R v Elliott [2000] QCA 267

Director of Public Prosecutions (Queensland) for the respondent

[1] McPHERSON JA: I agree with the joint reasons of Davies and Thomas JJA for allowing this appeal, and with the orders proposed.

[2] DAVIES AND THOMAS JJA: The applicant pleaded guilty to six offences arising out of an incident on 4 March 1999. The offences were wilful damage, common assault, going armed so as to cause fear and three malicious acts with intent to resist lawful arrest. On the first three counts he was sentenced to two years imprisonment, and on the remaining three counts to six years imprisonment with a recommendation for consideration of parole after 18 months. It was declared that he had served 133 days in pre-sentence custody.

[3] The circumstances of the offences were that the applicant, who was a regulated patient at the Gold Coast Hospital, absconded from the hospital approximately one week before these offences were committed and commenced living in a car at the back of a property in Miami. On 4 March 1999, a resident of that property, Mr Carmody, returned home and was told by his other flatmates that the applicant had threatened one of them with a knife. Carmody then went to a McDonald's Restaurant on the Gold Coast Highway to buy some food. He saw the applicant sitting outside the restaurant and proceeded to punch the applicant six times. The applicant fell to the ground and whilst on the ground pulled a knife from his pocket and threatened to kill Carmody. Carmody responded by challenging the applicant to fight upon which the applicant lunged at him with the knife. Carmody then ran into a café and obtained an 18-inch knife from the kitchen - that knife being slightly larger than that held by the applicant.

[4] There followed something of a stand-off during which the applicant apologised to Carmody. Carmody said "not here" which the Crown prosecutor suggested was an invitation that they go elsewhere and continue the fight. There were further hostilities between Carmody and the applicant, but no charge was brought against the applicant as it was conceded that self-defence would not be negatived in respect of the responses of the applicant. The manager of the restaurant then locked the doors. The applicant became enraged and smashed the glass windows by head butting and kicking the glass. This was the count of wilful damage.

[5] He then entered the restaurant through the broken glass doors. When told by a staff member to put the knife down he stepped towards her and swung the knife, but the member ducked under the knife and was not injured. This was the count of common assault. The Crown submitted that at this stage the applicant was only interested in finding Carmody. Carmody was in the kitchen of the restaurant and, when the applicant approached, struck him with a fryer sieve and ran off.

[6] The applicant left the restaurant and began walking up and down the median strip on the highway in front of the restaurant yelling "Where is he?" and lunging at passing cars with the knife. This is the basis of the charge of going armed so as to cause fear. Three police arrived at that time, picked up Carmody and followed the applicant at a safe distance until he reached an area where they felt safe in approaching him. The applicant swung his knife at all three police officers. That was the basis for the three counts of malicious act with intent. At the time the applicant was telling the police officers to shoot him and was threatening to kill himself by holding the knife to his own throat. Although one officer did draw his weapon he did not feel it was necessary to discharge it.

[7] Police eventually used an Alsatian police dog to assist in subduing the applicant, although three attacks by the dog were necessary before the officers were able to subdue him with blows from their batons. The police officers were uninjured. The police dog died after the incident, but the cause of death was said to be perhaps brought on by the stress or excitement of the incident rather than any injury inflicted by the applicant.

[8] The applicant was then 29 years old. He had a fairly lengthy criminal history for offences of dishonesty, most of the offences being of a low level of seriousness resulting in short sentences between three and 12 months. However there were two offences of violence in 1989 and 1991 respectively. Some time before committing the present offences he had been charged with a number of offences of dishonesty. He was on bail for these when he committed the present offences. On 29 April 1999 he was dealt with in the Southport District Court on those offences of dishonesty and sentenced to nine months imprisonment. In the result, when dealt with on the present matters on 28 January 2000 he had been in custody for 10 months, but only 133 days of this was custody in respect of the present matters.

[9] In passing sentence her Honour noted that both counsel had sought a short term of imprisonment together with a probation order, further noting the submission that the applicant fell between the safety net of the criminal justice and mental health systems. Her Honour expressed the view that Carmody was a person who was a great danger to the community and that it was his actions which initially put lives at risk, but that the applicant had then put the staff and customers of the restaurant in danger because he was out of control. Her Honour further noted that the applicant put the police in danger and owed his life to the training and courage of those officers who apprehended him.

[10] An important factor in the present case is that although the applicant produced a knife he did not cause any physical harm. His actions essentially consisted of threatening conduct. The actual harm caused is an important factor in the sentencing process[1] and of course the relative lack of harm is a factor that must be reflected in the sentence. We were referred to a number of cases where grievous bodily harm had actually been inflicted. These included Ishibashi[2], Hakkila[3], Brown[4] and Norman[5]. Ishibashi was a case of grievous bodily harm with intent to disfigure, while Hakkila, Brown and Norman were all cases of grievous bodily harm with intent to cause grievous bodily harm. The first three cases reveal sentences around the six year mark and Norman eight years. However those cases are not comparable at all. If anything, the level of sentences revealed by these and other cases tends to suggest that the effective sentence here imposed (six years with a recommendation after 18 months) would be more in keeping with a case where significant physical harm has been caused.

[11] It was submitted for the applicant that the sentence in question fails to give sufficient regard to the applicant's personal circumstances including his mental disorder. The abnormal mental state of the applicant is certainly the dominant feature of these offences which were committed in a quite hysterical manner after he had been attacked by Carmody. Mental abnormality falling short of insanity may be a significant mitigating factor. Apart from the question of culpability, it makes it difficult for the court to apply a factor such as general deterrence[6]. Of course such a factor is two edged, and where such a person is a danger to the public, this factor may be brought into account in increase of sentence. Brennan J in Channon v R[7] noted that_:_

"Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe."

