Jeffree v R

Court of Criminal Appeal (NSW)|2017-03-31|Before: Beazley P, Walton J, Hulme J

Solicitors: Legal Aid NSW (Applicant) Office of the Solicitor for Public Prosecutions (Respondent) File Number(s): 2014/345136 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 04 December 2015 Before: Cogswell SC DCJ File Number(s): 2014/345136

[This headnote is not to be read as part of the judgment] On 23 November 2014, the applicant became involved in an argument with his neighbour. During the course of this argument, the applicant produced a home-made pistol. He discharged a shot into the front of the neighbour's car, in which the neighbour was then sitting. The applicant later attempted to discharge the firearm a second time, but it did not discharge. When this occurred, the applicant hit the neighbour on the back of the head with the butt of his pistol, causing lacerations. When the neighbour's father tried to calm him, the applicant pointed his pistol at the neighbour's father's head and stated that he was "going to kill him", meaning the neighbour. The applicant also smashed the front and rear passenger windows of the neighbour's car. On searching the applicant's house, police found a home-made firearm, four live bullets, spent casing and a pistol grip. The applicant was charged with discharging a firearm contrary to Crimes Act 1900 (NSW), s 93G(1)(b), attempting to discharge a firearm with intent to cause grievous bodily harm contrary to Crimes Act, s 33A(1)(b), assault occasioning actual bodily harm contrary to Crimes Act, s 59(1), assault contrary to Crimes Act, s 61 and recklessly causing damage contrary to Crimes Act, s 195(1)(a). The applicant was also charged with a number of back up offences. The applicant pleaded guilty to the offences charged and was sentenced to an aggregate term of 9 years and 9 months, with a non-parole period of 5 years. The applicant sought leave to appeal against sentence on the following grounds: Ground 1: The internal accumulation demonstrates a totality error in the imposition of the aggregate sentence. Ground 2: The remarks on sentence disclose that the sentencing judge undertook no assessment of the applicant's moral culpability in light of the overwhelming evidence of his mental condition. Ground 3: The remarks on sentence do not disclose any assessment of the relevance of the applicant's vulnerabilities upon the overall sentence. The Court granted leave to appeal and dismissed the appeal.

In relation to ground 1: (1) An aggregate sentence must reflect the totality of the criminality involved in the relevant offending conduct. There is no general rule that determines whether a sentence ought to be imposed concurrently or consecutively. This is determined by the application of the principle of totality of criminality. [43]-[45] JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297; R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130; Mill v The Queen (1988) 166 CLR 59; Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1

In relation to grounds 2 and 3: (2) The principles stated in Aslan concerning the effect on sentencing of mental illness and intellectual impairment are not absolute in their terms. In each case, it is a matter for the court to examine the relevant facts and determine whether the mental illness or intellectual impairment has an impact on the sentencing process. [30]-[33] Aslan v R [2014] NSWCCA 114; Laspina v R [2016] NSWCCA 181 (3) The sentencing judge demonstrated no error of principle in considering general deterrence to be a very important factor in determining the sentence imposed or in emphasising its role in the context of persons in the community with a reduced capacity to control their behaviour.

