MACDONALD v REGINA

Regina v Henry (1999) 46 NSWLR 346 Regina v Engert (1995) 84 A Crim R 67 Regina v Israil [2002] NSWCCA 225 Regina v Hemsley [2004] NSWCCA 228 CASES CITED: Regina v Todd (1982) 2 NSWLR 517 Mill v Regina (1988) 166 CLR 59 Regina v Johnson (CCA, unreported 16 May 1997) Regina v Hathaway [2005] NSWCCA 368 Regina v Shorten [2005] NSWCCA 106 SZ v Regina [2007] NSWCCA 19

PARTIES: David Gregory MACDONALD v REGINA

COUNSEL: Crown: L. Babb App: H. Cox

SOLICITORS: Crown: S. Kavanagh App: Aboriginal Legal Service Limited

IN THE COURT OF CRIMINAL APPEAL No. 2006/2911

McCLELLAN CJ at CL HOWIE J HALL J

MONDAY 16 APRIL 2007 DAVID GREGORY MacDONALD v. REGINA Judgment

1 McCLELLAN CJ at CL: I agree with Hall J. 2 HOWIE J: I agree with Hall J. 3 HALL J: The applicant, David Gregory MacDonald, seeks leave to appeal from a sentence imposed upon him in the District Court of New South Wales on 23 March 2006. The notice of application for leave to appeal is dated 19 December 2006. 4 The applicant pleaded guilty on 30 January 2006 to one count of attempted robbery armed with an offensive weapon: s.97(1) ("armed with offensive weapon, or instrument, or being in company with another person …") and s.344A ("attempts") of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is 20 years imprisonment. 5 The offence in question occurred on 30 May 2000. 6 The court, when sentencing the applicant, took into account on a Form 1, an offence of being armed with intent to commit an indictable offence. That offence is said to have occurred on 5 June 2000. 7 On 23 March 2006, his Honour, Acting Judge Mahoney, QC., imposed a term of imprisonment of five years, to commence 23 March 2006 and to expire 22 March 2011 with a non-parole period of two years to expire on 22 March 2008. 8 The application for leave to appeal was founded on four grounds as follows:-

(a) His Honour erred in failing to take into account as a mitigating factor the applicant's mental disorder at the time of the commission of the offence.

(b) His Honour was in error in not moderating the sentence as a result of lengthy and unexplained delay on the part of prosecuting authorities.

(c) His Honour erred by finding that he was bound to apply the guideline judgment of Regina v. Henry (1999) 46 NSWLR 346.

Agreed facts on sentence 9 The agreed facts on sentence were set out in a document which I reproduce below:- "At about 7.30 pm on Tuesday 30th of May 2000, Paul Pessotto was working behind the counter of Slicker Liquor at the corner of Elizabeth Drive and Monash Place, Bonnyrigg. Pessotto noticed the accused enter the store holding two syringes, one in each hand. Pessotto noticed that the syringes were each filled with a red coloured liquid consistent with blood. The accused was holding both syringes on either side of his waist and stomach pointing towards Pessotto. Pessotto said, 'What do you want?'. The accused said, 'Open the till'. Pessotto delayed in opening the till and the accused said again, 'Open the till'. Pessotto opened the till and stepped backwards. The accused then stepped forward. He placed both syringes in his left hand and reached inside with his right hand. As he did this, Mr Pessotto grabbed a wooden baseball bat from under the counter and hit the accused on his left shoulder. The accused then ran from the store empty handed. Pessotto gave chase and saw the accused run along Monash Place. Pessotto returned to the store and saw there was a red substance on a fifty dollar note that had been dropped on the counter. Police attended the premises and took possession of the $50 note for the purposes of a DNA analysis. Some six days later at about 10.30 am on Monday the 5th of June 2000, Mr Pessotto was again working at the counter of Slicker Liquor at Bonnyrigg. Pessotto saw the accused enter the store. Pessotto noticed that the accused was holding a syringe in his left hand and that the syringe contained a red coloured liquid consistent with blood. Pessotto picked up his wooden baseball bat and the accused saw the bat and ran from the premises. Again Mr. Pessotto gave chase and saw the accused run down Monash Place. On 23 June 2000, the stained $50 note was conveyed to the DAL. On 10 July 2001, a buccal swab was taken from the accused whilst an inmate at the John Maroney Correctional Centre (on an unrelated matter) pursuant to Part 7 of the Crimes (Forensic Procedures) Act 2000. The sample was then forwarded to the DAL. On 6 April 2004, a certificate was prepared by David Bruce, Analyst, of the DAL. Bruce found the accused had the same DNA profile as the DNA recovered from the stained area of the $50 note. This profile was expected to occur in fewer that 1 in 10 billion individuals in the general population. The accused at this time was no longer in custody and was circulated as a suspect in relation to the above offences. On 31 January 2005, the accused was arrested in relation to this matter. When the accused was asked about this matter by police, the accused said, 'I can't remember much about back then because I was on drugs heavily'. A forensic procedure was conducted by consent on the accused by way of a buccal swab on 31 January 2005. This swab was delivered to the DAL on 10 February 2005. In a certificate dated 6 May 2005, David Bruce confirmed that the accused's DNA retrieved from the buccal swab had the same DNA profile as the DNA recovered from the stained area of the $50 note. Again, Bruce confirmed that this profile is expected to occur in fewer than 1 in 10 billion individuals in the general population." 10 Acting Judge Mahoney correctly emphasised that the offence in the indictment and that on the Form 1 were both very serious offences and he observed that (remarks on sentence, p.4):- "The courts must make clear to the whole community that this conduct is not likely (sic, 'lightly') to be tolerated and will be severely punished." 11 Amongst the several issues for consideration on the application for leave to appeal the following matters are central to the determination:

