ARBILI v R

Court of Criminal Appeal (NSW)|2012-02-10|Before: Basten JA, Hulme J, Schmidt J

The applicant's case below 28It was argued that the offence was not premeditated and that it was low range, because of a lack of planning. It was accepted that aggravating factors were the prior convictions, the offence being committed while the applicant was on conditional liberty; and the vulnerable victim, a young shopkeeper. The mitigating matters were that the offence was not planned; and that the applicant was not fully aware of the consequences of his acts, because of his mental state and the plea. It was argued that special circumstances would be found, because this would be the applicant's first gaol term and because of his mental state, for which he was receiving treatment. 29As to the Henry guideline judgment, it was submitted that the applicant's mental illness affected the objective seriousness of the offence, which was not planned, was of short duration and committed in the context of frustration and drug and alcohol abuse issues, with the result that it was a lower range offence. It was argued that given his time in custody of almost one year, the applicant ought to be released after preparation of a case plan for parole.

Ground 1 - His Honour erred in the manner in which he took into account the applicant's mental illness

30The applicant submitted in written submissions that contrary to his Honour's finding, the evidence established that he was mentally ill at the time of the commission of the offence in October 2009; and that as a result, his moral culpability for his offence was limited, because his illness contributed to the commission of the offence in a material way. In the result his Honour had erred in failing to conclude that the applicant was an inappropriate vehicle for general deterrence; and in failing to reduce the head sentence, by virtue of that mental illness. In oral submissions it was urged that the mental illness should have ameliorated general deterrence as a factor in the sentence. 31In my assessment these submissions should not be accepted. 32The evidence was that on 1 October 2009 the applicant was admitted to St George Hospital, seemingly after he was assaulted. He was released the next day, with no evidence found as to any head injury, he having been found to be alert and oriented. There was then no suggestion of mental illness. The offence occurred on 29 October 2009. At that time the applicant was on bail in respect of the offence he had committed in May, of which he was later convicted. 33The applicant's conduct that day was clearly irrational, but whether that was the result of a mental illness, or the effects of drugs, is not apparent. In the submissions advanced below, it was conceded that the applicant had drug and alcohol issues, there having been evidence of drinking scotch, smoking $20 pot per day, taking one table of morphine a day, as well as panadeine forte for headaches. That was another possible explanation for the applicant's conduct, but that this was the cause was not established on the evidence. 34The records also show that the applicant was agitated after his arrest on 29 October, then only admitting to marihuana use. On 31 October, florid speech and mood swings were noted, with the question of mental health then raised. On 2 November, the applicant was noted as being tearful, agitated, demanding, irrational and emotionally unstable, distressed and fearful. It is on 6 November that the notes are suggestive of mental illness, recording complaints, for example, of the TV giving the applicant messages, albeit it is also noted that the applicant then suggested that this was a symptom of withdrawal. 35The plea was entered on 9 June 2010, after the applicant was assessed to have been fit to plead on 6 May 2010 by Dr Kasinathan. His report noted that he had spoken to Dr Nguy, consultant psychiatrist who advised that: "... upon arrival to jail, Mr Arbili had presented as anxious and fearful and was able to speak English. Within weeks his mental state deteriorated, he would only speak Arabic, admitted to hearing voices and feeling paranoid. Dr Nguy diagnosed Mr Arbili with a psychotic disorder and commenced appropriate treatment." 36There was no report from Dr Nguy in evidence, but Dr Kasinathan noted that the applicant was able to speak English on arrest, when he was anxious and fearful and soon began to suffer symptoms consistent with drug withdrawal. Dr Kasinathan was of the view in 2011 that the applicant was suffering from a mental illness, but neither he nor any other expert expressed the view that the applicant was suffering from such an illness at the time of the offence. 37The onus fell on the applicant to establish that the mental illness existed at that time. His Honour concluded that this onus had not been met. That conclusion was open. The evidence relied on to suggest the existence of mental illness was also consistent with the applicant suffering from the effects of his habitual drug use on arrest and later from withdrawal. 38Even if either mental illness or drug and alcohol abuse was a factor in the commission of the offence, that would not necessarily result in the conclusion that a lesser sentence should have been imposed. As discussed in Henry at [173] - [177]: "173 As a joint judgment of the Court put it in Valentini (1989) 46 ACrimR 23 at 25: "This Court has said on countless occasions that addiction to heroin is not to be considered as a factor for the reduction of what would otherwise be an appropriate sentence for the nature of the offences which have been committed. It serves, however, to provide an explanation for the commission of the offences." This has been reiterated in a number of later cases (eg Stanford NSWCCA 23 November 1993; Atkins NSWCCA 27 May 1998). 174 Drug addiction is one of the circumstances of a particular offence that is relevant to the sentencing exercise. It may, for example, be pertinent to the issue of impulsiveness/planning or to the weight to be given to rehabilitation in a particular case. 175 In Engert (1995) 84 ACrimR 67, Gleeson CJ emphasised the complexity of the sentencing task and the multiplicity of the, sometimes conflicting, objectives it must serve. His Honour concluded: "It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." (68) 176 His Honour went on to say that the existence of a causal relationship between a mental disorder and the commission of an offence does not automatically produce the result that the offender will receive a lesser sentence (at 71). Nor, in my opinion, should the existence of a causal relationship between drug addiction and the commission of an offence. 