty. He also recorded that the applicant, to his credit, admitted all of the offences when arrested by police on 8 February 2000, including some which were unknown to them. The judge was, correctly, much troubled by the gravity of the armed robbery. It was particularly serious with a knife being held against the young teller's throat. As to the breaking, entering and stealing, the judge noted that the seriousness of this offence, lay in its repetition, and in its happening while the applicant was on parole, and so soon after his release on parole.

15   The history of the applicant's life is a sad one. He has spent much if not most of his adult life in gaol. It is a daunting prospect that this now 24 year old applicant is likely to spend much of the rest of his life in gaol, unless he takes steps to lift himself out of the pit into which he has sunk. While the applicant must help himself and must want to reform himself, he is going to need a lot of expert help from, amongst others, a psychologist and an alcohol counsellor. I specifically draw the attention of the prison authorities to the special needs of the applicant. Sustained treatment should start as soon as possible. It is in no one's interests for this 24 year old man to spend much of the remainder of his life in gaol. The Queensland sentences envisaged a non-parole period of 2.5 years and there was a further 5 months for other matters. It is a big jump from a non-parole period of 2.5-3 years to one of 9 years. In so commenting I am not overlooking the gravity of the offences or their repetition.

16   The applicant submitted that the sentences imposed were manifestly excessive. He submitted that the sentences of a fixed term of 2 years for each of the two offences of break, enter and steal were manifestly excessive. They were crude offences by a man under the influence of alcohol. Property of little value was stolen. The applicant made admissions in his police interview and entered a plea of guilty at an early stage. He was entitled to a significant discount in respect of these factors. Fortunately no one was in the premises entered. However, the applicant had a record which included similar offences. The sentences imposed for these two offences are high but they fall within the top section of the permissible range.

17   Without attempting to be exhaustive I would classify the armed robbery as falling within the middle range of offences for armed robbery. At the lower end of that range are armed robberies of the kind referred to in R v Henry and Barber (1999) 46 NSWLR 346 where a weapon is produced and there is limited, if any, actual violence but a threat of such violence. Included in the middle range are armed robberies where a weapon capable of inflicting serious bodily harm is produced, held close to the victim and the victim is held or forced into a corner or onto the floor. The victim is vulnerable and the threat of harm is significant. Included in the upper end of the range are those cases which are worse, that is, the threat of harm is intense. It is a matter of degree. The victim may be tied up or forced into a strongroom or otherwise confined. More than one person may be seriously affected. There will often be significant pre-planning. An example is Itamua [2000] NSWCCA 502. There is no rigid division between the categories, and the focus of attention must be upon the particular circumstances of the case. Exceptional circumstances apart, the head sentences in the lower category, usually range from 4 to 5 years, those in the middle category from 6 to 9 years, and those in the upper category from 10 years to the maximum. Other factors such as the criminal history and whether other offences are being taken into account may intrude. It is sometimes useful to use the broad guide I have outlined as a check on the sentences being imposed.

18   While the armed robbery offence was very serious and there were 10 other offences taken into account, the sentence of 10 years falls outside the permissible range when the earlier sentence of 2 years, the applicant's admissions and the pleas of guilty are taken into account. Further, the police were not aware of some of the offences until the applicant told the police of them. In some instances the police would have had difficulty in proving the offences without the applicant's admissions. The applicant's conduct immediately after committing the offence was odd. He placed the knife on top of a bench or cabinet and said "you've got me, my prints are on the knife, you've seen me, tell my mum I'm sorry". The young teller said that the applicant appeared a bit teary, stroked her hair and said " sorry babe" . The applicant wore no disguise. The applicant's conduct suggests that he was disturbed, perhaps wanting to be arrested.

19   The applicant relied on the principle of totality. It was submitted that the sentences imposed did not reflect this principle and that overall the sentences were excessive, even if the sentences on each count were just within the permissible range. The applicant contended that the sentences for the break enter and steal offences and for the armed robbery should be concurrent. The judge was not bound to make the sentences concurrent. He was bound, however, to recognise and apply the principle of totality. The judge made no mention of the principle of totality in his sentencing remarks. It is a principle with which he would be very familiar. I would be surprised if he had not taken it into account.

20   Applying the principle of totality, the subject sentences are in total manifestly excessive.

21   The applicant pointed out that the judge did not refer to the fact that all the break, enter and steal offences could have been dealt with in the Local Court where the maximum sentence is two years. This is not a matter of moment in the present case given the large number of offences and the offence of armed robbery.

