Hart v R

THE FACTS 6The sentencing judge found the facts of the offending to be as follows (commencing at ROS 1): "It appears that in approximately October of 2011 a plan was hatched between the two of them to carry out some robberies. The plan in respect of both robberies involved the theft of a motor vehicle and the destruction of the motor vehicle after the robberies occurred. That occurred in respect of both matters. In regard to the Teralba matter, the offender Hart had been dealing with a scrap metal dealer and he appears to have decided to enlist the support of his co-offender to rob the woman who was the office manager. The plan involved both offenders stealing motor vehicles, replacing their number plates and following the female manager. Having established that the manager had collected cash from the National Australia Bank, she was followed and then a four wheel drive driven by the offender Hart pulled towards the vehicle driven by the victim and forced the victim's vehicle off the road. Hart reversed the vehicle and rammed the victim's car twice more, pushing the vehicle into the bush. The offender Hart approached the victim and said, "Give me your fucking money. I've got a gun." He demonstrated that he had something beneath his shirt, although the victim did not see any gun or pistol. She threw the money onto the floor of the passenger seat of the vehicle and at this time the offender Littlewood approached the vehicle and Littlewood said, "Give me the fucking money, bitch, or I will kill you." He was holding a meat cleaver at that time. Further threat was made by action and both offenders then left with the money. The Toyota vehicle that Littlewood had been in was burnt, that vehicle having been stolen the previous day. In respect of the second matter of the East Cessnock bowling club, the offenders stole motor vehicles and went to the East Cessnock bowling club at closing time. They approached the bar supervisor who was at that time packing money into the safe. They ran into the bar both wearing gloves and balaclavas. It would appear that Hart was carrying a shortened .22 calibre rifle and Littlewood a long sword. There were a number of patrons in the premises and the manager put his hands up in fear that he was likely to be injured or killed. The offender Littlewood emptied the safe and placed money in a bag that he had with him. Meanwhile, Hart stood by the bar keeping the manager and patrons at bay. They went into the vehicle and decamped. An amount of almost $37,000 was stolen. A vehicle was burnt out and that vehicle having been stolen on 9 November. The police were investigating the matter having received information from a number of sources. On 16 November they were watching the work premises of Mr Hart's workshop when they were alerted that the offender Littlewood was driving towards the workshop. Police stopped Littlewood and he was arrested and then charged with the matters. A number of items including a balaclava that was worn in the East Maitland robbery was found. There were also other items such as a knife, a replica pistol and other items consistent with items that had been or might be used for robbery offences. The person Hart was pursued by police officers which is subject to the matters sequences 9 and 10 and that chase involved police officers risking themselves in pursuit of a person who they believed to be dangerous and by this time they must have known that he had been convicted of murder. The offender Hart drove into the bush and the police continued in their vehicles but as the police vehicles were unable to follow the four wheel drive through the bush, they went on foot. It was during this time that Hart turned towards the police officers and drove towards the senior officer who had to jump for safety to avoid being injured or killed."

THE APPLICANT'S CRIMINAL HISTORY 7The applicant's criminal history includes some relatively minor matters which were dealt with in the Local Court in 1991 and 1992. However in 1993 the applicant was found guilty by a jury of murder and was sentenced to a minimum term of 14 years imprisonment with an additional term of 4 years. An appeal against conviction was dismissed by this Court. Leave to appeal against the sentence imposed was granted, but that appeal was also dismissed (see R v Hart NSWCCA (unreported) 21 June 1996). 8At the time of being taken into custody for the murder offence the applicant was 24 years of age. He was released on parole on 19 March 2009, at the age of 40. However, whilst on parole he was convicted in the Local Court for a driving offence and sentenced to a fixed term of 3 months imprisonment. That conviction constituted a breach of parole. As a consequence, the applicant was returned to custody on 13 November 2009. He was released at the expiration of his sentence on 21 October 2010, at the age of 42. 9Following his release, the applicant remained at liberty until 16 November 2011, at which time he was arrested for the matters which are the subject of the present appeal. He has remained in custody since that time. 10Assuming for present purposes that the sentences imposed by the sentencing judge remain, and assuming further that the applicant is released on parole immediately upon becoming eligible, he will be aged 52 and will have spent 26 of the preceding 28 years in custody.