[12] A third feature of the present case is that both Crown and the defence counsel submitted to the learned sentencing judge that a sentence of six months imprisonment followed by probation with a special condition for psychiatric treatment was appropriate. Such indications from counsel of course do not bind a sentencing judge. The question is what is the correct sentence. In the proceedings below the learned Crown prosecutor indicated that he had not been able to find any comparable sentence and that it stood alone. He expressed concern as to the applicant's mental health and indicated that the police clearly thought he was disturbed at the time. He submitted that the community in the long run would be better protected by a sentence such as one that included the probation order which he proposed.

[13] As against the mitigating factors, the applicant's criminal record shows that he is no stranger to prison and that he is a frequent offender. He has two prior convictions for offences of violence; the last being in 1991. It is curious that no medical reports were tendered although there is no doubt that he has a documented history of mental instability which had led to his transfer to the secure facility at the John Oxley Hospital. Apparently the present matter was referred to the Mental Health Tribunal which found him fit for trial. The court was informed that a report provided to the Director of Mental Health advised that he had no defence of insanity but that he was diagnosed as suffering from an emotionally unstable personality disorder described as "borderline type F60" This, we were informed is not an anti-social personality disorder, and that it may be reasonable to think that his disorder presents less danger to others in society than an anti-social personality disorder. He was also noted to be suffering from multiple drug dependency. His problems had been ongoing since a very early age, and drug taking tended to exacerbate his condition. The prognosis does not appear to have been particularly optimistic. Dr Fama was said to have reported that the best outcome he could hope for would be a gradual amelioration of tension and of instability to a level of ineffectual neuroticism. The submission that he falls between the nets of the criminal justice system and the mental health system has some validity, but it loses some of its force when it is recalled that these offences were committed after he had absconded from treatment as a regulated patient at a hospital.

[14] It is clear that the applicant needs regular guidance and counselling. Whilst he is in custody it is strongly recommended that he should receive the maximum available assistance of this kind.

[15] The applicant pleaded guilty at a very early stage, thereby avoiding any committal proceedings. It was accepted that he is genuinely remorseful.

[16] When all the above matters are taken into account we consider that the sentence that was imposed was excessive. The difficulty in framing an appropriate sentence for this man is exacerbated by the limited range of options open under s 92 of the Penalties and Sentences Act as interpreted in R v Hughes[8]. If the benefits of probation are to be obtained, he cannot be concurrently sentenced to more than six months imprisonment. This applicant had already been in custody for 133 days when the sentencing procedure occurred. If a six month sentence could be imposed on top of this, it would mean that a reasonably stiff custodial term would be served followed by the benefits of psychiatric supervision, and such a combined sentence would not in our view be inadequate. However we do not think that it would be open to impose a sentence of imprisonment and probation in such a way as to deprive the applicant of the benefit of the 133 days service of custody by him. If this were done the sentence might be seen as equivalent to about 15 months imprisonment. Section 161 of the Penalties and Sentences Act allows the court to impose a sentence without a specific declaration as to the amount of pre-sentence custody, but when it does so the court fashions a notional term by deducting time served from the sentence that would be otherwise appropriate, commonly treating the time already served as equivalent to twice its nominal value[9]. To do so in this case would in substance be contrary to the requirement in s 92(1)(b) of the Penalties and Sentences Act that "the effect of a probation order is that the offender is sentenced to a term of imprisonment for not longer than six months". It follows that if probation is to be ordered, the maximum imprisonment that could be imposed would be six months, and due credit would have to be given for the time already served. With some hesitation we consider that a sentence of six months imprisonment, with a declaration of 133 days already served, followed by probation would be an inadequate sentence.

[17] An ordinary sentence of imprisonment with some prospect of parole seems preferable to a suspended sentence where, upon release, no supervision is available. In our view a head sentence of three years with a recommendation for consideration of parole after one year would be more consistent with current sentencing patterns than the sentence under appeal. In these circumstances the best available option would seem to be replace the sentence below with one of three years imprisonment with a recommendation for consideration of parole after one year. It should be declared that the applicant has already served 133 days of pre-sentence custody solely in respect of these offences namely from 4 March 1999 to 28 April 1999, from 28 October 1999 until 28 January 2000.

[18] Leave to appeal against sentence should be granted, and the appeal allowed. The sentence below should be set aside and replaced with the order just stated. In addition to the above judicial order, there should be an administrative direction that the registrar of the court forward these reasons to the Director-General of the Community Services Department, drawing particular reference to paragraphs [13] and [14] thereof.

[1] Amituanai [1995] QCA 80; (1995) 78 A Crim R 588.

[2] [1998] QCA 342; CA 88 of 1998, 29 May 1998.

[3] [1994] QCA 95; CA 14 of 1994, 30 March 1994.

[4] [1996] QCA 251; CA 155 of 1996, 26 July 1996.

[5] [1999] QCA 77; CA 378 of 1998, 18 March 1999.

[6] R v Dunn CA 29 of 1994, 13 May 1994; R v Anderson (1980) A Crim R 379.

[8] [1998] QCA 61; [1999] 1 Qd R 389.

[9] R v Wishart and Jenkins [1993] QCA 563; [1994] 2 Qd R 421, 428-429.