John Roy Withers v R

Delfino v R [2008] NSWCCA 18 Fisher v R [2008] NSWCCA 103 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1996-1997) 189 CLR 295 CASES CITED : R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Swan NSWCCA 47 Regina v Szabo [2003] NSWCCA 341 Veen (No 2) v The Queen (1988) 164 CLR 465

PARTIES: John Roy WITHERS Regina

COUNSEL: Ms H Cox (Applicant) Mr P Miller (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/6948

GROVE J BUDDIN J R A HULME J

1 GROVE J: I agree with R A Hulme J. 2 BUDDIN J: I agree with R A Hulme J. 3 R A HULME J: This is an application for leave to appeal against a sentence for a charge of robbery in company imposed by his Honour Judge Conlon SC sitting in the District Court at Bega. His Honour sentenced the applicant to imprisonment for 5 years with a non-parole period of 3 years to date from 26 March 2007. The offence is against s 97(1) Crimes Act 1900 and the prescribed maximum penalty is imprisonment for 20 years.

4 At the same time his Honour imposed a sentence in identical terms upon a co-offender, Nathan James Streat.

5 The sole ground of appeal asserts that the applicant "has a legitimate sense of grievance when comparing the sentence imposed upon himself with that imposed upon his co-offender".

6 The facts of the offence may be briefly stated as the parity contention is solely concerned with the respective personal circumstances of the applicant and the co-offender. The two men attended a service station on the Princes Highway at Coila at about 6.00pm on 26 March 2007 where they entered and approached the female owner. Streat produced a steel bar and held it at waist height while demanding that she hand over money. As she removed the cash drawer from the cash register and placed it on the counter she told them that they could take what they wanted. Streat removed about $1,500 in cash.

7 The applicant then asked for tobacco. She replied that she did not have any. He then said, "I'm sorry, I'm not going to hurt you but I need to do this". He then took some packets of cigarettes and some cigarette lighters from a display and a bag of $1 coins from the counter. At this point the woman heard her three young grandchildren in the house adjoining the service station. Concerned that they might become involved in the incident she moved toward the doorway but the applicant gently placed his hand on her shoulder and moved her back to where she had been standing, saying, "Don't' go back there, stay here". The two men then left.

8 The victim immediately rang triple-0. Police located their vehicle south of the Moruya township. There was a pursuit and they were eventually stopped and arrested. They were taken to Batemans Bay police station where attempts to speak to them were unsuccessful because they appeared unwell and affected by drugs.

9 The sentencing judge took into account the vulnerability of the service station owner and that a metal bar had been used to put her in fear. He accepted that the offence was not planned but "opportunistic". His assessment was that the offence fell within the mid range of objective seriousness for an offence of its type. There is no challenge to that assessment.

10 The applicant was born in March 1982 and so he was aged 25 at the time of the offence. He had a criminal history that the sentencing judge regarded as not entitling him to any leniency. It includes offences in New South Wales in 2003 to 2007 of taking and driving a conveyance without the owner's consent, larceny, stalking or intimidation, damaging property, contravening an apprehended violence order, possessing housebreaking implements, goods in custody, stealing in a dwelling and breaking out, assault, drug possession and having a knife in a public place. He also had a history of convictions in Victoria in 1999 to 2002 for offences including entering a building with intent to steal, receiving stolen goods, possessing a dangerous article, theft, burglary and car theft. The applicant had been released from prison on the expiry of his last sentence just 4 months prior to the offence. The Crown has pointed out, rightly in my view, that it would have been open to the sentencing judge to view such a record as indicating that retribution, deterrence and protection of the community warranted a more severe penalty being imposed: Veen (No 2) v The Queen (1988) 164 CLR 465 at 477.

11 There were many unfavourable features attending the applicant's upbringing. His parents separated when he was about 3 years old. He was raised by an alcoholic father who travelled the country on the carnival/show circuit. To the author of the Pre Sentence Report he described his father as his "best friend" despite occasions of physical and emotional abuse. He also experienced times of living on the streets where he was exposed to alcohol and drugs. His father died in 2003 and he was then reunited with his mother who had a long history of addictions and physical and mental health problems.

