Sullivan v The Queen

[2016] NSWCCA 172

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Sullivan v R [2016] NSWCCA 172
Hearing dates:	4 July 2016
Decision date:	17 August 2016
Before:	Bathurst CJ at [1]; Basten JA at [2]; Simpson JA at [28]
Decision:	(1)   Grant the applicant leave to appeal.  (2)   Dismiss the appeal.
Catchwords:	CRIME – sentence appeal – aggregate sentence for two counts of robbery with offensive weapon – whether applicant’s mental state relevant in determining objective gravity of offending – whether undue weight on specific deterrence given applicant’s mental illness – whether erroneous application of guideline judgment in R v Henry
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited:	R v Harris [2011] NSWCCA 105 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Regina v Kelly [2010] NSWCCA 259 Turner v R [2011] NSWCCA 189
Category:	Principal judgment
Parties:	Aaron John Sullivan (Applicant) Regina (Respondent)
Representation:	Counsel: Mr W Hunt / Ms C O’Neill (Applicant) Mr E Balodis (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/161924
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 June 2015 Before: Syme DCJ File Number(s): 2014/161924

Judgment

1. BATHURST CJ: I agree with Basten JA.

2. BASTEN JA: The applicant, Aaron John Sullivan, sought leave to appeal from an aggregate sentence imposed by Syme DCJ in the District Court at Newcastle on 11 June 2015. The sentence of imprisonment for a non-parole period of 4 years and a balance of term of 2 years (giving a total sentence of 6 years) was imposed with respect to two offences of robbery whilst armed with an offensive weapon, both committed in April 2014. The applicant had been in custody since the date of his arrest, 29 May 2014, and the sentence was fixed to commence on that date.

The offending

3. The first offence occurred on 2 April 2014 at a jewellery shop in Muswellbrook. The applicant entered the store, spoke briefly to the shop assistant and then produced a small hammer and cracked and then smashed the display counter containing a large quantity of jewellery. The shop assistant ran out the back of the shop and called police. The applicant grabbed jewellery with a retail value of some $44,000 and a wholesale value of $11,500. He ran from the shop and made his escape.

4. On 22 April 2014 the applicant entered another jewellery shop, this time in Singleton. The judge described his attitude on that occasion as “more aggressive, more violent.” He was then carrying a dumbbell which he used to smash the glass of a display cabinet near the entry to the store. A retail assistant approached him, at which he turned to face her, raised the dumbbell above his head and said “Fuck off”. He then hit a second display cabinet, smashing the glass and cutting himself on the broken glass. He removed jewellery from both smashed cabinets, having a total retail value of some $44,000 and a wholesale value of $26,000.

5. None of the jewellery was recovered. According to the offender, it was used to repay his drug suppliers.

Circumstances of the offender

6. The applicant grew up with six siblings in Scone in the Hunter Valley. He told a psychologist, Ms Lia McInnis, as recorded in her report for the sentencing hearing, that family life was “busy and chaotic”, and his parents argued constantly, although there was no violence. His father was a heavy user of marijuana and the applicant commenced smoking marijuana at age nine. The applicant also reported that in 2008 he was suffering from auditory hallucinations and severe paranoia. He said that he saw a psychiatrist who diagnosed him as suffering from paranoid schizophrenia. He was prescribed an anti-depressant and a low level anti-psychotic drug. (There was no evidence from the psychiatrist, although he was apparently under psychiatric care whilst in hospital since May 2014.)

7. The applicant gave evidence that he was “a lot better” whilst in hospital because he was on his medications. He agreed that he was non-compliant when he had been in the community and had used illegal drugs including ice “to hide” his mental illness. He said that “the drugs make me feel a lot better, made me more outgoing and upfront sort of thing and they hid it in a way that I could control my voices and stuff like that.” The psychologist somewhat confusingly stated: [1]

“Mr Sullivan reported that he has experienced auditory hallucinations since the onset of his ice use, leading to his diagnosis of paranoid schizophrenia.”

1.    Report, 24 April 2015, par 50.

Reasons for judgment

8. After setting out the circumstances of the offending, the trial judge sought to characterise the circumstances by reference to the guideline judgment of this Court in R v Henry. [2] Spigelman CJ said that, for an offence having the common features specified at [162], the full term of the sentence “should generally fall between four and five years”. [3]

   2. (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [162]-[165].

