HATFIELD v REGINA

Court of Criminal Appeal (NSW)|2011-06-30|Before: McClellan CJ, Hidden J, Hall J, Clellan CJ

Judgment 1McCLELLAN CJ at CL : I agree with Hall J. 2HIDDEN J : I agree with Hall J. 3HALL J : The applicant seeks leave to appeal against the sentence imposed upon him by the District Court at Sydney. The hearing took place on 30 April 2009 and 1 May 2009. He was sentenced on 28 August 2009. 4The Notice of Appeal was filed in this Court on 16 September 2010. The appeal was therefore commenced out of time. At the hearing, counsel for the respondent Crown did not oppose leave being granted and to that effect, leave was granted to hear the appeal. 5The applicant was charged with both Commonwealth and State offences as follows:- "Count 1: Conspiracy to import cocaine, not less than the prescribed commercial quantity applicable thereto, contra s.233B(1) of the Customs Act 1901 (Cth) and s.11.5(1) of the Criminal Code 1995 (Cth) ('the Commonwealth offence'); and Count 2: Did knowingly take part in the supply of a large commercial quantity of cocaine contra s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ('the State offence')." 6On 13 December 2007, the applicant pleaded guilty to Counts 1 and 2. Taken into account on the offence charged under s.25(2) of the Drug Misuse and Trafficking Act 1985, were three offences as follows:- "1. On 7 May 2003, knowingly taking part in Supply Prohibited Drug, namely, 6.27 kilograms of cannabis. 2. Between 1 December 2004 and 9 May 2005, engaging in money laundering. 3. On 26 April 2005, being in possession of a pistol without being authorised by licence or permit." 7The commercial quantity of cocaine prescribed in the Customs Act 1901 (Cth) was two kilograms. A large commercial quantity of cocaine is prescribed by the Drug Misuse and Trafficking Act to be one kilogram. 8Section 11.5(1) of the Criminal Code 1995 (Cth) provides that a person charged with conspiracy is punishable as though the offence to which the conspiracy relates had been committed. The maximum penalty prescribed by s.235(2)(c)(i) of the Customs Act is life imprisonment and/or a fine not exceeding $825,000. 9The maximum penalty for an offence against s.25(2) of the Drug Misuse and Trafficking Act involving not less than a large commercial quantity of cocaine is a fine of 5,000 penalty units or life imprisonment, or both: s.33 of the Drug Misuse and Trafficking Act .

Particulars of Sentence 10On the State offence, the applicant was sentenced to a non-parole period of 10 years, with a balance of 7 years, commencing from 9 May 2005, with the non-parole period to expire 8 May 2015 and the balance to expire on 8 May 2022. 11On the Commonwealth charge, the applicant was sentenced to a term of imprisonment of 24 years and 6 months with a non-parole period of 12 years. The sentence commenced on 9 May 2007. The non-parole period was specified to expire on 8 May 2019 and the balance of term on 8 November 2031. 12The sentences are partially accumulated to the extent that except for the first two years of the State offence, the Commonwealth offence subsumes the balance of the State offence. 13As set out in her Honour's Remarks on Sentence, a discount of 30% was allowed for the applicant's plea and assistance for the Commonwealth offence and a discount of 15% was allowed for the State offence. I will return to the significance of the differentiation in the sentencing discounts later in this judgment. 14Her Honour took into account the three offences specified in a Form 1.

Statutory Provisions 15In respect of the Commonwealth offence, s.233B of the Customs Act (as it was then) is reproduced hereunder:- " 233B Special provisions with respect to narcotic goods (1) A person commits an offence if:- (a) the person:- (i) possesses goods on board a ship or aircraft; or (ii) brings goods into Australia; or (iii) imports goods into Australia; or (iv) possesses goods that have been imported into Australia in contravention of this Act; or (v) conveys goods that have been imported into Australia in contravention of this Act; or (vi) possesses goods that are reasonably suspected of having been imported into Australia in contravention of this Act; or (vii) fails to disclose to an officer on demand any knowledge in his or her possession or power concerning the importation or intended importation, or bringing or intended bringing, into Australia of goods; and (b) the goods are a prohibited import to which this section applies." 16In establishing the crime of conspiracy, s.11.5 of the Criminal Code is as follows:- " 11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. Note: Penalty units are defined in section 4AA of the Crimes Act 1914."