12 The applicant was educated to the level of Year 9, having been schooled by correspondence, and subsequently completed some short TAFE courses. His employment history, however, has been limited to casual fruit picking.

13 The applicant used cannabis from the age of 12 and amphetamines from 18. This continued up until his arrest for the present matter. The applicant told the Probation and Parole Officer that he had been using ice methamphetamine in the four months between his release from gaol and his re-incarceration and in that time had only slept four times. He claimed to have been under the influence of ice for the week leading up to the offence and to have little recollection of it. The officer expressed the view that the applicant demonstrated a degree of understanding regarding his addictions and said that he had expressed interest in addressing these through a residential rehabilitation program.

14 There is a history of mental health problems. The applicant has had numerous admissions to a mental health facility in Coffs Harbour and has at times been prescribed antidepressant medication. A psychiatric report in 2004 noted psychotic and mood symptoms and, although significant drug and alcohol issues complicated a diagnosis, the author expressed the opinion that the applicant suffered an antisocial personality disorder.

15 Two reports by Dr Stephen Allnutt were tendered to the sentencing judge. It was noted in those reports that the applicant had first seen a psychiatrist at age fifteen when he was diagnosed with attention deficit hyperactivity disorder and was placed on dexamphetamines, which he took until the age of 18. The history included eight or nine admissions to psychiatric hospitals, the last in 2006 following a suicide attempt. There had been previous suicide attempts.

16 Dr Allnutt's first report contained a guarded diagnosis of the applicant suffering from a psychiatric disorder with mood and psychotic characteristics, aggravated and compounded by long-term substance abuse. He did not believe a mental illness defence was available but was unable to be definitive about the possible contribution of the applicant's psychiatric symptoms to the offence. The doctor provided a second report five months later, during which time the applicant had been on antipsychotic medication. In this report he ventured the diagnosis that the applicant "suffers from a psychiatric disorder in the form of a mental illness consistent with either schizophrenia or schizoaffective disorder". He also concluded that at the time of the offence "he was experiencing psychotic symptoms aggravated by substance abuse" and that "his judgment was impaired due to the combination of intoxication and mental illness".

17 The author of the Pre Sentence Report noted that the applicant expressed sympathy for the victim and that he had verbalised some understanding of the possible effects that she may be feeling and wished to write to her a letter of apology.

18 It is necessary to say something about the co-offender, Nathan Street. He was born in May 1984 and so he was a little more than 2 years younger than the applicant. He had a criminal history in New South Wales that included offences of larceny, assaulting and resisting police, obtaining money be deception, taking and driving a conveyance without consent, drug possession, having a knife in a public place, break, enter and steal, making explosives, stealing in a dwelling, receiving stolen property, goods in custody, malicious wounding and assault occasioning actual bodily harm. He had been imprisoned a number of times and was last released almost a year before the offence. At the time of the offence he was subject to a good behaviour bond for an offence of driving whilst disqualified. The comment I made about Veen (No 2) in relation to the applicant's record applies equally to Mr Streat's record.

19 Mr Streat was the youngest of seven adopted siblings and was raised in a stable family environment in the Coffs Harbour area. There was a diagnosis of ADHD in his early teens following problematical behaviour as a child. He was prescribed a variety of antidepressants. At one point when he was taking Zoloft he became suicidal but when that medication was replaced with another there was an improvement. He left school at sixteen and then commenced a TAFE course in motor mechanics but had difficulty finding employment in that field. His most recent employment was in repairing cars and bikes for his landlord in lieu of rent.

20 He was described as having a long history of polysubstance abuse dating back to his early teens. Alcohol and drug abuse commenced at the age of about twelve. By fifteen he was using speed, ecstasy and LSD but mainly amphetamine. Progression to ice methamphetamine lead to further chaos in his life. Like the applicant, he had been abusing methylamphetamine and similar drugs in the four months prior to the offence. He described himself as "coming down" and being desperate to acquire more drugs when he committed the offence.

