Burns v R

Court of Criminal Appeal (NSW)|2008-10-27|Before: McClellan CJ, Simpson J, McCallum J, Mr P, Clellan CJ, Callum J

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; McCallum J at 3

(1) that an extension of the time within which to apply for leave to appeal be granted. DECISION: (2) that leave to appeal be granted. (3) that the appeal be allowed in part and the sentence imposed by Judge Freeman for the offence of attempted armed robbery varied to a non-parole period of 4½ years commencing on 23 February 2006 and expiring on 22 August 2010 with a balance of term of 22 months expiring on 22 June 2012.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - attempted armed robbery - aggravated car jacking - pleas of guilty - mental illness - SENTENCE - accumulation - ratio between non-parole period and balance of term - refusal by trial judge to find special circumstances

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Evidence Act 1995

R v Close (1993) 65 A Crim R 55 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Henry (1999) 46 NSWLR 436 R v Welsh (1996) 90 A Crim R 364

PARTIES: John Thomas BURNS (Applicant) Regina (Respondent)

COUNSEL: Mr P Lange (Applicant) Mr V Rowling (Respondent)

SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)

10 - IN THE COURT OF CRIMINAL APPEAL 2004/8277

McCLELLAN CJ at CL SIMPSON J McCALLUM J

19 NOVEMBER 2008 JOHN THOMAS BURNS v R Judgment 1 McCLELLAN CJ at CL: I agree with McCallum J. 2 SIMPSON J: I agree with McCallum J. 3 McCALLUM J: On 6 December 2004 the applicant pleaded guilty in the Dubbo Local Court to one charge of attempted armed robbery contrary to s 97(2) of the Crimes Act 1900 and one charge of aggravated carjacking contrary to s 154C(2) of the Act. The maximum penalties for those offences are, respectively, 25 years and 14 years imprisonment. 4 The applicant was committed to the District Court for sentence. On 10 June 2005 he was sentenced as follows: (a) for the aggravated carjacking, to a 3 year fixed term commencing on 23 February 2005 and ending on 22 February 2008; (b) for the armed robbery, to a non-parole period of 4½ years commencing on 23 February 2006 and ending on 22 August 2010 with a balance of term of 3 years ending on 22 August 2013, giving a total term of 7½ years .

The aggregate sentence was accordingly a non-parole period of 5½ years and a total term of 8½ years. 5 The facts of the offences were that the applicant was sitting outside Dubbo Grove Post Office for some time, apparently contemplating the robbery. He had with him a replica pistol, which he said he regarded as a toy. He believed he received a signal to proceed with the robbery from a young schoolgirl who nodded to him as she walked past the post office. 6 The applicant entered the post office and jumped over the counter onto the teller's side. The owner of the post office, who was described by the sentencing Judge as "somewhat phlegmatic and courageous, if not foolhardy" told the applicant, when he saw the replica pistol (which he thought was real), that the applicant would be shooting them for "next to nothing". He said to the applicant "piss off, you are not going to get any money". The applicant, apparently accepting that he would not be given any money, left the post office. He sought to make his escape by seizing car keys from a woman on the street. The woman fought him for the keys but the owner of the post office came to her aid and pulled her away because he held fears for her safety. The applicant escaped in the car, which he later crashed. He was arrested the same day. 7 The applicant was 35 years old when he was sentenced. He is the second of six children. He was born in Dubbo and raised in that region. The sentencing Judge recorded that he came from a loving, supportive family albeit with some suggestion of violence between his parents. 8 The applicant has spent a good deal of his adult life in prison and told Dr Westmore, a psychiatrist, that he had not been out of gaol long enough to be a "drinker". He formed a drug dependency, however, at an early age. Dr Westmore diagnosed him as having a drug-induced psychosis with a differential diagnosis of schizophrenic illness. He has an extensive criminal record. 9 The applicant pleaded guilty at an early opportunity. The sentencing Judge applied a 25% discount to reflect the utilitarian value of the plea. The Judge noted the applicant's extensive and serious record and noted the risk that the applicant has become institutionalised. The Judge noted that the applicant had had many opportunities in the past for rehabilitation and had made no beneficial use of those opportunities. 10 His Honour was invited to make a finding of special circumstances on the basis that the applicant needs residential drug rehabilitation for a prolonged period. He expressly declined to make that finding, apparently on the basis that, whilst he accepted the need for rehabilitation, he did not accept that there was a real prospect of it occurring. 11 The Judge formed the view that the sentences should not be completely concurrent but accepted that there should be considerable overlap between them, having regard to the principle of totality. The two sentences were accumulated by 12 months. The commencement date of the first sentence marked the expiration of an earlier sentence in respect of which parole had been revoked when the present offences were committed.