177 The circumstances in which motive may be a mitigating factor should, in my opinion, be confined to cases in which motive impinges upon the moral culpability of the offender. This can include mental, emotional or medical problems or impulsive conduct. In any event the degree to which motive may be pertinent must depend on the whole of the circumstances. (White NSWCA 23 June 1998 at 24)." 39In Wilmot v Regina [2007] NSWCCA 278, the trial judge did not accept the opinion of an expert that the applicant was suffering a mental illness at the relevant time. Hidden J observed at [26] - [32]: "26 It is unnecessary to revisit the familiar line of authority dealing with the bearing of mental illness upon sentence: see, for example, R v Engert (1995) 84 A Crim R 67. Undoubtedly, a finding that the applicant's mental illness contributed to his criminal behaviour would have been relevant to an assessment of the objective gravity of his offences. However, that is a matter in mitigation as to which the applicant bore the burden of proof, and there needed to be evidence sufficient to establish it. 27 Certainly, there is a bizarre quality to both offences. This can be seen in the somewhat elaborate planning of the malicious wounding of Mr Mostafa and the ferocity of the attack upon him, as well as in the applicant's expression to police of a preference to be shot rather than be imprisoned. As to the planning of the first offence, it may be that that is not inconsistent with its being the product of mental illness. Moreover, one might question the effectiveness of the applicant's disguise when committing that offence in the presence of members of his family. As I have said, it did not prevent his daughter recognising him. 28 Nevertheless, a finding that the applicant's mental illness contributed to the offences would need to have been supported by expert evidence disclosing the basis upon which that finding was available. In his second report Dr Westmore did not elaborate at all upon his assertion of a link between the illness and the applicant's behaviour. His ability to proffer a basis for that opinion must have been hampered by the fact that the applicant declined to provide him with an account of the offences. Nor did the applicant give evidence in the sentence proceedings, and Ms Davenport was unable to take us to any part of his recorded police interview which might have provided a foundation for the doctor's opinion. 29 Ms Davenport referred to a passage in the Justice Health material from which it appears that the applicant told a health professional that he believed that Mr Mostafa was planning to sexually abuse his daughter. This appears in notes made on 12 July 2004, five days after his arrest. Nothing of the kind was suggested elsewhere in the evidence. In particular, he said nothing about it in his recorded police interview and there was no reference to it in Dr Westmore's reports or in his father's evidence. Nor is it referred to in his Honour's remarks and, indeed, it does not appear to have been raised at the sentence proceedings. 30 It is difficult to place any weight on this assertion, or to afford any significance to it. There appears to have been no material before his Honour by which it might be decided whether there was some factual basis for it, whether it was a fabrication or whether it was a delusional belief. Certainly, there was no evidence, expert or otherwise, to establish that it was engendered by mental illness. 31 Ms Davenport emphasised the fact that almost immediately after the applicant's arrest he was found to be suffering from a psychiatric condition, previously undiagnosed and apparently of long standing. She argued that this alone warranted a conclusion that his condition influenced the commission of the offences. 32 I must say that this aspect of the matter has troubled me. However, as I have said, the question of a link between the applicant's mental illness and his offences was a matter for expert evidence. Whilst acknowledging the undoubted expertise of Dr Westmore, his second report was wholly inadequate to establish that link. The bare assertion of a link, without elaboration, was insufficient: cf Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. It was open to his Honour to find that the connection had not been established." 40This approach has been followed in a number of later cases (see for example Mercael v R [2010] NSWCCA 36 and Lewis v R [2011] NSWCCA 206). 41In this case there was no expert evidence that the applicant was suffering from a mental illness at the time of the offence, or as to any causal connection between the offence and the mental illness the applicant was later diagnosed to be suffering from. His Honour carefully considered the evidence, but concluded that it did not establish that mental illness was suffered at the time of the offence. That conclusion was plainly open. The evidence was not all one way, as was submitted for the applicant. 42If his Honour had come to the conclusion that a mental illness was suffered at the relevant time, he would also have had to consider the causal connection between the illness and the offence and whether the result should be the imposition of a lesser sentence, because the applicant's circumstances were such that the need for deterrence to feature in the sentence needed to be modified. 43While such a connection was not established, the mental illness which the applicant was suffering from at the time of sentence, was still a factor to be taken into account in determining sentence. That illness was taken into account by his Honour, who determined as a result that special circumstances existed, warranting a longer than usual non-parole period. In adopting that approach his Honour did not err. 44 Accordingly, this ground of appeal must fail.

