CARNEY v REGINA

Court of Criminal Appeal (NSW)|2008-11-13|Before: Bell JA, Blanch J, Hall J

CITATION: CARNEY v REGINA [2008] NSWCCA 277

JUDGMENT OF: Bell JA at 1; Blanch J at 2; Hall J at 3

DECISION: Leave to appeal granted. Appeal dismissed

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 Firearms Act 1996

Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371 Regina v Anderson [1981] VR 155; (1980) 2 A Crim R 379 Regina v Champion (1992) 64 A Crim R 244 Regina v Engert (1995) 84 A Crim R 67 Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 Regina v Israil [2002] NSWCCA 255 CASES CITED : Regina v Kilmartin (1989) 41 A Crim R 22 Regina v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333 Regina v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 Regina v Mulato [2006] NSWCCA 282 Regina v Pitt [2005] NSWCCA 304 Regina v Scognamiglio (1991) 56 A Crim R 81 The Queen v Verdins [2007] VSCA 102

PARTIES: Todd CARNEY v REGINA

COUNSEL: C: V Lydiard A: A Francis

SOLICITORS: C: S Kavanagh A: S O'Connor

IN THE COURT OF CRIMINAL APPEAL No 2007/5636

BELL JA BLANCH J HALL J

TUESDAY 25 NOVEMBER 2008 TODD WILLIAM CARNEY v REGINA Judgment 1 BELL JA: I agree with Hall J. 2 BLANCH J: I agree with Hall J. 3 HALL J: The applicant, Todd William Carney, seeks leave to appeal pursuant to s.5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the severity of sentences imposed upon him by the District Court of New South Wales on 22 November 2007.

Offences charged 4 The applicant was charged and pleaded guilty to one count of discharging a firearm with intent to prevent lawful apprehension (contrary to the then s.33A(1), Crimes Act 1900), one count of unauthorised use of a firearm (contrary to s.7A(1), Firearms Act 1996) and one count of unauthorised possession of a firearm (contrary to s. 36(1) of the Firearms Act 1996). 5 The three offences, to which the applicant plead guilty, were in the following terms:- Count 1: That on 26 December 2006 at Miller in the State of New South Wales the [applicant] did maliciously discharge a loaded firearm with intent to prevent the lawful apprehension of himself. [then Crimes Act 1900, s.33A - maximum penalty 14 years imprisonment] Count 2: That on 26 December 2006 at Miller in the State of New South Wales he did use a firearm, namely a Winchester Centre Fire calibre Savage Model Sporter repeating rifle without being authorised to do so. [ Firearms Act 1996, s.7A(1) - maximum penalty five years imprisonment] Count 3: That on 26 December 2006 at Miller in the State of New South Wales he did possess a firearm namely a .25 - 20 Winchester Centre Fire calibre Savage Model Sporter repeating rifle which was not registered. [ Firearms Act 1996, s.7A(1) - maximum penalty five years imprisonment]

Sentences imposed 6 The sentences imposed were in the following terms:- Count 1: A non-parole period of three years and six months commencing 26 December 2006 and expiring on 25 June 2010, with a balance of term of two years and six months commencing 26 June 2010 and expiring on 25 December 2012. [This sentence took into account the matter on the Form 1, that being a charge of possessing ammunition contrary to s.65(3) of the Firearms Act 1996.] Count 2: A fixed term of imprisonment of six months commencing 26 December 2006 and expiring on 25 June 2007.

Count 3: A fixed term of imprisonment of six months commencing 26 December 2006 and expiring on 25 June 2007. 7 The applicant was, accordingly, sentenced to an effective non-parole period of three years and six months with a balance of term of two years and six months. The sentences imposed for Counts 2 and 3 were concurrent with one another and fully subsumed in the non-parole period imposed in respect of Count 1.

