R v Bottin

G. Rowling (Crown) COUNSEL: T. Golding (Appellant)

S. Kavanagh (Crown) SOLICITORS: S.E. O'Connor (Appellant)

IN THE COURT OF CRIMINAL APPEAL 2005/615

STUDDERT J KIRBY J HOWIE J

Monday 25 July 2005 REGINA v CRAIG WILLIAM BOTTIN Judgment 1 STUDDERT J: The applicant, Craig William Bottin, seeks leave to appeal against sentences imposed on him in the District Court on 15 April 2003. 2 At the hearing of this matter, the applicant sought, and was granted, leave to extend the period during which the notice of intention to apply for leave to appeal was to have effect, upon grounds expressed in the extension application, supported by the affidavits of the applicant affirmed on 11 July 2005 and of his solicitor, Catherine Ridge, also affirmed on 11 July 2005. Those affidavits afford an explanation for the failure to comply with r 3A of the Criminal Appeal Rules. Pursuit of the appeal was dependent upon a grant of legal aid but there was a breakdown in communications between the applicant's former solicitors and the Grants Division. Then a fresh notice of intention to appeal was filed but rejected by the registrar, and further time was lost. The affidavits evidence that at no time did the applicant wish to abandon the opportunity to appeal, and in the circumstances it was appropriate to extend time. 3 In November 2002 the applicant stood trial charged with an offence of armed robbery. He was convicted of that offence. Then, following conviction for the armed robbery offence, the applicant pleaded guilty to a group of offences being:

(i) specifically aggravated enter with intent to commit a serious indictable offence;

(ii) attempt to use an offensive weapon with intent to prevent lawful apprehension;

(iii) possessing a firearm without being authorised to do so. 4 The following maximum penalties exist for the various categories of offences committed by the applicant:

(a) for the armed robbery, a maximum penalty of twenty years imprisonment: s 97(1) of the Crimes Act ;

(b) for the specially aggravated enter with intent, twenty years imprisonment: s 111(3) of the Crimes Act ;

(c) for attempting to use an offensive weapon with intent to prevent lawful apprehension, twelve years imprisonment: s 33B of the Crimes Act ;

