TC v R

[2009] NSWCCA 296

New South Wales
Court of Criminal Appeal

CITATION:	TC v REGINA [2009] NSWCCA 296
HEARING DATE(S):	Thursday 24 September 2009
JUDGMENT DATE:	16 December 2009
JUDGMENT OF:	McClellan CJatCL at 1; Buddin J at 2; Hall J at 3
DECISION:	Leave to appeal granted. The appeal is upheld. The sentences imposed in the District Court be quashed and in lieu thereof the applicant is to be re-sentenced to a non-parole period of five years commencing on 12 February 2008 and expiring on 11 February 2013 and thereafter to a parole period of six years to commence on 12 February 2013 and to expire on 11 February 2019. The earliest date upon which the applicant will be eligible for release on parole will be 11 February 2013.
CATCHWORDS:	CRIMINAL LAW – appeal against sentence – whether sentencing judge failed to take into account the applicant’s pattern of serious drug abuse – the applicant’s substance abuse was a relevant matter for consideration on sentence as an integral factor in his dysfunctional condition – whether sentencing judge failed to have regard to applicant’s mental health – the sentencing judge limited consideration to the causal question as to whether there was a link between the applicant’s dysfunctional condition and the offence – the sentencing judge failed to have regard to the applicant’s psychological or psychiatric problems in evaluating the subjective circumstances of the applicant at the time of offending – appeal upheld – applicant re-sentenced
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	KT v Regina [2008] NSWCCA 51 Regina v Benetiz [2006] NSWCCA 21 Regina v Hemsley [2004] NSWCCA 228 Regina v Henry (1999) 46 NSWLR 346 Regina v Qutami (2001) 127 A Crim R 369 Regina v Todorovic [2008] NSWCCA 49 Regina v Way (2004) 60 NSWLR 168 SS v Regina [2009] NSWCCA 114
PARTIES:	TC v REGINA
FILE NUMBER(S):	CCA 2007/11443
COUNSEL:	C: N Noman A: S Corish
SOLICITORS:	C: S Kavanagh A: S O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/31/0307
LOWER COURT JUDICIAL OFFICER:	Bennett DCJ
LOWER COURT DATE OF DECISION:	29 July 2008

No 2007/11443

McCLELLAN CJ at CL
BUDDIN J
HALL J

WEDNESDAY 16 DECEMBER 2009

TC v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hall J.

2 BUDDIN J: I agree with Hall J.

3 HALL J:

(1) Application for leave to appeal against sentence

4 This is an application for leave to appeal by the applicant who is presently 17 years of age (date of birth, 6 June 1992). He was aged 15 years and 2 months at the time of the offence in question and 16 years and 1 month at the time of sentence.

5 The applicant entered a plea of guilty in the District Court in Tamworth on 2 June 2008. The sentencing hearing took place in Sydney on 14 and 29 July 2008. He was sentenced on the latter date in terms set out in paragraph [10].

6 The indictment contained six counts. The applicant pleaded not guilty to Count 1 (attempted murder), but pleaded guilty to an offence under s.198, Crimes Act 1900 (Count 2) with which he was charged in the following terms:-

“On 10 August 2007 at Tamworth in the State of New South Wales did maliciously damage property, namely, a dwelling house, with intent by that damage to endanger the life of [EMC] .”

7 The Crown accepted the applicant’s plea to Count 2 in full discharge of the indictment.

8 The applicant was arrested on 12 August 2007. He has been in custody bail refused since that date. He had been subject to a control order since 12 August 2007 as a result of a separate incident in respect of which he was charged with take and detain for advantage.

9 Accordingly, the sentence imposed in respect of the subject offence under s.198 of the Crimes Act was expressed to commence on 12 February 2008, the date upon which the non-parole period of the earlier sentence referred to in the preceding paragraph expired.

(2) The sentence imposed

10 The applicant was sentenced to a non-parole period of six years to commence on 12 February 2008 and to expire on 11 February 2014, with a parole period of six years expiring on 11 February 2020.

11 The subject offence to which the applicant pleaded guilty was a serious children’s indictable offence within the meaning of that term as defined in s.3(1) of the Children (Criminal Proceedings) Act 1987. An order was therefore made pursuant to s.19 of that Act. Accordingly, the applicant will serve the initial period of his sentence of imprisonment as a juvenile offender until he attains the age of 21 years. On the sentence imposed he will be required, once he attains the age of 21 years, to serve a period of approximately eight months as an adult offender.

12 The maximum penalty for the offence was a period of imprisonment for 25 years. There is no standard non-parole period for the offence for the purposes of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999.

(3) The facts

13 In his remarks on sentence, the sentencing judge recorded the relevant facts which were based on an agreed statement of facts tendered in the sentencing proceedings (Exhibit A).

14 The applicant, as previously stated, was aged 15 years and two months at the date of the offence. The victim was, at that time, aged 14 years and 10 months. The applicant entered the victim’s house, assaulted her, tied her up, splashed petrol around the house and set the house on fire. He then left the house. The victim managed to free herself from her bindings and fled the burning house.