The Grounds of Appeal 17The grounds of appeal relied on for the purposes of this application are as follows:- "1. Her Honour erred in assessing the discount to be given for the pleas of guilty by failing to adequately consider the circumstances surrounding the timing of the plea of guilty and assessing the first reasonable opportunity. 2. Her Honour erred in finding that the question of the fitness of the applicant to plead was raised four months after his committal 3. New evidence is available concerning the time at which the issue of the fitness of the offender to plead and to instruct was first raised the absence of which would cause an injustice to the offender the absence of which at sentence led her Honour to impose a sentence without having due regard to relevant evidence. 4. New evidence is available concerning the issue of delay in entering the pleas of guilty the absence of which led her Honour to sentence in the absence of relevant evidence. 5. Her Honour erred in failing to take properly into account the mental health of the applicant when imposing sentence and failing to give expression to it in the head sentences imposed. 6. New evidence is available concerning the mental health of the applicant the absence of which would cause an injustice to the applicant and the absence of which led her Honour to sentence without relevant evidence before her. 7. Her Honour erred in finding there was no evidence before the Court that the offender was mentally ill at the time of the offences. 8. New evidence is available concerning the issue of delay between arrest and sentence the absence of which would cause an injustice to the applicant and the absence of which led her Honour to sentence without relevant evidence before her. 9. The sentencing of the offender failed to take into account and give expression to the issue of delay in sentencing. 10. Her Honour erred in limiting the discount for assistance given to authorities to the sentence imposed in respect of the Commonwealth offence only and not to the total sentence imposed on both Commonwealth and State offences."

The Commonwealth conspiracy offence 18The relevant facts may be summarised briefly as follows. On 8 October 2004 the applicant, with the assistance of a number of co-offenders, including a registered informant, imported from South America 9.99kg of cocaine, of which 6.975 kilograms were recovered by police at a later date. Of that 6.975 kilograms, 4.460 kilograms was pure cocaine, the purity ranging between 59.2% and 69.6%. 19The Commonwealth offence charged the applicant with a conspiracy which included both the actual importation of almost 10 kilograms of cocaine on 8 October 2004 and a proposed importation of a larger quantity of cocaine, initially 20 kilograms, but potentially larger, planned to occur in early 2005. This part of the conspiracy was discontinued as a result of the conspirators' correct belief that they were under investigation. 20Between March and May 2005, the applicant conspired unsuccessfully to bring into Australia 30 kilograms of cocaine. After he and his co-offenders discovered police interest in their operation, the transaction was suspended and no further cocaine was brought into the country. Investigating police received information regarding the conspiracy from a number of sources including electronic surveillance.

The State supply offence 21The State offence encompassed a series of supplies of cocaine in which the remaining balance of the cocaine imported on 8 October 2004 was distributed to customers of the applicant and to "Tom" , an associate of the applicant who had become an informer in late 2004. "Tom" , acting on behalf of police, continued to participate in the planning by the applicant and others for the proposed importation and the supply of the imported cocaine. 22The supplies took place pursuant to controlled operations certificates. 23An amount of two kilograms of cocaine, at the direction and organisation of the applicant, was supplied to one Gedeon for the sum of $340,000 on 8 February 2005 ($300,000 was provided to the applicant's associate on that date, and a further $40,000 was later supplied). 24A further one kilogram was supplied, on 23 February 2005, to persons, Finch and Dowe, for an amount of $170,000, of which $120,000 was given to a third party (Pavan). The transaction was organised and controlled by the applicant whilst the actual exchange was attended to by an associate of the applicant. 25On 24 February, 250 grams of the cocaine was given to persons, Alexandridis and Zaiter, in exchange for $40,000. Of that sum, $1,000 was given to a Mr Sevastopolous for brokering the deal. The rest was to be given to the applicant who, as noted above, was the owner of the cocaine and the ultimate controller of its distribution. 26On 25 February 2005, 28 February 2005 and 4 March 2005 a further kilogram of cocaine on each occasion was supplied in exchange for $170,000, $160,000 and $165,000 respectively. 27On 17 March 2005, 750 grams of cocaine was again supplied, on the applicant's behalf by his associate, to Gedeon in exchange for $120,000.

The grounds of appeal 28At the commencement of the hearing of the appeal, Mr G Nicholson QC, who appeared on behalf of the applicant, sought leave to rely upon the affidavit of his instructing solicitor, Mr Whitby, sworn on 24 June 2011. Mr Nicholson foreshadowed that he would seek to rely upon "new" medical evidence that had not been placed before the sentencing judge. It was conceded, however, that the evidence had been available as at the time of the sentence hearing. 29In explanation, Mr Nicholson stated that the "new" material related to the applicant's medical history. The reports of two psychiatrists had been admitted at the hearing on sentence. The authors of those reports, Dr Giuffida and Dr Westmore, had relied on matters of medical history but Mr Nicholson observed the historical medical records dealing with that history had not been tendered. The opinions expressed had, in other words, not been supported by the tender of such material. Mr Nicholson said (transcript, 30 June 2011 at p.3):- "... I seek to rely upon this material in order to give a better understanding of those opinions expressed by those psychiatrists which was not available unfortunately to her Honour as the underlying documents behind each of the psychiatrists on each side were not tendered although referred to."

Grounds 1 to 4 30These grounds, produced in paragraph [17] above, were argued together.