Ground 2 - His Honour erred in concluding that there was a notable degree of planning

45The applicant's case below was that there was no premeditation or planning involved in the offence. His Honour rejected that submission, finding that there was a 'notable degree of planning'. That conclusion was open on the agreed facts, which included that on the day before the offence, the applicant went to the shop and sought to exchange a pepper grinder. He threatened the victim's father, when he did not agree to the exchange. It was the following day that the applicant returned to the shop armed with a knife. He entered the shop and swore at the victim, speaking to him about the grinder, only after the other customer in the shop had left. The applicant then looked out into the street, returned to the empty shop and pulled out a knife with a 10cm blade, which he pointed at the victim, while demanding money and threatening to cut him. It was in the ensuing altercation over the till, that the victim was injured. 46The Crown's case was that there had been a limited degree of planning, but his Honour found that the facts revealed a degree of planning involved in the offence which 'could not be described as limited'. That conclusion was clearly open on the evidence. Accordingly, this ground of appeal must also fail.

Ground 5 - His Honour erred in failing to apply a 25% discount for the utilitarian value of the applicant's plea 47It is convenient next to deal with Ground 5. 48The applicant was arrested on 29 October 2009. Justice Health triage notes of 31 October 2009 record "mental health issues & mood swings". A Notification Form of that organisation dated 2 November records, inter alia, "Tearful agitated man", "became demanding and irrational", and "Behaviour escalation angry emotionally unstable and demanding". Although the records available to the Court are by no means complete, there seem thereafter to have been a number of health issues until, on 6 May 2010 Dr Kasinathan reported that although the applicant had a mental illness he was fit to plead. On 9 June 2010 the applicant pleaded guilty and shortly afterwards he was committed for sentence. His Honour took the view that the plea as "relatively early although by no means at the outset". 49Otherwise, his Honour made no reference in his original remarks on sentence to a discount for the applicant's plea. After he had concluded those remarks, Counsel asked him if he had applied such a discount. His Honour responded: - "Yes, I meant to say and I think now I didn't say so, that what I had allowed when I was going through all the features that the plea of guilty would merit a discount of 20%. As I say, I didn't do some arithmetical feature with that, but came to a global decision. Thank you for reminding me ..." 50The amount of the discount was a matter for his Honour's discretion. As discussed in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383, a 25% discount is not automatic. The applicant relied on the conclusions reached in Hawkins v R [2011] NSWCCA 153, to submit that the discretion had miscarried. There a delay in the entry of a plea and a hearing, as the result of an investigation into the applicant's health, a fitness hearing and plea negotiations, was considered to have been fairly attributed to the applicant's mental illness, with the result that the relvant discretion to grant a discount of only 20% had miscarried. 51His Honour took the view that the plea of guilty could not be described as early, although it was a useful and a responsible acceptance of guilt in circumstances where the applicant had no recollection of the crucial events. 52It seems to me, as in Hawkins, in the applicant's circumstances the exercise of the discretion miscarried. In the circumstances the plea was an early one, properly attracting the grant of a 25% discount. While the evidence did not establish the existence of any mental illness at the time of the commission of the offence in October 2009, that the applicant succumbed to such an illness not long afterwards is apparent. He received treatment for that illness and his fitness to plead was investigated. Having been found to be fit in May, he was given prompt advice and soon entered a plea despite ongoing problems with his memory. The plea was entered before committal proceedings in the Local Court. In those circumstances a 25% discount was plainly warranted. 53This ground of appeal must be upheld.