The evidence in the applicant's case 11The applicant did not give evidence on sentence. A report of Dr Allnutt, Forensic Psychiatrist, was tendered in his case without objection. The history recorded by Dr Allnutt included the following (at page 2): "... he said he had trouble adapting to life out within the community particularly at times by himself dealing with other people and running his business. He stated that due to his long tenure in prison he had become used to being in a cell alone and found that he was as a consequence since his release feeling more anxious particularly when people demanded things of him; he felt more easily overwhelmed; he had difficulty explaining himself; he found that he wanted to get away from people; when he was with too many people he felt sweaty, easily frustrated with a need to remove himself from that environment; he would feel irritable as well. He stated that over time these feelings worsened; he stated that on these occasions he would feel lost." 12Dr Allnutt also recorded (at pages 2-3 of his report) that the applicant reported having commenced the use of amphetamines shortly prior to the offending which is the subject of this appeal: "After commencing methamphetamines he started to feel even more estranged from people; he had more paranoid thoughts concerned that people knew that he had been locked up; he thought people were watching him; he tended to take what people said more to heart but he denied experiencing any perceptual disturbances such as voices, tastes, smells although sometimes he thought he heard noises around the workshop; there were no messages from the TV, the radio or the newspaper ...He said he was asked to participate in the offending a few minutes before (10-15 minutes); at the time he was intoxicated on methamphetamines; he had had about half a gram." 13In terms of diagnosis, Dr Allnutt expressed the following opinion (at page 5): "In my opinion (the applicant) manifests predominantly symptoms consistent with a chronic adjustment disorder with a depressed mood characterised by feeling "down" frequently, broken sleep, reduced appetite, reduced energy levels, feelings of worthlessness, loss of capacity for pleasure with associated episodes of anxiety with sweatiness probably consistent with a mild depressive disorder or a chronic adjustment disorder with a depressed and anxious mood." 14Importantly, Dr Allnutt also said the following (at page 6): "In my view having regard to the amount of time that your client has spent in an institution and taking into consideration his description of the difficulties he described in re-integrating into civilian life, I would regard him as an individual who has become institutionalised and has had difficulty in establishing himself in the community; this would have been a further contributing factor to use of substances and offending." 15Dr Allnutt concluded by expressing the view that the applicant demonstrated "some insight", and that he had a number of rehabilitation requirements. These were said to include: (i)referral to a psychologist for supportive counselling; (ii)undertaking a drug and alcohol treatment program; (iii)prescription of anti-depressant medication and associated treatment by a psychiatrist; (iv)vocational assistance; and (v)assistance of "social services" at the time of his release in order to assist him in re-establishing himself.

The submissions made to the sentencing judge 16In the course of submissions, counsel who appeared for the applicant on sentence made specific reference (T10-11) to the custodial history I have outlined above. He emphasised that the applicant had spent an extremely limited period of his adulthood at liberty. Counsel then addressed his Honour on the contents of Dr Allnutt's report. In doing so, he concentrated (T11 L5 and following) on the difficulties which the applicant had experienced in re-integrating into the community following his previous release from custody. It is apparent from reading the transcript that counsel was moving to the point of submitting to his Honour that the applicant was institutionalised. Counsel highlighted the matters to which Dr Allnutt had referred in his report as being necessary for the applicant's rehabilitation, and submitted that these matters were relevant to the structure of any sentence that might be imposed. Counsel also submitted to his Honour, in effect, that particular focus needed to be directed to ensuring, as far as possible, that when the applicant was eventually released he did not experience the same difficulties as he had in the past. 17At that point, and against the background I have outlined, the transcript records his Honour saying the following (commencing at T11 L48): "Mr Marr, can I interrupt to say that recently on Radio National there was a person reporting an academic study into this issue, recidivism and dealing with, in terms of when people were released on parole and what happened. It was quite insightful and what the person was doing was perhaps saying with (sic) both Dr Furst and Dr Allnutt, both of whom as I understand it, are qualified in respect of the corrections system and very experienced in that way and bring an insight that has been recognised by this study. So I have no difficulty in accepting the submission that you make at all. And indeed I do." 18Given the context in which his Honour's statements were made, they can only be construed as acceptance, firstly of the submissions regarding the difficulties the applicant had previously experienced in re-integrating into the community, and secondly of the opinions of Dr Allnutt as to: (a)the fact of applicant's institutionalisation; and (b)the necessity to implement a number of steps upon the applicant's eventual release, directed towards his rehabilitation. 19Counsel for the applicant then made a further (and more specific) reference to the applicant's institutionalisation, in support of a submission that his Honour find special circumstances under s. 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") (T15 L5-16): "...When your Honour comes to consider institutionalisation, I think there is well-founded submissions, in my respectful submission, that your Honour can use that issue to temper what might otherwise be your Honour's determination. If your Honour is to vary the standard non-parole period relationship then your Honour would need to find some form of special circumstances for this offender. The only matter that I can mount in that regard, is the institutionalisation that he suffered and your Honour the quite evident need for long term rehabilitation for this offender, once released. Because the efforts that have been made by him in the past, particularly those two matters, those two times that he was released that I took your Honour to, at the commencement of my submissions, have quite evidently failed. Without help, he may very well fail again." 20The transcript of the sentence proceedings makes it clear that the applicant's institutionalisation, and the associated need to address the issue of his rehabilitation, were important issues in determining an appropriate sentence.

