Barber v R

Grounds of Appeal

1. The applicant relied upon only one ground of appeal, namely: 1. The sentencing judge erred in failing to take into account the applicant's mental condition in assessing the moral culpability of his offending or in moderating the weight to be given in general deterrence.

Factual Background

1. The following factual background as to the offences was drawn from the statement of agreed facts incorporated in a bundle of documents tendered by the Crown at the sentencing hearing. They correspond with the remarks on sentence. I will return momentarily to the psychiatric report, tendered by the applicant, of Dr Richard Furst of 16 April 2016 and the applicant's evidence in the sentencing proceedings.
2. The applicant committed a series of offences whilst under the influence of methylamphetamine.

Take and drive conveyance without consent of owner

1. On 10 November 2015, the applicant was given permission to borrow a motor vehicle from the owner, on the proviso that he would return the vehicle the next morning. He did not return the vehicle despite several requests to do so. The car was reported to the police as stolen on 3 December 2015.
2. On 6 December 2015, the applicant drove the vehicle from Wollongong to Wagga Wagga. He was a disqualified driver at the time of the offence, having been disqualified by Port Kembla Local Court for the period 26 August 2014 to 5 March 2022.

Stalk/intimidate with intent to cause fear of physical or mental harm

1. The applicant and the complainant were previously in a domestic relationship which ended two and a half months prior to the offence.
2. The complainant moved to Wagga Wagga.
3. On 7 December 2015, the applicant contacted the complainant in the early hours of the morning (2-2:30am) by text message telling her that he was in Wagga Wagga. After initially stating she would meet him "up the road", because she did not want him to know where she was staying (at a friend's place), the complainant told the accused she would not meet him.
4. At 6:30am on 7 December 2015, the applicant arrived at the front of the premises where the complainant was staying and spoke to the person with whom the complainant was staying. The applicant became angry and started yelling at that person and then left in a stolen vehicle.
5. At 9:40am on the same day, the applicant returned to those premises and yelled at another male. When the person with whom the complainant was staying approached the other male, that person yelled words to the effect, "Come on jump the fence, you and me let's fight, I'll put you six feet under", and the applicant then said, "I'll fucking shoot you with my bow" prior to running to his car.
6. The complainant heard the yelling and recognised the applicant's voice. The applicant knew his conduct was likely to cause the complainant fear, particularly as he had tracked her down to her new residence and was threatening violence to her friend.

Drive manner dangerous & Drive whilst disqualified

1. Police were alerted to the above incident and the threats made by the applicant, and shortly thereafter whilst driving in an unmarked car sighted the applicant at the intersection of Tarcutta and Edward Streets in Wagga Wagga. The police followed him. The applicant was driving with the intention of making further contact with the complainant.
2. The applicant, having observed another police vehicle (a highway patrol car), turned into a car park of a retail hardware store. The police in the unmarked police vehicle activated their lights. The applicant then accelerated rapidly through the car park, nearly colliding with several people and a heavy vehicle. The applicant was then observed to drive towards Forest Hill at speeds in excess of 150kph in an 80kph zone. At one point, the applicant crossed double unbroken lines to overtake two vehicles on a blind corner. The speed and manner of the applicant's driving posed a catastrophic risk to the public (the police discontinued their pursuit in these circumstances and alerted highway patrol).

Enter inclosed lands

1. The applicant turned into premises on Brunskill Avenue, Forest Hill, and concealed the car by dragging some large sheets of metal across the back of the car, hiding it from view. He then ran through the backyard of the house and through the rear fence, which adjoins the Forest Hill Airport caravan park. The applicant did not have permission from the owners or occupiers of the house to enter their property.

Possess prohibited drug

1. A short time afterwards, police investigators conducted an evidentiary search of the vehicle when it was located. Inside the vehicle they found a small amount of methylamphetamine to which the applicant later admitted ownership.

Enter inclosed lands

1. Once in the caravan park, the applicant ran into a cabin and spoke to the occupant telling him that he was running from the police and that he needed help. The occupant gave the applicant a glass of water and the applicant then left the premises. At no stage did the occupier give the applicant permission to enter his cabin.

Aggravated break, enter and steal knowing person's home

1. The applicant then ran to the residence adjoining the main office of the caravan park and entered through the front door where he encountered the resident who lived in the premises with her husband and children. The applicant stated "I need a phone charger, I need a shower". The resident was frozen by fear and pointed to the bathroom. She then collected her three young children and ran into her mother-in-law's bedroom saying, "There's a man in the house".
2. The applicant appeared at the bedroom door wet where one of the women spoke to him, trying to keep him calm. Both were in fear of the applicant and the resident feared also for the safety of the young children.
3. The applicant then stole a high visibility shirt belonging to the resident's partner, which he put on and then said, "I need you to walk me to the bus stop, I will pay you". This was an attempt to disguise his appearance to further evade the police. The resident was told to go outside and make sure the coast was clear. When she did that, she saw the police and informed them that the applicant was inside the premises.