21 The sentencing judge quoted the following from the report of a psychologist: "Rowan has a long criminal and antisocial history in his short life. While he has had a generally supportive and positive family life, his overarching feelings of victimisation and lack of assertiveness (a passive-aggressive nature) have created a myriad of problems including school difficulties, criminal behaviour and ultimately addiction to drugs. The negative consequences of his behaviour have been enormous. His family relationships have suffered, he has lost the opportunity for education, he has been incarcerated, he has lost relationships, been exposed to hepatitis C, lost jobs, he has lost his ability to have a licence for years to come."

22 Both the Pre Sentence Report and the psychologist's report indicated that Mr Streat had little insight into his offending behaviour but it was noted that he was motivated to seek treatment in relation to his drug and alcohol issues, the former report including that he was motivated to participate in a residential rehabilitation program.

23 The principal argument advanced by Ms Cox, who appeared for the applicant in this Court but not the court below, is that the personal circumstances of the two offenders were so different that the imposition of identical sentences gave rise to a justifiable sense of grievance because the applicant should have received a lesser sentence than his co-offender. She relied upon Lowe v The Queen (1984) 154 CLR 606. See also Postiglione v The Queen (1996-1997) 189 CLR 295 and the useful summary of parity principles in Delfino v R [2008] NSWCCA 18 at [62] - [63].

24 Reference should also be made to R v Swan [2006] NSWCCA 47 at [71]. There Barr and Howie JJ referred to the caution that should be exercised in this Court before determining that one offender has a justifiable sense of grievance in a case where the same judge sentenced two offenders at the same time and gave detailed reasons for imposing the sentences that he or she did by having regard to the relative criminality and subjective circumstances of each as well as to the relevant sentencing principles.

25 Ms Cox submitted that there were the following features in the applicant's case that warranted a lesser sentence: (1) A harsh, deprived and nomadic childhood

(2) A criminal history that lacked the matters of violence in the co-offender's record

(4) Lesser moral culpability for the offence because judgment was impaired, in part, by mental illness

(5) Harsher conditions of custody because of mental illness

(6) The applicant, in contrast to the co-offender, was not on conditional liberty at the time of the offence

26 The first three of those matters, to my mind, were not of such significance that discrimination between the two offenders in sentence was mandated. The major subjective features of the two men concerned their drug addiction and, in the case of the applicant, mental illness. I am mindful of the submission of Ms Cox that it was the cumulative effect of these six features that warranted a lesser sentence for her client but whether considered in isolation, or in conjunction with the other matters, these three matters do not support the contention in a material way. In relation to the second matter concerning the respective criminal histories of the two, I set out the nature of their previous convictions in some detail earlier at [10] and [18] in order to demonstrate that they both have bad records for men of their age, including some matters of violence. Analysis and comparison of the fine detail of their convictions does not advance the applicant's cause.

27 Dealing next with the contention concerning the applicant's moral culpability for the offence, it is noted that the learned sentencing judge found as follows: The courts have continuously recognised the principle that the fact that an offender is suffering a mental illness or disability may mitigate the culpability of the offender … However, it cannot be said in my view that in the present case the offender Withers was acting without knowledge of what he was doing or that his actions were wrong. Indeed I am satisfied beyond reasonable doubt that the offence was committed by both offenders out of their need to satisfy their addictions. The criminal culpability of both offenders is identical. In my view it is appropriate that I take into account Withers' mental health issues as referred to in the reports of Dr Allnutt when I come to the question of special circumstances.

28 This passage immediately follows quotation from the second report of Dr Allnutt where the doctor expressed the view that it was "reasonable to conclude" that the applicant "suffers from a psychiatric disorder in the form of a mental illness consistent with either schizophrenia or schizoaffective disorder", and that whilst no mental illness defence was available, the doctor believed that the applicant's judgment was impaired due to a combination of intoxication and mental illness. The doctor did not express a view as to the extent to which either of those features contributed to the impairment of judgment.