(a) The objective criminality of the offences and the application of the Henry guideline judgment.

(b) The applicant's ill-health (in particular, his mental health) and the implication for sentence arising from the same.

(c) The delay between the date of the offence and the sentence. 12 The applicant was 23 years of age at the date of the offences (date of birth, 7 August 1976). He is of Aboriginal descent. He is the eldest of three children and was educated at Meadowbank and Cessnock Public Schools. He left half way through Year 11. He commenced the use of drugs at the age of 15 (heroin). His drug use escalated and he was a heroin user as at the dates of the offences. He commenced a de facto relationship with his ex-partner in 1994 and had three children from the relationship which ended in 2003. 13 In the Pre-Sentence Report (p.2) it is said that he last held employment some nine years before the date of that report.

Health issues 14 The applicant suffered endocarditis in July 2000 resulting in a leaking heart valve and some form of organic brain damage leading to epilepsy. 15 In the Pre-Sentence Report (p.2), the following appears:- "Mr MacDonald appears to assume little responsibility for his own day to day affairs with control of these matters being invested to his mother. Daily contact with his children endows the offender with some emotional stability. However, it is apparent that this emotional and physical support is insufficient motivation to address ongoing drug dependency." 16 In a report made by Mr. Peter Champion, Consulting Clinical Psychologist, dated 16 February 2006 (p.6), it is stated that the applicant claimed to have been drug free for some four to five years. There is, however, conflicting evidence on this point. There were no obvious indications, according to Mr. Champion, that the applicant was "unfit" on the basis of intellectual capacity or mental illness. 17 A medical report from Dr. David Taylor dated 22 March 2006 was tendered at the sentencing hearing. Dr. Taylor is a cardiologist and he confirmed the diagnosis of cardiac bacterial endocarditis. The applicant had a lesion on the mitral valve of the heart. He underwent cardiac surgery for mitral valve repair on 13 July 2000. He was discharged on 17 August 2000. 18 Subsequent seizures were diagnosed as epilepsy. Dr. Taylor noted that epilepsy had been difficult to control and that the applicant had significant cerebral damage. Its precise nature is not identified. The epilepsy was related to the cerebral micro-embolic and abscess due to his endocarditis. Trauma to the skin would expose the applicant to further risk of infection of the mitral valve and, accordingly, this limited the available fields of employment that were open to him.

Other offences 19 On 11 May 2001, the applicant was sentenced to one count of use offensive weapon to prevent lawful detention. He was sentenced to imprisonment for 15 months with a non-parole period of eight months to commence on 11 May 2001. He received a concurrent sentence of eight months on one count of drive conveyance taken without consent of the owner. 20 The applicant was released on 18 January 2002.

