Jackson v R

Judgment 1GILES JA : The sentencing judge's reasons were inadequate, and there was error whereby leave to appeal should be granted. 2We must consider for ourselves what sentence should have been passed and whether some other sentence was warranted in law and should have been passed. The facts and evidence upon which that should be done are found in the reasons of R S Hulme and Adams JJ, as are the applicant's record and relevant subjective matters. 3Like their Honours, I conclude that burning the house down was premeditated, and I join R S Hulme J in coming to the same conclusion as to the damage to the vehicle and uprooting the trees. I agree that the applicant's conduct was due to dislike of Mr Cooper, meriting the description of intense hatred. There is no basis for finding that the dislike was warranted, for what relevance that may have, and I conclude that the conduct was influenced by the mental disorder found by Dr Westmore some six days later. 4The offences were objectively serious, and although the applicant was influenced by his mental disorder he meant to harm Mr Cooper, to the considerable extent of burning his house down. He had failed, as he had on previous occasions, to act responsibly in relation to, or comply with the current parole conditions concerning, his medication and alcohol. There was a long history of offending, and the subject offences were in breach of two bonds. Respectfully disagreeing with Adams J, I concur with R S Hulme J that some accumulation was appropriate and that no other sentence was warranted in law and should have been passed. 5Accordingly, I would grant leave to appeal but dismiss the appeal. 6R S HULME J : In this matter I have had the advantage of reading the reasons for Judgment of Adams J. Although I disagree with his Honour's conclusion as to the disposition of the application to appeal, his Honour's remarks mean that these reasons can be shorter than they otherwise would have been. 7I agree with Adams J that the remarks on sentence of Black DCJ were inadequate as an exposition of his Honour's consideration of the sentencing of the Applicant and of his Honour's reasons for imposing the sentences that he did. Indeed, by comparison with what the Applicant, the Crown, and the community were entitled to, his Honour's remarks were grossly inadequate. 8Apart from briefly summarising the counts, all Black DCJ said as to the circumstances of the offences was:- Now the damage to the car was unpleasant, slashed tyres and offensive remarks scratched on it. The damage to the house of course was total, it was completely destroyed. The background is unclear. The offender who has been examined by Dr Westmore, a psychiatrist well know to the courts and of very high repute, clearly has mental issues and in those circumstances it is a little difficult to make out what it was precisely that motivated the offender's dislike of Mr Cooper but what seems to be clear was there was a background of dislike and of course it is not for me to say whether there was any justification for any of it but that it was led initially to the damage to the vehicle and further to the destruction of the house. 9In fact, during the days of trial that preceded the Applicant's pleas of guilty there was evidence:- (i) from Mr Cooper of an incident two days before his car was damaged in the local bowling club when the Applicant, smelling strongly of methylated spirits, approached him and after a time commenced to abuse him saying, inter alia, that Mr Cooper had ripped him off years ago and "I'm going to burn you out, I'm going to kill you and your missus and then I'm going to blow your head off ... ." (ii) from a Mr Vansca, of the Applicant on the same occasion threatening to burn Mr Cooper out or set fire to his house. ; (iii) of the Applicant being evicted from the Club following this abuse; (iii) of a recorded interview between police and the Applicant wherein the Applicant said that Mr Cooper had ripped him off, had been responsible for the death of a Mr Dobson and, in the interview, threatened to put a bullet between Mr Cooper's eyes; (iv) from a neighbour Mr Watson who said that the Applicant had told him he burnt Mr Cooper's house down because Mr Cooper had killed a mate 15 years earlier; (v) from another neighbour, Mr Van Bavel, who said that the Applicant had described how he had burnt the house down, using 2 litres of petrol in the process. 10Mr Cooper was challenged as to the threat to burn his house down but not as to the balance of his evidence referred to. There were challenges, albeit somewhat perfunctory, to the evidence of Mr Vansca and Mr Watson. Mr Van Bavel's evidence was incomplete when the Applicant pleaded guilty. Nevertheless, the evidence could have led to no other conclusion but that the Applicant's conduct was deliberate and premeditated and inspired by rational or irrational dislike - a dislike which however could not come close to justifying the offences. 11There was also evidence to which Adams J has referred of the extent of the damage caused by the Applicant's offences - in the case of the first, two tyres slashed, the words "dead cunt" scratched into two areas of a vehicle and trees pulled out of the ground, and in the case of the second, Mr Cooper's house and contents destroyed resulting in an insurance payout of the order of $120,000 for the house alone. 12Adams J has provided a summary of many parts of the Applicant's criminal record and I need not repeat. Prior to the commission of the offences presently under consideration, and putting aside appeals, he has been dealt with by courts on some thirty-two occasions. Three of these involved using an unregistered and uninsured motor vehicle. Four involved possession of a firearm when he was not entitled to do so and two involved possession of a prohibited weapon. 13Over the years he has been placed on a bond or recognisance some thirteen times including on 6 July 2005, a mere two weeks before he damaged Mr Cooper's car. Conditions of that bond included that the Applicant abstain from alcohol and non-prescribed substances and take all prescribed medication. Earlier, on 1 November 2004, when the Applicant was sentenced to imprisonment for 12 months including a non-parole period of 6 months commencing on 13 August 2004, for destroying or damaging property, one of the conditions of parole was that the Applicant comply with all mental health medications. 14It is apparent from the evidence of Mr Cooper and what the Applicant told Dr Westmore that at about the time of his offending the Applicant "was drinking metho, beer, whatever I could afford". 