Egan v Regina

Circumstances of the offence

1. While the facts clearly established the specially aggravated offence, it should be noted that the charge sheet did not distinguish (as it ought to have) between circumstances of aggravation and circumstances of special aggravation. Each of those terms (in its application to s 112) is defined in s 105A of the Crimes Act.
2. In any event, it is clear enough that the "serious indictable offence" relied upon was armed robbery in company contrary to s 97 of the Crimes Act and that the circumstance of special aggravation of the offence under s 112 was intentional wounding.
3. The applicant was sentenced principally on the strength of a Crown case statement tendered at the proceedings on sentence. However, there was a contest as to an important fact included in that statement, namely, whether it was the applicant who carried a sawn-off .22 calibre rifle carried by one of the four offenders. After a separate hearing, the sentencing judge determined that issue in favour of the applicant, concluding that she could not be satisfied beyond reasonable doubt as to who carried the rifle. The detail of her Honour's findings is considered below.
4. Subject to that qualification, the Crown case statement may be summarised as follows. Jacob Huxstep, Blake Wood and Daniel Gravenall lived together in a house in Banora Point. They were all unemployed and regularly consumed prohibited drugs and alcohol. In early 2014 they began to discuss plans to commit home invasion offences targeting suspected drug suppliers. They planned to use weapons including a sawn-off .22 calibre rifle owned by Wood as well as other weapons (there is no suggestion that the applicant was included in that discussion). The plan was to steal drugs and money from drug suppliers who it was thought would be unlikely to report such offences to police.
5. On 17 March 2014 the applicant was at the house of the three men socialising with another man, Daniel Stelfox, and his girlfriend, Tonisha Dujela. The four men questioned Stelfox and Dujela as to whether they knew anyone in the area who was supplying prohibited drugs. Dujela nominated a family friend named Kelly and her partner David. Dujela told the men Kelly and David's address and told them they supplied cannabis in the area and had a large quantity of cash in the order of $20,000 at their house. She agreed to show them where the house was (the Crown case statement records the unlikely fact that she provided that information not knowing the "true intention" of the group).
6. The applicant, Wood and Huxstep got ready to commit the offence, dressing in concealing clothing including face coverings and surgical gloves and arming themselves with the sawn-off rifle together with two aluminium batons. Daniel Gravenall refused to take part in the offence and made an excuse to leave.
7. The address the offenders had been given was in Murwillumbah. On the way to that address, the three offenders collected a fourth person, Jordan Burrows. Wood explained that they needed a fourth person to make themselves look more "formidable". Burrows agreed to assist on the basis that he would receive a share of the proceeds.
8. The offenders were led to the address in Murwillumbah, where Dujela pointed out house number 55 of the relevant street, which she knew to be the residence of Kelly and David. She and her partner then drove away leaving the four offenders in the street. The offenders then mistakenly entered the house at number 57, which was occupied by an elderly couple (aged in their early seventies). The mistake must have been immediately obvious. The four offenders nonetheless proceeded with the robbery.
9. In light of the dispute as to who was carrying the rifle, it is not possible to give a precise account of the applicant's role in the offence. The Crown case statement records that the applicant and Huxstep entered the house first; that the applicant was armed with the rifle; that Huxstep was armed with one of the two batons and that one of them yelled "get on the fucking floor". The factual contest raised by the applicant at the proceedings on sentence entailed disputing that he was carrying the rifle but accepting that he was armed with a baton. Unsurprisingly, neither of the victims was able to give clear evidence as to which of the four men did what. The Crown's contention that it was the applicant who carried the rifle was based on the evidence of Jordan Burrows, the one member of the group as to whom it was common ground that he was unarmed. The judge did not find his evidence to be implausible but noted the uncertain terms in which he had expressed himself; he said only that he "believed" it was the applicant who carried the rifle. Her Honour recorded that the applicant was "a thoroughly unimpressive witness" but concluded that the Crown had not discharged its onus of proof to establish beyond reasonable doubt that he carried the rifle. In saying so, her Honour recorded, however, that the applicant was "not the docile and gentle creature that he claimed to be during the course of the offence".
10. The judge's summary of the relevant facts, which is not challenged on appeal, faithfully summarised the substance of the Crown case statement as qualified by her Honour's determination of the contested fact. The circumstances of the offence were recorded in the sentencing judgment as follows: Despite the fact that it was immediately apparent upon entering that they had the wrong house, they subjected this elderly couple to a long period of severe physical and emotional trauma while repeated demands were made for money and drugs at gun point and the house was searched and ransacked. The elderly male occupant suffered some very serious injuries at their hands. The co-offender Huxstep admitted that he had struck the first blow hitting the old man to the head with a baton. Both complainants were threatened with the firearm which was pointed directly at their faces though it remains unclear who had the firearm. These offenders went through the rooms of the house at length, ransacking and causing damage. Items of personal property of great sentimental value were taken but later dumped in order to avoid detection. The property was estimated to be valued at $7,000 which was a very significant amount for the old couple. It was not recovered. They did receive a couple of thousand dollars in insurance but that fact does not of course assist these offenders. At various times during this home invasion, [the male victim] was kicked in the ribs and repeatedly punched, despite these offenders being told by [the female victim] that he had just had open heart surgery. The injuries he received included bruises, a 12 centimetre head wound to the full thickness of his scalp that required nine stitches and will result in a lifelong visible scar, two fractured ribs and swelling to his hand and his knee. [The female victim] was slapped across the face. As they left the house, the offender holding the gun told [the victims] that they knew where they lived, they would be watching and threatened to blow their brains out if they called the police. Unsurprisingly the neighbours who were the intended targets fled the area within days of this offence occurring.

