Regina v Metcalf

[2000] NSWCCA 277

CITATION:	Regina v Metcalf [2000] NSWCCA 277
FILE NUMBER(S):	CCA 60074/00
HEARING DATE(S):	Wednesday, 7 June 2000
JUDGMENT DATE:	7 June 2000
PARTIES :	The Crown (Appl) Scott Derek Metcalf (Resp)
JUDGMENT OF:	Spigelman CJ at 39; Newman J at 1; Adams J at 46

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/2048
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL :	C K Maxwell QC (Crown/appl) S J Odgers (Resp)
SOLICITORS:	S E O'Connor (Crown) Murphy's Lawyers Inc (Resp)
CATCHWORDS:	CRIMINAL LAW - robbery while armed with an offensive weapon - sentence - Crown appeal - guideline judgment - co-operation with authorities - mental illness - special circumstances
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Henry & Ors (1996) 46 NSWLR @ 346 R v Roberts (1994) 73 A Crim R 306 @ 308 R v Wright (1997) 73 A Crim R 48
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60074/00

SPIGELMAN CJ
NEWMAN J
ADAMS J

WEDNESDAY, 7 JUNE 2000

REGINA v Scott Derek METCALF

JUDGMENT

1    NEWMAN J: This is a Crown appeal brought against a sentence passed by O'Reilly DCJ sitting in the District Court at Liverpool on 16 December 1999.

2 Before his Honour the respondent had pleaded guilty to two counts of robbery while being armed with an offensive weapon which carried, pursuant to s 97(1) of the Crimes Act, 1900, a maximum penalty of penal servitude for twenty years.

3    Furthermore, he pleaded guilty to three counts of robbery in company which again attracts a maximum penalty of penal servitude for twenty years. In the event, his Honour sentenced the respondent to a sentence of periodic detention for a period of three years commencing on 7 January 2000. It was against that sentencing order which the Crown now seeks to appeal.

4    The offences to which the respondent pleaded guilty involved a series of events involving the respondent and two other young men, one Scott Tysluk and Andrew Bihary carrying out robberies at a number of service stations in the southern areas of this city.

5    The first of those offences took place at about 2.15 am on Tuesday 2 November 1998 at the Quix Service Station at Lansvale. The trio of Tysluk, Bihary and the respondent drove to that service station in the respondent's car.

6    The respondent was armed with a kitchen knife and Tysluk was armed with a baseball bat. Apparently, the weapons were supplied by Tysluk and Bihary. Ultimately, the respondent held a knife to the unfortunate console operator at the station, from whom he had purchased an ice-cream. Indeed, oddly enough, the respondent had paid for the ice-cream and when change was being given he held the knife to the unfortunate operator and made a demand for money.

7    At that time Tysluk approached the operator with the baseball bat. Needless to say, a demand was then made by one of the three, that the operator open the till and, wisely, as he did, pushing an alarm button at the same time. Some $50 or $60 was stolen and a magazine was also stolen.

8    Thus a serious breach of the law was committed particularly as the respondent was holding a knife in a situation where the prime victim, namely the console operator, was in a situation of great vulnerability.

9    The second matter involved the trio robbing a service station at Campbelltown. Again they travelled to that service station in the respondent's motor vehicle. They entered, and again a purchase was made from the console operator. One of the trio, not necessarily the respondent, produced a baseball bat. The respondent himself again had a knife in his hand. It seems that the baseball bat holder, probably Tysluk, demanded the till be opened and that happened. Cash was removed and cigarettes were also taken. In all some $673 in cash was stolen and about $140 worth of cigarettes.

10    The third count involved yet another attack upon a service station, again at Lansvale. Once more Mr Tysluk was armed with a baseball bat. Again the modus operandi involved an attempt to purchase an item and again once that part of the transaction had been completed a demand was made that money be removed from the till, this time a small amount of cash was in fact handed over. The console operator, after a demand was made for cigarettes, gave them packets of cigarettes.

11    The fourth count involved a service station at Yagoona. Again Tysluk was armed with a baseball bat. Having entered the service station a demand was made on the unfortunate console operator that he was to give one of them all his money. When the operator heard that he turned and saw one of the trio holding a baseball bat and another a knife. After some difficulty the operator opened the till, and money was taken from the till and the trio absconded.

12    The fifth count again involved a service station, this time at Warwick Farm. Again when the trio arrived Tysluk was armed with a baseball bat. Following a threat being made by Tysluk to the female console operator accompanied by a demand for money the operator acceded to the demand, not surprisingly, by opening the cash register and handing money to the others other than Tysluk. They then departed.

