Ross v Regina

[2006] NSWCCA 65

Reported Decision: 160 A Crim R 526

New South Wales

Court of Criminal Appeal

CITATION:	Ross v Regina [2006] NSWCCA 65
HEARING DATE(S):	3 March 2006
JUDGMENT DATE:	15 March 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Rothman J at 2; Smart AJ at 3
DECISION:	See para 54
CATCHWORDS:	Armed robbery with an offensive weapon - combination of longstanding damage to most areas of intellectual function because of frontal lobe brain damage early in life, the consequent lack of education, the dysfunctional family and drug addiction leading to drug induced psychosis at time of offence - judge incorrectly treating certain matters as aggravating features - plea of guilty to armed robbery - first time in custody - head sentence of 5 years manifestly excessive.
LEGISLATION CITED:	Children (Criminal Proceedings) Act Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Engert (1995) 84 A Crim R 67 R v Hathaway [2005] NSWCCA 368 R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 285 R v Shankley [2003] NSWCCA 253 R v Solomon [2005] NSWCCA 158 R v Street [2005] NSWCCA 139 Veen v The Queen [No 2] (1988) 164 CLR 465
PARTIES:	Michael Anthony Ross v Regina
FILE NUMBER(S):	CCA 2005/2008CCAP
COUNSEL:	(A) A Francis (C) D Woodburne
SOLICITORS:	(A) S O'Connor (C) S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/10344
LOWER COURT JUDICIAL OFFICER:	Andrew ADCJ

2005/2008CCAP

MCCLELLAN CJ at CL

ROTHMAN J

SMART AJ

Wednesday, 15 March 2006

Michael Anthony ROSS v REGINA

Judgment

1. McCLELLAN CJ at CL: I agree with Smart AJ.

2. ROTHMAN J: I agree with Smart AJ.

3. SMART AJ: Michael Anthony Ross seeks leave to appeal against a sentence comprising a non-parole period of 2 years 6 months to commence from 19 May 2004 and to expire on 18 Novembers 2006 with a balance of term of 2 years 6 months to expire on 18 May 2009 for the offence of armed robbery with an offensive weapon, namely a knife. The property taken comprised a wallet containing a small sum of money, various cards of importance and a mobile phone. The maximum penalty for the offence is 20 years imprisonment. The applicant has been in custody since his arrest on 19 May 2004. He pleaded guilty to robbery so that the only issue at the trial was whether he was armed with a knife.

4. The judge held that the jury must have been satisfied “that the accused, with others, had boarded a train in the late hours of 24 March 2004 at Wyong en route to Newcastle. They were observed on the train in possession of knives. At the station before Newcastle the victim alighted and the accused and others followed. The accused followed the victim from the station and demanded that he give him his wallet. He threatened the victim saying that he would be forced to use a knife if the wallet was not handed over. The jury … were satisfied that he [the accused] was armed with a knife at the time and he used it to carry out the robbery. The accused took the wallet and also a mobile phone. The accused and the others with him were captured on CCTV at the station and can be seen going through the wallet and taking the contents. The accused was also seen later at Newcastle Station aboard a train and was seen cutting a seat with a knife. That was evidence that he had been in possession of a knife on the night.” 24 March should read 27 March.

5. It was conceded by the Crown that the knife was not wielded at the victim or held against his person. The judge accepted that there was no evidence of pre-planning. The applicant told police he committed the robbery because he was hungry and had not eaten for days. After the robbery he and his friends went to McDonalds and used the proceeds to buy food. Obviously his Centrelink moneys had been spent on drugs.

6. The applicant was born on 6 March 1986 and so was 18 at the time of the offence on 27 March 2004. The applicant had an unhappy, dysfunctional upbringing. His father physically and verbally abused the applicant and his mother. His parents separated when he was aged five. The applicant did not get on with his stepfather and at the age of 14 went to live with an aunt for a short period. The applicant’s mother told the Probation and Parole Officer that her son began stealing from relatives to support his drug addiction and eventually began living on the streets. He was about fifteen years of age.