(1) Applicant's submissions 31The essential complaint is that the sentencing judge did not treat the applicant's pleas of guilty as having been made at the first reasonable opportunity. It was contended that, owing to the applicant's mental health, he was not in a position to instruct or plead from the time of his arrest on 9 May 2005 until a date in July 2007. The applicant's guilty pleas, it is to be noted, were not entered until 13 December 2007. It was said that, although the applicant continued to be mentally ill, he was nonetheless, in due course, found to be fit to stand trial. 32In the submissions for the applicant, it was stated that the applicant's previous unfitness based on his mental health was known to both parties as existing during the committal hearings, which it was said continued with him being "a non-participant" . The legal representative then appearing for the applicant apparently did not seek to adjourn the committal proceedings until the applicant was fit to instruct and plead. 33Accordingly, in these circumstances, it was contended that the sentencing judge erred in finding the question of the fitness of the applicant to plead was only raised four months after his committal and not before. 34As a separate complaint in relation to the actual sentences imposed, it was contended that the sentencing judge failed to properly take into account the applicant's past, present and ongoing mental ill health. In particular, it was claimed that there was sentencing error in failing to take into account his mental health issues when imposing the head sentences in respect of Counts 1 and 2, rather than limiting them and to be given expression only in the non-parole period. This complaint is dealt with in relation to Grounds 5 to 7.

(2) Crown submissions 35The Crown, in its written submissions (paragraph [11]), stated that it was inaccurate to say that committal proceedings proceeded with the applicant being "non-participating" or absent from them. The proceedings were adjourned from time to time until the date of his committal for trial, which was, in effect, a paper committal. The applicant's case had been adjourned during the examination of various prosecution witnesses and other procedural matters over the preceding weeks from 27 February 2006. 36The Crown produced a Court Chronology , an abbreviated version of which is set out below. Date Event 9 May 2005 Applicant arrested and charged. Bail refused. To appear before Central Local on 10 May 2005 27 February 2006 Central Local Court. Defence indicated accused suffering from a psychiatric illness and not in a position to enter pleas. 22 March 2006 Central Local Court. Applicant committed for trial in respect of Counts 1 and 2. 11 October 2006 Sydney District Court. Determination made that applicant unfit to stand trial. 18 July 2007 Sydney District Court. Applicant found fit to stand trial. 13 December 2007 Sydney District Court. Applicant enters guilty pleas. Stood over to 3 April 2008 for sentence.

37In the submissions for the applicant, it was contended that the reference to the first available opportunity to enter a plea should be understood, in the circumstances of the present case, as referring to the first reasonable opportunity to enter a plea. 38In the Crown's submissions, it was contended that the issue in question relates to the significance of the timing of the plea and what is to be regarded as an early plea will vary according to the circumstances of the case. In this respect, reference was made to R v Thomson & Houlton (2000) 49 NSWLR 383 at 419 [160]. 39The Crown noted that the guilty pleas were entered five months after the finding of fitness to plead. That fact, by itself, it was submitted, would justify the limitation on the discount for the pleas to the offences, albeit which her Honour may have imposed for a different reason. 40The Crown frankly noted that the written submissions of the Crown in the District Court, whilst correct in their terms, did not make mention of what the applicant's legal representatives had said at the committal or at mentions in the District Court prior to the fitness hearing on 9 October 2006 concerning the applicant's mental condition. 41The Crown, in paragraph [13] of its written submissions in this Court observed:- "It is unclear whether her Honour's conclusion about the quantum of the discount for the plea to either charge would have been different if she had been directly informed about what had transpired at the committal but the detail of the chronology of the matter had been further explored. The chronology does not establish that the question of fitness to plead was always the impediment to a consideration of a guilty plea although it is accepted that it was raised as a potential issue early in the history of the matter in the District Court." 42To that extent, the Crown fairly acknowledged that the conclusion by the sentencing judge, that the issue of fitness to plead had only been raised four months after the committal, was arguably incomplete (although it was noted that the fitness hearing, on which her Honour apparently relied, in fact, took place some five and a half months after the applicant was committed for trial on 22 March 2006).