Mental illness 12 The second ground of appeal is that the sentencing Judge erred by failing to give weight to the applicant's mental illness. It is convenient to consider this ground first. 13 The sentencing judge said: "He did have some mental disturbance at times, not nearly amounting to a defence, but that was, in any event, apparently induced or certainly aggravated by his ingestion of a prohibited substance". 14 Mr Lange, who appeared for the applicant, submitted that the complete absence of any discussion concerning the impact of the applicant's mental condition on his culpability indicates that his Honour did not attach "sufficient weight" to this consideration. 15 The Crown acknowledged that the Judge's remarks as to the mental health issue were slight, but submitted that it was not established that the offence was caused by the applicant's mental illness. 16 The evidence before the sentencing Judge as to the extent to which the applicant's mental illness caused the commission of the offence was unclear. That causal relationship must be established before the Court can conclude that an offender's moral culpability is lesser by reason of mental illness. The applicant's assertion that he thought the young school girl was giving him a signal to rob the post office is some evidence of such a causal relationship but the applicant did not give evidence at the hearing to confirm that statement. It came from the history given to Dr Westmore. 17 Dr Westmore's report was admissible to prove the facts related to him by the offender (s 60 of the Evidence Act 1995; R v Welsh (1996) 90 A Crim R 364), but the sentencing Judge was not obliged to place any great weight on evidence in that form. Further, Dr Westmore noted in his report that the applicant had also said that on the day of the incident "I was on speed, I started spinning out, hearing voices." He had also taken four Aropax tablets on that day. Accordingly, the extent to which the offences were caused or contributed to by drugs rather than mental illness was unclear. 18 In any event, the existence of a causal relationship between a mental illness and the commission of an offence does not automatically produce the result that the offender will receive a lesser sentence. 19 The existence of the mental illness was also a factor which may have moderated the consideration of general deterrence, as was the prospect that a custodial sentence may weigh more heavily on a mentally ill person: R v Hemsley [2004] NSWCCA 228. However, a counter-veiling consideration is the level of danger the offender presents to the community. The sentencing Judge plainly had regard to that factor, as expressed in his finding that the applicant did not have good prospects of rehabilitation. 20 The weighing of all those considerations was a task for the sentencing Judge in the exercise of his discretion. In my view, no error is disclosed. Ratio between the non-parole period and the balance of term 21 The first ground of appeal is: "The balance of the term imposed by the sentencing Judge improperly exceeded one-third of the non-parole period, in circumstances where the Court expressly declined to find special circumstances" 22 Section 44 of the Crimes (Sentencing Procedure) Act 1999 relevantly provides: "44 Court to set non-parole period (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." 23 The sentencing Judge expressly declined to decide that there were special circumstances for the balance of term exceeding the statutory proportion of the non-parole period. His Honour said: "I do not propose to find special circumstances in this case. Whilst he clearly has a need for rehabilitation I see no basis upon which I can legitimately vary the proportions of the sentence to be imposed in order to accommodate real prospects of that occurring. Instead, the simple mathematics of the situation will dictate some adjustment to the sentence to be imposed and those same mathematics provide a sufficient period under supervision".

