The offender is to be sentenced for two offences. The first is an offence of aggravated robbery pursuant to s 95(1) of the Crimes Act 1900. That offence has a maximum penalty of imprisonment for 20 years. The offender was committed for sentence on that charge on 29 August 2014 from Gosford Local Court.
On 24 November 2015, the offender entered a plea of guilty upon arraignment to a charge pursuant to s 35(4) of the Crimes Act 1900 of recklessly wound Raymond John Neil on 28 October 2013 at Silverwater. That offence carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years.
[2]
Circumstances of the offending
The first offence pursuant to s 95(1) of the Crimes Act occurred on 17 January 2002 when the accused struck a security guard outside a bank in Haymarket, Sydney, took the security guard's Smith & Wesson .38 revolver and escaped. The victim was treated for bruising and suspected head injuries, but suffered no permanent injuries.
The Crown bundle (exhibit A), included a statement of agreed facts as to the second charge. As at 28 October 2013 the offender and Mr Neil (the victim) were in remand custody at MRRC and both worked in the Y unit of the correctional facility. At approximately 7.45am on that day, the offender and the victim were seated across a table from each other. The offender got up from the table and walked away and a short time later the victim felt an immediate pain to the front of his neck and looked down and saw a large amount of blood. He turned around and saw the offender standing in front of him holding a Stanley knife in his hand. The victim tried to stem the flow of blood and then observed the offender running at him with the Stanley knife held out in front of him, that is, with the blade directed at him. The victim ran towards the back of the workroom and eventually correctional officers intervened and the offender was cautioned, arrested and conveyed into police custody.
The Crown bundle included the criminal antecedents of the offender which included a number of offences involving violence.
The offender had been in custody following an arrest on charges of murder and robbery since 3 October 2013. On 28 July 2015, he was found not guilty in the Supreme Court of New South Wales of murder by reason of mental illness, and sentenced to become a forensic patient. The orders made by Mathews AJ on 28 July 2015 were as follows:
1. "Verdict of not guilty by reason of mental illness.
2. Order that the offender be detained at the MRRC at Silverwater or at such other place as may be determined from time to time, by the Mental Health Review Tribunal, until released by due process of law.
3. Direct the Registrar of the Court to notify the Minister for Health of this Judgment and order.
4. Direct the Registrar of the Court to notify the Mental Health Tribunal of this Judgment and order and to provide to that Tribunal the transcript, exhibits and reasons for the verdict and orders."
The offender was therefore on remand in respect of those charges when the reckless wounding offence was committed on 28 October 2013.
The offender relied on a very detailed report of Professor David M Greenberg dated 28 May 2015 (exhibit 1). Professor Greenberg recorded a history of the offender obtaining a gun in 2002, after he assaulted a security guard in the City of Sydney. He secreted the gun until October 2013 when he used it to shoot a resident of housing commission premises where he was living. As a result of that incident, the offender was charged with murder. The offender had been diagnosed with schizophrenia in 2000 and treated with anti-psychotic medication. After 12 months he moved to the Central Coast and his psychiatric care was referred to his general practitioner. His medication was gradually stopped in the year 2007, following which, he was not undergoing any psychiatric treatment.
In respect of the subject offence, Professor Greenberg took a history that the offender claimed that the inmate was "twiddling his thumbs" and made him "feel uneasy". He claimed that the inmate was threatening him.
Professor Greenberg set out the offender's family and personal history, as well as his drug and alcohol history. That involved starting to smoke cannabis at aged 15 years and experimenting with heroin at 20 years of age, cocaine at age 40 years, and amphetamines.
Professor Greenberg also outlined in detail the offender's treatment by Justice Health. He was transferred to the Long Bay Prison Hospital on 20 July 2014 as a forensic patient under the Mental Health (Forensic Provisions) Act 1990. On 6 November 2014, a Forensic Community Order was issued by the Mental Health Review Tribunal. The offender was subsequently transferred to the Hamden Unit at the MRRC at Silverwater. Professor Greenberg was of the opinion that the offender had been suffering from Paranoid Schizophrenic Disorder ("PSD"). That disorder had become chronic, however, Professor Greenberg opined that the offender was fit to plead and to stand trial.
As at the time of the alleged offence, Professor Greenberg was of the opinion that the offender was suffering from a disease of the mind, namely, a chronic PSD. As a result, he was labouring under a defect of reason and had a defence of mental illness available to him with regard to the charges of murder.
[3]
Submissions made on behalf of the offender
Mr J O'Sullivan of learned Counsel conceded from the outset that the offender should be sentenced by way of a full time custodial sentence. However, he relied on the DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177] where McClellan CJ at CL set out the principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental problems as follows:
"Where the state of person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].
It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].