15 The Remarks on Sentence (at pp.7 to 10) record the following facts and observations:-

“…
In August 2007 EMC lived in a house at … Coledale, a residential area in Tamworth. The offender and EMC are said to have been boyfriend and girlfriend for a short time, but by 10 August 2007 this had come to an end. The offender knew the occupants of the home at … and occasionally visited there. He had visited the victim’s home on a couple of occasions before the date of the offence.
On Wednesday 8 August 2007 the victim’s mother was admitted to hospital where she remained for several days. EMC continued to live at home and from time to time visited the occupants of number seven.
During the evening of 9 August 2007 EMC visited number seven. The offender was also visiting but there was little interaction between them. At midnight EMC returned home to retire for the night. She locked the doors and windows and watched television in her bedroom until she fell asleep.
Between 1am and 1.40am on 10 August 2007, EMC woke to see the offender standing in the doorway of her bedroom. She asked what he was doing and he told her that that [sic] he had entered through her mother’s bedroom window. EMC went to the lounge room where she and the offender spoke. Shortly after she returned to her bedroom and the offender followed her. There she sat crying.
EMC said that the offender pushed her down onto the bed and placed a pillow over her face. She had difficulty breathing. The offender has denied doing this.
The offender then produced a knife and said words to the effect of ‘Oh, I could have used this, but I didn’t’.
The offender removed the smoke alarm from the ceiling and extracted the batteries. He then took an electrical cord and tied EMC’s legs with it. He then asked for her mobile phone to which she said, ‘Just take it’.
The offender took the phone charger and used the cable from it to tie EMC’s hands in front of her. She struggled to get free but fell to the floor, striking her head on the television cabinet. The offender then took a cord from EMC’s keys, put it around her neck and clipped it to her hands which were still secured in front of her.
The offender took a wire coat hanger from a cupboard and tied it around her feet so that she was secured with that and the electrical cord. EMC asked the offender to leave her alone but he did not reply. He put a sock into her mouth but she was able to spit that out, whereupon he put tissue paper into her mouth, which she was also able to spit out. He then took a shirt and put it over her mouth and tied it at the back of her head. He then placed a plastic bag over her head.
EMC reports that when he did this the offender said that if she told the police what he had done he would come back for her. The offender does not agree that he said this.
The offender then placed EMC on her bed and covered her with bedcovers. He left her in the bedroom and returned a few minutes later. She heard splashing noises elsewhere in the house and could smell petrol fumes. She heard the flicking noise from a cigarette lighter and the sound of a door banging shut.
In the course of submissions on 14 July 2008 I raised the question, from where did the offender access the petrol used to initiate this fire. I was told from the bar table that the petrol came from a shed and that it had been kept there by the owner of the premises. It was acknowledged that there was no evidence on the point but both parties asked the court to proceed upon the basis that the petrol came from the shed at the rear of the house. This is a relevant fact and reflects the measure of planning by the offender before he executed the crime.
EMC smelled smoke and was able to work her hands free and remove the bindings on her arms and legs. She escaped from the burning house through her bedroom window and raised the alarm. The police and fire brigade attended about 4.06am and found the house well involved in fire. There was considerable damage to the house and its contends. EMC was taken to hospital and treated for smoke inhalation. A number of marks were evidence on her wrists and legs left by the bindings applied by the offender. These were retrieved from the fire scene by investigators.
About 6pm that day the offender boasted to another two young men that he had blown up his girlfriend’s house.
The offender was arrested on 12 August 2007 and at the Tamworth Police Station he declined to be interviewed. He was charged, bail was refused, and he has been in custody since that time.”

(4) The offender’s personal background

16 The sentencing judge noted that the applicant was 16 years of age at the time of sentencing and observed that, “For one so young, he has an appalling record of offending” (Remarks on Sentence, p.13). His Honour recorded the applicant’s criminal history in detail and observed that, in relation to other offences, the applicant had previously been given the benefit of having been placed on bonds and control orders and that, at the time of the subject offence, he was on bail in respect of the offence of take and detain for advantage.

17 The Remarks on Sentence also record in detail the applicant’s family history including the fact that he was the youngest of five children born to a father who had been diagnosed with schizophrenia. His parents separated in 1998 following which his mother formed another relationship with a man who drank excessively and was violent when intoxicated. The applicant had minimal supervision as a child and, ultimately, his mother relinquished care in October 2006. The sentencing judge referred to the futile efforts of police to have his mother attend in the applicant’s interests when he was detained.

18 The applicant was later placed in supportive accommodation but absconded and proceeded to develop a pattern of offending. He was bailed to reside with his sister and her partner at Bellingen but he again absconded and returned to the Tamworth area, rejoining his negative peer group “… to resume his drug taking” (Remarks on Sentence, p.24).

19 The sentencing judge later referred to the applicant’s wish to return to the Tamworth area “… which holds the attraction of his friends and the taking of drugs …” (Remarks on Sentence, p.24).

20 Reference was also made to the fact that:-

“The offender has acknowledged that he has had these opportunities in the past but that his desire for drugs has influenced his decisions and contributed to his departure from the care of his sister. He claims to have been using cannabis 15 to 20 times per day and sniffing petrol. He will need ongoing alcohol and other drug counselling.” (Remarks on Sentence, p.24)

(5) Grounds of appeal

21 The applicant relied upon seven amended grounds of appeal dated 25 September 2009. Written submissions were prepared on behalf of both the applicant and the Crown. At the hearing, Mr S Corish of counsel, who appeared for the applicant on the present application but not at the sentencing hearing, indicated that Ground 5 was not pressed. He did, however, seek leave to add a new Ground 5 based on a report of Dr K P Nunn dated 21 September 2009. I will return to this ground below.

