McCabe v R

GROUND 1 - HIS HONOUR ERRED BY TAKING INTO ACCOUNT THE APPLICANT'S CRIMINAL HISTORY WHEN ASSESSING THE OBJECTIVE SERIOUSNESS OF THE OFFENCE

The findings of the sentencing judge

1. Having set out the facts of the offending, the sentencing judge said (at ROS 2): "This is not the first offence by this offender, nor is it the first offence of this kind. Including a prior offence of entering a dwelling with intent to steal, it is the ninth offence of the kind of break and enter - and as I say, there are many other offences. The question is whether this should be regarded as a Veen 2 situation. For reasons I shall develop, I have concluded that it would be inappropriate to regard it as a Veen 2 situation. I do, however, regard the offence as being slightly below the mid-range of objective seriousness by taking into account that past criminal history" (emphasis added).

Submissions of the applicant

1. Counsel for the applicant, whilst accepting that a prior history of similar offending was a relevant consideration on sentence, submitted that the principle of proportionality required the sentencing judge to set the upper limit of the sentence by reference to the objective seriousness of the offence. It was submitted that by taking into account the applicant's criminal history in determining such objective seriousness, the sentencing judge had erred.
2. In advancing that submission, counsel for the applicant drew attention to the fact that both parties had submitted to the sentencing judge that the objective seriousness of the offending fell below the mid-range. It was submitted that against this background, and quite apart from the express terms of what the sentencing judge said, the conclusion that the objective seriousness of the offending fell only "slightly" below that range was a further indication that the applicant's prior criminal history had been taken into account in an impermissible way.

Submissions of the Crown

1. The Crown submitted that the applicant's criminal history was a matter which was highly relevant to the exercise of the sentencing discretion. The Crown also relied upon the conduct of the proceedings before the sentencing judge, and pointed out that neither party had submitted that the applicant's criminal history was relevant to an assessment of the objective seriousness of the offending. It was submitted that the finding of the sentencing judge that the offence was slightly below the mid-range was broadly consistent with the submissions advanced by the parties.
2. The Crown also emphasised the reference made by the sentencing judge to the decision in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. It was submitted that it would be "somewhat unusual" for his Honour to have expressly referred to the decision in Veen No 2, only then to approach the sentencing of the applicant in a manner which was not consistent with that decision. The Crown further submitted that when the sentencing remarks were read as a whole, it was evident that the sentencing judge had applied his focus to all relevant considerations.
3. Finally, the Crown drew attention to the fact that the sentencing remarks were delivered ex tempore, immediately following evidence and submissions. It was submitted that in these circumstances it was inappropriate to parse, and minutely analyse, what had been said by the sentencing judge.

Consideration

1. The principle of proportionality requires that the upper boundary of a proportionate sentence be set by the objective circumstances of the offence: Veen v The Queen (No 2) (supra); Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51. Those objective circumstances do not encompass an offender's prior convictions: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [24] per Spigelman CJ and at [81] per Barr and Bell JJ.
2. In the present case, the sentencing judge made express reference to the decision in Veen (No 2). He concluded that it "would be inappropriate to regard [the present case] as a Veen 2 situation" and stated that he would develop his reasons for reaching that conclusion. However on a fair reading of the sentencing remarks, the issue was not revisited.
3. Immediately following the reference to Veen (No 2) the sentencing judge concluded that the offending was "slightly below the mid-range of objective seriousness". On a plain reading of his Honour's remarks, he reached that conclusion "by taking into account (the applicant's) past criminal history".
4. On a number of occasions this Court has cautioned against parsing, and finely analysing, sentencing remarks which are delivered ex tempore: see for example McNaughton (supra) at [48] per Spigelman CJ; Warner v R [2013] NSWCCA 10 at [33] per Campbell J (Hoeben JA and Davies J agreeing); Gommesen v R [2012] NSWCCA 226; 62 MVR 196 at [37] - [38] per Garling J (McClellan CJ at CL and McCallum J agreeing). However in the present case, the remarks were revised by the sentencing judge. So much is clear from the note (at ROS 6) which records that a draft of the remarks "was received …. and revised….". In these circumstances, I am left to conclude that the revised remarks represent what his Honour in fact said, and meant, when imposing sentence.
5. I have had regard to the Crown's submission as to the adoption, by the sentencing judge, of an approach which was contrary to the authority he expressly cited. However, acceptance of that submission would require this Court to ignore the plain language used by the sentencing judge, and to then substitute the word "before" for the word "by" in the second paragraph of the extract of the sentencing remarks set out in [9] above.
6. Conceivably there could be cases where, notwithstanding what appears in the sentencing remarks, it is obvious that a slip has occurred which requires those remarks to be read and interpreted in a way which might appear to be contrary to the express language adopted. However the present is not such a case. There is nothing to suggest a slip. The sentencing remarks were revised and effect must be given to the plain language which was used. There is no warrant in the present case for substituting one word for another.
7. In all of these circumstances I am left to conclude that the sentencing judge took the applicant's criminal history into account when assessing the objective seriousness of the offence. Reaching that conclusion involves no element of parsing, or over analysing, the remarks on sentence. It involves nothing more than ascribing the only available meaning to what the sentencing judge plainly said. In taking the applicant's criminal history into account as he did, the sentencing judge erred.
8. In reaching that conclusion, I am fortified firstly by the circumstances surrounding the offending, and secondly by the manner in which the case was conducted by the parties before the sentencing judge. Viewed objectively, the circumstances of the offending were unremarkable. The applicant's conduct was typical of this kind of offending. Consistent with those factors, both parties submitted to the sentencing judge that the offending was below the mid-range. There was no aspect of the objective circumstances of the offending which supported the finding of the sentencing judge that it fell only "slightly" below the mid-range. That finding is consistent with some other factor having been taken into account in a way which increased the level of the objective seriousness of the offending beyond that which was submitted by both parties.
9. For all of these reasons, this ground is made out.