Grounds of Appeal 8 In the Notice of Application for Leave to Appeal, dated 13 June 2008, the applicant stated that he relied on the following grounds of appeal:-

(1) The sentencing judge erred in finding that objectively this case was close to the worst case.

(2) The sentencing judge erred in finding that the operation of general deterrence was only slightly ameliorated in the circumstances of this case.

(3) The sentence is manifestly excessive in the circumstances of this case.

(4) His Honour's findings in respect of the applicant's mental illness.

Facts 9 The three offences were committed on the same day, that being the 26 December 2006. As acknowledged by the submissions for the applicant, the facts were the subject of agreement with the Crown tendering an agreed statement of facts at the sentencing hearing before the District Court. It is convenient to summarise and reproduce portions of the agreed facts, and I do so below. 10 At about 9.05 pm, on 26 December 2006, a highway patrol vehicle observed the applicant driving his motor vehicle along the M2 Motorway in excess of the speed limit. 11 The police attempted to stop the applicant by activating their warning lights; the applicant, however, continued to speed. When the police activated their sirens, the offender accelerated and a police pursuit ensued. 12 During the pursuit, the applicant turned onto the M7 Motorway, overtaking vehicles and travelling at speeds between 110 kilometres per hour and 165 kilometres per hour. 13 A Police helicopter also commenced pursuit of the applicant. 14 The applicant continued travelling at speed. During his drive, he travelled through two red traffic signals and drove on the incorrect side of the road on three occasions, narrowly missing an oncoming vehicle on one of these occasions. 15 The applicant turned left at the T-Way at Miller before stopping adjacent to a bus shelter. There was a bus containing passengers stopped at the shelter. The two constables in the patrol vehicle drove up towards where the offender had stopped. 16 The applicant took a rifle from the car he had been driving and ran through a vacant area of land next to the T-Way, with the two constables giving chase on foot until realising that the applicant was carrying a firearm. 17 One constable yelled out "stop police, stop police". The two constables took cover behind the police vehicle. (Another police vehicle had also pulled up with a sergeant of police similarly taking cover behind his vehicle.) 18 The applicant turned and aimed the rifle in the direction of the two constables. He fired a number of rounds towards the police with one projectile striking the roof of the police car (above the front passenger's door) and another shattering the rear window. 19 Later, the applicant walked to the opposite side of the paddock about 50 to 60 metres away, commenced pacing and further fired at the police who were crouched behind the patrol vehicles. 20 The police observed the applicant point the firearm in the direction of the police helicopter and saw a muzzle flash from the firearm. 21 During the shooting, the applicant reloaded his firearm. Further, whilst the gunfire exchange took place, passengers were trapped on the bus until the police broke the emergency window on the bus to evacuate the passengers. 22 At around 9.53 pm, following telephone contact between the applicant and his brother and police (the applicant's brother was in the presence of police at the time of taking the call), the applicant dropped his rifle. He was subsequently arrested without further incident.

Remarks on Sentence 23 The facts found by the sentencing judge as to the events producing the offences were those reflected in the agreed statement of facts (Exhibit A). 24 Given that Count 1 was by far the most serious of the three offences, his Honour's sentencing remarks appropriately focussed upon that offence. 25 The sentencing judge stated that he accepted the Crown's submissions as to the objective seriousness of the offence. His Honour accepted that the applicant directed his firearm at the police vehicles and discharged the firearm in circumstances "carrying a real risk the bullet could either have struck a residence or person in the surrounding residential area". His Honour further accepted as relevant to his assessment of the objective gravity of the offence in Count 1 that the applicant fired a number of rounds at police and that he had over 82 unused rounds of ammunition when arrested. The considerations to which he referred led the sentencing judge to making the finding that the objective seriousness of the offence was not far removed from a case in the worst category.