(d) for the unauthorised possession of a firearm, fourteen years imprisonment: s 7(i) of the Firearms Act . 5 The sentencing judge imposed concurrent sentences for each of the offences to which the applicant pleaded guilty. The commencement date for those sentences was 17 December 2001. For the armed robbery offence, the judge imposed a sentence which was partially cumulative upon the remaining sentences. The sentence for this offence commenced on 17 December 2003. 6 Recording firstly the sentences imposed for the offences to which the applicant pleaded guilty, they were as follows: for the offence of specially aggravated enter with intent, the sentence imposed was a fixed term sentence of three years six months. For the offence of attempting to use an offensive weapon with intent to prevent lawful apprehension, the sentence imposed was a fixed term sentence of one year nine months. For the offence of unauthorised possession of a firearm, the sentence imposed was a fixed term sentence of three years six months. The sentence then imposed for the armed robbery offence was a term of imprisonment of nine years to expire on 16 December 2012, with a non parole period of five years to expire on 16 December 2008. 7 The overall effect of the sentences as structured is that the applicant will serve an aggregate non parole period of seven years and there will be an available parole period of four years thereafter. 8 The facts relating to the armed robbery offence were stated in the remarks on sentence as follows: "On the 24 September 2001 at about 3.30pm the offender entered the premises of a car rental firm trading as Delta Europcar Rentals wearing a black jacket, baseball cap and a stocking mask and presented a firearm to Craig Sparkes an employee of that firm and demanded the money from the cash drawer and the keys of a Toyota hi ace motor vehicle belonging to the firm and after being handed both decamped for the scene in the motor van." 9 An agreed statement of facts was presented in the District Court concerning the remaining charges to which the applicant pleaded guilty: "Mr Kwok Mar was the Building Manager of a residential apartment complex at 2-26 Wattle Crescent Pyrmont known as 'Parkview Towers'. It is a security building and the doors are kept locked. At about 8.50 am on Monday 17 December 2001 Mr Mar noticed that the fire exit door at the end of the complex closest to Wattle Street was partly open and saw a man (the offender) inside. He did not know the man and asked what he was doing there. The offender replied that he was the security guard. When Mr Mar asked to see his security licence the offender walked off up Wattle Crescent towards the Fish Markets. Mr Mar followed believing that he did not have permission to be in the building. He noticed a group of workers from the premises of CSR across the street and called out to one of them, who he knew, for assistance. At that point the offender turned and ran back down Wattle Crescent towards Mr Mar. Mr Mar grabbed hold of the offender in an attempt to stop him and they began to struggle. During the struggle the offender removed a revolver from inside his jacket and pointed it at Mr Mar's head and at others who came to Mr Mar's assistance. A number of men who worked at CSR and a nearby building site grappled with the offender and he was eventually subdued and disarmed. The revolver, which was taken from the offender, was a Smith and Wesson .44 calibre magnum. It was fully loaded and in working order. One of the building members unloaded it. The offender did not have a licence or permit for the revolver. Police arrived shortly afterwards and arrested the offender." 10 It has been acknowledged by counsel for the applicant in written submissions filed that the sentences imposed in respect of those offences to which the applicant pleaded guilty were within the discretionary range available to the sentencing judge. Indeed, they were extremely lenient, bearing in mind they were to be served concurrently. There is no challenge to the partial accumulation concerning the armed robbery sentence upon the other sentences imposed. The challenge here is to the sentence passed for the armed robbery offence. 11 Before considering the subjective features of this case, I express my disquiet concerning the manner in which the reasons for sentence were published. The sentencing judge passed sentence orally but published his reasons only in written form, providing copies of the written reasons to the applicant, his counsel, the Crown and the Court Reporting Service. 12 It seems to me that the procedure adopted in this case is a procedure which ought to be discouraged. Ordinarily, sentencing remarks are published in oral form so that all in court can be made fully acquainted not only with the sentence or sentences being passed but with the reasons for such sentence or sentences as well. Obviously, this is of particular concern to the offender, any victim or victims, and any relatives of the victim or victims who may be present in court. Publication of reasons by oral means also affords the opportunity for correction if there is some obvious error revealed in the expression of the sentencing remarks. Such an error occurred in this case when the judge mistakenly expressed the maximum penalty which the Crimes Act provided for the offence concerning which the applicant stood trial. 