Hammond v R

Court of Criminal Appeal (NSW)|2008-06-10|Before: Spigelman CJ, Price J, McCallum J, Callum J

CITATION: Hammond v R [2008] NSWCCA 138

HEARING DATE(S): 10 June 2008 JUDGMENT OF: Spigelman CJ at 1; Price J at 7; McCallum J at 8

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed.

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Markarian v R (2005) 228 CLR 357 R v Engert (1995) 84 A Crim R 67 CASES CITED : R v Hemsley (2004) NSWCCA 228 R v Newell (2004) NSWCCA 183 R v Way (2004) 60 NSWLR 16

PARTIES: Stephen Clyde Hammond (Applicant) Regina (Respondent)

COUNSEL: Mr S Corish (Applicant) Ms D M L Woodburne (Respondent)

S O'Connor (Applicant) SOLICITORS: SC Kavanagh (Respondent)

10 - IN THE COURT OF CRIMINAL APPEAL 2007/2982

SPIGELMAN CJ PRICE J McCALLUM J

10 JUNE 2008 Stephen Clyde HAMMOND v REGINA Judgment 1 Spigelman CJ: I agree with Justice McCallum and add the following brief observations. 2 Not only was there no evidence of a causal relationship between the applicant's psychiatric condition and the offence but there was no submission by counsel appearing in the sentencing proceedings to that effect. As Mr Hunt who appears on this appeal acknowledged, those submissions were directed to the subjective circumstances of the applicant rather than to the objective circumstances. 3 It is understandable in the light of the absence of a submission, and in the absence of evidence directly linking the psychiatric condition and the offence, that his Honour would not make express reference to it. 4 The position taken by counsel for the applicant at the sentence hearing can be justified on the basis that the only evidence directed to this issue is in fact to the contrary of the inference Mr Hunt urged on this court. Ms Robilliard in her report said, referring to the applicant: "He maintained that for some weeks leading up to his offence he was not adhering to his anti psychotic treatment regime. However, Stephen did not describe any thoughts or beliefs of a psychotic nature that might have had relevance to his aggressive treatment of Jeanette at the time."

This does suggest not only an absence of evidence relating to the link, but evidence of a character suggesting that there was no such link. 5 In any event, the whole of the body of evidence justified the position taken by counsel appearing for the applicant and his Honour's reasons, which similarly did not take this matter into account with respect to the objective seriousness of the offence. 6 I agree with the orders proposed by Justice McCallum.

7 Price J: I agree with the orders proposed by Justice McCallum and with the additional remarks of the Chief Justice. 8 McCallum J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court on 14 May 2007 when he appeared for sentence after pleading guilty to a charge of aggravated kidnapping in contravention of s 86(2)(b) of the Crimes Act 1900. The person detained was the applicant's wife. The circumstance of aggravation was the occasioning of actual bodily harm. 9 The maximum penalty for an offence under s 86(2)(b) is imprisonment for twenty years. It is not an offence that attracts a standard non parole period under the Crimes (Sentencing Procedure) Act 1999. 10 The sentencing judge did not make an express finding as to where the offence fell within the range of objective seriousness, having regard to the absence of a standard non parole period. His Honour noted the statutory maximum penalty of twenty years and expressed the view that the court must consider a starting point in the level of seriousness in the instant case of at least ten years. His Honour allowed a twenty five per cent reduction in sentence for the utilitarian value of an early plea, giving a term of seven and a half years. His Honour then determined that a period of actual custody of around five years would properly reflect the objective seriousness of the offence.

