CROOK, Darroll Charles v Regina

Court of Criminal Appeal (NSW)|2008-03-10|Before: Giles JA, Adams J, Latham J

Introduction 3 On 12 June 2007, following his pleas of guilty, the applicant was sentenced in the District Court on two charges as follows - (i) on 4 February 2006 at Gilgandra, breaking and entering the premises of Gloria Faye Harvey knowing that she was present and intending to cause her to fear physical harm, contrary to s 112(2) of the Crimes Act 1900 (maximum sentence 20 years, standard non-parole period 5 years); and (ii) on 4 February 2006 at Gilgandra, maliciously damaged the property of Gloria Faye Harvey, contrary to s195(1)(a) of the Crimes Act 1900 (maximum sentence 5 years on indictment, 12 months if dealt with summarily). 4 The applicant was sentenced on the first charge to an overall term of 5 years and 3 months imprisonment with a non-parole period of 3 years commencing on 12 March 2007 and, on the second charge, to a fixed term of 9 months imprisonment commencing on 12 June 2007. It will be seen that these sentences were wholly concurrent. The sentencing judge discounted the sentences by 25% for the early pleas. 6 The appellant seeks to appeal from the severity of the sentence on the first charge and has identified a number of grounds. Since I have concluded that the sentence was manifestly excessive, I have not considered the other grounds of appeal.

The facts 7 These were not in dispute. The following is drawn from his Honour's judgment. At 3am on 4 February 2006, Ms Harvey was asleep in her house when she woke to the sound of banging on the front gate. She was alone. She saw the applicant, her son, coming towards the locked front glass door. She told him several times to go away and come back in the morning but he went to an open window, ripped the gauze from it and entered the house. Ms Harvey described him as behaving like a madman; his appearance was disorganised and his hair was a mess. She could not smell any alcohol and believed that he was under the influence of drugs. The appellant was abusive, walked over to her whilst she was still sitting in bed and struck her with his fist across her nose and forehead and then on her upper arm. He screamed out, "I'm going down and you're coming with me. I'm going to the kitchen to get the knife, I'll show ya, I'll show ya." He continued to yell at his mother and made his way up the hallway. Thinking that he was on his way to get a knife, Ms Harvey left the house through the window through which the offender entered and made her way on foot to Gilgandra Police station where she summoned assistance. Police went to the house and negotiated with the applicant who was still inside. After something over an hour, he surrendered himself to police. 8 The applicant was placed in the back of the police caged vehicle. There, he volunteered that he was in possession of some marijuana seeds, which he handed over. He then attempted self harm by ingesting his mother's medication and was taken to Bloomfield Hospital where he was detained under the Mental Health Act. 9 When Ms Harvey returned home she found that the gauze on all the windows had been cut and their aluminium frames twisted, a window was smashed, some curtains and the doona on her bed had been slashed, a fan and portable air-conditioner damaged and a fibro wall cracked. Repairs and replacements cost slightly less than $850.

Subjective features 10 The applicant was 40 years old at sentence. He was born in Dubbo with what was described in evidence as "a difficult developmental background". He started using marijuana and alcohol at the age of twelve, adding amphetamines at 21. The most significant subjective feature of the applicant's case is his psychiatric condition. He was examined in June 2006 by Dr Stephen Allnutt, a forensic psychiatrist. It appears that the applicant had been first admitted to a psychiatric hospital in 2001 for depression and, since then some three admissions (the last on the night of the offence). These admissions appeared to relate to his depression, associated with suicidal attempts. In 2004 he was admitted following threats to an ambulance officer with a knife, believing that a local publican had been spreading rumours about him sleeping with another man's wife. A diagnosis of alcoholism was made. When he was admitted to Bloomfield house following his arrest, he was diagnosed as having an Adjustment Disorder with a dependence of mood and conduct and Polysubstance Abuse and Dependence. He had been prescribed Zoloft in 2001 for depression but stopped taking it in January 2006 for no good reason. On the morning of the offence, he told Dr Allnut, he did not feel well though he could not recall what he was thinking. He had been hurt by statements made by his mother that she did not love him and wanted to have nothing to do with him and what he believed to be rumours she had spread about him and his wife which were not true. He started to drink alcohol and smoked some marijuana. He did not remember the offence. His recollection was that he had called the police because he was distressed and suicidal and wanted to go to hospital. 11 Dr Allnutt referred to the coincidence that the applicant's first admission to hospital was triggered by his belief that rumours about his marriage were being spread and the rumours he believed that his mother was spreading triggered, it appeared, his attack on his mother and went on to state - Re: Mental state at the…time..[of] the alleged offending [The applicant's] history suggests that during times of intoxication he becomes increasingly aggressive and accusative towards others for spreading malicious rumours about him. This belief is likely derived from a psychotic mental state manifesting with delusional beliefs that others [are] spreading malicious rumours about him and an underlying depression. It is probable that while intoxicated that he experiences psychotic symptoms and, in the context of this, becomes angry [and] aggressive. In my view it is reasonable to conclude that a mental illness contributed to the offending behaviour in both instances."