22   This court has to re-sentence. On re-sentencing the applicant relied on the report of 5April 2000 of a consultant psychologist, Ms J. Devlin. The judge had no reports from a psychologist or psychiatrist to help him. Ms Devlin obtained a detailed history and undertook a careful analysis of the applicant's problems. She has written:

" David told me that the lowest point in his life was 'when I was a kid'. He experienced multiple traumatic experiences from a very early age including his father's drunken behaviour, physically abusive discipline and incestuous activity with David's sister, the lengthy separation from his father, the prolonged sexual abuse by an adult male family acquaintance and being subject to the incestuous behaviour of his sister. This predisposed him to very early self medication via abuse of solvents and later, alcohol, as he tried to avoid the post traumatic sequelae. In turn this led to the need to steal to support his addictions and inappropriate behaviour as a result of intoxication.
This series of events then resulted in ongoing imprisonment in juvenile and adult correctional facilities and separation from his family. It also contributed to inappropriate peer associations and overall absence of interpersonal relations and normative social activity. Most of his life has been spent behind bars and he has never had the opportunity to learn to socialise in a normal way."
23   She thought that he had a classic post traumatic presentation. He demonstrated anxious arousal (hypervigilance, specific phobias and generalised anxiety), intrusive experiences (flashbacks, nightmares) and dissociative experiences, amongst his post traumatic symptoms. He experiences depression pursuant to the early onset and chronic nature of the post traumatic stress disorder. She further wrote: -

"David also demonstrated an impaired self reference indicating substantial personality dysfunction likely arising from the early onset of the traumatic experiences, particularly the sexual abuse. He appears to have a personality disorder, predominantly the borderline type, with prominent schizoid, self defeating and antisocial traits. He has significant problems in terms of emotional regulation, interpersonal relations, a propensity for self harming and substance abuse and identity disturbance."

24   Ms Devlin has recorded a long history of self harming. She considered that factors which may have contributed to the offence included substance abuse, financial difficulty and an inability to identify more appropriate options. She listed what she regarded as the risk factors for further offending and those factors which supported the prospect of successful rehabilitation. There is a prospect of rehabilitation if he receives the support which he needs.

25   Ms Devlin wrote: -

"David has had a very traumatic life by any standards. Despite this, he has had very minimal psychological or community services intervention during childhood or adulthood and, where counselling has been forthcoming, there has been little continuity of care.
The psychological sequelae of his traumatic experiences appear to have played an instrumental role in his offending behaviour in terms of the drive to maintain his alcohol abuse, his only self-identified means of escaping his emotional disturbance, and his inability to identify a more appropriate course of action.
Moreover, David has spent most of his adolescence and young adulthood in correctional facilities in which such problems have remained unidentified and untreated and in which he has simply established a means of further withdrawing from his problems and the relationships which he feels precipitate same.
David's considerable emotional disturbance is revealed in his self harming behaviour and suicidal ideation. Considerable psychological intervention will be required to begin to address such problems and to address the helplessness and hopelessness which underlies his poor self worth, pessimism with respect to the future, and to break the cycle of institutionalisation and self harm in which he is currently ensconced. Further imprisonment in the absence of such assistance will likely result in a consolidation of his psychological defences and problematic avoidant behaviours and greatly reduce the prospect of rehabilitation."

26   Part of the problem has been that the applicant has been wary of help and does not seem to have sought it with any vigour. This is part of his personality. Unless the staff of, and consultants to, the Department of Corrective Services actively pursue the treatment of the applicant, the dire prospect of him spending most of his life in gaol is likely to come true. No one would suggest that the road ahead for him will be other than difficult.

27   The psychologist's report provides some explanation for the applicant's conduct. It cannot be excused. The applicant will need considerable and extended supervision on his release from gaol to prevent him relapsing. So much is clear from his past history. A period of supervision of three years is desirable. The applicant will need to receive extensive psychological treatment and support prior to his release.

28   Having regard to the applicant's admissions, early pleas of guilty, his telling the police of offences of which they were not aware, his background, the gravity of the offences and the principle of totality, I am of the opinion that the correct sentence for the offence of armed robbery is one of eight years with a non-parole period of 5 years. This sentence should be cumulative on the sentences for the break, enter and steal offences which I would not disturb. I have taken into account the accumulation of the sentences. I propose the following orders: -


1. Leave to appeal granted;

2. Dismiss the appeal against the sentences of fixed terms of imprisonment of 2 years commencing on 8 February 2000 and expiring on 7 February 2002 in respect of each of the offences of break, enter and steal, the subject of counts 1 and 2.

3. Allow the appeal against the sentence of 10 years imprisonment for armed robbery taking into account the offences on form 1 with a non-parole period of seven years. Sentence quashed.

4. In lieu thereof the applicant is sentenced to imprisonment for eight years commencing on 8 February 2002, with a non-parole period of 5 years starting that day and ending on 7 February 2007.

5. Direct that a copy of this judgment and the report of Ms J. Devlin of 5 April 2001 be sent to Corrective Services to enable that Department to attend to the treatment of the applicant.

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