Troy Douglas Pleace v The Queen

[2017] NSWCCA 112

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Troy Douglas Pleace v R [2017] NSWCCA 112
Hearing dates:	28 April 2017
Date of orders:	31 May 2017
Decision date:	31 May 2017
Before:	Hoeben CJ at CL at [1] Fullerton J at [2] Hamill J at [3]
Decision:	Application for leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – enter with intent to commit offence of intimidation – assault occasioning actual bodily harm – assault with crow bar in victim’s home – whether sentence manifestly excessive – where applicant suffering severe psychiatric condition – schizophrenia -– relevance of statistics and outcomes in other cases – sentence high but not plainly wrong or unjust
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Betts v The Queen [2016] HCA 25 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Dyer v R [2011] NSWCCA 185 Kennedy v R [2013] NSWCCA 19 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Mitropoulos [2004] NSWCCA 402 R v Togher [2012] NSWDC 276 Sabongi v R [2015] NSWCCA 25
Category:	Principal judgment
Parties:	Troy Douglas Pleace - Applicant Regina – Respondent Crown
Representation:	Counsel: Ms K Stares -Applicant Mr S Hughes – Respondent Crown   Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2014/69677
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29/01/2016 and 01/04/2016 Before: Berman SC DCJ File Number(s): 2014/69677

Judgment

HOEBEN CJ at CL

1. I agree with Hamill J and the orders which he proposes.

FULLERTON J

2. I agree with Hamill J.

HAMILL J

3. Troy Douglas Pleace (“the applicant”) seeks leave to appeal against an aggregate sentence imposed on him by Judge Berman SC in the District Court on 1 April 2016. The sole ground of appeal is that the sentence is manifestly excessive.

4. The applicant pleaded guilty to entering a dwelling house with intent to commit the serious indictable offence of intimidation (“enter with intent”). This is an offence contrary to s 111(2) of the Crimes Act 1900 and carries a maximum penalty of 14 years imprisonment. He also pleaded guilty to an offence of assault occasioning actual bodily harm under s 59(1) of the Crimes Act, an offence carrying a maximum penalty of 5 years. Initially, it was understood that the applicant would ask that an offence of common assault be taken into account on sentencing and there is a Form 1 within the appeal papers. However, the applicant denied committing this offence when asked about it by the sentencing judge and his Honour said that it was not taken into account.

5. The sentencing judge imposed an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999. The aggregate head sentence was five years and the aggregate non-parole period was 3 years. Because an aggregate sentence was imposed his Honour was required under s 53A(2)(b) to indicate “the sentence that would have been imposed for each offence … had separate sentences been imposed instead of an aggregate sentence”. The indicative sentences were 4½ years for the enter with intent offence and 18 months for the offence of assault occasioning actual bodily harm.

6. The aggregate sentence was partially accumulated on a sentence imposed by the same sentencing judge on 3 July 2015 (“the earlier sentence”). The earlier sentence concerned an offence of assault occasioning actual bodily harm in company, carrying a maximum penalty of seven years pursuant to s 59(2) Crimes Act. That offence occurred “about a month” after the offences for which the aggregate sentence was imposed. The earlier sentence was one of 3½ years with a non-parole period of 2 years. There is no appeal against that sentence.

7. The non-parole period in relation to the earlier sentence expired on 17 July 2016. The aggregate sentence with which this application is concerned was ordered to commence on 17 July 2015. This means that the aggregate sentence was partially concurrent with the existing non-parole period (by a period of one year) and partially cumulative upon that non-parole period (by the same period). The balance of parole of the earlier sentence was subsumed by, that is concurrent with, the aggregate sentence. The practical result is that the applicant is subject to a continuous period of incarceration (that is, a total effective cumulative non-parole period) of 4 years with a balance of parole of 2 years. That total effective sentence relates to three offences committed within the space of about one month.

8. The two offences with which the present application is concerned were part of a single criminal escapade. The findings of fact made by the sentencing judge were derived from an agreed statement of facts and were not challenged on the appeal. The facts were as follows:

“Mr Pleace formed a relationship with a Ms Vitalis, indeed she was one of the co-offenders who appeared for sentence in July 2015. Ms Vitalis worked as a prostitute and one of her clients was a Mr S. Mr S was in a relationship with a Ms J, they lived together in Coogee. On occasions Ms Vitalis would provide sexual services to Mr S, sometimes in the presence of Ms J.

In October 2013, Mr S attended Ms Vitalis’s home where she was introduced to the offender Mr Pleace. It is clear that Mr Pleace was not happy with the arrangement between Mr S and Ms Vitalis, his girlfriend. He told a psychiatrist that he believed that Ms Vitalis was being mistreated.

So, on 5 November 2013, the offender went to the premises where Mr S and Ms J lived and knocked at the door. It was about 7 in the morning. Ms J opened the door and saw the offender standing there. The offender asked whether Mr S was home and, when asked by Ms J who he was, the offender gave her his correct name and pulled a crowbar out from underneath his jacket. He moved past Ms J and into the premises.