   3. Henry at [165].

9. As the sentencing judge recognised, the applicant did not fall squarely within the characteristics of an offender to whom the guideline applied. First, it could not be said he was a young offender with no or little criminal history. He was over 30 years of age when the offences were committed and had a significant criminal history, although “nothing as serious as these matters and nothing involving the sort of violence that these offences had [involved].” [4]

   4.    Judgment on sentence, p 2.

10. Secondly, although he had carried a hammer on one occasion and a dumbbell on the other, these weapons were primarily chosen to provide access to the jewellery, by smashing the glass cabinets. However, in the second offence, the dumbbell was raised in a threatening manner against the sales assistant who sought to intervene. Thirdly, the value of the goods stolen could not be described as a “small amount”; the judge described it as “a very large amount”, none of which had been recovered.

11. Fourthly, the judge made reference to the fact that Henry involved a discount for a late plea. She stated: [5]

“In Henry’s case there was a late plea of guilty which afforded that offender I think a 15 percent discount. In this case there is a plea of guilty at the Local Court, which does entitle this offender to a 25 percent discount because of that early plea, because of the utilitarian value of the plea.”

5.    Judgment on sentence, p 3.

12. The judge then noted that Henry required a fulltime custodial sentence unless there were exceptional circumstances. The judge continued: [6]

“Notwithstanding a degree of mental health issues that are attendant in this case, there are no exceptional circumstances that would take this case out of the ordinary guideline decision, in any event. …

Drug use is an issue, mental health is an issue. I have read the report from the psychologist. It does not appear to be in dispute and is confirmed by the custodial records that Mr Sullivan has been suffering from a mental illness which has been labelled as ‘paranoid schizophrenia’ sometime in the past. He has received assistance for that but usually while he is in custody. He has not been compliant with his mental health medication for any length of time when he is out of custody. He has resorted to using illicit drugs instead. There is no doubt, at least in my mind, that his use of illicit drugs has exacerbated rather than assisted his mental health presentation.”

6.    Judgment on sentence, p 3.

13. The judge was satisfied that he would need “considerable and strict supervision on his release from custody.” [7] A finding of special circumstances was made for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). She continued:

“I have to make a finding that unless he rehabilitates himself from drug use, he has very poor prospects of rehabilitation. If he rehabilitates himself from drug use and he complies with his mental health regime, he has better prospects of rehabilitation. I cannot make a finding that his prospects of rehabilitation at this stage are good, however.”

7.    Judgment on sentence, p 5.

14. The judge further stated: [8]

“Where mental incapacity or mental health issues are present, considerations of general deterrence are given less weight and I acknowledge that. But, equally, considerations of the protection of the community and specific deterrence are stronger considerations and they are matters that I would take into account when setting both the non-parole period and the total term.”

Grounds of appeal

8.    Judgment on sentence, p 6.

(a)   misapprehension in relation to discount for guilty plea

15. Ground 1 challenged the trial judge’s statement, somewhat tentatively expressed, that the discount for a late plea in Henry was 15%. The applicant submitted that this was an error, because a late plea warranted a discount of only 10%. The effect of this error, it was submitted, was to assume an unduly high starting point for the available range of sentences.

16. Although it is now commonly assumed that Henry did involve such an arithmetical calculation, Henry itself did not adopt any figure. That assumption has been inferred from the later guideline judgment in R v Thomson; R v Houlton, [9] where Spigelman CJ identified the appropriate range for a discount for a plea as being “from 10-25 per cent.”[10] He identified a “discount towards the bottom of the range” as appropriate for “late pleas” an example of which was said to be a plea on the date fixed for trial. [11]

    9. (2000) 49 NSWLR 383; [2000] NSWCCA 309.

    10. Thomson at [152].

    11. Thomson at [155].

17. The lengthy discussion in Thomson tends to cast doubt on the proposition that the Chief Justice had any particular figure in mind when referring to a discount for a late plea in Henry. However, he stated in Thomson:[12]

“The Court was asked to clarify its earlier guideline judgments in the light of any guideline it might propose in this respect. The standard case identified in each of R v Jurisic and R v Henry included a plea of guilty. In each of R v Jurisic… and R v Henry…, the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons.”