24 No matter how the sentences are viewed, the balance of term exceeded one-third of the non-parole period. If one considers only the non-parole period set in respect of the sentence for the attempted armed robbery, which was 4½ years, the balance of term should not have exceeded 18 months and the total term should have been 6 years. Taking account of the 12 months accumulation, the aggregate total term would then have been 7 years. If one begins with the aggregate sentence, the non-parole period was 5½ years and the balance of term should not have exceeded 22 months, giving a total term of 7 years and 4 months. 25 Obviously, the outcome is the same if one works backwards from the total term. For the aggregate term of 8½ years, the non-parole period should have been 6 years and 4½ months (instead of 5½ years). Working backwards from the 7½ years imposed for the attempted armed robbery gives 5 years and 7½ months (instead of 4½ years). It follows that the structure of the sentence did not, on any analysis, conform to the requirement of s 44(2). The question is whether the departure was intended. 26 It is clear that the Judge was aware that the sentence had to comply with the statutory ratio unless he made a finding of special circumstances. In that context, it is necessary to consider his Honour's remark that he did not propose to do so, but "instead, the simple mathematics of the situation" would dictate some adjustment to the sentence and that the "same mathematics" provided a sufficient period under supervision. It is likely that the mathematics to which his Honour was referring was the impact of partial accumulation. There was no other circumstance or aspect of the sentence that could alter the ratio. 27 On that basis, in my view, the most logical interpretation of the remark is that his Honour thought the sentence he was imposing in respect of the attempted armed robbery conformed to the requirement of the statute, but that the application of that ratio to the aggregate sentence dictated a longer balance of term. That follows from the "simple mathematics" that one third of 5½ years is more than one third of 4½ years (the difference being 4 months). 28 The Crown submitted that it is possible his Honour had in mind the fact that the sentence was accumulated on a previous sentence for which parole had been revoked. The commencement date for the fixed term for the carjacking coincided with the expiration of that sentence. Accordingly, although the applicant was arrested on 14 September 2004, he did not start serving his sentences for these matters until 23 February 2005, almost 5½ months later. 29 It is well established that the fact that a sentence is to be accumulated on an existing sentence can amount to a special circumstance warranting a departure from the ratio otherwise required by the statute: see R v Close (1993) 65 A Crim R 55 at 60 per Hunt CJ at CL. That finding would have been open in this case but his Honour did not make it, nor did he record that factor as a reason for any decision: cf s 44(2). 30 The Crown also relied on the Judge's remarks at the conclusion of the sentence hearing where his Honour said: "The intention is that he serve five and a half out of eight and a half. I think those figures work out to that don't they?" 31 Unfortunately, given that those periods in fact represent a departure from the required proportion between the non-parole period and the balance of term, that remark is entirely equivocal as to what his Honour intended. 32 In my view the appropriate starting point is the fact that the Judge expressly declined to make a decision that there were special circumstances for increasing the period under supervision. The obligation to record reasons for such a decision underscores its importance as a premise to the imposition of a longer period of supervision. His Honour was plainly aware of the terms of s 44(2). In the absence of a decision that there were special circumstances, the most likely explanation for the departure from the requirement of that section is that his Honour simply miscalculated the starting point as being 4½ out of 7½ where it should have been 4½ out of 6. 33 It is possible, conversely, that the miscalculation went the other way so that it is the non-parole period, and not the balance of term, that is wrong. However, it is difficult to reconcile that analysis with his Honour's earlier reference to the "simple mathematics" producing an increased period of supervision. If the starting point was the intended total sentence of 8½ years, those remarks make no sense. I am satisfied that the sentence entailed an error of calculation and that the error lay in overstating the balance of term.

34 That is a purely mathematical error, the recognition of which discloses that some other sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912. In my view, the Court should interfere to correct the error by adjusting the balance of term by reference to the aggregate non-parole period of 5½ years referred to in his Honour's concluding remarks, to give a total term of 7 years and 4 months instead of 8½ years. Manifestly excessive sentence 35 The third ground of appeal is that the sentence was manifestly excessive. That ground was based on the starting point of a total sentence of 7½ years imprisonment for the attempted armed robbery. However if, as I have found, the sentencing Judge miscalculated the balance of term for that sentence, that is not the starting point. 36 In any event, the submissions on this ground relied heavily on a comparison between the sentence imposed on the applicant and the guideline judgment in R v Henry (1999) 46 NSWLR 436. Mr Lange, who appeared for the applicant, acknowledged that Henry could not be invoked as a mantra in every case but submitted that it nonetheless provides assistance. In my view, the circumstances of this applicant were quite different from those on which the guideline judgment is based. As acknowledged in the applicant's submissions, the applicant was not a young person and he had a lengthy criminal history of serious offences.

37 In my view, the sentence imposed was harsh but within the range of the sentencing Judge's discretion, particularly when the balance of term is adjusted to correct the apparent mathematical error.

Orders 38 The applicant's application for leave to appeal was out of time. During the hearing, the Court indicated that there would be no issue as to granting an extension of time. 39 Since the imposition of the sentences under appeal, the applicant has been sentenced in the District Court for an offence of maliciously inflicting grievous bodily harm on a fellow prisoner contrary to s 33A of the Crimes Act. On 22 August 2007 he was sentenced for that offence to a non-parole period of 12 months with a balance of term of 12 months. That sentence is to commence on 22 February 2010, 6 months before the expiration of the non-parole period for the present sentences. Since the orders I propose will not interfere with that part of the sentence, it is not necessary to make any consequential order pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999. 40 The orders I propose are:

(1) that an extension of the time within which to apply for leave to appeal be granted.

(3) that the appeal be allowed in part and the sentence imposed by Judge Freeman for the offence of attempted armed robbery varied to a non-parole period of 4½ years commencing on 23 February 2006 and expiring on 22 August 2010 with a balance of term of 22 months expiring on 22 June 2012. **********

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