Regina v Vincent

[2003] NSWCCA 112

CITATION:	Regina v Vincent [2003] NSWCCA 112 revised - 7/05/2003
HEARING DATE(S):	28/04/03
JUDGMENT DATE:	28 April 2003
JUDGMENT OF:	Ipp JA at 1; Buddin J at 37; Smart AJ at 38
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Crown appeal against sentence - Whether sentence manifestly inadequate - No error of principle in sentencing process. ND
CASES CITED:	R v Henry (1999) 46 NSWLR 346 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Letteri (Unreported, CCA (NSW), 18 March 1992) R v Wright (1997) 93 A Crim R 48
PARTIES :	Regina v Shane David Vincent
FILE NUMBER(S):	CCA 60044/03
COUNSEL:	D C Frearson (Crown) P Hamill (Respondent)
SOLICITORS:	S E O'Connor (Crown) Everingham Solomons (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0250
LOWER COURT JUDICIAL OFFICER :	Payne DCJ

60044/03

IPP JA
BUDDIN J
SMART AJ

Monday 28 April 2003

REGINA v Shane David VINCENT

Judgment

1 IPP JA: This is a Crown appeal against sentence. The respondent was convicted on his own plea of guilty of an offence of armed robbery. Payne DCJ sentenced him to three years imprisonment with a non-parole period of one year. The appellant contends that the sentence imposed was manifestly inadequate.

2 The challenge to the head sentence is not pressed with any enthusiasm. The argument on the appeal was directed fundamentally to the non-parole period of one year.

3 The circumstances of the offence were as follows. At about noon on 20 May 2002 the complainant returned to her motor vehicle at Bridge Street, Tamworth after she had completed her banking at a nearby Credit Union. The respondent entered her vehicle and in front of her brandished a 20 cm kitchen knife. He demanded money from her and threatened to cut off both her arms. He grabbed a handbag from her. The bag contained a wallet with credit cards and $80 in cash. The complainant activated an alarm and jumped out of the vehicle. The respondent fled with the bag and ran towards his own vehicle. Some 20 minutes later the respondent’s vehicle was stopped and the knife was located on the passenger’s side floor.

4 The respondent participated in a police interview and made full admissions. On 22 July 2002 he was committed for sentence. He came before Payne DCJ in proceedings where he adhered to his plea. On 21 November 2002 her Honour adjourned the proceedings for the purpose of assessing the respondent’s capacity and prospects for rehabilitation. The respondent was granted bail on condition that he attend at the earliest opportunity and remain at the Endeavour Community, Morisset and comply with all reasonable directions. He was admitted to that Community on 6 December 2002 but discharged on 18 December 2002 for “complete non-compliance with the rules and guidelines”. Her Honour sentenced him on 6 February 2003.

5 Prima facie the offence committed by the respondent was characterised by the features identified in R v Henry (1999) 46 NSWLR 346. The respondent was a young offender with no or little criminal history. He used a knife capable of killing or inflicting serious injury. There was a limited degree of planning. There was no actual violence but a real threat thereof. The victim was in a vulnerable position. A small amount was taken and there was a plea of guilty, the significance of which was limited by the strength of the Crown case.

6 In a careful and detailed judgment Payne DCJ explained why she considered that the circumstances required a departure from the sentencing range laid down in Henry.

7 Her Honour noted that the prisoner committed the offence at the age of 22 years. He had no prior criminal record although after the offence in question had been committed he was found guilty and fined for an offence of possessing cannabis. Unlike the position in Henry (which involved a late plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383 at para 161) the respondent pleaded guilty at the earliest opportunity.

8 The respondent took the police to where he had put the bag to enable the bag and the contents to be returned to the complainant. Fifteen dollars of the $80 was recovered.