11 His Honour expressed reluctance to make a finding of special circumstances but noted that a non parole period of five years with a further term of two and a half years in effect provided a variation of the ratio required by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. His Honour identified that variation as an allowance for the applicant's psychological, mental and alcohol problems and to ensure an appropriate period for supervision and rehabilitation. 12 His Honour sentenced the applicant to a term of imprisonment consisting of a non parole period of five years and a total term of seven and a half years to date from 20 August 2006 which was the date on which the applicant was arrested. 13 A concurrent fixed term of twelve months imprisonment was imposed in respect of a related offence of larceny arising out of the applicant's theft of his wife's credit card during the evening of the kidnapping. The applicant makes no complaint in respect of that sentence. 14 The circumstances of the offence are not in dispute. The applicant and his wife had been in a domestic relationship for over twenty two years and had been married for about eleven years. They had six children together. The relationship had been marred by domestic violence at the hands of the applicant. Mrs Hammond ended the relationship in 2003 for that reason, stating that the applicant beat her on a regular basis. 15 At the time of the offence the applicant had only recently been released from prison having served a number of sentences for offences of dishonesty, resisting police, using an offensive weapon with intent to commit an indictable offence and other matters. The applicant had originally been released to parole on 12 January 2006 but that parole order was revoked on 2 February 2006 and he then served the balance of term of six months. 16 Although the applicant and his wife had been separated since 2003, she permitted him to stay with her following his release from prison on 2 August 2006. 17 On the day on which the offence was committed, the applicant drank six large bottles of beer and most of a large bottle of bourbon whiskey. He also smoked about a quarter of an ounce of marijuana. At that time he was taking prescribed anti depressant medication. He had also been prescribed anti psychotic medication but had stopped accepting that medication a few weeks earlier. 18 The applicant began drinking at around midday. In the evening he and his wife went to visit one of their adult daughters. They left there at around 8pm when the applicant began arguing with the daughter. When they returned home an argument developed between them, apparently as a result of the applicant's perception that Mrs Hammond had not defended him when he was arguing with their daughter. He punched her and then grabbed her hair with both hands and dragged her onto the floor by the hair repeatedly saying to her, "you're nothing but a filthy slut". He dragged her across the floor to the lounge where he sat down and put his foot on the back of her head pushing her face into the carpet. He kept her in that position for about ten minutes. 19 Mrs Hammond pleaded with the applicant to stop. Eventually he took his foot off her neck and then punched her again and kicked her several times. The applicant then said to Mrs Hammond, "Just get up and go before I kill you" but when she made to leave, he grabbed her by the throat and dragged her back down towards the lounge. There he held her head in his lap and squeezed her throat until she blacked out. When she regained consciousness, she was still in that position and his hands were still around her throat. The applicant then told Mrs Hammond to lie down with him which she did, out of fear. After he had fallen asleep, she left and contacted police. 20 Mrs Hammond suffered bruising around the eye, bruising to both sides of the chest, bruising around the base of her neck and a lump on the head consistent with blunt trauma to the head. The treating doctor made a clinical diagnosis of a cracked rib but no x-ray was undertaken to confirm that diagnosis. 21 The grounds of appeal relied on by the applicant are that the head sentence and the non parole period are manifestly excessive and that the sentencing judge failed to give adequate consideration to the mental health condition of the applicant. 22 It is convenient to deal with the second ground first. The evidence before the sentencing judge suggested the existence of a diagnosis of schizophrenia in respect of the applicant but there was no direct evidence of that fact from any psychiatrist who made the diagnosis. The evidence came before the sentencing judge in the form of a report from a psychologist who had not seen any medical reports, the notes of Justice Health in respect of the applicant, the pre-sentence report and the sworn evidence of the applicant at the sentence hearing. 23 The psychologist, Ms Anna Robilliard recorded the history given to her by the applicant who told her that he had been diagnosed with schizophrenia and that at around the time of the offence he was meant to be on anti psychotic medication but had ceased accepting that medication. She stated, however, that the applicant did not describe any thoughts or beliefs of a psychotic nature that might have had relevance to his aggressive treatment of Mrs Hammond at the time of the offence.

24 The psychologist also noted a history of head injury when the applicant was in his mid 20s. She stated that she had attempted to conduct psychometric testing but that this was discontinued as the applicant was not able to focus and attend sufficiently to those tests. 25 The notes from Justice Health refer to a diagnosis of schizophrenia by Dr Willem Van Lill at Bourke District Hospital. Those notes are dated 5 February 2006 but do not identify the date of the diagnosis. The presentence report records that the applicant stated he was diagnosed as schizophrenic in 2004. However, that report also notes that an earlier report to the parole board contained no record of the applicant suffering from or receiving treatment for any mental health condition until his return to custody on 4 February 2006. 26 The author of the presentence report confirmed with Bourke District Hospital that the applicant has been prescribed anti psychotic medication but the date of that prescription is not recorded in the report. Taken in combination, that information appears to suggest that the diagnosis of schizophrenia was made at Bourke District Hospital between the period when the applicant was first released to parole on 12 January 2006 and his return to custody on 4 February 2006. The Justice Health notes record a further diagnosis of schizophrenia by a different psychiatrist while the applicant was in custody on 12 September 2006.

