Regina v Rodrigo Arriaza
[2004] NSWCCA 4
•5 February 2004
CITATION: Regina v Rodrigo Arriaza [2004] NSWCCA 4 HEARING DATE(S): 03/02/2004 JUDGMENT DATE:
5 February 2004JUDGMENT OF: James J at 1; Buddin J at 2 DECISION: Leave to appeal granted. Allow the appeal (in part). Quash the sentence imposed in respect of the offence of armed robbery committed on 2 May 2002 (being count 3 in the indictment in District Court file 03/11/0010) and in lieu thereof sentence the applicant to a term of 5 years' imprisonment consisting of a non-parole period of 2 years to commence on 6 April 2003 and to expire on 5 April 2005 with the balance of the term of the sentence to expire on 5 April 2008. Dismiss the appeals against the other sentences imposed. CATCHWORDS: Pleas of guilty to various counts of armed robbery - offender suffering from a mental disorder. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Alexander (2001) 118 A Crim R 350
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Israil [2002] NSWCCA 255
R v Pavlov (2001) NSWCCA 13
R v Scognamiglio (1991) 56 A Crim R 81
R v Thomson & Houlton (2000) 49 NSWLR 383PARTIES :
Regina
Rodrigo ArriazaFILE NUMBER(S): CCA 60437/03 COUNSEL: B Knox SC (Crown)
Ms R Burgess (Applicant)SOLICITORS: B Kavanagh (Crown)
S'OConnor (Applicant)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0011 LOWER COURT
JUDICIAL OFFICER :Black DCJ
60437/03
THURSDAY 5 FEBRUARY 2004JAMES J
BUDDIN J
1 JAMES J: I agree with the judgment of Buddin J. The orders of the Court will be as proposed by his Honour.
2 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court following his pleas of guilty to three counts of armed robbery and one count of armed assault with intent to rob. Each offence attracts a maximum penalty of 20 years’ imprisonment.
3 In respect of an offence of armed robbery committed on 6 March 2002 the applicant was sentenced to 3 years’ imprisonment with a non-parole period of 18 months.
4 In respect of an offence of armed robbery committed on 18 March 2002 the applicant was sentenced to 4 years’ imprisonment with a non-parole period of 2 years.
5 In respect of a further offence committed on the same day, of assault with intent to rob whilst being armed, the applicant was sentenced to 4 years’ imprisonment with a non-parole period of 2 years. All three sentences were ordered to commence on 6 April 2002 and were thus to be served concurrently.
6 In respect of an offence of armed robbery committed on 2 May 2002 the applicant was sentenced to a term of 6 years’ imprisonment with a non-parole period of 2½ years with each term to commence on 10 April 2003 (which was the date upon which sentence was passed). This offence was committed whilst the applicant was on bail in respect of some at least of the offences to which I have earlier made reference. All four offences were committed whilst the applicant was on a bond imposed in the Local Court, albeit in relation to an offence committed in 1990. The overall effective sentence was thus one of 7 years’ imprisonment with a non-parole period of 3½ years. Three offences on a Form 1 document were also taken into account by the sentencing judge.
7 The facts giving rise to the various offences can be shortly stated. On each occasion the applicant produced a knife with which he threatened his victim in order to obtain money. The victim of the first offence was an employee of a newsagency who was informed that she would be stabbed if she did not co-operate. She was also told “if you mention this you are dead”. The applicant escaped with just over $1400 in cash. He was identified by the victim from photographs and his fingerprints were located on a bag which linked him to the robbery.
8 The first in time of the offences which was committed on 18 March 2002 also occurred in a newsagency. This time a knife was held to the left side of the victim’s neck. The applicant escaped with $850 in cash. The victim of this offence also identified the applicant from photographs.
9 Later that same day the applicant entered a hotel and approached a woman who was employed as a gaming attendant within those premises. She was in a “cage” which had a plastic seal around it in order to protect the money held inside. The applicant produced a knife which he placed in a position just inside the cage and said “give me all your fifties”. The victim refused his demands which he repeated on about eight occasions. The victim said that she was “beginning to get really scared”, and so when a patron approached her booth, she asked him to contact security for her. The applicant then walked away.
10 The applicant then entered a nearby hotel and asked an employee for a beer. That victim saw that the applicant was holding a knife. The applicant was arrested shortly thereafter and was charged with carrying a cutting instrument and with assaulting the hotel employee. Those offences, together with an unrelated offence of larceny of a sum of $300 committed in May 2002, constituted the matters that were placed on the Form 1 document.