Judgment

BEAZLEY P: On 23 November 2014, the applicant committed a number of firearm, assault and property damage offences in respect of which he pleaded guilty. He was sentenced in the District Court by Cogswell SC DCJ on 4 December 2015 to an aggregate term of 9 years and 9 months with a non-parole period of 5 years. The offences and the indicative sentences after applying a 25 per cent discount for the pleas of guilty in respect of each offence were as follows: Count 1: Discharge a firearm contrary to the Crimes Act 1900 (NSW), s 93G(1)(b). The maximum penalty for this offence is 10 years imprisonment. The indicative sentence for this offence was 3 years imprisonment. Count 2: Attempt to discharge a firearm with intent to cause grievous bodily harm contrary to the Crimes Act, s 33A(1)(b). The maximum penalty for this offence is 25 years imprisonment. The indicative sentence for this offence was 9 years imprisonment. Count 3: Assault occasioning actual bodily harm contrary to the Crimes Act, s 59(1). This offence carries a maximum penalty of 5 years imprisonment. The indicative sentence in respect of this offence was 18 months imprisonment. Count 4: Common assault contrary to the Crimes Act, s 61. The maximum penalty for this offence is 2 years imprisonment. The indicative sentence for this offence was 9 months imprisonment.
In respect of count 5, recklessly causing damage contrary to the Crimes Act, s 195(1)(a), for which the maximum penalty is 5 years imprisonment, the applicant was fined $1,000.
The applicant was charged with four back up charges pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW). These were: possess and use an unauthorised firearm: Firearms Act 1996 (NSW), s 7A(1); possess an unregistered firearm: Firearms Act, s 36(1); and possess ammunition without holding a licence, permit or authority: Firearms Act, s 65(3). His Honour recorded convictions under s 10A in respect of those offences: see generally the Criminal Procedure Act, s 167.
The applicant sought leave to appeal against sentence on the following grounds: Ground 1: The internal accumulation demonstrates a totality error in the imposition of the aggregate sentence. Ground 2: The remarks on sentence disclose that the sentencing judge undertook no assessment of the applicant's moral culpability in light of the overwhelming evidence of his mental condition. Ground 3: The remarks on sentence do not disclose any assessment of the relevance of the applicant's vulnerabilities upon the overall sentence.
The offences were committed in circumstances where the applicant became engaged in an argument with his neighbour. The neighbour had lent his car to the applicant, but on its return thought that the applicant had taken $5 from the car. The neighbour spoke to the applicant's mother about the incident and was verbally abusive to her. When the applicant's mother informed the applicant what had happened, the applicant went to the neighbour's home and an argument began. The neighbour punched the applicant several times. The neighbour's parents attempted to separate the two men. The applicant then returned to his home and picked up a home-made pistol. He went back to the neighbour's home and discharged a shot into the front of the neighbour's car, in which the neighbour was then sitting. Shooting the pistol into the car constituted the offence in count 1 of discharging a firearm.
The two men again began to struggle with each other. The applicant went back to his home. He returned to the neighbour's home and pointed the firearm at the neighbour. The applicant attempted to discharge the firearm at the complainant, but it did not discharge. The firearm was loaded with a single bullet at that time and was capable of firing one bullet at a time before it required reloading. This constituted the offence in count 2 of attempt to discharge a firearm with intent to cause grievous bodily harm.
When the weapon did not discharge, the applicant hit the neighbour on the back of the head with the butt of his pistol, causing lacerations to the neighbour's head. This conduct constituted the offence in count 3 of assault occasioning bodily harm.
The two men continued fighting and the neighbour's father tried to calm things down, but the applicant pointed the home-made pistol directly towards the neighbour's father's head. The gun was about 10 inches away and at this point, the applicant told the neighbour's father to get out of his way, as he was "going to kill him", meaning the neighbour. The neighbour's father continued to try to calm the applicant down, but the applicant again pointed the pistol towards the neighbour's father, who took hold of the applicant's arm and they engaged in a struggle. The pointing of the firearm constituted the offence in count 4 of common assault.
The applicant went home but returned to the neighbour's place, this time armed with a "sickle hook", which he used to smash the front and rear passenger windows of the neighbour's motor vehicle. This conduct constituted the offence in count 5 of reckless damage.
The police were called to the scene and the applicant admitted that he had committed the offences as follows. He said that he had: "… got my gun and put a bullet in it. I walked back to [the neighbour's] car and fired into it. I went back and tried to fire at [the neighbour]. The gun would not fire and I tried again. When it did not fire the second time I used the butt of the gun and smashed him in the back of the head. I wanted to kill him, anybody tried to hurt my mother and I will kill them, nobody hurts my mother, that's all it is. I did it."
Upon a search of the applicant's house, the police found the home-made firearm with a .22 calibre bullet intact inside it. The police found another four live bullets, a spent casing and a pistol grip. The firearm, on testing, was in working order. The police later found the spent bullet inside the radiator of the neighbour's car.

