Regina v Alexander

[2000] NSWCCA 458

Reported Decision: [2000] 118 A Crim R 350

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Alexander [2000] NSWCCA 458 revised - 3/11/2000
FILE NUMBER(S):	CCA 60176/00
HEARING DATE(S):	27/10/00
JUDGMENT DATE:	27 October 2000
PARTIES :	Regina v John Alexander
JUDGMENT OF:	Whealy J at 1

LOWER COURT JURISDICTION:	Drug Court
LOWER COURT FILE NUMBER(S) :	99/0038
LOWER COURT JUDICIAL OFFICER :	Judge Milson

COUNSEL :	Ms P. Hock - Crown H. Dhanji - Appellant
SOLICITORS:	S. E. O'Connor - DPP D. J. Humphreys - Appellant
LEGISLATION CITED:	Criminal Appeal Act 1912 Supreme Court Act Drug Court Act 1998
CASES CITED:	Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 at 692 The Queen v McCrea (2000) NSWCCA 300 The Queen v WHS (NSWCCA 27 March 1995) R v Leon (NSWCCA 30 November 1994 unreported) Histollo Pty Ltd v The Director General of National Parks & Wildlife Services (1998) 45 NSWLR 661 The Queen v Fahda (1999) NSWCCA 67 R v Sconamiglio (1991) 56 A Crim R 81 R v Letteri (NSWCCA 18 March 1992, unreported) R v Engert (1995) 84 A Crim R 68 R v Mooney (Victoria 1 June 1978 (unreported) The Queen v Henry Vol 46 NSWLR at 394
DECISION:	I make orders as follows: ; 1. I set aside the sentence of Milson DCJ of the Drug Court of New South Wales passed on 24 February 2000 in relation to the break, enter and steal offence committed at Paddington on 23 June 1999.; 2. In relation to that charge, I re-sentence the appellant to a term of imprisonment of 8 months commencing on 23 September 2000 with a non parole period of 3 months. I order that the appellant be released on parole on 22 December 2000.