THE REASONS OF THE SENTENCING JUDGE 21His Honour's reasons were delivered approximately one week following the sentence hearing. His Honour found the offence of robbery committed on 8 November 2011 to be in the mid range of objective seriousness (at ROS 4-5): "Looking at the robbery of the employee of the metalwork shop, I find that matter in the middle range of objective seriousness, that is, that the offender Hart rammed the vehicle of the victim and forced the vehicle off the road into the bush. Hart may have had a replica pistol but it is unclear on the objective evidence, but in any event he indicated that he did have a gun and he was prepared to use it. In respect of Littlewood, he had produced a meat cleaver which obviously had put the victim in even greater fear. I have read the victim impact statement of the person whose initials are TG and that matter confirms the significant effect that the actions have had on this young woman. Persons who carry out their duties in going from business to banks must have some protection against persons who commit the actions that have occurred here and in my mind this matter must be put into the middle range of objective seriousness for a matter under s 79(1) (sic). Such a matter carries twenty years imprisonment. There is no standard non-parole period." 22His Honour then found the offence of robbery committed on 10 November to be above the mid range of objective seriousness: "In respect of the second robbery matter, that matter involved an amount of planning with the taking of vehicles again, disguises and carrying weapons, namely a .22 rifle and a sword on the part of Littlewood. In the facts mention is made of a shotgun but I think that is an error and refers to the .22 sawn-off rifle that Hart had. In my mind this matter must be above the mid range of objective seriousness in that it was calculated to put people in fear and there was a risk of fear of injury to the persons at the club. Indeed the success of the second matter was that there was almost $37,000 obtained from the manager. As I have indicated, vehicles that were taken for both robberies were stolen, used in the robberies and then destroyed by fire." 23His Honour concluded (at ROS 9) that there was a need for general deterrence but did not find (at least in the case of the applicant) that there was a need for specific deterrence. 24His Honour made no reference at all to the issue of the applicant's institutionalisation. Further, despite having expressly indicated to counsel that he accepted the submission which had been made in relation to rehabilitation, and that he accepted the associated opinions of Dr Allnutt, his Honour said (at ROS 6-7): "...There was tendered on behalf of the offender Hart a reportof Dr Stephen Allnutt, forensic psychiatrist, an expert who is well known to this Court. Dr Allnutt indicated that on the history given to him the offender had been using or injecting methamphetamine of up to 1 gram per day. Once again we have a matter where a person who has the ability to work and work gainfully and to not come under notice appears to have allowed his desire fordrugs to interfere with his mental processes. This offender cannot get any benefit from the disclosure that he used "ice". Indeed it is a matter that the Court must take into account that this was deliberate and at a time when he was working, was in a relationship and on the face of it did have the ability to remain drug-free and refrain from offending. The report mentions that he has a chronic adjustment disorder with depressed mood. I have no doubt that this is so and that since he has been bail refused since 16 November 2011 and with the prospect of this matter being sentenced that such a condition is likely to exist. The report says that he has expressed feelings of remorse in respect of his behaviours and is wishing to pursue drug and alcohol rehabilitation by way of abstinence. The report concludes with the offender demonstrating some insight into his offending behaviours which he could deal with whilst in custody". 25The above passages represent the only references to Dr Allnutt's report in his Honour's sentencing remarks.