Objective circumstances

The sentencing judge accepted that the offence of attempt to discharge a firearm with intent to cause grievous bodily harm was an objectively serious offence, involving the use of a firearm which the applicant was prepared to use. His Honour considered that general deterrence was a "very important factor" and that the sentence he imposed must carry a "significant component" for general deterrence, given the role of the firearm in the commission of the offences. His Honour acknowledged that the initial altercation had been initiated by the neighbour, but that the applicant's actions were far more serious than the initial engagement between the two men.

Subjective circumstances

His Honour then recorded the applicant's subjective circumstances which revealed that the applicant has both an intellectual and physical disability. He had an abusive childhood at the hands of his stepfather and also witnessed his stepfather's abuse of his mother.
The applicant was born with spina bifida, which caused him significant physical difficulties throughout his childhood and adult life, which in turn have led to psychological impairment. The applicant also had early learning difficulties and it appears he is dyslexic. An early diagnosis of autism was referred to in a report of Emma Hübner, psychologist, but as I understand it, she did not diagnose autism or otherwise confirm the early diagnosis.
Ms Hübner administered the Kaufman Brief Intelligence Test, 2nd edition, and found that on the verbal subtest, the applicant's performance fell within the 'Below Average' range and was better than 13 per cent of an "age matched normative sample". His performance on the non-verbal subtest was also within the 'Below Average' range with his performance being equal to, or better than, 6 per cent of the normative population.
The applicant's overall IQ Composite score fell within the 'Below Average' range, with his overall performance being equal to, or better than, 8 per cent of the normative population. His mood and anxiety levels were found to be normal, but he had a mildly elevated level of chronic non-specific arousal as measured on the Depression, Anxiety and Stress Scale (DASS -21; Lovibond & Lovibond 1995).
Ms Hübner concluded that although the applicant had limited cognitive capacity, he did not have an intellectual impairment or cognitive dysfunction. Ms Hübner expressed the opinion that due to the applicant's limited cognitive capacity, he was likely to have lacked the reasoning and communication skills necessary to effectively manage the situation in which the offending conduct occurred.
The pre-sentence report effectively echoed these aspects of Ms Hübner's report.
The applicant had been seriously assaulted some years previously, causing him serious and ongoing back pain and further psychological injury.
The applicant had developed an alcohol problem from about the age of 12, and subsequently commenced using drugs. Dr Matthew Hearps, who saw the applicant in prison, observed that he "appears to have relied on drugs extensively when in the community to manage stress and unpleasant affective (mood) states". If anything, this worsened following the assault referred to in the previous paragraph. The Community Corrections Officer who interviewed the applicant described a "poly drug abuse" problem. The applicant was assessed as having a low risk of re-offending, the Community Corrections Officer reporting that the applicant: "… presents with low cognitive functioning however his adaptive skills appear generally adequate to allow him to function in the community. He appears to have been a chronic substance abuser over many years. He enjoys the pro-social support of his extended family."
The applicant had a relatively short period of employment, including work opportunities provided by family and friends, but he had been on a disability support pension for approximately 10 years prior to these offences.
The sentencing judge referred to the strong family support available to the applicant evidenced not only by the references they had provided, but also by the fact that his mother attended court. His Honour also observed that there was a reference from the neighbour's father, who had become involved in the incident on the 23 November 2014. The neighbour's father described the applicant as being "a happy and friendly bloke to talk to" and said that the applicant was under a lot of emotional pressure on the day of the incident. Overall, the picture that emerged from the various references was of a quiet and well-behaved person, but one with significant cognitive issues and a low skill base, having a limited ability to read and write and a very low level of comprehension.
The sentencing judge was inclined to accept that the applicant had a low risk of re-offending and that these offences arose out of "a regrettable combination of circumstances". His Honour observed that he was: "… dealing with a man who has a shocking background of abuse and disability and who had limited cognitive capacity, falling short of an impairment or a dysfunction."
His Honour accepted that the applicant had a strong support mechanism, supportive family and friends around him, and that his actions on the day in question were out of character. His Honour also observed that the applicant had been diagnosed whilst in custody with major depression with psychotic features, characterised by what Dr Hearps described as "depressed mood, anhedonia and auditory hallucinations".
His Honour accepted the account provided by the applicant's mother in respect of the difficulties that the applicant was having in prison. His Honour stated, at [33], that he had given weight to that account and slightly reduced the non-parole period for that reason. His Honour made a finding of special circumstances.
His Honour sentenced the applicant to an overall sentence of 9 years and 9 months with a non-parole period of 5 years.

