R v Gill [1999] QCA 358

Court of Appeal (Qld)|1999-08-26|Before: Pincus JA, Pherson JA, Chesterman J

PINCUS JA: The applicant was convicted on pleas of guilty on four indictable offences and sentenced to three and a half years imprisonment on each. It is conceded by the respondent the Judge erred in sentencing the applicant in respect of two of the offences, namely wilful and unlawful damage. The maximum penalty at the time was two years and the penalties imposed exceeded that.

The other two offences charged, apart from the two I have mentioned, were breaking and entering with intent and unlawful and indecent assault. All of these offences were committed on 28 October 1995 but the applicant was not convicted until 4 June 1999. The reason for this delay was not gone into in detail at the hearing below. It appears to have been due to a large extent to uncertainty as to the applicant's psychiatric state at the time of the offences and this took some time to investigate.

Rather strangely, when he got inside he took a telephone away from the complainant, who was about to ring the police, and phoned his father to tell the father that he was at the complainant's house, that he had smashed windows and kicked the door in. After this phone call, the applicant went upstairs and banged on the door of the bathroom in which the complainant's boyfriend and children were present. He then came downstairs and said, "I've seen his face. He'll want to look out when he's on the streets." He said to the complainant, "You're fucking that. You fucked every Tom, Dick and Harry," and he said, "[N]ow, I'll fuck you, too."

He pushed her backwards over a lounge, spread her legs and thrust a hand into her vagina causing much pain. She was later found to be suffering from swelling and soreness in that area, but apparently no lacerations. The applicant told the complainant he was going to kill himself and he walked out of the door.

The primary Judge had presented to him a number of medical reports, including four from psychiatrists. Dr W C Wilkie gave an elaborate report in which he concluded that at the time the applicant committed the offences, he was in such a state of mental disease as to deprive him of the capacity to understand what he was doing or a capacity to control his actions or a capacity to know that he ought not to do the act which is the subject of the charge. According to that doctor's view this situation was brought about because of what he called unanticipated benzodiazepine toxicity. The doctor thought that taking certain prescribed drugs for the purpose of relieving anxiety and anger had in fact aggravated those conditions.

Two other psychiatrists who were consulted took a contrary view. Dr Patrick Edwards expressed the opinion that the applicant understood what he was doing when he committed the offences. He said in effect that what caused the behaviour which I have described was the interaction of stressors and frustration in life with the applicant's particular personality. Dr Tom Hogan looked into the case and formed a similar opinion.

The fourth psychiatrist, Dr Ian Curtis, expressed himself in a guarded way, saying as I understand him that, while it was possible that at the relevant time the applicant suffered from a condition induced by the sedative drugs which had been prescribed, producing what is called a paradoxical response, the doctor was unable to say that this was probable.

In this situation, the Judge was faced with a difficult task but the weight, at least by numbers, of medical opinion was against Dr Wilkie. It appeared that the matter had been before the Mental Health Tribunal and the applicant before us complained bitterly of the fact that Dr Wilkie's report was not before that Tribunal.

The primary Judge said that the applicant should not be dealt with on the basis that he was not legally responsible and accountable for his actions. His Honour went on to say that he could not be satisfied that the applicant was not affected by prescription drugs to some extent which might have contributed to or caused his behaviour. I notice that, apart from the opinion of Dr Wilkie to which I have referred, Dr Patrick J Edwards in his report suggested that it was likely that there was some effect of the drugs at the relevant time.

An examination of the reports does not disclose any basis upon which this Court could disagree with the primary Judge's view as to the applicant's mental condition at the relevant time; but it is in my view noteworthy that in the weeks and indeed months leading up to the commission of the offences the applicant seemed concerned himself about the dangers of his mental state. He went to Princess Alexandra Hospital about two months before the offences were committed. He told the doctors there that he had come to the hospital to stop him from losing his temper and thumping someone. He spoke of suicidal and homicidal thoughts. At the time he was taking Murelax, one of the drugs which, according to Dr Wilkie's opinion, caused or aggravated his problem. He told the doctor at Princess Alexandra Hospital that he could not drive a car, as he had an overwhelming impulse to drive it into oncoming traffic and he expressed various homicidal thoughts.