Ground 1 - His Honour erred in failing to take into account evidence in relation to the applicant's institutionalisation

Submissions of the applicant 26Counsel for the applicant submitted that the issue of the applicant's institutionalisation had been squarely raised before his Honour, and that the unchallenged opinion of Dr Allnutt supported a conclusion that the applicant was in fact institutionalised. Counsel submitted that in those circumstances, the absence of any reference to the issue in his Honour's remarks on sentence necessarily led to the conclusion that his Honour had failed to take it into account when determining an appropriate sentence. In light of the importance which attached to that issue, it was submitted that his Honour's failure to take it into account was an error. 27Counsel for the applicant also submitted that there was a fundamental inconsistency between his Honour's express acceptance of the submissions of counsel concerning the opinions of Dr Allnutt and the applicant's rehabilitative needs, and the findings that he ultimately made. It was submitted that, contrary to his unequivocal indications to counsel, his Honour's reasons effectively amounted to a rejection of the opinions of Dr Allnutt. This, it was submitted, was procedurally unfair to the applicant.

Submissions of the Crown 28The Crown argued that even though a submission had been made regarding the applicant's institutionalisation, the sentencing judge was not bound to accept it. The Crown further submitted that the extract from the transcript set out at [17] above demonstrated nothing more than the fact that his Honour recognised that the applicant was in need of a "step down" program, or some form of residential rehabilitation as part of his parole, in order to assist with his re-integration into the community upon release.

Consideration and conclusion 29In light of his criminal history, the question of the applicant's institutionalisation was a matter of considerable significance on sentence. Specific submissions were made by counsel to his Honour in relation to it. The Crown has properly pointed out that his Honour was not bound to accept those submissions. He was, however, bound to consider them. 30The absence, in his Honour's reasons, of any reference to the issue of applicant's institutionalisation indicates that his Honour had no regard to that matter when considering sentence. In the circumstances of the present case, that was an error. 31Further, I am not able to accept the Crown's interpretation of the passage of the transcript set out in [17] above. When read in the context of the submissions that were being put to his Honour on the applicant's behalf, the passage records an unequivocal acceptance by his Honour not only of the submissions, but of the opinions of Dr Allnutt which underpinned them. That acceptance cannot be reconciled with his Honour's remarks on sentence. To the extent that his Honour made reference to the report of Dr Allnutt at all, it was essentially confined to that part which recorded the applicant's history of amphetamine use around the time of the offending. His Honour made no reference at all to Dr Allnutt's opinion concerning the applicant's rehabilitative needs, which was the basis of the submissions which were being made by counsel, and which his Honour had unequivocally said that he accepted. 32For these reasons ground 1 is made out.

a) failing to take into account the effect of accumulation when considering special circumstances; and

His Honour's reasons 33I relation to the submission that a finding of special circumstances should be made, his Honour said (at ROS 7): "... I am of the view that special circumstances do not apply to the offender Hart. The matters that Dr Allnutt has raised flow from what would be the situation created by the offender and in respect of his feeling of feeling "down", that condition did not affect in any way his offending behaviour and is a matter that he can easily and should be able to easily deal with himself or if he wishes to he could deal with those matters whilst in custody." 34The matters raised by Dr Allnutt to which his Honour was referring related to the applicant's amphetamine use leading up to, and at the time of, the offending (see [24] above). His Honour made no reference to those parts of Dr Allnutt's report set out at [15] above regarding the applicant's needs in terms of rehabilitation.