7. The applicant was diagnosed as suffering from Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD) from the age of six. He spent all his school life in “special needs” classes. From the age of about six until he was aged about 15 he had various medications in an attempt to treat ADHD. The applicant thought that most of the treatment was ineffective.

8. The applicant said that he was always getting into trouble at school and that he left school three months into Year 9. The applicant was in a child psychiatric unit (Arndell) for about six months when he was aged 11. The discharge summary from Arndell confirms that, that the admission was due to the applicant’s severe behavioural problems.

9. The applicant told both the Probation and Parole Officer and Dr Nielssen, a psychiatrist, that he commenced using marijuana at the age of nine. He told Dr Nielssen that he was a regular cannabis smoker during his teenage years. The applicant said that he had had his first “shot” of amphetamine at the age of thirteen and his first injection of heroin at the age of fifteen. He had tried most other forms of drug including MDMA (ecstasy). He further stated that he had really only been a heavy drug user in the months before the offence when he was a regular user of heroin and amphetamine. He stole to pay for his drug use.

10. The applicant has had some periods of employment, but at the time of his arrest he was in receipt of Centrelink benefits of about $320 per fortnight. He did not have sufficient food. This was probably due in large part to his spending his money on drugs.

11. The applicant gave evidence that he had attempted to commit suicide several times, with his first attempt being when he was aged about fifteen, sixteen. His attempts included slashing his wrists and attempting to hang himself.

12. Dr Nielssen noted the confirmatory reports of the applicant’s criminal history, his behavioural problems, Central Coast Health records of incidents of self-harm and temper tantrums, an EEG on 8 March 2002 showing an abnormality over the right posterior region and intelligence testing showing intellectual performance around the bottom of the normal range.

13. Upon examination it was soon apparent to Dr Neilssen from the applicant’s fatuous manner and poor judgment that the applicant had a mild development disability.

14. Dr Nielssen’s diagnosis was:

1. Drug abuse disorder
2. Drug induced psychosis now in remission
3. Possible early phase of psychotic illness
4. Mild mental retardation.

15. Dr Nielssen thought that the applicant’s condition was more consistent with someone who has suffered brain damage affecting the frontal lobes of the brain rather then being due to an active psychotic illness.

16. Dr Nielssen explained that damage to the frontal lobes early in life, for example, by hypoxia, is likely to produce a developmental disability affecting most areas of intellectual function because of the role of the frontal lobes in learning. Frontal lobe damage also affects later personality development. It seems probable on the available material that the applicant suffered hypoxia at birth.

17. Dr Nielssen wrote that the frontal lobes of the brain are important in the regulation of emotional reactions, planning, impulse control and social judgment and that damage to those lobes affects the areas mentioned.

18. From Dr Nielssen’s report and the family evidence, it emerges that the applicant probably suffered damage to the frontal lobes in early life, resulting in a mild development disability. While the limitations mentioned could not and do not amount to a defence and the applicant would have known that what he was doing was wrong, nevertheless his intellectual functions and judgment were adversely affected. His resources were depleted. These factors have to be taken into account when assessing the degree of criminality to be attributed to him. Of course, his drug dependency and his need for money must be taken into account. What is apparent from Dr Nielssen’s report is that the mild development disability from which the applicant suffers cannot be treated as of little consequence.

19. Dr Nielssen thinks that there is a strong possibility that the applicant will develop a psychotic illness and he recommended a series of steps by way of treatment. Intensive intervention early in the psychotic illness can improve the course of that illness, but those are matters for the future.

20. Ground 1 reads:

“The sentencing judge erred in dealing with the aggravating factors enunciated in s 21A(2) of the Crimes (Sentencing Procedure) Act.”