Report of Dr Furst

1. As mentioned, the applicant relied upon the report of Dr Furst. The principal opinions of Dr Furst were set out in the sentencing judgment and will appear below in the summary of that judgment. It may be noted, however, that Dr Furst also reported that the applicant, together with his father, had been the victim of a home invasion at the age of 22 and that he subsequently developed anxiety especially in the night. The psychiatrist also reported that the applicant had reported symptoms of panic and that he felt tense, stressed and generally worried that something bad would happen again, such as a home invasion. The anxiety symptoms reoccurred after his arrest including panic attacks.
2. Dr Furst diagnosed the applicant as having two mental disorders, namely, substance use disorder (amphetamines, cannabis) and post-traumatic stress disorder ("PTSD").
3. Dr Furst opined that the applicant had ingested 0.5 grams of methylamphetamine the midnight before the incidents giving rise to the offences. He observed that the applicant's subsequent actions in evading police were consistent with the applicant being aware of the wrongfulness of his actions and trying to avoid being arrested.

Applicant's evidence

1. The applicant gave evidence in the sentencing proceedings. He said that he came to start using ice when he "started hanging around the wrong crowd". He also stated that he was using ice at the time of the commission of the offences. Further, the applicant gave evidence that taking antidepressant medication helped him deal with his mental illness and anxiety.

Sentencing Judgment

1. The sentencing judge delivered his judgment on 6 May 2016. Having regards to the limited ground of appeal it will not be necessary to traverse through the entirety of that decision.
2. His Honour recited the factual background, the criminal record of the applicant and then addressed the evidence of the applicant, and the report of Dr Furst (the remarks on sentence refer to various opinions of a Dr Pulley but that is clearly a typographical error).
3. His Honour commenced his discussion of the psychiatric report by first referring to those parts of the report which set out the psychiatric history of the applicant. His Honour observed the psychiatrist had identified that the applicant was taking ice at the time of the offence but had stopped using illicit drugs in prison (and was taking anti-depressant medication).
4. The sentencing judge had regard to the diagnosis of Dr Furst. His Honour observed: In Dr Pulley's (sic) opinion, the offender's underlying PTSD and adjustment issues, he was experiencing at the time of the offending, probably contributed to his loss of emotional control and reckless behaviour. Further, his taking of ice, probably also led to his dis-inhibition and reckless/aggressive behaviour. Dr Pulley (sic) recommended that should he receive a custodial sentence, that the offender remain under the care of a mental health nurse and see a psychiatrist working for Justice Health. He also recommended a treatment plan for his follow-up in the community following his release. Dr Pulley (sic) was of the opinion that the offender had accepted his guilt and had expressed motivation to re-engage in the workforce, and stay away from illicit drugs. He had insight into his addiction issues and emotional problems.
5. His Honour then referred to the applicant's antecedents, drug history and appreciation of his wrong doing. He then addressed the respective submissions of the parties.
6. In providing a summary of the applicant's submissions, his Honour referred to a contention that the applicant was drug dependent at the time of the offence and that with rehabilitation he may overcome his drug addiction.
7. His Honour also acknowledged a submission that a lengthy sentence of imprisonment "suspended" would sufficiently reflect the purposes of sentencing and make the applicant "the author of his own redemption". His Honour recognised that the applicant had relied upon the fact that he had spent 5 months in custody "and relevant to his sentencing, was his mental health and drug addiction".
8. In delivering his determination, after discussing the offences, his Honour said: [b]oth general deterrence and specific deterrence are relevant here, notwithstanding the offender's mental health issues. Again, whilst he has shown little remorse, the offender is now taking full responsibility for his offending criminal behaviour.
9. With respect to the letters of support tendered by the applicant, his Honour found: The testimonials bear witness to the fact that the offender's use of ice has greatly contributed to his criminogenic behaviour. They express some confidence in this ability to rehabilitate and to become a productive member of society.
10. The sentencing judge observed that the most serious offence was the third offence of aggravated break, enter and steal pursuant to s 112(2) of the Crimes Act 1900. He also noted, The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years, which must be taken into account as guideposts in the sentencing process. However, the section covers a wide range of conduct for such offences, and the objective seriousness of the offending conduct here, is below the mid-range of objective seriousness of offending pursuant to s 112(2) of that Act. However, it is still serious conduct. The offender acknowledged how scared the occupants of the house were. Further, it was an aggravating feature that the offences were committed whilst the offender was on conditional liberty and in breach of the s 9 Bonds referred to.
11. As to the offence of stalk/intimidate, his Honour said the offence was aggravated by the threatened use of a weapon, namely, the applicant's "bow".
12. The sentencing judge reached the conclusion that "no penalty other than imprisonment is appropriate here", after considering all possible alternatives, pursuant to s 5 of the Sentencing Act.

Ground One - The sentencing Judge erred in failing to take into account the applicant's mental condition in assessing the moral culpability of his offending or in moderating the weight to be given in general deterrence.