29 There is support in the authorities for the sentencing judge adopting the approach in the passage of his remarks just referred to. The bare fact of a diagnosis of mental illness did not automatically produce the result that the sentence should be reduced: R v Engert (1995) 84 A Crim R 67 per Gleeson CJ at 68. The extent to which it contributed to the impairment of judgment referred to by Dr Allnutt was incapable of quantification and so it cannot be said that it was not open to the sentencing judge to conclude that the applicant acted with knowledge of what he was doing and that it was wrong. The manner in which the applicant acted during the course of the robbery was indicative of this.

30 Ms Cox was taken to a passage in the transcript of the proceedings on sentence where counsel then appearing for the applicant conceded that it would be open to the sentencing judge to consider that the motivation of both offenders in committing the offence was related to their abuse of drugs rather than, in the case of the applicant, to mental health issues as well. Ms Cox then made a similar concession but nevertheless pressed her contention that the mental illness of her client was relevant in other ways and maintained her submission that it warranted a distinction in the sentence imposed when compared to the co-offender.

31 One of the mostly commonly cited authorities on the question of the relevance of an offender's mental condition on sentence is R v Hemsley [2004] NSWCCA 228 where Sperling J said at [33] - [36]: 33 Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

34 Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

35 Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

36 A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24].

32 Ms Cox submitted that the applicant's mental illness was relevant in the third way described by Sperling J. I have earlier referred to Dr Allnutt's opinion as to the applicant's mental illness. It is appropriate to mention some of the symptoms set out in his reports. There is reference to auditory hallucinations and at times probable grandiose and persecutory delusional beliefs. There was a long history of depressive disorder with depressed mood and suicidal ideation. Paranoia was detected with, for example, the applicant thinking that his food was being poisoned. The applicant had been on antipsychotic medication for an extended time when Dr Allnutt saw him for his second interview. The report of that interview includes that the applicant had signed himself into the "non-association" section of the gaol because he had been feeling paranoid. He was worried about a certain ethnic cluster amongst the inmates. He had avoided watching television whereas previously he claimed to have been receiving subliminal messages from television. When he listened to the radio he heard messages through the songs with something about lotto numbers. He thought there was a government conspiracy to damage his frontal lobes. He was experiencing panic attacks.

33 The conclusions expressed by Dr Allnutt about the applicant's mental illness were based not only upon what the applicant told him but also upon an extensive review of clinical notes, assessments and other documents generated in the preceding four years.

34 I am of the view that Ms Cox has made good her contention that the custodial experience for the applicant will weigh more heavily upon him because of his mental illness. It has impacted upon his placement within the gaol because of his fears of other inmates arising from his paranoid delusional beliefs. It clearly has, and will, impact upon his ability to socialise with other inmates.

35 This is not a case in which the fourth of the matters referred to by Sperling J in Hemsley is relevant. The countervailing consideration of the protection of the community generally becomes relevant in a case in which the offender's moral culpability for the offence is reduced because of a lesser capacity to reason, or appreciate the wrongfulness of the conduct, or to exercise appropriate powers of control. In such a case the emphasis upon denunciation and general deterrence might be reduced but the protection of the community may receive greater emphasis: see Engert at 71. But these are not considerations in the present case.

36 The sentencing judge took the applicant's mental illness and need for rehabilitation in respect of his drug issues into account in reducing the proportion of the sentence represented by the non-parole period. In my view, the applicant's mental illness was relevant generally, and should not have been confined to a consideration of the length of the non-parole period. Parole for the applicant is a matter for the Parole Authority to determine and it cannot be assumed that he will be released immediately upon the expiration of the non-parole period. The conditions of the applicant's custodial experience potentially transcend the non-parole period and, theoretically at least, may have a bearing on the whole sentence. 37 The Court was not referred to any authority that indicated that the mental illness of an offender, relevant in the way it is in this case, should be confined to the assessment of the non-parole period. Indeed, there is authority to the contrary that in an appropriate case it may be relevant to the assessment of the total sentence as well as the non-parole period: see the discussion in the judgments of Grove J in Regina v Szabo [2003] NSWCCA 341 at [14] - [16] and of Hulme J in Fisher v R [2008] NSWCCA 103 at [38] - [39].