At this stage Mr S, was wearing only a T-shirt, was sleeping on the lounge in the back of his home. The offender threatened Mr S and demanded money from him. He said that it was money that Mr S owed. He was holding the crowbar and swinging it towards Mr S. Ms J overheard the offender say something like ‘you owe me money, if you ask for a girl then you have to pay for her, you pay for my girls’.

There is obviously conflict between what Mr Pleace was saying to Mr S as to why he was threatening him with the crowbar and the motivation that Mr Pleace had according to his version given to the psychiatrist.

Mr S offered to pay money because he did not want any trouble. He said ‘I never meant to cause you to be upset and I’m sorry for whatever happened’. Mr Pleace then threatened to hurt Mr S with the crowbar and struck Mr S, using that weapon, to his left forearm. As a result, he experienced pain and suffered swelling to his left forearm.

At one stage the offender and Ms J and Mr S went upstairs. He continued to threaten Mr S verbally and by swinging the crowbar towards him. Mr S said ‘whatever you need us to do we’ll do it, just please don’t hurt us’; the offender said ‘as long as you do what I say I won’t hurt her’. Of course the ‘her’ was a reference to Ms J.

After they went downstairs, the offender told Mr S to get on his knees and he ordered Mr S to apologise to Ms J for the manner in which he had previously treated her. Mr S assured the offender that he would not call the police and then made his escape. He ran to a dry cleaners where police were called.

As the offender the[n] left the house, he was able to see Mr S and he continued to verbally threaten him. Mr S could see, outside his premises, Ms Vitalis and a second unidentified male. The three then left the location. Mr S was taken to a hospital via ambulance. His left forearm was X-rayed, fortunately there was no fracture found.”

9. The second offence, that is the assault occasioning actual bodily harm, occurred during the course of the commission of the first offence. That circumstance gave rise to questions of totality of which the sentencing judge was well aware. By comparison between the indicative sentence for the enter with intent offence (4½ years) and the aggregate sentence imposed for both offences (5 years), it can be seen that his Honour essentially accumulated the two sentences by a period of 6 months while otherwise making them concurrent.

10. The applicant had a substantial criminal history that disentitled him to very much leniency. The criminal history commenced in 1994 in the Children’s Court and included offences of common assault, breaching apprehended violence orders, breaking into houses, weapons offences and offences involving the possession and selling of drugs. There were a number of offences of violence and breaching apprehended violence orders. Most of these offences were dealt with in the Local Court and resulted in reasonably moderate penalties. While the record is long, the penalties suggest that most of the applicant’s prior offences were not very serious. However, in 2008, the applicant was sentenced in the District Court to imprisonment for 3 years and 8 months with a non-parole period of one year and 10 months. This was for an offence of aggravated break, enter and commit a serious indictable offence. Further, the history demonstrated a reasonably consistent pattern of disregard for the law and court orders. On a positive note, and with the exception of a shoplifting offence dealt with by fine in the Local Court, there was a gap in the applicant’s criminal record from the time of the sentence imposed by the District Court in 2008 until his commission of the offences in 2013 which brought him (twice) before the sentencing judge. Not much is known of the offence dealt with by Judge Berman on 3 July 2015 other than that it was an offence of assault occasioning actual bodily harm committed in company, that Ms Vitalis was also involved (as a perpetrator) in the assault and that it was sufficiently serious for his Honour to impose a sentence of 3½ years with a non-parole period of two years.

11. The sentencing judge concluded that “there is a high chance of [the applicant] reoffending given the nature of his condition and his criminal history and the conclusion reached by the psychiatrist.” His Honour found that the applicant’s “prospects of rehabilitation are bleak.” Those findings were not challenged on appeal. Similarly, there was no challenge to Judge Berman’s observation that personal deterrence was a significant factor because the applicant “must know that he cannot continue to act this way and that he must realise that every time he commits a significant criminal offence he is going to receive a custodial sentence.”

12. The applicant relies on a number of findings made by the sentencing judge and not challenged by the respondent on the appeal. Those findings, which were plainly correct, included that the applicant was not an appropriate vehicle for a sentence involving a large component of general deterrence and that the applicant was a person upon whom a custodial sentence would way more heavily. Those findings were based on a psychiatric report dated 30 March 2016 under the hand of Dr Kerry Eagle. At the time of the offence, and at the time of sentence, the applicant suffered from serious mental illness diagnosed and described as “psychosis secondary to schizophrenia”.

13. The applicant had suffered from that disease or mental illness since adolescence. He told the psychiatrist:

“[A]t the time of the offence, I thought I was talking to God. I thought he was disrespecting my girlfriend. I’m really sorry for what happened. The girl was putting things in my head. Saying that he did all these sordid things and stuff.”

14. When he was asked if he believed he had a mental illness the applicant replied, “why did the voices choose to speak to me?” And “maybe it is God I don’t know about any of it.” The delusional illness was long-standing and severe. The transcript of the sentencing hearing disclosed that the applicant was having difficulties focussing on the hearing. He complained about the lighting and was distracted by the flickering of the lights in the courtroom.

