Marrow v R

Court of Criminal Appeal (NSW)|2015-10-21|Before: Hidden J, Davies J, Adamson J

Solicitors: Legal Aid NSW (Applicant) C Hyland, Solicitor for Public Prosecutions (Crown) File Number(s): 2013/290166 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 8 July 2014 Before: Christie ADCJ File Number(s): 2013/290166

Judgment

HIDDEN J: I agree with Adamson J.
DAVIES J: I agree with Adamson J.
ADAMSON J: The applicant, Kristian Marrow, seeks leave to appeal against the sentence imposed on him by Christie ADCJ on 8 July 2014. He was sentenced for one count of robbery contrary to s 94 of the Crimes Act 1900 (NSW), for which the maximum penalty is fourteen years' imprisonment. There is no standard non-parole period for the offence. He was sentenced to a term of imprisonment of six years with a non-parole period of three years and six months commencing on 25 September 2013, being the date on which he was taken into custody following his arrest.

The offending conduct

The following narrative is largely taken from the statement of agreed facts tendered by the Crown at the sentence hearing.
On Friday 20 September 2013, at about 3.28pm, the offender entered the Picton branch of the Bendigo Bank. He was wearing a black hat, large black sunglasses, a brightly coloured jumper, shorts and work boots. He carried a backpack. He approached one of the tellers and handed her a piece of paper, which was folded, on which the words: 'GIVE ME THE MONEY" were written.
The note also read as follows: *LOOK BUDDY I DON'T WANT ANY TROUBLE I HAVE A GUN IN MY POCKET NOW HAND OVER ALL THE MONEY OTHERWISE UR IN TROUBLE OK PS HAVE A NICE DAY . . V [smiley face]
The teller removed a bundle of $50 notes from her console and handed them to the offender. After the offender left the branch with the money, which totaled $6,750, staff activated the hold-up alarm.
Ultimately the offender was identified from the CCTV footage. He was arrested on Wednesday 25 September 2013. On the way to the Narellan Police Station, police asked the offender whether he worked. He responded that he had been fired on Thursday 19 September 2013. When investigators asked why he had been fired, the offender responded: "for stealing the pink slips of the pallets, I then had a brain snap and robbed a bank".
Soon after his arrival at the station, the offender took part in a recorded interview, in the course of which he adopted the statements he had made to police set out above.
A search warrant executed by police on the offender's home led to the discovery of the clothing worn by the offender when he robbed the bank; $2,455 in cash; and a St George Bank deposit slip dated 24 September 2013 recording a deposit of $2,700. A total of $5,155 was recovered: $1,595 remained outstanding.
The applicant remained in custody from the time of his arrest on 25 September 2013.

The sentence hearing

At the sentence hearing before Christie ADCJ, the Crown tendered documents which included: the agreed statement of facts; the applicant's criminal histories in New South Wales and Western Australia and his custodial history; the facts relating to the offences in Western Australia; and a victim impact statement of Ms Ross, the bank teller who had served the applicant and handed over the cash in response to his demand.
In her victim impact statement Ms Ross described the "profound impact" the offending conduct had had on her and her family. She has become "extremely wary" of others. Although she had worked for the Bendigo Bank since 2011, she has taken up casual employment in "a completely different industry" because of the offence. Her statement concluded: "I will never forget this matter and am quite angry that a stranger can have such a negative impact on my life."
The criminal history in Western Australia showed that in 2007 the applicant (who was then 25 years old) pleaded guilty to one count of burglary and stealing, which occurred on 7 January 2007; two counts of armed robbery; and two counts of attempted armed robbery, also in January 2007 as a result of which he had been sentenced to a total term of imprisonment of two years and six months which commenced on 28 January 2007. The circumstances of the armed robbery and attempted armed robbery offences are set out below. Date Location/ offence Description of event 21 Jan 2007, 2.42pm Caltex Service Station, Perth (armed robbery) Applicant wearing sunglasses. Passed note to two males behind the till, which stated that the applicant had a gun and instructed them to hand over money. They handed over $468 to the applicant who departed the scene. 26 Jan 2007, 3.17pm BP Service Station, Ballajura (attempted armed robbery) Applicant wearing sunglasses and baseball cap. Handed note to male attendant which stated the accused was armed with a gun and instructed him to hand over money. The recipient told the accused that there was no money. The accused grabbed the note and left the service station. 26 Jan 2007, 3.38pm Caltex Starmart, Mallaga (armed robbery) Applicant wearing sunglasses and baseball cap. Handed note to male attendant which stated the accused was armed with a gun and instructed him to hand over money. The attendant handed over $580 from the till. The applicant took the note and the money and left. 27 Jan 2007, 9pm Caltex Service Station, North Malaga (attempted armed robbery) Applicant wearing sunglasses. Handed note to male attendant which stated the accused was armed with a gun and instructed him to hand over money. The attendant realised that the applicant was not carrying a gun and pressed the hold-up alarm and locked the doors to the service station remotely. Police attended and arrested the applicant. He was interviewed and made some admissions.