21. The applicant complained of this passage:

“Pursuant to s 21A of the Crimes Sentencing Procedure Act, aggravating factors include the fact that the offender has a record of previous convictions, that is the offender, who is now aged 18, almost 19, has convictions in the Children’s Court for offensive behaviour, being in custody of an offensive weapon in a public place, being armed with intent to commit an indictable offence, resisting a police officer, having custody of an offensive implement in a public place

For each of those offences he received a bond. Whilst his record may not be extensive, the disturbing feature is that the two offences of being in custody of offensive implements in the public show similarities to this offence.

Further aggravating features are in the emotional harm caused by the offence and I think it could be said that it was committed without regard for public safety.”

22. The applicant submitted that none of the aggravating factors found in s 21A(2) of the Crimes (Sentencing Procedure) Act were significant for sentencing purposes. During the sentence hearing the Crown Prosecutor told the judge:

“In relation to the s 21A factors, mercifully, I think, there don’t really appear to be any of the aggravating features set out in s 21A(2).”
and
“His record of prior convictions I concede as minor, but there don’t appear to be any other factors.”

23. Section 21A(2)(d) of the Act provides that one aggravating factor to be taken into account is the offender’s record of previous convictions. Section 21A(4) provides that the Court is not to have regard to such an aggravating factor if it would be contrary to any Act or rule of law to do so.

24. In R v Shankley [2003] NSWCCA 253, Howie J expressed the principle in Veen [No 2] (1988) 164 CLR 465 in these words:

“The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that ‘retribution, deterrence and protection of society may indicate’ a more severe sentence is warranted.”

25. In R v Hathaway [2005] NSWCCA 368 Spigelman CJ referred to the consistent recent line of authority on the relationship between s 21A(2)(d) and s 21A(4) of the Act. If the principle, as formulated by Howie J, is to be reviewed that would need to be determined by a Bench of five.

26. While a judge was not entitled to treat the previous convictions as aggravating features he was entitled to take them into account when considering retribution, deterrence and protection of the community. There were two offences of custody of an offensive implement in a public place and one of armed with intent to commit an indictable offence. It seems that these offences were committed about 23 November 2002 and dealt with in Wyong Children’s Court on 4 March 2003. Neither the judge nor this Court have details of the facts. The Children’s Court, on each charge, placed the offender on a s 33 bond for 12 months and directed that he accept the supervision of Juvenile Justice Community Services and attend all counselling and programmes as directed. That was a bond under s 33(1)(b) of the Children (Criminal Proceedings) Act. Section 33(1A) provides that a good behaviour bond under s 33(1)(b) must contain a condition to the effect that the person under bond will appear before the Court if called on to do so at any time during the term of the bond. The Children’s Court did not make an order dismissing the charges. At the time of the commission of the offences the applicant was 16 years 8 months. Too much emphasis should not be put on these offences.

27. The Crown did not dispute that the judge’s reference to the “emotional harm caused by the offence” as an aggravating feature was erroneous in the light of R v Youkhana [2004] NSWCCA 412, R v Street [2005] NSWCCA 139 and R v Solomon [2005] NSWCCA 158. The Crown pointed out that there was no evidence directed to the issue of the emotional harm suffered by the victim. No victim impact statement was tendered. It was therefore not open to the judge to make a finding that the offences had been aggravated on the basis that substantial emotional harm had been caused to the victim within s 21A(2)(g).

28. The Crown did not dispute that in the circumstances of the present case it was not a matter of aggravation that the offence was committed without regard for public safety.

29. While Ground 1 has been established, the misapplication of s 21A(2) of the Act does not necessarily lead to the imposition of a lesser sentence. However, in the present case the misapplication does appear to have elevated the criminality of the applicant.

30. In companion submissions counsel for the applicant contended that the applicant’s lengthy history of psychological impairment did not disclose a history of, nor tend towards a finding of dangerousness in accordance with Veen v The Queen [No 2] (1988) 164 CLR 465. I think that is correct. It was further submitted that in the light of the subjective case the principles of retribution and general deterrence had less of a role to play.

