Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Character of offence - Generally.

Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; Gilchrist v R 82/1982, applied.

Judgment Number: [2004] TASSC 99

DIRECTOR OF PUBLIC PROSECUTIONS v RAYMOND MICHAEL HUMPHREY

DIRECTOR OF PUBLIC PROSECUTIONS v RAYMOND MICHAEL HUMPHREY

1 The Director of Public Prosecutions has appealed against a sentence of 3 years' imprisonment, partly suspended, imposed upon the respondent's conviction for the crimes of aggravated armed robbery, causing grievous bodily harm and the offence of motor vehicle stealing.

2 The sole ground of appeal is that the learned sentencing judge:

"Erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case."

3 The complainant was a taxi driver who, in the early hours of 8 June 2003, was approached by the respondent and requested to transport him to Evandale, a small township some distance from the city. There she was directed to drive to a side road where she was asked to stop because the respondent claimed he was going to be sick. The respondent was sitting in the front passenger seat and when the vehicle stopped he suddenly stabbed her in the stomach and told her to get out of the vehicle. After a short struggle, the complainant managed to get out of the taxi and, despite a short pursuit, made her escape. The respondent returned to the vehicle and drove it back to Launceston where it was abandoned. A mobile phone, a coin dispenser and $250 in cash were stolen from it. Some days later the complainant recognised her assailant at the Launceston Mall and notified police. The respondent voluntarily accompanied police to their station but initially denied responsibility. When interviewed later in the day, the respondent admitted his involvement, albeit in a confused series of answers.

4 While any wound to the abdomen caused by a knife is inherently dangerous to life and health, fortunately here it was neither deep nor extensive. The significant harm was psychological. In the words of the learned sentencing judge:

"The physical results of the wound were not as serious as they might have been, but the driver has been psychologically damaged, understandably concerned about driving a cab throughout the night as she had previously done. At the time, she believed that she would be killed. She has lost much of the trust she had in others. She has suffered some financial loss as a consequence."

5 The offence of motor vehicle stealing, dealt with by the court in accordance with the Criminal Code 1924, s385A, is of little import in the determination of this appeal except in the consequence of the abandonment of an injured victim. The respondent pleaded guilty to the crimes of aggravated armed robbery, contrary to the Code, s204(4), and committing an unlawful act intended to cause bodily harm, contrary to s170. The particulars of each count comprised in the indictment respectively provided that the respondent had:

"... at Evandale in Tasmania on or about the 8th of June 2003, caused bodily harm to Jennifer Anne Cross by stabbing her with a knife in order to steal from Jennifer Anne Cross two hundred and fifty dollars, a coin dispenser and a mobile phone.

... At Evandale in Tasmania on or about the 8th of June 2003, with intent to disable and/or cause grievous bodily harm to Jennifer Anne Cross, wounded and/or caused actual bodily harm to the said Jennifer Anne Cross by stabbing her with a knife."

6 There was a significant commonality in the elements of the conduct admitted by the respondent through his plea. The element of physical violence comprised in the Code, s240, absent specific intent, was that which constituted the crime encompassed by s170.

7 The ground of appeal is that of "manifest inadequacy". The principle involved in this appeal is, in the words of counsel that:

"... an offender should be punished for the totality of his or her conduct"

"the respondent received a sentence which whilst sufficient for the purposes of the Code, s170 was inadequate when combined with the crime of aggravated armed robbery contrary to the Code, s240."

8 The statement of principle adds little to a truism unless it means that conduct and consequence ought in every case predominate over subjective circumstances. The error complained of has more import, but here the common characteristics of the crimes, except intent, render the overall sentence more reflective of one act of criminal conduct.

9 The appellant advanced as aggravating matters relevant to sentence:

(1) Planning in the commission of the crime by the pre-positioning of the knife and the selection of the "target" and location. The selection of the "target" was, in all likelihood, opportunistic, although the location indicative of aforethought. The pre-position of the knife is more problematic. Some of the answers given to police by the respondent were confusing and in some instances nonsensical, causing an examining psychiatrist to conclude that they were made by a person in a markedly disordered state. Much of the questioning about the knife concerned the previous history of the respondent at a meat processing plant and his experience with knives generally. An indication of the provenance of the knife can be seen from the following exchanges occurring during interview:

"MS Okay. When you got into the taxi with the knife in your sleeve, when had you thought to put it in your sleeve, when you picked it up or

MS Okay. How much before getting into the taxi was that, how long before that

RH It wouldn't of been long, it was like you know, straight from where I picked it up from

RH Ah, actually I found it like when I picked it up

MS And when you first found it, like the day before

MS Okay, and just going forward a step, whereabouts was it stashed, you said under a rock

MS When you say outside here, not outside the Police Station

MS Okay. The knife from Blue Ribbon, you worked there at all did you

There was other evidence which suggested that at the time of these events the respondent had no fixed abode and was either staying serially with friends or acquaintances, or staying "on the street". In any event, the significance of the pre-position of the knife is as consistent with opportunism, rather than premeditated robbery.