I note for completeness the explanation given by McKechnie J, the sentencing judge in Western Australia, in the remarks on sentence, that the criminal law in that jurisdiction then provided that threats of violence were treated as amounting to being armed. This explains why the applicant's convictions were for armed robbery and attempted armed robbery, although he was not, in fact, armed.
Mr Townsend, who appeared for the applicant at the sentence hearing, tendered two reports from Dr Furst. The first, dated 18 May 2014, was prepared at the request of the applicant's solicitors. The second, dated 20 June 2014, was prepared after the Crown had provided him with material relating to the offences in Western Australia. Mr Townsend also tendered a copy of the note the applicant had taken into the bank (which is set out in full above).
Dr Furst was not required for cross-examination. He diagnosed the applicant as suffering from Schizophrenia (Chronic and treatment resistant); Substance Use Disorder (alcohol abuse); and Pathological Gambling.
In his first report, he opined, relevantly: "In my opinion, the offence in question was largely a spontaneous and impulsive act, notwithstanding the hold-up note he wrote in the bank on the back of a deposit slip and ineffective efforts to conceal his identity. He has a history of acting in an impulsive and maladaptive manner when previously psychotic, which was probably the case at the time in question before the court. In my opinion, his chronic schizophrenic illness prevented him from thinking through the consequences of his actions in a calm manner and/or controlling of his actions; however, his impairment was not so severe as to warrant a mental illness defence in the McNaughton's sense. His schizophrenic illness mitigates [sic] against the obvious seriousness of his actions."
He also addressed the effects of a custodial sentence on the applicant as follows: "In my opinion, a custodial sentence is likely to weigh more heavily on Mr Marrow than the average offender by virtue of his chronic mental illness and general vulnerability from other inmates. Prison settings in NSW, even with added mental health support, are harsh and frequently violent environments, which are more difficult for persons with chronic mental is [sic] to negotiate than the average offender."
In his second report, he confirmed his earlier opinion as follows: "I remain of the opinion that Mr Marrow was suffering from a psychotic episode at the time of the offence."
Dr Furst addressed the further material provided by the Crown, which included details of the previous offences: "In my opinion, having regard to all of the material from 2007 and the current brief, his actions at the time in question were probably goal directed [seeking money from the teller] and may not have been as spontaneous or impulsive as previously opined. He probably maintained some capacity to control himself, notwithstanding his psychotic state and apparent voices. He was probably aware his actions would induce fear in the victim and were against the law, meaning he probably had some awareness of the consequences of his actions, and made some efforts to conceal his identity. However, his acute psychosis and his schizophrenic illness generally probably still contributed to the poor judgment and apparent ambivalence he displayed when writing the hold-up note and committing the robbery in question on 20/09/13 and remain relevant mitigating factors."
The applicant's counsel at the sentence hearing accepted that a custodial sentence was necessary in light of the seriousness of the offence and the prior history in Western Australia. He submitted that it was a "very low key bank robbery" and that there was no evidence that the applicant was armed with anything but his note. He contended that the applicant's moral culpability was substantially lessened by his mental impairment and his compromised ability to judge his own actions and their effect on others.
Mr Townsend also submitted that the applicant was an inappropriate vehicle for general deterrence because of his psychiatric illnesses, and that, accordingly, that factor ought be given little weight. He did, however, concede that, notwithstanding his mental illness, specific deterrence was a little more significant having regard to his previous offending. When addressing the danger the applicant posed to the community, Mr Townsend submitted that the applicant was taking medication at the time of the offending, although it was not working, and that he would benefit from the additional support from the parole officers on his release in order to remain compliant with medication. He contended, in effect, that future dangerousness could be minimised with medication and supervision.
Mr Townsend also submitted that, although there was some degree of planning, in that it was not a purely impulsive act, the level of planning was not such as to amount to an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).
The Crown accepted that the level of planning was not at the level required for s 21A(2)(n) of the Act but contended that it was not "a spontaneous brain snap" as Dr Furst thought initially, before additional information was provided to him by the Crown. The Crown submitted that the conduct displayed on 20 September 2013 was similar to that displayed in Western Australia in 2007 when he committed a series of similar offences.
The Crown relied on the threat of a weapon as an aggravating factor (s 21A(2)(c) of the Act) as well as the circumstance that the victim was a vulnerable victim (s 21A(2)(l) of the Act). The Crown accepted that the plea was entered at the earliest available opportunity.
In response to the applicant's submission that he told the victim that he would not hurt her, the Crown referred to R v Speeding [2001] NSWCCA 105 in which Giles JA (Wood CJ at CL and Simpson J agreeing) said at [24]: "I would put it more strongly. I do not think any weight at all could be attached to the so-called reassurances. They were no more than an indication to the victims that they would not be hurt provided they did exactly what the respondent wanted, which cannot have been any real comfort to them. What his Honour said, to my mind, really did not properly address the effect on the victims which the statements of the victims placed before him revealed, being one of great distress notwithstanding reassuring words the respondent might have intended to have used. The so-called reassurance was unlikely to, and did not, detract from the threat of violence or alleviate the distress caused. When robbery is committed under the threat of a knife, I see no room for alleviating the seriousness of the offence and, as part of that seriousness, the possible traumatic effect on those threatened, by the use of so-called reassuring words."
The Crown also referred to R v Engert (1995) 84 A Crim R 67 and, in particular, the following passage of the reasons of Gleeson CJ at 71: "The existence of such a causal relationship [between the mental illness and the offending conduct] in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public."