15By comparison Dr Westmore recorded that when he interviewed the Applicant in prison on 16 April 2008 the Applicant was being medicated with Epilim, Lithium and Zyprexa and at that time the Applicant was pleasant and co-operative, his affect and mood were appropriate, he was not suffering from a major depression and his mood was not abnormally elevated and no psychotic symptoms were displayed. Dr Westmore diagnosed him as suffering, inter alia, from bipolar affective disorder, in remission. In contrast to the hypomanic phase of bipolar affective disorder which he thought the Applicant had been suffering from at least at the time of his police interview. 16Dr Westmore also observed that the Applicant had been the subject of a number or prior medical reports. One, in August 2007, noted that the Applicant's mental state was affected by alcohol intoxication and a developing hypomanic episode. Another, in December 1997, diagnosed the Applicant as suffering from a bipolar affective disorder. A third, in September 2004, referred to the Applicant suffering from alcohol and cannabis abuse and having a mood disorder. A fourth, in April 2007, referred to the Applicant having a bipolar disorder. 17There is no doubt that the Applicant's mental condition provides some grounds for imposing a sentence lower than otherwise might have been called for. On the other hand the nature and frequency of his offending has demonstrated not merely that he his unable but also that he has been unwilling to comply with reasonable standards of behaviour. Adams J has referred to the fact that the offences presently under consideration were committed in breach of bonds and parole. It is also reasonably to be inferred - as Black DCJ did infer - that the Applicant's condition at the time of the subject offences reflected a failure to comply with the conditions concerning medication and substances to which I have referred. 18It is also clear that, judged by the Applicant's record to date, he is a menace to society when at large, a factor which, kept within proper bounds, tends to offset the mitigatory impact of his mental illness. 19I am also of the view that Black DCJ did not err in making the sentences he imposed partly cumulative. While undoubtedly both offences were inspired by the same motivation, carried out as they were 5 days apart, the passage of time meant that the Applicant had full opportunity to reflect on the damage to the car and palm trees before he embarked on the deliberate destruction of the house. 20When the totality of the circumstances are weighed, I am not persuaded that some sentences, less severe than those imposed by Black DCJ, were warranted in law and should have been passed. Because there was error in Black DCJ's remarks, I would grant leave to appeal but, because of the conclusion just expressed, dismiss the appeal. 21ADAMS J : This is an application for leave to appeal against the sentence imposed by the District Court at Lismore on 9 April 2009 in respect of one count of malicious damage contrary to s 195(1)(a) of the Crimes Act 1900 (the Act) and one count of maliciously destroy by fire contrary to s 195(1)(b) of the Act arising from a series of events which took place between 22 and 26 July 2005. Respectively, the maximum sentences are ten years and five years. The applicant pleaded guilty to both counts on 8 April 2009 (the third day of his trial). The learned sentencing judge imposed a fixed term of 12 months, backdated so as to commence on 2 May 2008, on the first count and a total term of imprisonment of six years to commence on 2 November 2008 and expire on 1 November 2014 with a non-parole period of three and a-half years on the second count. By partial cumulation the applicant will be eligible to be considered for release on parole on 1 May 2012. 22Evidence had been called in the trial of certain events leading up to the damage in question, the nature and extent of the damage, certain conversations allegedly having taken place between the applicant and several persons after the event in which he described what he did and gave a limited explanation for his acts. Aside from the conversations, the evidence was in substance uncontested. 23The applicant's grounds of appeal are that the sentencing judge failed to assess where on the scale of objective seriousness the offences committed by the applicant fell, that inadequate reasons for the sentences were given and the sentences were manifestly excessive. 24The appeal is out of time but the Crown does not oppose granting the applicant an extension of time to permit him to make this application. The sufficiency of the reasons for sentence 25The sentencing judge briefly referred to the course of proceedings and then went on to deal with the facts. His Honour described, briefly but adequately, the nature and extent of the damage caused by the applicant but otherwise made no reference to the objective circumstances of the offences, except for describing the burning down of the house as "quite appalling". In substance his Honour confined his reasons to the applicant's subjective features. 26It is scarcely capable of controversy that the circumstances of the offence which form the basis of determining its objective seriousness and, together with the subjective features, form part of the instinctive synthesis reflected in the sentence must be stated by a sentencing judge. Although some generality of language is, of course, permissible, it is essential that the sentencing judge makes clear the factual basis for the sentence that is imposed. This is necessary to enable not only the accused and the Crown but also the community to understand why the sentence was passed and is fundamental to the due administration of criminal justice. It is also necessary for the purpose of enabling this Court to exercise its statutory responsibilities in respect of any appeal that might be brought by either party since otherwise it is impossible to determine whether the sentence is appropriate or not. These propositions are so obvious as not to require resort to authority. 27It may well be that, to a substantial extent, the facts for the purpose of the sentences were not disputed, as evidenced by the submissions of counsel to the sentencing judge. However, that cannot be a substitute for findings which were not actually made or, if made, not stated. 28The sentencing judge's findings as to the extent of the damage, though necessary, are insufficient to justify the sentences imposed on the applicant. Indeed, they are insufficient to justify any sentence. It is not possible in the absence of the facts to determine whether the sentence is manifestly excessive and this ground cannot effectively be litigated. In my view, the appropriate outcome is to grant leave to appeal and uphold the appeal. 29The question then arises as to whether to remit the matter back to the District Court for resentencing following a determination, after appropriate hearing, of the facts. There are a number of practical difficulties facing this proposal, including substantial delay. The parties have submitted that this Court should resentence the applicant in substance upon the basis of the evidence given at the trial. In my view this is the proper course.