Turner v Regina
[2006] NSWCCA 166
•24 May 2006
CITATION: Turner v Regina [2006] NSWCCA 166 HEARING DATE(S): 18 May 2006
JUDGMENT DATE:
24 May 2006JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 2; Johnson J at 31 DECISION: (1) Leave to appeal granted; (2) Appeal dismissed. CATCHWORDS: Criminal law - Sentencing - Cumulation - Mental illness - Sentence not manifestly excessive. LEGISLATION CITED: Crimes Act 1900 - s 112(1) PARTIES: Applicant - Robert John Norman Turner
Respondent - ReginaFILE NUMBER(S): CCA 2006/1077 COUNSEL: Applicant - Mr H. Dhanji
Respondent - Mr D. Arnott SCSOLICITORS: Applicant - G.J. Piscioneri & Co
Respondent - New South Wales Director of Public ProsecutionsLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/41/0150 LOWER COURT JUDICIAL OFFICER: Garling DCJ LOWER COURT DATE OF DECISION: 16 February 2006
2006/1077 CCAP
24 May 2006McCLELLAN CJ at CL
HISLOP J
JOHNSON J
1 McCLELLAN CJ at CL: I agree with Hislop J.
:
Introduction
2 On 6 February 2006 the applicant pleaded guilty to a charge that on 7 June 2005 he did break and enter a dwelling house and commit therein a serious indictable offence namely assault occasioning actual bodily harm contrary to the Crimes Act1900 s 112(1). The maximum penalty for the offence is 14 years imprisonment.
3 On 16 February 2006 the applicant was sentenced in the District Court for that offence to a term of imprisonment which consisted of a non parole period of 18 months with a total term of 2 years which was to date from 5 September 2005 with the applicant to be released on parole on 4 March 2007.
4 The victim of the offence was a young woman. She had been a friend of the applicant. She had agreed that the applicant could stay at her home from 4 June 2005 pending a Court hearing on 6 June 2005. The Court hearing was adjourned on 6 June 2005 and the applicant returned to the victim’s home that day. He became intoxicated. The victim asked him to leave. He did so on the following day. Shortly before 10.30pm on 7 June 2005 the applicant returned to the victim’s home. The victim was in the house with a 16 year old female neighbour. They refused to open the door when the applicant knocked. What then happened was described by the sentencing Judge as follows:
The (applicant) was heard to bang on the door and yelled out “Let me in or I’ll kill you”.
(The victim) had a short conversation through the closed door and agreed to place (the applicant’s) personal belongings out at the front door, which she did. (The applicant) then forced open the front door causing the locking device to break from the door jamb and the glass door panel to crack. He then entered the lounge room.
(The victim), by this stage, had contacted the police. (The applicant) knocked the phone from her hands before hitting her to the left side of the face. The young neighbour has run into the bathroom in an attempt to escape but without success. The (applicant) has then grabbed (the victim) thrown her from side to side and he has bitten her on the face around her mouth. She attempted to pull away but he refused to let go. Her nose and her face have bled. She was screaming. A neighbour heard screams, entered the flat and the (applicant) left.
I have heard a tape which was activated at the 000 number after her call and it reveals a very frightening scenario.
She received a small cut to the base of her nose along with a bite mark above her top lip and soreness to the left side of her body. She is, I am told, still in fear of him.
5 The applicant seeks leave to appeal against sentence. The proposed grounds of appeal, which are set out in the applicant’s written submissions and argued on the application were:
(a) The learned sentencing Judge erred in failing to take into account the effect of cumulation in determining the non parole period;
(b) The learned sentencing Judge erred in failing to properly take into account the applicant’s mental illness;
(c) The sentence is manifestly excessive.
Subjective factors
6 The applicant was born on 28 July 1973. His criminal record comprised a large number of driving offences including three PCA’s, custody of a knife in a public place (x2), possessing an offensive weapon, destroying or damaging property (x4), possess stolen property (x2), offensive language, resist or hinder police officer in execution of duty, assault (x2), intimidate witnesses, contravention of an AVO and assault police officers in the execution of their duty.
7 The applicant was on bail and on a bond at the time of the subject offence. He was arrested and taken into custody on 8 June 2005. He has remained in custody since that date, initially serving a 3 month gaol sentence for unrelated offences and, since 5 September 2005, in respect of the subject offence.
8 The applicant did not give evidence at the sentencing hearing. There was tendered on his behalf the report of a psychiatrist, Dr Lucas, dated 11 June 2002. Dr Lucas had examined the applicant in 1999. On that occasion he obtained a history that the applicant had a problem with alcohol and was a regular user of cannabis. He considered the plaintiff was a somewhat unusual man but there were no clear signs of psychosis.
9 Following his examination on 14 May 2002 Dr Lucas wrote:
He has abused amphetamines and developed a severe psychotic illness.
[He was] clearly psychotic, delusional and with elevated mood and pressure of speech.
…
Dr Lean and I agreed that Mr Turner is suffering from a quite severe psychosis. It is not clear whether he is suffering from paranoid schizophrenia or from a bipolar disorder or perhaps schizo-affective disorder. I believe that time, further observation and monitoring of his response to treatment will clarify diagnosis.
…
His history of substance abuse is of considerable concern when contemplating his future – it could precipitate or exacerbate psychotic symptoms or interfere with his treatment or compliance with it.