13    In due course the three were apprehended. Tysluk and Bihary were also dealt with by O'Reilly DCJ on 30 July 1999. Like the present respondent, both Tysluk and Bihary pleaded guilty. Again they, like the present respondent, were only young men, being twenty years of age at the time of sentence. The present respondent was then twenty and he is now twenty-one having turned twenty-one last month.

14    Having taken into account the subjective features relating to both those accused and the objective features are those which I have already referred to, O'Reilly DCJ sentenced them each to a maximum term of six years divided as to what is now known as a non-parole period of three years and a parole period of the same duration.

15 In sentencing Tysluk and Bihary O'Reilly DCJ made reference to the guideline judgment delivered by this Court in R v Henry & Ors (1996) 46 NSWLR at 346. In sentencing the present respondent his Honour, as the Crown pointed out in submissions, did not specifically refer to Henry's case, as he did when he sentenced the two co-offenders. My observation as to that absence is that I would not take it that his Honour was unaware of, nor did he fail to bear in mind the guideline judgment in Henry when he sentenced the present respondent.

16    The fact that he was keenly aware of it on 30 July 1999 is an ample indication for me that he would have had it in mind when he was dealing with the present respondent.

17    Essentially, there were, as in distinction from the subjective features which existed in relation to Tysluk and Bihary, a number of potent subjective features in relation to this respondent.

18    The first matter and one in which a good deal of the Crown submissions were directed to here, was the fact that the respondent, prior to the commission of these offences, had suffered from the psychiatric condition of schizophrenia and, apparently, had been diagnosed as suffering from that condition from the age of thirteen.

19 The second factor which emerged was that the respondent had, when arraigned in the Supreme Court by Barr J, indicated that he was willing to give evidence in the matter for the Crown against his co-accused, thus bringing into the subjective matters the question of section 442B(2) of the Crimes Act.

20    Thirdly, the respondent had been released on bail on 1 December 1998 by the Supreme Court. Following his release on bail, as part of his conditions of bail, the applicant was required to seek treatment from a psychiatrist, Dr Roberts. He complied with that condition of bail and, in fact, saw Dr Roberts, as I would understand Dr Roberts' reports, on many occasions between the time he first saw that doctor and the time when the doctor prepared a second report (a report which was before O'Reilly DCJ) dated 14 October 1999.

21    During the period when he was under Dr Roberts’ care the respondent provided no less than thirty six drug free urine specimens.

22    While on bail, the respondent had obtained employment in a spare parts business in the southern suburbs and had not only held that employment but it had changed in character from casual to full-time employment. In other words, a matter going to rehabilitation.

23    The fourth factor, of course, and the matter dealt with in the guideline judgment, is the fact that all the participants in the criminal ventures are young. As I have said, the present respondent was born on 10 May 1979, so he turned twenty-one only last month.

24    The Crown's principal argument in the matter is that his Honour failed to properly take into account what had fallen from this Court in Henry. The Crown rightly submitted that the categorisation made by the Chief Justice of the type of case which would fall within the guidelines advanced in Henry's case involved some or all of the seven matters. Oddly enough, this present respondent would seem to fall within each of the seven features adverted to by the Chief Justice.

25 In Henry, however, the Chief Justice pointed out that following what had fallen from Hunt CJ at CL, in R v Roberts (1994) 73 A Crim R 306 at 308, that a non-custodial sentence for an offence such as the ones which the respondent stood charged with, could only be imposed in exceptional circumstances.

26    The question, therefore, which arises in this case is: Were there exceptional circumstances such as to enable his Honour properly to impose a sentence other than that of full-time custody.

27    I turn to the matters which were relied upon before his Honour and relied on before this Court as constituting those exceptional circumstances. As I have said, the respondent had suffered from a psychiatric condition, namely, schizophrenia since he was aged thirteen. His Honour in his findings specifically found, having read Dr Roberts' two reports which were tendered before him, that the respondent knew that it was wrong to take money. He knew what he was doing and he knew it was wrong. Plainly enough, Dr Roberts had been turning his attention to the question of the M’Naughten rules and as his Honour rightly recounts, Dr Roberts did not consider that the respondent fell within the ambit of the M’Naughten rules.

28 However, on my reading of Dr Roberts' reports, the condition of schizophrenia, and a reaction to a drug which had been incorrectly prescribed, namely, Zolaf, resulted in the respondent having a lack of capacity to resist doing acts which he later knew to be wrong. That to me is a matter of some importance, particularly when one looks at what had fallen from this Court in R v Wright (1997) 73 A Crim R 48, where again Hunt CJ at CL, dealt with the principles which emerged in cases involving mental disorder or abnormality. He there said:

"It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental abnormality because such an offender is not an appropriate medium for making an example to others."