Ground 1: The sentencing judge erred in concluding that he should give “little weight” to the accounts and representations attributed to the applicant, as contained in reports tendered in evidence

(a) “Representations” and other accounts of the applicant’s drug issues

22 It is necessary to consider the scope of Ground 1 and, in particular, what the references in it to “accounts” and “representations” by the applicant include or embrace. This is necessary as there was no precise ruling as to what particular part of any report by way of “history” was excluded as evidence of fact.

23 In the Remarks on Sentence (p.3), the sentencing judge referred to reports tendered on behalf of the applicant and, in particular, to representations that had been attributed to the applicant “by health care professionals who have been called upon to provide reports”. His Honour stated that there was “no other evidence to support the histories and explanations to which they have referred and upon which they have relied, at least in part, for the opinions they offer”.

24 His Honour did not identify precisely which reports were being referred to or “the representations” to which the last-mentioned comment was directed. It may well have been intended only to refer to the statement(s) such as that made to Associate Professor Hayes that he had ingested specific quantities of marijuana on the day of the offence.

25 After quoting the observations made by Smart AJ in Regina v Qutami (2001) 127 A Crim R 369 at 377, the sentencing judge then stated:-

“There were reports tendered on behalf of the offender. The Crown consented to their admission but did not accept the reliability of the opinions that were offered. I admitted the reports but upon the limited basis that the representations attributed to the offender should be taken as evidence of the facts upon which the opinions of the authors were developed and not as evidence to prove the existence of a fact that the offender intended to assert by the representation. I propose to give little weight to the self-serving and untested statements attributed to the offender in those reports.”

26 The transcript of the sentencing hearing on 20 June 2008 records, under the heading “Case for offender”, the tender of particular reports by the legal representative then appearing for the applicant. The reports were marked, respectively, as Exhibits 1, 2, 3 and 4 and, in addition, documents subpoenaed from Juvenile Justice (Exhibit 5).

27 In relation thereto, the transcript records:-

“EXHIBIT #1 PSYCHOLOGICAL ASSESSMENT BY SUSAN HAYES DATED 22/04/08 TENDERED, ADMITTED WITHOUT OBJECTION
…
EXHIBIT #2 PSYCHOLOGICAL REPORT OF KATIE SEIDLER DATED 2/11/07 TENDERED, ADMITTED WITHOUT OBJECTION
…
EXHIBIT #3 PHARMACOLOGICAL REPORT BY GEOFFREY STARMER DATED 02/05/08 TENDERED, ADMITTED WITHOUT OBJECTION
…
EXHIBIT #4 PSYCHOLOGICAL REPORT BY IAN NISBET DATED 1/11/07 TENDERED, ADMITTED WITHOUT OBJECTION
…
EXHIBIT #5 DOCUMENTS EXTRACTED FROM SUBPOENAED MATERIAL FROM JUVENILE JUSTICE TENDERED, ADMITTED WITHOUT OBJECTION ” (emphasis added)

28 The transcript records that, when Ms Seidler’s abovementioned report was tendered, the Crown representative stated:-

“Again your Honour, I have no objection. Your Honour when I say I have no objection, I don’t necessarily agree with the account received from the accused in either of those documents or any other documents that have been tendered as being accurate or indeed truthful.
HIS HONOUR: Well do you consent to the tender on the basis that the histories attributed to the offender are taken as to the facts upon which the opinions were formed rather than as to the truth of what he’s asserted.
HOLLES: Yes your Honour.”

29 Insofar as his Honour’s last-mentioned comment can be taken as a ruling, then it was to the effect that the two reports, Exhibit 1, which had already been marked “admitted without objection”, and, Exhibit 2, the report of Ms Seidler would be admitted upon that basis.

30 In relation to Exhibit 4, psychological report of Ian Nisbet, the transcript records Mr Holles for the Crown referring to it in these terms (at transcript, p.8):-

“I’ve not seen that report before I don’t think but I’ve no objection to its tender.”

31 Accordingly, there was no qualification on the tender of the report of 1 November 2007.

32 In relation to Exhibit 5, the transcript records the applicant’s legal representative referring to the tender of “five pages from that subpoenaed material …”. Mr Robert Carroll was noted as being the author of two of the documents and the remaining three documents were referred to as “Justice Health progress notes”. Included in the tender were notes of Dr Nunn dated 23 January 2008 and another of 15 February 2008. The Crown representative did not object to the tender in relation to the history provided by the applicant. The transcript records, in this respect, the Crown representative stating:-

“HOLLIS [sic] : Your Honour I don’t object to the tender, I don’t agree with any of the opinions contained.”

33 I have set out in some detail the basis upon which the reports and documents were received, as whatever the actual terms of any ruling, it was confined to Associate Professor Hayes’ and Ms Seidler’s reports. There was no objection to the documents comprising Exhibits 4 or 5, including the histories recorded in them.