9 Importantly, her Honour considered that the respondent was genuinely contrite. Furthermore, he had what she described as very significant family support. His father had made every effort to assist him and he was supported in Court by his mother, father and brother. Both his father and his mother had been working for many years and the family plainly had come together to attempt to give the respondent as much support as it could.

10 The respondent was required to serve his imprisonment in protective custody which her Honour regarded as a significant matter.

11 Finally, and a further factor of importance, was the evidence of Dr Nielssen, who her Honour described in the course of argument as a “very experienced forensic psychiatrist”. Dr Nielssen said that there had been a “morbid” change in the respondent in the year the offence was committed. Dr Nielssen expressed the opinion that the main reason for this change, and indeed for the offence itself, was that the respondent was in the early phase of a serious mental illness. Dr Nielssen said that the respondent displayed a distinct abnormality of thought when interviewed that was consistent with the prodromal phase of a psychotic illness, probably schizophrenia.

12 He said that this phase of psychotic illness often features a decline in social performance, mood disturbance and irrational anger. He said that several studies showed a high incidence of uncharacteristic and often self-defeating offending during this phase. Her Honour explained that because of what Dr Nielssen had said, general deterrence had to be given less weight. She referred to R v Letteri (unreported, CCA (NSW) 18 March 1992) and R v Wright (1997) 93 A Crim R 48. Her Honour nevertheless noted that general deterrence “should certainly not be put completely to one side”.

13 Her Honour said that because of the respondent’s psychiatric condition he would be more vulnerable in custody.

14 Payne DCJ noted that despite what had happened during the adjournment, and by that she was referring to the respondent’s discharge from the Endeavour Community, the respondent still had relatively good prospects for rehabilitation.

15 Finally, her Honour expressed the view that the offence was high on the scale of impulsiveness and there was virtually no planning.

16 There are two principal grounds on which the appellant asserts that her Honour erred. Firstly, it is said that the non-parole period of one year is manifestly inadequate, and her Honour paid insufficient attention to this aspect of the sentencing exercise. Secondly, the appellant challenges a number of the grounds on which her Honour came to the conclusion that a departure from Henry was justified.

17 It is convenient to deal with the second principal ground first, as from this it will become apparent why her Honour did come to the conclusion that a non-parole period of only 12 months should be ordered.

18 Firstly, the appellant submitted that her Honour had erred in concluding that the respondent had relatively good prospects of rehabilitation. The appellant pointed to the respondent’s total lack of co-operation in the Endeavour Community Programme and his lack of enthusiasm in addressing his cannabis problem. Despite the respondent’s assertion that he was free of drugs there was evidence which cast serious doubt on this proposition. Additionally, the appellant submitted that there was no evidence of any act done by the respondent consistent with the rehabilitation process. It was said that he had done nothing that would justify a finding that there were good prospects of rehabilitation.

19 These submissions have to be seen in the context of Dr Nielssen’s report. Dr Nielssen expressed the view that the respondent’s mental needs were unlikely to be met in prison. He expressed the view that the respondent should be referred to an early psychosis service such as that run by St Vincent’s Hospital in Sydney for further assessment as there was evidence that early intervention could reduce the level of social disability caused by psychotic illness. Dr Nielssen’s evidence, which was not challenged, in my view provides a basis for her Honour’s conclusions.

20 It was said on behalf of the appellant that Dr Nielssen’s evidence could not be relied on in regard to the prospects of rehabilitation because his view had been expressed before the respondent had attended the Endeavour Community Programme where he had failed abysmally in meeting the requirements there.

21 However, Dr Nielssen’s opinion that early intervention could reduce the level of disability caused by psychotic illness had nothing to do with the need for the respondent to be referred to a programme such as that carried out by the Endeavour Community. According to Dr Nielssen, irrespective of that programme, early intervention was required as this was important in alleviating the gravity of the psychiatric condition.

22 Moreover, the respondent’s conduct at the Endeavour Community Programme is explicable by his psychiatric condition and this explanation was accepted by her Honour, as is manifest from her reasons.