Circumstances of the offender

1. The applicant was aged 23 years at the time of the offence. He stood to be sentenced effectively as a person with no prior criminal history (he had one drink driving conviction which the judge appropriately considered irrelevant for the purpose of the sentence proceedings).
2. The principal evidence before the Court at the proceedings on sentence regarding the circumstances of the applicant was the report of the psychiatrist, Dr Allnutt. The applicant gave evidence confirming the truth of the information he gave Dr Allnutt. The Crown did not object to the admission of the report but noted that her Honour would need to consider the weight of that evidence having regard to the findings she had already made at the separate hearing.
3. At the time Dr Allnutt saw the applicant, the applicant had been in custody for five months. Dr Allnutt recorded a history of depression. At the age of 19, the applicant had consulted a psychologist at a point when he was struggling and was in a "dark hole". He had been cutting himself for a period of about a year following the breakdown of the relationship with his girlfriend and "a lifelong tendency to feel as though he didn't fit in". He said that he had been emotionally bullied in the past and was depressed. The psychologist gave him ways to help himself feel better but did not believe he was suffering from depression and did not suggest prescription medication at that stage.
4. From the age of about 16, the applicant got into a pattern of binge drinking. He later began to use prohibited drugs including methamphetamines, cocaine, cannabis and MDMA. He had tried to stop using prohibited substances six months prior to his offending but had fallen back into drug use because "he felt depressed and hated himself".
5. In the period leading up to the offence, the applicant was depressed. He was undergoing significant financial difficulties owing to his increasing drug use. He estimated that he owed debts in the order of $40,000 and faced the prospect of having his car repossessed. He told Dr Allnutt that, when he arrived at Blake Wood's house that night, they asked him to come along to steal cannabis from someone and that he agreed because he thought it would solve his situation. He had been partying the night before and was coming down from the effect of methamphetamines.
6. Dr Allnutt recorded his opinion in the following terms: Re Psychiatric Illness Your client manifests constellation of symptoms consistent with resolving depressive episode likely secondary to the prescription of an antidepressant medication. In my view he has an underlying persisting depressive disorder (dysthymia according to DSM-IV). He continued to manifest social anxiety likely secondary to an underlying social phobia. He did not manifest significant medical problems but I did not formally physically examined [sic]. He gave a history of a substance use disorder (moderate to severe) currently in remission. Incarceration, separation from family, and charges acted as the most significant stresses for him. His functioning was within normal limits when I saw him. Re Mental state at the Material Time of the Offending Your client provided a history of a genetic predisposition to behavioural problems. His parents separated when he was younger and he had limited contact with his father with a conflicted relationship with his stepfather. Due to attention deficit hyperactivity disorder, social anxiety and being a victim of bullying, he left school early. There was no evidence of conduct disorder or juvenile delinquency in childhood. Subsequently pursued employment in various areas and has been able to engage in age-appropriate relationships. He would not be regarded as having an antisocial or other personality disorder. Given his early developmental experiences, and likely due to a temperamental vulnerability he manifested depression from a young age with consultations with mental health professionals commencing at about age 19. Likely as a consequence of his developmental environment and later aggravated by mood disturbance he went on to develop a substance use disorder characterised by the use of ecstasy, cannabis, cocaine, methamphetamines, and steroids. His use of substances would you be motivated [sic] by a desire to gain acceptance by peers, and to self-medicate his anxiety depressive symptoms. He gives a history of ongoing depressive symptoms being active at the material time of the alleged offending as well as ongoing social anxiety consistent with the social phobia. It was also evidence of some paranoid thinking likely secondary to methamphetamine use. On the day of the alleged offending he describes withdrawing from methamphetamine. This would have had the effect of aggravating the subjective experience of depression. He was suffering this mental state at the material time of the alleged offences that the offences occurred [sic] and probably made him more vulnerable to influence. Since the offence he has discontinued the use of illicit or recreational substances although he has continued to use alcohol intermittently. He has attended drug and alcohol counselling. He understands the relationship between his prior substance use disorder and his offending behaviour. He manifests remorse and contrition in relation to his offending behaviour. Prior to coming to jail he had, on his own volition, commenced psychological and psychiatric treatment for his underlying psychiatric condition. At the time that I saw him he was recovering and continuing with treatment. All these factors suggest a positive prognosis.
7. In addition to the report of Dr Allnutt, the applicant relied on a pre-sentence report which was largely positive, so far as it went. The author recorded that the applicant felt "horrible" about his offending. He had read the victim impact statement and said "I know 100% I deserve gaol", adding that he would "never forget the look on the elderly female victim's face, she was absolutely petrified and in panic" as to the attack on her husband. The applicant said "I can't honestly say why I did not stop it". He had expressed his willingness and intention to address his "issues" and appeared genuine in his remorse and willingness to seek treatment. He had inquired about expressing his contrition to the victims and had been referred to the Restorative Justice unit for that purpose.
8. In oral submissions at the proceedings on sentence, counsel for the applicant relied on those two reports, submitting that both authors, who had had an opportunity to interview the offender at some length, had formed the view that he had insight, remorse and empathy.