34 Although not clear, it appears that the reference by his Honour to “the self-serving and untested statements attributed to the offender in those reports”, in context, was intended to refer to statements made by him that he had consumed drugs on the day of the offence.

35 In the discussion below, it is apparent that Mr Nisbet, Mr Carroll and Dr Nunn received relevant histories as to the applicant’s general substance abuse problem extending for a period of years. This was a matter relevant to the applicant’s subjective circumstances, and was separate and distinct from the question as to whether or not, on the day of the offence, he, in fact, ingested a quantity of drugs. It will be necessary to refer below in a little more detail to some of the recorded histories obtained by the last-mentioned health care professionals.

(b) Histories provided by the applicant

36 The sentencing judge referred to the need for caution in taking into account untested statements of prisoners to the authors of reports which are tendered in an offender’s case when the offender did not give evidence. His Honour commented on the fact that it was “regrettable” that the applicant had not given evidence and that “there is no other evidence to support the histories and explanations” referred to in the report.

37 Mr Corish submitted for the applicant that, although the generalisation regarding the exercise of caution remains valid, the rigour of the observation made in Regina v Qutami (2001) 127 A Crim R 369 at 377 should not apply to juveniles. As will be apparent from the discussion below, it is not necessary to express any final position on that question.

38 It was further submitted that his Honour was in error in dismissing the statements in the reports on the basis that “there was no other evidence to support the histories” (remarks on sentence, p.3).

39 If there was evidence that the applicant’s general psychological functioning had been dysfunctional up to the time of the offence and that substance abuse was a large part of that problem, such subjective circumstances had to be brought into account when determining sentence.

40 His Honour clearly declined to rely upon the applicant’s statements to Associate Professor Hayes, and in less precise terms, to Ms Seidler that he had consumed specific quantities of drugs on the day of the offence. His Honour was entitled to do so. However, any other evidence that established that the applicant was, at the time of his offending, a young person with a serious drug taking problem (a more general question), had to be considered and evaluated. There was, in fact, evidence to that effect. However, in my respectful opinion, it was not analysed for the purpose of fact-finding.

(c) Other sources of information or “accounts” as to the applicant’s drug taking

41 In relation to Ground 1, it is of some importance to identify the specific entries in the various file notes and reports which came into existence in the period between September 2007 and June 2008. The report of Associate Professor Hayes dated 22 April 2008, as previously mentioned, contained a statement or representation by the applicant that he had ingested between 10 and 15 cones of marijuana and some speed on the day of the offence. The earlier file notes and records in Exhibits 4 and 5 dealt with other matters, including what was said to be a lengthy history of drug taking by the applicant. There was, as earlier noted, no objection to those notes and records being received as evidence of the facts, based on the applicant’s accounts, of his past history.

42 Memoranda made soon after admission to the Reiby Juvenile Justice Centre recorded a serious history of drug taking by TC up to the date of the offence. They also refer to the fact that the consumption of “illicit substances” played a role in his “choices and actions”. The note of 19 October 2007 raised the question as to the possible role of his consumption of amphetamines in the offence.

43 The report of Ian Nisbet, psychologist, dated 1 November 2007, similarly confirmed a history of drug abuse by the applicant. This is described in the report (at pp.5 to 6) in the following terms:-

“… He appears to have a lengthy history of substance abuse and many of his offences are alleged to have been committed while he was intoxicated. Continued substance abuse is a likely perpetuant [sic] of his offending.”

44 In the Department of Juvenile Justice note or memorandum dated 17 September 2007 in relation to “Ongoing Counselling”, there is a further acceptance of the applicant’s long standing drug abuse problem. There the comment was made:-

“… Positively [the applicant] is coming to realise the effects of drugs and alcohol on his lifestyle and life choices … [The applicant] has some culpability for his action and he is beginning to understand the role illicit substances play in his choices and actions.”

45 In a further Department of Juvenile Justice memorandum dated 19 October 2007, there is a note in the following terms:-

“ [The applicant] is currently adding abuse of solvents (petrol) and amphetamines to his list of used illicit substances: I have yet to investigate his latest AOD self report at depth, however, if in fact he was using these substances, it could well explain why [the applicant] did as he did. Such a causal chain would/could also guide the treatment modality.”

46 In relation to the various histories given by the applicant to the authors of the abovementioned memoranda and reports, three matters may be noted. Firstly, there is consistency in the histories provided. Secondly, the authors of the memoranda/reports identify the fact that the applicant’s substance abuse had operated over a period of years. Thirdly, the problem of the applicant’s drug abuse was identified as a factor, along with others, as having a correlation with his extreme level of behavioural dysfunction.

47 The sentencing judge was mindful of, and accepted that, the applicant, in fact, had a drug problem. He could hardly have done otherwise. There are a number of references by his Honour to the applicant’s history of drug taking in the Remarks on Sentence on particular matters. His Honour, at p.48, stated:-

“I find that there are special circumstances by reason of his age, by reason of the need for ongoing management to address the use of drugs and alcohol and to enable him to have the opportunity to gain some eduction. That process will begin in the custodial setting …” (emphasis added)

48 Earlier in the Remarks on Sentence (p.24), his Honour observed:-

“The offender has acknowledged that he has had these opportunities in the past but that his desire for drugs has influenced his decisions and contributed to his departure from the care of his sister. He claims to have been using cannabis 15 to 20 times per day and sniffing petrol. He will need ongoing alcohol and other drug counselling.”