(a) Ground 1 - His Honour erred in failing to take into account as a mitigating factor the applicant's mental disorder at the time of the commission of the offence 21 There are two factual matters that are relevant to the applicant's mental condition. The first is the nature of the condition and the second is the timing of its onset. 22 The applicant came under the care of Dr. Taylor when hospitalised between 25 June 2000 and 17 August 2000, that is, 26 days after he committed the relevant offence. Dr. Taylor concluded:- "… it was likely that (the applicant's) illness preceded admission to hospital (25 June 2000) by up to two weeks. In that time, he would likely have had intermittent high temperatures and altered behaviour." 23 There is no evidence that establishes that the applicant suffered a physical or mental disorder at the time of committing the relevant offence on 30 May 2000. This, however, is a point of contention in these proceedings. In the written submissions for the applicant, it is said:- "37. His Honour accepted that the infection of the brain and associated confusion and mental disarray resulted in a mental disorder such that his Honour found he had been affected at the time of the commission of the offences to the extent that his capacity to plan had been gravely compromised. It is submitted that as a corollary, his judgment had been similarly compromised by his illness." 24 In the respondent's written submissions, however, it is stated:- "11. The applicant's written submissions … at 36-37 put that his Honour accepted that the infection of the brain resulted in the applicant's planning capacity being gravely compromised and that it follows that his judgment was similarly compromised. The respondent submits that while his Honour found at ROS 13.4 that the circumstances within which the indictment and Form 1 offences were committed evidenced severely compromised planning capacity, his Honour did not say that the planning capacity was compromised as a result of a brain infection. To have so found would have been inconsistent with the evidence." 25 On the evidence before the sentencing judge, the respondent's last-mentioned submission on the point is correct and should be accepted. That conclusion leads to the further point that reliance upon the line of case law that has considered the relevance of mental disorder in the sentencing process (including Regina v. Engert (1995) 84 A. Crim. R. 67, 71 per Gleeson, CJ. and Regina v. Israil [2002] NSWCCA 225 at [22] and other cases referred to in the written submissions for the applicant at [38]) has limited application in the present case. 26 As Grove J in Regina v. Hemsley [2004] NSWCCA 228 observed, mental illness may be relevant in a number of ways: [33] to [36]. Some of the considerations there referred to may, Janus-like, face in opposite directions - one or more may favour moderation in sentence, whilst another consideration may call for special deterrence, as where an offender presents a level of danger to the community. 27 The sentencing judge was entitled to have some regard for the fact that the applicant in this case could pose a danger to the community unless his drug problem is controlled and hopefully removed by appropriate measures. 28 The learned sentencing judge did, in my opinion, bring into account the applicant's mental and physical health in a way that was quite appropriate. He firstly determined that a sentence less than full-time custody was inappropriate but his Honour did make a finding of special circumstances with the result that the applicant's non-parole period was determined at 40% of the total term of imprisonment. There was, in my opinion, no warrant for further applying the applicant's health to reduce the sentence that was otherwise determined to be appropriate. 29 I consider that the issue involving the applicant's mental health was properly considered in the overall context of this case, which included the applicant's drug problem. 30 Accordingly, the submission made on behalf of the applicant that general deterrence ought to have played a lesser role in the sentencing exercise and therefore the sentence should have been moderated, must be rejected.

(b) Ground 2 - His Honour was in error in not moderating the sentence as a result of lengthy and unexplained delay on the part of prosecuting authorities 31 The applicant relies upon the delay of two years and nine months for a DNA certificate to be issued. He was in custody from 11 May 2001 until 10 January 2002. It was submitted (written submissions, [41]):- "With due diligence, the applicant could and should have been charged with the current offences prior to his release from that custody." 32 The sentencing judge observed (remarks on sentence, p.12) that it was no surprise that the offender claimed under oath to have no recollection of having committed either of the two offences. He accepted the truthfulness of the applicant's claim not to be able to remember either offence and on the question of delay stated (remarks on sentence, p.15):- "But in this case, as the Crown submitted, if he cannot remember having committed the offence, there would not have been too much suspense or uncertainty about the matter. The Crown does not contest the facts sworn to by the offender that at the time of the taking of the buccal swab on 10 July 2001 he asked the authorities at that time to … wipe the slate clean for him for anything else that he might have committed that he was unable to remember. By way of general confession, at least, he must have felt better in his mind, but there was nothing that he was able to remember and he still cannot remember these two offences, so that the delay would not have been of any particular significance, in my view, in this case, except until he was arrested on 31 January, and since then it does not seem to me that there has been an inordinate amount of delay for which the Crown or the Director of Public Prosecution should be held in any way responsible." 33 The sentencing judge later concluded (remarks on sentence, p.17):- "It seems to me that although there has been a delay of several years in this case, it is not the sort of delay which has weighed heavily or at all, on the mind of this offender until such time as he was charged on 31 January last year. Accordingly, it could not be said that he faces any unfairness by standing for sentence today and being sentenced." 34 Counsel for the applicant relied upon the well known principle in Regina v. Todd (1982) 2 NSWLR 517 at 519 on the question of delay. Reference in this respect was also made to the judgment in Mill v. Regina (1988) 166 CLR 59 at 64. 35 Reliance was also placed upon the decision of this Court in Regina v. Johnson (unreported 16 May 1997 at p.7) which emphasised that delay on occasions may mitigate the sentence to be imposed upon an offender where the time between the commission of the offence and the sentence is sufficient to enable a court to see that the offender has become rehabilitated, or that the rehabilitation process has made good progress. 36 The Crown referred to the recent decision of this Court on the question of delay in Regina v. Hathaway [2005] NSWCCA 368 in which case the Chief Justice agreed with the observations of McClellan CJ at CL at [41] to [43]. Reference was also made to the judgment of James J in Regina v. Shorten [2005] NSWCCA 106 at [19]. 37 The Crown has relied upon the fact that there was no relevant delay from the time of arrest as the applicant was committed for trial less than six months after his arrest. 38 In relation to the alternative way in which delay may be relevant, the Crown emphasised that the sentencing judge specifically addressed the issue of the applicant's rehabilitation, noting that he continued his drug use after being hospitalised and effectively until sentence. This tended to show a lack of progress in terms of rehabilitation. He committed further, although minor, offences following release from hospital and he was sentenced to a relative short term of imprisonment thereafter. 39 The third way in which delay is said to have been relevant was that if there had not been the delay in question and the applicant had been sentenced during the currency of his non-parole period for the 1999 offence, "he would in all likelihood have received a cumulative sentence for the offence of attempted armed robbery" (applicant's written submissions, [53]). 40 As the Crown observed, whether or not a cumulative sentence would have been imposed if the applicant had been sentenced during his non-parole period for the 1999 offences is speculative. The structuring of sentences for multiple offences is an aspect of sentencing that does call for the exercise of discretion. Whether that discretion would have been or may have been exercised in a way that favoured the applicant is a speculative question and I do not consider that principle would indicate that his Honour erred in the approach taken by him on question of delay. In other words, I consider the approach taken by the sentencing judge on this aspect was entirely correct.