13 The applicant was thirty-six years of age at the time of being sentenced. At that time he enjoyed a good relationship with a daughter by an early relationship. His parents and his siblings remained supportive of him (see the pre sentence report). The applicant married in 1998 but that marriage broke down and the applicant entered into another relationship which endured until the date of his arrest on 17 December 2001. 14 The sentencing judge noted from two available pre sentence reports and from a psychiatric report to which I shall presently refer that the applicant had a rather dysfunctional upbringing as a youth. However, he was successful thereafter in trade as a qualified pastry chef and he ran a pie shop business between 1982 and about 2001. The judge observed that the failure of the business and the applicant's bankruptcy in the latter year were closely connected to the break up of his marriage and the underlying mental health problem which was dealt with in a report by Dr Dore dated 6 April 2003. 15 Dr Dore assessed the applicant in her capacity as a specialist psychiatrist in March 2003. Her opinion following that assessment was as follows: "Mr Bottin is a 36 year old man who probably started out life with Attention Deficit Hyperactivity Disorder (ADHD). This disorder was seldom diagnosed at that time, and he never received an official diagnosis or treatment. However, he had the typical symptoms of early onset of hyperactivity, impaired concentration, poor judgement and learning difficulties. At the age of 14 he was falsely accused of breaking into the school, and this incident appears to have left him with a negative, fearful view of the police for the rest of his life. Despite his learning difficulties, he became a top pastry chef and had a very successful business at the Flemington Markets. According to his mother, he was never a violent person until he developed Bipolar Disorder later in life. Unfortunately, he had a severe Motor Vehicle Accident in 1988, and he required 1-2 years of rehabilitation to recover from this. He was probably left with some organic brain impairment (for example some dysfunction of the frontal lobes which would impact on attention, concentration, memory, problem solving ability, judgement, stability of mood and appropriate social behaviour). I didn't have access to results from CT head scans, EEG's and neurocognitive testing to confirm this, and it would be helpful to have the opportunity to review these. Mr Bottin was biologically predisposed to developing a major mental illness, with his biological father having a history of mental illness (possibly Bipolar Disorder). The information available indicates that he developed Bipolar Disorder after the MVA and had 2 admissions to Rozelle Hospital in 1990. His mental state indicated he was in a Manic state at the time, and he was violent and abusive in this state. Unfortunately, he stopped taking his medication and seeing a psychiatrist regularly in 1997/1998. It appears that he has been in a Manic state for the past few years, and that he began using cocaine in 2000-2001 as a form of self-medication. Unfortunately, this is likely to have exacerbated his manic symptoms. His life has fallen apart during this time, with marital problems, and bankruptcy. My impression was that his recurrent traffic offences are probably related to his love of cars and determination to keep driving, exacerbated by poor judgment and loss of control from a head injury and Bipolar Disorder, as well as an underlying impulsive temperament. I don't have available to me reports of Mr Bottin's mental state around the time of the attempted robbery. However, it seems likely that his behaviour at that time was also influenced by the loss of judgement and control related to his severe brain injury and an ongoing Manic Episode, superimposed on his underlying impulsive temperament (from the ADHD). These problems would have been exaggerated with the use of cocaine the night before. His violence towards his wife and breech of AVO is also likely to be related to this complex combination of factors. Now that Mr Bottin is on regular medication for his illness, his mental state is much more stable. While he still has pressure of speech, disorganised speech and some grandiose and inappropriate ideas (about money and about his violent behaviour), his mood is much more stable. He reports that he is sleeping well. He was able to concentrate for over 2 hours while I interviewed him, and at no time was he hostile, irritable or threatening. In my opinion, Mr Bottin's untreated Bipolar Disorder has been a major contributing factor to his current charges. This has been complicated by the sequelae of an underlying brain injury in combination with cocaine abuse and many major life stresses (the loss of his marriage; bankruptcy). In my opinion, he would meet the criteria for Section 32 Mental Health (Criminal Procedure) Act 1990." 16 The applicant had a criminal record but there was no offence of the serious nature of those for which the sentences presently under consideration were imposed. The judge was given information concerning convictions in Tasmania which were mistakenly attributed to the applicant. This gives rise to a ground of appeal I shall address presently. 17 The judge remarked that the applicant showed no remorse or contrition in relation to the armed robbery offence. 18 I turn now to the grounds upon which the applicant seeks leave to appeal. They are as follows: "(i) his Honour failed to properly take into account the serious psychiatric condition suffered by the applicant at the time of the offence;