Sentencing judge's consideration of the psychiatric evidence

1. As already noted, the applicant appeals on a single ground relating to the sentencing judge's treatment of the evidence regarding the applicant's mental health. Before turning to the relevant parts of her Honour's judgment, it is important to consider the way in which that evidence was relied upon at the proceedings on sentence.
2. Counsel addressed the issue of mental health expressly by reference to the principles stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. For convenience, the relevant passage is set out in full below:

• Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].
• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].
• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person, the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].
• It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
• Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

1. Counsel made four submissions concerning the applicant's mental state. First, addressing the first principle set out above, he submitted that there is a relationship in the present case between the applicant's mental condition and the commission of the offence. He submitted that the applicant was suffering from depression at the time of the offence and that, according to Dr Allnutt's report, there was a degree of impaired judgment. He further submitted that the applicant's involvement in drugs appeared to stem from a desire to "self-medicate" which clearly had a causal relationship with the offence.
2. Secondly, addressing the third principle set out above, he submitted that a custodial sentence would weigh more heavily on the applicant because, as recorded by Dr Allnutt, the applicant had experienced panic attacks and social difficulties going back to childhood and that those would be relevant to his experience of a gaol term.
3. Thirdly, addressing the fourth principle stated in De La Rosa (that the state of a person's mental health may "reduce or eliminate the significance of specific deterrence"), counsel submitted "the Court could accept that at this point in time this offender has insight in relation to what has occurred and that, in my submission, is clearly relevant to that issue".
4. Finally, he submitted that there were "special circumstances" (for adjusting the statutory ratio of the balance of term to the non-parole period) being "the first occasion in custody and the depression and social anxiety condition from which this offender suffers".
5. The judge evidently rejected the first two submissions. Her Honour said: "I have considered carefully what Dr Allnutt has said about this offender's mental health and find that this is not a case where his mental condition mitigates the objective seriousness of the offence, nor will make it be any more difficult for him to serve a sentence than it might for any other prisoner".
6. There is no challenge to those findings. The burden of the applicant's ground of appeal is that the judge erroneously confined attention to those matters and so overlooked or excluded from consideration the additional matters to which the applicant's state of mind was relevant. It was submitted that the applicant's mental health was relevant to "an assessment of his prospects of rehabilitation including future dangerousness and the weight to be placed upon criteria related to general and specific deterrence".
7. The applicant relied in that context on the decision of this Court in Benitez v R [2006] NSWCCA 21. The error found in that case was that the sentencing judge had proceeded on the basis that the applicant's depression, if not causative of his offences, was irrelevant to the sentencing process: at [39] per Simpson J (as her Honour then was); Hunt AJA and Rothman J agreeing at [1] and [50]. The judgment on appeal records at [34] that the sentencing judge "explicitly disclaimed any influence on his sentence of the applicant's depression".
8. I do not think that is the approach the sentencing judge took in the present case. Her Honour expressly recorded that she had carefully considered what Dr Allnutt had said about the applicant's mental health. As already noted, those remarks were followed by a specific finding expressed by reference to whether the applicant's mental condition mitigated "the objective seriousness of the offence" but it does not follow that her Honour's consideration of that evidence was confined to that issue.

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