R v Weiss No. Sccrm-99-226

[2000] SASC 86

R v WEISS
[2000] SASC 86

Court of Criminal Appeal:  Doyle CJ, Mullighan and Bleby JJ

1. DOYLE CJ:       This is an appeal against sentence.

2. The appellant pleaded guilty in the District Court to the offence of assisting an offender, contrary to s 241 of the Criminal Law Consolidation Act 1935.

3. The maximum penalty for that offence is imprisonment for ten years. This is the maximum because the offence committed by the principal offender was armed robbery, attracting a maximum sentence of life imprisonment: see s 158(a) of the Criminal Law Consolidation Act.

4. A District Court judge sentenced the appellant to imprisonment for one year and eight months.  He fixed a non-parole period of one year.  He suspended that sentence upon Mr Weiss entering into a bond, in the sum of $300 for a period of two years, with conditions that Mr Weiss be of good behaviour and remain under the supervision of the Probation Officer, and that he submit himself to such medical treatment, including psychiatric and psychological counselling, as his probation officer might recommend.  There was a further condition that within a period of eighteen months from the date of sentence Mr Weiss perform 96 hours of community service, if his probation officer was satisfied that his psychiatric problems did not render him unfit to perform community service.

5. But for the plea of guilty, the judge would have sentenced Mr Weiss to imprisonment for two years six months.

6. Mr Boylan, counsel for the appellant, submits that the sentence is manifestly excessive.

7. I can state the circumstances of the offence very briefly.  The appellant was sentenced on the following basis.  He was driving a car belonging to a friend.  That friend and some others were in the car.  The plan was to go crabbing.  They all set off from the Riverland for that purpose.  They had all consumed alcohol, including Mr Weiss.  At some stage Smyth, the owner of the car, told Mr Weiss to drive to Adelaide.  This apparently indicated some change of plans, but Mr Weiss had no idea what Smyth was up to.  Smyth then told Mr Weiss to stop the car at a point near a Caltex service station.  Smyth left the car and went to the service station.  Shortly thereafter, he returned in a hurry and told Mr Weiss to drive off.  Mr Weiss did that, and drove the car a short distance.

8. Mr Weiss was sentenced on the basis that during that short journey he learned that Smyth had committed an armed robbery at the service station, and that Mr Weiss was guilty of the offence charged because he assisted Mr Smyth to flee by continuing to drive the car.  It was accepted by counsel for the Director of Public Prosecutions, when submissions were put to the District Court judge, that Mr Weiss had no knowledge of the planned armed robbery beforehand, and did not realise it had been committed until he had begun to drive away.

9. In the circumstances, Mr Weiss’s conduct can fairly be said to be at the very lowest end of the scale, consistent with guilt.  In effect, he continued to drive Smyth’s car, after he learned that Smyth had committed the armed robbery, and so assisted him by continuing an escape which had, unknown to Mr Weiss, already begun.

10. When spoken to by police, Mr Weiss at first denied his involvement, but later admitted his guilt and co-operated fully with the police.

11. Mr Weiss was nineteen years of age at the time.  He lived with his parents in the Riverland.  He had not been able to obtain employment.  He had no previous convictions, a matter which I consider to be of considerable significance.

12. The judge was assisted by the tendering of a psychiatric report.  This disclosed that Mr Weiss suffered from an anxiety disorder with associated social phobia.  It was thought that some of his symptoms, such as hearing voices, were anxiety related rather than the function of a psychotic illness.  However, the psychiatrist reported that Mr Weiss might well be in the early phase of “a major psychotic illness such as schizophrenia.”  The psychiatrist commented that Mr Weiss would “do particularly badly if incarcerated as he is a vulnerable individual and likely to be victimised or pressured by others.”  He would need close psychiatric supervision.  Clearly, he needed psychiatric treatment.