The remarks on sentence

In the remarks on sentence Christie ADCJ recounted the facts as set out above. He referred to the applicant's criminal history in the following terms: "One of the factors facing the Court is that this man committed offences quite similar in Perth and the details of those offences are contained in exhibit B and I shall just summarise them briefly: they involved a burglary and commit the offence of stealing, that was at a Caltex Star Service Station in Perth; an armed robbery, that was at a Caltex Fine Enterprises, presumably some sort of petrol station in Perth; attempted armed robbery at the BP Australia in Ballajura, which I assume is somewhere near Perth; an armed robbery at the Caltex Star Mart at Malaga, which I assume is somewhere near Perth and an attempted armed robbery at the Caltex North at Malaga, in the same place but a different premises. For those offences the inmate received a sentence of two years and six months imprisonment, that was from 28 January 2011. There were several other sentences, some of which were concurrent, some of which were cumulative."
His Honour was not satisfied that the note, although written on St George Bank stationery, was written before the applicant entered the branch of the Bendigo Bank where he committed the robbery. His Honour said, of the Crown's submission that planning was an aggravating factor: "I am not myself absolutely certain as to what degree of planning I should find and how much of it was spontaneous or impulsive."
The sentencing judge expressly referred to the victim impact statement of the bank teller, Ms Ross.
His Honour referred to the amount that had been recovered. His Honour returned to the prior offences in the following passage: "I need to take into account, obviously, that the offences that he committed in Perth, as I say, five or six years ago, they were numerous and they were not dissimilar to this matter."
The sentencing judge addressed the impact on the victim and the objective seriousness of the offence in the following terms: "I regard the repetitive nature of this type of offence and particularly the effect that this type of offence has on people like bank tellers as being serious."
His Honour also referred to the need to take into account the applicant's psychological and psychiatric condition. His Honour indicated that the sentence would be seven and a half years, to which a discount of 20% was applied by reason of the plea of guilty. There was a finding of special circumstances. The total term was six years with a non-parole period of three and a half.
After the delivery of the remarks, the applicant's counsel asked whether his Honour had said that a discount of 20% would be applied and referred to the circumstances that the applicant, having entered a plea in the Local Court, would normally be entitled to a maximum discount. His Honour responded: "HIS HONOUR: Normally he would. In this particular case because I'm not completely certain of some of the facts as to whether there was preparation and so on - I don't have to give the maximum. And that's why I specifically decided on 20% rather than 25."