(1) The timing of the applicant's guilty pleas 43Grounds 1 to 4 raise for consideration the following issues:- (1) The timing of the applicant's pleas and whether they should have been considered to have been entered at the first available and/or first reasonable opportunity having regard, in particular, to the evidence as to the applicant's mental health. (2) If the issue in (1) is resolved favourably to the applicant, whether the discount for the pleas in the circumstances of the case ought to have been higher than the discount of 15% determined by the sentencing judge. (3) Whether the sentencing judge erred in only applying the discount for the applicant's guilty pleas to the federal offence and not the State offence. (The Crown accepted that the failure to provide a discount for the plea to the State offence was an error). 44The sentencing judge, in her remarks on sentence, set out a chronology of events commencing with the applicant's arrest on 9 May 2005, his first appearance before the District Court on 31 March 2006 followed by adjournments until his arraignment on 9 October 2006. The chronology also included the finding made on 11 October 2006 that the applicant was unfit to stand trial. 45Her Honour noted that, on the evidence before her, plea negotiations were commenced by the applicant's legal representatives which were resolved with the entry of the pleas on 13 December 2007. Her Honour added (at p.35):- "Although I appreciate that the issue of the offender's fitness to plead delayed the time when he could properly consider a plea, in my view, it cannot be said that he pleaded at the first available opportunity. He was committed for trial ten months after his arrest and the issue of his fitness was apparently raised some four months later. The plea does show a willingness to facilitate the course of justice and may also be some evidence of contrition on his part, however, the plea should be viewed in the context of a strong Crown case and, to that extent, the plea was a recognition of the inevitable." 46In respect of the period commencing from his arrest on 9 May 2005 and 11 October 2006 (the date of the "unfitness determination" ) the issue, as indicated above, is whether there was sufficient evidence to establish that the applicant was so affected by mental illness that it was reasonable that he did not enter guilty pleas in that period. 47Dr Westmore, in his report dated 19 June 2006, summarised under the sub-heading "Document Review" entries in notes from "Corrections Health/Justice Health" dated 4 August 2005, 3 November 2005, 24 November 2005, 14 March 2006, 14 March 2006 and 30 March 2006. 48A number of those notes record assessments which stated that the applicant was as at those dates suffering from "a borderline personality disorder" and an "adjustment disorder" . 49The notes indicated that after the last of those notes (30 March 2006) he was on "treatment with an antidepressant and mood stabilising drugs continued" : Dr Westmore's report, 19 June 2006 at p.10. 50Dr Westmore relied upon those notes as confirmatory of his own diagnosis initially made in May/June 2006 (p.10). In that report, Dr Westmore stated (p.11):- "At present, it would be my view that Mr Hatfield is probably unfit to be tried." 51He added:- "It would seem from the Justice Health notes that Mr Hatfield has presented with a depressed and anxious mood and self-harming behaviour. The early clinical entries do not report the presence of psychotic symptoms although notes made in March reveal that he had been complaining of auditory perceptual disturbances and ideas of reference ..." 52I have carefully examined the reports of both Dr Westmore and Dr Giuffida and, having done so, I have concluded that Dr Westmore's analysis sufficiently establishes that the applicant's mental health was significantly impaired following his arrest on 9 May 2005 until he was found fit to stand trial on 18 July 2007. That finding, in my assessment, leads to the conclusion that it would not have been reasonable for him to have entered a guilty plea until after 18 July 2007. He, however, did not do so until approximately five months later on 13 December 2007. The latter delay should be taken into account in the determination of the discount to be allowed for the pleas entered. 53I have concluded that the sentencing judge was in error in not assessing the discount for the pleas on the above basis. The discount determined by her Honour not having been determined on that basis, I consider this Court should intervene and reconsider the applicant's entitlement to a discount for the guilty pleas entered by him. 54In the exercise of the discretion, I consider that the applicant on re-sentence is entitled to a discount for his pleas entered on 13 December 2007 of 20%. The delay of approximately five months after 18 July 2007, in my opinion, means that the maximum discount of 25% for an early plea is not available in this case.

(2) The issue of an overall discount for assistance and the pleas 55The sentencing judge considered the evidence on the issue of assistance (Exhibit B) and noted the relevant matters established by that evidence including the assessment that had been made on the assistance which Exhibit B addressed. There was no suggestion in this Court that her Honour overlooked any material matter or made an erroneous finding in relation to assistance. 56At the hearing of the application for leave to appeal, Mr Nicholson sought leave to rely upon a letter from the New South Wales Crime Commission dated 30 June 2011. The Crown opposed leave being granted. The letter was admitted and marked as Exhibit A in the present proceedings. However, the presiding judge noted that its use may be restricted in determining the merits of this ground of appeal. 57Having considered the terms of Exhibit B in the sentencing proceedings, I do not consider that Exhibit A adds anything of significance on the issue of assistance. 58Accordingly, adopting the basis relied upon by the sentencing judge on the question of assistance on the basis of a plea discount of 20%, as discussed above, the total discount for the plea and assistance should be 35% in lieu of 30% as determined by the sentencing judge.

Grounds 5 to 7 59Grounds 5 to 7 were argued together 60The medical evidence before the sentencing judge included reports from Dr Bruce Westmore, forensic psychiatrist dated 25 September 2006, 19 June 2006 and 28 April 2009. Dr Westmore stated that, as he had not seen the applicant at the time of the offences he indicated that he was not in a position to state unequivocally whether mental illness, which he later diagnosed as existing, was operative at the time of the applicant's offending. For the purpose of his three reports, Dr Westmore undertook assessments of the applicant on 26 May 2006, 16 June 2006 and 25 September 2006. 61Exhibit 5 in the sentencing proceedings included reports from Dr Michael Giuffrida, forensic psychiatrist, dated 21 August 2006, 12 February 2007, 8 June 2007, 6 May 2008 and 9 February 2009. Dr Giuffida initially saw the applicant at the request of his solicitor. He first saw him on 5 July 2006. 62In his first report, Dr Giuffida reviewed a number of medical, hospital and psychologists' reports and records. He expressed the opinion, based on the history obtained from the applicant at that time, that the applicant was unfit to stand trial. The report of 21 August 2006 observed that, based on the material available, including hospital records and Justice Health notes, the applicant had, over a long period before August 2006, suffered from psychotic symptoms. 63The historical hospital and medical records confirmed that the applicant had experienced psychotic symptoms many years before the offending the subject of these proceedings occurred. The history, in particular, included several references to episodic acute psychotic symptoms in the context of ongoing substance abuse.