27 At the sentence hearing the applicant confirmed his understanding that he had been diagnosed with schizophrenia by psychiatrists both in Bourke District Hospital and in gaol. He also gave evidence of suffering head injuries when he was assaulted in 1994. 28 Importantly, there was no evidence before the sentencing judge as to whether the diagnosis of schizophrenia was causally related to the commission of the offence. In his remarks on sentence, Woods ADCJ recited the fact that the Justice Health reports referred to schizophrenia. He also recited the history given to the psychologist that the applicant had been on anti psychotic medication whilst in custody in 2006 but that apparently at the suggestion of his partner he had stopped taking that medication because it was making him "like a zombie". 29 His Honour did not specifically refer to the schizophrenia diagnosis in the context of the consideration of the objective seriousness of the offence. His Honour referred to the applicant's mental health in two contexts. First, in his consideration of the aggravating and mitigating factors required to be taken into account pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999, his Honour stated: "The health and psychological assessments suggest that his prospects of rehabilitation are problematic given his history."

Secondly, as already noted, after reaching a total term of seven and a half years and determining that the appropriate period of actual custody was around five years, his Honour expressed his reluctance to find special circumstances but said that he was in effect providing a variation of the normal ratio to allow for the applicant's "psychological and mental problems and alcohol problems and to ensure that there is appropriate time period and appropriate supervision to ensure a fuller attempt at rehabilitation and resolving his anger management and alcohol problems after he is released." 30 Mr Hunt, who appeared for the applicant, submitted that the sentencing judge was required to take the mental health issues into account in his analysis of the objective seriousness of the offence, citing R v Way (2004) 60 NSWLR 16 at 86 and also citing s 21A(3)(j). He relied on the decision of Justice Sperling J in R v Hemsley (2004) NSWCCA 228 where his Honour identified mental illness as being relevant in the following ways: first, where it contributes to the commission of an offence in a material way, it is relevant to the offender's moral culpability. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and so moderate that consideration. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person. Finally, a countervailing consideration may arise, namely the level of danger which the offender presents to the community which may sound in special deterrence. 31 Mr Hunt submitted that to some degree the applicant falls into each of the first three categories outlined by Justice Sperling. The issue, however, is whether the sentencing judge fell into error in not proceeding on that basis, particularly having regard to the paucity of evidence as to the applicant's mental health, which was acknowledged by Mr Hunt. 32 In Hemsley, Sperling J referred to the situation where the mental illness contributes to the commission of the offence in a material way. In order for mental illness to be relevant to the assessment of culpability, it must be shown to have contributed to the offence. The unchallenged evidence in Hemsley was that due to a borderline personality disorder and depressive illness, the applicant there would not have been in a position to exercise rational and sound judgment with regard to participating in the offence. 33 The evidence before the sentencing judge in the present case did not address that issue. As already noted, the applicant had ingested a large amount of alcohol and cannabis over a period of many hours before committing the offence. He gave evidence at the sentence hearing that when he is drinking, marijuana sends him crazy. Accordingly, even if there had been direct evidence from an appropriate expert of a diagnosis of schizophrenia and of any consequent impairment to good judgment, the question of the extent to which that may have contributed to the offence was complex. In any event, there was no such evidence. 34 Mr Hunt submitted that the necessary connection could be drawn by way of inference. He submitted that the obligation falls to the sentencing judge to find such facts. I do not accept that submission. In my view on the evidence before the sentencing judge it would have been speculative for his Honour to conclude that the applicant's mental health issues were casually related to the commission of the offence. 35 Further, as noted in the written submissions of the Crown, it would be wrong to approach the matter as though an automatic consequence followed from the presence of a particular fact: see R v Engert (1995) 84 A Crim R 67 at 68. In particular, the existence of a causal relationship between the mental disorder and the commission of the offence does not automatically produce the result that the offender will receive a lesser sentence. 36 In my view, the remarks on sentence of the sentencing judge to which I have already referred disclose that his Honour did take the applicant's mental health into account when sentencing the applicant, to the extent that it was relevant. That is reflected in the discussion of the adjustment to the usual ratio to which I have already referred. In my view, no specific error has been demonstrated. 37 It remains to consider the first ground of appeal, that the head sentence and the non parole period were manifestly excessive. The question to be determined is whether the result embodied in the order is unreasonable or plainly unjust: see Markarian v R (2005) 228 CLR 357 at [25]. 38 Mr Hunt submitted that the case was quite different from the circumstances in R v Newell (2004) NSWCCA 183. A comparison of those circumstances with those obtaining in the present case does not produce the conclusion that the present sentence was manifestly excessive. 39 In my view, the applicant has failed to demonstrate that the sentence was manifestly excessive. It was a sentence which, whilst it may be regarded as being towards the upper end of the range, was within the sentencing discretion of the sentencing judge. 40 The order I propose is that leave to appeal be allowed but that the appeal be dismissed. **********

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