The first ground: inadequate discount of 20%

In the present case, the discount of 20% manifested error. His Honour expressly took into account the level of planning in deciding to discount the sentence by 20% rather than 25%. This was an irrelevant consideration. The relevant considerations are listed in s 22 of the Act and relate to the fact, timing and circumstances, of a plea. The level of planning has no bearing on the utilitarian value of the plea. As the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) said in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]: "The [sentencing] judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached."
Accordingly, by taking into account an irrelevant consideration, his Honour's discretion to determine the discount under s 22 of the Act miscarried and is required to be re-exercised by this Court.
Furthermore, although the question of the percentage discount for a plea of guilty pursuant to s 22 of the Act is a matter of discretion, there is a general expectation (although not a rule) that, where a plea is entered at the earliest available opportunity, the maximum discount of 25% will be applied. The reason for this is that the discount for the utilitarian value of the plea is determined largely by the timing of the plea: see the Guideline Judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [154] and R v Borkowski [2009] NSWCCA 102 at [32(1)]. In the present case, there was no indication from his Honour, prior to the imposition of the sentence, that this would not occur. Moreover, the Crown, by accepting that the plea was entered at the first available opportunity, can be taken to have accepted that the highest discount was appropriate.
In my view, it is appropriate in the circumstances to allow a discount of 25% by reason of the applicant's plea of guilty which was made at the first available opportunity. For this reason, leave to appeal ought be granted and the appeal allowed.

The second ground: failure to consider the applicant's mental health and the opinion of Dr Furst

The applicant submitted that his Honour incorrectly applied R v Lawrence [2005] NSWCCA 91. Of present relevance, the applicant in R v Lawrence contended that the sentencing judge erred in failing properly to take into account the evidence relating to her psychological condition and the causes of, and background to, her drug dependency.
At [23]-[24] Spigelman CJ (Grove and Bell JJ agreeing) said: "[23] Although DSM(IV) has come to be widely used for the purposes of categorisation, it should not be assumed that because, as a result of the rather tortuous process by which DSM(IV) is compiled and amended, some kind of recognition is given, by means of affixing a label to a mental condition, that any such condition is such as to attract the sentencing principle that less weight is to be given to general deterrence. That may not be true of a particular condition. . . . [24] Weight will need to be given to the protection of the public in any such case. Indeed, one would have thought that element would be of particular weight in the case of a person who is said to have what a psychiatrist may classify as an Antisocial Personality Disorder. Nevertheless, as I am satisfied his Honour did give the element of general deterrence less weight than he would otherwise be entitled to give in the absence of the psychologist's report, it is not necessary to specify a view on the particular classifications involved in this case. I would not uphold this ground of appeal."
R v Lawrence was considered in R v Windle [2012] NSWCCA 222, in which this Court allowed a Crown appeal against a sentence on the ground of manifest inadequacy. The respondent was sentenced for attempting to strangle a fellow inmate at Long Bay Gaol with intent to murder. Justice Basten, at [22], said: "[22] The Director did not submit that the offender was not suffering from a serious mental illness, nor that that was not an appropriate consideration to be taken into account. Although the court was referred to the remarks of Spigelman CJ in R v Lawrence [2005] NSWCCA 91 at [22], to the effect that some mental conditions, whilst qualifying as psychiatric illnesses, might not justify less weight being given to general deterrence, it was not suggested that the mental condition suffered by the offender fell into such a category. Alternatively, if that inference were intended, it should not be accepted."
Justice Basten considered that the evidence of mental illness showed "an element of dangerousness and lack of insight into the causes of the violence revealed by this offence." However, at [57], his Honour said of protection of the public: "In relation to the protection of society at large, the factor is one which, in the circumstances, can be given relatively little weight. There is no evidence supporting a conclusion that there will be improvement in the immediate future. Nevertheless, the offence cannot involve an indeterminate sentence and, in any event, the punishment for the crime must not exceed a proper sentence, disregarding the need to protect society."
The present applicant sought to derive from [22] in R v Windle the proposition that what Spigelman CJ said in R v Lawrence applied only to persons having "anti-social personality disorders" and not to persons having more severe psychotic disorders. I reject this submission. A fair reading of Basten JA's reasons does not support this contention.
The relevance of, and weight to be given to, mental illness in the sentencing process are matters of judgment in the circumstances of the particular case, having regard to the purposes of sentencing as listed in s 3A of the Act, including: punishment (s 3A(a)); general and specific deterrence (s 3A(b)); and protection of the community (s 3A(c)). As Gleeson CJ explained in R v Engert, mental illness which results in lack of insight might lessen the weight to be accorded to general deterrence, while at the same time increasing the importance of protection of the community as a factor. It would be at odds with the principles of sentencing for rules to be constructed by reference to particular psychiatric diagnoses or the way in which sentences have been imposed in decided cases on those suffering from particular illnesses. As was said by the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen at [27]: "Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. . . . As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." [Footnotes omitted]
In my view, the remarks on sentence in the present case show that his Honour took adequate account of relevant circumstances, including the following: 1. Dr Furst's evidence that, although the applicant was psychotic at the time of the offending conduct he probably maintained some capacity to control himself and was probably aware that his actions would induce fear in the victim and were illegal; 2. Dr Furst's diagnoses that the applicant suffered from various psychiatric conditions including treatment-resistant schizophrenia; 3. the subject offending demonstrated some short-term planning (although not such as to bring it within s 21A(2)(n) of the Act); and 4. the applicant had committed similar offences in a similar way in Perth some years before.
The first and third of these matters were particularly relevant to specific deterrence. The second and fourth matters were relevant to the protection of the public. The weight to be given to these factors, and others, was a matter of the sentencing judge's discretion. I am not persuaded that his Honour failed to consider Dr Furst's opinion or erroneously applied R v Lawrence (which, in any event, turned on its own facts). The second ground has not been made out.

