R v Henry

Crimes Act 1900 - ss 97, 98 LEGISLATION CITED: Criminal Procedure Act 1987 - s 166 Crimes (Sentencing Procedure) Act 1999 - ss 21A(3)(j), 54B(4), 58

R v Henry (1999) 46 NSWLR 346 Marshall v R [2007] NSWCCA 24 CASES CITED: Callaghan v R [2006] NSWCCA 58 R v Wall [2002] NSWCCA 42 R v Engert (1995) 84 A Crim R 67 R v Israil [2002] NSWCCA 255

COUNSEL: J. Dwyer - Crown H. Dhanji - Respondent

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/2808

SIMPSON J HOWIE J HISLOP J

MONDAY 2 APRIL 2007 REGINA v Dean Thomas HENRY Judgment 1 SIMPSON J: I agree with Howie J. 2 HOWIE J: The Crown has appealed against sentences imposed upon the respondent by Judge Ashford (the Judge) in the District Court following the respondent pleading guilty to one count of armed robbery with wounding. This is an offence contrary to s 98 of the Crimes Act 1900 in respect of which there is a maximum penalty prescribed of 25 years imprisonment. There is an applicable standard non-parole period of 7 years. There were two related offences before the court under s 166 of the Criminal Procedure Act 1987, a common assault and being in custody of an offensive implement. 3 On 17 November 2006 the Judge imposed a sentence for the s 98 offence made up of a non-parole period of 3 years with a balance of 1 year. The sentence commenced on 22 August 2005 and the respondent is eligible for release to parole on 21 August 2008. In respect of the s 166 offences her Honour imposed sentences of 4 months on each to be served concurrently with the robbery offence. The date of the commencement of the sentences was that upon which the respondent commenced the balance of parole for a previous offence. 4 The facts can be stated briefly. The respondent, who was on parole for armed robbery, entered a jewellery store. He had a toy pistol visibly stuffed down the front of his pants. He approached the storeowner and demanded gold from the display cabinet, threatening to kill him if he did not comply. The owner refused and the respondent presented the knife. The respondent reached forward striking at the victim who stepped back in fright. However, he was stabbed in the face, the knife completely penetrating his cheek. 5 The respondent ran from the scene chased by one of the bystanders. At one stage the respondent stopped and threatened the pursuer with the knife. Eventually police arrested him. The knife and toy pistol were located in a backpack. When questioned about the incident the respondent claimed that the storeowner had threatened him with a gun during a dispute and he had picked up the knife from a workbench to defend himself. However, the incident was captured on a security camera in the store and showed the respondent threatening the storeowner. 6 The victim received a number of stitches to his cheek and mouth but fully recovered physically although he was receiving psychological assistance to overcome stress caused by this and other later incidents at the shop. Subjective factors 7 The respondent is aged 35 years. He had been paroled for an offence of armed robbery with a dangerous weapon on 4 May 2005. At the time of being sentenced he was serving the balance of parole of about 10 months from 17 February 2005 and expiring on 27 December 2005. The parole order was revoked on 22 August 2005. He has a criminal record dating from March 1982. He has numerous offences of assault and dishonesty mostly dealt with by bonds until he was sentenced to imprisonment in 1993 for an offence of sexual assault. In that year he was also sentenced for assault with intent to rob. In 2001 he was placed on a bond for malicious damage. On 18 December 2002 he was sentenced to imprisonment for armed robbery, the offence for which he was on parole at the time of the present offending. 8 There was a report from a psychiatrist, Dr Nielssen. The respondent told the psychiatrist that he stabbed the victim because he thought "he was having a go at me". He said that when released to parole he was under treatment and taking medicine until he remarried and moved from his mother's home to live with his wife. He stopped taking medication about eight months before the offence. He started taking ice and ecstasy and was affected by drugs at the time of the offences. 9 The respondent has a history of mental health issues mainly for drug induced psychoses but with a family history of mental illness. He had two admissions to a psychiatric hospital for drug induced psychosis. He has been treated with anti-psychotic medication while in gaol. He reported that during one period of imprisonment he tried to hang himself and suffered brain damage as a result. As a consequence he suffers from epilepsy. The respondent has been a poly-drug user and has for periods been treated with methadone. He was on a methadone programme when interviewed by the psychiatrist. The respondent stated to the psychiatrist that he was aware that using ice brought on symptoms of psychotic illness. He has Hepatitis C. 10 The respondent was diagnosed as suffering from post hypoxic brain damage, chronic schizophrenia and substance dependence and abuse. The psychiatrist stated that each of the illnesses increased his propensity to commit offences on impulse. However, there was no indication that the offence was committed as a result of any mental illness. The psychiatrist stated:

"The effect of intoxication and the combination of his psychiatric disorders would be to greatly increase [the appellant's] tendency to act in an aggressive way without considering the consequences of his actions." 11 The psychiatrist reported that the respondent had "significant impairment in several areas of intellectual functioning as a result of his various disabilities". He suffered "impaired concentration and ability to persist with tasks, impaired planning and problem solving, impaired emotional regulation and impulse control". 12 There was information before the Judge to indicate that the respondent had completed courses in relapse prevention, communication and relationships. He was also having drug counselling. There was some sign of his accepting responsibility for his conduct and an understanding of the changes he must make to his behaviour. The psychiatrist thought that he would require intensive supervision and support at the time of his release. 13 The respondent's mother gave evidence before the Judge. She indicated that the respondent had displayed troubled behaviour as a child and sought help with him from the age of 13. He was made a ward of state at 14 in order to try to offer him intensive assistance. However he failed to respond and was returned to home at age 18. Shortly thereafter he went to gaol and had been in and out of custody ever since. His mother felt that for the first time her son had tried to be compliant while on parole. She believed that without drugs and taking his medication he could function appropriately. Sentencing remarks 14 The Judge referred to the statements in R v Henry (1999) 46 NSWLR 346 as to the relevance of drug addiction and noted that it was not a mitigating factor in the commission of an offence. Her Honour found that the offence was aggravated by the actual use of violence, that the offence was planned and that it was committed while the respondent was on parole. The Judge accepted that the respondent had a mental disorder and that s 21A(3)(j) of the Crimes (Sentencing Procedure) Act might be relevant but held that his mental disorders were "not such as to substantially affect his capacity to understand the effects of his action or to substantially affect his understanding of the authority and requirements of the law". 15 Her Honour noted that general deterrence should be given less weight because of his mental disorder and believed that there should be "some diminution in sentence by way of general deterrence by reason of his reduced responsibility". The Judge found special circumstances "relevant to rehabilitation, given his need for ongoing treatment and his expressed desire to do so". 16 In the last paragraph of the sentencing remarks the Judge stated that the offence was "in the mid range of criminality, having taken into account the use of the knife to inflict damage to the victim but taking into account also his mental health issues". In passing sentence the Judge stated:

I sentence you to a term of imprisonment. I do not fix a standard non parole period because of the plea of guilty. The sentence will consist of a non parole period of three years. I sentence you to a total term of four years imprisonment to date from 22 August 2005".

Crown submissions 17 The Crown submits that the sentence is manifestly inadequate but asserts three particular errors being:

I. Failure to consider and apply the guideline judgment in Henry;

2. Failure to consider the standard non-parole period as a guidepost;

3. Structuring the sentences so that they were all concurrent and backdated so that they were all served concurrently with the balance of parole 18 The Crown submits that the Judge ought to have had some regard to the guideline in Henry when determining the appropriate sentence to impose upon the respondent notwithstanding that the offence before her Honour was more serious. At least, so it is argued, the guideline in Henry would have provided the Judge with a bottom line upon which the aggravated features of this offence would have operated. In the Crown's submission the range of 4 to 5 years indicated for a s 97 offence should have provided her Honour with an indication that a sentence of 4 years was manifestly inadequate for an offence under s 98 having regard to the matters of aggravation attending this offence such as the wounding, that the respondent was on parole and the fact that the maximum penalty was greater for the offence charged. 19 It was submitted by the Crown that the Judge, having determined that the offence was in the midrange of seriousness, should have fixed a non-parole period that was closer to the standard non-parole period notwithstanding that the respondent had pleaded guilty. It was contended that the Judge failed in accordance with s 54B(4) to indicate sufficiently those factors that permitted her to depart from the standard non-parole period apart from the plea of guilty: Marshall v R [2007] NSWCCA 24. It is argued that the Judge did not indicate that she was using the standard non-parole period as a reference point and that, if she had done so, she would not have departed so far from it having regard to the aggravating factors of the preset offence, particularly the fact that the respondent was on parole. 20 The Crown complains that all offences were made concurrent within themselves and with the balance of parole. The Crown refers to Callaghan v R [2006] NSWCCA 58 in which it was held that, where the offending occurs a short time after release to parole and the balance of term to be served is short, the Judge would be entitled to impose the new sentence cumulative to the balance of term. Respondent's submission 21 Mr Dhanji for the respondent reminded the Court of the well known principles that apply to a Crown appeal and quoted the passage from R v Wall [2002] NSWCCA 42 where Wood CJ at CL summarised them. It is unnecessary to set them out here but they guide the decision as to whether the Court should allow the appeal and, if so, the discretion as to the sentence to impose in substitute of that determined by the Judge. 22 In respect of the submission about the failure to apply Henry the respondent argued that a s 98 offence carries a standard non-parole period of 7 years and this fact in effect takes over from any significance the guideline judgment in Henry otherwise would have. It was submitted that it would be wrong to start with the guideline provided in Henry and apply or detract aggravating of mitigating factors to derive a sentence. 23 While accepting that the Judge "might not have been explicit in identification of the facts leading from a departure from a standard non-parole period", the respondent submitted that the Court could determine her reasons from the whole of the sentencing remarks. It was noted that although the Judge found the offence to be objectively in the midrange of seriousness, she was prepared to allow "some diminution in sentence by way of general deterrence" and the plea of guilty. 24 The respondent submitted that it was open for the Judge to backdate the sentence to the revocation of parole and was not bound to take some other view based upon the decision in Callaghan. It was submitted that it was not open for the Judge to take into account the two offences dealt with under s 166 by reason of the restriction on sentencing contained in s 58 of the Crimes (Sentencing Procedure) Act. In effect it was submitted that the Judge was restricted to the power of the Local Court to accumulate sentences: see s 168(3). 25 In oral submissions Mr Dhanji stressed that the case was an unusual one because of the additional factor of mental illness that underlay the respondent's offending. It was argued that this factor "broadened the range" so that, although lenient, the sentence fell at the bottom of, but within, this range. Determination 26 As has been noted, the offence under s 98 had a standard non-parole period of 7 years but a maximum penalty of 25 years. This Court has remarked about the problems that are posed for a sentencing court by a standard non-parole period that is out of proportion to the maximum penalty and the difficulty in determining the rationale of parliament in specifying a standard non-parole period that is well above or well below half the maximum penalty: see Marshall at [34]. 27 However, the Judge was confronted with a standard non-parole period that represented prima facie the appropriate sentence for an offence that was objectively within the midrange of offending for an offence of its kind after trial. The Judge determined that this offence was within the midrange of criminality taking into account the use of the knife but also having regard to the respondent's "mental health issues". I am prepared to act on that basis although it is in my opinion a favourable finding. The wounding was serious because it was intentional and gratuitous. As has been noted, the respondent was on parole for armed robbery, a fact not mentioned by the Judge when determining the level of seriousness of the offence. 