Ground 3 - His Honour erred in his application of Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Ground 4 - The sentence was manifestly excessive 54The applicant directed the same case in respect of these two grounds. In respect of ground 4, he must establish that the sentence was unreasonable or plainly unjust. 55Both parties addressed Henry in their submissions. It was a guideline judgment given in relation to the offence of armed robbery under s 97(1) of the Crimes Act. At [165], Spigelman J observed that in his view, offences in which the following factors are shown to be present, ought to result in four and five years for the full term: "162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case." 56His Honour also observed at [169] - [170]: "169 Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point. 170 In addition to factors which may arise in any case, for example, youth, offender's criminal record, co-operation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include: (i) nature of the weapon; (ii) vulnerability of the victim; (iii) position on a scale of impulsiveness/planning; (iv) intensity of threat, or actual use, of force; (v) number of offenders; (vi) amount taken; (vii) effect on victim(s)." 57The judgment was clearly a relevant consideration in his Honour's determination of the sentence (see Legge v R (2007) NSWCCA 244 at [37]), as was the maximum penalty for the offence. The applicant's case was that the sentence imposed, 5 years after a discount of 20%, at the upper end of the range established in Henry was manifestly excessive; that being the result of his Honour's failure to have regard to the distinguishing features in this case, particularly the early plea and the applicant's mental illness. 58These submissions should not be accepted. 59Mental illness and discount for the early plea are the subject of separate grounds of appeal. Otherwise, the facts in this case were outside the factors discussed in Henry, in a number of relevant ways. The applicant was 31 years of age when he committed the offence, while on bail for another offence of violence. He had a relevant criminal history and by the time of sentencing, the applicant had been convicted of the offence he had committed in March 2009, for which he had been sentenced to 18 months imprisonment, with a non-parole period of 10 months. It was found there was more than limited planning involved in this offence. The applicant not only went to the shop armed with a knife, he threatened and actually wounded the victim, a shopkeeper, while wrestling with him over the cash register. While he was unsuccessful in taking any money, he then also made further threats with the knife, against others who were immediately outside the shop. 60While mental illness was not established to have existed at the time of the offence, that the applicant was mentally ill was taken into account in the sentence imposed. The non-parole period imposed for this offence was only 50% of the term of the sentence. The non-parole period for the earlier offence is to expire on 8 July 2011. The sentence for this offence was backdated to 29 October 2009, with the result that the non-parole period of 2 years, 6 months imposed, totally subsumes the 10 months non-parole period imposed for the earlier offence. 61This result reflected considerable leniency in the circumstances. In reaching his conclusion his Honour observed that he had accepted the approach urged by both parties, which he had accepted with some reluctance. His Honour did not explain why. 62In the circumstances the totality principle required that his Honour give consideration to questions of cumulation and concurrency of the sentence imposed (see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 and R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481.) The two offences in respect of which the applicant received concurrent sentences, each offences of violence, were not the result of one course of conduct, or criminal enterprise. Sentences for two such offences should not be made concurrent, simply because of the similarity of the conduct involved in each offence (see R v Jarrold [2010] NSWCCA 69 at [56]). 63When concurrent sentences are imposed, it is settled that there needs to be an identification and evaluation of relevant factors pertaining to the offences, including their respective nature and seriousness, which leads to the concurrency which is imposed (see Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]). Complete concurrency is usually not warranted where there are separate offences and separate victims. As Simpson J discussed in R v Wilson [2005] NSWCCA 219 at [38]: '...In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s3A of the Sentencing Procedure Act. The first purpose so specified is ensuring adequate punishment for crime; others here relevant include crime prevention by deterrence, denunciation, making an offender accountable, and recognition of the harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims. 64It follows that these grounds of appeal were not made out. This was not a manifestly excessive sentence in the circumstances.

A lesser sentence is not warranted in law 65Despite the conclusion that his Honour erred in relation to the discount given, having in mind the sentence which his Honour imposed, which was made entirely concurrent with the sentence imposed for the March 2009 offence, it is necessary to consider whether any lesser sentence is warranted in law (see s 6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79]). That requires consideration of whether the sentence imposed is outside of the appropriate range for the offence (see R v Baxter [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [16] - [18]). 66Arithmetical calculations based upon the five years total sentence and the 20% discount referred to by his Honour would indicate a starting point of six years and three months. Accepting his Honour's statement that he had not indulged in that degree of precision, it may be inferred that his starting point was of the order of six to six and a half years. The division of the five year term into a non-parole period of two and a half years and an additional term of two and a half years meant that the non-parole period was an unusually low percentage of the total term albeit his Honour saw good reasons for this. As has been said, that non-parole period was made entirely concurrent with the 10 month non-parole imposed upon the applicant for his earlier offence." 67The sentence imposed was, in my view, not only within the appropriate range, but a lenient sentence, having in mind the gravity of this offence; the aggravating and mitigating factors which had to be taken into account; the mental illness from which the applicant now suffers, as reflected in the finding of special circumstances; the 25% discount which ought to have resulted from the early plea; and the proper application of the totality principle. 68In my view of the circumstances, a lesser sentence than that imposed was not warranted in law, with the result that the appeal should not succeed.