(1) Medical assessments of the applicant 64The majority of the reports of both specialists were primarily directed to the issue of the applicant's fitness to plead. Dr Giuffida had access to medical reports from Macquarie Hospital, Manly Hospital and St John of God Hospital, Justice Health medical records and a report from Dr Olav Nielssen dated 12 December 2005 as well as a report of clinical psychologist, Dr Katie Seidler. 65The volume of historical and other material analysed in the medical reports of both specialists is considerable. It is noteworthy that both Dr Giuffida and Dr Westmore concluded that the applicant, based on the history, was mentally ill during the periods of his offending conduct and they were in essential agreement that the mental illness played a direct role in the offending behaviour. As discussed below, there is a lack of specificity in the opinions expressed in this regard. 66Dr Giuffida, in his report of 6 May 2008 referred to the historical records which indicated that the applicant had suffered from a psychotic illness as early as 1992 when he was admitted to Manly and Macquarie Hospitals, although he noted that that illness was likely to have been precipitated by drug usage. The summary of the medical records from those hospitals and from St John of God Hospital established that the applicant's psychotic or delusional disorder more than likely represented drug induced psychoses. 67In his report of 6 May 2008, Dr Giuffida noted that the applicant suffered from a psychotic illness from the time that he entered custody on 27 May 2005 and that he continued thereafter to suffer from symptoms characteristic of schizophrenia. On the question as to the earlier existence of that condition, he observed (at AB 326):- "... It is on the other hand very highly likely that he had been developing this psychotic illness over at least the previous months but more probably the previous years and, in fact, the history available from Mr Hatfield's partner ... indicates that he had revealed his delusional beliefs for a number of years prior to his arrest. It is therefore almost certainly the case that Mr Hatfield would have been suffering from a psychotic illness at the time of the various offences of which he is charged ..." 68Dr Giuffida, in the same report, stated (AB 327):- "... Whilst I think it might be difficult to demonstrate a clear causal link between any particular delusional belief that he held at the time of the various offences, I think it is, however, suffice to say that his mental illness would have almost certainly caused a marked impairment of his capacity to exercise reasonable and sensible judgment." 69Dr Giuffida, in his report of 9 February 2009, also observed (AB 332-333):- "... Mr Hatfield certainly suffers from a mental illness within the meaning of the NSW Mental Health Act 2007. It is probable that his illness contributed at least to the commission of his offences and that appropriate treatment is available in the prison or forensic hospital ... In relation to the issue of the causal link between the chronic paranoid schizophrenic illness and his various offences, it is first of all clear that Mr Hatfield had a diagnosed probable paranoid psychotic illness in 1992 and has certainly had a persisting and ongoing schizophrenic illness from the time he came into custody in mid-2005 to the present time. I have always been of the view that it is more likely than not and, in my view, highly likely that he was suffering from symptoms of paranoid schizophrenia during the period of the commission of his offences." 70Dr Westmore, in his report of 28 April 2009, in commenting upon Dr Giuffida's conclusions, stated that the applicant suffered from a psychotic illness which was probably a chronic and a treatment resistant paranoid schizophrenic illness (AB 248). 71In relation to diagnostic issues, Dr Westmore was requested to comment on particular issues. In that respect, he stated:- "3. Whether I agree with Dr Giuffida's conclusions that mental illness contributed to the commission of the offence for which Mr Hatfield is charged and, if so, how. Based on his history in relation to the offending behaviour, he was mentally ill at the relevant time and, again, based on his history, his mental illness played a direct role in the offending behaviour. His history indicates that he had delusional beliefs in relation to his actions. Unfortunately, I did not examine him at the time of the offending behaviour and another possibility is that Mr Hatfield was not mentally at the relevant time but subsequently has developed a chronic unremitting psychotic illness which incorporates retrospective delusional beliefs. In view of his history, however, that possibility seems less likely than the first suggested above . 4. You have asked me whether Mr Hatfield was suffering from any psychiatric illness or condition at the time of the offences which affected his appreciation that [sic] was he was doing was wrong If Mr Hatfield was in fact psychotic at the relevant time and acting on delusional beliefs, then his capacity to appreciate the wrongness of his actions, certainly from a moral perspective is likely to have been compromised."

(2) Mental illness and sentencing principles 72In R v Letteri (NSWCCA, unreported, 18 March 1992), this Court determined that mental illness was of significance where it may have induced the offence. The need for general deterrence to be reflected in the sentence may, however, be diminished even when it was not: see also Binnie v R [2010] NSWCCA 14 at [21]. 73The principles in this respect are well known and have been applied in many cases. They were discussed in detail by Simpson J in R v Fahda [1999] NSWCCA 267 at [40] to [48]. 74In relation to the Commonwealth charge, s.16A of the Crimes Act 1914 requires the Court, in sentencing an offender, to take into account:- "The character, antecedents, age, means and physical and mental condition of the person: s.16A(2), Crimes Act 1914 75There have been cases where mental illness has had a real and direct causal link with offending behaviour. This has been so where the mental illness has operated to induce the commission of offences or where such illness has had a limiting effect on the offender's ability to control impulses or to make decisions about his behaviour. 76In a particular case, the question of the relationship, if any, between a mental illness of an offender and the commission of the offence is one which depends upon and is to be evaluated having regard to the particular circumstances in the individual case. Expressions of medical opinion that a mental illness was related to an offence does not, in terms, address the nature and effect of any relationship. That is an important question in the circumstances of the present case.