29    Later he went on to observe that the considerations of general or personal deterrence are not rendered completely irrelevant and the significance of the defendant's mental capacity is weighed and evaluated in the light of the particular facts and circumstances of the individual case.

30    Finally, at page 51, Hunt J observed:

"But when the offender acts with knowledge of what he is doing and knowledge of the gravity of his actions, then the moderation need not be great."

31    This passage was relied on by the Crown. However, as Hunt CJ at CL observed at page 52, that the respondent Wright, had quite deliberately left home, leaving his pills behind him and had either deliberately or recklessly become intoxicated by drugs, therefore, bringing on the psychiatric state which the doctors had diagnosed. No such factor as that exists in this case.

32    I might say, in my view, standing alone, the underlying psychiatric condition would not of itself provide exceptional circumstances which should result or could result in a sentencing Judge not imposing a full-time custodial sentence as would follow from the application of the principle in Henry's case. However, that is not, as I have indicated already, the only matter.

33    The fact is that the respondent was prepared to give evidence against his two co-conspirators. Undoubtedly, and the Crown does not dispute this, that is a matter which should give rise to a discount.

34    There is the matter of rehabilitation. It is the fact that Dr Roberts advanced the opinion that during the ten months or so under which the respondent was in his care a substantial improvement in his condition had been noticed. He had remained drug-free during that time and had obtained full-time employment. In other words, the factor of rehabilitation loomed strongly in the matter. Again, I would be of the view that the rehabilitation factor standing alone would not be sufficient to avoid the imposition of a sentence of full-time custody.

35    Another matter which is not specifically referred to by his Honour is the fact that persons of tender years, suffering from a psychiatric condition, notoriously had difficulty in coping with prison life, a matter again going to mitigation.

36    It seems to me that when one takes all the mitigating factors which were quite different, I should add, from the subjective features raised on behalf of the two co-accused, into account, that, in fact, exceptional circumstances of the type referred to in Roberts' case by Hunt CJ at CL and adopted by the Chief Justice in Henry's case, do exist here.

37    That being so, I am of the view that, in fact, his Honour did not fall into error in this case in imposing the non full-time custodial sentence which he did. I should stress that exceptional circumstances mean exactly what the words connote: Namely, the circumstances need to be exceptional. Here they are and it may be that this is a rare case but that is as I would view the facts of the matter and the findings of his Honour.

38    Accordingly, I am of the view that the Crown appeal should be dismissed.

39    SPIGELMAN CJ: I agree. One of the principal objects served by a sentencing guideline judgment such as that in R v Henry is to ensure consistency in decisions by trial Judges. It is, of course, equally applicable to this Court that it maintains consistency in its own decisions, including the circumstances in which the guidelines in Henry fall to be applied.

40    In the present case, his Honour sentenced the two co-offenders for terms in custody, applying the guidelines in Henry. His Honour expressly addressed the question of whether or not he could, consistently with the sentences he had earlier imposed, impose a lesser sentence on the respondent. His Honour analysed the particular factors that led him to the conclusion that he could do so. These were all factors of mitigation which in Henry itself at paragraph 169 were identified as facts and matters which could justify a sentence below the range specified in Henry itself.

41    I agree with the reasons given by Newman J for coming to the conclusion that the facts and matters to which his Honour has referred, were such as meant that a non full-time custodial sentence was within the range of permissible discretion to be exercised by his Honour in the circumstances of this case.

42    I note in particular that his Honour appeared to give special emphasis to the offer of assistance. His Honour noted that the offer of assistance had, in fact, been reported in a local newspaper and resulted in threats to the respondent. In these circumstances, the respondent was entitled to a substantial discount because of the offer of assistance which had been given in such circumstances and which, one can infer, led to the co-offenders entering pleas of guilty.

43    This is a factor which is of significance in the exercise of his Honour's discretion. His Honour was entitled to give it significant weight, including sufficient weight to overcome the exceptional circumstances test for the determination of whether a sentence, other than a full-time custodial sentence for this offence, is appropriate.

44    However, the respondent should have no doubt that if he were to offend again in this or any equivalent manner, the overwhelming probability is that he will go to gaol.

45    I agree with the order that the appeal be dismissed.

46    ADAMS J: I also agree with the orders and with the reasons given both by the Chief Justice and Newman J.

47    SPIGELMAN CJ: The order is that the appeal is dismissed.

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