1. It is the applicant's submission that the sentencing judge "clearly accepted the evidence of PTSD and its causative impact, however, his Honour was silent of dealing with these issues".
2. According to the applicant, the sentencing judge did not examine the fact the applicant had PTSD to determine its consequences for sentencing the applicant.
3. It was submitted that the sentencing judge errors were of a similar kind to that found in Laspina v R [2016] NSWCCA 181 ("Laspina") by R A Hulme at [41]. His Honour failed to evaluate the significance of the applicant's impairment. The evidence established the applicant's use of methylamphetamine "arose after such time as the post-traumatic stress disorder was brought about by the very serious home invasion". Hence, "some amelioration was warranted on account of the post-traumatic stress disorder" or impairment.
4. It was accepted that, in order for the sentencing judge to find a reduction in moral culpability due to the impairment, it was necessary to show a causal connection between the offending conduct and the impairment or disorder. The sentencing judge had not examined whether there was such a connection.
5. Counsel for the applicant argued that it was an "irresistible inference… that the appropriate conclusion at law is that there's some amelioration of moral culpability on account of the disorder". It was conceded that in light of "the use of methylamphetamine at the time of the offence" that this amelioration would not be significant, but still warranted. A marginal amelioration of the non-parole period of 2 or 3 months would suffice in this respect.

Consideration

1. In this matter the applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed by the sentencing judge.
2. Whilst leave to appeal might ordinarily be granted when an applicant makes out a sufficiently arguable case upon the grounds of the appeal, that the sentence imposed is inappropriate in all the circumstances, leave will rightly be refused where the appeal against sentence is without merit: Bailey v Director of Public Prosecutions (1988) 78 ALR 116; [1988] HCA 19 at 116-117.
3. There is a fundamental hurdle facing the present application for leave. The single ground of the appeal pleads that the sentencing judge "failed to adequately take into account the applicant's mental condition…". So framed, the appeal, in substance, challenges the sentencing judge's reasons upon the basis "insufficient weight" was given to that factor, that is, a mental disorder.
4. When viewed, in that light, the applicant is taken to have accepted that consideration was given to the factor by the sentencing judge but then has to persuade the Court that the sentencing discretion miscarried. Such a challenge can only be successfully brought if error of the kind identified in House v King (1936) 55 CLR 499; [1936] HCA 40 is established: King v R [2015] NSWCCA 99 at [56] per Hoeben CJ at CL (with whom Hidden and Beech-Jones JJ agreed).
5. Even though the applicant made submissions at first instance as to the principles governing when a mental disorder may be taken into account in sentencing (in relation to issues of moral culpability or deterrence), no submission was actually advanced in those proceedings as to the application of those principles to the sentencing exercise being undertaken by the sentencing judge, and therefore, the implications of the applicant's mental disorder for the sentencing process.
6. This is, therefore, not a case akin to Laspina, where the sentencing judge overlooked the need to consider whether there was a causal connection between the behaviour and the psychiatric conditions notwithstanding the issue raised in submissions by senior counsel (per R A Hulme J with whom Hoeben CJ at CL and Rothman J agreed at [41]).
7. It is difficult to conceive how an error of a House v King kind might be established in those circumstances, particularly having regard to the observations of Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at [71]. His Honour observed that for the purposes of sentencing, "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" and that it is erroneous, in principle, to approach the law of sentencing as those "automatic consequences flow from the presence or absence of particular factual circumstances" at [68].
8. To these observations may be added that the sentencing judge did take into account the applicant's mental disorder in relation to general and specific deterrence in a manner, as will be discussed later, which was unexceptional and not affected by error on the material (and submissions) before him. Further, there was little or no attempt by the applicant in the submissions advanced on this appeal to demonstrate how a House v King error might be demonstrated in the aforementioned circumstances.
9. These conclusions are not necessarily fatal to the grant of leave as the applicant might otherwise demonstrate, by this case on this appeal, a sufficient merit basis for the grant of leave.
10. It may be accepted that where the state of a person's mental health contributes to the commission of an offence in a material way, the offender's moral culpability may be reduced: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [77]; Aslan v R [2014] NSWCCA 114 at [35]. 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 (and it has been suggested that it is not necessary, in certain circumstances, for it to be "a" cause of the crime): Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21 at [36] (per Simpson J with whom Hunt AJA and Rothman J agreed).
11. However, no relevant connection was established in this case between the applicant's mental disorder as diagnosed by Dr Furst and the commission of the offences for the following reasons: 1. The highest that the medical opinion reached was that it contributed to the loss of emotional control of the applicant. 2. The offences were committed whilst the applicant was intoxicated with methylamphetamine. It was only after his re-entry into custody that he suffered a relapse of the anxiety issues which were associated with the PTSD. 3. The offences were committed over a number of hours. 4. Dr Furst accepted that the applicant's consumption of methylamphetamine on the evening before contributed to his lack of inhibition and reckless/aggressive behaviour. He did not distinguish between the contribution of that factor and the diagnosis of PTSD in expressing an opinion that the applicant had a loss of emotional control at the time of the commission of the offence, other than to say both may have contributed to that state of mind. 5. There was no evidence that the applicant did not know what he was doing or that he did not fully appreciate the consequences of his actions such as might, for example, diminish the need for general or specific deterrence.
12. In all of the circumstances, leave to appeal should be refused.

Orders

1. The orders which I propose are: 1. Leave to appeal against sentence is refused.
2. R A HULME: I agree with Walton J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2017