(3) The sentencing judge's conclusions on the significance of the applicant's mental illness 77The sentencing judge analysed in considerable detail the evidence including, in particular, the specialist medical evidence in the remarks on sentence at AB 463-471. 78The offending by the applicant plainly involved him participating in the performance of tasks involving considerable organisation, discussions, liaison with others and planning, in particular, in relation to the actual and proposed drug importations from overseas. The sentencing judge specifically referred to such matters. The evidence, including the electronic surveillance evidence, revealed that the applicant was able to actively participate in the making of the arrangements associated with the importation that took place. 79I have earlier referred to the medical specialists' opinions to the effect that the offender, at the time of offending, suffered from a mental illness, namely paranoid schizophrenia. The sentencing judge, in forming her conclusions on the issue of the applicant's mental health, expressed reservations about the medical conclusions as to his mental health at the time of the commission of the offences as they were dependent on:- (1) The history given to them by the offender. (2) In the case of Dr Giuffida, the additional history obtained from the offender's partner. Her Honour then stated (at AB 470):- "It follows that in my view there is no evidence before the Court that his mental illness was actually operating in such a way as to diminish his understanding of the criminality of his actions. Accordingly, extreme caution should be exercised in relying on reports containing hearsay material provided by the offender and should be given limited weight. I refer to R v Qutami [2001] NSWCCA 353." (emphasis added) 80The sentencing judge concluded (at AB 470-471):- "Accordingly, I am not satisfied on balance that the offender's mental illness played a direct role in his offending behaviour. The evidence reveals a very well planned criminal activity involving millions of dollars directed by the offender and Hurley. I have no doubt that it would have continued if the police investigation had not intervened." 81Her Honour then proceeded (at AB 471):- "Accordingly, in my view, the conspiracy offence is so serious that it must attract a sentence which reflects general deterrence. It is more appropriate, in my view, to have regard to the offender's mental health issues when the Court specifies a non-parole period. In this respect, I have regard to the opinions of both psychiatrists that the offender's mental condition is likely to deteriorate over years ..." 82I will return to the sentencing judge's conclusions below.