49 His Honour proceeded to refer to the specific history of drug taking on the day of the offence:-

“… at the time of the commission of this offence he had consumed 15 to 20 cones of cannabis and had been sniffing petrol. There is no evidence before the Court other than that representation. It is challenged by the summary of facts that informs the Court that prior to the offence he was at the house … where the victim had gone to have her evening meal. Moreover, the conduct of the offender, which I have itemised drawing from the facts, is inconsistent with any level of impairment as a consequence of the ingestion of drugs or any other substance.” (p.25)

50 On the question of the role that drug taking by young offenders may take in the sentencing context, Wood CJ at CL in Regina v Henry (1999) 46 NSWLR 346 at [273] set out relevant sentencing principles. His Honour there observed:-

“(c) It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it might:
(i) …
(ii) Suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness or surgery … or where it occurred at a very young age , or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete; …” (emphasis added)

51 In the present case, the applicant’s long-standing problem with illicit drugs, whether it be properly described as an addiction or as chronic drug abuse, was clearly related to his extreme dysfunctional upbringing as recorded in the psychologists’ reports and other records in evidence. It clearly had been a very real problem for him for a lengthy period, and one that had to be taken into account as a relevant subjective circumstance when considering the appropriate sentence in accordance with the provisions of s.21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999.

52 The principle to which Wood CJ at CL referred in Henry (supra) has been referred to and applied by this Court in more recent times. In Regina v Todorovic [2008] NSWCCA 49, Hulme J referred to the conclusion of this Court in Henry (supra) which firmly rejected the proposition that, in general, addiction to drugs should be regarded as a mitigating factor. However, his Honour observed that the Court also there recognised that there would be cases where the general rule would not apply “… for example where the addiction was the result of youth or medical treatment over which the offender had no relevant control …” (at [58]). See also SS v Regina [2009] NSWCCA 114 at [102] per Price J, with whom Tobias JA and James J agreed.

53 Accepting, as I do for the purpose of the present appeal, that the sentencing judge was entitled to put to one side the specific statements made by the applicant to Associate Professor Hayes and Ms Seidler as to having consumed marijuana on the day of the offence, the sentencing judge was required to have particular regard to the fact, as established in other evidence, that the applicant’s substance abuse was a relevant matter for consideration on sentence, it having been an integral factor in his dysfunctional condition.

54 The sentencing judge was not assisted at the sentencing hearing in relation to these matters. The transcript confirms that there was a lack of focus in the submissions upon the applicant’s history of drug taking as a matter relevant to an evaluation of his subjective circumstances. The attention in the submissions was principally upon the specific “representations” or statements made by the applicant to the psychologists later in time (2008) as to his claim of having consumed substantial quantities of drugs on the day of the offence. In submissions, counsel then appearing for the applicant, after describing the applicant’s dysfunctional family and upbringing, explained that his client began “taking drugs and reported using marijuana, amphetamines and sniffing petrol” (transcript, 14 July 2008, at p.11). His Honour replied:-

“The only material before the Court regarding the suggestion that he’d smoked a large number of cones of cannabis on the day of the offence and had been sniffing petrol comes from the histories attributed to him I think by Professor Hayes.” (transcript, 14 July 2008, p. 11).

55 Counsel agreed, though submitting that those reports as to the offender using substances appeared to be consistent with other reports contained elsewhere, and with his general background. However, that said, his Honour was not directed to the reports said to be consistent with a history of substance abuse. His Honour was understandably concerned about accepting the history of the smoking of cannabis on the day of the offence in the absence of confirmatory evidence. Counsel for the offender made a general submission to the effect that drug taking or intoxication could be relevant “to the background of the offending behaviour” (transcript, 14 July 2008, p.11). However, there was no other direct submission made as to the relevance of a history of drug abuse in determining the offender’s subjective circumstances.

56 In the circumstances to which I have referred above, there was no evaluation made of the question as to the extent to which the applicant’s pattern of serious drug abuse constituted a relevant subjective circumstance in determining the term of the sentence of imprisonment to be imposed. The applicant’s history in that respect was clearly relevant to the level of his culpability. I, accordingly, consider Ground 1 has been made out.

Ground 2: The sentencing Judge erred in failing to adequately take into account the applicant’s mental health condition

57 The applicant was diagnosed in January 2008 with a psychotic condition, namely, schizophrenia. That diagnosis was made by Dr Nunn.

58 The sentencing judge proceeded upon the basis that there was no evidence that the applicant suffered from such a condition at the time of the offence. Accordingly, he was sentenced upon the basis that the evidence did not support the existence of a mental or psychological disorder linked or causally associated with the offence.

59 The sentencing judge examined and recorded the Juvenile Justice background reports in some detail in his Remarks on Sentence, in particular, that of Mr Ian Nisbet, psychologist, the clinical psychological assessment report of Associate Professor Hayes and the psychological report of Ms Seidler. However, in the circumstances of this case, in my respectful opinion, his Honour was required, particularly with a young offender, to go further and determine whether the evidence established the existence of a psychological or psychiatric disorder and, if so, how it was to be taken into account for the purpose of determining an appropriate sentence.