31. Dr Nielssen saw the applicant on 23 December 2004 at Silverwater Prison. The offence occurred on 27 March 2004. Dr Nielssen’s mental state examination and assessment was at the December date. The report bears date 15 January 2005 and significant change between 23 December 2004 and 15 January 2005 is unlikely as the applicant remained in gaol during this period with presumably no access to drugs.

32. The offender gave evidence that he was not consuming much by way of drugs in January 2004, but that a little later when he split up with his girlfriend he returned to abusing drugs. He said that when he started using drugs again they had a pretty bad effect and he “started stealing again and that.” He stated “about a month and a half before I got locked up I started get drug psychosis from the speed.” While there can be no precision, that is about the time the offence was committed. The applicant said that he was seeing things that were not there hearing voices “and just all stuff like that”. He said that he would be walking down the street and think that someone was chasing after him. He said that this corresponded with the period when he committed the offence. Dr Nielssen observed that active psychotic illness around the time of the offence was likely to have resulted in disorganised thinking, impaired judgment and an increased tendency to act on impulse.

33. It is apparent from Dr Nielssen’s report that the applicant suffered from a drug abuse disorder and that is supported by the other evidence. Dr Nielssen’s diagnosis accepted that the applicant had suffered from a drug induced psychosis which, as at 23 December 2004 and 15 January 2005, was in remission. It seems that the applicant was suffering from that psychosis about the time of the commission of the offence, but as at December 2004 after he had been in prison for over seven months and presumably without drugs (because he had no money to buy them), the drug induced psychosis was in remission. Free of the influence of drugs as at December 2004 he still suffered from a mild developmental disability which affects most areas of intellectual function because of the frontal lobe damage.

34. Of course, back in March 2004 he had that underlying disability when he returned to drug abuse after his personal relationship broke up. That underlying disability and its consequent effects of lack of education, coupled with a dysfunctional family history and his earlier troubles meant that his coping resources were limited.

35. In R v Israil [2002] NSWCCA 255 Spigelman CJ pointed out that an offender’s inability to make reasonable judgments or to control his faculties and emotions will impact on the level of culpability of the offender even where the illness does not amount to an excuse at law.

36. Where an offender suffers from the limitations earlier described, then retribution and deterrence have a lesser role.

37. The applicant said in his evidence that he needed to take steps to ensure that he does not lapse into drug taking. While the immediate cause of the applicant’s criminality lay in abusing drugs and the need of money to finance his habit, it cannot be overlooked that he had limited resources to enable him to resist lapsing back into drug abuse.

38. Appeal Ground 2 reads:

“The sentence is manifestly excessive in the circumstances of this case.”

39. Most of what I have earlier written is also relevant to this ground. It is, however, necessary to complete the narration of the facts.

40. The judge accepted that there were some substantial mitigating factors. The applicant handed himself in after his picture was published in the local newspaper and his mother was able to make contact with him. From an early stage the applicant acknowledged that he committed the robbery and displayed some willingness to assist the authorities. The judge said, “To the extent that there was a plea of guilty to robbery simpliciter I would reduce the sentence by 10%”. The judge was satisfied that the applicant was contrite.

41. The judge thought that there were prospects of rehabilitation and that the applicant was making a genuine attempt to be drug free. The judge said that there were some compelling subjective circumstances which must be balanced with the objective seriousness of the offence which he described as “a nasty attack upon an innocent person at a railway station”, adding “Members of the public must surely be allowed free to travel without fear of such vicious assault.” These observations are correct.

42. The judge was satisfied that special circumstances existed and of the need for a longer period of supervision.

43. Due to the applicant’s plea of guilty the judge reduced the head sentence to a term of 5 years imprisonment.

44. In R v Henry (1999) 46 NSWLR 346 the Court promulgated a guideline for the following type of case at 380:

(i) Young offender with little or no criminal history;
(ii) Weapon like a knife capable of killing or inflicting serious injury;
(iii) Limited degree of planning;
(iv) Limited, if any, actual violence but a real threat thereof;
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver;
(vi) Small amount taken;
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

45. The Chief Justice thought that sentences for an offence of this character should generally fall between 4 and 5 years for the full term. The offence in the present case is generally of the character which the guideline has in mind, although there are some variations.