The third ground: manifest excess

The third ground, manifest excess, is a conclusion, which may be informed by a finding of specific error but does not require specific error to be identified: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].
The maximum penalty for the offence is 14 years' imprisonment. This is a relevant legislative guidepost: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
The starting point for the sentence imposed (before the reduction for the plea of guilty) was seven and a half years. The relevant factors included: the nature of the offending; the substantial emotional harm to the victim; applicant's criminal history, which included convictions for similar offending; and the maximum penalty.
The harm to the victim was of particular relevance in the present case and amounted to an aggravating factor. Robbery does not always cause emotional harm to a victim and therefore is not a necessary part of the offence. In the present case the victim impact statement established that "the injury, emotional harm, loss or damage caused by the offence was substantial": s 21A(2)(g) of the Act; R v Tuala [2015] NSWCCA 8 at [77]-[81] per Simpson J.
That the applicant did not, in fact, have a gun or indeed any other weapon, although he informed the victim that he did, had the consequence that the offence was robbery rather than armed robbery. However his threat to use a weapon was an aggravating circumstance. It engendered in the victim fear for her life. She was not to know that the applicant was lying and had no gun. In all the circumstances, I am not persuaded that the sentence imposed was manifestly excessive. Accordingly, the third ground has not been made out.

Re-sentencing

Having regard to the sentencing judge's error in assessing the discount for the plea, it is necessary to resentence the applicant pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW). This Court is required to exercise its sentencing discretion independently: Kentwell v The Queen [2014] HCA 37; 252 CLR 601. In the present case, this task can be undertaken by reference to the Agreed Facts, the undisputed findings of the sentencing judge and the evidence which was before his Honour. These matters have been set out in detail above.
It is also necessary to take into account the two affidavits on which the applicant relied for the purposes of re-sentencing: his affidavit of 9 October 2015 and that of Frances Low, his solicitor, which was affirmed on 8 October 2015. The applicant has undertaken several courses while in custody, both vocational and also related to drugs and alcohol. The applicant deposed to his belief that his schizophrenia is now controlled by medication. He is regularly monitored. He also deposed to his intention to obtain regular help and treatment from the Campbelltown Mental Health Service on his release. Ms Low annexed extracts from clinical notes made in respect of the applicant that show that during the period 26 February 2015 to 17 September 2015 he has been stable and compliant with medication.
Although the affidavit material provides some support for the proposition that the applicant may be able, on release, to control his schizophrenia, it does not substantially alleviate my concern about his future dangerousness. While his schizophrenia appears to be under control while he is in custody, there is, having regard to the history, a substantial risk of re-offending. Moreover, I regard the objective seriousness of the offence as being relatively high, because of his threat to use a firearm and the understandable fear that this engendered in the victim. It is also significant, as the sentencing judge found, that the applicant had committed several offences previously in a relevantly similar way.
I agree with the sentencing judge that there should be a finding of special circumstances by reason of the applicant's mental condition which will mean that, if parole is granted, he will be subject to a longer period of supervision in the community than if the statutory ratio were applied without adjustment. I propose that the ratio between the non-parole period and the total term be adjusted from 75% to 60%.
In all the circumstances I consider seven years to be an appropriate starting point for the sentence, to which a discount of 25% ought be applied for the plea of guilty. This results in a total term of five years and a three months, with a non-parole period of three years and one month. The commencement date is 25 September 2013. The earliest date on which the applicant is eligible for release on parole is 24 October 2016.

Proposed orders

I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Christie ADCJ on 8 July 2014 and in lieu thereof sentence the applicant to a term of imprisonment of five years and three months commencing 25 September 2013, with a non-parole period of three years and one month.
The earliest date on which the applicant may be released on parole is 24 October 2016.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2015

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