Dr Allnutt concluded that the applicant was, at the time, of the consultation, "mildy impaired secondary to active depressive symptoms." It should be noted that the applicant was then taking his medication regularly as prescribed. 12 Whilst on bail, the applicant had completed a three month residential rehabilitation programme at Orana Haven and claimed to the Probation and Parole officer preparing the usual report for the sentence proceedings that he had not used drugs since April 2006 and had substantially reduced his drinking. In evidence the applicant verified these assertions on oath and was not sought to be controverted. His mother told the Probation and Parole officer that her son had "settled down", appeared "better" and was more responsible and independent. The officer reported that "information obtained confirms that depression is a significant issue for the offender" but that its significance was a matter for the psychiatrist. 13 The applicant had paid some money to his mother towards the cost of repairing the damage he caused and had expressed what was accepted as genuine remorse for his conduct. 14 The applicant's criminal record comprised, not surprisingly, a number of driving offences involving alcohol. There was but one offence of violence in 1993 for which a fine was imposed. 15 Following the applicant's arrest, he was granted bail, which he breached when found with a knife in a public place (for which he received a s10 bond). On 12 July 2006 he was granted bail once more upon the condition that he remain at the Lyndon Therapeutic Community until discharged. This is a full-time residential rehabilitation centre. The obligation to reside there was a substantial limitation on the applicant's personal liberty for all that, no doubt, he had requested to go there in order to obtain bail. He was at Lyndon House for some six weeks when his bail conditions were varied and he was required to reside at the Orana Haven Drug and Rehabilitation Centre near Brewarrina. He was there from 31 August 2006 until 7 January 2007. Accordingly, although the applicant was not in prison during these periods, he was not at liberty. I would not regard the applicant as truly a voluntary inmate of these centres. Had he not accepted the bail condition, he would have remained in prison.

The reasons for sentence 16 The sentencing judge referred to Dr Allnutt's report, briefly noting the history and that the applicant "had been suffering from psychiatric problems in recent years", the applicant's longstanding substance abuse, his current functioning and his completion of the Orana Haven programme. His Honour then observed - "So where does this leave the court? He is at an age when one would expect a man to overcome any developmental problems. Instead we have someone who is suffering from the serious abuse of alcohol and in the circumstances of this offence he became a danger to his mother. Yes, clearly, he may need help but also the community and, in this case, his own family need protection. Whilst childhood problems and relationship difficulties and periods of depression may have contributed to his substance abuse, that does not excuse or justify his offences. They may only explain it.

His Honour then moved to the relevance of the standard non-parole period referred to in s 54 of the Crimes (Sentencing Procedure) Act 1995, saying that, it is "more relevant to where there has been a trial…and that where there has been a plea of guilty there must still be scope to apply a sentence after fully considering the objective and subjective features". His Honour then added - "So, wherever, I find this offence in the tariff range under the section I must still have a discretion to consider an appropriate sentence. Whilst I have said he may need help, that in itself should not reduce the appropriate penalty based on the objective seriousness of the offence. Rather, it is a matter that can be considered when deciding on any special leniency or special circumstances for the ratio of non-parole [period] to parole. There are competing factors here. His age and the chances he has had to resolve his issues and alcohol problems by that age, especially with the bond in 2002 and these go against any further leniency. However, the nature of the offences as misguided grievances against his mother whilst under the influence of drugs must reduce the need for general deterrence. A break and enter which involves intimidation of the occupant, objectively must be looked at seriously, bearing in mind the overriding subjective features of the mental difficulties of the offender and his voluntary admission to rehabilitation programmes more recently and his relationship with the victim, his mother. I find that I can depart from the minimum non-parole period term stated in the table referred to in s54 [of the Crimes (Sentencing Procedure) Act 1995] and exercise my sentencing discretion according to established principle. I would then consider that a period of actual custody of around three years must be considered. This would bring the matter into the lower end of a medium range and with a head sentence of around seven years before considering the plea of guilty. So, initially, I would be starting with a term of seven years and then I would allow the full discount for the plea of guilty which would reduce that to five years and five months and then I would order a period of non-parole custody of three years which is lower than the standard ratio for non-parole and parole [periods]. However, I am satisfied that the unusual circumstances of the relationship between the offender and the victim enable me to consider the benefit to society of a longer period on parole after I have considered the objective seriousness of the offence through the head sentence I have applied.