(2) The form of the wielding of the knife had the potential for significant or even fatal injury. Any infliction of a wound to the abdomen or torso has a significant potential for serious harm. Here the answers given by the respondent as to his state of mind, intended purpose and appreciation of consequence are confusing. The respondent was asked about his previous experience with knives through his employment at a meat processing plant. His description of the attack, in general terms, was:

"I said to her, 'Look you know I feel sick, can you pull over?' She pulled over, I opened up the door, pretended to be sick and then I reached out, grabbed the knife and then stabbed her and then I said, 'Get out of the car', and she got out of the car after a little bit of a jolt, and then she got out. As, well, you know well sort of I've never done anything like this, so I turned around and she you know like, she got out of the car, I got out of the car and as I wanted to chase her up the road, but you know, I just knew that I wasn't malicious or, I was just, you know, so I, you know, I just got in the car and went"

and more specific to the issues of conduct and appreciation:

"MS Okay alright, so you said that you wanted to get her somewhere where she wouldn't scratch at you or yell, what did you mean by that, you just wanted to do what

RH I just wanted her out of the car so I could drive back into town

RH With you know, a little bit of cash and then you know

MS Okay, when you said you wanted to stab her somewhere that, so she wouldn't yell or scratch, along those lines, was it your intention to disable her or what

RH No, it was just like you know, she moved around, but I just had control, full control over her, you know, she wasn't hitting me or nothing, she was just thinking you know, I should be getting out of this car, that was it

MS Yeah, did you have full control of the blow you struck with the knife

MS Okay, and did she at all try and defend herself before you struck her

Some of the answers given by the respondent during interview were, in the opinion of the examining psychiatrist:

"... examples of formal thought disorder, a sign that is characteristic of schizophrenia. They are consistent with Mr Humphrey's complaint that when he was first referred to Dr Martin he had difficulties getting his thoughts straight or that he was 'talking out of place'."

As an aggravating matter, this has lesser import than one would ordinarily give to the answers given during an interview.

The pursuit was brief and the respondent desisted. He was more interested in gaining control of the vehicle and its contents.

(5) The impact on the victim was significant and accepted as such by the learned sentencing judge.

The respondent had no previous convictions for crimes or offences involving violence, other than involving those recorded in 1995 of being drunk and disorderly and resisting a police officer. He had one conviction for burglary and stealing imposed in 1994. The convictions were, in the context of this case, of little significance.

10 The respondent, aged 28 and single at the time of sentence, had a reasonable history of employment. In 2000 he had received psychiatric treatment and was diagnosed as suffering from schizophrenia. In 2002 he received further treatment for his mental condition in Queensland. He returned to Tasmania in 2003. The report of the examining psychiatrist stated the history provided by the respondent included:

"He said that when he came back he was unwell, paranoid, believed that people were chasing him, and was subject to auditory hallucinations. He also told me that he was 'talking out of place'. When I sought clarification, he said that he had been speaking illogically, and that this had perplexed others. He continued to use the anti-psychotic medication prescribed in Queensland. He also continued to use cannabis (but not amphetamine).

Mr Humphrey said that he had not been welcome at the family home. He had then stayed with some friends in Gravelly Beach, but after a while he was asked to leave and had been sleeping on the streets. He told me that he was unable to obtain accommodation at a shelter."

11 It would appear that during that time the respondent made unsuccessful attempts to see his previous treating psychiatrist. In the opinion of the examining psychiatrist:

"Raymond Humphrey suffers from Schizophrenia. This likely had an onset about 4 years ago and has been characterised by thought disorder, paranoid ideation, ideas of reference and auditory hallucinations. There is no family history of Schizophrenia. He developed Schizophrenia at a typical age. The appearance of Schizophrenia may have been hastened by use of cannabis and amphetamine.

He received treatment from a Launceston psychiatrist but it is likely that these treatment arrangements fell through when he moved interstate. He received some treatment in Queensland, but was administered oral medication only, and a low dosage at that. Thus, there is every likelihood that when he returned to Tasmania he remained actively psychotic, ie experiencing an exacerbation of illness that had occurred because his treatment arrangements had substantially fallen through.

Although there was nothing inherently odd or disorganised in relation to his conduct towards the taxi driver or the later alleged burglaries, that he was psychotic is clear from the interviews with police. One can only speculate upon what mental processes were operating when, in the first interview, Mr Humphrey was substantially unresponsive. In the second interview there was a remarkable change in manner. It may be that his conduct was being influenced by hallucinatory voices. While that is speculative, there is no doubt that he was thought disordered. Further, on being moved to Risdon, he has received treatment for Schizophrenia with the result that his mental state is now unremarkable."