13. In sentencing Mr Weiss, the judge said that he had participated in a very serious crime, and one which usually attracts a substantial term of imprisonment.  The judge said that Mr Weiss could not expect that a court would relieve him of that risk of imprisonment simply because he had a psychiatric problem.

14. I agree with those comments as general comments.  However, there are features of the case which satisfy me that the offence did not call for imprisonment.  I consider that sentence was excessive.

15. As I have already said, Mr Weiss’s crime was not just committed on the spur of the moment.  It consisted only of continuing to drive Smyth’s car, after he realised that Smyth had committed an armed robbery.  The offending was of very short duration.  The limited nature of the offending, combined with Mr Weiss’s young age, his good record, and the psychiatric problems which obviously had the capacity to impair his judgment, in my opinion entitled Mr Weiss to a degree of leniency not usually appropriate for this offence.

16. For that reason, I consider that the sentence should be set aside.

17. At the hearing of the appeal the court received further evidence, in the form of psychiatric reports.  The tender of this evidence was not opposed by counsel for the Director.  In my opinion her concession was correctly made.  It is not necessary to decide when evidence of matters occurring after sentence is admissible on appeal.  It is clear that when the fresh evidence deals with a matter that was before the court at the time of the sentence, and discloses new and further aspects that could not have been known then, the material can be admitted:  R v Smith (1987) 44 SASR 587. In the present case, events since the passing of sentence have thrown further and relevant light on Mr Weiss’s condition.

18. The reports disclose that after he was sentenced Mr Weiss’s condition deteriorated.  He was admitted to Glenside Hospital.  This was not a voluntary admission.  He was clearly psychotic.  He was diagnosed as suffering from paranoid schizophrenia and cannabis abuse.  He clearly needed significant treatment.  The helpful report from Dr Baigent concludes:

    “I suspect Mr Weiss had had a low level psychotic illness for some years, probably two or three and this has affected his ability to concentrate and his judgement.  These facilities will be impaired with drug or alcohol intoxication more so in Mr Weiss’s case than another individual who does not have a psychotic illness. ..... I could well imagine that while intoxicated and psychotic, not only would he be vulnerable but also quite malleable and easily influenced.”

19. This material throws some further light on Mr Weiss’s offending.  It slightly lessens his culpability, because it appears that his condition was probably worse at the time of the offending than was at first realised.  It emphasises that he was easily influenced by others.  That is a feature of his psychiatric illness.  The material also emphasises the importance of considering his rehabilitation, in the context of securing appropriate treatment for his condition.

20. The appellant continues to live with his parents.  I assume that he has their support.  His condition does put him at some risk of further offending.

21. It now falls to this court to re-sentence Mr Weiss.  In all the circumstances, in particular the limited nature of the offending, his age, his previous good conduct and the effect of his mental illness, in my opinion this is a case in which it is not appropriate to order imprisonment despite the serious nature of the offence to which he pleaded guilty.

22. I would allow the appeal, and set aside the sentence imposed by the District Court.  I would record a conviction.  I would discharge the appellant without imposing a penalty upon condition that he enter into a bond in the sum of $300 and for a period of six months from the date of entry into the bond.  (The appellant has already been on a bond for a little over six months.)  The conditions of the bond should be that he be of good behaviour and remain under the supervision of the probation officer and that he submit himself to such medical treatment, including psychiatric and psychological counselling, as his probation officer might recommend.  A further condition of the bond should be that if he fails to comply with a condition of the bond he appear before the District Court for sentencing for the offence of assisting an offender.

23. Should Mr Weiss be required to appear for the purpose of sentencing, a judge can then consider the appropriate sentence in the light of the decision of this court and in the light of the circumstances under which Mr Weiss comes before the court.

24. MULLIGHAN J:        I agree that the appeal should be allowed for the reasons given by the Chief Justice.  I also agree with the orders and the sentence which he proposes.

25. BLEBY J:          I agree with the orders proposed by the Chief Justice and with the reasons that he gives.  I have nothing to add to those reasons.