10 Dr Lucas recorded in his report that since the applicant’s consultation with him his medication had been altered and his mental state had improved remarkably.
11 Also tendered were discharge summaries from the Chisholm Ross Centre, the acute psychiatric unit of Goulburn Base Hospital. The copies of these documents are difficult to read but it seems the applicant was admitted to the centre in April 2004 with a diagnosis of substance abuse disorder. Psychotic illness. He was discharged on 4 April 2004. The summary records “It remains unclear if he has an underlying mental illness and/or personality disorder.”
12 He was again admitted to that centre on 16 May 2004 and discharged on 17 May 2004. The diagnosis was alcohol abuse. He was scheduled after reportedly trashing someone’s flat. A long history of alcohol and illicit drug use was noted. He has been described as bizarre and psychotic at times. The applicant was thought disordered and delusional and was transferred to Canberra Hospital.
13 The applicant was readmitted to the centre on 14 May 2005 intoxicated, aggressive and had injured himself falling onto a glass coffee table. He was reported to be irrational. He was discharged on 17 May 2005.
14 No up to date psychiatric report was tendered. Unsuccessful efforts had been made to obtain such a report for the sentencing hearing. The applicant elected to proceed in the absence of such a report.
15 There was evidence in a statement of the victim that the applicant constantly talked to himself and talked strange, and from a neighbour of the victim that on 4 June 2005 the applicant seemed to be talking in riddles and didn’t make too much sense.
16 Reliance was also placed upon a letter from the applicant’s mother which noted that since the applicant had been in the correctional centre:
The change (for the better) had been nothing short of a miracle.
The applicant’s mother and step father were each prepared to have the applicant live with them.
17 His Honour found the applicant had pleaded guilty at the earliest opportunity and was entitled to a 25% discount on sentence.
Ground One – The learned sentencing Judge erred in failing to take into account the effect of cumulation in determining the non parole period.
18 On 19 September 2005 the applicant was sentenced to 9 months imprisonment with a non parole period of 3 months expiring on 5 September 2005. His Honour had regard to that fact in commencing the sentence for the subject offence on 5 September 2005.
19 It was submitted for the applicant that his Honour should have found the resultant cumulation of the sentence amounted to special circumstances which should have been taken into account by him in adjusting the non parole period on the sentence for the subject offence and that his Honour’s failure to refer to the effect of cumulation suggests it was overlooked by his Honour.
20 I do not agree. His Honour was well aware that the sentence for the subject offence was to commence immediately following the expiration of the previous non parole period. The finding of special circumstances is discretionary. The other offences were totally distinct and separate. The non parole period for the earlier offences had expired when his Honour came to sentence. His Honour considered the question of special circumstances. He held there were none. In my opinion no error has been demonstrated.
- Ground Two – The learned sentencing Judge erred in failing to properly take into account the applicant’s mental illness.
21 His Honour accepted the applicant suffered from a mental illness.
22 The applicant submitted his Honour “…failed to give any proper consideration as to how (the mental illness) was relevant to the instant sentencing exercise”. In particular it was submitted his Honour did not consider whether the illness affected the applicant’s culpability or the weight to be given to general and specific deterrence or whether it may affect him during his incarceration.
23 However the medical evidence of Dr Lucas did not go beyond establishing that the applicant was suffering from a psychosis in 2002 which responded to drug treatment. The later evidence from the Chisholm Centre was suggestive that the condition may have been alcohol induced or exacerbated. There was no up to date psychiatric evidence that established the contribution the mental illness made to the commission of this offence or otherwise permitted of a close analysis of the effect of the psychiatric condition.
24 His Honour’s remarks on sentence were delivered ex tempore. He regarded the offence as a very serious one and one where he was inclined to impose a much higher sentence than that which he ultimately did.
25 However his Honour was persuaded by the address of counsel for the applicant to have significant regard to the applicant’s mental illness. His Honour acknowledged in exchanges with counsel the principle that a mental condition may impact upon general and specific deterrence. He accepted the mental problems may very well effect the applicant’s response to situations such as occurred. He also had regard to the countervailing danger presented to the community by the applicant. His Honour considered those matters and took them into account in reducing the sentence to a much lower level than that which he would otherwise have imposed.
26 The submission that incarceration may have an adverse impact on the applicant by reason of his mental illness was based upon a history give to Dr Lucas of difficulties encountered by the applicant in the Goulburn Correctional Centre some years before. No evidence was presented that the applicant had encountered any similar problems in respect of his imprisonment following the subject offence. No submission in this regard was made at the sentencing hearing. Indeed the inference from the evidence of his mother was to the contrary.
27 In my opinion error has not been demonstrated in respect of this ground of appeal.
Ground Three – The sentence is manifestly excessive.
28 It was submitted that the sentence and in particular the non parole period were manifestly excessive. It was submitted:
That there were significant factors going to the issue of special circumstances in addition to the issue of cumulation. They include the fact that it is the applicant’s first substantial sentence of imprisonment, the applicant’s mental illness and the need for rehabilitation.
29 In my opinion it has not been demonstrated that the sentence is manifestly excessive. The sentence is not such as would lead me to conclude some other, more lenient, sentence is warranted in law and should have been passed.
Orders
30 I propose the following orders:
(2) Appeal dismissed.(1) Leave to appeal granted.
31 JOHNSON J: I agree with Hislop J.
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