17 I have mentioned the periods spent by the applicant in what amounted to compulsory rehabilitation. The sentencing judge stated that he would not regard the time spent in the "rehabilitation centres as equivalent to remand custody". As I read his Honour's reasons, he therefore considered the time spent in the centres as irrelevant.

Discussion 18 With respect to the sentencing judge, it seems to me that, disregarding the utilitarian discount, a head sentence of seven years is manifestly excessive having regard both to the objective and subjective features of this case. The fact is that, despite the applicant's mental and drug and alcohol abuse problems, he had no conviction for inflicting violence since 1993 and he had made significant progress on the road to rehabilitation. There is no suggestion that the applicant had offered violence to his mother before and the offence should, in my view, have been regarded as an aberration. That his problems had continued to his present age was evidence of their deep seated character and not an indication that they were of little significance. The mental illness of the applicant was implicated in the offence and, in my view, should have been regarded as reducing, though certainly not removing, his culpability: it went to the objective seriousness of the crime. That the applicant's underlying depression exacerbated the effects of alcohol and drug abuse did not mean that it should not be considered on the question of objective seriousness. 19 I accept that the applicant's actions on the night in question must have been very frightening to his mother and that the offence was by no means a trivial one. As an elderly woman living alone, she was also vulnerable, and the applicant threatened that he would get and use a knife. Furthermore, the applicant did strike Ms Harvey, although it appears that no injury was done. 20 It is not argued by the Crown that the objective seriousness of the offence was not significantly below the mid-range of objective seriousness. The most important features of the case that lead to this conclusion seem to me to be that the crime was impulsive, that it was not committed for any financial or other gain and that it was committed while the offender was affected by a mental illness although his conduct was also the result of alcohol and drug abuse. Having formed this view, it remains to consider, having regard to the whole of the relevant circumstances, keeping an eye on the indicative character of the standard non-parole period, whether the sentence under appeal is manifestly excessive. The subjective features are strong, especially having regard to the applicant's remorse and demonstration of significant rehabilitation. In addition to the adjustment made necessary by the applicant's period in custody, some allowance must be made in respect of the period of something over four and one half months spent in compulsory residential rehabilitation. 21 As I have said, I would respectfully hold that the head sentence is manifestly excessive. In resentencing the applicant, it is appropriate to have regard to his affidavit that was filed on the appeal. That affidavit shows that the applicant has continued to make substantial progress in his rehabilitation. He also suffers from physical ailments causing significant pain for which he is unable to obtain pain relief medication. 22 In my view, the appropriate starting point, before adjustment for the discount, is five years' imprisonment. Adjustment yields a sentence of three years and nine months. Applying the statutory ratio would result in a non-parole period of almost two years and ten months. In my view the desirability of supervision following release to support the applicant's attempt at rehabilitation is a special circumstance justifying variation of the statutory ratio. In my view the applicant should spend two years under supervision on parole. Consequently, I would impose a non-parole period of one year and nine months and date the commencement of the sentence at 12 March 2007.

Proposed Orders 1. Leave to appeal is granted.

The appellant is sentenced to a non-parole period of one year and nine months commencing 12 March 2007 and ending 11 December 2008 with a balance of term of two years commencing on 12 December 2008 and ending on 11 December 2010. The earliest date upon which the appellant is eligible for release on parole is 12 December 2008. 23 LATHAM J: I agree with Adams J. **********

30/04/2008 - Incorrect CCA number & appearance - Paragraph(s) Coversheet 14/05/2008 - heading - Paragraph(s) caps in name 15/05/2008 - combine paras, "his early pleas" now "the early pleas", punctuation. - Paragraph(s) 3, 4, 15

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CITATION: CROOK, Darroll Charles v Regina [2008] NSWCCA 84 This decision has been amended. Please see the end of the judgment for a list of the amendments.

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