60 As I have earlier indicated, the evidentiary material plainly established that, from a very young age, the applicant had an extremely disturbed and abnormal juvenile history. Whilst, as I have indicated, his Honour did refer to the history and analysis of the relevant reports, he did not express any conclusion as to the nature and extent of the applicant’s psychological status or condition and its relevance as a subjective factor in the sentencing process.

61 The applicant had been seen by a Dr McDonald of Tamworth and a psychiatrist, Dr J Miller, before the subject offence. He was prescribed at various times Zoloft (used to treat conditions such as depression, obsessive-compulsive disorders, panic and anxiety disorders) and Ritalin (used for attention deficit and hyperactivity disorders) and Dexamphetamine (also used for behavioural disorders such as attention deficit disorders).

62 Within a few weeks of the applicant’s arrest and prior to the Juvenile Justice memorandum of 19 October 2007, Dr Nunn, psychiatrist, altered the applicant’s medication to Olanzapine, an anti-psychotic medication used in the treatment of schizophrenia and bipolar disorders. The memorandum referred to the applicant’s father’s “… significant schizophrenia history”. The progress note dated 23 January 2008 recorded that, by that date, he was not manifesting “psychotic phenomena” but that entry also records Dr Nunn’s conclusion “… I advised him today that he does have the same illness as his father viz schizophrenia”. It is clear that in the period between the time Dr Nunn first saw the applicant following his arrest and January 2008, he had been manifesting psychotic features.

63 Accordingly, the applicant had been treated for one or more psychological problems before the offence and was formally diagnosed within a few weeks of the offence with a psychiatric illness. The history before the offence indicated that he suffered for some time from ongoing emotional/psychological and other issues. Significant aspects of his history included the following:-

• Parental separation either when he was three or six years old and a family history of violence.

• Abuse and neglect.

• Initial exposure to alcohol at age five.

• Development of a pattern of binge drinking about three times a week.

• Initial smoking of cannabis aged six years.

• Development of drug abuse – cannabis – and in 2007 commenced taking amphetamines.

• History of hyperactivity, anti-social and impulsive behaviour, violence and aggression at school resulting in expulsions.

• Continual absconding from foster care and supportive accommodation.

• Self-harming and aggressive behaviour.

64 Ms Seidler summarised his history in the following terms (paragraph [43]):-

“In sum, [TC] appears to be a very under socialised young man, who has distorted views about appropriate behaviour and the use of violence. Despite some apparent potential, [TC] appears to be functioning at a low level intellectually and, consequently, lacks sophistication and the maturity with respect to his ability to self regulate and manage his behaviour. [TC] does possess some empathy and perspective taking skills and he is able to appreciate the consequences of his behaviour on others, however, this is generally overridden by his tendency to impulsivity and the normalisation of violence that is rife within his social and personal network.”

65 The sentencing judge, after noting the evidence on the above matters, limited his consideration to the causal question as to whether there was a link between the applicant’s dysfunctional condition and the offence. He did not, however, proceed to address the nature and significance of his psychological condition otherwise as a relevant subjective circumstance to be assessed in determining sentence. As the judgment of the Court of Criminal Appeal in Regina v Way (2004) 60 NSWLR 168 at [86] indicates, his Honour was required to do so.

66 The sentencing judge’s approach was, with respect, as I have stated, an unduly narrow one. His Honour stated:-

“The challenge in this matter, though, is that these general observations regarding the offender have not been tied to the specific misconduct with which I am dealing, and I find it very challenging to come to a view that his limitations discussed are so causally related to what he has done on this occasion , that the objective assessment of the gravity of the offending is to be mitigated to any significant degree.” (Remarks on Sentence, p.37) (emphasis added)

67 Similarly, at p.47 of the remarks on sentence, his Honour stated “There is no evidence of any psychosis leading to this offence”.

68 The sentencing judge, as has previously been noted, accepted the applicant’s history and his psychological deficits as recorded in the various reports. Psychological conditions, eg, depression, have been accepted as a form of mental disorder that may, depending upon the evidence, be taken into account in sentencing for an offence, even though such conditions have not been found to be causative of the offending. The relevant principles and approach were referred to by Simpson J in Regina v Benetiz [2006] NSWCCA 21 at [36] to [38] as follows:-

“36 As to the second passage, his Honour’s expressed understanding does not accurately reflect the law. For mental illness or a psychiatric condition to be relevant to sentencing it is not necessary that it be the cause of the commission of the crime. Indeed, authority suggests that it is not necessary that it be a cause of the crime. I refer to the decision of this Court in R v Fahda [1999] NSWCCA 267 at [40] – [48]. There reference was made to a number of authorities of which the following are, on this issue, relevant. In R v Letteri (unreported, NSWCCA, 18 March 1992), Badgery-Parker J said:

‘In each of those cases [which he had, in the preceding paragraph, cited], it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle .’ (emphasis added)

37 In R v Engert (1995) 84 A Crim R 67 Gleeson CJ said:

‘In truth, however, ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case . For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system .’ (emphasis added)

38 A mental disorder such as the applicant’s depression was identified by Gleeson CJ in Engert as being part of the circumstances of the individual case. Generally speaking, the well-known authorities indicate that mental disorder may be relevant to the assessment of the offender’s culpability and to the level to which it is appropriate to give greater or lesser emphasis to principles of general or specific deterrence: see also R v Scognamiglio (1991) 56 A Crim R 81; Letteri ; R v Champion (1992) 64 A Crim R 244; R v Wright (1997) 93 A Crim R 48.”