IN THE COURT OF

CRIMINAL APPEAL

60176/00



WHEALY J


FRIDAY 27 October 2000


REGINA v John ALEXANDER


JUDGMENT

1 HIS HONOUR: This is an appeal under s 5AF of the Criminal Appeal Act 1912. The nature of the appeal is that it is an appeal from sentence imposed by the Drug Court of New South Wales. 2 The Drug Court Act 1998 received assent upon 8 December 1998 and came into force (as to Part 3) on 11 December 1998 and as to the remainder on 5 February 1999. The stated object of the Drug Court Act is "to reduce the level of criminal activity that results from drug dependency". Section 6 of the Act enables Courts to refer an alleged offender to the Drug Court. Section 7(2) enables the Drug Court to convict and sentence a person who has pleaded guilty to the offence for which the person has been referred if, and only if, it is satisfied of five nominated conditions. In broad terms, the person must be an eligible person and it must be appropriate for that person to participate in a programme under the Drug Court Act 1998. The scheme of the Act is that an order is then made imposing on the person the conditions that the person has accepted. The court must make an order suspending execution of the sentence for the duration of the person's programme. The programme itself sets out the drug rehabilitation treatment which the sentenced person must undergo. 3 Section 12 of the legislation provides that on terminating a drug offender's programme, the Drug Court must reconsider the drug offender's initial sentence and impose a final sentence. The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence. 4 The practice of the Drug Court is that if a drug offender adheres to his drug programme, rehabilitates himself and does not commit any further offences, it is the usual practice of the Drug Court when reconsidering a drug offender's initial sentence to vacate any term of imprisonment and to substitute as a final sentence a recognisance requiring the offender to be of good behaviour and to comply with the conditions imposed by the Drug Court. 5 As I have indicated, the jurisdiction of this appeal arises under s 5AF of the Criminal Appeal Act 1912. Such appeal is heard by a single judge of the Supreme Court who exercises the power of the Court of Criminal Appeal to hear and determine an appeal under the section. The nature of the jurisdiction, in turn, derives from s 5AA of the Criminal Appeal Act 1912. This section provides that any such appeal is to be by way of re-hearing on the evidence, that is the original evidence, if any, given in the proceedings before the Supreme Court in its summary jurisdiction. The Court of Criminal Appeal, however, may give leave to adduce fresh, additional or substituted evidence but only if the court is satisfied that there are "special grounds" for doing so. If the court does give leave, the appeal is to be by way of re-hearing on the original evidence and on any fresh, additional or substituted evidence so adduced. 6    The powers of the Court of Criminal Appeal, in an appeal from the Drug Court, extend to enable it to confirm the determination made by the Drug Court; or the court may order the determination made by the Drug Court be vacated. The court may make any determination that the Drug Court could have made on the evidence heard on appeal. 7    The nature of the appeal has been discussed in Camilleri's Stock Feeds Pty Limited v EPA (1993) 32 NSWLR 683 see especially at 692. 8 The power and extent of the Court of Criminal Appeal to receive fresh evidence at the hearing of the appeal has been considered extensively by Smart J sitting as the Court of Criminal Appeal in R v McCrea (2000) NSWCCA 300. I respectfully agree with his Honour's remarks in relation to the circumstances which will entitle this court to adduce additional evidence. 9 I turn now to the circumstances of this appeal. On 16 March 1999, the senior judge of the Drug Court, her Honour Judge H G Murrell imposed a number of sentences upon the appellant. These sentences were then suspended pursuant to s 73 of the Drug Court Act 1998, thereby allowing the appellant to enter into a programme under the Act. As I understand it, there were some fourteen charges involved. These ranged from "driving whilst cancelled" to "possession of car breaking implements", larceny, and “goods in custody”. The appellant entered Miracle Haven Rehabilitation Centre. He did not remain at that centre, however, and a warrant was issued for failing to comply with the Drug Court programme. He was in that centre for a little under a month. 10    On 23 June 1999 the appellant was arrested in relation to a charge of break, enter and steal at Paddington. This was dealt with by Judge Milson on 6 July 1999. His Honour imposed a sentence of fifteen months cumulative on the original suspended sentences. The sentence imposed by his Honour was also suspended, thereby allowing the offender to continue in the Drug Court programme. On 7 July 1999, the very next day, the appellant left Miracle Haven. On 13 July he entered the Westmount Rehabilitation Centre but absconded from that centre on 16 July 1999. 11    The appellant was arrested on 18 October 1999 and he remained in custody until 2 November 1999 when he again entered Westmount. Again, he left this centre on 14 November 1999. 12    The appellant was arrested on 10 January 2000 and sentenced on 11 January 2000 for breach of the Drug Court programme to a fixed term of thirteen days to expire on 23 January 2000. On 24 February 2000 the matters which had been dealt with by Judge Murrell and Judge Milson came before Judge Milson. The Drug Court programme had terminated essentially, as I understand it, as a consequence of the failure of the appellant to continue in any useful way in the programme which had been outlined for him. Judge Milson set aside the earlier sentences and re-sentenced the appellant following termination of the Drug Court programme. In relation to a number of the offences which had originally come before Judge Murrell, the sentencing judge imposed a fixed term sentence of eight months from 23 January to 22 September 2000. For completeness I should say that some of the charges which Judge Murrell had dealt with were of a less serious nature and re-sentences were imposed by Judge Milson, none of which however extended beyond the date in September I mentioned. 