15. The sentencing judge held:

“Whilst these offences were not directly a result of, for example, [the applicant] hearing voices, his lack of problem-solving abilities or inhibitions to manage his responses appropriately were clearly contributing factors to the commission of the offence. In those circumstances, his moral culpability is reduced.”

16. It was in that context that the sentencing judge determined that the applicant was not an appropriate vehicle for a general deterrence. The psychiatric report went on to describe the applicant’s vulnerability in custody. The report included: –

“Custodial settings are not therapeutic environments. Therefore, all those with severe mental illnesses are extremely vulnerable in custody. Mr Pleace has impaired social and communication skills. He misinterprets his environment as a result of his symptoms of psychosis. He would likely be vulnerable in the custodial setting.”

17. His Honour’s observation that a custodial sentence “must necessarily way more heavily upon [the applicant]’” was based on that part of Dr Eagle’s report. While the finding was obviously correct, it understated the situation given the severity of the applicant’s psychiatric problems. However, it is clear from the remark that his Honour was very conscious of the difficulties that the applicant faced in gaol.

18. The sentencing judge noted that the serious indictable offence forming the basis of the “enter with intent” charge was far from the most serious offence caught by s 111(2). That offence was one of intimidation and the sentencing judge pointed out that the same maximum penalty would apply if the applicant’s intention had been to commit a sexual assault or to inflict grievous bodily harm. At the sentencing hearing, the prosecutor submitted that the case fell within the putative “mid-range” of offences of its kind. The applicant submits in this Court that a proper assessment of the criminality was that it fell at the lower end of offences contemplated by the section under which he was charged. While in no way meaning to understate the seriousness of the offending, and in particular the fact that the crime was committed in the victim’s home and involved the use of a weapon, I accept the applicant’s submission. Of course, the use of the crowbar in inflicting a moderately serious injury on the victim was the basis of the assault occasioning actual bodily harm charge for which the applicant also stood to be sentenced. The sentencing judge did not directly address the Crown’s submission that the matter was in the middle range of objective seriousness. However, his Honour did say that the sentence that he intended to impose was “the least that I believe properly reflects the objective gravity of the offenders crimes.”

19. Given where the offence lay on the wide range of offences caught by the section, his Honour’s stated intention with respect to the length of the sentence and the compelling mitigating circumstance concerning the applicant’s psychiatric condition, the applicant submits that his Honour fell into error by imposing a sentence that appears to fall in the top 5% of some 153 cases disclosed in the statistics maintained by the NSW Judicial Commission. The applicant correctly acknowledges that such statistical analysis must be treated with caution because the particular circumstances of the various offences are not known. The applicant also submits that the sentence appears to be in the upper range, by reference to some case summaries provided by counsel in her extremely helpful written submissions: R v Mitropoulos [2004] NSWCCA 402; Dyer v R [2011] NSWCCA 185; R v Togher [2012] NSWDC 276 and Kennedy v R [2013] NSWCCA 19.

20. Comparison with other cases, even quite similar cases, and reference to statistics will rarely, without more, justify a finding that a sentence is “manifestly excessive”. What must be considered is whether the sentence is “plainly unjust” or “manifestly wrong”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ). In Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671-672 [15], the High Court emphasised that:

"[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.”

21. Those comments are directly relevant to the circumstances of the present application. Another sentencing Judge may have given more weight to the applicant’s long-standing psychiatric condition and imposed a somewhat shorter sentence. Given the force of the applicant’s subjective case, the sentence was a severe one. However, I am unable to conclude that either the indicative sentences or the aggregate sentence settled upon by Judge Berman were unjust or wrong in the relevant sense.

22. I have considered whether the extent of accumulation (1 year) with the earlier sentence resulted in a manifestly excessive (plainly wrong or unjust) total sentence. However, questions of accumulation and concurrence are matters of discretionary judgment: see, for example, R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66; Sabongi v R [2015] NSWCCA 25. Furthermore, in the present case, the sentencing judge was in the advantageous position of knowing the full facts of the offence for which he sentenced the applicant in July 2015. His Honour was conscious of the fact that the offences all occurred within a relatively short time frame but also noted that the offences involved separate and distinct criminality. There is nothing to suggest that his Honour erred in the exercise of his discretion as to the extent of the accumulation and no submission that his Honour erred in applying principles of totality.

23. A body of material was tendered “on the usual basis”, that is the event that the Court upheld the sole ground of appeal and moved to re-sentence. That material highlighted the severity of the applicant’s psychiatric condition and the difficulties he has experienced in custody. There was (correctly) no submission that the material gave rise to the kind of exceptional circumstances in which matters that occur after the imposition of sentence may be taken into account on the substantive questions raised by the appeal: cf Betts v The Queen [2016] HCA 25 at [14].

24. The application raises important questions concerning the sentencing of an individual offender suffering from a severe psychiatric illness. In the particular circumstances of this applicant, the sentence was a severe one. For those reasons, leave to appeal should be granted. However, giving principled effect to the High Court’s judgment in Lowndes v The Queen, the single ground of appeal must fail. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 31 May 2017