(ii) the sentences imposed are manifestly excessive; (iii) his Honour wrongly considered that the maximum sentence for the offence for which the applicant stood his trial was 25 years rather than 20 years; (iv) his Honour wrongly took into account that the applicant had a criminal history in Tasmania." 19 As to ground (i), the submission has been advanced that his Honour's finding expressed at p 6 of the remarks on sentence: "I am satisfied by the reasons expressed by Dr Dore that the deterioration is his mental health left him open and led him into acting in the way he did on the second of these occasions"

was unreasonably narrow because the thrust of the report was that the applicant had been deteriorating since 1997 or 1998. It was submitted that his Honour did not pay due regard to the applicant's mental illness when addressing the armed robbery offence. 20 I do not accept the submission advanced on behalf of the applicant. Dr Dore did express the opinion in her report that the applicant's behaviour at the time of the armed robbery was influenced by loss of judgment and control due to the brain injury, and the judge was alert to that. He expressly had regard to the applicant's mental health at the time of the commission of that earlier crime as the following passage in the remarks on sentence discloses: "To my mind while the offender's mental health might tend to lead him into acting impulsively on occasions, his actions on this day and conduct towards Mr Sparkes negates beyond reasonable doubt that this was an impulsive act on the part of the offender and establishes a degree of planning on his part. In these circumstances, but bearing in mind the state of the offenders mental health at this time it seems to me that the criminality displayed by him in committing this robbery when viewed in the light of the vulnerability of Mr Sparkes, the threat to his life and the undoubtedly psychological damage that has been done to his well being and health, when viewed in the light of strong subjective material to which I have referred calls for the imposition of a sentence of 9 years imprisonment and fixing of a non parole period of 5 years." (Emphasis added) 21 In relation to the later group of offences, the judge accepted the submission advanced on behalf of the applicant that the criminal conduct "probably resulted from an impulsive reaction to a perceived need to help out his partner". 22 In my opinion, the finding that the applicant's action on 24 September 2001 and his encounter with the victim Mr Sparkes evidenced a degree of planning was open to the judge on the evidence before him, and I am not satisfied that he failed to pay appropriate regard to the evidence of Dr Dore. 23 The judge found special circumstances, and in doing so and fixing a non parole period of five years for the armed robbery, had regard to the "particular circumstances of the case", and in particular the state of the applicant's mental ill health. 24 I am not persuaded that the judge failed to have due regard to the applicant's mental illness, and I do not consider this first ground has been established. 25 It is convenient to deal next with ground (iv). 26 As to ground (iv), it was acknowledged by the Crown that the Tasmanian record of "Ronald Gordon Tegg" was wrongly attributed to the applicant, and that such record was placed before the judge. Putting aside a probation order for burglary and stealing when Tegg was a juvenile, that offender's record in Tasmania consisted of a conviction in 1987 for growing a prohibited plant for which a fine of $200 was imposed, some traffic offences, and convictions for a group of offences in 2001, namely growing and possession of a prohibited plant, possession of a prohibited substance, possessing a smoking implement, possessing a silencer, supplying a prohibited substance and use of a prohibited substance. The facts as to that group of offences dealt with in Tasmania in 2001 were not before his Honour, but the total penalty imposed was $450, which reflects the degree of seriousness with which the offences were treated by the Tasmanian Court. 27 The judge did not discretely address the Tasmanian offences, but in his sentence remarks said this as to the applicant's criminal history: "Finally I note that while the offender is no stranger to the Criminal Justice Systems and has previously been subject to fines, bonds community service orders, home detention orders and fixed terms of imprisonment of up to 6 months most of these convictions were for driving offences, except for a number of matters involving the growing and possession of prohibited plants. 28 Whilst the Tasmanian record was wrongly attributed to the applicant, the judge could not properly have been influenced by it, and the above passage does not suggest that he was. 29 In my opinion, the wrongful introduction of the Tasmanian record presented no risk of miscarriage of the sentencing process. 30 As to grounds (ii) and (iii), it is convenient to address these two grounds together. 31 As I remarked previously, no complaint was made as to the partial accumulation of the sentence imposed for armed robbery. Mr Golding has submitted, however, that statistics indicate the sentence imposed for the armed robbery offence was towards the top of the range available in the exercise of his Honour's discretion and the offence did not warrant this, particularly since the applicant's mental health was such that less weight should have been given to the consideration of general deterrence. 32 Whilst the statistics advanced by Mr Golding supported the proposition that such sentence was near the top of the range of sentences since the decision in R v Henry (1999) 46 NSWLR 346 for "robbery, being armed or in company", that sentence was less than fifty percent of the maximum penalty imposed for offences under s 97(1) of the Crimes Act. 33 There was planning behind this robbery and the appellant was wearing a grey stocking that covered his face. He was armed and pointed the gun he was carrying at the head of Mr Sparkes, who was alone in his office and, understandably, stated in evidence that he was in fear of his life (T 130). The appellant took a Toyota Hi Ace car from the premises after forcing Mr Sparkes at gunpoint to surrender the keys to that vehicle as well as $739 in cash. 34 This was a crime that merited stern punishment and whilst it was high, I am not satisfied that the sentence was outside the range of his Honour's sentencing discretion. 35 His Honour did, however, misdirect himself as to the maximum penalty for the offence in relation to which the applicant stood trial. His Honour remarked that the maximum penalty for aggravated robbery is twenty-five years imprisonment. So it is, but the applicant stood trial for an offence against s 97(1), not s 97(2). The maximum penalty for the category of offence with which the applicant was convicted was twenty years imprisonment, and the possibility that the judge may have been distracted by the misstatement of the maximum penalty cannot be ignored. 36 Does the error that has been established call for the intervention of this Court? 37 Section 6(3) of the Criminal Appeal Act is to be read, where appropriate, in conjunction with s 7(1A) of that Act. There is a need to consider the total criminality of the appellant, and when this is done, it seems to me that the overall effect of the sentences passed, namely a non parole period of seven years and an available parole period of four years, affords appropriate punishment for the offences committed. In my opinion, punishment no less than that was warranted, and I would therefore not be disposed to interfere with the sentences as structured: see R v Carr [2002] 135 A Crim R 171 at para 35 and R v Shankley [2003] NSWCCA 253 at para 20. 38 For the reasons expressed, I would grant leave to appeal but, in my opinion, the appeal should be dismissed. 39 KIRBY J: I agree with Studdert J. 40 HOWIE J: I agree with Studdert J. **********

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