Regina v Lemon

[2000] NSWCCA 232

CITATION:	Regina v Lemon [2000] NSWCCA 232
FILE NUMBER(S):	CCA 60520/99
HEARING DATE(S):	Monday 19 June 2000
JUDGMENT DATE:	19 June 2000
PARTIES :	Regina v Christopher Michael Lemon
JUDGMENT OF:	Grove J at 1; Newman J at 24

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0263
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	P.G. Berman (Crown) S.J. Odgers (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) David Giddy and Associates (Applicant)
CATCHWORDS:	Criminal Law and Procedure - Sentence - Fresh Evidence of Effects of Syndrome Reducing Ability to Resist Impulse - Multiple Offences - Syndrome of Long Standing and Recognized in Childhood - Long Record of Offending - No Assessment Different From First Instance Imposition
LEGISLATION CITED:	Criminal Procedure Act s5(2) Sentencing Act 1989 s6 Criminal Appeal Act
CASES CITED:	R v Engert 1995 84 A Crim R 67
DECISION:	Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL

60520/99

GROVE J
NEWMAN J


Monday 19 June 2000

REGINA v CHRISTOPHER MICHAEL LEMON
JUDGMENT

1    GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Nield DCJ in the Gosford District Court.

2 The applicant appeared for sentence on a mixture of matters totalling 15 counts in indictments for offences including breaking, entering and stealing, receiving, disposing of stolen goods and stealing from a dwelling. There was also a schedule with some nine offences on it taken into account pursuant to the Criminal Procedure Act.

3    The offences have been described in written submissions of counsel as unremarkable. They involved persistent and continuing offences of dishonesty. In the circumstances of this appeal it is not necessary to recite the ingredients of the various offences.

4    Mr Odgers of counsel for the appellant has contended that the statistical records of the Judicial Commission show that the sentences imposed, and by that I refer to the enveloping sentence, was at the top of the range.

5    Accepting that assertion it should be understood that the contention of the appellant is, that whilst the total sentence was not outside the range there is new material before the Court, to which I will refer shortly, which should lead this Court to reconsider for itself the appropriateness of sentences it imposed.

6    The sentences imposed in the District Court consisted of a variety of fixed terms of two and three years respectively enveloped by a sentence comprising a minimum term of four and a half years imprisonment with an additional term of two and a half years.

7    The division of the term so as to extend the additional term component beyond that mentioned in s 5(2) of the then in force Sentencing Act 1989, occurred as a result of a finding by his Honour there were special circumstances justifying this, particularly the age of the applicant.

8    The applicant was born on 29 June 1977. He has what must be described as a considerable record, although a lot of his offences have been against the traffic laws. He first appeared before a Court on 11 October 1995 as an unlicensed driver. Indeed the first five appearances before Courts were for exactly that offence. More significantly, however, in my view as the years progressed he came before Courts for more serious matters including assaulting police, some seven counts, breaking entering and stealing, and of current continuing significance an offence of robbery with use of corporal violence.

9    For this he was sentenced to a term of imprisonment and as a result of more recent events he has been ordered to serve the balance of parole. That parole will not expire until August this year. Nevertheless Nield DCJ when dealing with the applicant dated all the sentences, including the enveloping sentence to which I have referred, to commence on 14 May 1999. Accordingly, for approximately 15 months of the minimum term component of the present sentences the applicant would in any event be in custody serving the balance of parole.

10    I should turn, however, to the principal thrust of the argument advanced on behalf of the appellant. It is based upon opinion expressed by Janet Devlin, a psychologist, whose report was by consent received as fresh evidence in this appeal.

11    Her report indicates a diagnosis of what is described as Tourette's Syndrome. This gives, so it is said, a propensity for compulsive behaviour or expressed in another way, a reduced capacity to control one's impulses. Included apparently are impulses for dishonest behaviour.

12    It has to be said that the existence of this syndrome was revealed to the sentencing judge as a result of evidence from the applicant's sister. She told the judge that her brother suffered from Tourette's Syndrome and further, that that led to a tic of the face and quite impulsive uncontrollable action.

13    Nevertheless, in his remarks on sentence his Honour mentioned that he had not been told that this illness caused or contributed to the commission of the criminal offences. The present challenge is based upon the evidence of Ms Devlin which suggests that there was some causative link between the criminal conduct of the applicant and the existence of the syndrome from which he suffered.

14    The contentions on behalf of the appellant/applicant suggest that he is in need of a program for assisting him in controlling this reduced capacity for resisting impulsive criminal behaviour and that this Court should reconsider the sentence that has been imposed, inter alia, to enable such a program to be entered upon.

15    In his remarks on sentence Nield DCJ indicated that he regarded the matter of general deterrence as a matter of considerable weight. It is contended that having regard to the diagnosed condition of the applicant, he was not a suitable vehicle for manifestation of a significant element of general deterrence.

16    It has to be said that the revelation of alleged causal nexus between the misconduct of the applicant and Tourette's Syndrome comes rather late in life bearing in mind his record and the evidence of the sister that it had been recognised from the applicant's very early years.

17 I have also mentioned the not inconsiderable number of times that the applicant has previously been before a Court. The issue for this Court in essence is whether, having regard to the concession with which as a matter of assessment I agree, that the sentences imposed were not outside the range, there is some sentence which is less severe which this Court ought to impose in substitution for that imposed below. That is the requirement of s6 of the Criminal Appeal Act.

18    As I have indicated the applicant was before the District Court on this occasion for a mixture of some 15 different crimes together with the additional matters mentioned on the schedule. It seems to me that no different sentences from those imposed by the judge below suggest themselves even giving full and due weight to the opinions expressed by Ms Devlin.

19 It was a subject of contention between the parties in argument as to whether or not some assistance can be derived from the remarks of the Chief Justice in R v Engert (1995) 84 A Crim R 67 where it was said that in a case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance might at the same time mean that the protection of society is of greater importance.

20    It was pointed out that that was a case where there was apparently evidence of the appellant's inability to control sexual urges, whereas in this case Tourette's Syndrome is said to give a reduced capacity to control impulses for criminal behaviour directed against property.

21    I would not regard Engert as directly in point, nevertheless I would regard it as proper in principle to take into account that there must be a balancing in any sentence between the need for protection of the public, whether it be their property or persons, against illnesses suffered by persons who have offended.

22    Taking all matters into account and on balance I have come to the conclusion that there should be substituted no sentence different from that imposed below.

23    Accordingly, I would grant the application for leave to appeal but dismiss the appeal.

24    NEWMAN J: I agree.

25    GROVE J: The orders of the Court, therefore, will be as I have proposed.
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