12 While the psychiatrist did not conclude that the respondent was either unfit to stand trial or come under the provisions of the Criminal Code, s16, he had little doubt but that the respondent was "subject to psychotic symptoms", and that at the time of the robbery "would have been significantly ill". The conclusion of the examining psychiatrist was that:

"While I do not believe that your client has an insanity defence available to him, I believe that his mental illness has probably contributed to his offending in a non-specific way."

13 It was common ground that on being taken into custody the respondent had been admitted to the prison hospital and placed on a regime of medication, and his condition settled. The conclusion of the examining psychiatrist was that:

"... if his mental illness can be more reliably managed, the risk of future offending is likely to be diminished."

14 The learned sentencing judge accepted both the serious nature of the crime and the subjective characteristics of the offender. He paid regard to the nature of the crime in the imposition of a three year sentence, the last 12 months of such sentence being suspended on condition of acceptance of supervision and compliance with directions to undertake medical treatment. He fixed a 16 months' non-parole period which would enable the Parole Board to evaluate prognosis. The orders were within the appropriate parameters.

15 Counsel for the appellant contended that a higher "head sentence" was required even though it could be ameliorated by a concurrent proportionate period of suspension. However, comparable sentences referred to by counsel have little application to the outcome of this appeal. The learned sentencing judge was required, consistent with the decision of the High Court in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 to have regard to culpability, the gravity of the crime and subjective characteristics. In assessing culpability he was entitled to take into account the mental state of the offender at the time of its commission. In Gilchrist v R 82/1982, the Court of Criminal Appeal was required to consider the effect of a mental disorder insufficient to attract the application of the Code, s16, to the determination of culpability and the appropriate sentence. In his reasons for judgment, Green CJ stated, at 3 - 4:

"The sentence imposed by the learned trial judge was in the upper bracket of what in this State would usually be regard as an appropriate sentence for this crime. If one were to have regard solely to the nature of the crime itself the sentence could not be said to have been outside the bounds of a proper exercise of the sentencing discretion. However I do not think that the learned trial judge gave adequate weight to the applicant's diminished responsibility for his actions or to the circumstances that the crime was not committed for any rational motive and did not benefit the applicant in any way, that at the time of the commission of the crime the applicant was only 19 years old and that his only prior conviction for an offence involving personal violence was in 1977 when he was convicted of assaulting a police officer."

Everett J, having analysed the relevant principles stated in cases such as R v Anderson [1981] VicRp 17; [1981] VR 155; R v Mooney (unreported Court of Criminal Appeal Victoria) and Veen v R [1979] HCA 7; (1979) 143 CLR 458 (see Murphy J at 494 - 496), adopted as a proposition that stated by Thomas in his Principles of Sentencing 2nd ed at 25, namely:

"... the demands of general deterrence rarely outweigh those of treatment, where a clear case for treatment can be established in terms of psychiatric need."

16 An appeal to the High Court from the decision in Gilchrist was dismissed. Here the question of determining the "head sentence" required assessment of culpability, not merely the objective nature of the crime. Here the physical violence was an element of two distinct crimes, but remained a single act. The intent required by the Code, s170, was that of producing an outcome and here the mental state of the offender was relevant to the degree of culpability and reflected as such in the "head sentence". The orders of suspension and the non-parole period were adjuncts designed to facilitate future control, protection and treatment.

17 This is a prosecution appeal which required clear demonstration of error in discretion. I am not persuaded that manifest error has been established and in my opinion the appeal ought be dismissed.

DIRECTOR OF PUBLIC PROSECUTIONS v RAYMOND MICHAEL HUMPHREY

18 I agree with the reasons for judgment prepared by Slicer J and the order he proposes. I add that as noted by Professor Warner in her text, Sentencing in Tasmania, 2nd ed, 284, par11.303, during the period 1978 - 2000, the median sentences for single and global sentences for s170 convictions were all under 3 years. At 332, par12.107, Professor Warner also notes that during the period 1990 - 2000, the median sentence for a single count of aggravated armed robbery was 18 months. Bearing in mind the extensive overlap between the conduct of the respondent that resulted in his s170 conviction and his conviction for aggravated armed robbery, and the very significant mitigatory force of his diminished responsibility by reason of mental disorder, the global sentence of 3 years was comfortably within the appropriate range for his crimes. The suspension of 1 year of that sentence did not so reduce its penal force as to render it inadequate. The conditional suspension of portion of the respondent's sentence protects the community by providing a means of monitoring and controlling him following his release from prison; a primary consideration when sentencing an offender is the protection of the community, the Sentencing Act 1997, s3(b).

DIRECTOR OF PUBLIC PROSECUTIONS v RAYMOND MICHAEL HUMPHREY