12. Thomson at [161].

18. In order to demonstrate the effect of the alleged error, the applicant referred to the judgment of this Court in Regina v Kelly,[13] where the Court stated that the range in Henry “assumed a 10% discount for a late plea”, but then failed to make the appropriate adjustment in calculating a 25% discount. (This error was identified by Simpson J in R v Harris. [14] )

    13. [2010] NSWCCA 259 at [52].

    14. [2011] NSWCCA 105 at [93]-[94].

19. The applicant’s contention in this regard was that, by over-estimating the discount adopted in the Henry guideline, the sentencing judge effectively identified a starting point which was higher than it should have been. Thus, applying a 10% reduction to achieve the Henry range of 4 to 5 years imprisonment, required a starting point between some 53 months–66 months. Applying a 15% discount, the starting point would have been in the range of 56 months–70 months. A difference in range of 3–4 months was not material; the exercise relied on by the applicant assumed a degree of arithmetical precision which was both inconsistent with the approach adopted by the sentencing judge and the approach adopted by the Chief Justice in Henry. The tentative expression of the discount by the sentencing judge demonstrated that she was not concerned to quantify with any degree of precision the discount taken into account in Henry. Nor did the lawyer for the applicant raise any issue at the end of the sentencing, when the opportunity was proffered.

20. Ground 1 raised no material error on the part of the sentencing judge.

(b)   failing to take account of mental state

21. The second ground alleged a failure on the part of the trial judge to take into account the applicant’s mental state in considering the objective seriousness of the offence. That resulted, so the submission proceeded, in an inflation of the objective gravity of the offending. The applicant relied on what was said by Simpson J in Turner v R, [15] to the effect that it was an error to disregard the applicant’s mental state in assessing his objective gravity.

    15. [2011] NSWCCA 189 at [52]-[54].

22. The principle may be accepted; the failure to apply it in the present case is problematic. Thus, the judge rejected the proposition that there was any direct causal connection between the commission of the offences and either his drug use or his mental health, although she accepted that the drug use and mental health issues were connected, apparently referring to the likelihood that the schizophrenia was in some part a product of his use of cannabis or ice over a lengthy period. The judge was also conscious that his mental state was in part a function of his failure to take prescribed medication. None of that was disregarded.

23. The applicant’s explanation for the carrying out of the offences was that he needed the gold jewellery to pay his drug suppliers. That may have provided an explanation, but not a justification for the offending, nor a mitigating factor. That there may have been a complex inter-relationship between drug use and mental illness was also accepted by the sentencing judge, a matter which was separately addressed under ground 3. The argument under ground 2 relied, as it appeared, on the fact that the applicant had, from a very young age, become addicted to illicit drugs. The addiction to illicit drugs was, because of his youth, not a factor for which he could bear full moral responsibility; accordingly, to the extent that the use of illicit drugs was a reason for the offending, some reduction in sentence was warranted.

24. While it is clear that the applicant asserted that he had used cannabis from a young age, there was no evidence of addiction from a young age. Furthermore, the applicant appears to have had periods of abstinence, particularly when in custody. The circumstances of his drug use did not warrant any different consideration from that given by the sentencing judge. There was no evidence that his mental state was affected at the time of the offending. This ground must fail.

(c)   specific deterrence and protection of the community

25. In the passage set out above at [14] it may be seen that the sentencing judge had regard to his paranoid schizophrenia, both to give less weight than otherwise to general deterrence, but also to provide some greater emphasis with respect to protection of the community and specific deterrence. The submission was that the latter step should not have been taken in the absence of evidence linking the offender’s mental illness to the risk of future offending. There was, it was submitted, no evidence before the Court sufficient to satisfy the burden of proof in a criminal matter.

26. This submission was inconsistent with the prior submission, which relied upon the inter-relationship between drug use, mental illness and the offending. In circumstances where the sentencing judge was unable (understandably) to form a positive view of the prospects of rehabilitation, this inter-relationship was a matter of some importance. In short, if the applicant continued to treat the symptoms of his mental illness with illicit drugs, he was likely to continue to offend because of the need to obtain the resources to pay for the drugs. If, however, he became compliant in taking prescribed medication, the symptoms of mental illness were likely to be reduced and the need for illicit drugs would diminish. These were all factors properly taken into account in the way that the sentencing judge explained. No error is demonstrated on this respect.

Conclusion

27. In the circumstances set out above the applicant should have leave to appeal, but the appeal should be dismissed.

28. SIMPSON JA: I agree with Basten JA.

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Endnotes

Decision last updated: 17 August 2016