26 As to the subjective circumstances of the applicant, his Honour noted that he had no criminal history and was otherwise of good character. Additionally, as a mitigating factor, his Honour determined that the applicant had pleaded guilty at what should be taken to be the earliest opportunity, leading him to apply a 25% discount to the sentence that would otherwise be imposed. 27 An important subjective circumstance of the offender (to which the sentencing judge had regard) was the applicant's "emotional disturbance" at the time of the offence. His Honour considered that there was "ample evidence" suggesting the applicant was suffering schizophrenia at the time of the offence, he having been diagnosed soon after incarceration. In addressing the issue of the applicant's mental health, the sentencing judge had regard to the opinion of Professor David Mace Greenberg in his report dated 2 October 2007 that the applicant's paranoia, his disinhibition from the alcohol consumed that day and his depressed mood may have contributed to his poor judgment at the time of the offences. 28 The sentencing judge found that the applicant's likelihood of re-offending was remote and that special circumstances existed on the basis of the applicant's prior good character and prospects of rehabilitation. 29 In determining the sentence to be imposed, in view of the applicant's mental illness, the sentencing judge considered that the principle of general deterrence was "marginally" less important than otherwise might be the case. His Honour referred to the dicta in the well-known decision in Regina v Israil [2002] NSWCCA 255, referring to a mentally disordered person's diminished appreciation of the wrongfulness of his or her actions as a special consideration upon sentencing. 30 However, his Honour stated that in sentencing the applicant, he "was not prepared to abandon the principles of general deterrence by any stretch of the imagination". He emphasised there was a "need to protect the public from other citizens like-minded to offend" and that, as submitted by the Crown before him, the "element of public safety" (that is, jeopardising the safety of the residents and the police) was an aggravating feature. 31 Absent the applicant's emotional instability, the sentencing judge stated that he would have adopted a starting sentence of 10 years imprisonment. Instead, his Honour considered a starting head sentence of 8 years imprisonment to be appropriate, with this term then reduced by the twenty five percent discount for the early plea to six years imprisonment. As earlier noted, a non-parole period of three years and six months was imposed.

(1) Ground 1: The sentencing judge erred in finding that objectively this case was close to the worst case

32 Ms A Francis of counsel who appeared on behalf of the applicant, submitted that the sentencing judge had erred in finding that the offence in question was close to falling within the worst category of case. 33 Reliance was placed upon the fact that the applicant had discharged the firearm with an intent to prevent his lawful apprehension rather than with an intent to do grievous bodily harm (either of these intentions being sufficient to form the mental element for an offence contrary to s. 33A of the Crimes Act then in force). Ms Francis observed that it was not part of the Crown case that the applicant had intended to commit grievous bodily harm or any lesser kind of injury. The submissions noted that the sentencing judge had not been taken to the terms of (the then) s. 33A, Crimes Act. 34 Whilst it was noted that the sentencing judge had accepted the evidence of applicant's mental illness, Ms Francis contended that his Honour's starting sentence of eight years was productive of latent error. 35 The Crown, relying upon the observations of Spigelman CJ in Regina v Mulato [2006] NSWCCA 282 at [37], emphasised that the categorisation of the objective seriousness of an offence is a matter for the evaluation of the sentencing judge. It contended that the sentencing judge appropriately had regard to the gravity of the offence viewed objectively and that the applicant's behaviour in discharging a firearm in the circumstances referred to above could have led to grievous bodily harm or even death. In those circumstances, the Crown contended that it was open to his Honour to find that "this was close to a worse case" and that a starting point of eight years was appropriate. 36 I am of the opinion that the sentencing judge did correctly evaluate the objective seriousness of the offence in Count 1 as falling within the higher range. The discharge of the firearm in the direction of police located at ground level and in the helicopter made the offence one of the utmost gravity. When regard is had to the maximum penalty for an offence under s.33A(1) to be 14 years, I do not see any error in the evaluation of the objective seriousness of the offence in Count 1.