(c) Ground 3 - His Honour erred by finding that he was bound to apply the guideline judgment of Regina v. Henry (1999) 46 NSWLR 346 41 It was submitted on behalf of the applicant that, given that the offence itself was an attempted armed robbery as well as what are described as "the unusual circumstances which existed in both the delay … and the applicant's very serious health condition", there existed reasons to depart from the guideline judgment. 42 The sentencing judge specifically adverted to the fact that the guideline judgment did have application to attempted crimes against the person and property. 43 I do not consider that the learned sentencing judge erred in turning to the decision in Henry for general guidance and it has not been demonstrated that his Honour erred in the way in which he understood and applied the general guidance to be derived from that judgment.

(d) Ground 4 - The sentence is manifestly excessive 44 It was submitted that, having applied the guideline judgment in Henry, the sentencing judge erred in commencing with a starting point of six years. It was submitted that the starting point of six years was manifestly excessive and that, accordingly, the overall sentence imposed was outside the sentencing judge's reasonable sentencing discretion. 45 In determining the sentence in the present case, a starting point of six years was taken which was then discounted by 16 to 17% to arrive at a total term of five years. The starting point, it was submitted, was too high. 46 The Crown correctly refers to the recent judgment in SZ v. Regina [2007] NSWCCA 19 wherein Buddin J (with whom Simpson and Howie JJ agreed) noted at [40]:- "In assessing the contention that the sentences imposed were manifestly excessive, it is important to focus upon the sentences actually imposed rather than upon the starting point or notional sentence." 47 In determining how the guideline should be applied, the sentencing judge was entitled to take into account that the applicant was not the comparatively young offender referred to in the guideline judgment, that he did have a criminal history and I accept the Crown's submission that his choice of weapon (two blood-filled syringes) in respect of the relevant offence that occurred on 30 May 2000 was of particular significance. 48 I do not consider that the sentencing judge's discretion is shown to have miscarried and no error of principle in my opinion has been demonstrated. I accept the submission made in the Crown's written submissions in paragraph 35, which I reproduce:- "35. In the respondent's submission, the sentence is not manifestly excessive due to the following:- • the maximum penalty for the offence is imprisonment for 20 years. • In relation to the Form 1 offence, this was required to be taken into account by his Honour with a view to increasing the relevant sentence: Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 137 A Crim R 180. • The applicant had an involvement in stealing and related offences dating back to 1995. He had previously received a sentence of incarceration for offences of Drive Conveyance Without Consent and Use Offensive Weapon to Avoid Lawful Apprehension. The applicant's criminal history, whilst not as extensive as some, disentitles him to any leniency and indicates that it is more appropriate to give more weight to factors such as retribution and general and specific deterrence. This is especially so as the applicant was on a bond at the time of his offending. • The applicant's weapon of choice was two blood-filled syringes. • Comparatively, the applicant was not young when he committed the offences. • General deterrence is of significant importance in relation to this offence; any sentence must be seen as a strong deterrent to those who may be tempted to engage in similar offences. • His Honour gave the applicant a generous discount for his guilty plea. • His Honour discussed the applicant's subjective features at ROS 6-13 and took them into account, including his expressions of contrition. His Honour also took into account the applicant's special circumstances and the need for his supervision on release." 49 I, accordingly, propose that:-

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