The approach of this Court

1. Having found error, the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW) apply. In these circumstances, it is not incumbent upon the applicant to demonstrate that the sentence imposed was manifestly excessive. It is the duty of this Court to exercise the sentencing discretion afresh: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42] - [43] per French CJ, Hayne, Bell and Keane JJ.

The evidence

1. Dr Jonathon Adams, Forensic Psychiatrist, examined the applicant on 11 February 2015. Dr Adams noted (at p. 2 and following) that the applicant commenced to have concerns about his emotional state in his early teenage years. He also noted the applicant's previous episodes of self-harm and attempted suicide, the first of which occurred at 16 years of age. There had been 10 suicide attempts in total.
2. Dr Adams reported that the applicant had described experiencing symptoms suggestive of a psychosis from the age of 15 years. He also noted the applicant's history of abuse of drugs and alcohol, as well as the fact that he had been to psychiatric hospitals on several occasions since that time, usually in a disturbed state, and experiencing psychotic features.
3. Ultimately, in terms of the applicant's mental health, Dr Adams expressed the following opinion: "It is apparent that Mr McCabe has experienced symptoms of psychosis in the context of illicit substance use, hence the diagnosis of substance-induced psychosis in the collateral material reviewed. Given his history of significant emotional instability, I would question the possibility of an underlying bipolar affective disorder as well as a schizoaffective disorder. Longitudinal assessment and review of additional collateral sources of information would be of benefit in clarifying these diagnostic issues. Commenting definitively upon Mr McCabe's mental state at the material time of the break and enter offence in June 2014 is difficult, given his inability to recall his presentation at the material time. From a psychiatric perspective his inability to recall his mental health at around this time is plausible, given his reported use of illicit substances and worsening features suggestive of psychosis. If his account is accurate, in my opinion it is reasonable to suggest that Mr McCabe's likely symptoms of psychosis and methamphetamine dependence would have impacted upon his decision-making capacity and rational thought processes at around this time".
4. Dr Adams reported that the applicant had described an improved state of mental health since being taken into custody, in the context of reported compliance with psychiatric medication and abstinence from the abuse of illicit substances. He concluded that the applicant was presently free of symptoms of a major mental illness and that he manifested a reasonable level of insight into his difficulties with substance abuse, mental illness, and repeated offending behaviour.
5. In terms of the future, Dr Adams concluded that the applicant would require "assertive input" from mental health, drug and alcohol, and social services upon his release from custody, so as to increase his chances of stability. He agreed with the view expressed by the applicant that a period of residential drug and alcohol rehabilitation would be of benefit. He said that this should occur simultaneously with monitoring by mental health services, continuing prescription of psychiatric medication, and ongoing psychological therapy in order to address issues of emotional regulation, adaptive coping strategies, and the avoidance of offending behaviour.
6. Dr Adams concluded: "In my opinion if Mr McCabe engaged with the above management strategies positively, it is reasonable to conclude that these strategies will mitigate Mr McCabe's risk of reoffending. Whilst Mr McCabe remains incarcerated he would benefit from engaging in the above management strategies, if available. With regards the duration of Mr McCabe's treatment upon his release from custody I believe he should remain in engaged for a significant period, for a matter of years, given the chronology of his clinical presentation thus far".
7. A pre-sentence report is also before the Court which documents the applicant's personal history in terms which are generally consistent with those outlined by Dr Adams. The author of that report expressed the view that the applicant "showed little insight into his offending behaviour".
8. The applicant gave evidence before the sentencing judge in which he acknowledged the necessity to undertake, and adhere to, a rehabilitation program upon his eventual release from custody. Whilst the applicant acknowledged (commencing at T7 L5) that there had been several unsuccessful attempts at rehabilitation in the past, he gave the following evidence (commencing at T7 L25): Q. When you get out of custody, what do you want to do? A. I want to go back to work, like trying to start up a family by the time I'm 40. Q. In relation to what sort of help do you think you'll need to be able to do those things? A. See the psychiatrist and probably try to go back to rehab again. Q. Why do you say you think you need to go back to rehab again? A. Because I need help with my drug offending, my drugs. Q. Is it fair to say that you have committed this break and enter in relation to feed a drug habit? A. Yeah. Q. What do you - can you say to his Honour about whether anything will be anything different to the previous times when you've been on parole if you - when you eventually get out this time? A. My family's taking me back on again, I'm living with my Mum, I get one more chance, she's just going to stick by me this time, if it doesn't work I haven't got a family any more like last time. …
9. The applicant was then asked (commencing at T8 L6): Q. In relation to - the report talks about you saying certain things to Dr Adams about how you felt about your offending, can you tell the Court how you feel about what occurred in relation to break enter and steal that his Honour is sentencing you today for? A. I have never thought about it but I thought about it as I've been in gaol this time that it must be terrifying for the people in the house, me breaking in there and upsetting. Q. You have been, in the last 10 years it would be fair to say you've been in custody longer than you've been out of custody? A. Yeah. Q. Is there anything you think in terms of your future that will change that from happening again? A. I'm going to try and see if I can see, I forget what it's called, people who come out and see me for my mental health problems, Justice Health. Q. What about medical treatment? A. I'm going to stay on my medication this time because when I started on medication I can't feel the drugs anyway. It doesn't work, so I'm going to try and stay on my medication this time.
10. The applicant's criminal history is before the Court. It is frankly appalling and contains a multiplicity of entries for offending of a similar kind.