(2) Ground 2: The sentencing judge erred in finding that the operation of general deterrence was only slightly ameliorated in the circumstances of this case 37 Ms Francis acknowledged that it is for a sentencing judge to assess the extent to which the operation of general deterrence may be moderated in any given case involving a mentally disordered offender. Nonetheless, it was submitted for the applicant that it was "difficult" to appreciate why his Honour, as stated in the sentencing remarks, considered only slight amelioration of the principle of general deterrence was warranted in view of the applicant's mental state. 38 Ms Francis submitted that in the circumstances of the case, the question of general deterrence had little role to play in the sentencing exercise. 39 Reference was made in support to Regina v Anderson [1981] VR 155; (1980) 2 A Crim R 379, Regina v Scognamiglio (1991) 56 A Crim R 81, Regina v Engert (1995) 84 A Crim R 67 and Regina v Pitt [2005] NSWCCA 304 in relation to the proposition that general deterrence is often accorded little weight when sentencing persons suffering from serious mental illness. 40 The Crown, in its submissions, emphasised the gravity of the offence and that deterrence was important in sentencing for crimes of violence on the street and in public places generally. In the present case, the Crown emphasised the actions of the applicant placed the lives of police officers at risk as well as members of the public. 41 Whilst acknowledging the fact that where an offender suffered from a mental illness or disability at the time of an offence and that this may mitigate the culpability of the offender and result in less weight being attached to the factor of general deterrence, the Crown emphasised the need to examine the particular circumstances in each case. 42 It contended in this respect that the applicant in this case at the time of the offence knew what he was doing and was aware of the gravity of his action. The Crown, however, acknowledged the medical evidence which supported the proposition that the applicant's paranoia, inter alia, may have had a contributing role to his poor judgment at the time surrounding the offence in Count 1. It contended that it was clear that the sentencing judge had kept well in mind the relevance and the significance of the applicant's mental state and relevant principles. 43 I am of the opinion that his Honour was in error in stating, in effect, that the operation of general deterrence in this case was to be only marginally reduced. In that respect, whilst acknowledging the principle of general deterrence in cases such as the present, his Honour stated:- "… I recognise that, but again I state that because of the emotional instability of the prisoner at the time of these events, I think the question of general deterrence does assume slightly less importance than might otherwise be the case." (emphases added) 44 I will return later in this judgment to the significance of this aspect of the sentencing judge's approach to the ultimate sentence imposed in respect of Count 1. (3) Ground 3: The sentence is manifestly excessive in the circumstances of this case 45 The applicant contended that the sentence imposed upon him was manifestly excessive in the circumstances of the case. Specifically, it was submitted that having regard to the "unusual circumstances" of the case, a starting sentence of eight years (before discount), where the maximum penalty is 14 years, was manifestly excessive. 46 Ms Francis acknowledged that in sentencing mentally disordered offenders, the principles of specific deterrence and the protection of the public may take on greater significance (thus counterbalancing any reduced emphasis on general deterrence). It was, however, contended for the applicant that the circumstances of this case were not such as to require any greater importance being ascribed to those two factors. In this respect, it was emphasised that the offences were the applicant's first acts of criminality committed in circumstances in which he lacked awareness of his mental illness and that his alcohol and drug abuse were symptoms of such illness. 47 The Crown submitted that, in considering this ground, it was necessary to bear in mind that the overall sentences of six years with a non-parole period of three years and six months took into account a matter on a Form 1, namely, possess ammunition contrary to s.65(3), Firearms Act 1996 and sentences of fixed terms of imprisonment of six months for two other firearm offences under s.7A(1) and s.36(1) of the Act to be served concurrently. 48 Apart from the maximum penalty for an offence under s.33A(1) of 14 years, the maximum penalty for each of the firearm offences is five years. 49 The Crown submitted that the sentence imposed was well within the permissible sentencing range given the objective seriousness of the offences and the need for general deterrence (albeit reduced in this case). It contended that no lesser sentence is warranted in law and that the appeal should be dismissed: s.6(3) of the Criminal Appeal Act 1912. 50 I will return to the question of "manifest excess" below. (4) Ground 4: His Honour's findings in respect of the applicant's mental illness 51 It is evident from the remarks on sentence that the sentencing judge found that the applicant was suffering "in some way" from schizophrenia at the time of the offences and that his "emotional instability [at that time] … had some effect upon these events [giving rise to the offences]". 52 His Honour, as earlier noted, considered that the applicant's paranoia and depressed mood as well as his disinhibition owing to the alcohol consumed may have contributed to his poor judgment at that time. His Honour found that the immediate explanation for the applicant's refusal to pull over when directed by police was his state of intoxication and his possession of an unloaded rifle. Nonetheless, he also found that the applicant's judgment was "clouded" by reason of his paranoia and depression. I find no error in his Honour's approach or finding in respect of the nature or extent of the applicant's mental illness. 53 In order to determine whether the sentences imposed were reasonably proportionate to the applicant's offending, I turn to the principles to be considered in that respect.