It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].
It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].
Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."
It was further submitted on behalf of the offender that he had assisted police during his record of interview in respect of the circumstances in which he obtained the gun. Otherwise, the police would never have known. He also made full admissions in respect of the reckless wounding offence. He is 51 years of age and has been in custody for over 2 years. It was advocated on his behalf that any non-parole period would be equivalent to the time already served.
Learned Counsel submitted that it was important that any sentence imposed did not interfere with his status as a forensic patient. He had made full disclosures and there were special circumstances made out pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 in respect of his mental health.
The Crown submitted that the objective seriousness of the first offence was very serious. The offence involved violence by way of the offender striking the security officer and the robbery involved the taking of that man's gun. Therefore, the objective seriousness would lie at the high end of the range for such offences.
In respect of the reckless wounding offence, the maximum penalty was 7 years imprisonment and there was a non-parole period of 3 years. The circumstances mandated that a finding be made that it was within the mid-range for an offence pursuant to s 35(4). A knife had been used by the offender to cut the throat of the victim.
Further, given his criminal history, with multiple offences of violence, he was not entitled to any leniency, however, he was entitled to a utilitarian discount of 25% in respect of both matters.
The Crown did not contest the submissions made on behalf of the offender that there were mitigating factors relating to his mental health, and conceded, in accordance with De La Rosa, that general deterrence was not a significant matter in sentencing the offender.
It is noted that the offender signed a Form 1 in respect of a further charge of possess unregistered firearm on 3 October 2013. I have certified that in dealing with him in respect of the offence of aggravated robbery, I have taken into account the offence admitted by him in the Form 1.
[4]
Determination
Section 3A of the C(SP)A sets out the purposes of sentencing as follows:
"3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community."
I have had regard to the maximum penalties of 20 years imprisonment in respect of the first offence, and of 7 years imprisonment, and the standard non-parole period of 3 years imprisonment, in respect of the offence of reckless wounding, as guideposts in the sentencing process. I find in all of the circumstances that the first offending is just below the mid-range of offending for an offence pursuant to s 95(1) of the Crimes Act. Similarly, the objective seriousness of the offending of reckless wounding pursuant to s 35(4) of the Crimes Act, is below the mid-range of offending for such offences, but is very close to it. The offending constituted serious criminal behaviour, however, and I accept the Crown's submission that there are no statutory aggravating matters to be taken into account. Further, the offender is entitled to a discount of 25% for his plea of guilty, in respect of each matter.
The Crown does not oppose, nor could it, a finding of special circumstances here, given the offender's mental health diagnosis. Further, there is no question of general deterrence being an important factor in the sentencing process here, having regard to the mental health of the offender.
Having regard to the criminal history of the offender, he is not entitled to any further leniency. However, I am mindful that he is a forensic patient, subject to review by the Mental Health Review Tribunal, and therefore I accept that the time spent in custody from 3 October 2013 to the date of sentence, a period of one day short of 2 years and 2 months, must be taken into account. In respect of the offence pursuant to s 95(1) of the Crimes Act, I intend to impose a non-parole period of 2 years and 2 months, with a further balance of term of 2 years to be served subject to his current status as a forensic patient.
In respect of the malicious wounding offence, I also intend to impose a non-parole period of 2 years and 2 months with a further balance of 2 years to be served subject to his current status as a forensic patient. That term is to be served concurrently with the sentence set out above.
I will also direct that these remarks on sentence and the report of Professor Greenberg is forwarded to the Mental Health Review Tribunal.
[5]
Orders
I make the following orders:
1. You are convicted of the offence of aggravated robbery pursuant to s 95(1) of the Crimes Act 1900.
2. I impose a non-parole period 2 years and 2 months, commencing on 3 October 2013 and expiring on 2 December 2015.
3. I impose a further balance of term of imprisonment of 2 years commencing on 3 December 2015 and terminating on 2 December 2017.
4. I direct that any balance of the term served by you, subject to any determination by the Probation and Parole Board, be served by you as a forensic patient.
5. You are convicted of the offence of reckless wounding pursuant to s 35(4) of the Crimes Act 1900.
6. I impose a non-parole period of imprisonment of 2 years and 2 months, to be served concurrently with the above term of imnprisonment, commencing on 3 October 2013 and expiring on 2 December 2015.
7. I impose a further balance of term of imprisonment of 2 years commencing on 3 December 2015 and terminating on 2 December 2017.
8. I direct that any balance of the term served by you, subject to any determination by the Probation and Parole Board, be served by you as a forensic patient.
9. I direct the Registrar of the Court to notify the Mental Health Tribunal of these orders and provide that Tribunal with a copy of the report of Professor Greenberg dated 28 May 2015.
[6]
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: 09 December 2015