Grounds 2 and 3 of the appeal

It is convenient to consider grounds 2 and 3 together, as they rely upon the same factual matters.
The applicant submitted, as the sentencing judge found, that he had a number of physical and mental disabilities and vulnerabilities but that his Honour had failed to have regard to the extent to which those matters impacted upon his moral culpability for his offending conduct: ground 2. The applicant also submitted that his disabilities and vulnerabilities were such that it was not appropriate for the sentencing judge to give any weight at all to general deterrence in determining the sentence that ought to be imposed on him: ground 3. The applicant submitted, in respect of both grounds of appeal that, as Ms Hübner had reported, he lacked the reasoning and communication skills necessary to manage the situation and thus reacted: "… by acting out his fear and/or anger and in a hasty and short-sighted manner, without consideration for the consequences to himself or others."
The applicant submitted that although his Honour had regard to his physical, emotional and intellectual limitations, as well as to his abusive background, his Honour nonetheless failed to make any assessment of the applicant's moral culpability in light of these factors. The applicant further contended that his Honour placed significant emphasis on general deterrence in circumstances where this was an inappropriate case for general deterrence. In regard to both these matters, the applicant submitted that his Honour failed to have regard to the principles stated by this Court in Aslan v R [2014] NSWCCA 114.
In Aslan, the Court, Simpson J (as her Honour then was) (Adams and McCallum JJ agreeing) were concerned with the sentence imposed on an offender with an acquired brain injury. In that context, her Honour stated, at [33]: "This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: '[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4] It may reduce or eliminate the significance of specific deterrence ... [Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...' (internal citations omitted, italics added)."
Simpson J pointed out, at [34], that none of these principles is absolute in its terms, nor is any there any presumption as to their application. It will be a matter for the court in each case to examine the relevant facts to determine whether in the case at hand, the mental condition has an impact on the sentencing process.
Her Honour continued, at [35]: "A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)." (emphasis in original)
The approach in Aslan was confirmed and applied in Laspina v R [2016] NSWCCA 181 at [39].
The applicant submitted that although his Honour referred to his disabilities, he failed to assess how those disabilities contributed to the commission of the offences and thus failed to determine the extent of his moral culpability.
The Crown contended that his Honour's remarks at [38], which indicated that he had moderated the sentence because of the applicant's disabilities, could only have been a reference to the applicant's moral culpability. The Crown also reminded the Court that the offences demonstrated a degree of persistence that would indicate that the applicant had set on a determined course of offending behaviour. Consistent with this was the fact that the applicant had not retreated when he had an opportunity to do so.
I agree with the Crown's submission that his Honour, in moderating the sentence, did so as part of his assessment of the applicant's moral culpability, having regard to the applicant's disabilities and vulnerabilities. As the aggregate sentence imposed and the non-parole period that was ordered demonstrate, the degree of moderation was substantial.
His Honour, at [34], considered that general deterrence was a very important factor. His concern was the fact that the applicant, who had a reduced capacity to react to an argument in an appropriate way, had access to firearms and having become embroiled in the argument with his neighbour, committed a series of extremely serious crimes. Such were his concerns in relation to firearms that his Honour had introduced his remarks on sentence by noting, at [1], that: "This case illustrates why it is illegal in this state to have unlicensed and unregistered firearms in the community."
Although his Honour moderated the sentence because of the applicant's disabilities, he nonetheless, at [34], considered that the sentence "must carry a significant component of general deterrence". His Honour repeated, "[i]llegal firearms can fall into the hands of people with limited ability to control themselves". In placing this emphasis on general deterrence, his Honour expressly did so in the context of persons in the community, such as the applicant, with a reduced capacity to control their behaviour.
In my opinion, no error has been demonstrated in the manner in which his Honour dealt with general deterrence. This was not a case where general deterrence had no role to play. There was no evidence that the applicant did not understand the nature of his act. Although of limited cognitive capacity, the applicant was not found to have "an [intellectual] impairment or dysfunction". There was no error of principle in that approach, nor could it be said, nor was it argued, that the sentence ultimately imposed demonstrated error because it was manifestly excessive.
His Honour did not fail to apply the principles in Aslan. It is apparent from Simpson J's remarks in Aslan, at [34], that the principles stated in that case are not a prescriptive formula that must be intoned in every case. It is the substance of the reasoning that determines whether a sentencing judge has had appropriate regard to the matters identified in the principles. His Honour's careful consideration of the applicant's psychological difficulties, his express reference to moderating the sentence and the actual sentence imposed demonstrate that his Honour was aware of, and applied, correct sentencing principles.
I would reject grounds 2 and 3 of the appeal.