Submissions of the applicant 35Counsel for the applicant pointed out that in terms of the overall sentence which his Honour imposed, the ratio of the non-parole period to the head sentence was 78.2 percent, and thus in excess of the statutory ratio. It was pointed out that the application of the statutory ratio would have resulted in the imposition of a non-parole period of 8 years and 3 months. 36Counsel for the applicant submitted that in the circumstances of this case, that difference was significant. It was submitted, in particular, that the evidence of the applicant's custodial history, and the difficulties he had experienced in re-integrating into the community at the expiration of his previous sentence, warranted a downward, rather than an upward, adjustment of the ratio. 37Counsel for the applicant further submitted that a finding of special circumstances was warranted having regard to: (i)the evidence of the applicant's institutionalisation; (ii)the history of the difficulties the applicant had experienced in re-integrating into the community following the completion of his previous sentence; (iii)the opinion of Dr Allnutt as to the applicant's insight; and (iv)the opinion of Dr Allnutt as to the applicant's rehabilitative needs. 38Counsel for the applicant pointed out that in declining to find special circumstances, his Honour had made no reference to any of these matters.

Submissions of the Crown 39The Crown submitted that the ratio at which his Honour arrived was not markedly greater than the statutory ratio. It was further submitted that an inference should be drawn that his Honour had intended that overall result. 40The Crown further submitted that the overall sentence represented an outcome which was, in all of the circumstances, "very favourable" to the applicant.

Consideration and conclusion 41As outlined in [33] above, his Honour's reasons for declining to make a finding of special circumstances followed a brief reference to the report of Dr Allnutt. That reference was limited to that part of the report which dealt with the applicant's use of amphetamines at the time of the offending, and the applicant's history that he was feeling "down" since being returned to custody. 42Those parts of Dr Allnutt's report were of marginal relevance to the question of whether a finding of special circumstances should be made. However, directly relevant to that question were the unchallenged opinions of Dr Allnutt that the applicant was institutionalised, that he had some insight into his position, and that he had particular rehabilitative needs which needed to be implemented. His Honour did not refer to any of those considerations when declining to find special circumstances. 43A finding of special circumstances is a discretionary one which involves two steps. The first is to identify the relevant circumstances which are said to be special, and the second is to determine whether those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence: R v Simpson [2001] NSWSC 534; (2001) 53 NSWLR 704 per Spigelman CJ at [73]. In the present case, his Honour failed to identify, and thus failed to take into account, a number of circumstances which were clearly relevant to the determination he was asked to make. In addition, his Honour took into account factors which were, at best, only marginally relevant to that determination. As a consequence of these circumstances, the exercise of his Honour's discretion miscarried. 44Further, in circumstances where there was a considerable body of unchallenged evidence which supported a downwards adjustment to the ratio between the non-parole period and the head sentence, the end result was an adjustment in the opposite direction. That result supports the conclusion that his Honour failed to have regard to the effect of the accumulation which he had ordered. 45For all of these reasons Ground 2 is made out.

IS SOME OTHER SENTENCE WARRANTED IN LAW? 46As error has been established, the question now arises whether some other sentence is warranted in law and should have been passed: Criminal Appeal Act 1912 s. 6(3). Submissions of the applicant 47In support of the proposition that some lesser sentence was warranted, the submissions of counsel for the applicant concentrated upon the evidence, to which I have already referred, of the applicant's need for a longer period on parole to assist in his rehabilitation. 48Counsel placed particular reliance on the evidence of Dr Allnutt which, it was submitted, supported a conclusion that the applicant would have greater success in integrating into the community if an appropriate rehabilitation plan were was put in place. It was submitted that in all of the circumstances, a period of 2½ years on parole was insufficient for that purpose.

Submissions of the Crown 49The Crown's submissions emphasised the need to impose a head sentence and a non-parole period which properly reflected the objective gravity of the offending: R v Wasson [2014] NSWCCA 95 at [33] per R A Hulme J (Gleeson JA and Campbell J agreeing) citing R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 546. The Crown went so far as to submit that the structure of the sentences imposed upon the applicant was "unduly generous" to the applicant because no effective additional punishment for the serious offence of using an offensive weapon to avoid detection had been imposed. 50To the extent that emphasis had been placed upon the need to address the applicant's rehabilitation, the Crown emphasised the restraints which are imposed upon an appellate court from interfering with the findings of a sentencing judge regarding special circumstances: R v Simpson (supra) at [73].