Consideration 54 It is well accepted principle that, whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap: Regina v Letteri (per Badgery-Parker J) cited by Gleeson CJ in Engert (supra). 55 The reason for this approach was referred to by Wood CJ at CL in Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [254] in the following terms:- "The reason for this approach lies in the circumstances that the community will readily understand that the offender who suffers from a mental disorder or abnormality is left in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does not justify special consideration upon sentencing. Moreover, such condition is inherent and its presence does not depend upon any element of choice." 56 See also Israil (supra) at [21] per Spigelman CJ. In that case, Spigelman CJ observed that mental illness may not only impact on the sentencing exercise by less weight being given to the issue of general deterrence but additionally, to the extent that mental illness explains the offence, then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties or emotions "… will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law" (at [23]). 57 The Chief Justice also there expressly agreed with the following observations of Malcolm CJ in Regina v Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333 at [48]:- "… mental illness is not only relevant to assessing culpability, in which case it must be shown to have contributed to the offence, but it is also relevant to assessing the level of danger the offender presents and the appropriate way in which the offender is to be rehabilitated. The mental illness should be taken into account in sentencing whether or not it played a part in the commission of the offence, but not with the consequence of the imposition of a sentence which exceeds the seriousness of the offence." 58 Apart from the issue of general deterrence, the effects of mental disorder or abnormality in terms of the ability to control cognitive faculties or emotional restraints or in the exercise of reasonable or ordered judgments are also to be considered in relation to the issue of personal or specific deterrence. This is particularly so where the disability or limited intellectual functioning is such that the offender may not fully appreciate, or understand, the nature of his or her offending, or of the message, which the sentence is expected to convey: Regina v Matthews [2004] NSWCCA 112; (2004) 145 A Crim R 445 per Wood CJ at CL at [23]. See also Regina v Scognamiglio (supra); Anderson (supra) at 160 to 161; (1980) 2 A Crim R 379 at 383 to 384; Regina v Champion (1992) 64 A Crim R 244 and Regina v Kilmartin (1989) 41 A Crim R 22. 59 In Matthews (supra), Wood CJ at CL emphasised at [26] that each case will depend upon the nature and degree of the impairment, the extent of its contribution to the offence, and whether or not the sentence can be seen, in the particular circumstances, of that case to have a deterrent value, either specifically or generally. 60 The Crown referred to the principles as restated by the Victorian Court of Appeal in The Queen v Verdins [2007] VSCA 102 at [32] (Maxwell P, Buchanan and Vincent JJA) in the following terms:- "Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:- 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence, or both. 5. The existence of the condition as at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment." 61 Finally, it is only necessary to add, however, the observation of Howie J in Courtney v Regina [2007] NSWCCA 195; (2007) 172 A Crim R 371 at [83], namely, that, even though mental illness may reduce a person's culpability, that does not necessarily result in a lesser sentence. 62 In the present case, the Crown acknowledged that the applicant suffered from a mental illness but it contended that it was clear that he, at the time of the offences, knew what he was doing and was aware of the gravity of his action. The applicant stated to police, as recorded in the record of interview, that when he heard the police sirens "I was over the limit and what I had possession of" (the loaded rifle). This was consistent with the note made by Professor Greenberg in his report that the applicant had told him that his reason "… for taking off from the Police was that he knew that he had been drinking alcohol and had a loaded rifle in his motor car" (p.5). 63 The Crown also observed that there is no evidence of a risk of adverse effect of imprisonment on the applicant. He had been in custody for approximately 11 months as at the date of sentence and no adverse impact to his mental health had arisen as indicated by Dr Nielssen's statement that, at the time of interview, he had largely recovered from the acute phase of mental illness. 64 The facts established by the evidence in this case that are relevant to the nature and degree of the impairment, the extent of its contribution to the offences, and whether or not the sentences imposed can be seen, in the circumstances of the case, to be reasonably proportionate to the criminality involved and to have a deterrent value (either specifically or generally) include the following:-