Ground 1 of the appeal

The sentencing judge, having indicated the individual sentences that he would have imposed and the discount for the plea of guilty, stated, at [37], that he would accumulate the sentence in respect of each count by 3 months. The applicant submitted that the effect of the accumulation was that an additional 9 months imprisonment was indicated upon the sentence for the discharge firearm offence. He contended that this gave rise to a totality error, as there was no commonality between the offences such as to warrant an identical internal accumulation in respect of each of them. The applicant complained that his Honour's remarks on sentence failed to reveal any discrimination or reasoning underpinning the uniform accumulation by reference to objective seriousness or any other relevant factor.
When a court determines an aggregate sentence, the sentence so imposed must reflect the totality of the criminality involved: see JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]. In R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130, the Court, at [44], endorsed the leading statement of the effect of the totality principle from D A Thomas, Principles of Sentencing, which was endorsed by the High Court in Mill v The Queen (1988) 166 CLR 59 at 63: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'."
A court, as part of the sentencing process, is required to state the indicative sentence for each offence: the Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2). There is no statutory requirement, to state any period of accumulation although there is no prohibition in doing so.
The principles governing the concurrency or accumulation of sentences were explained in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27], where Howie J (Adams and Price JJ agreeing) explained that: "… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality … If [the sentence does not reflect the overall criminality of the offending] the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences."
As the Crown pointed out in this case, the applicant does not contend that the sentences ought not to have been partially accumulated. Rather, the applicant's complaint is in respect of the identical period of accumulation for offences of differing seriousness. That complaint contains two premises, neither of which, as a free standing proposition, is correct. The first premise is that the offences of which the applicant was convicted were of varying degrees of seriousness. The second premise is that there must be a difference in the period of accumulation having regard to the seriousness of the offences.
In the present case, there could be real room for debate as to whether there was a sufficient difference of substance in the objective seriousness of the offending in respect of counts 1, 3 and 4 so as to be able to draw any distinction between them which has any relevance. As to the second premise, whilst the degree of accumulation between offences may reflect an error in the totality of the sentence imposed in a given case, that is not the case here, in circumstances where the first premise has not been made out.
But in any event, the complaint does not raise a point of substance in this case given that the sentencing judge imposed an aggregate sentence. In that regard, the sum of the indicative sentences is 14 years and 3 months. It is apparent that, in imposing an aggregate sentence of 9 years and 9 months, his Honour understood that he was required to impose a total sentence that had proper regard to the objective seriousness of the offences, and the mitigating factors that were relevant to the applicant's circumstances and the principles of sentencing that were applicable, including general deterrence, so as to reflect the applicant's overall criminality.
In my opinion, the Crown's submission is correct and no error is demonstrated in the exercise of his Honour's sentencing discretion.

Orders

Accordingly, I propose the following orders: (1) Grant leave to appeal; (2) Appeal dismissed.
WALTON J: I agree with Beazley P.
R A HULME J: I agree with Beazley P.

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