69I propose the following orders:

Leave to appeal is granted.
The appeal is dismissed.

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Judgment 1BASTEN JA: The circumstances of this application are set out by Schmidt J and need not be repeated here. Subject to what follows, I agree with her reasons. However, in my view the Court should intervene to reduce by four months the balance of term from two years, six months, to 26 months. 2The majority view is that there was error in failing to accord a 25% discount for the plea of guilty in the circumstances of the case, but that the sentence was nevertheless one warranted by law because it was seen to be lenient. As I understand the reasons, the element of leniency derives from the fact that the sentence was made entirely concurrent with a 10 month sentence imposed in the Local Court for a separate offence. In other respects the sentence was not properly described as lenient. The commencement date was in accordance with the Director's submission to the sentencing judge (judgment, p 11). It is difficult for the respondent now to rely upon the adoption of his submission in resisting correction of error. In fact, he relied upon that aspect of leniency only as a basis for resisting a finding that the sentence was manifestly excessive, a ground on which the applicant fails in any event. 3The difficulty caused by the sentence imposed in the Local Court was that it did not commence until almost a year after the applicant was arrested, and during which period he had been in continuous custody, as it appears. As explained by Schmidt J, his Honour said, somewhat by way of afterthought, having been invited by counsel to indicate whether he had given a discount for the plea: "Yes I meant to say and I think now I didn't say so, that what I had allowed when I was going through all the features that the plea of guilty would merit a discount of 20%. As I say, I didn't do some arithmetical feature with that, but came to a global decision." 4Despite his denial of an "arithmetical" exercise, the majority in this Court state that to accord such a discount must have resulted from acceptance of the appropriate sentence, prior to the discount, as six years, three months. A better understanding may be that, as in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, the appropriate range of four to five years for similar offending included taking into account a plea of guilty, the significance of which is limited by a strong prosecution case: at 162 and [163]-[164] (Spigelman CJ). Thus, the error lay not in the starting point well in excess of the Henry guideline, but in failing to allow a greater discount than would have been incorporated into the Henry guideline. 5Two other concerns arise from the circumstances of the case. The first relates to the difficulty in understanding the factors which drove the applicant to commit the particular offence. Whether or not, as in Wilmot v Regina [2007] NSWCCA 278 at [27] it would be correct to describe the conduct as "bizarre", it certainly bore the hallmark of irrational and disturbed behaviour. It was followed by conditions later identified by Dr Kasinathan as demonstrating paranoid schizophrenia and psychogenic amnesia. The applicant asserted no memory of any kind, relevant to his conduct. The possible explanations might have involved a neurological disability caused, for example, by a blow to the head; a psychiatric illness, or a disturbed state induced by drugs. A neuro-psychologist, Dr Susan Pulman, opined that there was "no history of organic brain injury or neurological disorder which could account for Mr Arbili's global amnesia." Nor did she think the condition was consistent with the sequelae of traumatic brain injury. Dr Kasinathan's psychiatric diagnosis did not extend back to the time of the offence. Although there was evidence that the applicant took drugs, the sentencing judge was not satisfied on the evidence that this accounted for his offending conduct: judgment, p 7.7. 6Accepting that a diagnosis of mental illness at the time of offending does not necessarily lead to a diminution in moral responsibility or the reduced relevance of general and personal deterrence as a basis for sentencing, these factors are commonly engaged. As in Wilmot, there must be a concern that the applicant's mental illness, diagnosed shortly after the offence in question, was present at the time of the offending and had a bearing on his conduct: Wilmot, at [31]-[32] (Hidden J). While it is true that an applicant bears the onus of establishing such mitigating factors on the balance of probabilities, the uncertainty resulting from the evidence in the present case raises a doubt as to whether the Court had been as fully informed as it might have been about the circumstances of the offending. Nevertheless, the deficit is not one which can be remedied by this Court and for that reason the grounds relating to the possible effects of mental illness at the time of the offending must be rejected. 7I would grant leave to appeal and reduce the balance of term by four months. 8RS HULME J: I agree with the orders proposed by Schmidt J and with her Honour's reasons. 9SCHMIDT J: The applicant seeks leave to appeal from a sentence imposed upon him by Moore ADCJ on 11 November 2010. On 9 June 2010, the applicant entered a plea to a charge brought under s 97(1) of the Crimes Act 1900, assault with intent to rob while armed with an offensive weapon. The applicant was sentenced to a term of imprisonment of 5 years to date from 29 October 2009, expiring on 28 October 2014, with a non-parole period of 2 years, 6 months, expiring on 28 April 2012. 10The maximum penalty for the offence was 20 years.

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