(4) Assessment of the significance of mental illness in this case 83In R v Engert (1995) 84 A Crim R 67, Gleeson CJ observed at 71: "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of [Veen (No 2) (1988) 164 CLR 465]. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence might, at the same time increase the importance of deterrence of the offender. [at 68] ... In truth, however, ... the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles . The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system." [at 71] (emphasis added) 84I am of the opinion that there was sufficient historical clinical and recorded medical material available to both Dr Giuffida and Dr Westmore (to which no objection was taken) for them to form and express the opinions that they did on the question of any relationship that may have existed between the applicant's mental health and his offending. With respect to the sentencing judge's reservations referred to in paragraph [79] above, the validity of their opinions was not wholly or even mainly dependent on the history provided by either the applicant himself for his partner. 85However, as earlier indicated, that said, it is necessary to go beyond the medical opinions which were to the effect that the applicant's mental illness, in some relatively undefined way, had a direct role in the commission of the offences. 86It is clear from the observations of Gleeson CJ in Engert (supra) that a more searching analysis of the evidence is required, if a causal connection with the offending is suggested, in particular, in order to identify the basis or way in which the applicant's psychotic illness played a role in the commission of the offences. There, of course, was no evidence that the applicant's schizophrenic illness itself induced the commission of the offences. There was no evidence that the applicant was driven by impulses which he was unable to control or that he had no understanding or comprehension of what he was doing in undertaking the planning and in carrying out the Commonwealth and State offences. Finally, it was not established in evidence, as was submitted on his behalf at the sentencing hearing, that he was delusional or acting under the influence of any delusions in committing the offences. In any event, as the Chief Justice observed in Engert (supra) at 71:- "... The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence ..." 87Although I have concluded that the medical evidence before the sentencing judge established that the applicant suffered from a psychotic illness at the time of the offences, I do not believe it was such as to establish a relevant causal relationship with his offending in any of the ways referred to in the preceding paragraph. 88The existence of a serious and chronic psychotic illness at the time of the offending may, however, in accordance with established principles, be relevant in assessing the issue of general deterrence or otherwise be taken into account as one of the relevant factors in the sentencing exercise. In that respect, it is no different from that which is involved in every sentencing exercise: R v Currie (NSWCCA, unreported, 25 February 1992) per Gleeson CJ. 89In R v Benetiz [2000] NSWCCA 21 at [36], Simpson J observed:- "36 ... For mental illness or a psychiatric condition to be relevant to sentencing, it is not necessary that it be the cause of the commission of the crime. Indeed, authority suggest that it is not necessary that it be a cause of the crime. I refer to the decision of this Court in R v Fahda ... There reference was made to a number of authorities of which the following are, on this issue, irrelevant. In R v Letteri ..., Badgery-Parker J said:- 'In each of those cases [which he had, in the preceding paragraph, cited] it appears that the mental illness or retardation was a factor inducing the commission of the offence but that is not a necessary condition of the application of the principle .'" (emphasis added) 90Simpson J also observed in Benetiz (supra) at [38]:- " A mental disorder such as the applicant's depression was identified by Gleeson CJ in Engert as being part of the circumstances of the individual case. Generally speaking, the well-known authorities indicate that mental disorder may be relevant to the assessment of the offender's culpability and to the levels of which it is appropriate to give greater or lesser emphasis to principles of general or specific deterrence ... " 91See also TC v R [2009] NSWCCA 296 at [68] to [70]. 92In Courtney v R [2007] NSWCCA 195, Howie J at [83] observed:- "The fact that an offender is mentally ill does not mean that the sentence imposed must be less than that imposed upon a person who commits the same criminal act without any abnormality of mind ..." 93The issue of the applicant's mental illness must be considered in the factual context of the case. The applicant over a period of time played a key role at a high level within an ongoing drug enterprise in relation to both the conspiracy to import cocaine and in the supply of that drug in this State. Although there is medical evidence to support the proposition that the applicant's mental illness did play a direct role in the offending, the medical specialists did not analyse in any detail the nature and extent of the applicant's activities associated with conspiracy or the supply offences before expressing that opinion. 94It is unnecessary here to analyse in detail all the factual matters set out in the lengthy Statement of Facts tendered at the sentencing hearing. However, in order to appreciate the nature and level of the applicant's participation in the serious criminality involved in both the conspiracy offence and the supply offence, the following matters are noted:- (1) The Statement of Facts and the listening device material tendered in the Crown case established that the applicant was involved with co-offenders, Hurley, Mara and North in an on-going conspiracy to import a commercial quantity of cocaine. (2) The applicant was involved in critical decision-making as to the timing of the importations. He managed his side of the operation to coincide with the work rosters of corrupt airport workers. (3) The applicant received a significant share of the proceeds of the importation made on 8 October 2004 of 10 kilograms of cocaine. He arranged couriers and financing for the purchase of the cocaine. (4) The applicant and a co-offender, in relation to the proposed importation intended to occur in May 2005, arranged for another to be given US$100,000 and 37,500 Euros to be used by the other co-offender to purchase cocaine in South America. (5) Whilst there was evidence of an intention between the co-offenders Hurley and Mara that 20 kilograms of cocaine were to be imported in the May 2005 importation, it was the applicant who intended that a further 10 kilograms of cocaine be purchased (for which he provided the funds). The Crown submission was that the applicant's decision to increase the amount to be imported of the proposed importation from 20 to 30 kilograms was to maximise profit to himself. In consequence, the importation was evidence of decision-making which was consistent with the applicant's role as a principal. 95It was the Crown's submission to the sentencing judge that the evidence supported the conclusion that the applicant was, with Hurley, at the top of the hierarchy in the conspiracy and that both men brought particular expertise to bear in carrying out the objects of the conspiracy. The material before the sentencing judge supported that submission. 96The State offence committed by the applicant involved a continuing criminal enterprise or activity. It incorporated seven individual acts of supply by the person "Tom" at the applicant's request. Those supplies occurred on and between 8 February 2005 and 17 March 2005. 97The Crown submission was that the amount of cocaine involved in the criminal enterprise the subject of the State charge was significant, being almost seven kilograms - about seven times the large commercial quantity of cocaine specified in the Drugs Misuse and Trafficking Act: Crown Submissions on Sentence at [62]. 98The Crown submission was that the applicant was a principal in relation to the seven sales the subject of the charge. 99The applicant was sentenced on the basis of State offence together with the offences on the Form 1. 100The facts established in evidence for the purpose of the sentencing hearing, accordingly, did not demonstrate any particular incapacity, delusions or other mental illness factors contributing to the serious offences committed by the applicant over a period of time. 101Whilst there was medical evidence to the effect that there are different types of schizophrenia and that it is possible for some people with paranoid delusions to perform tasks involving planning, sometimes quite complex planning, and organise matters, there was no detailed analysis of the applicant's criminal activities by the two psychiatrists. 102I have earlier noted that Dr Giuffida considered that the applicant's mental illness would have almost certainly caused a marked impairment of his capacity to exercise reasonable and sensible judgment: Report of Dr Giuffida, 6 May 2008 at AB 327. 103As earlier indicated, the evidence referred to above in relation to the conspiracy and supply offences failed to demonstrate any impairment in the applicant's capacity to undertake those activities. Indeed, the evidence to which I have earlier referred points in the opposite direction. 104That leaves, as a matter of possible interpretation, that Dr Giuffida, in referring to the applicant's capacity to exercise reasonable and sensible judgment may have been indicating that the applicant's judgment was impaired in the sense of him making the decision to become involved in the importation and supply of cocaine. Whilst it is, of course, possible that a person suffering from a psychotic illness may be more vulnerable to entering into an ongoing criminal activity, there would need to be a proper factual foundation to support the conclusion that that is what contributed to the applicant's decision to become involved. There was no such evidence in this case to that effect. 105The detailed Remarks on Sentence reveal a close consideration by the sentencing Judge to the issue of the applicant's mental illness. The question as to any possible relevance of the applicant's mental illness to his offending arises in circumstances in which the unusual nature of the offending allows for very little scope for mental illness, in this case, to operate or provide an explanation for the applicant's engagement in the criminal activity involving a high level of culpability. 106On the particular facts of this case, I do not consider that the approach taken by the sentencing Judge has been shown as one involving appellable error. I, with respect, agree with the conclusion of Morgan DCJ that the conspiracy offence involved a level of criminality of such a high order that it was essential that the sentence to be imposed for that offence reflect the element of general deterrence. 107Again, having regard to the particular circumstances of this case, there is, in my opinion, no basis for intervening in relation to the sentencing Judge's approach to taking into account the mental health issue in specifying the non-parole period, as determined in this case.