Consideration

1. In my view, the objective seriousness of the offending is below the mid-range, albeit not at the lowest level. In terms of the factors contained in s 21A of the Sentencing Act, the following matters are relevant.
2. Clearly, the applicant has a record of previous convictions, many of which are of a similar kind. That is an aggravating factor under s 21A(2)(d).
3. Notwithstanding the observations in the pre-sentence report, I am satisfied on the basis of the evidence given by the applicant before the sentencing judge (which was not challenged) that he has shown remorse for his offending. That is a mitigating factor under s 21A(3)(i).
4. The applicant pleaded guilty to the offence in the Local Court. That is a mitigating factor under s 21A(3)(k). He is entitled to a discount of 25% to reflect the utilitarian value of that plea.
5. Assessing the applicant's prospects of rehabilitation is obviously problematic in light of his criminal history. On his own admission, the applicant has had opportunities in the past to address his abuse of illicit drugs, and the relationship between that abuse and his repeated offending. He has not made good use of those opportunities. In light of this history it is necessary to adopt a cautious approach to assessing his expressed intention to undergo rehabilitation when eventually he is released from custody.
6. Rehabilitative measures will obviously be available to the applicant. The effect of Dr Adams' conclusions is that the applicant is capable of being rehabilitated. Whether this is successfully achieved will necessarily depend, in large measure, upon whether the applicant is genuinely willing to make the most of any opportunity he might be given and, importantly, to adhere to a program of the kind to which Dr Adams referred. Whilst I have taken into account the applicant's expressed willingness to do so, his background is such that I am left to conclude that his prospects of rehabilitation are guarded.
7. In light of the opinion of Dr Adams, the applicant clearly has a mental illness. The principles applicable to the sentencing of mentally ill offenders were outlined by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 commencing at [177]. Those principles include the following: 1. where the state of an offender's mental health contributes to the commission of an offence in a material way, his or her moral culpability may be reduced; 2. as a consequence of the circumstances in (i), the need to denounce the crime may be lessened and reflected in a reduction in the sentence; 3. the state of an offender's mental health may also have the consequence that he or she is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed; 4. an offender's mental health may mean that a custodial sentence may weigh more heavily on him or her and accordingly, because the sentence will be more onerous, the length of the prison term or the conditions under which it is served may be less severe; and 5. an offender's mental illness may reduce or eliminate the significance of specific deterrence.
8. In view of Dr Adams' opinion, the applicant's moral culpability is reduced as a consequence of the causal nexus between his mental state and his offending. Further, and because of his mental state, the applicant is an inappropriate vehicle for general deterrence. Those matters operate to reduce the sentence which might otherwise be appropriate.
9. In Re Attorney General's Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield & Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327 Grove J (with whom Spigelman CJ and Sully J agreed) concluded (at [48]) that a court should regard the seriousness of an offence contrary to s 112(1) as being enhanced, and should reflect that enhanced seriousness in the quantum of sentence imposed, if any of the following factors are present: 1. the offence is committed whilst the offender is at conditional liberty on bail or on parole; 2. the offence is the result of professional planning, organisation and execution; 3. the offender has a prior record, particularly for like offences; 4. the offence is committed at premises of the elderly, the sick or the disabled; 5. the offence is accompanied by vandalism or by any other significant damage to property; 6. the offence is committed on multiple occasions; 7. the offence is committed in a series of repeat incursions into the same premises; 8. the stolen property is valuable to the victim, whether that value is measured in terms of money or in terms of sentimental value; 9. the offence was committed at a time when, absent specific knowledge on the part of the offender, it was likely that the premises would be occupied, particularly at night; 10. there was actual trauma suffered by the victim; and 11. force was used or threatened (other than by means of an offensive weapon or instrument).