69 It is clear that the applicant had a multiplicity of psychological disorders (including hyperactive – impulsive disorder) associated with an assessed low average intelligence, a history of aggressive, and at times, self-harming behaviour and, as an inter-related factor, his substance abuse problem. I also note Mr Carroll’s report dated 19 October 2007 recorded Dr Nunn’s opinion that scores obtained on testing the applicant could “cloud” a diagnosis of anxiety disorder in favour of ADHD.

70 I am of the opinion that the sentencing judge was in error in confining consideration of the evidence bearing upon the applicant’s psychological condition to the question as to whether it was causative or linked to the offending behaviour. The applicant did have psychological or psychiatric problems and, on the authorities, his Honour was required to have regard to them in evaluating the subjective circumstances of the applicant at the time of offending. This, his Honour did not do.

71 I, accordingly, am of the opinion that Ground 2 has been made out.

Ground 3: The sentencing judge erred in failing to adequately take into account the principles of sentencing in relation to juveniles

72 His Honour made reference to the decision of this Court in KT v Regina [2008] NSWCCA 51. His Honour, an experienced judge, was clearly aware and mindful of the relevant sentencing principles in relation to juveniles.

73 It was submitted for the applicant that, although his Honour referred to the principles, he did not apply them “in any meaningful way”: Written submissions for the applicant, paragraph [39].

74 It was further submitted that what was required was a consideration of the principles as applied to the offence and the offender, although it was acknowledged “… that it would always amount to a difficult balancing exercise, given the seriousness of the offence and the age and troubling circumstances of the offender but it was necessary – and it wasn’t done” (Applicant’s written submissions, paragraph [40]).

75 I do not consider that there is any substance to this ground of appeal. It has not been demonstrated that his Honour failed to apply relevant principles to the particular facts of the case. Beyond the errors to which I have referred in relation to Grounds 1 and 2, I do not consider that Ground 3 has any substance.

Ground 4: The sentencing judge erred in finding the offence was aggravated by the use of an explosive: s.21A(2)(c)(a), Crimes (Sentencing Procedure) Act

76 I do not consider there is any substance at all to Ground 4.

77 It was argued that the sentencing judge erred in finding that the use of “an explosive in the form of petrol” was an aggravating feature. Whilst it was acknowledged that petrol is highly flammable, it was contended that his Honour erred in finding that there was an actual use of an explosive.

78 The ordinary meaning of the term “explosive” applies in the circumstances of this case to the use of petrol, a highly explosive substance when used in circumstances of it vaporising, as clearly occurred in the present case.

79 Accordingly, there is no substance to this ground of appeal.

Ground 5: Leave is sought to adduce further evidence relating to mental health status of the applicant, namely, the report of Dr Kenneth Nunn dated 21 September 2009, and the failure to permit the applicant to rely on this report would lead to a miscarriage of justice

80 As noted earlier, at the hearing on 24 September 2009, Mr Corish stated that he wished to rely upon the affidavit of Bryan Peter Dowe affirmed 22 September 2009, annexed to which was a copy of the report of Dr Kenneth P Nunn, Senior Consultant in Child and Adolescent Psychiatry dated 21 September 2009 upon two bases. Firstly, upon the basis that the report constituted fresh evidence for reasons said to have been articulated in the report. Secondly, on the usual basis in the event that this Court was moved to re-sentenced the applicant. The Crown objected to leave being granted for the report upon the first basis, that is, as fresh evidence.

81 Mr Corish stated that it was not the case that the applicant's legal representatives were not aware of the possibility or probability of Dr Nunn being able to provide a report containing a diagnosis. He said that the report was relied upon as fresh evidence “for reasons articulated in the report” (transcript, 24 September 2004, at p.2). In the course of his submissions, he stated:-

"The difference (with) this report and the basis of this report is that it is only since the applicant has been in custody for a significant period of time that he has been able to maintain a regular relationship with the health care professionals for the purposes of making a concrete diagnosis but also establishing what is the appropriate regime in terms of medication because this report refers to the applicant being resistant to or an impaired capacity to metabolise the medication referred to and that he was being treated with prior to sentencing. This is the new component - one could not have established that impairment without him being in custody for a period of time under the care of health professionals."

82 The amendment sought to the grounds of appeal to rely on a new ground five was allowed on a provisional basis, that is, subject to determination of the fresh evidence question.

83 The “fresh evidence” was said to be two-fold. The first is the definitive diagnosis made by Dr Nunn of the applicant’s schizophrenia. The second was the reference in Dr Nunn’s report to the applicant’s condition being resistant to medications prescribed for the condition.

84 I do not consider that Dr Nunn’s report dated 21 September 2009 should be admitted upon the basis that it constitutes fresh evidence on either of the two matters referred to in Mr Corish’s submissions. First, it is clear that there was evidence tendered at the sentencing hearing that established that the applicant suffered from schizophrenia. The report of Dr John Kasinathan, Consultant General & Forensic Psychiatrist, Adolescent Health, Justice Health dated 4 July 2008 (which became Exhibit G), stated that, by May 2008, Dr Nunn had diagnosed the applicant’s condition as schizophrenia (there is uncertainty, both on the reports of Dr Kasinathan and of Dr Nunn, as to how long before the offence the condition was operating.

