R v. Clark [1998] QCA 477 (8 October 1998)

Court of Appeal (Qld)|1998-10-08|Before: Murdo P, Pherson JA, Shepherdson J

The applicant is 18 years of age being born on 28 July 1980 and has no prior criminal history. The offences occurred on 13 and 22 May 1998, nine days apart. In happier times the applicant excelled at primary school and was a champion gymnast. However, he stopped gymnastics after grade 9 and associated with a drug-taking peer group at high school.

He left school in grade 10 and has abused alcohol and drugs. He was hospitalised from 27 January 1998 until 5 February 1998 after using drugs and having psychotic experiences following a one to· two month history of episodic mood disturbance with suicidal ideation.

The report of the consulting psychiatrist Dr Robert R Hoon of the Prince Charles Hospital and District Health Service indicated the applicant was again brought into hospital by his parents on 24 May 1998 after committing these offences. He is diagnosed as suffering from a psychotic condition, the most recent diagnosis being schizophrenia with a differential diagnosis of drug-induced psychosis. He had been abusing marijuana in the weeks prior to the alleged offence.

There is no direct relationship between the applicant's mental illness and the offences. He had the capacity to control his actions and to know he ought not to do the act. The likely duration of his mental illness is long term. He is currently treated with medication for schizophrenia. With continued illicit drug abuse it is probable he will have intermittent episodes of positive psychotic symptoms.

Psychiatric Registrar, Dr Imre Kalas, notes that by July 1998 the applicant appeared free of acute symptoms of his schizophrenic illness and showed no symptomatology of alcohol or illicit substance abuse.

The facts of the offences are as follows. On 13 May 1998 the applicant, with a rag with two holes cut in it over his face, approached an employee at a convenience store at Brighton, pointed the knife towards the complainant and demanded money. The knife was moved close to one centimetre from the complainant's face. The complainant tried to push the knife away and suffered a one and a half centimetre cut to the webbing of his hand which required suturing. The complainant was made to remove $400 from the till. The applicant decamped on a pushbike.

Count 2 occurred on 22 May this year when the applicant threatened a 54-year-old female shop assistant in Brighton with a long kitchen knife. He demanded money. She screamed and her husband approached. As a result the applicant ran from the shop removing the T-shirt with holes cut in it which had been covering his head. A witness followed the applicant to his residence a short distance away.

The police attended at the applicant's parent's address. When the applicant returned his parents took him to the Winston Noble Psychiatric Unit. The applicant told police he committed the offences to obtain money for marijuana. He pleaded guilty by way of ex officio indictment saving the community and Court considerable time and cost.

The learned sentencing Judge inquired and was told that Moreton Correctional Centre had a facility to assess and deal with prisoners with psychiatric illness such as that of the applicant. From the material placed before us today that does not seem accurate or, at least, it has not been made available to this applicant.

His Honour was concerned that if he merely put the applicant on probation there was a very high risk that he would return to drug addiction and commit more offences. The applicant provided full compensation. He also sent letters of apology to his victims. He was 17 at the time he committed these offences. The applicant has the strong support of both parents. He was working one day a week with a family friend mowing yards and had made progress in his attitude and ability to work, with some prospect of increased work opportunities.

His Honour rightly noted the seriousness of the offences and the effect caused to victims and His Honour also recommended the applicant be placed on suicide watch whilst in custody. The applicant's mother presented a detailed, articulate and heart-wrenching statement to the Court about the applicant, setting out his background and the history leading to the commission of these offences. She outlined incidents of self-abuse by the applicant prior to these offences. She noted that he was, at the time of sentencing, "now at home with us again and so far is doing all the right things".

An offender who adduces evidence in support of a plea in mitigation to the effect that he was mentally ill at the time of the commission of the offence is entitled to have the mental condition taken into account, not by way of reducing total responsibility for the offence but as reducing the effect: of the general principle of deterrence. See R v. Anderson [1981] VicRp 17; [1981] VR 155.

R v. Dutton [1996] QCA 40 is authority for the proposition that a prisoner's mental condition at the time of the offence and his treatment for that condition before and after it are relevant considerations sometimes justifying a non-custodial sentence, even for serious offences of armed robbery like this. That decision, however, can be distinguished from this case in that Dutton was at the time of sentence under a tight regime of treatment which would have been very detrimentally affected by a term of imprisonment.

For my part I would have imposed a sentence of 12 months imprisonment to be served by way of an intensive correction order in respect of the first count and a three year probation order with a conviction recorded and with special conditions including psychiatric treatment and, if necessary, in-patient treatment in respect of the second count. That I would have exercised my discretion differently does not necessarily render this sentence manifestly excessive.

I have considered the matter exhaustively but in the end I am not able to be satisfied that the learned sentencing Judge erred in the sentence he imposed or that the sentence imposed in all the circumstances was outside the range of a sound sentencing discretion. I would, therefore, refuse the application.

McPHERSON JA: I agree. Cases of this kind are always difficult. The mental condition of the offender even though it falls short of amounting to an excuse or justification under the Code is ordinarily relevant to the question of sentence or its size and not only to the deterrent aspect of that matter but also to the element of moral culpability for the commission of the offence.

In the present case, however, the sentence actually imposed does not seem to me to be disproportionate to what may fairly be thought to have been this applicant's moral culpability. The case of Dutton on which reliance was placed is similar in some respects but differs from this, at least, in respect that at the time the matter came before this Court of Appeal and, indeed, before the sentencing Judge the applicant in that case was undergoing a regime of treatment which everyone was naturally most reluctant to disturb.

It is unfortunately not at all clear that the same is true in this case or that it was true at the time of sentencing. The most that can be said is that the applicant appeared to be conducting himself much better at home than he had been before. That, however, may very well have been a consequence of the impending sentencing hearing.

In all the circumstances, but not without a certain degree of regret, I would refuse the application for leave to appeal in this case.

SHEPHERDSON J: I agree generally with what has been said by the President and Mr Justice McPherson. I note that in his sentencing comments the learned sentencing Judge did take into account the psychiatric illness which the applicant has been diagnosed as suffering. He said:

"In the ordinary situation a term of imprisonment for three to four years would be required. It is only because you have a serious psychiatric illness diagnosed months before these offences that I am imposing a short term of imprisonment."

Mr Farr for the applicant in his outline conceded the sentencing range can extend from non-custodial sentences to custodial sentences. Here, it seems to me, the learned sentencing Judge has, with some thought, opted for the short term of imprisonment combined with the probation order. One essential term of the probation order is that the applicant is not to commit an offence and, I imagine, it is hoped this will prevent him from illicitly using narcotic substances.

I am not persuaded that the sentence imposed was manifestly excessive or that the learned sentencing Judge erred in the exercise of his sentencing discretion. I agree that the application must be refused.

THE PRESIDENT: The order is the application for leave to appeal the sentence is refused.

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