23 There are other matters which have to be borne in mind in regard to rehabilitation, including the youth of the respondent, the fact that he has such strong support from his family (a family which has proved itself to be industrious, hard working and law abiding), and that the respondent has demonstrated genuine remorse.

24 Finally, regard must be had to the fact that the respondent spent a long time in evidence, not only giving evidence in chief but being cross-examined, and her Honour had ample opportunity of observing him and assessing his character and indeed assessing the prospects of rehabilitation.

25 In these circumstances I have described, I do not accept that her Honour made an error in her findings as to rehabilitation.

26 Next, the appellant submitted that her Honour’s finding that the offence was committed high on the scale of impulsiveness was not reasonably open on the totality of the evidence. On the appellant’s behalf it was pointed out that the respondent had a cannabis problem and had been denied money by his mother prior to the offence and the offence was committed to obtain money to buy cannabis. The appellant submitted that the respondent’s explanation for being inadvertently in possession of a large knife and having it up his sleeve some 20 minutes before committing the offence, was implausible and incredible.

27 I accept there is force in these criticisms, but her Honour gave an explanation for the finding that there was a limited degree of planning. This was that “even though the prisoner did watch the woman come from the Credit Union there was indeed very little planning in that he used his own motor vehicle and made no attempt to disguise himself”. Later, the learned Judge observed that the respondent had used his own car to get away, and committed the offence in a public place where he could be seen by other members of the public, which did in fact happen.

28 The matters raised by the appellant are essentially questions of fact and in my view it was open to her Honour to come to the view that there was indeed a limited degree of planning. Whether the offence falls within a high degree of impulsiveness is open to question but the difference between a “limited degree of planning” and a “high degree of impulsiveness” in my view is not sufficiently large to justify interference at the appellate level.

29 The appellant complained that her Honour gave too much weight to Dr Nielssen’s view that imprisonment could have potentially harmful effects upon the respondent. It is apparent that her Honour regarded Dr Nielssen as a reliable psychiatrist whose views should be treated with a respect. There is nothing to suggest that she erred in this respect.

30 The appellant submitted that her Honour had no regard to the protection of the community.

31 Again, the answer lies in Dr Nielssen’s report and his opinion that imprisonment could have potentially harmful effects for a person with the respondent’s treatment needs. He was of the opinion that these harmful effects could have long term ramifications for both the respondent and for the community. In other words, according to Dr Nielssen, the respondent could leave prison a far greater threat to the community than he would be were he to obtain the recommended psychiatric treatment at an early date.

32 This was an entirely justifiable basis for her Honour to have regard to the view that a lesser sentence than otherwise would be ordered should apply, and this also, I may add, is of relevance to the non-parole period, and it is to that that I now turn.

33 Essentially the argument was that her Honour erred in setting a non-parole period which did not reflect the objective gravity of the offence. It must be borne in mind, however, that her Honour did expressly take into account the gravity of the offence and made a number of references to its seriousness. She did consider that there were special circumstances of a compelling kind which justified the non-parole period of one year. It is not necessary for me to detail them again. I have discussed them in dealing with the other arguments raised on the appellant’s behalf.

34 If one were to interfere with a non-parole period in this particular case, taking into account the fact that it was a Crown appeal and all the other circumstances, the range by which the non-parole period could be increased would only be a few months. In my opinion the appellate court should not intervene where this small increase in the sentence would be the result.

35 In R v Baker [2000] NSWCCA 85 Spigelman CJ emphasised that successful Crown appeals should be rare, particularly with respect to that category of appeals in which no particular error can be identified in the sentencing process and where the Crown relies on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred. This is such a case.

36 In all the circumstances I would dismiss the appeal.

37 BUDDIN J: I agree.

38 SMART AJ: I also agree.

39 IPP JA: The order of the Court will be that the appeal is dismissed.

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Last Modified: 05/08/2003