46. The Chief Justice remarked that aggravating and mitigating factors will justify a sentence below or above the range and pointed to the variations which may exist in some of the factors.

47. At 381 the Chief Justice accepted the view of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 71 that the existence of a causal relationship between a mental disorder and the commission of an offence does not automatically produce the result that the offender will receive a lesser sentence. The word “automatically” is significant. Spigelman CJ added, “Nor, in my opinion, should the existence of a causal relationship between drug addiction and the commission of an offence.” He pointed out that addiction is not of itself a mitigating circumstance.

48. The Chief Justice and Newman J agreed with the judgment of Wood CJ at CL which dealt in some detail with drug addiction and also mental disorder. Wood CJ at CL referred to the numerous authorities holding that drug addiction is not of itself a mitigating feature. Applying the approach of Gleeson CJ in R v Engert at 71), Wood CJ at CL held that “the existence of a causal relationship between a drug habit and the commission of an offence should not, as a matter of general principle, automatically lead to a lesser offence.” (? sentence)

49. At 397 Wood CJ at CL accepted that in an individual case drug dependency of the offender may be a relevant fact reflecting on the objective circumstances of the offence and/or the subjective circumstances of the offender and particularly on the relativity of the minimum and additional terms. The judgment of Wood CJ at CL in following the approach of Gleeson CJ in Engert eschews the suggestion that automatic consequences follow from the presence or absence of particular factual circumstances such as drug addiction and focuses on the particular circumstances of the individual offence, what led to its commission and the overall subjective circumstances of the particular individual. Through all this the gravity of the offence and the purposes of the sentencing exercise must be kept steadily in mind. Wood CJ at CL at 397-398 spelt out some principles which should apply.

50. Wood CJ at CL at 394, in a well known passage, said::

“… the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities (sic) or emotional restraints and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act or its moral culpability, which although falling short 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.”

51. I return to the facts of the present case. What is important is the combination of the longstanding damage to most areas of intellectual function because of the frontal lobe damage early in life, the lack of education, the dysfunctional family, and the drug addiction leading to drug induced psychosis.

52. The offence itself is serious and deserving of a full time custodial sentence of some length. In considering the applicant’s culpability it must be recalled that after he turned himself in to the police there was a plea of guilty to robbery. The judge incorrectly classified certain matters as aggravating features. The offender’s limitations must also be taken into account. There was a strong subjective case. A head sentence of 5 years was not warranted. That was manifestly excessive. The correct head sentence was one of four years.

53. As earlier mentioned, there are special circumstances. This is a young offender and it is his first custodial sentence. From his arrest on 19 May 2004 until sentence he was in maximum security. There are prospects of rehabilitation. He needs to complete a drug rehabilitation programme for drug abusers who have psychiatric disorders. He also needs to be assessed by a service specialising in treatment of the early phase of psychotic illness whether he should take and persist with a low dose of antipsychotic medication in an effort to improve the course of the psychotic illness. Dr Nielssen felt that the applicant carries a high risk of developing schizophrenia because of the history of brain damage and a family history of the illness.

54. The correct non-parole period is 2 years. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal against sentence allowed, sentence quashed.

3. In lieu of the sentence imposed the applicant is sentenced to imprisonment as follows:

(a) Set a non-parole period of 2 years commencing on 19 May 2004 and expiring on 18 May 2006, with applicant becoming eligible for release to parole on 18 May 2006; and

(b) A balance of term of 2 years commencing on 19 May 2006 and expiring on 18 May 2008.

4. Direct that as a condition of parole the applicant accept the supervision of the Probation and Parole Service and comply with all reasonable directions of that Service. This includes drug rehabilitation and psychiatric treatment and medication.

**********