85 As to the second aspect, Dr Nunn refers in his report to the chronic nature of the applicant’s treatment-resistant schizophrenia but does not state that he is untreatable. At p.5 of his report, he refers to the fact that the applicant is “partially responsive to current anti-psychotic medication” and the possibility of him being given a trial of what he refers to as the gold standard anti-psychotic clozapine.

86 The fact that there has been an apparent variation in the applicant’s response to anti-psychotic medications since Dr Kasinathan’s report does not provide a sufficient basis, on the facts of the present case, to warrant leave being granted to rely upon Dr Nunn’s more recent report as fresh evidence. It does not, in my opinion, establish an unforeseen permanent worsening of the applicant’s condition since the date upon which he was sentenced. The evidence in the report should be received as relevant on the question of re-sentencing

Ground 6: The sentencing judge erred in imposing a non-parole period of six years of which the last eight months was to be served in imprisonment as an adult

87 It was contended that the sentence imposed would have the effect that the applicant must be transferred to an adult prison for the last eight months of his non-parole period.

88 It was submitted that such a sentence would be counter-productive and unnecessarily punitive. It was submitted that the non-parole period should be reduced, at least to the extent that would permit the applicant to complete his confinement in juvenile detention.

89 By reason of the errors to which I have referred in relation to Grounds 1 and 2, I am of the opinion that this Court should intervene and re-sentence the applicant.

90 The sentencing which I propose below will have the effect that, if released upon the first date upon which the applicant becomes eligible for parole, the whole of the parole period will be served in a juvenile institution.

91 Accordingly, Ground 6 will not, in those circumstances, arise and, accordingly, it need not be considered further.

Ground 7: The sentence is manifestly excessive

92 It was contended that the head sentence of 12 years was excessive and was plainly unjust. It was said to be unjust because it was out of reasonable proportion to the circumstances of the crime and the offender.

93 This ground of appeal is to be dealt with having regard to the particular subjective circumstances to which Grounds 1 and 2 relate, namely, the applicant’s condition as a consequence of his drug addiction and, secondly, his mental condition as it existed at the date of the offence. Accordingly, the ground of appeal will effectively be subsumed by the approach now to be taken by this Court based upon the matters central to Grounds 1 and 2.

Sentence proposed

94 The applicant should be re-sentenced by this Court upon the basis determined by the District Court so far as the applicant’s plea of guilty and the finding of special circumstances are concerned.

95 It follows that the applicant is entitled to a 25% discount in respect of his plea of guilty and, by reason of the finding of special circumstances, the statutory ratio should be varied in accordance with s.44 of the Crimes (Sentencing Procedure) Act.

96 The report of Dr Nunn dated 21 September 2009 confirms that the applicant has suffered from a severe schizophrenic condition for several years being a condition which is independent of any substance abuse. This is so, even allowing for the possibility that it was precipitated by substance abuse.

97 The medical evidence establishes the applicant’s condition as a subjective circumstance to be taken into account in relation to the determination of the sentence to be imposed by this Court. It is, in particular, to be taken into account in determining the length of the non-parole period. The decision as to the granting of parole in due course will no doubt ultimately bring into account up to date specialist psychiatric medical opinion as to the applicant’ suitability for release upon the expiration of the non-parole period.

98 I consider that the subjective circumstances of the applicant discussed above require some amelioration of the sentence imposed in this case. Firstly, addiction that is attributable to circumstances that cannot be said to be attributable to the personal choice of an offender may be taken into account. In this case, the applicant’s drug taking and mental condition were, on the evidence, inter-related matters. Secondly, the applicant’s psychiatric condition, a form of mental illness, may, in accordance with accepted sentencing principles, mean that the call for denunciation and punishment may be reduced and may render the applicant an inappropriate vehicle for general deterrence and moderate that consideration: Regina v Hemsley [2004] NSWCCA 228 at ]33] to [34] per Sperling J with whom Grove and Dowd JJ agreed. Such principles should, in my opinion, be applied by reason of the particular facts of this case and indicate a need for the sentence imposed to be set aside and the applicant to be re-sentenced.

99 I am of the opinion, taking into account the matters to which I have referred, that the applicant should be sentenced to a non-parole period of five years commencing on 12 February 2008 and expiring on 11 February 2013 and thereafter to a parole period of six years to commence on 12 February 2013 and to expire on 11 February 2019.

100 Accordingly, the earliest date upon which the applicant will be eligible for release on parole will be 11 February 2013.

Orders

101 The orders I propose are as follows:-

(1) Leave to appeal granted.

(2) The appeal is upheld

(3) The sentences imposed in the District Court be quashed and in lieu thereof the applicant is to be re-sentenced to a non-parole period of five years commencing on 12 February 2008 and expiring on 11 February 2013 and thereafter to a parole period of six years to commence on 12 February 2013 and to expire on 11 February 2019.

102 Accordingly, the earliest date upon which the applicant will be eligible for release on parole will be 11 February 2013.

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