28 It has been noted in this Court that sentencing an offender who suffers from a mental disorder is no easy task. There are considerations that pull in different directions: R v Engert (1995) 84 A Crim R 67. But the fact that an offender does have a mental disorder does not necessarily result in a lesser sentence for that reason. A significant mental disorder suffered by an offender at the time of the commission of an offence can be relevant to the exercise of the sentencing discretion in at least four ways: R v Israil [2002] NSWCCA 255. It can mitigate the offender's culpability and hence the objective seriousness of the offence. The impact of the mental disorder on the offender's behaviour can mean that imprisonment is more difficult and onerous than might otherwise be the case. It can moderate the need for the sentence to reflect general deterrence. It can indicate that the offender presents an actual or potential danger to society. The Judge referred to only two of these matters. 29 It is difficult to see how the respondent's psychiatric condition reduced the objective seriousness of the offence other than that he might act aggressively without foresight of the consequences. But as the Judge found that his capacity to understand his actions and "his understanding of the authority and requirements of the law" were not substantially affected, there was little reduction of his culpability arising from his mental disorders. In any event, his mental state at the time of offending was a result largely of his failure to take medication and his use of illegal substances. Yet he was aware of the relationship between illegal drugs and his psychotic thoughts. He admitted so much to the psychiatrist who reported to the court. As a condition of parole he was to undertake drug rehabilitation and clearly his use of illegal substances was itself a breach of his parole. In these circumstances it could be considered as an aggravating circumstance that the offender's disordered mental state at the time of the offence was to a large extent a result of his use of drugs. 30 There was no evidence before the Judge that the respondent would find imprisonment more difficult or onerous because of his mental condition and therefore this matter was of no relevance. 31 The Judge thought that there should be a diminution of the need for general deterrence by reason of the respondent's "reduced responsibility on account of his mental condition". A moderation of the need to reflect general deterrence does not depend upon the offender's reduced criminal responsibility. In the present case there was little, if any, reduction in his criminal responsibility for the reasons I have given. But in any event having regard to the fact that his criminality was largely a result of drug taking which itself was a breach of his parole, the diminution, if any, could have been very slight indeed. 32 But whatever mitigation there was in the reduced significance of general deterrence, it was offset by the very strong need to impose a sentence for the purpose of specific deterrence, a factor not mentioned by her Honour. This was not just because of the fact that the offence was committed while the respondent was on parole but because it had to be brought home to him that he could not use illegal drugs rather than his medication. The respondent was a potential danger to society because of his aggressive impulses when using illegal drugs and this meant that personal deterrence and the protection of the community were very important considerations. 33 In my opinion the submission that the mental health of the respondent reduced the otherwise appropriate range of sentences commensurate with the seriousness of the offence should be rejected. If this was the reason why the Judge reduced the sentence so far below the standard non-parole period, then with respect she was in error. I accept that, as Gleeson CJ points out in Engert, it is within the discretion for a judge to derive a sentence that reflects the various and competing aims of punishment. However the Judge in the present case does not appear to have properly undertaken that task. She appears to have considered only those facts that might act in mitigation of the sentence and yet on the facts before her they could not mitigate the sentence at all. As I have indicated, there is nothing in her remarks to indicate an appreciation of the danger that the respondent posed to the community by his mental condition and his use of drugs or the significance in this case of personal deterrence. 34 The relevance and role of the guideline in Henry in light of the standard non-parole period specified for the offence was raised in the submissions of the respondent. In answer to the Crown's complaint that the Judge had no, or insufficient, regard to the guideline in Henry, the respondent argued that the standard non-parole period was more relevant. In my view the guideline in Henry has a reduced role to play in determining a sentence for s 98 offences even without the standard non-parole provisions. This is because of the increased maximum penalty for such offences by reason of the fact that there had been a wounding. Nevertheless, if a court imposed a sentence for a s 98 offence that was less than that proposed in the Henry guideline, that fact alone should cause the court to consider whether such a sentence could be justified in light of the increased seriousness of the offence as evidenced by the increased maximum penalty. Where all other factors are equal, it is axiomatic that a person charged with a s 98 offence should receive a heavier sentence than a similar offender charged with a s 97 offence. 