13    In respect of the “break, enter and steal” in Paddington, Judge Milson sentenced the appellant to a term of imprisonment cumulative upon the previous sentences for a period of seven months as a minimum term, such term to date from 23 September 2000 expiring on 22 April 2001. The judge imposed an additional term of five months from 23 April 2001 until 22 September 2001. Again for completeness, I should also mention that the appellant in relation to a sentence imposed at the Central Local Court on 12 April 2000 received a fixed term of twelve months to commence on 10 January 2000 and to expire on 9 January 2001. I understand however that an appeal against this sentence was successful in the Downing Centre District Court on 2 May with the consequence that a new sentence was imposed. This new sentence expired on 9 July 2000. 14    The practical consequence of all this is that the appellant is in custody and remains in custody only in relation to the sentence imposed in respect of the break, enter and steal at Paddington. I turn now to the facts in relation to that offence. 15    Those facts are within a brief compass. The police received a call in relation to a break and enter occurring in the vicinity of Brown Street, Paddington at about lunchtime on 23 June 1999. The appellant was seen by police to jump over a fence at number 31 and then clamber over a fence into premises at number 43 Brown Street. The appellant walked up a side path in the backyard of a third property in this street and was seen to try the door handle on the kitchen door of that property. He then entered the outdoor laundry and closed the door behind him. He was in this laundry when he was apprehended and arrested. 16    At first he gave false particulars in relation to his identity. Later, however, he made admissions which revealed he opened a window at the rear of 43 Brown Street, entered the premises and removed an amount of property. It was when he noticed that the police were in attendance in the area that he hid himself in the laundry along with the property he had taken. The property stolen was a quantity of jewellery, a camera and other items of reasonably substantial value. 17    The appellant originally appealed against conviction and sentence on 25 February 2000. On 4 August 2000 he abandoned the appeal against conviction but gave notice he wished to proceed with his appeal against sentence. This is the appeal I am now hearing. The appellant wished to adduce fresh evidence on the hearing of this appeal. For the purposes of this appeal, the appellant sought leave to rely upon the affidavit which he had sworn himself and the affidavit of Heather Anderson, solicitor. There has been placed with the papers an affidavit by Heather Anderson sworn 12 October 2000. Annexed to it is a comprehensive report from Dr Bruce Westmore, a forensic psychiatrist dated 25 September 2000. 18    This evidence concerns the appellant's psychiatric condition. In short, it discloses that the appellant is suffering from a paranoid schizophrenic illness together with substance and alcohol abuse. The material was tendered before me earlier in these proceedings, and I allowed it on the basis that special grounds existed for so doing, particularly in relation to the explanation it offers as to the appellant's failure on the Drug Court programme and because of its relevance to the appropriate length of the total effective term of imprisonment imposed by Judge Milson. The applicant's evidence in his affidavit, is corroborative and supportive of the history given in the psychiatric report, and it also explains why the appellant was not frank with the Drug Court about his mental condition. This affidavit was also allowed. 19    I should also note that the Crown did not oppose the tender of that material and quite properly so. It was on the basis that the material satisfied the "special grounds" test that I admitted it. 20    Written submissions were filed on behalf of the appellant. The essence of these submissions is first that the sentence of 12 months, to be served cumulatively, in relation to the break, enter and steal was an unduly severe one taking into account the lack of sophistication of the offence, and in particular the lack of force used to gain entry. It was pointed out in this part of the submission that all the property was recovered, the appellant made the necessary admissions and pleaded guilty to the charge. In this context, it was further said the final sentence included other periods during which time the appellant had either been in custody or quasi custody. It was suggested that this of itself might constitute special circumstances. The Queen v WHS (NSW CCA 27 March 1995). 21 Secondly, the submission was that Dr Westmore's report plainly addressed reasons why the appellant failed on the Drug Court programme and dealt with other important issues relating to these subjective features of his situation. This submission in its final form was that there was ample material in Dr Westmore's report to justify a finding of special circumstances. 22 The essence of the Crown's written submissions is that the sentencing judge in fact took all relevant matters into account, as he was required to do, both having regard to section 12 of the Drug Court Act and also having regard to relevant principles in relation to sentencing matters generally. 23    The Crown's submission was that the sentencing judge took into account subjective features in favour of the appellant in giving the twelve months sentence and, secondly, the Crown said that the fact that the sentence is imposed cumulatively does not automatically give rise to the fact that special circumstances exist; R v Leon (NSWCCA unreported 30 November 1994). 24 Finally, the Crown submitted that even if the report of Dr Westmore is given full and due weight, this court would refrain from imposing a lesser minimum term. 25 I turn now to state briefly that this is, as I have already said, a re-hearing. It is the type of re-hearing as that which occurs where the Court of Appeal hears an appeal under s 75A of the Supreme Court Act. The nature of such an appeal was considered in Histollo Pty Ltd v The Director General of National Parks and Wildlife Services (1998) 45 NSWLR 661. In that decision, Greg James J at page 677 noted that the essential feature of such an appeal is that the appellate court is required to make up its own mind on contested issues of fact and law having regard to the evidence given in the court below; Warren v Coombes (1979) 142 CLR 531. 26 I should add to that statement that in this particular matter, since I have admitted additional evidence, it is necessary for me to make up my own mind on contested issues of fact and law, not only having regard to evidence in the court below but having regard to that additional evidence as well. 27 I turn now to consider the additional evidence in more detail. 28 As I have said, Dr Westmore's report is dated 25 September 2000. In relation to the attendance of the appellant at the rehabilitation centre consequent upon the suspension of his sentence on the first occasion, Dr Westmore says:

"He remained there for one month, he said it found it very hard. He stated, 'I couldn't handle it any more and I left. I was suffering paranoid delusions and I just left.'"

29    In the next paragraph, Dr Westmore said: -

"When he left the centre he purchased alcohol and became intoxicated. He travelled to Kings Cross where he obtained some heroin. He continued to use drugs, and it was during this period he committed the break and enter he referred to earlier. He was returned to the Drug Court a few months later."

30    I interrupt Dr Westmore's report to note that it appears to be common ground that the appellant was not taking any medication to control his paranoid delusions and general mental condition at this stage. 31    Returning then to Dr Westmore's report, he continues later in his report,

"The court sent him to a further rehabilitation centre, he cannot remember whether it was the same centre he attended previously. He said he lasted there about one or two weeks. He told me he was trying to advise staff that he needed medication to calm him down, but they couldn't do anything. He wanted Valium. While at the centre on the second occasion, he used drugs and he was discharged. He told me he cannot remember what happened then, things are very vague."

32    According to the report, the appellant then discussed with Dr Westmore some further details of his mental state while he was at the detoxification centre. According to Dr Westmore, the appellant told him that while he was at the centre he thought people were reading his mind. He thought they were doing things to him. He said he thought his ex-dealer had done something to him with drugs. He said that he wanted something to calm him down. He was praying to God every day. He stayed there for a month but it was more like a year. 33    Dr Westmore noted that at the time he interviewed him the appellant was taking an antipsychotic medication, an antidepressant and methadone. He also takes Panadol occasionally. Dr Westmore concluded, as I have said earlier, that the appellant was suffering from a paranoid schizophrenic illness and substance abuse and alcohol abuse. 34    In his final opinion, he says this,

"Mr Alexander is a 24 year old man who suffers quite a significant mental illness. He also has quite a serious illicit drug problem and has in the past misused alcohol. While he does appear to have increasing insight into his mental illness, he still has some signs of his mental illness which has not yet gone to full remission. He is less paranoid than he was before, however.
He does seem to recognise that when in the rehabilitation centre previously, on referral from the Drug Court, he was suffering from paranoia which affected his admission there. Unfortunately, his illness was apparently unrecognised or untreated and it may have influenced his ability to remain at the centre.
While he believes treatment with methadone will now stop him from returning to illicit drug use, I do note that a previous treatment history with methadone which was not successful in the long term. I believe he does require long-term community support and supervision in a recognised facility for treating drug related problems. That facility will need to appreciate that he has a mental illness and enable him to have a regular psychiatric review. He will need to remain on psychiatric medication and in the shorter term, methadone."

35    There is no need for me to set out in any detail the contents of the affidavit of the appellant himself beyond noting that he explains in it why it was he did not inform those who were involved in the Drug Court programme about his mental health problems. 36    He confirms that he has seen a number of psychiatrists, including Dr Parmegiani at Junee Correctional Centre, and he says he has been continuing to take his medication since it had been prescribed for him. He says that he understands he needs to address his mental health problems and drug problems. 37    I turn then to the determination of the issues which arise in this appeal. It is fair to say that the learned sentencing judge did not have the advantage of the material which I now have. It is not necessary for me to determine whether that material would have persuaded the sentencing judge to take a different view, as I have to determine the matter for myself. 38    For my part I am quite comfortably satisfied that the material which I have read today and have attempted to either quote or summarise is such that I should set aside the sentence that was imposed by the sentencing judge and re-sentence the appellant. 39    My reasons are essentially these: First the psychiatric evidence from Dr Westmore lessens very significantly the view which Milson DCJ had as to the general failure of the Drug Court programme to impact on the appellant. I will briefly refer to the passage in the reasons for sentence where his Honour said:

"So it cannot be said in any way that the Drug Court program was successful in either protecting the community from further offences at his hand or in rehabilitating him from his drug habit."