(1) The applicant at the time of the offences was suffering from paranoid schizophrenia. That condition had developed over the course of the preceding 12 months and was associated with the use of illicit substances including, from about April 2006, crystal methamphetamine.

(2) The delusional beliefs from which the applicant suffered arose from the illogical interpretation of events rather than as secondary to auditory hallucinations.

(3) Other aspects of the applicant's intellectual function were preserved.

(4) The delusional belief persisted despite the withdrawal of drugs known to induce psychotic illness following his arrest (thereby ruling out a purely drug induced psychosis).

(5) The events associated with the applicant's offending giving rise to the offences in question represented his first episode of psychotic illness and, accordingly, there had been no previous experience of remission from symptoms due to treatment. Additionally, he had not had the benefit of a medical explanation for the symptoms that led him to attend a police station and then at Liverpool Hospital in June 2006.

(6) The medical evidence established that the applicant's paranoid mood state at the time of the alleged offences played a significant role in his poor judgment.

(7) His paranoia, his disinhibition by having consumed alcohol and his depressed mood were identified as possible contributors to the applicant's poor judgment at the time surrounding the offences.

(8) He had an awareness of what he was doing was wrong. 65 The medical evidence supports the conclusion that, although he had such an awareness, the paranoid condition nonetheless played a role by impairing the applicant's capacity for making reasonable judgments and from controlling his behaviour. These last two mentioned matters impact on his level of culpability: Israil (supra) at [23]. 66 As this is a case in which the applicant's intellectual functioning was not completely impaired by the psychotic episode thereby enabling him to have an appreciation of the wrongful nature of his conduct, it cannot be said that personal or specific deterrence was an unimportant issue on sentence. I consider that specific deterrence as a relevant sentencing issue in this case would serve to reinforce on the applicant that, in order to avoid being drawn into re-offending again in the future, a strict adherence to his medication regime is essential. If he does abide by the regime prescribed for him, the evidence indicates that his risk of re-offending will be low. 67 In summary, it is apparent, in my opinion, that the two matters of significance in determining the sentence in this case were, firstly, the objective gravity of the offence in Count 1 and, secondly, the need for the sentence to adequately give effect to the principles of specific deterrence. The latter is plainly important both in the applicant's interest in controlling his life and in the interests of the community. 68 I am of the opinion that the sentence imposed was proportionate to the criminality involved in the offences. Although the sentencing judge appears not to have appropriately moderated the sentence for Count 1 in terms of general deterrence in accordance with established principle, I, nonetheless, consider that that one aspect in the sentencing process, on the particular facts of this case, was at least counter-balanced by the matters to which I have referred. The sentences imposed, accordingly, were, in my opinion a proper exercise of the sentencing discretion and no lesser sentence is warranted in law. 69 Accordingly, the orders I would propose are:-

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