10. Grove J observed that if more than one of those circumstances was present there would be a cumulative effect to be reflected in any sentence imposed. However his Honour also stressed (at [49]): "It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider it is not of itself a mitigating factor; see R v Henry [(1999) 46 NSWLR 246] (at 384 [193]-[203] and 387 [217]-[259]).
11. In the present case, the factors in 43 and (iii) above are present. Balanced against those matters however, must be the various subjective considerations to which I have referred, not the least of which is the applicant's mental illness.
12. In the event that this Court came to re-sentence the applicant, the Crown relied upon an affidavit of Meagan Betteridge, Solicitor, of 19 October 2015. That affidavit annexes documents provided by the Department of Corrective Services in relation to an incident in August this year when the applicant was found in possession of a syringe. The applicant pleaded guilty to a disciplinary offence and was prohibited from having any contact visits for a period of 28 days.
13. With the Court's leave, the applicant filed two affidavits in response, one from himself dated 6 November 2015, and the other from his Solicitor, Alexandra Heffernan, dated 5 November 2015. In his affidavit, the applicant explained the circumstances surrounding the disciplinary breach. He also expressed positive sentiments about his future. The affidavit of Ms Heffernan annexes various case notes obtained from the Department of Corrective Services regarding the applicant's behaviour in custody.
14. In my view, the applicant's disciplinary breach is of relatively little moment. Of more significance are the case notes attached to Ms Heffernan's affidavit, which variously refer to there being "no issues" as to any aspect of the applicant's incarceration. They also refer to the applicant consistently presenting in a stable mental state. Significantly, at an interview conducted with the applicant on 20 August last, it was noted that the applicant was "well behaved at all times", that there were "nil issues" and that he had "no thoughts of self-harm". On the whole of the evidence, the disciplinary breach appears to be something of an aberration.

CONCLUSION

1. In my view, the appropriate starting point is a sentence of 4 years and 6 months imprisonment, to which a discount of 25% should be applied to reflect the utilitarian value of the applicant's plea of guilty. That reduces the sentence to one of 3 years and 4 months imprisonment.
2. I am satisfied that there should be a finding of special circumstances in the present case. In reaching that conclusion I have taken into account the evidence of the applicant, and the opinion of Dr Adams, as to the question of rehabilitation. In applying the finding of special circumstances to the sentence that I consider appropriate, I have adopted the same ratio as between the non-parole period and the head sentence as that adopted by the sentencing judge, namely 55%.

ORDERS

1. For all of these reasons I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed upon the applicant in the District Court on 17 February 2015 is quashed. 4. In lieu thereof the applicant is sentenced to a non-parole period of 1 year and 10 months imprisonment commencing on 20 November 2014 and expiring on 19 September 2016 with a balance of term of 1 year and 6 months commencing on 20 September 2016 expiring on 19 March 2018. 5. The total sentence is one of 3 years and 4 months imprisonment.

Amendments 10 February 2016 - Correction to decision date on coversheet. 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: 10 February 2016