Grounds 8 to 9 108The submissions for the applicant raised the question as to what is termed "delay" in the proceedings before arrest and sentence and a further period of delay said to have arisen out of assistance given by the applicant. It was also alleged that additional delay was occasioned by the unavailability of the sentencing judge to pass sentence between the conclusion of the sentence hearing on 1 May 2009 and the date on which the Remarks on Sentence were delivered on 28 August 2009. 109It was submitted that the delay was not delay for which the applicant was responsible or to which he contributed. Rather, it was argued it arose in the context of delay associated with his mental illness as well as the need for an extended period of time to elapse in relation to the issue of assistance. 110The submission was that some element of "additional leniency" ought to have been allowed for in the sentences imposed: Applicant's Written Submissions at [12.2]. 111In relation to the period of time between the arrest of the applicant on 9 May 2005 and the committal and fitness hearing in October 2006, I accept the Crown submissions that this was not "delay" in the relevant sense. Further, I accept, as was submitted by the Crown, that the period of time between a finding of fitness to plead (namely on 18 July 2007) and the sentencing hearing (on 30 May 2009 and 1 June 2009) was lengthy, but that such delays were generally at the request of the applicant. 112Accordingly, I accept the submission by the Crown that the propositions enunciated in R v Todd (1982) 2 NSWLR 517 at 519 do not apply. 113Accordingly, in the circumstances referred to above, it is not necessary to deal further with this ground other than stating that the Crown submissions in this respect are plainly correct and no error by the sentencing judge has been established. 114In relation to the asserted error in limiting the discount for assistance to the sentences imposed in respect of the Commonwealth offence only, the Crown, in its submissions, noted that it did not contend that the sentencing judge should have limited the discount for assistance to the Commonwealth sentence: Crown's Written Submissions at [39]. As the Crown observed, however, because of the structure of the sentences imposed, the discount for assistance afforded to the applicant on the Commonwealth offence operated in fact to provide the same effect as it would have operated if the same discount had been imposed on the sentence for the State offence. In other words, all but two years of the sentence for the State offence was subsumed by the accumulation of the more severe Commonwealth sentence. Accordingly, the Crown correctly submitted in those circumstances, the Court would not for that reason impose a less severe sentence for the State offence. 115I consider there is no merit in these grounds of appeal for the reasons advanced by the Crown. 116As I have concluded that sentencing error has been established in relation to the discount for the plea, I am of the opinion that this Court should intervene and re-sentence the applicant on the basis of a discount of 20% for his guilty pleas.

Orders 117I set out below the orders I propose to give effect to the conclusion expressed above that the applicant is entitled to a discount of 20% on sentence for his guilty plea in lieu of the discount of 15% as allowed by the sentencing judge. All other grounds in support of the application for leave to appeal are dismissed. 118In re-sentencing the applicant to give effect to the conclusion referred to in the preceding paragraph the same ratio between the non-parole period to the total sentence for the offence of conspiracy to import as determined by the sentencing judge, namely a ratio of 48.9%, has been applied. 119Accordingly, I propose the following orders:- (1) Leave to appeal against the sentences imposed by the District Court on 28 August 2009 be granted. (2) The sentences imposed by the District Court be set aside. (3) That the applicant be re-sentenced as follows:- (a) In relation to the offence under s.25(2) of the Drug Misuse and Trafficking Act 1985, and taking into account the matters on the Form 1, the applicant be sentenced to a non-parole period of 9 years and 2 months to commence on 9 May 2005 and to expire on 8 July 2014 and a balance of term of 6 years and 6 months to expire on 8 January 2021. (b) In respect of the offence of conspiracy to import a commercial quantity of cocaine contrary to s.11.5(1) of the Criminal Code 1995 and with s.233B(1) of the Customs Act 1901 (Cth), the applicant to be sentenced to a term of imprisonment for a period of 22 years with a non-parole period of 11 years. The sentence is to commence on 9 May 2007 the non-parole period will expire on 8 May 2018. The total sentence will expire on 8 May 2029.

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: 22 December 2011

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