38 That leaves the last of the contentions raised on behalf of the applicant, that at the time of the offence the co-offender was subject to a s 9 good behaviour bond in respect of an offence of driving whilst disqualified. The sentencing judge referred to this but said nothing as to whether he regarded it as being an aggravating factor. In those circumstances it may be inferred that he did not take it into account in that way. That is consistent with a remark he made in the course of submissions that he did not regard it as a matter of "great significance". The Crown submitted that there was no error in this respect. Assuming, but without deciding, that in the context of all of the circumstances of the case of Mr Streat that this was a matter of such importance that an increase in the sentence to be imposed upon him was required, with the myriad of factors the sentencing judge was required to take into account I do not think this matter was one that required anything more than a marginal distinction in sentencing the two offenders.

39 A final matter to note is the stance taken by the Crown in the proceedings before the sentencing judge. It was the judge who first raised the question of parity. Counsel for the applicant was in a difficult position in making submissions on the topic because he was appearing for both offenders. The representative of the Crown submitted that the judge should find that the motivation of both offenders was drugs rather than mental illness. He continued, however, to submit: Mr Withers has got a somewhat stronger subjective case. He wasn't on a bond at the time he committed this, he has a demonstrated mental illness, and indeed the Crown concedes special circumstances in this case, if only because of his mental illness. ... And he has also demonstrated more remorse. So even just in relation to those factors his subjective case is somewhat stronger.

40 The judge did not deal with this submission in his remarks. It must be noted, however, that his judgment was ex tempore and allowance must be made for the high workload of District Court judges, particularly when called upon to dispose of long lists of cases on country circuits.

41 In this Court the Crown submitted that the applicant received the benefit of his mental illness being taken into account by a generous reduction of his non-parole period to sixty percent of the head sentence. It was submitted that it would be double counting to take that issue into account in reducing the head sentence as well. However, if the mental illness of the applicant were taken into account in relation to the overall sentence, it would necessarily follow that there would be an impact upon the length of the non-parole period and that is not to double count. It is also not double counting to take the applicant's mental illness into account in moderating the length of the total term because of the effect it has had, and will have, upon the harshness of the custodial experience, and then also take it into account in setting the non-parole period because of the need for a longer period of parole supervision to monitor the applicant's compliance with treatment and medication.

42 I have concluded that the mental condition of the applicant was a matter that stood in mitigation over and above the value attributed to it by the sentencing judge. It warranted a distinction in the sentences imposed upon the two offenders. The distinction should not have been great, but there should have been one nonetheless. Viewed objectively, there is a basis for the applicant to have a justifiable sense of grievance. A lesser sentence was warranted and should have been passed.

43 I have taken into account the affidavit of the applicant on the issue of resentencing. It provides further confirmation of the difficulties he has experienced in the custodial environment as a result of his mental illness. On resentencing I would find special circumstances for the reasons indicated above. An additional reason is the need for the applicant to undertake such counselling and programs as may be considered necessary in relation to his abuse of illicit drugs. I would maintain the same ratio of non-parole period to total sentence as in the original sentencing order.

1. Leave to appeal is granted 2. The appeal is allowed 3. The sentence is quashed and in lieu the applicant is sentenced to a term of imprisonment comprising a non-parole period of 2 years 8 months with a balance of the term of the sentence of 1 year 10 months. Such sentence to date from 26 March 2007 with the applicant becoming eligible for release on parole on the expiration of the non-parole period on 25 November 2009.

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.