The doctors noted that on that occasion the applicant said he had come with distant family friends, whereas he was actually accompanied by his girlfriend. In his arguments to us today the applicant has made reference to statements of that sort, where he appears to have been under the influence of something to the extent that he misapprehended simple facts.

On 21 September 1995 the applicant went to the hospital again complaining of various problems which do not seem to have any present relevance. Three days later he went to Royal Brisbane Hospital requesting a psychiatric assessment for what was described as an agitated/aggressive state of mind. I mention again that the offences were committed on 28 October, so he was at Royal Brisbane about a month before that. It appears that on that day he also went to the Manly Clinic and the doctors who saw him said he was unable to control his anger. It looks as if on the day of the offence, presumably after it happened, he went back to the Manly Clinic presenting with insomnia and agitation.

I note that after these offences committed on 28 October, the applicant is said to have committed further offences, described in Dr Hogan's report. These were done on 28 and 31 October. They were offences, one might say, of the same kind, involving irrational aggression and no doubt the applicant would attribute them to the same cause. We are informed by the applicant that he has not yet been dealt with for these offences.

Looking at the applicant's history he seems to have held at times quite responsible jobs, supervising others. I note, however, that he has been convicted of stealing in 1993. He has been convicted of assault and malicious damage in 1994, of breaching domestic violence orders in the same year and also breaching a domestic violence order in 1998. These other offences, however, were suggested to be relatively minor, in the submissions made below.

We have had the advantage of a fairly long discussion with the applicant today and we have been informed that he is able in his present situation, to behave, to put it simply, normally. He does not feel the impulses of aggression that he puts that down, it appears, principally to not taking the drugs which had been prescribed for him and which he suggests caused the offences.

He is certainly not an unimpressive person and one would hate to see it happen that his life is brought substantially to a bad end by a long gaol term. Nevertheless, the head sentence which was imposed by the learned primary Judge of three and a half years imprisonment, which his Honour thought was appropriate for the whole of these offences, does not seem to me to be out of the range, in respect of the offences other than the wilful damage offences.

Mr Byrne QC, who has appeared for the respondent, has suggested that punishment for the wilful damage offences should come down to one year and that seems to me to be correct. A more difficult point is what to do about the parole recommendation. The Judge recommended consideration of parole after one year. The view which I have formed - and not by way of criticism of the learned primary Judge, but principally because of the experience which the applicant appears to have had since these offences were committed in 1995 and the impression he has created today - is that the applicant should be treated somewhat more generously. I would grant the applicant leave to appeal against sentence and allow the appeal to the extent of reducing the sentences for wilful and unlawful damage from three and a half years to one year. I would not alter the three and a half years imprisonment in respect of the other offences. I would, however, delete the recommendation for parole which the Judge made, which was a recommendation for parole after 12 months; I would replace that by an order under section 144 of the Penalties and Sentences Act, 1992, that all the sentences of imprisonment be suspended after a period of six months, commencing on the date when the applicant was first sentenced. I would further order that the operational period for the purposes of section 144(5) be two years.

McPHERSON JA: I agree with the reasons and with the order that has been proposed by Mr Justice Pincus.

PINCUS JA: Now, Mr Gill, you realise we are taking a bit of a risk with you, do you not?

PINCUS JA: We are relying on you to preserve our reputations.

APPELLANT: I will do the utmost I can to do that and I thank you for your consideration.

PINCUS JA: Well, we will thank you if, when you get out after six months, you are extremely careful not to get into any hassles with anybody.

APPELLANT: Well, I am married with a lovely daughter and I have everything to live for and I have got a caring Christian family that support me 100 per cent and this has put them through hell and I think it might be quite a reward to them that I am home for Christmas and I thank you for that, Your Honour.

PINCUS JA: Yes, very well. The orders will be as I have indicated and the Court will now adjourn.

1. Application for leave to appeal against sentence be granted.

3. Reduce sentence for wilful damage imposed below to 1 year instead of 3 ½ years. Delete recommendation for parole and replace it with, the sentences be suspended after 6 months from time of commencement.

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