40    Secondly, the offence was committed, as I understand it, at a time when the appellant was not on medication to control his mental illness. This had a dual effect on him. It made it impossible for him to stay effectively in the Drug Court programme and that in turn led to a secondary effect, namely, his wandering the streets and going back onto illicit drugs as he did. The crime he committed was obviously related to his drug problem but it was also linked to his mental condition untreated as it was at that time, by medication. 41    The third matter is the matter which has been put to me by counsel for the appellant today in the submissions, that is in determining whether the sentence should be set aside and re-sentencing occur, a very important factor is that which is expressed conveniently in The Queen v Fahda (1999) NSW CCA 267. In the judgment of Simpson J reference is made to a number of well known authorities including R v Sconamiglio (1991) 56 A Crim R 81, R v Letteri, (NSWCCA 18 March 1992, unreported); R v Engert (1995) 84 A Crim R 68. In R v Sconamiglio, Grove J noted that it was long established that mental handicap, falling short of providing a defence on the ground of “mental illness” is a basis for reduction of sentence. He adopted the remarks of Young CJ of Victoria in R v Mooney (unreported 21 June 1978) in these terms:

"In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight. General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."

42    The relevant principle was stated in R v Letteri by Badgery-Parker J in a passage adopted by Gleeson CJ in R v Engert supra. Badgery-Parker J said:

"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 reduce 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 involved in every sentencing exercise."

43    In The Queen v Henry, Wood CJ at CL at page 394 Vol 46 NSWLR, having referred to this passage, said:

"The reason for this approach lies in the circumstances that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints and in some instances lack the ability to make reasonable ordinary judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act or of its moral culpability which, although falling sort of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice."

44    His Honour then went on to contrast the situation with drug addiction and to note the differences which arose in that regard. 45    The appellant here is a person who suffers from both a mental illness and also from drug and alcohol abuse. It is difficult looking at the objective facts of the case involving the break, enter and steal to precisely draw the line where one condition operated or where the other did. It may be that both were operative at the one time. In my opinion, whichever way it be examined the existence of the appellant's undoubted psychiatric condition is highly relevant to the sentence which should be imposed on him. 46    In the course of submissions I have discussed a number of options with counsel for the appellant and with counsel on behalf of the Crown. The essential difference as I understand the submissions is, if I am minded to re-sentence as I clearly am, whether I should disturb the term of twelve months that was imposed by the sentencing judge. 47    The Crown submission is that I should not interfere with that because to do so would interfere with the perception of the length of sentence. It is said that is necessary when dealing with a crime of this kind, to highlight its objective seriousness and impose a general deterrent. However, as the authorities to which I have referred make clear, the factor of general deterrence is lessened considerably in the present case because of the appellant's mental condition. 48    In the circumstances then, I propose to set aside the sentence of Milson DCJ, the sentencing judge, and in relation to the break, enter and steal charge I propose to re-sentence the appellant. 49    An appropriate sentence is, in all the circumstances a sentence of imprisonment for eight months cumulative on the earlier sentences now expired. I am satisfied that there are special circumstances in relation to the length of the non-parole period. I consider that this is a very clear case in which the need for special rehabilitation and supervision is involved for the appellant, not only having regard to his drug and alcohol abuse problems but especially in relation to the treatment for his mental illness. 50    I am of the opinion that the non parole period should be a period of three months commencing on 23 September 2000 and expiring on 22 December 2000. 51    I do not wish to understate the objective seriousness of a break enter and steal charge. However, in this case the sentence is to remain a cumulative one. That is to say, the appellant will have received a total custodial sentence for the offences deal with by the Drug Court, including the break enter and steal, of eleven months full time custody plus a five month period during which he may be at large on parole. 52    Additionally, I am satisfied that the facts of the break enter and steal in this case put it, in terms of objective seriousness, well towards the bottom end of the scale. I have already referred to the submissions of counsel for the appellant in that regard which I accept. Finally, and perhaps most significantly, established principles of sentencing, as I have said, recognise that the appellant’s mental illness does not make him (or his offence) a satisfactory vehicle for a statement of general deterrence. 53    It will be a significant recognition of the undesirability of persons on the drug programme re-offending during the treatment term if the sentence remains, as Judge Milson imposed it, a cumulative one. 54    The orders I make are as follows: -

1. I set aside the sentence of Judge Milson of the Drug Court of New South Wales passed on 24 February 2000 in relation to the break enter and steal offence committed at Paddington on 23 June 1999.
2. In relation to that charge, I re-sentence the appellant to a term of imprisonment of eight months commencing on 23 September 2000. I fix a non parole of three months. I order that the appellant be released on parole on 22 December 2000.
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