11 The last offence which was committed on 2 May 2002, took place in a pharmacy. On this occasion the applicant escaped with $600 in cash. He threatened a young female employee with a knife which he kept pointed at her whilst he was leaning against her and squashing her into the counter of the pharmacy. The applicant was again identified from photographs. Police had resorted to the use of photographs in relation to each offence as the applicant had declined to be interviewed in relation to the various offences and had declined to participate in identification parades.
12 There was an extensive body of material placed before the sentencing judge which stood to the applicant’s credit. His Honour specifically accepted counsel’s submission that the case was, in that respect, an unusual one. The evidence revealed that the applicant, who was aged 36 at the time of the offences, had been born in Chile. His parents had separated when he was young. He arrived with his family in Australia as a 10 year old shortly after the coup in his country of origin. At first he found it difficult to assimilate into this community because of language difficulties which he encountered. He witnessed violence at the hands of each of his stepfathers and as a result left home at the age of 17. There was evidence that he had worked productively in a number of jobs, including as a journalist, both here and in Chile, where he returned to live for various periods of time.
13 In 1997 he was admitted to Prince of Wales Hospital where he remained for a number of weeks following a suicide attempt. He was diagnosed at the time as suffering from “major depression complicated by dependent and mild borderline personality traits”. He also had anxiety symptoms and suffered from severe panic attacks. It would appear that he had then been suffering from a depressive illness for about 15 years. There was also a history of heroin and alcohol abuse. His treatment following his hospitalisation consisted of psychotherapy and medication with which he remained compliant for an extended period of time. His depressive condition gradually improved, and for a couple of years he was apparently drug free.
14 In December 2000 however his younger brother, to whom he was very close, committed suicide. Not surprisingly his death had a devastating effect upon the applicant and indeed upon the remainder of the family. Following his brother’s death, the applicant relapsed into using drugs again on a daily basis. Although he recommenced treatment for his drug problem, he still had difficulty coping with his brother’s death. Thereafter he was only capable of working in clerical positions.
15 In November 2001 the applicant ceased contact with his psychiatrist. At the time of his initial arrest, the applicant had a significant heroin habit and was no longer taking his medication. He was reported to be “depressed, desperate and suicidal” at the time of committing these offences. He continued to abuse drugs upon his release from custody on bail and committed the further offences, to which I have referred, whilst so affected. Following his rearrest in May 2002 he underwent a psychiatric assessment. He was diagnosed as suffering from recurrent depressive episodes, opiate dependence and alcohol abuse. He was prescribed anti-depressant and mood stabilising medications. He was placed on a medicated opiate withdrawal regime and stopped taking illicit drugs. At the time of sentence he had made very positive steps towards addressing his drug dependency.
16 There were a significant number of matters which the applicant was entitled to call in aid upon sentence. First, he had entered pleas of guilty to all offences at an early stage of proceedings. Secondly, the applicant who gave evidence at the sentence hearing, was found by the sentencing judge to be genuinely remorseful for having committed these offences. Thirdly, as a practical demonstration of his remorse the applicant had authorised the release of moneys to each of his victims on a pro rata basis in partial compensation of the monies he had taken from them. Fourthly, he was a person who had worked productively throughout the course of his life, and about whose general character a number of persons had spoken in a very enthusiastic fashion. Quite properly the sentencing judge effectively put to one side, as having no real bearing on these proceedings, his minor criminal record. Fifthly, the evidence demonstrated that the applicant’s mental condition at the time of these offences was significantly impaired. Sixthly, the sentencing judge found that the applicant had “excellent prospects of rehabilitation”. His Honour also made a finding that “special circumstances” existed.
17 It is convenient to deal first with a submission that the sentencing judge fell into error in relation to the manner in which he dealt with the Form 1 offences. It was contended that his Honour “appears to have approached the matter globally, rather than assigning those matters to the principal offence, as required by s 33 of the Crimes (Sentencing Procedure) Act 1999, and it appears that he may have increased each of the sentences he might otherwise have imposed”.
18 Whilst it is true that it is not entirely clear from the Remarks on Sentence as to how the sentencing judge approached this issue, it is nevertheless reasonable to infer from an examination of the transcript of proceedings and from the fact that his Honour signed the certificate at the foot of the Form 1 to indicate that he had taken them into account in respect of the offence of “assault with intent to robbery armed”, that no procedural irregularity has occurred. Accordingly, I do not accept the applicant’s submission that the Form 1 offences were taken into account in some “global” fashion. Furthermore there is, in my view, no basis for concluding that the Form 1 offences were taken into account in a fashion which inappropriately inflated each of the individual sentences that were imposed. I would reject this submission.
19 It was also submitted that the sentencing judge “did not consider the extent to which the applicant’s mental condition at the time of the offences diminished the weight to be given to general deterrence. He appears to have taken the applicant’s mental condition into account only in the context of his rehabilitation and special circumstances”.