35 But I do not see anything inconsistent between the Henry guideline and the standard non-parole period for the s 98 offence. The Henry guideline looks to the total sentence and it is dealing with the normal case for an offence under s 97. Therefore, it is considering an offence in the midrange of seriousness where the maximum penalty is imprisonment for 20 years. The sentence suggested in the guideline, however, is the end result of the application of the relevant s 21A matters to an offence objectively of midrange seriousness. So it takes into account the young age of the offender and the lack of serious record. It also takes into account a late plea. Bearing those matters in mind, it still represents a guide to the sentencing for related offences, such as an offence under s 98 even though that offence carries a standard non-parole period. It is another reference point but one indicating a range of sentences that would not normally be appropriate for a s 98 offence. 36 There is no reference by the Judge to the standard non-parole period being used as a guideline or reference point anywhere in her remarks. A reduction of the standard non-parole period by 25 per cent for the plea of guilty would be 5 years 3 months. The non-parole period specified was 3 years. In view of the Judge's finding that the offence was of midrange seriousness and taking into account that the respondent was on parole, a seriously aggravating factor, that result should itself have given rise to some question in the mind of the Judge as to its appropriateness. If the Judge had then taken into account that a non-parole period of 3 years is roughly what might have been expected for an offence falling within the top of the Henry guideline after an early plea, then she should have asked herself why the sentence was so lenient. There is no reasonable answer to that question. 37 In my opinion, if the Judge had properly applied s 54B(4) and attempted to identify each of the factors taken into account in departing from the standard non-parole period, as the section requires, she must have seen that the sentence was too great a departure from the standard non-parole period. The only reason given for not imposing the standard non-parole period was the plea of guilty but that alone could not have justified such a substantial departure even with some further reduction due to the lessening of general deterrence had that been appropriate. In my opinion having regard to the fact that the respondent was on parole and his criminal record generally the offence itself warranted a sentence above the standard non-parole period. The only significant mitigating factor was the plea of guilty. 38 In my opinion the Crown appeal should be upheld. The Judge said that she found special circumstances "given his need for ongoing treatment and his expressed desire to do so". In fact the non-parole period is 75 per cent of the total term, so that the Judge did not reduce the non-parole period to accord with this finding. As this is a Crown appeal the sentence should be moderated to have regard to double jeopardy and the respondent should receive the benefit of the finding of special circumstances. Further, I do not believe that the other offences under s 166 warranted any increase in the overall sentence to be served by the respondent even if the Judge had the power to impose cumulative sentences for those matters. 39 Callaghan indicates that it would be appropriate not to backdate the sentence in the circumstances that applied here. Her Honour apparently never considered whether or not she should backdate the sentence. The only reference to the balance of parole was that it had expired. The fact that the respondent was using drugs contrary to his parole conditions was a matter that might have indicated that the sentence should not have been backdated. But again having regard to the fact that this is a Crown appeal and the respondent's sentence is to be significantly increased, I would not interfere with the commencement date. 40 I wish to make it clear that I have given the respondent the benefit of findings made by the judge even though I would not have come to those conclusions myself. For example, I would have found the offence more serious than midrange. I have taken into account an affidavit by the respondent as to his health issues in gaol and the further courses he has undertaken. The matters raised by him do not in my view indicate that the appeal should be dismissed as a matter of discretion or that the sentence should be significantly moderated other than by reason of this being a Crown appeal. I am departing from the standard non-parole period by reason of the discount for the plea of guilty and by finding special circumstances. 41 I propose the following orders. The Crown appeal is allowed and the sentence imposed by Ashford DCJ for the offence of armed robbery with wounding is quashed. In lieu the respondent is sentenced to a non-parole period of 4 years 6 months with a balance of term of 2 years 3 months to date from 22 August 2005. The respondent is eligible to be released to parole on 21 February 2010. 42 HISLOP J: I also agree with Howie J. **********

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