Consideration and conclusion 51The seriousness of the applicant's offending is apparent from the facts which were found by the sentencing judge. It needs no further comment. No issue has been raised about his Honour's assessment of the objective gravity of the offending. In my view, the conclusions his Honour reached in that regard were open on the evidence. The offending put members of the public, and police, in danger. It follows that the protection of the community is an important consideration in determining whether some other sentence is warranted in law. 52Equally, one of the purposes of sentencing set out in s. 3A of the Sentencing Act is to promote the rehabilitation of the offender. That was a primary issue before his Honour but the evidence bearing upon it, which was considerable, was not taken into account. 53Bearing in mind the applicant's custodial history, and having regard to the unchallenged opinion of Dr Allnutt, I am satisfied that the applicant is institutionalised. Further, the events which occurred following his previous release from a long period in custody highlight the fact that unless his rehabilitation is properly addressed at the time of his release from custody, he is likely to face the same difficulties. 54In my view, the evidence clearly establishes that the applicant will require assistance in re-integrating into the community when he is eventually released. The community must be protected from future offending by the applicant to the greatest possible extent. An important component in attempting to achieve that end is to ensure, as far as possible, that appropriate steps are taken to address the applicant's rehabilitation, and his re-integration into the community, when he is released. 55One conclusion to be drawn from Dr Allnutt's report is that when he is eventually released, the applicant would benefit from the implementation of a rehabilitation plan which includes the various components to which Dr Allnutt referred. The nature of that plan is such that it will take some time to be fully implemented, and thus be effective. 56A further conclusion to be drawn from Dr Allnutt's report is that if such a plan is implemented and given a proper opportunity to take effect, it is likely to assist the applicant's rehabilitation. In particular, it is likely to assist his re-integration into the community, and go some way towards assisting him to deal with the difficulties he has experienced in the past. 57This Court has observed that in order for special circumstances to be made out there must exist significant positive signs which show that if an offender is allowed a longer period on parole, rehabilitation is likely to be successful, as opposed to being a mere possibility: R v Tuuta [2014] NSWCCA 40 at [57] per Bellew J, Bathurst CJ and Hoeben CJ at CL agreeing. In my view, the evidence in the present case satisfies that test. Whilst I am not minded, in view of the seriousness of the offending, to alter the total overall sentence imposed by his Honour, I am satisfied that special circumstances have been established and that those circumstances justify a lower proportionate relationship between the overall non-parole period and the head sentence. 58The issue then arises as to the extent of any adjustment. The Crown's original position was that by virtue of the operation of Clause 228 of the Crimes (Administration of Sentences) Regulation 2008, there was a practical limit of 3 years which was placed upon the period of the applicant's supervision on parole. However, at the hearing of the appeal the Crown pointed out that a recommendation had been made that the applicant be managed as a serious offender pursuant to s. 3 of the Crimes (Administration of Sentences) Act 1999. As a consequence, the relevant authority will have the power to recommend, and if appropriate implement, an additional period of supervised parole. However, as matters presently stand, there is obviously no certainty that this will occur and I accept that the prospect of the applicant being at liberty on parole without supervision would not meet the interests of the community: Jinnette v R [2012] NSWCCA 217 at [108] per Johnson J (Hoeben JA and Beech-Jones J agreeing). 59Accordingly, I propose that the applicant be re-sentenced so as to give effect to a finding of special circumstances which will allow him a period of 3 years on parole. This will give him the benefit of a further 6 months on supervised parole. In other circumstances, such an adjustment may be of little moment. However in light of the evidence in the present case, it is significant. 60For these reasons I propose the following orders: (i)leave to appeal is granted; (ii)the appeal is allowed; (iii)the sentence imposed in respect of the offence of armed robbery on 10 November 2011 is quashed; (iv)in lieu thereof, the applicant is sentenced to a non-parole period of 7 years imprisonment commencing on 16 November 2012 and expiring on 15 November 2019 and a balance of term of 3 years imprisonment commencing on 16 November 2019 and expiring on 15 November 2022. (v)the sentences imposed by his Honour Judge Maiden SC are otherwise confirmed; (vi)the applicant will be eligible for parole on 16 November 2019 and his sentence will expire on 15 November 2022.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 August 2014