20 The principles to be applied in respect of an offender who is suffering from a mental disorder at the time of the commission of an offence are well settled. See for example R v Scognamiglio (1991) 56 A Crim R 81; R v Engert (1995) 84 A Crim R 67 and R v Fahda [1999] NSWCCA 267. See also Crimes (Sentencing Procedure) Act 1999 s 21A(3)(j). The sentencing judge said that he accepted what was contained in the psychiatric reports. His Honour also made specific reference in terms to the recent decision of this Court in R v Israil [2002] NSWCCA 255 in which the relevant principles were once again enunciated and indeed applied. In those circumstances, I would not be prepared to draw the inference that his Honour fell into error in failing to advert to the significance to these proceedings of the applicant’s mental condition and in particular that his Honour in some way overlooked the need to consider the weight to be attributed to general deterrence in the present case. Nor for the same reasons, would I be prepared to infer that the sentencing judge was not alive to the need to assess the relevance of the applicant’s mental condition in determining his overall culpability. Nor, upon a fair reading of the sentencing judge’s overall remarks, can the submission that his Honour attributed the commission of these offences solely to his drug dependency and personal misfortune be accepted.
21 The principal submission advanced on the applicant’s behalf was that the sentences imposed, both individually and in their overall effect, were manifestly excessive. It was contended that the sentences failed to give appropriate weight to the subjective features of the case, and in particular to the early pleas of guilty and associated remorse and to the applicant’s mental condition.
22 The sentencing judge said that “any one of these offences on their own would come within the starting lines set out in Henry (namely a head sentence of 4 to 5 years)”. Having made those remarks, his Honour as I have previously observed, nevertheless ordered that the sentences in respect of each of the first three offences in time were to run concurrently with one another even though they were entirely separate offences. His Honour’s decision to do so in itself extended a very significant measure of leniency to the applicant. That decision was undoubtedly prompted by the sentencing judge’s desire to moderate the sentences otherwise to be imposed to ensure that the applicant’s favourable subjective features were appropriately reflected in the overall result. That being so I would not uphold the challenge that has been made in respect of those sentences.
23 Particular complaint was however made about the severity of the sentence imposed in respect of the offence committed last in point of time which was, as I have noted, one of six years’ imprisonment. It was conceded that it was a matter of aggravation that this offence had been committed whilst the applicant was on bail. It was also acknowledged that the sentencing judge was required to give effect to the principles enunciated in Pearce v The Queen (1998) 194 CLR 610 so that to impose a sentence which was partially cumulative upon the earlier sentences was appropriate. That said, it was submitted that the offence was an unremarkable example of an offence of its type. Although the offence was innately serious and the victim was in a vulnerable position, it did not involve actual threats of a kind that characterised for example at least one of the earlier offences.
24 Although the sentencing judge made specific reference to the fact that the pleas were entered at an early stage, his Honour did not, quantify the discount which he allowed on account of the utilitarian benefit of the pleas as this Court in R v Thomson & Houlton (2000) 49 NSWLR 383 encouraged trial judges to do. It was submitted that the plea in relation to this offence had particular significance because the identification evidence upon which the Crown case was entirely based was somewhat suspect in that one of the two eyewitnesses had selected someone other than the applicant as the offender. For the sentencing judge to have arrived at a head sentence of six years for this offence was, it is submitted, to demonstrate error because to have done so made it apparent that insufficient weight had been afforded to the applicant on account of the favourable subjective matters to which I earlier made reference and in particular to his early pleas of guilty and remorse and his mental condition, which together with his heroin dependency, was a precipitating cause of this offence. For a discussion of circumstances where an offender suffers from both conditions see R v Alexander (2001) 118 A Crim R 350; R v Pavlov (2001) NSWCCA 13.
25 In my view, the challenge to this sentence has been made good. It accordingly becomes necessary to proceed to resentence the applicant in respect of this sentence. For that purpose, the court has received additional material which demonstrates that the applicant has continued to make very significant progress towards his rehabilitation whilst he has been in custody.
26 I propose the following orders:
1 Leave to appeal granted.
2 Allow the appeal (in part).
3 Quash the sentence imposed in respect of the offence of armed robbery committed on 2 May 2002 (being count 3 in the indictment in District Court file 03/11/0010) and in lieu thereof sentence the applicant to a term of 5 years’ imprisonment consisting of a non-parole period of 2 years to commence on 6 April 2003 and to expire on 5 April 2005 with the balance of the term of the sentence to expire on 5 April 2008.
4 Dismiss the appeals against the other sentences imposed.
Last Modified: 02/12/2004
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